How does frequency of a Sanhedrin killing make sense in light of the concept of "Kippah"?

Question

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.

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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)

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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.

Answer 1

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".

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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.