More Discussions for this daf
1. Judicial Punishment 2. Shlomo and the child 3. She'eilas Shalom Chavero be'Shem
4. Hash-m vs. Heavenly court 5. Chayavei Kerisus she'Laku

Shmuly asked:

From learning a little bit of Sanhedrin and Makkos, it seems that the penal system in Beis Din was pretty liberal. Meaning for example the gemorah debates in Masechta Makkos on daf 23 about whether if a person soils himself before the first lash is applied if it is enough humiliation to suspend the malkus. And basically every one agrees on suspension after the malkus started.Also, the gemorah talks on daf 7 about when to administer the death penalty and it says that once in 70 years is considered murder. And I can go on and on about how there is this concern about making sure someone is 1000% guilty before punishing. My question I have therefore is this only on the question of mitzvos and aveiros. Did the jewish melech have a right to impose his own laws. For example is the concept of a jail consistent with halacha? If someone killed someone in cold blood and is a danger to society does that person go scott free if he was witnessed by 500 people who were all related?

This is a question that has always bothered me. Does the Rambam discuss this at all?


Shmuly, Chicago

Rav Joseph Pearlman, M.A., LL.B., (CANTAB) replies:

Any system of judicial punishment has to find a balance between punishing the guilty and protecting the innocent. In fact, the very Mishnah in Makos (7a) which you quote demonstrates just this. Whilst you quoted the view of Rebbi Elazar ben Azaryah about a Sanhedrin who puts an accused to death once in seventy years, and Rebbi Tarfon and Rebbi Akiva would have avoided executions altogether, Raban Shimon ben Gamliel held that this would have resulted in an increase in the crime statistics by eliminating the fear of retribution.

The Meiri there comments that the Halachah follows the opinion of Raban Shimon ben Gamliel that just as it is a Mitzvah to endeavor to exculpate the innocent, so it is a Mitzvah to endeavor to bring about the death of the guilty and to eradicate evil.

The Rambam in his commentary to the Mishnah there writes that "the reference to reducing the incidence of the death penalty refers to the obligation on the Court to consider the matter carefully and with full meditation, but if at the end of the day the evidence is proven, then they are duty bound to impose the death penalty on even a thousand people on the same day, should it so happen that this is found to be the proper ruling according to the laws of the Torah."

The fact that the Torah insists on two adult, unrelated male, honest, etc., witnesses is because its objection to circumstantial evidence. In western society, it happens time and again that an innocent man is convicted because of an accumulation of circumstantial evidence, notwithstanding the adage better that one thousand guilty men should go free than that one innocent man should be punished unjustly.

The Torah, remember, was dealing with a law-abiding society, and this is why the Prophets fulminated against the injustice of the people of their time with such venom. In a perfect society the scales can be tipped in favour of protecting the innocent. However, when the criminal fraternity increased, the Sages recognized that so, too, must some of the penal system be modified. See the Sugya at the end of Maseches Sotah (47a) et seq. about "mi'she'Rabu ha'Ratzchanim" which led to the abolition of capital punishment.

We must also remember that the whole penology structure of the Torah differs from both the Eastern mentality (where they chop off the hands of thieves) and the Western culture where the victim is often treated worse than the accused. The Torah, for example, did not subscribe to prison incarceration and to the deprivation of liberty (except in the case of Galus for accidental homicide) as it prefers the sharp, immediate punishment to the long, drawn-out "Misah Arichta." Similarly, it objected strongly to "Halanas ha'Din," delay in the procedure, as being unfair and unnecessarily traumatic to the accused. Compare this with modern day judicial systems. How long do people wait to be tried in the United States, and how long do those sentenced to the death penalty have to wait on "death row?"

Nonetheless, the judicial authority -- originally the King and his Sanhedrin and subsequently the leading Rabbis of the generation -- retained residual overriding powers for the protection of society. They could, and did, remove people from society for the protection of the Realm, the Torah state, and the general public. Thus, in Yevamos (90b) Rebbi Eliezer ben Yakov said, "I understand that Beis Din imposes lashes and punishments unauthorized by the Torah. Now this is not a breach of Torah law, but rather for its protection... for le'Migdar Milsa Sha'ani."

Similarly, a Moser or a Malshin can be put to death in appropriate circumstances, due to the Din of Rodef. See also Margolios ha'Yam to Sanhedrin 56a, notes 6 and 7, and various references he quotes there, in particular the Teshuvos ha'Rashba vol. 5, #238, and Teshuvos ha'Rosh 21:8-9. The whole subject of "Machnisin l'Kipah" (placing a repeat sinner into confinement) also needs to be discussed. As to the powers of the Melech, there is no doubt that he was not constrained by the strict technicalities of the penal/judicial system imposed by the Torah for application by the Sanhedrin. His regal and constitutional duties meant that the Torah granted to him extra-legal authority and powers, but with it strictly defined responsibilities. He was not to become a despotic tyrant but the servant of Hash-m and His people. See Rambam, Hilchos Melachim chs. 1-4. In particular, see 4:8 that the King had the right to put to death a subject for even the most trivial disobedience and to imprison and impose lashes for the protection of his honour.

