Q&A: Civil Law
Civil Law
Question
According to what you say, that alongside the Sanhedrin there is authority in civil law, why didn’t Shimon ben Shetach use that legal authority to execute him?
Shimon ben Shetach said: “May I not see consolation if I did not see one man running after another into a ruin. I ran after him and saw a sword in his hand, with blood dripping, and the murdered man still twitching. I said to him: ‘Wicked one, who killed this man—either I or you. But what can I do, since your blood is not given into my hand? For the Torah says (Deuteronomy 17:6), ‘By the testimony of two witnesses shall the dead man be put to death.’ He who knows thoughts will exact punishment from that man who killed his fellow.” They said: They had not moved from there before a snake came and bit him, and he died.
Answer
I didn’t understand the question.
Discussion on Answer
That has nothing to do with my position. All the halakhic decisors say that a religious court may strike and punish not strictly according to the formal law. That is also ruled in the Shulchan Arukh, Choshen Mishpat. So you could ask this according to everyone.
The answer probably lies in local considerations. The question is whether at that time it was correct to act that way or not, for various reasons.
One could say that, indeed, if the snake had not come, Rabbi Shimon ben Shetach would have acted to punish the murderer not strictly according to the formal law.
And one could also suggest that Rabbi Shimon ben Shetach did not want to act personally in punishing this murderer, in line with the reasoning in the Talmud that in capital cases a witness does not become a judge: “since they saw him kill a person, they cannot see merit for him.” And there was also concern about handing the matter over to the other judges, since as head of the Sanhedrin it would be like opening with the most senior opinion, and there is concern, in Maimonides’ wording, that “perhaps the others will rely on his view and will not see themselves as worthy of disagreeing with him.” True, these rules are Torah-level laws (derived by interpretation), but the reasoning underlying them is general.
In the Talmud it says that because there were not two witnesses and prior warning, he said he could not execute him. But you yourself wrote in your book that alongside religious law there is civil law, which can and should be used. So why didn’t he use civil law to execute the murderer?