Printer Friendly Version Death Penalty and Talmud Law, Part 3: Abuse of Context

This is the third in a 4-part series on the Death Penalty in Talmud Law.

Rabbi Michael L. Rodkinson, translator of New Edition of the Babylonian Talmud (1898) quite properly objects to quotations from the Talmud being taken out of context.

> The Talmud is free from the narrowness and bigotry with which it is usually charged, and if phrases used out of their context, and in a sense the very reverse from that which their author intended, are quoted against it, we may be sure that those phrases never existed in the original Talmud, but are the later additions of its enemies, and such as never studied it.

— Rabbi Michael Rodkinson (10)

In concert with Rabbi Rodkinson, let us raise the same objection: Quotations taken out of context often do not carry the intentions of the original authors, and may, inadvertently or otherwise, leave readers with false ideas.

In their Supreme Court brief submitted in December 1999 (Bryan v. Moore), Elon, Lewin, et al. quote Makkoth 7a thus:

> The Sanhedrin that executes one person in seven years is called "murderous." Rabbi Elazar ben Azariah says that this extends to one execution in seventy years. Rabbi Tarfon and Rabbi Akiva say, "If we had been among the Sanhedrin, no one would ever have been executed." Rabbi Simon ben Gamliel responds, "Such an attitude would increase bloodshed in Israel."

— National Jewish COLPA/IAJLJ (2)

After quoting this, Elon, Lewin, et al. comment:

> This exchange among rabbis living in the first and second centuries reflects differences over the deterrent value of capital punishment that continue among legal scholars to this day. Some rabbis of the Mishnaic period (such as Rabbis Tarfon and Akiva) were unwilling to participate in a process that would take human life, while other rabbis (like Rabbi Simon ben Gamliel) believed that capital punishment had a deterrent effect that permitted it to be employed.

— National Jewish COLPA/IAJLJ (2)

Recall that Rabbi Judge Menachem Elon is former Deputy President of the Israeli Supreme Court and winner of the Israeli Prize, Israel's highest civilian honor. Prominent Orthodox Jewish advocate Nathan Lewin is the vice president of National Jewish Commission on Law and Public Affairs, president of the American Section of the International Association of Jewish Lawyers and Jurists, and has appeared before the Supreme Court 27 times. Trusting that Elon and Lewin that would not take a quotation from the Talmud out of context and thereby mislead the Court, we are led to believe that the rabbis of the Talmud fell into two camps:

- Those who were capital punishment abolitionists and,
- Those who reluctantly conceded to sparing use of capital punishment.

But when we recall Sanhedrin 45b, we are puzzled:

> MISHNAH. ALL WHO ARE STONED ARE [AFTERWARDS] HANGED … BUT DID NOT SIMEON B. SHETAH HANG WOMEN AT ASHKELON? THEY RETORTED: [ON THAT OCCASION] HE HANGED EIGHTY WOMEN, NOTWITHSTANDING THAT TWO [MALEFACTORS] MUST NOT BE TRIED ON THE SAME DAY.

— Babylonian Talmud, Tractate Sanhedrin 45b
Soncino 1961 Edition, pages 299-300

In that passage, the rabbis do not comment upon, nor lament, the number of people executed. They are merely concerned that all the eighty women were tried on the same day. Presumably if the women were each tried on days 1 through 80 and then sequentially executed, the rabbis would not be moved to comment on the event. Given the great range of crimes for which the death penalty was prescribed, from rebelling as a youth to idolatry and adultery, how can we make sense of Makkoth 7a?

The answer is to look at Makkoth 7a in context. Let us look at the several sentences preceding those quoted by Elon and Lewin.

We are using the Soncino translation. The Tractate Makkoth is not available on Come-and-Hear (TM) website, but we have reproduced the relevant text for your convenience. We have underlined the sentences in the section that appears in the Elon-Lewin brief. The underlining is added for emphasis, and does not appear in the Soncino.

> MISHNAH. IF ONE FLED AFTER HAVING BEEN CONVICTED AT A COURT AND AGAIN COMES UP BEFORE THE SAME COURT, THE [FIRST] JUDGMENT IS NOT SET ASIDE. WHEREVER TWO WITNESSES STAND UP AND DECLARE, 'WE TESTIFY THAT N. N. WAS TRIED AND CONVICTED AT THE COURT OF X AND THAT Y AND Z WERE THE WITNESSES IN THE CASE,' THE ACCUSED IS EXECUTED. A SANHEDRIN HAS JURISDICTION WITHIN THE LAND [OF PALESTINE] AND OUTSIDE IT. A SANHEDRIN THAT EFFECTS AN EXECUTION ONCE IN SEVEN YEARS, IS BRANDED A DESTRUCTIVE TRIBUNAL; R. ELIEZER B. AZARIAH SAYS: ONCE IN SEVENTY YEARS. R. TARFON AND R. AKIBA SAY: WERE WE MEMBERS OF A SANHEDRIN, NO PERSON WOULD EVER BE PUT TO DEATH. [THEREUPON] RABBAN SIMEON B. GAMALIEL REMARKED, [YEA] AND THEY WOULD ALSO MULTIPLY SHEDDERS OF BLOOD IN ISRAEL!

