Introduction
This article will examine transgressions that lead to capital punishment from the following perspectives:
- Scriptural analysis.
- Details of transgression.
Due to the scope of this topic, this article will address transgressions which are punishable by burning, beheading, and strangulation. A companion article on this web site, “Capital Punishment – Details – Stoning” addresses transgressions which are punishable by stoning.
Scriptural Analysis
The Talmud (e.g. Sanhedrin 49a) states that for any transgression which leads to capital punishment, the Torah must provide a verse for the mention of the transgression and another verse for the method of execution. The Talmud labels these verses as warning and punishment respectively. These verses may be explicit or derived through exegesis as explained in this article.
Details of Transgression
This article also discusses the details of these transgressions and background information for context.
Related Articles
Transgressions directly related to the 10 Commandments are covered in a companion article on this website “Capital Punishment – 10 Commandments” and therefore will be discussed briefly in this article. Another companion article on this web site “Capital Punishment – Theme” discusses different methods of execution, related transgressions, and underlying themes of transgressions.
Details
The following table lists the method of execution, number of transgressions that lead to this method of execution, and theme for these transgressions. As seen from the table below, there are 36 transgressions that lead to execution (i.e. 18+10+2+6 =36).
| Method | Number | Theme |
| Stoning | 18 | Fundamentals of Faith |
| Burning | 10 | Forbidden Relations |
| Beheading | 2 | Fundamentals of Faith |
| Strangulation | 6 | Different |
The following paragraphs will examine the details of these transgressions related to the latter 3 methods.
Burning
The Mishna (Sanhedrin 75a) lists 10 transgressions that are punishable by burning all of which involve forbidden relations. Nine of these relate to mother-daughter combinations including granddaughters or grandparents and one to adultery with the daughter of a priest as follows:
- Daughter (from father) and granddaughter from his son or daughter.
- Daughter (from wife) and granddaughter from her son or daughter.
- Mother in law, her mother, and mother of father in law.
- Adultery with a fully married daughter of a priest.
Each of the first 3 listings contains 3 forbidden relations for a total of 9 transgressions related to family. The daughter from his wife may refer to a step daughter (i.e. from a different father) or his own daughter from marriage.
Maimonides writes (Laws of Sanhedrin 15:11) that the prohibitions of cases 2 and 3 apply if the man has relations with them during his wife’s lifetime. After his wife’s death, these relations are punishable by excision and not capital punishment.
The following table lists the type of transgression, verse for prohibition, and verse for punishment where applicable.
| Transgression | Prohibition | Punishment |
| Daughter (from father) | Leviticus 18:10 | Leviticus 20:14 (Appendix 1) |
| Daughter (from wife) | Leviticus 18:17 | Leviticus 20:14 (Exegesis) |
| Mother in law | Leviticus 18:17 (Appendix 1) | Leviticus 20:14 |
| Adultery daughter of priest | Exodus 20:13 | Leviticus 21:9 |
Daughter from Father – Category 1
Verse – Prohibition
Leviticus 18:10 – “You shall not uncover the nakedness of your son’s daughter or your daughter’s daughter… for they are (הנה) your own shame.”
The Talmud (Sanhedrin 76a) notes that the Torah does not explicitly forbid relations with one’s daughter born out of wedlock. Appendix 1 explains the derivation of this prohibition.
Verse – Burning
The Torah does not explicitly cite a verse for execution by burning for relations with a daughter or granddaughter from the father. Appendix 1 explains the derivation based upon Leviticus 20:14.
Details
Maimonides (Laws of Forbidden Relations 2:6), based upon the Talmud (Sanhedrin 76a) explains that the prohibition of incest with a daughter from a father refers to his biological daughter born out of wedlock (i.e. rape, seduction, or consensual) but not to the exclusion of his daughter born in wedlock.
Daughter from Wife – Category 2
Verse – Prohibition
Leviticus 18:17 – “You shall not uncover the nakedness of a woman (i.e. wife) and her daughter. You shall not take (in marriage) her son’s daughter or her daughter’s daughter … they are (הנה) close relatives, it is depraved (זמה).”
Verse – Burning
Leviticus 20:14 – “A man who takes a woman and her mother it is depraved (זמה). They shall burn him and them in fire.”
The Torah does not explicitly cite a verse for execution by burning for relations with a daughter or granddaughter from a wife. Rather the Torah (ibid.) only mentions the punishment for incest with a wife and her mother.
