We all know that, according to Jewish Law, one can only be convicted of a crime through the testimony of two eye witnesses¹ and only after acknowledging a proper warning from these witnesseses.² Such parameters, though, would seem to make a conviction very unlikely if not impossible. How often do you think someone is convicted in Canada or the United States only upon the clear testimony of two eye witnesses and only after they warn the perpetrator that the action that he/she is about to undertake is against the law and he/.she responds that he/she knows so but does not care? How often do you think a perpetrator, who knows that his/her actions are being witnessed by two individuals and knows that if he/she simply does not acknowledge any warning there can be no conviction, will just simply keep quiet in order to avoid conviction? The problem is very simple: how can there be law and order in a society that demands such standards in order to enforce justice? The simple answer would seem to be that there can’t.

            Rambam, Mishneh Torah, Hilchot Rotze’ach U’Shmirat Nefesh 2:4,5, as such, introduces us to two other court systems within the confines of Halacha that operated specifically for this very purpose of protecting law and order. One was the beit din hamelech, the king’s court, which functioned under the authority of the monarchy to do whatever was necessary to maintain law and order within the society.³ The second was an emergency power that rested in the regular court system that could be activated for the purpose of protecting society.⁴ Rambam, Mishneh Torah, Hilchot Rotze’ach U’Shmirat Nefesh 4:9 states emphatically that this emergency power was specifically for the purpose of protecting society. Even one who practiced idolatry but could not be convicted due to the technicalities of the formal Torah court system was to be freed if found not guilty. Only one whose actions would damage the law and order within the society would be subject to the workings of this emergency power. Or Same’ach, Hilchot Melachim 3:10 extends this same principle to the beit din hamelech, limiting its scope also only to matters of law and order, although he does clearly also state that, while these general sources specifically consider the crime of murder, these two court systems would also function in cases of theft and other criminal activities that would harm society.⁵ Law and order was not to suffer due to the almost impossible strictures of prosecuting a criminal only with the testimony of two eye witnesses amongst the many other challenging procedural rules of the Jewish court system. Why, though, if it was inherently ineffectual, did the Torah construct such a system in the first place?

             In T.B. Makkot 7a, we find the famous words that a Jewish court that executes more than once in seventy years is deemed to be a destructive tribunal, what we would consider a hanging judge.⁶ The mishna then states that Rabbi Tarfon and Rabbi Akiva both declared that if they ever served on a Sanhedrin, they would never had executed anyone, ever.⁷ To this Rabbi Shimon ben Gamliel responded, in disagreement with such a proposed practice, that such behaviour would actually have the effect of increasing the number of murderers within Israel. This dialogue is most interesting. If our concern is law and order, why would Rabbi Shimon ben Gamliel not be similarly concerned about a beit din that only executes once in seventy years? Furthermore, what if there was a need due to the reality of crime within the society to execute more often?⁸ In any event, if the concern was law and order, would not the emergency powers of the Jewish court to protect society not be activated. Are Rabbi Tarfon and Rabbi Akiva referring also to this emergency power and that they would not execute anyone even within these parameters? It would seem not but then what is Rabbi Shimon ben Gamliel’s concern for, what would seem to be, law and order.

            T.B. Sanhedrin 41a informs us that forty years before the destruction of the Second Temple, the Sanhedrin voluntarily moved out of the Lishkat Hagazit, its formal place within the Temple compound. As capital punishment could be inflicted by a Jewish court, anywhere, only when the Sanhedrin was sitting in the Lishkat Hagazit, this action effectively blocked any beit din’s ability to carry out this punishment. Rashi explains that this was because there was an increase in murders. Is it not strange, especially given the words of Rabbi Shimon ben Gamliel, for the Sanhedrin to respond to an increase in capital crime by lessening the potential punishment? It is clear, though, that this requirement for capital punishment was only in regard to the formal court system and that the other court powers to maintain law and order were not, in any event, affected. After all, Jewish communities executed deserving individuals even in Europe. The focus of this gemara in Sanhedrin and the mishna, and thus the statements of Rabbis Tarfon, Akiva and Shimon ben Gamliel, cannot be law and order. What is it then?

            One goal of justice is societal, to preserve law and order within the society. Another goal of justice, though, focuses on the individual. It is just for a transgressor of the law to pay a penalty, to justly face the consequences of his/her act. It is only God, though, who can correctly determine this measure. The Torah still, however, instructs us in regard to this standard of justice and directs us to attempt to apply it. This is the formal level of the Jewish court system and it is on this level that, I believe, Rabbis Tarfon and Akiva are expressing their reluctance to ever execute someone. Justice based on reasons of law and order is another matter and, on this level, the emergency powers of the court enable the court to act as necessary. But to actually judge the evil of an individual and execute a person based on this, Rabbis Akiva and Tarfon are hesitant. It is in this regard that Rabbi Shimon ben Gamliel states that such an undertaking will still have negative consequences for this level of justice will not, thereby, be demonstrated within the society. Yet it still must be demonstrated with caution. 
                                                             
Rabbi Benjamin Hecht

 

Footnotes

¹ See, for example, Devarim 17:6 and 19:15.

² See, for example, T.B Sanhedrin 8b.

³ See, also, Rambam, Mishneh Torah, Hilchot Melachim 3:1.

⁴ See, also, Rambam, Mishneh Torah, Hilchot Rotze’ach U’Shmirat Nefesh 4:8.

⁵ It may be of interest to note that the Or Same’ach actually also sees a parallel, specifically in regard to procedural rules, between these court systems and the court system which is to be established under the Noachide Code. The latter, for example, allows for the acceptance of one witness while the formal Jewish court system demands two.

⁶ It, perhaps, should be noted that the first view presented actually applies this term to a court that executes more than once in seven years.

⁷ Rashi explains that they would have been so meticulous in their examination of the witnesses that no testimony would ever stand and thus no one would be convicted and thus executed. This is specifically significant in that Rambam clearly states that the emergency power of the court, to which we refer in this Insight, was actually activated in such circumstances.

⁸ See, interestingly, Maharal, Chidushei Aggadot, Makkot 7a.

© Nishma 2010