Commentaire sur Sanhédrin 11:10

אלו הן הנחנקין. ממרא על פי בית דין – he rebels against the words of the Great Jewish court that was in the Chamber of the Hewn Stones.

Introduction The final chapter of Sanhedrin returns to the categorization of which criminals receive which death penalty, a topic that the Mishnah began to discuss in chapter seven. Our chapter discusses those who are executed by strangling. According to the Rabbis anyone whom the Torah states should be executed without stating the form of the execution, is to be executed by strangling, which is the least destructive and probably least painful form of execution.

זוממי בת כהן – even though they come to make her liable for [the punishment] of burning [by drinking a molten-liquid], they are not judged other than through the death that they were making liable those who engaged in sexual intercourse with her, which is by strangulation, like the others who come upon a married woman, as it is written (Leviticus 21:9): “she shall be put to the fire,” she and not the person who engaged in sexual intercourse with her, and those who falsely testified [through scheming] against her, we derive from (Deuteronomy 19:19): “[You shall do to him] as he schemed to do to his fellow,” but not to his sister.

The following are strangled: One who strikes his father or mother; One who kidnaps a Jew; An elder who rebels against the ruling of the court; A false prophet; One who prophesies in the name of an idol; One who commits adultery; Witnesses who testified falsely [to the adultery of] a priest’s daughter, and the one who has had sexual relations with her. As did the mishnah with regards to those executed by stoning, burning and decapitation, so too with regards to strangling the mishnah first lists all of those who are punished by this form of execution. The mishnah will now proceed, from here to the end of the tractate to go into greater detail with regards to each category. We will therefore explain each category and its Biblical proof texts as we come to them later in the Mishnah.

ובועלה – the daughter of a Kohen when she is married, but an engaged one, he and her sexual partner [are punished] by stoning.

The one who strikes his father or his mother is liable only if he wounds them. In this respect, cursing is more stringent than striking, for one who curses [his/her parents] after death is liable, while one who strikes them after death is not. Exodus 21:15 teaches that one who strikes either of his parents is liable to the death penalty. Striking an ordinary person is not a capital crime and is punishable through financial penalties only. However, striking one’s parent is a form of rebellion against not only society but in essence against God as well. Therefore the Torah deems it, and cursing one’s parents (Ex. 21:17) to be capital crimes, punishable by death. Since the Torah does not state how the execution is to be performed, the Rabbis declared that the person is to be strangled. Our mishnah teaches that in order for the child to be guilty of striking he must make a wound. If the child strikes without causing a wound s/he is not to be executed. The mishnah also teaches that although a child is executed for either striking or cursing one’s parents, there is a stringency with regards to cursing that does not exist with regards to striking. One who curses is liable even if he curses the parent after death, whereas one who strikes is only liable if the parent was alive when struck.

שהמקלל לאחר מיתה חייב – as it is written (Leviticus 20:9): “he has insulted his father and his mother. [His bloodguilt is upon him].” And the extra verse is to include after death.

One who kidnaps a Jew is not liable unless he brings him onto his own property. Rabbi Judah said: “Until he brings him onto his own property and puts him to service, as it says, “If a man is found to have kidnapped a fellow Israelite, enslaving him or selling him” (Deut. 24:7). If he kidnaps his own son. Rabbi Ishmael the son of Rabbi Yohanan ben Beroka declares him liable, but the Sages exempt [him]. If he kidnapped one who was half a slave and half free, Rabbi Judah declares him liable, but the Sages exempt [him]. Exodus 21:16 and Deuteronomy 24:7 both state that one who kidnaps is liable for the death penalty. Our mishnah defines kidnapping as taking a person and bringing them forcefully onto one’s property. Just the mere act of taking the person does not constitute the type of kidnapping punishable by death. Rabbi Judah, basing himself on the verse in Deuteronomy states that even kidnapping and bringing onto one’s property is not punishable by death. Only if the kidnapper forces the abductee to work as a slave is he to be executed. According to the Rabbi Yishmael the son of Rabbi Yohanan ben Beroka, one who kidnaps his own son is not liable as a kidnapper, whereas the Sages say that he is. Rabbi Yishmael probably assumes that a parents’ authority over their children is so great that categorically the laws of kidnapping cannot apply. The Sages, representing the majority opinion, limit the parents authority by applying the laws of kidnapping even to one’s own child. The aforementioned verse in Deuteronomy clearly limits the laws of kidnapping to an Israelite who kidnaps another Israelite. According to all of the Sages in our mishnah, one who kidnaps a non-Jew is not liable for the death penalty. There is however a dispute with regards to one who is half a slave and half a free Jew (i.e. he was owned by two owners and one freed him while the other did not). According to Rabbi Judah, the mere fact that he is half a Jew means that the laws of kidnapping do apply to him. According to the Sages since he is half a slave, the laws of kidnapping do not apply.

