Sanhedrin 40b) The Sages taught in a baraita: In a trial for murder, the court asks the witness: Do you recognize the accused? Did he kill a gentile? Did he kill a Jew? Did you forewarn him? Did he accept the forewarning on himself, i.e., acknowledge the warning?
In order for a murderer to be executed he needs to acknowledge he had been warned
Why would he acknowledge this when he knows he will lose his life?\ Rav R Margolis answers that if he doesnt admit he had been warned he will be killed anyway by have his stomach explode (cipah)
He prefers a quick and relatively painless death
He would need to know halacha pretty well - for example, I wasn't aware of the Cipah - stomach explosion. would someone who is knowledgeable in halacha also commit murder?
ReplyDeleteAlso, just like there was a time when the Sotah ordeal stopped working, presumably this punishment also disappeared.
And perhaps he is a cynic, a heretic or a rasha - and doesn't believe in such superstition. Criminals usally take their chances and don't think of long term consequences.
In any case, the above are questions asked of a witness - not the accused. If he acknowledged the warning, he ws not yet a murderer, so the question is not quite relevant. He may have accepted the warning so fend off the witness, and carried out the murder later, perhaps thinking there are no witnesses.
there is also another way of interpeting this, which I learned from Emanuel Rackman's essay - a Functional Approach to the Halacha.
ReplyDeleteHe argues that halacha has a function, to acheive certain goals, not merely just a black and white yes or no approach.
The question raised, is predicated on the assumption that a potential murderer would not act in a way that would make it easier for him to be executed - so it is not in hsi own interest to accept the warning. So, using the Functional approach - such a clause does have a function, namely it would make it near impossible for a murderer to be executed! This aligns well with R Akiva's statement that if he was in charge, there would be no executions. So was the halacha designed in a such a way to make capital punishment near extinct? It is similar to the argument made about ben sorer u moreh - it is virtually impossible to make such an execution of the teenager.
When you look at it, it's clear these laws could never be enforced.
ReplyDeleteAnyone who seeks to murder someone, acknowledges witnesses and admits he knows what he's doing and what the punishment is, is a complete idiot and idiots always go free!
The most fascinating thing in the sugya is that the limid from v'ohavta lereicho kamocha is borrerin lo Misa yafeh
ReplyDeleteAccording to you the function of halacha is to ensure the most painful punishment not to eliminate capital punishment
ReplyDeleteyes
ReplyDeleteThis is what I got from mi yodeya on stackexchange:
ReplyDeleteMakkos 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.
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So not according to me, but according to Rabi Tarfon and Rabi Akiva, nobody would be executed . What they would say about the "Kippah" , I don't know.
The concept - apparently from a mishnah in 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."
This is also something enacted by the Sages - whether Rabbi Akiva would still use this or find a way out of it, i do not know.
According to Torah law, a person in a state of “non compos mentis”, will not be held responsible for any sin or crime that he commits, while in such a state.
ReplyDeleteHowever a person seeking to murder someone else; acknowledges the presence of witnesses, and admits he knows what he's doing and what the punishment is; is acting foolishly, but is not insane. He is hell-bent on committing premeditated murder, and a rebel against the Torah. He could care less about his own life, or that the Torah has prohibited murder. His faux plea of “insanity” is therefore rejected, since Halachically he is considered to be “compos mentis”.
OK, so do they apply the "kippah" procedure to someone who is "non compos mentis"? to get rid of them?
ReplyDeleteThere is a big difference from the “Kippah” guy, who has all his faculties about him, and used them to premeditate a murder; thinking that he’s very clever, and can evade justice from Beis Din, due to technical reasons. So Beis Din has a way of dealing with this “Rasha”, and they indirectly cause him to die, since he wantonly murdered someone else.
ReplyDeleteContrast this with a person in a state of “non compos mentis”, who does not comprehend right from wrong, and if he killed someone in his diminished mental state, we assume that it was done inadvertently. Such a person is not considered a “Rasha”, and does not deserve to die for his actions. He belongs in a psychiatric hospital, where he will be treated and/or taken care to prevent him from harming himself and/or others.