Extra-Legal Punishments in Medieval Jewish Courts Zev Farber

Extra-Legal Punishments in Medieval Jewish Courts Zev Farber

CHASUBLE: “Dear Mr. Worthing, I trust this garb of woe does not betoken some terrible calamity?” JACK: “My brother.” MISS PRISM: “More shameful debts and extravagance?” CHASUBLE: “Still leading his life of pleasure?” JACK [Shaking his head.]: “Dead!” CHASUBLE: “Your brother Ernest dead?” JACK: “Quite dead.” MISS PRISM: “What a lesson for him! I trust he will profit by it.” – Oscar Wilde; The Importance of Being Earnest, 1895

Introduction

Laws are created to govern law-abiding citizens in law-abiding societies, and to protect these citizens from the few who try to take advantage of them. Unfortunately, not in all times or all places is society law-abiding. For this reason, governments over the generations have explored the possibility of using extra-legal or emergency measures to deal with situations that either disturb the society by their shocking nature, or that may begin a cycle of law-breaking that could threaten the society's social fabric. These extra-legal methods are often officially sanctioned by governments and even legislated as exceptions to standard rules. Some contemporary examples might be the execution of Adolf Eichman in Modern Israel – a country where there is no death penalty with the exception of captured Nazis; the execution of serious opium dealers in the Peoples Republic of China in the first half of the twentieth century; and the suspension of habeas corpus by Presidents Clinton (2001) and Bush (2006) for people suspected of being terrorists or enemy combatants. This same trend is found explicitly in Rabbinic literature and can be divided into two conceptual categories:

A. Applying standard punishments in cases where they don‟t technically apply. B. Creating new punishments that are not found on the books for any crime.

We will begin by looking carefully at these two different categories as they are described in Rabbinic literature. Afterwards we will look at examples from the medieval period and how these methods were weighed and implemented.

Part I – Standard punishments in non-standard situations

A. Fines

In Bavli, Tractate Baba Kamma (96b) we read the following account:

1 Extra-Legal Punishments in Medieval Jewish Courts Zev Farber

A certain man stole a yoke of oxen from his friend. He went and plowed with it and planted with it. Afterwards, he returned it to its owner. They came before Rav Nahman. He said to them (the bailiffs): “Go and estimate how much the value appreciated.” Ravah said to him: “Did the oxen cause the appreciation and not the land?” [Rav Nahman] said: “Did I say we must estimate the total appreciation? I said half.” [Ravah] said to him: “In the end, it was a robbery, and he returned the items intact, as we were taught: „All thieves pay the value at the time of the theft‟!” [Rav Nahman] said to him: “Have I not told you that when I am sitting in judgment you should not say a word? For my friend Huna said about me that I and King Shabur are brothers in justice! That man is a renowned crook, and he needs to be penalized!”

In this case, Ravah, the student, is correct from a technical standpoint. The halakha is that if a thief returns the stolen object intact before he is taken to court and found guilty, there is no further penalty. This law was constructed by the Rabbis to encourage thieves to admit their crimes and repent, saving the courts time, money and hassle. However, it seems that in this case, the thief was playing the law to his advantage. One might presume that this man often used the property of others without their permission, instead of incurring his own expenses, and immediately returned the “borrowed” goods before the offended party had the opportunity to pursue the criminal in court. Rav Nahman teaches Ravah in this story that he is considered the fairest of judges, equal to the famous King Shabur, not just because he knows the law, but that he is willing to enforce justice extra-legally if necessary. Although there is no legal way to stop this person from continuing to plague his neighbors by “borrowing” their possessions, Rav Nahman penalizes the thief by charging him one-half of the appreciation of his field since the plowing. Rav Nahman‟s hope is that this fine will cause the thief to stop his illegal activities; as Rav Nahman says: “The man is a renowned crook, and he needs to be penalized!”

B. Lashes

Insofar as the punishment of lashes is concerned, it seems that the Rabbis went far towards legislating or at least allowing broad discretion in administering this punishment in cases where it did not technically apply. The earliest mention of extra-legal lashes is found in the Mishna, Tractate Nazir (4:3):

A woman who took a nazirite vow and would [nevertheless] drink wine and make herself impure from contact with the dead – should bear the forty [lashes]. If her husband overrode her vow, but she did not know that her husband had overridden it, and she would drink wine and make herself impure from contact with the dead, she should not bear the forty lashes. Rabbi Judah says: “If she doesn‟t bear the forty lashes, she should [at least] bear the rebel‟s lashes.”

In this case, Rabbi Judah suggests that a woman be punished for her actions because she believes she is desecrating her nazirite vow, even though due to a technicality she is not legally bound to the vow and therefore cannot desecrate it. Her actions are abhorrent though not technically sinful. The punishment he suggests is a

2 Extra-Legal Punishments in Medieval Jewish Courts Zev Farber version of the punishment she would have received for the actual crime: lashes. This is referred to in halakha as the rebel‟s lashes. In Bavli, Tractate Yevamot (52a), the concept is developed significantly:

A text: Rav Huna said: “The mitzvah for levirate husbands is to marry before intercourse, but if he had intercourse as the ma‟amar (levirate marriage) ritual – she becomes his wife.” Obviously she becomes his wife! He is using intercourse as the method of marriage! Rather, say that [Rav Huna really said] that if they had intercourse without intention for it to be a ma‟amar – she becomes his wife. But does it not say that in such a case he should be whipped?! [That refers to] the rebel‟s lashes, which are Rabbinic. For example, Rav used to strike: A. Anyone who used intercourse as his method of marriage, B. Anyone who got married in the public square, C. Anyone who married without first getting engaged, D. Anyone who canceled his writ of divorce, E. Anyone who sent a disclaimer along with the writ of divorce, F. Anyone who disrespected an officer of the court, G. Anyone who was under the ban for refusing to swear an oath in court for thirty days without coming to court to challenge the verdict, or H. A prospective son-in-law living in his in-law‟s house. [Does this mean that] living there is the problem, but visiting is permissible? But did not Rav Sheshet strike someone who only visited at his prospective in-law‟s house? That person was suspected of having an affair with his mother-in-law. In Nehardea they said that Rav didn‟t actually strike people for any of these offenses except marrying through intercourse without an engagement. There are those who say that even with an engagement [Rav would strike someone who married through intercourse], as it is lewdness.

Above are two Babylonian Amoraim, Rav and Rav Sheshet, who struck people when it was not warranted halakhically. Rav seems to have gone further, apparently using rebel‟s blows as carte blanche punishment for certain offences. Although Rav‟s position stands out as rather extreme, we can see the position of Rav Sheshet seconded in the Bavli, Tractate Ketuvot (10a) by Rav Nahman:

A certain man came before Rav Nahman and said that [he could tell from intercourse with his wife on their wedding night that] she had no hymen. Rav Nahman responded: “Beat him with palm switches! Have all [the women] of Mebarakhta knelt before him?”1 But didn‟t Rav Nahman say that [a man who testifies about such matters] is believed? He is believed and beaten with palm switches. Rav Ahai taught: In one case [Rav Nahman] was referring to single men, in the other case, married men.

It is unclear whether Rav Nahman beat the man because he thought he was a liar, or because he thought he was promiscuous. Nevertheless, it is clear that this was an extra- legal punishment and not an official conviction and execution of a standard punishment.2 In Midrash Tanna’im (Deuteronomy 25:3), there is even an attempt to both attach the rules of the rebel‟s lashes to a verse, as well as to legislate the exact difference between regular, court sanctioned lashes and rebel‟s lashes:

1 This is a play on the name of the town the man was from, as the name Mebarakhta is reminiscent of the Hebrew word “birkayim,” meaning knees. 2 This is, of course, of a pattern with his fining of the well-known thief mentioned above.