והמכה לאחר מיתה פטור – for he is not liable until he makes in him a wound, but there is no wound after death.

Questions for Further Thought:
• Section two: Is there a thematic connection between the laws taught in section 2 and section 2a?

עד שיכניסנו לרשותו – as it is written (Exodus 21:16): “or if he be found in his hand”, and “his hand” means his domain. And similarly, it says (Numbers 21:26): “and taken all his land out of his hand,…”

וישתמש בו – usage that has the value of the equivalent of a Perutah/penny. And the first Tanna obligates him even with usage tha tis less than the equivalent of a penny. And the Halakha is according to the First Tanna.

הגונב את בנו – the reason that the Rabbis exempt him, as it is written (Exodus 21:16): “or is still holding him,” and it is an extra verse, for it is written (Deuteronomy 24:7): “If a man is found [to have kidnapped a fellow Israelite…]”, to extrapolate from it, and exclude this one, who is already in his power. And the Halakha is according to the Sages.

רבי יהודה מחייב – as it is written (Deuteronomy 24:7): “of his brethren of the children of Israel” – “of his brethren”, to exclude slaves, “of the children of Israel” – if it had written “of Israel”, we would have excluded someone who is half a servant and half a free-man. Now that it is written, from “of the children of Israel”, this is another exclusion, and where there is a double exclusion it indicates an exemplification (see Bava Kamma 86b). But the Rabbis hold, that “of his brethren” does not come to exclude slaves, for they are “brothers” in the commandments. Rather, the words “the children of Israel” excludes slaves; “of [the children of Israel]” excludes someone who is half-slave and half a free-man (see Mishnah Eduyot, Chapter 1, Mishnah 13 and Mishnah Gittin 4:5 which deals specifically with the case of someone who is a half-slave and half a free-man). And the Halakha is according to the Sages.

שלשה בתי דינין היו שם – In Jerusalem that Scripture is talking about (Deuteronomy 17:8): “you shall promptly repair [to the place that the LORD your God will have chosen…]”.

Introduction Mishnayoth two through four deal with the rebellious elder, who is considered to be an ordained elder who taught against an authoritative ruling of the high court in Jerusalem. While Jewish learning is usually quite pluralistic, allowing for the existence of many differences of opinions without deeming one to be heretical, there is a theoretical limit to this pluralism. The high court in Jerusalem was considered to be the final word in all matters. An ordained teacher who ruled against the high court in a matter of practical law was to be condemned to death. Since the high court has not existed since the time of the destruction of the Temple in Jerusalem, this law is (for better or for worse) no longer enforceable.

אחד יושב על פתח הר הבית – it is the eastern gate that is inside from the חיל /the place within the fortification of the Temple, in front of the women’s court.

An elder rebelling against the ruling of the court [is strangled], for it says, “If there arise a matter too hard for you for judgement […you shall promptly repair to the place that the Lord your God will have chosen, and appear before the levitical priests, or the magistrate in charge at the time, and present your problem. When they have announced to you the verdict in the case, you shall carry out the verdict that is announced to you from that place that the Lord chose, observing scrupulously all their instructions to you. You shall act in accordance with the instructions given you and the ruling handed down to you; you must not deviate from the verdict that they announce to you either to the right or to the left. Should a man act presumptuously and disregard the priest charged with serving there the Lord your God, or the magistrate, that man shall die” (Deut. 17:8-13, JPS. This section introduces the Biblical prooftext for the category of the rebellious elder. The Torah mentions one who “acts presumptuously”, ignoring the teaching of the priestly magistrate. The Torah does not state who this person was, or under what circumstances he disobeyed the authority of our court. Our mishnah attempts to define this person, giving, interestingly enough, a narrow definition. This definition will leave much room for a Jew to disagree with even the high court, without allowing total disobedience to its rulings.

