Nullified Laws and the Rabbis: The Death Penalty and the Prophet

In this post, I would like to post a couple of items on the belief within rabbinic Judaism that certain commands in the Torah could be nullified, or simply not applied.  A commenter asked me about this topic yesterday (see here), and I found a few items, one of them when I was looking for information, and one of them when I was not.

1.  In a footnote on page 126 of Divorce and Remarriage in the Bible: The Social and Literary Context (William B. Eerdmans, 2002), David Instone-Brewer says the following about the death penalty in ancient Judaism, including the death penalty for adultery:

“According to the Talmud, the death penalty was abolished soon after 30 C.E. (‘forty years before the destruction of the Temple,’ b. [Sh]abb. 15a; b. Sanh. 41a; b. ‘Abod. Zar. 8a).  Capital punishment was still administered outside the legal system, by the mob (e.g., John 8) or by zealous individuals (e.g., m. Sanh. 9.6).  Sometimes the death penalty may have been carried out with semi-official authority, such as the beating to death of a priest who brought uncleanness into the Temple (m. Sanh. 9.6).  Most of this is undatable, and the reference to ’40 years before the destruction of the Temple’ may be figurative because several other events are dated to this time (b. Yoma 39a; cf. b. Ro[sh]. Ha[sh]. 31b).  However, it is significant that there is no record of official death penalties, and rabbinic literature argues strongly against the use of the death penalty (b. Nid. 44b-45a; m. Yebam. 1.13),  presumably to cover up the inability to carry it out.  Some rabbinic rulings would make no sense if the death penalty were carried out for adultery: e.g., the rule that the unfaithful wife cannot marry her lover (M. Sota 5.1) and that if such a marriage took place, they had to divorce (m. Yebam. 2.8).  There is one recorded death penalty for adultery (m. Sanh. 7.2, an old saying passed on by Eliezer b. Zadok, ca. 80-120 C.E.), but the woman was burned (instead of strangled as the law demanded), and thus this was probably a mob killing.  Josephus’s casual assertion that the penalty for adultery was death is probably an antiquarian note rather than a record of experience (Ag. Ap. 2.25).  See the discussions in Epstein, Sex Laws and Customs in Judaism, pp. 201-2, 210-11; Abrahams, Studies in Pharisaism and the Gospels, p. 73.”

See here for further discussion of whether first century Jews in Palestine were allowed to execute people.  I particularly found a couple of things in this discussion (the one I just linked to) to be interesting.  First, there was a quotation of page 153 of Paton J. Gloag’s A Critical and Exegetical Commentary on the Acts of the Apostles (Edinburgh: T&T Clark, 1870—-see here to get the book on archive.org): “In one important matter, however, the authority of the Sanhedrim was abridged: the Romans deprived it of the power of life and death. They might pronounce sentence of death, but the sanction of the Roman governor had to be obtained before that sentence could be carried into execution. According to the Talmud, the Sanhedrim was deprived of the power of inflicting capital punishment forty years before the destruction of Jerusalem; whereas formerly it alone of all the Jewish courts possessed this power (Joseph. Ant. xiv. 9. 3). Hence the remark of the Jewish rulers to Pilate: ‘It is not lawful for us to put any man to death’ (John 18:31). The stoning of Stephen is not an exception to this; for that happened during a popular tumult, and when, in all probability, there was a vacancy in the Roman procuratorship, after Pilate had been sent to Rome. A similar instance occurred after afterwards, when James the Just was put to death by the high priest Ananus during the absence of the Roman governor: for Josephus expressly informs us that this was an illegal assumption of power, and for which Ananus was deposed from the high-priesthood (Ant. xx. 9. 1).”

Second, another commenter in that discussion said that Herod had the authority to execute.  We see that in Acts 12.  Herod Antipas also had John the Baptist killed (Mark 6; Matthew 14).  The commenter also refers to Luke 23, in which Pilate sends Jesus to Herod because Jesus was a Galilean and thus was part of Herod Antipas’ jurisdiction.  The commenter may be implying that Herod Antipas had the authority to execute Jesus but found nothing wrong with Jesus, and thus sent Jesus back to Pilate.  As I talk about here, Herod Antipas may have had authority to execute, whereas the Jews in Judea did not, because Herod Antipas was over a client state, where the Roman authority was more indirect.  Judea, by contrast, was under the direct authority of Rome.