— Babylonian Talmud, Makkoth 7a, (3) (emphasis added)
Soncino 1961 Edition, page 35

The first part of this Mishnah — those sentences omitted by the Elon/Lewin team — are clearly halachah, or law. Those sentences lay down the law to be followed if a convicted man flees and is caught.

> MISHNAH. … IF ONE FLED AFTER HAVING BEEN CONVICTED AT A COURT AND AGAIN COMES UP BEFORE THE SAME COURT, THE [FIRST] JUDGMENT IS NOT SET ASIDE. WHEREVER TWO WITNESSES STAND UP AND DECLARE, 'WE TESTIFY THAT N. N. WAS TRIED AND CONVICTED AT THE COURT OF X AND THAT Y AND Z WERE THE WITNESSES IN THE CASE,' THE ACCUSED IS EXECUTED.

— Babylonian Talmud, Makkoth 7a (3)
Soncino 1961 Edition, page 35

The next sentence defines the jurisdiction of a Sanhedrin:

> MISHNAH. … A SANHEDRIN HAS JURISDICTION WITHIN THE LAND [OF PALESTINE] AND OUTSIDE IT.

— Babylonian Talmud, Makkoth 7a (3)
Soncino 1961 Edition, page 35

But the text underlined — the text quoted in the Elon-Lewin brief — appears to be commentary, not law. (That text is repeated here for ease of reference.)

> MISHNAH. … A SANHEDRIN THAT EFFECTS AN EXECUTION ONCE IN SEVEN YEARS, IS BRANDED A DESTRUCTIVE TRIBUNAL; R. ELIEZER B. AZARIAH SAYS: ONCE IN SEVENTY YEARS. R. TARFON AND R. AKIBA SAY: WERE WE MEMBERS OF A SANHEDRIN, NO PERSON WOULD EVER BE PUT TO DEATH. [THEREUPON] RABBAN SIMEON B. GAMALIEL REMARKED, [YEA] AND THEY WOULD ALSO MULTIPLY SHEDDERS OF BLOOD IN ISRAEL!

— Babylonian Talmud, Makkoth 7a (3)
Soncino 1961 Edition, page 35

Now, let us look at the Gemara in which the rabbis discuss the underlined passage that Elon and Lewin quote. The words of the rabbis show us they are puzzled.

> GEMARA. … A SANHEDRIN THAT EFFECTS AN EXECUTION ONCE IN SEVEN YEARS IS BRANDED A DESTRUCTIVE TRIBUNAL; R. ELIEZER B. AZARIAH SAYS, ONCE IN SEVENTY YEARS. The question was raised whether the comment [of R. Eleizer b. Azariah was a censure, namely] that even one death-sentence in seventy years branded the Sanhedrin as a destructive tribunal, or [a mere observation] that it ordinarily happened but once in seventy years? — it stands [undecided].

— Babylonian Talmud, Makkoth 7a (4)
Soncino 1961 Edition, page 36

Thus we see from the comments of the Sages that they don't understand the "once in seven years" or "once in seventy years" statements. They don't know if the comment was a censure or a statement of fact. They decide to move on.

The Gemara continues in this fashion:

> GEMARA. … R. TARFON AND R. AKIBA SAY, WERE WE MEMBERS OF A SANHEDRIN, NO PERSON WOULD EVER BE PUT TO DEATH. How could they [being judges] give effect to that [policy]? Both R. Johanan and R. Eleazar suggested that the witnesses might be plied with [intimate] questions such as, 'Did you take note whether the victim was [perchance] suffering from some fatal affliction or was he perfectly healthy?' R. Ashi [enlarging upon this] said: And should the reply be, 'Perfectly healthy', they might further be embarrassed by asking, 'Maybe the sword only severed an internal lesion?'