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“[He should strike him forty times, no more,] lest he strike him more than these” – he cannot strike him more than “these,” but he can strike him more for rebel‟s lashes. For “these” he will violate a Biblical prohibition [if he adds blows], but he will not violate [one] with rebel‟s lashes. Rather, here are the differences between court lashes and rebel‟s lashes: A. Court lashes are administered in the court; rebel‟s lashes are outside of the court. B. Court lashes have a set amount; rebel‟s lashes have no set amount. C. Court lashes come with a medical evaluation; rebel‟s lashes have no medical evaluation. D. Court lashes are with a strip; rebel‟s lashes are either with or without a strip.

Not only have the rebel‟s lashes become officially sanctioned, they can even be a harsher punishment than court lashes, as there are none of the usual protective mechanisms for the person lashed that exist as part of the court system.

C. Death

The death penalty as an extra-legal punishment is mentioned in the Mishna, Tractate Sanhedrin (6:4). It states:

“All who are stoned get (their bodies) hanged” – thus says Rabbi Eliezer. The Sages say: “Only the idolater and the blasphemer get hanged.” “A man is hanged facing the people but a woman is hanged facing the pole” – thus says Rabbi Eliezer. The Sages say: “Only a man is to be hanged, but not a woman.” Rabbi Eliezer responded to them: “But didn‟t Shimon ben Shetah hang women in Ashqelon?” (The Sages) said to him: “He hanged eighty women (in one day), and one is forbidden to judge more than one person in one day.”

In this source, as part of the Sages‟ attempt to defend their position that women‟s bodies are never hanged, they dismiss an example of the famous Rabbi Simon ben Shetah doing just that by claiming that the particular case was really an example of an extra-legal punishment. Their proof is that he executed more than one person in a day, which is forbidden. In order to understand how he could break the rules governing punishments, one would have to posit – they imply – that the entire nature of the punishment was extra- legal, hence not governed by the normal rules. The Babylonian Talmud (46a) quotes a beraitta in reference to the Mishna:

It was taught: “Rabbi Eliezer ben Yaakov says: “I have heard that a court can strike or punish even in cases where the Torah has no such mandate. This is not in order to transgress the Torah, but in order to make a fence about the Torah.” It once happened during the period of Greek rule that someone was riding his horse on Shabbat, and they (the Jews) brought him to court, and he was stoned. This was not because he deserved it, but because it was necessary at the time. Again, it happened that a man had a “dalliance” with his wife under a fig tree (in public), and they brought him to court and he was whipped. This was not because he deserved it, but because it was necessary at the time.

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This source has a few interesting features. First, it has a clear articulation of the rule by Rabbi Eliezer ben Yaakov. From his statement we see that the option for a court to punish extra-legally is actually “legal”; the reason being the need to ensure compliance with halakha. Additionally, the source includes two examples of the use of extra-legal punishment. The first was an execution of someone who violated a minor Sabbath prohibition, and the second was the flogging of a couple who was having relations publicly, making it look as if it was an illicit affair. What is particularly revealing about this source is its explanation for the court‟s choice to use extra-legal punishments. The beraitta says explicitly that the offenders did not deserve the punishments they received, but that it was necessary for society that such punishments be administered. In the case of the execution, we even have the context, i.e. the Hellenization of the Jews during the pre- Maccabean Greek rule, when the public breaking of the Sabbath was a demonstration of loyalty to the oppressive regime.

Another possible example of an extra-legal death penalty can be found in the Bavli‟s interpretation of the Mishna, Tractate Sanhedrin 7:2:

Here is the procedure for (the punishment of) burning: They would place the person in garbage until his knees, and place a hard cloth inside a soft one, and tie it around his neck. One person would pull from one side and another from the other side until he opens his mouth. Then someone lights the wick3 and throws it into his mouth, and it falls down into his innards and burns them up. Rabbi Yehuda says: “If the victim should die by their hands (while being strangled), they would not accomplish the commandment of burning! Rather, they should open his mouth with tongs, against (the victim‟s) will, light the wick and throw it into his mouth, and it will fall down into his innards, and burn them up.” Rabbi Eliezer bar Tzaddoq said: “It happened once with a kohen‟s daughter who committed adultery, that (the court) had her wrapped up in vines and burnt.” They said to him: “That is only because the judges at that time were not learned.”

Commenting on this mishna, the Bavli writes (Tractate Sanhedrin 52a-b):

Imrata bat Tali was an adulterous daughter of a kohen. Rav Hama bar Tuvia wrapped her in vines and burned her. Rav Yoseph said: “He made two mistakes. He was mistaken about (the point made by) Rav Matna, and he was mistaken regarding that which was taught: „And you should come to the Levitical priests and to the leader who leads in those days‟4 when there is a kohen, there is judgment; when there is no kohen, there is no judgment.” Rabbi Eliezer bar Tzaddoq said: “It happened once with a kohen‟s daughter who committed adultery…” Rav Yoseph said: “It was a Sadducean court.”

Above, the Talmud refers to the controversial decision of Rav Hama bar Tuvia to burn Imrata bat Tali. Rav Joseph claims that Rav Hama was mistaken in doing this, as he had no authority and he did it wrong. He goes on to say that even the court case

.a wick of lead ,פתילה של אבר The Talmud Bavli (Tractate Sanhedrin 52a) comments that this is a 3 4 Deuteronomy 17:9

5 Extra-Legal Punishments in Medieval Jewish Courts Zev Farber mentioned in the Mishna by Rabbi Eliezer bar Tzaddoq was a mistake, or, more accurately, a reflection of a sectarian Sadducee way of thinking. On the surface, this case is simply a debate between Rav Yoseph and Rav Hama bar Tuvia about the appropriate application of the death penalty and how the penalty of burning is to be executed. However, there is another way to understand this text. Rabbi Joel Sirkis (1561-1640, Cracow), in his glosses on the Rif ad loc (pg. 16, note 3b) writes:

N.B. Even so it is surprising, for even in our generation we punish with harsh penalties due to the needs of the day… Indeed, it seems that in reality, when Rav Yoseph said “he was mistaken…”, he knew the truth, that (Rav Hama) did not burn her as an emergency measure, but he was doing what he thought was the law, and that is why (Rav Yoseph) said that he was mistaken.

Rabbi Sirkis is implying that if not for Rav Yoseph‟s confident assertion that Rav Hama was mistaken – i.e. he thought he was following the law but was really following an incorrect version of it – one might have surmised that Rav Hama was simply implementing an extra-legal punishment. In fact, Rabbi Solomon Luria (1510-1574, Lublin), in his notes on the Talmud called Hakhmat Shlomo (ad loc), suggests just that:

He was mistaken with regards to (the principle stated by) Rav Matna. N.B. Nevertheless, I would like to argue that he was not mistaken, and this was an action done due to the needs of the time, and this is why he burned her not in accordance with Jewish law, i.e. with molten lead, so that people would not say that “judgment” exists nowadays, but rather the burning was an immediate need for the exigency of the time and generation. Now, I am not saying this to argue with the Talmud, since it makes no legal difference one way or the other, this is only like a dressing.

Part II – New Punishments not part of the halakhic “canon”

A. Kippa (incarceration)

The first “new punishment” is the quasi-legislated extra-legal punishment kippa, meaning incarceration. The earliest references to the practice are in the Mishna and the Tosefta of Tractate Sanhedrin. In the Mishna (9:3) it states:

A killer who gets mixed up with other people – all are exempt [from punishment]. Rabbi Yehudah says: “They are all placed in confinement.”