The Talmud (Sanhedrin 75a) uses the principle of similar words (גזרה שוה) to link the verse Leviticus 20:14 which mentions punishment of burning for incest with a mother in law to Leviticus 18:17 which cites the prohibition of incest with a daughter from a wife through the common word זמה (it is depraved). Hence the punishment cited in the former verse applies to the latter.
Details
Incest with a daughter from a wife refers to either his daughter born in wedlock or a stepdaughter. This definition follows from the verse (Leviticus 18:17) which mentions a wife and marriage, “You shall not uncover the nakedness of a woman (אשה) and her daughter. You shall not take (in marriage) her son’s daughter or her daughter’s daughter … they are close relatives (שארה implies marriage), it is depraved.” The Torah uses the word שארה in reference to marriage in the verse (Exodus 21:10), “If he takes another wife for himself, he shall not diminish her sustenance (שארה), clothing, or marital relations.”
Maimonides writes (Laws of Forbidden Relations 2:6), “A person who has relations with a daughter born of his wife is liable for two sin offerings (when the transgression was committed unintentionally) for relations with his daughter (category 1) and for relations with a woman and her daughter (category 2). A stepdaughter is forbidden to the father by marriage to her mother.
If the mother dies or is divorced, thereby breaking the bond between the stepdaughter and father, the father is not executed for relations with his stepdaughter but is liable to excision (Maimonides ibid. 2:8). The Talmud (Sanhedrin 76b) derives this law from the unusual wording of Leviticus 20:14, “A man who takes a woman and her mother … They shall burn him and them (ואתהן) in fire.” At a literal level the word “them” seems to imply that both the woman and her mother are executed by burning. However this interpretation is untenable because the wife did not commit any transgression if the husband performs incest with her mother. Rather the husband and mother are liable to execution. Hence the word “them” must be interpreted in a different manner meaning that both the wife and mother must be alive to apply capital punishment. This is a compelling example that every word in the Torah has meaning, in most cases literal, but sometimes requires exegesis of the oral law.
Mother in Law – Category 3
Verse – Prohibition
The Torah does not cite a specific verse for the prohibition of incest with a mother in law. The Talmud (Sanhedrin 75a) uses the principle of similar words (גזרה שוה) to link the verse (Leviticus 20:14) which mentions punishment of burning for incest with a mother in law to Leviticus 18:17 which cites the prohibition of incest with a daughter from a wife through the common word זמה (depraved). Hence the prohibition cited in the latter verse applies to the former. Appendix 1 explains the derivation of the prohibition and punishment for incest with the mother of the mother in law and mother of father in law, meaning the grandmother of the wife.
Verse – Burning
Leviticus 20:14 – “A man who takes a woman and her mother it is depraved (זמה). They shall burn him and them in fire.”
Details
The Torah (Leviticus 20:14) prohibits incest with a mother in law upon the marriage of her daughter. However if a man has a relation with a woman out of wedlock he is not prohibited to marry her mother or her daughter from another man (Maimonides Laws of Forbidden Relations 2:11). The Talmud (Yevamot 97a) derives the law about the mother in law from the wording of Leviticus 20:14, “A man who takes a woman and her mother … They shall burn him and them. “ The Talmud (ibid.) interprets the word “takes” יקח to mean marriage. Although the Torah also uses the expression “takes” in reference to a sister (Leviticus 20:17) the Talmud explains that in general the word “takes” refers to marriage but there are exceptions.
In addition the prohibition of incest with a mother and her daughter refers to marriage through the word שארה (close relatives) in Leviticus 18:17 as explained above. Hence just as the prohibition of incest with a mother and her daughter starts with marriage of the mother so does the prohibition of incest with a woman and her mother in law involve marriage as described above in term of the word linkage (גזרה שוה).
Summary
In summary, incest between a man and his biological daughter is prohibited whether the daughter was born in or out of wedlock. When a man marries incest applies to his wife’s daughter or mother. However if a man has a relation with a woman out of wedlock (e.g. consensual, seduction, or even rape) he may marry her daughter (from another man) or her mother according to Torah law. However the rabbis prohibited this marriage as long as this woman is alive because they were concerned that the man may resume the affair after marriage which would be incest (Maimonides Laws of Forbidden Relations 2:11 based upon Yevamot 97a).
Daughter of a Priest – Category 4
Verse – Prohibition
Exodus 20:13 – “You shall not commit adultery.”
