1) CAPITAL PUNISHMENT
QUESTION: A Beraisa quotes Rebbi Eliezer ben Yakov who said, "I heard that Beis Din lashes and punishes even when not mandated by the Torah. It is not that the Beis Din is transgressing the Torah, rather in order to make a fence around the Torah." He recounts an incident in which Beis Din put to death a man who rode a horse on Shabbos during the time of the Greeks, even though riding a horse on Shabbos is prohibited only mid'Rabanan. Although the Torah does not mandate the death penalty for such a transgression, the Beis Din put him to death because they recognized the necessity to strengthen the people's attitude towards Mitzvos during that period (see RASHI DH Ela sheha'Sha'ah). Similarly, it happened once that a man was intimate with his wife in an open area, and Beis Din gave him lashes.
What guidelines dictate when Beis Din may decide to administer a corporal punishment that is not mandated by the Torah?
ANSWER: The CHIDUSHEI HA'RAN explains that Beis Din is not empowered to enact a punishment permanently for any given transgression. For example, although Beis Din had the authority to execute the man who rode a horse on Shabbos, Beis Din does not have the authority to enact the death penalty for anyone who rides a horse on Shabbos. Doing so would constitute a violation of the prohibition against adding commandments to the Torah (Bal Tosif). In the isolated incident recorded in the Beraisa, the Chachamim realized that the people were not honoring or observing the Mitzvos, and thus they decided to take drastic actions to arouse the people's sensitivity for the Torah and Mitzvos, and they issued the death sentence against the transgressor who rode a horse on Shabbos.
The Ran adds that only a Beis Din with expert Dayanim, who all have Semichah, may issue such a ruling.
The Ran's words imply that since proper Semichah does not exist today (according to almost all leading Torah authorities), this type of ruling cannot be issued today, just capital punishment in general is not administered today.
There are, however, two exceptions to the rule that Beis Din does not administer capital punishment today.
1. The Ran quotes the Gemara in Bava Metzia (83b) which relates that Rebbi Elazar b'Rebbi Shimon would catch Jewish criminals and hand them over to the Roman government, which would then execute them. The Ran infers from there that where the government gives jurisdiction to the Jewish courts to judge capital cases, and where both the Jewish and non-Jewish laws of that country agree that the criminal is to be put to death, Beis Din is allowed to execute such a criminal even today. This is not because today's Beis Din has the power of a Beis Din of Dayanim with Semichah, but because the governing body gives the Jewish court the power to judge and to apply Torah law if it coincides with secular law. It is clear that if the criminal is not liable for the death penalty according to the law of the land, the Jewish court is not allowed to kill him even if Torah law mandates the death penalty. This is because the court acts merely as agents of the government, and not in the capacity of a proper Beis Din (since the Dayanim do not have Semichah).
2. A Moser (see CM 388) is considered to have the same Halachic status as a Rodef, a person who is pursuing someone else in order to kill him. One is allowed to stop a Moser, like a Rodef, with force, even by killing him if necessary, before he carries out his intent. This does not require a Beis Din, but it does require the decision of an acknowledged Halachic authority to determine that the person indeed is a Moser. There are historical incidents of persons in this category who indeed were killed. The Chidushei ha'Ran writes that it was the custom for such people to be killed. The ZICHRON YEHUDAH (#75) relates that the RI MI'GASH stoned to death a Moser on a Yom Kippur which occurred on Shabbos during the time of the recitation of the Ne'ilah prayer. Although Beis Din does not administer capital punishment on Shabbos, if the Moser poses an immediate threat, one is allowed to kill him immediately, even on Shabbos, to prevent him from causing damage, just as one may kill a Rodef who is trying to kill someone on Shabbos. The MARGOLIYOS HA'YAM quotes his father who said that a similar incident happened in his hometown of Greidung (near Lvov). A tough and well-known Moser came to the synagogue for Kol Nidrei on Yom Kippur night. He was wrapped in his Talis in a seat of honor in the town synagogue. Suddenly, some people came in, pulled the Talis over his head, took him to the river, and drowned him. (See Margoliyos ha'Yam at length for more sources on the topic of killing a Moser.) (Y. MONTROSE)
2) DISGRACING THE KING
OPINIONS: The Mishnah (46a) states that Beis Din may not leave an executed person hanging for too long, as the verse states, "Lo Salin Nivlaso Al ha'Etz" -- "His body shall not remain all night upon the gallows" (Devarim 21:23). The Gemara quotes a parable in the name of Rebbi Meir which explains the reasoning behind this law: Identical twins are residents of a certain city, and one becomes the king and the other becomes a thief. The king says that his brother should be hanged. Whoever saw the king's brother hanging declared, "The king is hanging!" The king then commanded that his brother's corpse be taken down.
What is the meaning of this parable?
(a) RASHI on the verse (Devarim 21:23) explains that it is a disgrace for the King when a person's corpse is left to hang. A person is made in His image, and the Jewish people are His children. Rashi apparently understands that the parable of the identical twins expresses the special relationship which Hash-m has with the Jewish people. When a Jew is hanging, it is as if the image of Hash-m is hanging. In order to prevent this disgrace, Beis Din is commanded not leave the person hanging.
(b) The RAMBAN on the verse argues that the parable of the twins does not refer to the unique relationship between Hash-m and the Jewish people. The Ramban writes that when Yehoshua commanded that the executed kings of Canaan be taken down and buried (Yehoshua 10:27), he might have done so because of this parable of the two brothers. This clearly implies that the parable applies to Nochrim as well. Although the Ramban rejects Rashi's explanation, he says that the true explanation is a secret ("Sod," which he does not divulge).
The MAHARSHA here asks that the Ramban raises a strong question on Rashi's explanation. If Yehoshua ordered that the kings of Canaan be buried and not left to hang, clearly the parable applies to all people and not only to Jews.
The Maharsha answers that there are two prohibitions against leaving a dead person hanging longer than necessary: "Lo Salin" and "v'Lo Setamei Es Admascha" -- "and you should not defile your land" (ibid.). Rashi understands that the problem of "Lo Salin" is that when a Jew, whom Rebbi Meir's parable considers a "twin brother" of Hash-m, is hanging, it is a disgrace to the King. However, the verse of "v'Lo Setamei Es Admascha" prohibits leaving a dead person hanging specifically in Eretz Yisrael. Rashi agrees that any dead person, even a Nochri, is included in the prohibition against defiling Eretz Yisrael.
(c) The BEN YEHOYADA suggests a different explanation for this parable. He explains that the twins refer to the Neshamah and the body. Just as the physical body has 248 limbs and 365 sinews, the Neshamah has corresponding spiritual characteristics, and thus they are called twins. The Neshamah is referred to as the king, and the body is referred to as the thief. The Ben Yehoyada apparently means that the prolonged hanging of the body disgraces the Neshamah, and it therefore is prohibited. (Y. MONTROSE)