— Babylonian Talmud, Makkoth 7a (5)
Soncino 1961 Edition, pages 36-37

Obviously these rabbis can't understand how other rabbis could avoid using capital punishment. H. M. Lazarus, the Talmud scholar who translated the Makkoth for Soncino, explains in a footnote:

> 1. The judicial point involved in asking such intimate questions is this: that if the witnesses could not be absolutely certain on any material point in the evidence, they could not be expected to take a lead in the actual execution of the offender, as required by law. (Deut. XVII, 6-7.) Thus capital punishment fails.

— H. M. Lazarus, M.A. (6)

So we see that the rabbis are brainstorming a theoretical solution for a theoretical problem: how could there be such infrequent executions?

Thus when we see the preceding and following text, we understand that the Elon/Lewin quote was taken out of context. They use the quote to give the impression that "the weight of authority" among the rabbis "clearly condemned frequent executions." But against Makkoth 7a, we have seen dozens of other passages which show how readily the Sages prescribed execution both for individuals, groups, and even entire towns and cities; we have seen the vast number of offenses for which execution was prescribed, and descriptions giving the most intimate details about how it was to be carried out. There is little indication the rabbis were reluctant to follow their law.

So Makkoth 7a does not have the "weight of authority" that Elon and Lewin claim. They attribute significance to it that is not really there, even in the minds of men of the same culture, living relatively closely in time. But in a different culture, thousands of years later, Elon and Lewin present the quotation as if it were obvious to a child.

If individuals like Menachem Elon, and Nathan and Alyza Lewin, and organizations like the National Jewish Commission on Law and Public Affairs and the International Association of Jewish Lawyers and Jurists (American Section), deceive us about the Talmud's capital punish laws and practices, they frustrate Rabbi Jonathan Sacks' goal. We cannot learn about each other's faiths until we all come clean and tell the truth.

Thank you for your consideration of the above,
Carol A. Valentine, Ear@Come-and-Hear.com
July 14, 2003 ( This article is on line at http://www.come-and-hear.com/editor/capunish_3.html )

NEXT: Death Penalty 4: US v. Talmud Law

Endnotes:

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Footnotes: Full specifics for each of the printed sources are provided in the Bibliography. Outside URLs were valid at the time this article was written. However, be mindful that URLs do change.

1. The History of the Talmud, Vol. I, page xi
2. "Argument," Introduction, Bryan v. Moore, Brief: http://www.jlaw.com/Briefs/capital2.html cached at: http://www.come-and-hear.com/editor/cp-brief-argument
3. Babylonian Talmud, Seder Nezikin, Vol. IV, Tractate Makkoth 7a, page 35.
4. Ibid, page 36.
5. Ibid, page 36-7.
6. Ibid, page 37, note 1.
7. "Interest of the Amici Curiae," Brief of the National Jewish Commission on Law Public Affairs, et al: http://www.jlaw.com/Briefs/capital1.html cached at: http://www.come-and-hear.com/editor/cp-brief-amicus
8. "Jewish law institute launched in DC," Jerusalem Post, November 9, 2002, http://www.jpost.com/servlet/Satellite?pagename=JPost/A/JPArticle/ShowFull&cid=1036830287246, now moved to http://pqasb.pqarchiver.com/jpost/index.html?ts=1042784008 cached at: http://www.come-and-hear.com/editor/cp-jp-11-09-2002
9. Brief of the National Jewish Commission on Law Public Affairs, et al (hereinafter, brief) "Interest of the Amici Curiae": http://www.jlaw.com/Briefs/capital1.html cached at: http://www.come-and-hear.com/editor/cp-brief-amicus
10. "Editor's Preface," New Edition of The Babylonian Talmud, 1st Ed. Vol. I, page xi, (1896) appearing in facsimile in The Jewish Religion: Its Influence Today as Exhibit 5 available at http://www.come-and-hear.com/dilling/5.html - Complete text available online at http://www.sacred-texts.com/jud/t01/t0105.htm cached at http://www.come-and-hear.com/editor/rodkinson/t0105.html
11. "Foreword" by Rabbi Dr. Jacob Neusner, Everyman's Talmud, page x
12. "The Talmud in Anti-Semitic Polemics," Anti-Defamation League, http://www.adl.org/presrele/asus%5F12/the_talmud.pdf cached at http://www.come-and-hear.com/supplement/adl-talmud.pdf
13. The Talmud studies "Sentence and Execution," "Accusation and Trial," "Abuse of Context," and "US v. Talmud Law" are found at http://www.come-and-hear.com/editor/capunish_1.html, http://www.come-and-hear.com/editor/capunish_2.html, http://www.come-and-hear.com/editor/capunish_3.html, and http://www.come-and-hear.com/editor/capunish_4.html, respectively.

© Copyright Carol A. Valentine, 2003. See copyright statement at http://www.come-and-hear.com/copyright.html

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