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Parashat Emor 5773 — 04/24/2013

Parashat Emor 5773 — 04/24/2013

Moses spoke to the Children of Israel and they to the blasphemer outside the camp and stoned him with stones; and the Children of Israel did just as Gd had commanded Moses.  (24:23)

What seems to me the soundest explanation … is that as soon as Moses spoke to the Children of Israel they immediately took the blasphemer and stoned him, and they did this to do everything exactly as Hashem had commanded Moses, and not because of antipathy towards the son of the Egyptian man who was fighting with the Israelite man, but only to remove the taint from their midst.  (Ramban ad loc)

In the case of the blasphemer, Gd Himself delivered the verdict through Moshe Rabbeinu and it was carried out.  For a human court, applying Jewish law, it is a bit harder to obtain a conviction.  Consider these rules of evidence:

  • No conviction for a capital offense can be handed down without the eyewitness testimony of two kosher witnesses.  A kosher witness for such a case is a Jewish male above the age of Bar Mitzvah.  He cannot be a relative of the accused.  The pair of witnesses cannot be related to one another – Moshe and Aharon are not a kosher pair of witnesses!  The pair of witnesses must see each other; that is, they must be a pair, not two people who saw the event from greatly different perspectives.
  • If the testimony of the two differs at all, even in a minor detail, even if the detail is not directly relevant to the action (such as eye color), the evidence is disallowed.
  • Circumstantial evidence is completely inadmissible, even if it’s irrefutable.  There is a story in the Talmud (Sanhedrin 37b) of Shimon ben Shetach (1st century BCE) who saw a man follow another man into a room.  When he went into the room after them he saw that the doorway was the only entryway into the room.  The first man was lying dead on the floor and the second man was holding a bloody sword.  Nevertheless, he was unable to testify, as the Torah requires two witnesses.  The story concludes that before they left the room a snake bit the murderer, killing him.
  • The crime must be premeditated.  This is determined by the requirement that the witnesses clearly warn the perpetrator that what he is about to do is a capital crime, and the perpetrator must respond by acknowledging that he understands the warning and is going to go ahead with the act despite his full knowledge of the consequences.  He then must immediately perform the action, so he cannot later claim that he forgot the warning.

Courtroom procedure also favored the defendant:

  • The case could not be tried with a court of fewer than 23 ordained judges.  (This ordination ceased a few centuries after the destruction of the Second Temple, and only was effective within the Land of Israel.)  A simple majority was not enough to convict – a majority of at least two was needed, which effectively means a majority of three (i.e. 13 to 10, but not 12 to 11).
  • If all 23 judges vote for conviction, it is assumed that there is something wrong with the court and the accused is exonerated!
  • A judge is allowed to change his vote from guilty to not guilty, but not vice versa.
  • Any court that orders an execution must fast on that day.

In establishing these rules, the Sages knew exactly what they were doing, as they state in Makkot, chapter 1, Mishnah 10 (I found this on Wikipedia, but the translation is from elsewhere):

A Sanhedrin that puts a man to death once in seven years is called destructive. Rabbi Eliezer ben Azariah says that this extends to a Sanhedrin that puts a man to death even once in seventy years. Rabbi Akiba and Rabbi Tarfon say: Had we been in the Sanhedrin none would ever have been put to death. Rabban Simeon ben Gamaliel says: they would have multiplied shedders of blood in Israel.

R. Aryeh Kaplan sums up the issue (Handbook of Jewish Thought, Vol. II pp.170-1, also quoted in Wikipedia):

In practice, however, these punishments were almost never invoked, and existed mainly as a deterrent and to indicate the seriousness of the sins for which they were prescribed. The rules of evidence and other safeguards that the Torah provides to protect the accused made it all but impossible to actually invoke these penalties… the system of judicial punishments could become brutal and barbaric unless administered in an atmosphere of the highest morality and piety. When these standards declined among the Jewish people, the Sanhedrin… voluntarily abolished this system of penalties.

Obviously the Jewish attitude toward capital punishment is quite different from that in the West, especially in the US, especially in certain states in the US.  The general attitude in the US is that the justice system is there to provide retribution: punishment = revenge.  I’m not a lawyer, so I don’t know whether this is the theory behind the way our legal system is supposed to operate, but I invite anyone to read the talkback section of almost any online news service to any story of any serious crime, and consider the tenor of the remarks there – it’s like a howling mob at a medieval drawing-and-quartering.  The prison system itself (which in the US is filled by a much higher percentage of the population than anywhere outside a police state) is gang- and violence-ridden, is disproportionately used to control minority populations, has virtually given up on the idea of rehabilitation, and, since the days of the Reagan administration, has become a primary, albeit completely ineffective, mental health system – by some estimates over half the US prison population is mentally ill.

