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The mishnah on Makkos 7a states:

סנהדרין ההורגת אחד בשבוע נקראת חובלנית רבי אליעזר בן עזריה אומר אחד לשבעים שנה רבי טרפון ורבי עקיבא אומרים אילו היינו בסנהדרין לא נהרג אדם מעולם רשב"ג אומר אף הן מרבין שופכי דמים בישראל:‏

A Sanhedrin that executes once in seven years is characterized as a destructive tribunal. Rabbi Elazar ben Azarya says once in seventy years. Rabbi Tarfon and Rabbi Akiva say: If we had been of the Sanhedrin, no person would have ever been executed. Rabban Shimon ben Gamliel says: if that's the case, they too would increase the number of murderers amongst the Jewish people.

HOWEVER

The mishnah on Sanhedrin 81b teaches us about the concept of a "kippah"- a small chamber where a murderer who evaded a death sentence due to technical reasons (no witnesses or hasra'ah etc) would be put to death.

ההורג נפש שלא בעדים מכניסין אותו לכיפה ומאכילין אותו (ישעיהו ל, כ) לחם צר ומים לחץ:‏

one who kills a person not in the presence of witnesses [and it is impossible to judge him in court], the court places him into a vaulted (ie tiny) chamber and feeds him sparing bread and scant water (see Isaiah 30:20).

The Rambam (Hilchos Rotzeach 4:8) explains what would happen:

All of these murderers they would bring to a kippah and feed him a small amount bread and scant water until his intestines contract and then the court feeds him barley that expands in his innards until his stomach explodes.


Question:

In light of the concept of kippah, how in the world does the mishnah in Makkos make any sense?

There'll never be a problem of murderers as they would STILL be put to death via this method! (statistically speaking, it's probably likely a murder will occur at least every 7 years)


NOTE: perhaps there's room to argue that the kippah method is different than a literal court imposed death penalty as it's via gramma (indirect causation)- nonetheless whether directly or via gramma the Sanhedrin STILL end up putting a person to death.

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    And then there's the Mishna about a crowd of "death row inmates" that Bet Din can no longer figure out who gets which death penalty. How on earth does that happen? – Danny Schoemann May 15 at 11:22
  • A good question, but the title is a bit confusing. How about "Inability to sentence to death vs "Kippah" concept in Jewish law?" – Al Berko May 15 at 13:09
  • I probably misunderstood your question, are you asking about the possibility of an "informal" death or its frequency? – Al Berko May 15 at 13:14
  • Assuming you're asking regarding Rabbi Shimon ben Gamliel's objection, I think even if he held of kipa, everyone would agree it wouldn't have the same deterrent effect as the very public execution prescribed by the Torah. – Loewian May 15 at 15:13
  • @Loewian very interesting approach. Your s'vara or do you have a source? – alicht May 15 at 15:16
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Welcome to Judaism, I mean, welcome to the idea of opposite approaches. The contradiction you present stems from two different approaches to the idea of Jewish Justice or Judgement - should it come from G-d or from us.

  • The first approach you cited, is the mainstream following of G-d's law "על פי שנים עדים קיום דבר", i.g. unless a lengthy list of requirements is met in full a person cannot be put to death, and we let the Heaven deal with it.

    Similarly, by following this approach, if two false witnesses testify against a Kosher man we have no choice but sentence him to death (see the story of Shimon Ben Shatach that hung 80 witches and his son was sentenced by false witnesses).

    In a more general sense, this approach is called "בשביל תורה שנקראת ראשית" (see Rashi on Ber 1,1), where we follow the Torah (even oral) "literally".

  • The other, very popular, approach to Justice or Judgement is "לא בשמים היא" - G-d allowed us to bend His laws to suit to our reality. That is Halachicly accepted under the "עושנים שלא מן הדין" concept.

    In other words, a Jewish court is allowed to do the exact opposite of #1 - either sentence to death those who cannot be formally judged or exempt those who should be formally sentenced.

    Your second example fits this approach, also applied as "מורידין ולא מעלין" for less severe misdeeds.

    In a general sense, this approach is called "בשביל ישראל שנקראת ראשית" (see Rashi on Ber 1,1), where we don't see the Torah as a stand-alone creation, but a tool for the Jewish nation to reach the World to Come, therefore allowed them to "renovate".


This idea is taken from the book "קציר האומר" of R' Tzvi Dermer, and myself that we wrote as the summary of our study of Mesechet Sanhedrin.

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    The question was that there's a contradiction between the sources: one indicates that courts rarely killed, while another combination of sources implies that they often did. This doesn't seem to answer that contradiction. – msh210 May 15 at 13:10
  • @msh210 sorry, where do you see that the kippah was used so often? It just offers an option of putting someone to death informally. – Al Berko May 15 at 13:12
  • @msh210 I now asked that from the op: I probably misunderstood your question, are you asking about the possibility of an "informal" death or its frequency? – Al Berko May 15 at 13:15
  • @AlBerko as msh210 points out, the question I'm asking is the gemara in Makkos sounds like the Sanhedrin were hesitant and rarely killed, where as the gemara in Sanhedrin re: "kippah" explicitly says that for murderers etc they could (indirectly) kill as need be. 7 years, 70, never vs "whenever we see a murderer etc" – alicht May 15 at 13:56
  • @alicht First, do you understand the difference between the two approaches? 2. Then you ask, if they had the second approach why didn't they used it so often? – Al Berko May 15 at 15:00

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