It is unclear from this source what Rabbi Yehudah hopes to accomplish by incarcerating them. One could guess that he either hopes to obtain a confession (or accusation) from someone, or at least ensure that the killer is off the streets. The Jerusalem Talmud (ad loc) offers three possible interpretations:

Rabbi Yohanan says: “The Mishna is referring to a murderer who gets mixed up with innocent people.” Rabbi Shimon ben Lakish says: “The Mishna is referring to an accused murderer who gets mixed up with a convicted murderer.”

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Shmuel says: “The Mishna is referring to an ox [that gored a person to death mixed up] with other oxen.”

Similarly in the Babylonian Talmud (ad loc):

Who are these “others”? If these others are innocents – obviously [they are exempt]! Furthermore, would Rabbi Yehudah say in such a case that they should be incarcerated? Rabbi Abahu said in the name of Shmuel: “This is a case of an accused murderer who got mixed up with convicted murderers…” Resh Lakish says: “If this were [referring to] a person, everyone would agree that they are exempt. Rather this is a case of an accused ox which got mixed up with convicted oxen…”

Although the names have shifted and Rabbi Yohanan‟s position from the Jerusalem Talmud is dismissed, we see the same basic approach. Ignoring the interpretation that understands the Mishna as referring to oxen, the Talmud‟s understanding of Rabbi Yehudah is that we incarcerate both the person accused of murder and the person with whom he has been confused – either an innocent person who cannot be punished, or a person who has not yet been convicted but gets mixed up with people who have been. In the former case, the innocent person suffers incarceration for an unknown quantity of time in order to keep a murderer off the streets. In the latter case the accused murderer is actually protecting the convicted murderers, as they cannot be executed as long as it is unknown to the court which person is which. In either case, incarceration is used as an emergency measure to keep murderers off the streets when, due to a technicality, they cannot be executed. However, in a later Mishna (9:5), kippa appears much harsher:

Someone who has received lashes twice [and has now sinned a third time] – the court places him in confinement and feeds him barley until his stomach cracks open. Someone who kills a person without witnesses – [the court] places him in confinement and feeds him a little bread and minimal water.

Similarly in the Tosefta, Tractate Sanhedrin (12:7-8):

If a [killer] is warned but is silent [in response], or if he is warned and he nods his head, he should be warned once, twice, and after the third time, he should be placed in confinement. Abba Shaul says: “He should even be warned a third time, and after the fourth time they place him in confinement.” They should feed him a little bread and minimal water. Similarly, anyone who received lashes and repeats [the offence], he should be lashed once, twice, and the third time he should be placed in confinement. Abba Shaul says: “He should even be lashed a third time, and on the fourth time he should be placed in confinement.” They should feed him barley until his stomach cracks open.

In these sources, kippa is used in two different ways. In the first, we have a killer who insufficiently acknowledges the warning. In this case, after trying three or four times, he is arrested and incarcerated. The implication of the source is that he is incarcerated for life, as the next line discusses his diet, bread and water, but nothing about term of sentence. Hence, what we have here is a form of imprisonment, possibly with a life

7 Extra-Legal Punishments in Medieval Jewish Courts Zev Farber sentence. This is certainly an example of a punishment that does not exist in the classic halakhic framework, and is clearly designed to keep murderers off the streets. In the second case, we have a repeat offender for a crime that entails the penalty of lashes. Here the Mishna and Tosefta suggest an extreme penalty. We are told that the offender is incarcerated and fed barley until it kills him. Apparently the idea was that the barley would ferment in his malnourished stomach, and expand until it literally cracked the stomach in two. It is possible to argue that this form of kippa fits in better with the framework established in part 1, as halakha does have a death penalty, just not one brought on by starvation and the over-feeding of barley. However, I would argue that this is really just an extreme form of kippa, with the explicit understanding that this person will never leave prison. Either way, considering the pain factor, this is a rather extreme example of the Rabbis‟ use of their prerogative for inventing extra-legal punishments.5 The Babylonian Talmud in Tractate Sanhedrin (82b) references an equally if not more problematic case and compares it to kippa:

Rav Aha bar Huna asked Rav Sheshet: “If a kohen does Temple work while he is impure, is he liable to death by the hands of Heaven, or is he not liable to death at the hands of Heaven?” [Rav Sheshet] responded: “This has been taught! „If a kohen does Temple work while he is impure, his brother priests do not bring him to court; rather the young priests take him outside the courtyard and crack his head with sticks.‟ If you think that he is liable to death at the hands of Heaven – leave him alone and let Heaven kill him!” [Rav Aha bar Huna responded]: “Then what? He is not liable? Is there really a circumstance where God exempts [a person] from punishment and we come forward to kill him [anyway]?” [Rav Sheshet responded]: “Is there not? But does it not say: „Someone who has received lashes and then repeats [the original offense] – the court places him in confinement…‟ God exempts him and we kill him!” [Rav Aha bar Huna responded]: “But didn‟t Rabbi Yirmiah state in the name of Resh Lakish [regarding this Mishna]: „We are dealing with a case of lashes for a crime deserving of kareit, where the person is deserving of death anyway.‟”

The beraitta referenced above is extremely severe. In this case, as a penalty for knowingly working in the Temple while impure, the offending kohen literally has his skull crushed by his fellow priests. When Rav Aha bar Huna expresses his shock that we would punish someone whom the Torah exempts from punishment, Rav Sheshet responds by quoting the Mishna about kippa. Nevertheless, Resh Lakish is quoted in order to soften the case of kippa by saying that it is not just any crime deserving of lashes, but one that brings with it the penalty of kareit, a sort of Divine death. Therefore, Rav Aha bar Huna argues, since the person is already deserving of death from Above, we are merely speeding up the process. The above sources illustrate that the use of kippa as an indirect form of death penalty was understood to be problematic but legitimate, with varying levels of reservation for when it could be used.

B. Maiming

5 It is interesting to note that the Rabbis decided to be harsher with the repeat offender of a more minor crime than with the one-time killer.

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The second “new punishment,” and one that is most shocking to our modern sensibilities, is the punishment of maiming. One possible Talmudic example can be found in the Talmud Bavli, Tractate Sanhedrin (27a).

(A man named) Bar Hamma killed a person. The Exilarch said to Rav Abba bar Ya‟acov: “Go look into this. If it is certain that he killed a person, darken his eyes.”

It is unclear exactly what the Exilarch is telling Rav Abba bar Ya‟acov to do; the ambiguity stems from the term “darken his eyes.”6 Rabbi Saul Berman once suggested to me that the simple meaning of “darken his eyes” is to cause his eyes to go dark, i.e. to kill him. If this was the Exilarch‟s meaning, then this case is an extra-legal death penalty, and should really be included in the earlier section about death penalties. However, this is not how the case is understood by the standard medieval commentaries. Rabbi Hananel ben Hushiel, in his rewriting of the Talmud ad loc, states:

“Hit him”7 – meaning, hit him monetarily. The word “likayuha” comes from the word “haka‟a,” to hit. This is the explanation offered by the Geonim. They said “likayuha” means (literally) to hit his eyes. Most of the Geonic scholars said that (the passage means) they should penalize him (so severely that it) takes away his strength and spirit.

According to the Geonic interpretation recorded by Rabbi Hananel, the Exilarch only meant for Rav Abba bar Ya‟acov to fine Bar Hamma to such an extent as to bankrupt him. Assuming this meaning, the case would be one of an extra-legal financial penalty and certainly not anything revolutionary. Nevertheless, it is Rashi‟s interpretation (ad loc) that dominates the halakhic discourse. He writes:

“Darken his eyes” – gouge out his eyes, for actual punishments in Jewish courts were no longer practiced (at this time), and this is just a penalty, for the courts are allowed to strike and punish outside the framework of Torah [law]. However, there are those who (interpret figuratively and) say that it means they should take his money and give it to the inheritors of the deceased. And there are those who say that it means they should excommunicate the man. But the first interpretation is the correct one.