ואחד יושב – above him, when they have passed the women’s court and come to the door of the Israelite court.

Three courts of law were there, one situated at the entrance to the Temple mount, another at the door of the [Temple] court, and the third in the Chamber of Hewn Stone. They [first] went to the court which is at the entrance to the Temple mount, and he [the rebellious elder] stated, “Thus have I expounded and thus have my colleagues expounded; thus have I taught, and thus have my colleagues taught.” If [this first court] had heard [a ruling on the matter], they state it. If not, they go to the [second court] which is at the entrance of the Temple court, and he declares, “Thus have I expounded and thus have my colleagues expounded; thus have I taught, and thus have my colleagues taught.” If [this second court] had heard [a ruling on the matter] they state it; if not, they all proceed to the great court of the Chamber of Hewn Stone from whence instruction issued to all Israel, for it says, [you shall carry out the verdict that is announced to you] from that place that the Lord chose (Deut. 17:10). This section describes the judicial process by which an elder could be brought to the high court. When an elder made a teaching upon which the other elders disagreed he is first brought to the court that sat at the opening of the Temple mount. The elder is allowed to state how he expounded the Torah or how he taught and how his colleagues expounded or taught. If this court had heard a ruling with regard to the matter they would decide in the matter. If not they would send him to the court that sat at the entrance to the Temple court, where the process would be repeated. If they too had not heard a ruling then they would send him to the highest court, the great court that sat in the Temple in the Chamber of Hewn Stone. This court would by necessity make a ruling, one that was considered authoritative for all of Israel.

ואחד בלשכת הגזית – which is built in the midst of the court, half of it in sanctified [area] and half of it in non-sacred [area].

If he returned to his town and taught again as he did before, he is not liable. But if he gave a practical decision, he is guilty, for it says, “Should a man act presumptuously” (Deut. 17:12) he is liable only for a practical ruling. But if a disciple gave a practical decision [opposed to the court], he is exempt: thus his stringency is his leniency. This section lists under what circumstances the elder is to be deemed guilty and therefore executed. If he continues to teach as he was teaching previously, thereby ignoring the verdict of the high court, but does not tell others to act according to this teaching, he is not guilty. This is learned from the word “to do” in the verse in Deuteronomy. One is allowed to disagree with the high court, but not to incite others to act against their rulings. A student, who is never allowed to give practical halachic rulings, who does give a practical halachic ruling, and that ruling is against that of the high court, is also not to be executed. Since his ruling is not authoritative in any case, because he is only a student, it is not considered to be the type of rebellion punished by death. The stringency that disallows a student from teaching is the leniency that gets him off the hook if he teaches contradictory to the high court.

באים לזה שעל פתח הר הבית – this elder who taught in his city, and the Jewish court that was in his city disputed with him and the Written [Torah] requires him to go up to Jerusalem. They come – he and the Jewish court that is in his city to this Jewish court at the entrance of the Temple Mount, for they first make contact with him.

Questions for Further Thought:
• Why do the lower courts state whether they had “heard” a ruling on the matter and not whether they “know” a ruling on the matter? What about the high court? Do they have to have “heard” a ruling on the matter? What if they had not?
• Why is the elder allowed to continue to teach that he disagrees with the authoritative ruling but not allowed to act or teach others to act according to his own opinion? What does this say with regards to the nature of Jewish law?

תלמיד שהורה לעשות – a student who had not arrived at being an authorized teacher, and disputed with the Jewish court that was in his city and they came to the Great Jewish court and asked and he returned to his city and he taught as at first, he is exempt, as they don’t have to rely upon his teaching, and the Torah did not make liable other than someone who is distinguished and expert to the Jewish court, as we derive it (Deuteronomy 17:8): “If a case is too baffling for you…” with the distinguished one of the Jewish court, Scripture speaks.

נמצא חומרו קולו – the stringency of the transgression that he committed and he taught, even though he had not yet arrived at being an authorized teacher, is added to the contempt of court (i.e., rebelliousness) that he disregarded the authority of the Supreme Court, and it became for him a leniency to exempt him from death, for if he had been an elder who had arrived at being an authorized teacher, and disregarded the authority of the Supreme Court, he would be liable to death.

האומר אין תפילין, וכו' פ טור – this is not instruction, for [it is a case of] “go, call the school of the Rabbi.”

Introduction Mishnah three continues to discuss the rebellious elder.