In the Jewish view, the purpose of any punishment is corrective, not retributive.  Just as some transgressions are more serious than others, some punishments are harsher than others.  But the purpose of each punishment is to rectify the dislocation of the fabric of society and of the universe that that particular transgression caused.  This process is called atonement.  Less serious transgressions require less atonement – maybe stubbing your toe is enough.  Some require more.  Death is one of the greatest methods of atonement; it can atone for a lifetime of piled up transgressions if we haven’t managed to atone for them as we go, or, in severe cases, it may be necessary for the court to order this atonement on the person who has committed a particularly heinous sin.  But the point is, even if the court has to order the death of someone, it is done in the name of that person’s spiritual advancement.

A second point: death does not mean the end of the path of a person’s growth.  We are not our body – our body is the housing, or the clothing, for our soul, which is our essential nature.  With the death of the body the soul is free to get a purely spiritual view of reality, unencumbered by a physical shell.  From this perspective the soul can re-evaluate its actions and their consequences, and, in some form, take that knowledge into a new body that is not sullied by the sin the previous body committed.  In the Jewish view, if the death penalty must be administered, it is out of Gd’s mercy, to free the soul from a dysfunctional shell and allow it to move on (and incidentally, before any execution, a drug was administered to render the condemned person unconscious – the Rabbis interpreted “love thy neighbor as thyself,” inter alia, as “choose for him a good death” if he should have to be executed).

Finally, as our story of Shimon ben Shetach indicates, Jewish courts have a backup system that is infallible.  The judges in a human court can only rule according to the evidence as it is presented to them.  Although there is a system of appeals, there is one Supreme Court that oversees the entire cosmos and can rule with perfect justice and abundant mercy in every case.  If someone is deserving / needful of death, and the earthly court cannot rule that way, the Supreme Court has many ways of arranging it.  If the person just needs a little “attitude adjustment,” that also can be arranged.  As it says in Pirke Avot (1:7), “Never despair of retribution / corrective action.”

We are commanded to “surely reprove our neighbors and not bear sin on their account.” (19:17)  Our Sages tell us that reproof must be given with love and desire to improve the person and society, and comment that even back then, there was really nobody who knew how to give (or receive) reproof in this spirit.  Ramban intimates that the generation that received the Torah was on such a high plane that they were even able to execute someone in the spirit of love, for the person’s own benefit!  How much have we fallen from that pedestal!  Only Gd has the power of life and death.  Perhaps if we become more Gd-like in our awareness and our behavior, our courts will once again be worthy of sharing a small slice of that power.


Pirke Avot, Chapter 4

Mishnah 5

Rabbi Yochanan ben Beroka says:

Anyone who desecrates the Name of Heaven in secret, he is punished openly.  With regard to desecrating the Name, there is no difference between inadvertence or willfulness.

R. Lau points out that the word for desecrate (Chillul) is from the same root as empty (Challal = empty space).  Another related root is chol = ordinary or mundane (as opposed to holy).  One who is guilty of Chillul haShem (desecration of the Name [of Gd]) is one who has emptied his concept of Gd out of all holiness and made it mundane, ordinary, fit to be kicked to the curb and forgotten about.  Generally Chillul haShem is done in public, as one is generally concerned that the person’s actions denigrate Gd in front of others, who are going to be affected negatively by that action.  There are some acts, such as idolatry, that inherently make Gd “empty” as it were, and can even be done in private.  Apparently the influence of such actions is so pervasive and so negative that they affect more than just the individual involved and eventually become public.  But how can one be guilty of Chillul haShem inadvertently?  Basically, any inadvertent sin is caused by carelessness.  If we really valued our soul’s health and our relationship with Gd, we would not endanger that relationship or our health for anything!  We’d be constantly on guard against any slip-up.  And this is not a difficult thing.  No happily married person has to work hard to avoid cheating on their spouse; the idea of endangering the most important relationship they have in the world for some fleeting pleasure is simply inconceivable.  But most of us do not feel so well connected with Gd, Who is incomparably greater than we are and is hidden from our perception most of the time.  So we get careless, and our actions cause others to be distanced from Gd as well.  This is counter to the very purpose of creation, and the punishment is dire.  The ultimate solution is to reconnect with Gd, but in the meantime, let’s all be very careful!