Although Rashi is aware of two possible interpretations which do not include maiming, i.e. either a fine (as the Geonim seem to have held) or excommunication, he nevertheless prefers the interpretation of gouging out the eyes. He defends this possibility by stating that the Rabbis are permitted to create extra-legal punishments since they are no longer allowed to give the death penalty. We will explore this theory in greater depth in the next part of the article.

The other example of maiming in Rabbinic literature is the case of Rav Huna, mentioned in two different places in the Bavli. The first is in reference to a Mishna in Tractate Nidda (2:1):

meaning dark. This is also the term ,כ.ה.י I translate here “darken” assuming that the root of the word is 6 used in reference to Isaac‟s blindness in Genesis 27:1. .meaning hit ,נ.כ.י Rabbi Hananel assumes (as does Rashi) that the root of the word is 7

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Any hand that is frequent in checking (for emissions); if it is a woman‟s it is praiseworthy, but if it is a man‟s it should be chopped off.

The Bavli (13b) comments:

The question was asked: Is this Mishna teaching us a law or is this just a curse? I.e., is this a law, akin to the case of Rav Huna cutting off somebody‟s hand, or is it just a curse?...

The Bavli is exploring whether the Mishna is referring to an actual punishment of maiming, or just cursing the man who behaves in this way. However, tucked into this inquiry is a reference to Rav Huna‟s having cut off a person‟s hand, but there is no explanation of why he did so. Rav Huna‟s act is referenced a second time in the Bavli (Tractate Sanhedrin 58b):

Resh Lakish said: “Anyone who lifts his hand against his friend, even if he doesn‟t hit him, is called wicked, as it says: „Moses said to the wicked one: “Why will you hit your friend?”‟ It doesn‟t say: „Why did you hit?‟ but rather „Why will you hit?‟ Even though he didn‟t hit him, he was called wicked.” Zeiri said in the name of Rabbi Hanina: “He is called a sinner, as it says: „…that I haven‟t taken (anything) by force,‟ and afterwards it says: „the sin of the lads was exceedingly great.‟” Rav Huna said: “His hand should be chopped off, as it says: „the arm of great shall be broken.‟” Rav Huna chopped off (someone‟s) hand. Rabbi Elazer says: “The only solution is burial, as it says: „the man of violence inherits the earth.‟”

This discussion is clearly aggadic, and again, the act of Rav Huna is referenced without explanation.8 The context would lead one to believe that he did so because the person raised his hand in anger, but this would be an extreme response by Rav Huna at the very least. Rashi (ad loc.) offers a more mitigating explanation, though it is unclear where he gets it from:

“Chopped off a hand” – from a man who would regularly hit his fellow, and they penalized him for it, as it says earlier in this chapter: “The court may strike and punish extra-legally in order to protect the law.”

Part III – The medieval debate:9 What is the best method of extra-legal punishment?

A. The Geonim and the Rambam; flogging, prison and community sanctions

Rav Natronai bar Hillai Gaon, who headed the Sura academy during the years 853-858, was asked (collected responsa, Hoshen Mishpat 375):

8 One can see that it is not integral to the sugya both because of its halakhic as opposed to aggadic nature, and also because of the language change from Hebrew to Aramaic. 9 For a thorough look at post-Talmudic punishments, see Simha Assaf, “Punishments in Post-Talmudic Periods,” Jerusalem, 1922 (Hebrew).

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Someone who is guilty of a capital crime – for instance, if he murdered someone or he slept with a married woman or had homosexual relations – nowadays, how is he punished?

He answers:

Here is what appears to me correct:10 We cannot give him the Biblical punishment of lashes because people who are found guilty of a capital crime are not subject to lashes, but we cannot let him off without punishment either. [Therefore,] in order that the crime doesn‟t become like a permitted activity, we excommunicate him, and rebuke him, separate him from the congregation and strike him with Rabbinic “rebel‟s blows”…

Rav Natronai is drawing a fine distinction. On one hand, it is important to him to clarify that the post-Sanhedrin courts do not have the authority to give the death penalty, and that one cannot “legally” give lashes to someone who is supposed to be condemned to death according to halakha.11 Nevertheless, Rav Natronai agrees that it would be imprudent to allow a person found guilty of a capital crime to go without any punitive response, and suggests an extra-legal response. This includes both community sanctions12 as well as the “rebel‟s blows.” Again, we see the essential distinction the Rabbis made between the halakhic punishment of lashes and the Rabbinic punishment of the rebel‟s blows. But even this fine distinction doesn‟t seem to be enough for Rabbi Jacob ben Asher (ca.1270 Germany - 1340 Spain), who writes in the Tur (H.M. 425):

Rav Natronai Gaon wrote that in all cases of a person who is obligated in the death penalty, nowadays we have no ability to flog him or to exile him, to execute him or to beat him, rather we excommunicate him, give him the “rebel‟s blows” and separate him from the congregation. It is possible that he only wrote thus from a technical legal standpoint, for certainly we cannot hand down a judgment. However, that which we are required to do in order to protect [the community] – this he was not talking about, for who would argue with Rabbi Eliezer who said that a court can strike and punish in order to protect [the community‟s legal standards]?

To Rabbi Jacob, it is important to say that the lashes the sinner receives really are court lashes, not just rebel‟s blows, as this is what he understands Rabbi Eliezer‟s statement in the Talmud to mean, and he assumes Rav Natronai understands it this way as well. As a proof, he quotes (ad loc.) the statement of an anonymous Gaon:

So too there is a responsum from one Gaon about a person who got up during a Purim party while he was very intoxicated and killed him. [The Gaon] went back and forth on the matter and decided not to try him for murder, and he concluded by saying: “Now my fellows, do not let a sinner [take precedent] and wildly shoot his enemies with arrows and say that he did this unintentionally (i.e. while intoxicated). On the contrary, the court should strike him and punish him as a protective measure just like in this case, and like in the case of the man who rode on Shabbat, or who “dallied” with his wife [in public], as our Rabbis explained, for we do not introduce protective measures because of individual

10 Literally: This is what the heavens show me. 11 This implies that Rav Natronai believed that the courts in his day had the authority to give lashes to someone who is supposed to receive lashes according to halakha. 12 The use of the ban as a punishment is too broad a topic to be covered in this article.

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incidents per se, rather we extract a fine when there is a public need depending on the exigencies of the moment.”

Rabbi Moses Maimonides (1135 Spain – 1204 Egypt) states this point with a little more force in his Mishna Torah (Sanhedrin 24:8-9):

So too, a judge should battle with those who need to be battled, to curse him, hit him and pull out his hair, and to force him to swear by God against his will that he will never do this again, as it says… And one should tie up hands and feet and lock him in a prison, and push him and drag him on the ground, as it says…

Nevertheless, despite his harsh language, Rambam is essentially suggesting the same sort of reaction. The court can rough up the sinner, and even lock him up, but in the end, they cannot do any more than this. There is no mention of maiming or of an extra-legal execution.

B. Thirteenth- and fourteenth-century Spain; maiming

We saw earlier Rashi‟s comment (Tractate Sanhedrin 27a) about gouging out the murderer‟s eyes as preferable to killing him because “courts do not do real punishments in our time.” This point is expanded upon by un-named “commentators” quoted by Rabbi Joseph Haviva (late 14th century) in his Nimukei Yosef (Sanhedrin 52b in the Rif pages). The comment is in reference to the case of Rav Hama bar Tuvia‟s burning of the woman:

The commentators have explained: One could argue that he even made a third mistake, as the judges need to be ordained, and he was not ordained. And if you find this difficult because we decided (in Sanhedrin 46a) that the court is allowed to strike and punish extra-legally, it is possible to counter and say that that is referring to the great Sanhedrin, whose power was great, but not a regular court. And even though we stated in Tractate Nidda at the beginning of ch. 2 that Rav Huna chopped off the hand of a person who would regularly hit people, and we said in Tractate Sanhedrin ch. 3 (27a) that if someone kills a person, one should gouge out his eyes, that is in order to afflict him with a portion of what the Torah obligates him to receive, like by afflicting the eyes of a killer who should be put to death, and things of this nature, but to obligate him fully in the prescribed punishment of the Torah is not permitted (to a regular court).

