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.