Q&A: The Underlying Assumption of the Passage in Sanhedrin 41
The Underlying Assumption of the Passage in Sanhedrin 41
Question
Hello and blessings, Rabbi Michi. More power to you for the investment in the site and in teaching generally. The Talmud in Sanhedrin 41a deals with the question of the source for the need for examination and cross-examination. The Talmud says:
"And it is necessary, for if the Merciful One had written only ‘his sister,’ I would have said: those liable to lashes, yes; those liable to death, no. Therefore the Merciful One wrote, ‘if a man acts intentionally.’ And if the Merciful One had written only ‘and if a man acts intentionally,’ I would have said: that applies only to execution by the sword, which is the lighter punishment; but stoning, which is more severe, I would say no. Therefore it is necessary."
The underlying assumption of the passage is that if something is more severe, then we would not require examination and cross-examination for it. My question is: but the logic seems exactly the opposite. In order to convict someone of something more severe, you would need greater certainty, just as is accepted in criminal law, where conviction requires certainty beyond a reasonable doubt (unlike civil law, where a lower level of certainty is sufficient).
A similar question arises regarding an inciter, for whom there is a special rule that one does not argue in his favor. But in Jewish law, circumstantial considerations such as the defendant’s difficult childhood and the like are not really taken into account; rather, the discussion focuses on the facts. So if one does not argue in favor of an inciter, that means we have before us a person who may or may not be an inciter, and we make less effort to clarify that, in order to convict him more easily. And that is puzzling, because taking the severity of the offense into account should only be possible after we have proven that the person actually committed it!
What do you think about these passages?
More power to you,
Eliyahu
Answer
With severe matters there are two sides. On the one hand, there is reason to make conviction easier in order to deter such serious offenses; on the other hand, there is reason to raise the threshold in order to avoid imposing a severe punishment for no reason. For the sake of a refutation, it is enough that there be one aspect in which it is more severe. However, from the simple sense of the passage it appears that the severity itself is a reason to lower the threshold. There is such a side to it, and the Talmud apparently understood it that way.
As for an inciter, I answered this only yesterday (to you?). There there is a special rule regarding one who incites to idolatry, and apparently there the desire is to deter an especially severe offense, regarding which the first consideration I presented above outweighs the second.