The key point in Rabbi Haviva‟s presentation is that maiming is a partial affliction of the death penalty. Hence, according to Rabbi Haviva, it is better to maim a person than to execute him, since execution is really the province of an ordained court. This assessment does not exist in a vacuum, but explains the practice of the Jewish courts in Muslim Spain in the 13th and 14th centuries. The Jewish courts in Spain during this period were mostly autonomous and could punish their Jewish constituents as they pleased; they had the right both to dismember and to execute. In the Rabbis‟ various decisions, we see the weighing of punishments following Rabbi Haviva‟s hierarchy, although many of the Rabbis were comfortable with both options. We will look at some examples:

Case 1: The Licentious Widow

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In 1320, Rabbi Asher ben Yehiel (1250 Germany – 1328 Spain) was asked by Rabbi Judah ben Isaac Wakkar of Castile (responsa, 18:13) for his reaction to the following case:

… I am informing your honor that when I was just recently in Koka with Don Juan, I was informed by some of the Jews who [live] there that a certain widow got pregnant from a Muslim, and was showing,13 and there is never-ending chatter about her. I looked into the matter and questioned the Jews as diligently as possible to find out if there were definite witnesses regarding her [illicit affair], in order to determine the truth of the matter. I did not find any Jew willing to testify definitively, but they said to me that it is well known in the city by the never-ending chatter, that the aforementioned widow gave most of her possessions to the very Muslim with whom she is reputed to be having the affair. When they saw she was pregnant, the Jews asked her from whom she became pregnant, and she admitted in front of them that it was from the Muslim with whom she was reputed to be having the affair. And since I was worried that she might disappear on me, it did not seem wise for me to begin a public inquiry.

So too did these murmurings travel past me in Koka and make it to Don Juan about the Muslim who lived there, and he responded that this matter is not his, since the woman is Jewish, but that we should judge her by the laws of our Torah. Afterwards, when we went to Kolear, I was informed that she gave birth to a boy and a girl on the 24th of Iyyar, and that the boy died and the girl was taken by the Muslims and converted, based on the things that I mentioned earlier, as the Muslims claim that they are true.

Therefore, I am asking you as a respected personage if you can direct me with your wise discrimination how I should judge this matter, such that the laws of our Torah not become light and disrespected in the eyes of the nations, for it is nothing less than the grace of God that Don Juan decided to leave it up to our own religion‟s [rules]. [Therefore,] we should be stricter than is legally necessary, as I will advise, and not be lenient… and because all of the communities surrounding Koka are talking, for the story of this harlot has dispersed amongst all of the gentiles, such that our religion has been cheapened in their eyes, and so that all of the women hear and not act lecherously as she did.

What occurred to me to do, since the matter is so well known, was to cut off her nose, to destroy the attractiveness of her face which she beautified for her lover, and that she pay the city council some money. Now, if you would like to advise me to do something stricter or if you just want things to remain as I have judged them, I will do it, and will not veer from [your instruction]…

To this analysis, Rabbi Asher answered:

To the honorable Rabbi Judah ben Wakkar; you have judged well. Cut off her nose to make her disgusting to her lovers. Do it suddenly, so that she not go off to immoral living [in order to avoid the punishment]. Peace be upon you and yours, Asher ben Rabbi Yehiel.

Needless to say, there is no such punishment recorded in any Talmudic or Biblical text.14 Nevertheless, both Rabbi Wakkar and Rabbi Asher feel comfortable with it. It is clear

13 Literally: Her stomach is between her teeth. 14 For an interesting analysis about how the de-nosing of the loose women fits into the larger Iberian cultural context, see Luis M. Giron-Negron, “Two Translations of the Kalilah wa Dimnah Story,” pages 231-259, in Under the Influence, Questioning the Comparative in Medieval Castile, edited by Cynthia

13 Extra-Legal Punishments in Medieval Jewish Courts Zev Farber that they believe that in Muslim Spain, if the Jews do not rule with this sort of an iron fist, their religion will be seen by their Muslim neighbors as one that does not take itself or its people seriously, and will be treated accordingly. This becomes even clearer in the next interchange between Rabbi Wakkar and Rabbi Asher.15

Case 2: Abraham Safia, the Blasphemer

Rabbi Wakkar and his associates also sought out Rabbi Asher‟s opinion (responsa 17:8) in this case of cursing God:

Our teacher – may he live – we would like to inform [you] of a terrible incident that occurred here in Cortaba. Anyone who hears of it will cover both his ears. A certain despicable man was arrested based on a claim taken against him by a gentile, and he settled with [this gentile] with his own money. Some of his friends went to console him. He went outside into his courtyard, and they spoke kindly to him about this. One of them said: “Praised be the freer of the bound!” Nevertheless, the person began to curse his King and his God, turning his face upwards. The judges and other important members of the community, when they heard this, gathered together and decided to execute a judgment. They sent for him but could not get him. They tried to gather testimony [about the incident] without his being present, since he ran off, but they only found one witness, as the others avoided [being called as witnesses] by withholding their testimony.

Now we have here with us the honorable Rabbi Judah ben Rabbi Isaac Wakkar, and he was exceedingly zealous, and he worked hard on this until the despicable person was placed in his custody by the power of the government and thrown into prison. Also, he overpowered the witnesses who were shirking, and forced them to take an oath and he then took their testimony properly, on the subject of this blasphemy. Even though the blasphemy was done in Arabic, since this base man is illiterate and does not know Hebrew, the honorable [Rabbi Wakkar] agreed with the judges and important men of the community that this should be considered a case of blasphemy by this lowly man, since the term used in Arabic for the blasphemy is similar to that used in Hebrew by its speakers. Furthermore, [they want to do this] in order to make a fence around this practice, so that the evil ones – the lowly of the world – do not break through it and send their curses to the Heavens [in Arabic].

Now this man is a difficult man and has committed bad deeds for a long time, and there is no one in the city who wants to defend him, but he has violent representatives in league with him. Hence, about ten of the important members of the congregation, men of action, agreed with this honorable Rabbi Judah, and with the learned men that are here as well as the elders of the city, to punish him. And when the above mentioned arrived at this agreement, the evil man‟s relatives, it appears, went to demand as well as bribe with money the great leader Don Juan Manuel (who we have received in our area as an emissary of the King, may his greatness be magnified), in order to spoil the judgment. He sent one of his representatives to us, that we should not proceed to sentencing until we speak with him. The honorable Rabbi Wakkar used all his influence, and calmed the leader, convincing him not to force us to cross over and explain our laws to the gentiles. So this minister agreed that the wicked man should remain in custody until such time as the response of Our Teacher (i.e. Rabbi Asher) could be obtained, advising us what to do.

Robinson and Leyla Rouhi; volume 22 of the series: The Medieval and Early Modern Iberian World, Brill, 2005. 15 Although I am quoting these responsa in this order, this second case is actually found in an earlier section of the collection, and probably occurred previous to the case of the widow.