I should note an additional consideration.  In my post here, I review a book by David Klinghoffer, and Klinghoffer refers to Rabbi Shimon ben Gamaliel’s statement in b. Makkot 7a that, without the death penalty, bloodshed would be rampant in society.  That should be taken into consideration when we evaluate rabbinic stances towards the Torah, particularly the death penalty in the Torah.  At the same time, I did find Instone-Brewer’s statement about the Mishnah and adultery to be important and interesting: there are places in which the Mishnah presumes that the death penalty against adultery, which the Torah mandates, is not to be carried out.  Perhaps that reflects the political situation at the time of the Mishnah; at the same time, the Mishnah did not hesitate to talk as if certain non-existent institutions were still authoritative—-the Temple rituals, at a time when the Temple was destroyed—-perhaps because it loved the Torah, or envisioned the rebuilding of the Temple.  Why couldn’t it have had the same approach to the death penalty for adultery—-talking about it like it’s still authoritative, even if it could not be carried out?  (Note: I am not saying that it should have had that stance, morally-speaking, but I am asking why it did not, from a historical standpoint.)

While I am on this topic of the death penalty for adultery in the Torah, here, here, and here are some other posts that I have written about this topic.

I am rambling here, so on to the next item.

2.  I am reading Christ in the Sabbath (Chicago: Moody Publishers, 2014), which is by Rich Robinson, an academic and a researcher for Jews for Jesus.   On pages 97-98, Robinson talks about the question of whether, according to rabbinic Judaism, the biblical Torah could be legitimately contradicted, in areas.

Robinson states that some rabbis believed that they had the authority to “enact laws contrary to the Torah when, to their mind, circumstances required it.”  Robinson then goes on to say that some thought that a true prophet could do this, as well.  Robinson refers to page 307 of The Gospel According to Saint Matthew, volume 2 (ICC; Edinburgh: T&T Clark, 1991), by W.D. Davies and Dale C. Allison, which cites b. Yeb. 90b.  According to this rabbinic passage, if the prophet of Deuteronomy 18:15 tells Jews to transgress a commandment of the Torah, they are to obey.  In I Kings 18, the passage notes, the prophet Elijah sacrificed on an altar on Mount Carmel, which was against the Torah because the Torah banned sacrifice outside of the central sanctuary (which, then, was in Jerusalem).  But Elijah violated that law “in accordance with the needs of the hour” (translation in Soncino), and God was okay with that.

One can perhaps question the extent to which some rabbis believed that a prophet could nullify a law in the Torah.  Elijah did so “in accordance with the needs of the hour,” which may imply that this was an emergency.  Another relevant passage is Deuteronomy 13:1-5, which states that, even if a prophet’s sign comes to pass, if the prophet encourages the Israelites to worship other gods, that prophet is to be put to death.

Robinson goes on to discuss Hillel’s prosbul—-Hillel’s way of circumventing the cancellation of debts every seventh year, mandated by Deuteronomy 15—-and Robinson states that there were Jews who disagreed with Hillel on this.  Robinson goes on to say that the view that rabbis could contradict Scripture did not become mainstream, and that Orthodox Judaism today maintains that rabbinic laws are less authoritative than Scripture.

I would not say that Hillel believed that he was contradicting Scripture.  Hillel was actually doing the opposite—-interpreting the Scripture overly literally in order to find a loophole.  As Robinson states when discussing the prosbul, Hillel thought that Deuteronomy 15 meant that loans that an individual made to another individual had to be cancelled every seventh year.  Hillel, however, tried to circumvent that by having a court collect the loan, and the individual would be reimbursed.  For Hillel, the written Torah said that individuals could not collect on loans in the seventh year, but it said nothing about a court.  Robinson on page 63 states that Jewish commentators have debated whether the prosbul “violates the spirit as well as the letter of the commandment…”  Still, Hillel, as far as I can see, was not simply declaring the commandment null-and-void, but was trying to circumvent it through a literal interpretation.  That assumes the commandment’s authority.

I’ll stop here.