Verse – Punishment
Leviticus 21:9 – “If a priest’s daughter (ובת) becomes desecrated (through adultery, meaning that) she desecrates her father (אביה), she shall be burned in fire.”
Deuteronomy 22:21 – “They (the court) shall take the girl out to the entrance of her father’s house, and the men of her city shall pelt her with stones … for she committed an outrage in Israel, to commit adultery in her father’s house (בית אביה) (i.e. betrothed but not fully married).”
Although the Torah does not specify this desecration, the Talmud (Sanhedrin 50b) using a word analogy (i.e. גזרה שוה – similar words in different contexts) establishes that this desecration involves adultery. The Talmud (ibid.) connects the word אביה (her father) in Leviticus 21:9 to the same word אביה in Deuteronomy 22:21. Just as the latter verse refer to adultery so does the former.
The Talmud (Sanhedrin 50b) questions, “Perhaps the punishment of burning only applies to a betrothed woman, as specified in the latter verse?” The Talmud (ibid.) answers that the additional letter vav (ו) in the word daughter (ובת) indicates that the former verse applies to both a betrothed and fully married woman as well as a young or older woman.
The Talmud (Sanhedrin 51a) points out that the punishment of burning only applies to the woman, but not the man, based upon the former verse, “She (היא) desecrates her father”. By contrast the male adulterer is punished by strangulation like other adulterers. In addition the Talmud (ibid.) and Maimonides (Laws of Forbidden Relations 3:3) indicate that the execution by burning applies whether her husband is a priest (Kohen), Levite, or regular Israelite because the former verse did not mention the status of the husband.
Summary
The following table summarizes the different types of adultery, method of execution, and verse in scripture.
| Adultery | Execution | Verse |
| Betrothed Young Girl | Stoning | Deuteronomy 22:21 |
| Daughter of a Priest | Burning | Leviticus 21:9 |
| Other | Strangulation | Leviticus 20:10 |
Beheading
The Talmud (Sanhedrin 52a) lists the following transgressions that are punishable by beheading:
- Murder.
- City of Idolatry.
Murder
Verse – Prohibition
Exodus 20:13 – “You shall not murder.”
Verses – Beheading
Exodus 21:20 – “If a man will strike his servant with a rod and die … he shall surely be avenged.
Exodus 21:12 – “One who mortally strikes a man shall surely be put to death.”
Numbers 35:17 – “If a man will strike someone with a fist sized stone …and he dies, he is a murderer. The murderer shall be put to death.”
Exegesis
Although the Torah does not clearly specify beheading for the crime of murder the Talmud (Sanhedrin 52b) derives the punishment through exegesis as follows. The first verse states that if an owner kills a Canaanite servant his death will be avenged without mentioning the method of execution. The Talmud then quotes Leviticus 26:25 to show that avenging involves a sword. The verse reads, “I (Hashem) will bring upon you an army (literally a sword) that avenges the covenant (when Israel fails to observe the covenant).” The Talmud (Ibid.) then asks, “Perhaps execution by the sword means cutting a person in half?” The Talmud (ibid.) answers that execution by the sword must be in the most compassionate manner (viz. beheading) based upon Leviticus 19:18, “You shall love your neighbor as yourself.”
A Fortiori
The Talmud (ibid.) then raises the question, “How do we derive that a freeman is also executed by the sword?” The Torah (Exodus 21:13 and Numbers 35:17) states that a murderer shall be executed without specifying the method of execution. The Talmud (ibid.) answers with an a fortiori proof. If a servant is executed by the sword then all the more so a freeman should be executed by the sword. The Talmud points out (Sanhedrin 76a) that one cannot derive a Torah based punishment through human reasoning (e.g. a fortiori) since it may be overturned by logic. However in this case a fortiori reasoning is valid because the Torah states that a murderer is liable to capital punishment. The Talmud then may derive the method of execution through a fortiori reasoning.
The reader may ask, “Perhaps the murderer of a freeman should be punished by a higher method of execution (e.g. stoning) than the murderer of a servant?” Although the Talmud does not answer this question here, the Talmud (Bava Kamma 25a) explains that with a fortiori reasoning the derived case (i.e. execution for murder of a freeman) cannot be stricter that the source case (i.e. execution for murder of a servant). Hence both types of murderers are executed by beheading.
Details
The Torah mentions murder in several verses which relate to the following:
- Victims.