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And now, praise God, we beseech our teacher to have great zealousness, and hurry to send this to us before the minister changes his mind and we end up prostrated in embarrassment and covered by our humiliation. And send it to us with explanation and proofs what the punishment should be and how [it should be administered]…

Rabbi Asher responded with the following:

…You have confronted me with a capital question. In all other countries that I am aware of they do not judge capital cases except for here in Spain. I was totally bewildered when I arrived here, how can they judge capital cases without a Sanhedrin?! I was told that it is by royal appointment. Also, the community judges with intent to save, as much more blood would be spilled if they were to be judged by the Arabs. So I left them to their ways but I never agreed to take a life. Nevertheless, I see that all of you are in agreement to destroy the evil from in your midst. Certainly he desecrated God‟s name in public, and it has already been heard by the Muslims, and they are very strict with anyone who talks against their religion and faith. It will add to the desecration if they do not exact {vengeance from him. We have found that in order to sanctify the name of Heaven children of kings were killed and their bodies hung from a tree to expiate for [sin committed against] proselytes. Also, to protect the law, they were lenient [with the requirements for punishment] for someone who rode his horse on Shabbat. So too here, it would be a sanctification of God‟s name to get rid of this wicked man. So do whatever seems right to you. If I were in your confidence, my opinion would be that we should pull his tongue out of his mouth and cut off the majority of it and let his lips be widowed, and this would be measuring him according to his deeds, and would be a well-known punishment which everyone would see daily with his eyes.}16 Now you do in this case whatever you think is right, for I know that your intention is to sanctify the name of Heaven, and may it be God‟s will that you succeed in your endeavors.

We see above that Rabbi Asher is more comfortable with disfigurement than capital punishment. He is a little shocked that his colleagues do not share his opinion, but is willing to bend to their collective will.17

Case 3: Saul, the Man-slaughterer

Rabbi Asher‟s son Judah (1270-1349) wrote the following responsum on a case of manslaughter (Zikhron Yehuda 58):

I have received your letter regarding the blows that Saul delivered Isaac, and the testimony that was given against him regarding the attack, and the responses Saul offered against the witnesses, and the testimony against him as well as the defensive claims regarding the other transgressions of which he is suspected… Now you would like to seek my advice on this matter, and you have asked me to write to you what I think is an appropriate penalty and whether you should look into Saul‟s accusations about the witnesses who testified against him, and if they are true should their testimony be

16 This piece was censored out of the old printed versions and replaced with: “exact justice to protect the law, and so too here it is worth it to sanctify God‟s name by punishing the wicked man.” 17 Death penalty in Spain was, as Rabbi Asher notes, a part of the Jewish legal culture; especially in cases where the defendant was convicted of being an informer. To be more precise, it was an accepted measure in much of Medieval Europe to kill an informer, and Rabbi Asher himself advocated such an execution (17:1) in at least one instance. For a short survey of medieval capital punishment, with an emphasis on the phenomenon of killing informers, see David de Sola Poola, “Capital Punishment Among the Jews,” pages 46-51, Bloch Publishing, NY, 1916.

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canceled. Now I am not worthy enough for you to send me this request, but in order to fulfill your command I will not turn you away.

It is well known that from the time the Sanhedrin was exiled from the hewn chamber there has been no [authority to judge] capital cases amongst the Israelites, and any such case judged nowadays is only to fence off the unruliness of the generation. Praised is God who placed the idea in the minds of the kings of this land to give the Israelites power to judge and remove the evildoers. If it were not for this, the Israelites would be unable to survive in this nation. Conversely, many Israelites who would have been executed by the gentile courts have survived due to the Israelite judges. However, the cases that we judge as capital offenses do not all follow the Torah‟s precedent; therefore, I will write to you what I think is reasonable and what is done in this city.

First of all, we should look into whether the words of Saul regarding the witnesses can be verified… With regard to what I think about the fact that he was extremely brazen by hitting another Jew with a cruel blow, and since it is well known by the average person that he hit him with a blow so severe that it caused his death, and he admitted as much, and even his running away is evidence against him, and he (Saul) even spent money on his (Isaac‟s) medical expenses. I looked carefully at the testimony and I found that Moshe Fischeles and Abraham Halul testified that they saw him deliver the blow that [eventually] killed him, and Joseph ben Avid and Isaac ben Yom Tov testified that they saw them fighting, but then they left, and when they had returned they saw Isaac lying on the ground with a wound in the head bleeding profusely. The rest of the testimony has nothing in it of relevance to the time of the fight. Now Joseph ben Avid and Isaac ben Yom Tov are children of sisters (i.e. first cousins) and count as one witness…

Regarding Saul‟s punishment: It seems to me that it should be one of five options, according to what is customary nowadays in capital cases: A. If the testimony of Moshe and Abraham is accepted – he should be executed. B. If the testimony of only one of them is accepted together with that of Joseph or Isaac – he should have both of his hands cut off. C. If the testimony of only one of them is accepted and the testimony of Joseph and Isaac is dismissed – he should have his right hand cut off, based on the testimony of Moshe or Abraham as well as that which has become well known about him, that he dealt him a death blow. D. If the testimony of both Moshe and Abraham is dismissed but the testimony of Joseph and Isaac is accepted – his left hand should be cut off, based on the testimony of either of them as well as that which has become well known, that he hit him. E. If all of the testimonies are discredited – he should be sent into exile since it is well- known that he killed him, in order to keep that which was said: “You should remove the evil from your midst.”

The interesting point of this case is how matter of fact, even standardized, these extra-legal punishments have become. Rabbi Judah has none of his father‟s qualms about executions, and he seems to have turned the removal of limbs into a science. However, the case did not end here. Apparently, Saul appealed to the gentile authorities and the case was referred to the eminent scholar Rabbi Yom Tov ben Abraham of Seville (Ritva, ca. 1250-ca. 1330). In his appellate decision (Collected Responsa #131) Rabbi Yom Tov wrote:

After this introduction I will return to the case and say that I hear the defendant‟s, Saul‟s, complaints about the verdict, and the complaint has 8 components. 1. The first is that he was judged without his accusers coming and offering their complaints, for no person should be convicted until the complaints are heard by the defendant.

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2. The second is that the testimony against him was not read before him so that he would have an opportunity to respond to it and counteract it. 3. The third is that the entire acceptance of testimony was illegitimate, since there were relatives among them. Also there are people who are involved who have personal ties and involvement, which should discount them according to the laws of our Torah. 4. The fourth is that these [judges] accepted testimony from people who did not speak out against him at the time they announced the ban that everyone should approach with his grievance. 5. The fifth is that among the testimonies are records of evil that he had done to other people who had already forgiven him for those blows. 6. The sixth is that even if these testimonies are true, these testimonies should not have led to the chopping off of his hand or any bodily punishment. This is even truer since there is a set of practices in Begar about hitting or cutting or any other similar crime, and he should not have been punished in any manner different from these practices. 7. The seventh is that our laws do not allow for the punishment of a person based on two convictions for two crimes. 8. The eighth is that he requested from the judge that he give him an appeal request to see you, the master, may you be exalted, Don Astruk, but he refused…

Regarding the sixth and seventh he answered that whoever is accustomed to do these wicked things that came out about him would be obligated to receive these punishments; even execution if the judge thinks it fitting. Furthermore, everything he (the judge) did was in consultation with scholars, as is normal for a rabbi. Therefore, even if these advisors are mistaken there can be no complaint against him, as he relied on them that they would certainly not be mistaken…

And now, my king, I say that even if there was a mistake in this case, there is no guilt or punishment to be placed on the judge for the sentence of cutting off [Saul‟s] hand and tongue and invalidating him as a witness, because of the claim that he made, that he showed in writing, that that which he did he did based on the advice of a well-established scholar and man of truth upon whom the judges in his land rely.18