חמש טוטפות – there is instruction. For event though this matter [only comes] to add to the words of the Scribes, he is liable, for in the Midrash of the scribes, it is written,[ "לטטפת" /L’Totafat – as a frontlet (see Exodus 13:16); "לטטפת"/L’Totafat – as a frontlet] (see Deuteronomy 6:8) (the first two are written as singular words; the last one is a plural construction); "לטוטפת" /L’Totafot – as frontlets (see Deuteronomy 11:18), here we have four portions.

There is greater stringency in respect to the teachings of the scribes than in respect to the torah: [thus,] if [a rebellious elder] says, there is no commandment of tefillin, so that a biblical law may be transgressed, he is exempt. [But if he rules that the tefillin must contain] five compartments, thus adding to the words of the scribes, he is liable. This mishnah states that a rebellious elder who teaches against a Rabbinic teaching, one not mentioned explicitly in the Torah, is dealt with more severely than one who teaches against the explicit words of the Torah. An elder who states that there is no commandment of tefillin is not to be executed, since the commandment of tefillin is stated explicitly in the Torah (Exodus 13:9, 16, Deuteronomy 6:8, 11:18). Anyone who hears this elder teach that there is no tefillin will be able to check the Torah and realize that the elder’s teaching is false. However, one who states that the tefillin must be made of five boxes, instead of the four prescribed by the Rabbis, is liable for the death penalty. Since the Torah does not state how many boxes are to be in the tefillin, this is a teaching that if we didn’t know from the Rabbis we would not know at all. Therefore, an elder who teaches against this teaching is more of a threat than the elder who teaches against something stated specifically in the Torah. Note: The tefillin worn on one’s head contain four boxes but the one worn on the arm contains only one box. From the outside each is painted black and therefore looks like one box.

ולא בב"ד שביבנה – for they asked the Jewish court that was in the Chamber of the Hewn Stones, and they said to him and he returned to his city and delayed there for many days until the Great Sanhedrin was exiled to Yavneh, and afterwards, it taught as at first, they do not put him to death in Yavneh, even though the Great Sanhedrin was there, and even if the Temple still existed, since the Great Sanhedrin does not sit in its place in the Chamber of the Hewn Stones.

Introduction Mishnah four discusses the execution of the rebellious elder.

He [the rebellious elder] was executed neither by his local court nor by the court at Yavneh, but rather was taken to the great court in Jerusalem and kept there until the [next] festival and executed on the festival, for it says, “And all the people shall hear and fear, and do no more presumptuously” (Deut. 17:13), according to the words of Rabbi Akiba. Rabbi Judah says: “His judgment must not be delayed, but he is executed immediately, and proclamations are written and sent by messengers to all places, “So and so has been sentenced to death at the court.” The execution of the rebellious elder has a deterrent quality to it, demonstrating to all who see or hear the execution that rebellion against the high court is punishable by death. There are two opinions in our mishnah with regards to how the execution is to be carried out. According to Rabbi Akiva, the execution must take place at the high court, where it will receive the most exposure. Furthermore, it must take place during the festival when Jews would gather at the Temple to celebrate. Only by bringing the person to the Temple and executing him on the holiday will the execution achieve the maximum deterrence. Rabbi Judah seems to be disturbed by the long wait between the sentence and execution which would result from Rabbi Akiva’s suggestion. Rabbi Judah therefore states that the rebellious elder is to be executed immediately, and the deterrent will be achieved by sending letters with messengers stating that so and so had been executed.

Questions for Further Thought:
• Why is Rabbi Judah so concerned that the execution take place immediately?

מה שלא שמע – what was not said in the prophecy to a single prophet in the world, and what was said to his fellow and not to him, and he heard it from his fellow and came and said what was related to him, both of these two are false prophets and their deaths are by strangulation, as it is written (Deuteronomy 18:20): “But any prophet who presumes to speak in My name [an oracle that I did not command him to utter…]” This is one who prophesizes something that he never heard, “that I did not command him to utter,” but his friend I commanded. The one who prophesizes what was not said to him and it was said to his fellow, and it is written (ibid.) “that prophet shall die.” And any death that is mentioned in the Torah undefined is not other than through strangulation.

