כ״ג במרחשון ה׳תשע״ח (November 12, 2017)

Makkot 7a-b: Preventing a Violent Court

In Massekhet  and Massekhet Makkot we have been learning about the various punishments meted out by the . In point of fact, how often was capital punishment carried out by the Jewish court system?

According to the Mishna on today’s daf if the Sanhedrin killed a single individual in the course of seven years, it was considered to be a destructive, or violent, beit din. Rabbi Elazar ben Azarya says that this is true if the court killed someone every 70 years. Rabbi Tarfon and Rabbi Akiva claimed that had they been on the Sanhedrin (during the last 40 years of the Second Temple period the Sanhedrin no longer ruled on capital cases, so neither of them ever served as judges on the high court) no one would have ever been killed. In response Rabbi Shimon ben Gamliel said that such behavior would have led to a proliferation of murderers.

The statement made by Rabbi Tarfon and Rabbi Akiva is based on the fact that Jewish law does not accept circumstantial evidence, and only the testimony of reliable witnesses will be accepted as fact. These Sages would have questioned the witnesses about details of their testimony until the witnesses would be unable to respond with definitive information. Examples given by the Gemara are:

Regarding a murder case, Rav Ashi suggests that they would have asked the witnesses whether they were certain that the victim was not a tereifa – perhaps he had a disease or injury that would have led to his death within 12 months. Killing such a person would not lead to a death sentence.

Regarding sexual crimes that call for a death penalty, Abaye and Rava suggest that they ask whether the witnesses could testify that they saw ke-mikhḥol be-shefoferet – did they see penetration the way a brush is placed in a tube.  Since witnesses rarely witness the act that closely, one could claim that the testimony is incomplete.

Mikhḥol be-shefoferet refers to a commonly applied stibnite-based eye shadow that was also used for medicinal purposes. The material that was applied was kept in a thin tube, or in two connected tubes, and it was removed and applied by means of a thin brush.

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