Apart from this, I say that technically speaking, that which Saul complained about those who were testifying against him, i.e. that the testimony was not presented in front of him, and that some of the testimony was unrelated to the initial complaints, and that many of those he previously hit forgave him, and that there is no corporal punishment for hitting according to the Torah – all of these things are only relevant to the technical rules of [Jewish] law, that we should judge person-to-person complaints one at a time, but for things that the judge does as a way of reacting to public outcry and to remove the evil from the land and guard the Torah, none of these rules [mentioned by Saul] are necessary to follow. For this type of judgment is not in order to be extra careful with the victims, but rather it is for the general public so that they do not begin to act this way, so that the onlookers “will hear and be afraid.” Now if he sinned and was forgiven and then continued in his ways, how much more so is he in need of a reaction. The judge can even act in this manner without a public outcry for he is the father of the congregation, and he needs to correct the situation just like he needs to fix potholes in the roads and other such things so that they not damage people. We have already seen a precedent from one of our Sages19 who chopped off the hand of a person who would regularly hit people. And [Saul]‟s20 reference to the community‟s practices regarding punishments has no

18 My suggestion is that this is a reference to Rabbi Judah ben Asher, which would mean that the Ritva had access to the above responsum as part of the notes he received as appellate judge. 19 i.e. Rav Huna 20 This is my correction. The printed text says Simon.

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relevance to this, which is done as a reaction against his repeating offenses, as I have explained.

[About his claim] that one cannot give a person two verdicts, this is not true because he is being tried for two separate crimes. Furthermore, this case is a reaction and in such cases he could be judged with multiple sentences to teach the people a lesson. Furthermore, considering what the testimony about him stated – that he was known to be a traitor and an informer, as was testified and written up by the community – and the law is well established in our midst to execute anyone who is known to be a traitor or an informer or otherwise hurt the community. How much more so this person, about whom the testimony states that he had accrued many different sins, including accepting bribes and [giving] false testimony, as is written by the community, and that he hits people and other such things. Certainly anyone who can be executed can be sentenced to have their limbs cut off according to their sins, for execution is the severest of all…

From all this [it should be clear] that there is no guilt or punishment due the judge if he acted as a reaction [to public misbehavior] and fear of Heaven and bettering the world and protecting religion. However, if he did it from cruelty, and not in Heaven‟s honor, the God who sees into [a man‟s] heart will exact retribution from him, and woe to his soul if he caused his soul evil to have sinned with his soul‟s blood.

In truth, my king, I see that the judge went beyond the Sage‟s advice and exiled [Saul] from his town and family, making his blood available to whoever finds him. This is a bad addition, since he decided to keep him alive and not execute him like a traitor, if we exile him from his land and his friends and family, what will a person with a chopped-off hand do? He cannot work; hence we would be cutting off his life... Therefore, it seems that it would be fitting to cancel [this aspect] of the judgment, and also to command the community to give him sustenance to feed his children, since they already carried out the judgment. Furthermore, they should live in proximity to the evildoer, so that they will always see [the consequences of his actions] and be afraid. They should warn him to keep away from doing any other evil, and that he avoid contacting anyone who would make it suspect that he was involved in informing [against his fellow Jews] or any such treachery, and that he should act humbly in all his endeavors. Perhaps, from this behavior, he will repent, and his Creator will have mercy on him, as He is merciful and compassionate.

In essence, Rabbi Yom Tov agrees with Rabbi Judah on the main points of the case and two themes are reiterated:

1. The judge has total discretion in leaving the parameters of normative law and punishing with emergency measures. 2. Execution is a more severe punishment than dismemberment.

Nevertheless, it does seem that Rabbi Yom Tov is expressing some hesitation, both in his warning that this should only be done for the sake of Heaven with no cruelty at heart, and in his insistence that the man and his family should be supported by the community in perpetuity.

Case #4: The Judge and his Hitmen

Rabbi Isaac ben Sheshet (1326 Spain – 1408 Algiers), known as Rivash, wrote the following responsum to Rabbi Menahem the Tall (#251):

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You already know that capital punishment nowadays [in countries where it is permitted] is not technically part of the law, for capital jurisdiction has already been canceled. However, as a protective measure, the court can strike and punish extra-legally, not as part of the Torah law, if it is necessary at the time… If it is true that for general sins they would execute [people] if it was necessary at the time, then it is certainly true of murder, where the Sages were particularly strict, by placing the person in confinement when he killed without witnesses… and this is not true for other capital offenses… Nevertheless, even if we judge based on necessity, not all punishments are the same, for it is more fitting to punish a person who killed than a person who only struck; also [it is more fitting to punish] a person who has clear witnesses about the crime, than if there are no clear witnesses, or if there are extenuating circumstances…

Now in this case, we should look closely, if we would exempt the murderers from capital punishment technically, due to the testimony offered in their favor. It would appear that the first witness, who said that the victim began the fight and he actually went to attack the judge, can be discounted because no one corroborated this, and his voice cannot stand up to that of the other two witnesses. Also, the witnesses who claim to have visited the victim and said that he had fully recovered from the blow are of no help [to the defendant]. Since [the victim] was hit by a sharp sword, and the Torah testifies that even a small iron [weapon] can kill, the wound should be considered mortal from the beginning. Certainly in this case, where he was hit in his head and his body, this should be seen as being identical to the case where a person is hit by a stone or a fist and the doctors evaluated the wound as mortal, even if he begins to convalesce, since he died at the end, it is reasonable to assume [a connection…]

The reason the murderers are technically exempt from punishment is that there were two of them… nevertheless, as a protection, since [the victim] died by their hands, if you wish to execute them, the option is yours, as they did so in cold blood, with a heavy hand and on purpose, as it appears, since they set their trap for him at night, and did it during the day, and in public, and in front of the important members of the community they would walk with arms against him… However, if you want to be lenient with them, you should break their strong arms, and if you think this will be enough for the necessity of the community, that is also your prerogative. If I were the government-appointed judge, this is what I would do, and I would not be more lenient with them than this, unless the victim‟s family requests it. It is enough that we are at all lenient with those who hit fellow Jews with the cruel blow of a sword, mortal blows, and between the two of them causing him to die, by following Rav Huna‟s precedent…

Also, with regard to that judge who had the nerve to announce unabashedly in the synagogue, and in front of the leaders of the town, that it was he who commanded this thing [i.e. the attack], and that it occurred on his authority – “his sin is too great to bear”! It is fitting to rebuke him and punish him greatly, as he is the judge of the community, and “the place of judgment is the place of evil,” as he commanded the death of one of his Israelite brothers, and the two [defendants] have already killed him based on [the judge‟s] command. Certainly he should have rebuked his son,21 since he was chasing his fellow with a sword, and he (the judge) saw him with his weapon in front of the community leaders, and did not soften [his anger], rather he encouraged him and said that it was a mitzvah to do this! Now even though he is not technically liable… Rambam has already written (Laws of Murder, 2:4)… “If the courts would like to punish him as a one-time measure, if it is necessary at the time, they have the permission from a royal decree to do as they see fit.”

The claim of the witnesses that it seemed to them that [the judge] was speaking out of great anger constitutes no defense for this wicked judge, for this is the way of all

21 I assume he means metaphorically, as he is the “father” of the community.

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murderers, they kill out of anger and a fight… “Anger lies in the bosom of fools,” not in the hearts of the country‟s judges! It seems to me that not only should this judge be rebuked for his wickedness… but, above this, he should be stripped of his position, and you should uproot this Asherah planted by the alter and he should never be allowed to be appointed for any position of authority in the community.