‘A false prophet’; he who prophesies what he has not heard, or what was not told to him, is executed by man.
But he who suppresses his prophecy, or disregards the words of a prophet, or a prophet who transgresses his own word , his death is at the hands of heaven, as it says, “[And if anybody fails to heed the words he speaks in my name] I Myself will call him to account (Deut. 18:19).
Mishnah five defines the “false prophet” who is executed by strangling.
Deuteronomy 18:20 states that any prophet who “presumes to speak in My name an oracle that I did not command him to utter” shall be killed. Our mishnah teaches that a false prophet is one who states a prophecy that he either did not hear at all, or that he heard from another person and not straight from God. However, a prophet who hears the words of God but does not tell others (like Jonah) or one who ignores the words of another prophet (see I Kings 20:35-36) or one who ignores even his own prophecy (see I Kings 13:26) is killed not by a human court but by God. This exegesis presents an interesting twist on the verse quoted from Deuteronomy. The simple meaning of the verse is that a member of the tribe of Israel who ignores the true words of the prophet is not to be executed by the court but God will take His own revenge. The mishnah interprets the verse to refer not to a normal person, but to the prophet himself.

מיתתן בידי שמים – as it is written (Deuteronomy 18:19): “And if anybody fails to heed the words he speaks [in My name]…,” we call him “he does not heed,” and we call him “he should not proclaim” and we call him, “he himself does not heed My words,” all three are included, and it is written (ibid.): “I myself will call him to account,” by the hands of Heaven.

לרשות הבעל – such as the father who handed her over to the agents of the husband and still is still on the way, furthermore, we don’t call refer to her as “the house of her father.”

Introduction The first section of mishnah six defines what it means to prophesy in the name of an idol. The remainder of the mishnah discusses the adulterer.

לאותה מיתה – that they make the judged liable for.

“He who prophesies in the name of an idol”: this is one who says, “Thus has the idol declared” even if he directed the teaching to declare the unclean, unclean, or the clean, clean. One who prophesies in the name of an idol is liable for the death penalty even if his teaching agreed with the accepted halacha. The very act of attributing a teaching to an idol is punishable by death regardless of the content of the teaching itself (see Deuteronomy 18:20).

ובועלה – that is to say, all of those who those [men] who have sexual intercourse are judged like the death of the one (i.e., the woman) who had sexual intercourse, except for the case of a person who has sexual intercourse with the daughter of a Kohen – as she is [punished] by burning [by drinking a molten-liquid] and he [is punished] by strangulation.

“One who has sexual relations with a married woman” after her entry into her husband’s home for marriage, though she did not have sexual relations with her husband, the one who has relations with her is strangled. Adultery with a married woman is punishable by strangling whereas adultery with a betrothed woman is punishable by stoning (see chapter 7, mishnah four). Our mishnah defines the moment that a woman is transformed from being a betrothed woman to being a married woman. That moment is defined as her entering her husband’s house, after having left her father’s house, regardless of whether or not she has yet had sexual relations with her husband. Henceforth anyone who has adultery with her will be punished by strangling and not stoning.

“Witnesses who testified falsely [to the adultery of] a priest’s daughter, and the one who has had sexual relations with her”, for all false witnesses are led forth to meet the same death [which they sought to impose,] save witnesses who testified falsely [to the adultery of] a priest’s daughter, and the one who has had sexual relations with her. Generally, when a witness is found to have testified falsely, he is punished with the same punishment that he tried to impose on the accused (see Deuteronomy 19:16-21). We will learn about this law in greater length in the next tractate, Makkoth. Witnesses who testify falsely with regards to a priest’s daughter who committed adultery, punishable by burning, (see chapter nine, mishnah one) and the one who had relations with her, punishable by strangling, are not burned as they tried to impose on her but rather strangled as they tried to impose on him. Since with one act of false testimony they testify that she is to be burned and he is to be strangled, they (the false witnesses) are punished by the lesser of the two, which is strangling. Congratulations! We have finished Sanhedrin. It is a tradition at this point to thank God for helping us to finish learning the tractate and to commit ourselves to going back and relearning it, so that we may not forget it and so that its lessons will stay with us for all of our lives. For those of you who have learned with us the entire tractate, a hearty Yasher Koach (congratulations). You have accomplished a great deal and you should be proud of yourselves. Indeed we have now finished together four tractates of Mishnah, and are more than halfway through the entire order of Nezikin. Of course, we have much more to learn. We will begin Makkoth tomorrow!