The Capital Punishments Have Not Disappeared

And a new year of Yeshiva begins… Here was my first night seder shiur of the year – a topic I always have fun thinking about.  Shiur and sources: here.

The Gemara in several places (such as Ketubot 30a-b and Sotah 8b) says that “even though the four capital punishments are no longer carried out” at some level they are.  God ensures that one who is liable to receive one of the capital punishments will receive an equivalent.  As several Rishonim note (such as the Ritva on Ketubot), this does not mean God always punishes people in this world – it means that if he does, he will do it in a way that is parallel to the punishment they would have received in court (see Tosafot for other answers).  While it is hard to figure out all the metaphysical implications of this statement, there are several interesting things that emerge from a close read of the sources.

First, the Gemara says that one who is obligated to be stoned will fall off a roof or be trampled by a wild animal.  As Rashi notes, the stoning process started with the criminal being thrown off a ledge.  Only if he did not die was he stoned.  Both falling off a roof and being trampled are parallel to this  It is clear then, that though we call this punishment “stoning” (as do the pesukim), Chazal understood that to be a secondary element of the punishment.  This analysis is proven by the Gemara itself (Sanhedrin 45a-b) which specifically derives from a possuk that either he shall die from being thrown or from being stoned – showed they each are defined as sekilah. 

However, if one reads that Gemara carefully, one is forced to accept several other assumptions that allow that derivation to work.  Specifically, the Gemara bases itself on a possuk from Har Sinai, which says that anyone who goes up the mountain will sakol yisakel o yaro yiyareh.  However, one would not immediately have known this was a capital punishment – especially since the possuk says this “punishment” will be carried out against either humans or animals.  One therefore must realize the Gemara assumed that 1) This is a classic capital punishment (a derashah is provided to prove this in Sanhedrin 45) and 2) Killing an animal can be considered a formal punishment.

The second assumption is played out in Sanhedrin 15b where the Gemara concludes that to kill an ox at Sinai, one would have needed 23 judges, just as in all capital cases.  It is an open question whether the defendant is the animal or the owner.   (Of course this related to shor haniskal, but not for now.)

Yet another issue emerges from the Gemara.  When detailing what punishment God carries out, two of them parallel the punishments we give.  Stoning, as we saw above, is modelled after the main part of stoning in court.  Similarly, in a case of beheading, the Gemara finds two cases where the person will be killed in a similar way.  However, in the two remaining cases, the punishment the person is given is very different from what he would get in court.  Sereifah – burning in Jewish law entails pouring boiling lead down the throat of the convicted criminal.  However, the Gemara says that God will make the sinner die either by being burnt or by being bitten by a snake and “burned” by the venom.  As for chenek – we strangle the defendant by using two cords that snap his trachea.  God will cause him either to drown or choke.  From here we see that Chazal saw their punishments as mere instantiations of broader categories.  Namely, a theoretical sereifah could include many things – Halacha just dictates that practically we pick a very specific one.

Lastly, Tosafot (Sotah 8b) notes that in Makkot 10b the Gemara says that if there is an accidental and intentional murderer who did not receive their proper punishments, God will find a way to punish them both.  He will arrange the accidental killer fall off a ladder onto the intentional murderer.  Thus, the former will be convicted of accidental murder and be sent to an Ir Miklat and the latter will be killed.  However, Tosafot notes that in this case the murderer seems to be receive the equivalent of stoning, though murder calls for beheading.  Tosafot responds that God is punishing measure for measure – in this case the murderer killed by stoning.  From here you see something interesting.  One can wonder whether punishment in Beit Din is meant to exact justice or simply approximate it through legal generalizations.  From Tosafot it is clear that he thinks the latter – in reality someone who kills should be killed in the same way he committed his crime.  The courts cannot do this as they are bound by the generalities of law.  However, in an ideal world, where God acts as the Sanhedrin, all punishments will actually be carried out with exact justice.

Thus, from this small piece of Gemara, we can derive many interesting things, if only we read carefully enough.


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