This is what seems to be correct by my estimation, but you know that in this land22 we do not judge capital cases, nor do we chop off hands or legs, for judgment is in the hands of the king. Truly you, who sit in judgment and know the custom of sentencing and other judges in your lands, how they treat special cases and the like, do what they would do, and “do not abandon the teaching of your mother.” For truly, as I write this, my hands are shaking, and my knees are knocking; therefore, do not rely on my opinion for this, only on your own opinion, as the heavens direct you, for my hearing cannot be better than your seeing…

An interesting element in this case is that the responding judge, Rivash, lives in a country where there would be no option to follow either of his suggestions, as he would not have the authority to either execute a criminal or remove a limb. Nevertheless, we observe again the basic elements of the Spanish court system. This case involved an egregious violation and second-degree murder in cold blood in front of multiple onlookers. Rivash has no interest in demonstrating that either execution or dismemberment are technically permitted according to the Torah, only that it is warranted in this case and that the judge can command the ultimate punishment, death, or the lesser punishment, dismemberment, depending on the seriousness of the trangression. As the Rivash was writing at the end of the 14th century, this would represent the end of Spanish Jewish prominence, and the end of this kind of a Jewish court system.

C. Rabbi Meir of Lublin, Death Penalty

In a shocking responsum (#138), so shocking it was edited out of his standard printed responsa, Rabbi Meir ben Gedalia of Lublin (1558-1616) describes his objection to dismemberment and his support of capital punishment. This in itself is not shocking, but he reveals that dismemberment was actually practiced by his predecessor, Rabbi Shachna of Lublin (d. 1558).23

I have received a copy of the legal decision you plan on offering in the case of the disgusting and unusual sin of murder committed by one of our barbarous brethren, as is recounted in the testimony you sent me. Now even though the second witness is actually only offering second-hand testimony, I assume that this evil action is well known. [I understand that] the iniquitous murderer is sitting in a government prison in the charge of the warden as it has not been told to him what to do…

It seems to me clear as a matter of practical halakha that the court has the prerogative, even nowadays, to punish with a capital punishment if it is necessary at the time. [This is true] for other sins and is certainly true for the sin of murder, where we should be extra strict because of the current needs… This is my opinion about the practical halakha, not like what appears to be your meaning [in the decision, arguing] the opposite.

22 i.e. Algiers 23 For a discussion of a possible polemical response to Rav Shachna on the part of Rabbi Solomon Luria, see Meir Raffeld, “The Controversies of the Sages of Poland in the Sixteenth Century,” pages 271-293, in The Jewish Law Annual, volume 14, Boston University School of Law, 2003.

20 Extra-Legal Punishments in Medieval Jewish Courts Zev Farber

However, the truth is that every court needs to sit down on this matter and weigh [the possibilities] in their minds if the exigencies of the time are great enough to warrant punishing the criminal with the death penalty… However, it seems obvious to me that not only in a situation where many people are already breaking the law can it be called necessary for the times, as you seemed to assume… rather, even if the people had not been breaking the law in the past, but the court sees that if they do not punish this offender with a harsh penalty like death or the like, their reward will be that from this day on the nation will be consistently breaking this law and treating it lightly, this should also be called necessary at the time…

Furthermore, regarding what you wrote: “If because he was exceedingly brazen, and killed with calm spirit, desecrating the Shabbat and killing two people – we have never found in any place in the gemara or later halakhic authorities that [the punishment] should be contingent upon this, rather it should all be contingent upon the needs of the time, to correct the generation if necessary. It should not be about the sin itself, whether great or small or premeditated” – this is what you wrote. However, from the words of the Rivash in responsum 258 it is clearly stated that we do base it on the premeditation and the level of culpability of the sinner, and the extreme sinfulness of his misconduct… The reason for this is clear and obvious in itself, and that is: The more the sinner has acted with malice and intent to sin, and has done this evil action intentionally and in public, and has increased the desecration of God‟s name with this evil action, in such a case, we are ever the more in need of building the fence [to protect society], and the times require that he be punished, even outside the legal requirements, for if we are lenient about punishing him for these great transgressions with which he desecrated God‟s name, it will be the reason that from this day forward the people will be steeped in these and such like sins, and it will turn to the detriment of society, and the needs of society are to fix the broken fence and to exaggerate his punishment, and this matter is clear in itself, and this seems obvious to me.

Now, my friend, in this case of revolting behavior, I am on the outside and you and your colleagues are on the inside, to weigh this according to your enlightened perspectives, and see whether this fits into the category of “necessary for the times” which I have described. However, it does appear that all of the pitfalls that I enumerated that need to be there for a future-based “necessity,” almost all of them exist in this terrible case. Even more so since from your words it appears that in recent times a terrible action just like this occurred in your borders, and he got away with no punishment, and this will cause law-breakers to abound – Heaven forfend! On top of this, as the terrible incident has become well known to the gentiles, and the criminal himself is sitting in a gentile prison, if he is allowed to live this will be a serious desecration of God‟s name… Also, the gentiles will come to be very lenient about avenging Jewish blood, Heaven forfend, and this is easy to understand.

That which you suggest in your words, that he have limbs removed, something worse can come of this, for he may convert [to Christianity] and become a painful thorn to the People of Israel. It was told to me in my younger years that it happened in the days of the great Rabbi Shachna z”l that there was a despicable man with evil behavior, and the great one allowed his eyes to be gouged out and his tongue to be cut off. After these things were done to him, he converted and married a gentile woman and had non-Jewish children, and he and his children all their days would do mischief to the Israelites (with the strap of the task-master).24 Therefore, since he is an example of an Israelite bodily sinner, and there is no way to improve him, for from the snake comes venom, and God made it so that he end up being caught by the gentiles, the best thing to do would be to

24 I am unsure of the exact meaning of the Hebrew, as he is speaking poetically.

21 Extra-Legal Punishments in Medieval Jewish Courts Zev Farber

keep the Israelite court away from him. Just have the aggrieved party ask for vengeance for the spilt blood from the warden, and the [gentiles] will remove him from this earth. This way you will strengthen the breaks in the fence and God‟s name will be sanctified and all of Israel shall be cleansed…

This responsum is the first articulation I found directly criticizing the efficacy of maiming as a punishment. Rabbi Meir has no reservations about executing, or using the gentile courts to execute a murderer, but he does have reservations about maiming him. His argument is that once a person is disfigured by the Jewish court, he will inevitably become a lifelong enemy of the Jews and this would be antithetical to the purpose of allowing him to live, i.e. repentance. Rabbi Meir explains that his concern is not merely theoretical, but that it was a well-known story in his youth that Rabbi Shachna had maimed a sinner, and that sinner and his children did in fact become enemies of the Jewish People. Underlying Rabbi Meir‟s analysis appears to be the desire to return to a semi- halakhic model in which maiming does not exist as an optional penalty. However, like the other authorities quoted earlier, he supports extra-legal punishments especially for emergency cases like murder – limited to extra-legal uses of the classic punishment for murder: death. Of course, one has to understand Rabbi Shachna and Rabbi Meir in their cultural context. Whereas the Spanish authorities quoted earlier were acting like any other medieval Spanish authority by using dismemberment as a punishment, Rav Shachna did something that was much less acceptable in 16th century Poland. Hence, whereas Rabbi Asher and Rabbi Judah had every reason to assume that their punishments would cause the convicts to “toe the line” from then on, Rabbi Shachna had little reason to assume this, hence the unfortunate consequences described by Rabbi Meir.

Conclusion

From the above analysis one can see that as halakha tries to adapt itself to the realities of its day, it must contend not only with past precedent but also with the social and ethical fabric of its time. This, in my opinion, is the best way to explain the various positions that Rabbis in different times and places, whether 14th-century Spain or 16th- century Poland, took with respect to capital punishment and dismemberment, respectively. The sources remain the same, from Rav Huna‟s hand chopping to Rav‟s lashes, but it is the social, historical and ethical constructs of a given community‟s Weltanschauung that ultimately determines the course of its pesak.

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