In 4:10, the Rambam rules that the King has the power to put to death or take other necessary steps for the welfare of society where requisite. This is said specifically to include dealing with murderers where there are insufficient witnesses but enough circumstantial evidence, even if the murderer did not receive the statutory warning and where similar technicalities are not present. The King can leave the victim hanging for days, contrary to the normal procedures specified in Parshas Ki Setzei (Devarim 21:23), provided that his intention is to show his authority and to break the spirit of the wicked.

Whilst there were limits to the powers of the King (unlike absolute monarchs and dictators), he nonetheless had wide constitutional and executive powers for the good of the kingdom, and for their purpose operated a parallel but much more flexible and subjective penal code. It thus supplemented and complemented the regular judicial system and insured a harmonious society.

There are a number of general objectives in imposing punishment on criminals: (a) Retribution; (b) Expiation; (c) Prevention of the accused from repeating his act; (d) Deterrent of others; (e) Revenge. The last is clearly not compatible with Torah ideology. The first two are the major objectives of the basic Torah judicial system, although the third and the fourth are also relevant to it (e.g. "Kol Yisrael Yishme'u v'Yira'u," see Devarim 13:12, 17:13, 21:21). However, the King's major concern were these latter two, since his responsibility was the welfare of the realm. This difference in main objective affects the burden of proof and the whole penological balance.

There is much more to be said on this subject, but I trust the foregoing will suffice for the present to demonstrate the absolute logicality in all respects of the Torah values.

Joseph Pearlman

Rav Joseph Pearlman adds:

A few additions should be mentioned:

1) When in the Rambam in the Perush ha'Mishnah in Makos (7a) writes that the Beis Din is duty bound to impose the death penalty on *even a thousand people on the same day*, this surely contradicts the explicit Mishnah in Sanhedrin (45b) that states that two capital offenses cannot be judged on the same day, and this is clearly the ruling of the Rambam in Hilchos Sanhedrin (14:10). I checked in the Kapach edition of the Perush ha'Mishnah, who has a different text which reads that Beis Din can put to death even a thousand people *one day following the next* (not "b'Yom Echad" but "Yom Achar Yom"). See Kapach there, note 30.

2) Whilst the Meiri rules like Rebbi Shimon ben Gamliel, this may be only as against Rebbi Tarfon and Rebbi Akiva there, but not against the Tana Kama who says that the Sanhedrin is called "Chavlanis" if it sentences to death (more than) one in seven years, for the Rambam (ibid.) clearly ruled like the Tana Kama. Why, then, is it called "Chavlanis?" See the Aruch ha'Shulchan he'Asid, Hilchos Sanhedrin (52:18) who writes, "This is the explanation: The Beis Din, in their supervisory capacity over Yisrael, must see to it that abominations such as these not occur such that they would come to a point where they (the Beis Din) would have to sentence to death many people. Therefore, when it would happen that one person in seven years became Chayav Misah, the Beis Din was called 'Chavlanis.' That is to say, they did not properly supervise the generation as they were bidden to do."

3) See also Maharatz Chayes to Makos 7a, Tiferes Yisrael on the Mishnah there (#61), and the Likutim to the Mishnayos (last one in the Perek) which are very relevant to the central point in our theme. They also mention the Rambam in Hilchos Rotze'ach (2:4) which I neglected to quote previously but which is very relevant:

"And all of these murderers and the like who are not Chayav Misas Beis Din -- if the king of Yisrael orders that they be killed, through the law of the kingship and for the benefit of society, he is permitted to do so. Similarly, if Beis Din finds it fitting and necessary to kill them with a 'Hora'as Sha'ah,' they have the prerogative to do as they see fit."

The Rambam continues (in 2:5), "If the king did not kill them, and [Beis Din did not kill them as] it was not deemed necessary to strengthen [the observance of] the matter, Beis Din *is nevertheless obligated to punish them with severe lashes that bring them near to death, and to bind them in siege and distress for many years, and to inflict them with all types of infliction, in order to frighten and threaten other wicked people...." See there.

The source for this is not entirely clear. The Maharatz Chayes, however, learns that the source is Sanhedrin 81b. See also Likutim (loc. cit.), who answers the question of the Maharatz Chayes from Makos 7a.

4) There was an error in the reference to the Rambam in the two paragraphs commencing, "Similarly," and, "In." Instead of 4:8 and 4:10, it should have read 3:8 and 3:10.

5) As to the parameters of the King's jurisdiction compared with that of the Sanhedrin and spiritual leaders of the generation, see Or Same'ach, Hilchos Melachim 3:10.

Joseph Pearlman

Gedalliah asked:

Can't "not judging 2 different capital offenses in one day" and "sentencing even 1000 people to death in one day" be read together?

For instance [G-d forbid], if several terrorists do one act together, couldn't they be sentenced at the same time as it would be one offense?; as opposed to one terrorist doing 2 different acts might require 2 separate trials for each act? [Wasn't there something or other where many women in askelon or somewhere were on the same day?]

The Kollel replies:

There are circumstances in which more than one capital offense can be judged on one day (and, indeed, this is one way to defend the text of the Rambam as it appears in the other versions of Perush ha'Mishnah). This is discussed in the Gemara in Sanhedrin there (45b). For example, one Beis Din can only judge one case per day, but one case can be judged in each of several Batei Dinim. Also, the Gemara there (46a) says that if it is the same crime and same punishment -- "Misah Achas v'Aveirah Achas" -- then one Beis Din can judge many cases of the same crime, as you suggested.

Y. Shaw