- Murder weapon.
Victims
Exodus 21:12 – ““One who mortally strikes a man shall surely be put to death.”
Leviticus 24:17 – “If a man (mortally) strikes any human being he shall be put to death.”
The Talmud (Sanhedrin 84b) explains that the former verse specifies the victim as an adult male and the blow must be fatal. By contrast the latter verse specifies the victim as any human being, independent of age or gender. In addition the latter verse did not explicitly mention that the blow was fatal. The Talmud (ibid.) asks, “If the latter verse states that murder applies to any victim why the former verse specifies an adult male?” The Talmud (ibid.) answers that the former verse teaches that the victim must be viable with the potential to become an adult, thereby excluding, for example, a premature baby who will not survive. In this manner different verses of the Torah are interpreted to provide a clear definition of the crime of murder.
Murder Weapon
The Torah cites different verses about the murder weapon as follows:
Numbers 35:16 – “If he mortally struck the victim with an iron instrument he is a murderer.”
Numbers 35:17 – “If he struck the victim him with a deadly hand sized stone and died, he is a murderer.”
Numbers 35:18 – “Or with a deadly hand sized wooden instrument and died, he is a murderer.”
The Talmud (Sanhedrin 76b) notes that the 1st verse does not specify the size of the iron instrument because even a small iron weapon can kill by piercing for example the victim’s heart or esophagus. By contrast one is not liable for murder unless the stone or wooden weapon was of a deadly measure.
Maimonides (Laws of Murder Chapter 3) cites a number of considerations with respect to murder as follows:
- Weapon (ibid. 3:1), “Determine whether or not it is likely that such a weapon would cause death”.
- Place where struck (ibid. 3:2), “The court assesses the place where the victim was struck”.
- Strength of blow (ibid. 3:2), “The court assesses the force of the blow”.
- Victim (ibid. 3:3), “The victim should be assessed. Is he large or small, strong or weak, healthy or sickly?”
City of Idolatry
The Torah (Deuteronomy 13:13-19) states that if the majority of a city in Israel succumbs to idolatry the transgressors are executed by the sword and not by the more severe punishment of stoning. Presumably the Torah regards these transgressors as followers of a crowd and not as individual rebels against Hashem’s command.
Verse – Prohibition
Exodus 20:5 – “You shall neither bow before idols nor worship them.”
Verses – Punishment
Deuteronomy 13:16 – “You shall smite the inhabitants of that city by the sword.”
Details
Maimonides (Laws of Idolatry 4:2) based upon the Talmud (Sanhedrin 111b) lists the conditions for this law, following the order of the verse (Deuteronomy 13:14) as follows:
- The enticers must be 2 or more males.
- The enticers must be of the same tribe as the residents of the mislead city.
- The majority of the inhabitants of this city worship idols based upon this enticement.
- The enticers must live in the mislead city.
If these conditions are not met then the inhabitants of the city are executed by stoning. The Talmud (ibid.) derives these conditions from Deuteronomy 13:14, “Lawless men have emerged from your midst and have led the inhabitants of their city astray, saying: Let us go and worship other gods” as follows:
- Men – 2 or more males.
- From your midst – same tribe.
- Inhabitants – all or majority of inhabitants.
- Their city – same city.
The Talmud (ibid.) also states that each person is judged only after receiving a warning and by the testimony of 2 or more witnesses who saw the transgression. Since each person is judged individually many courts are established to speed up the judicial process. If convicted, the transgressor is placed in custody pending the outcome of the other trials. If the majority of the town worshipped idols then the convicted are executed by the sword; otherwise they are executed by stoning. The Talmud (Sanhedrin 71a) records a debate whether the city of idolatry actually occurred or is hypothetical to teach the dangers of following a crowd.
Strangulation
Introduction
The Mishna (Sanhedrin 84b) lists 6 transgressions that are punishable by strangulation, 3 relate to the 10 Commandments and the others to betrayal of the public trust. Although the Torah does not explicitly mention execution by strangulation, the Talmud (Sanhedrin 52b) states that when the Torah does not specify a method of execution strangulation is implied. The Talmud (ibid.) derives this form of execution by comparing it to death by heaven. Just as death by heaven leaves no mark on the human body, so the unspecified death of the Torah leaves no distinguishing mark which means strangulation. Therefore for each of the 6 transgressions listed below the verses only states execution but not its method.
Related to Ten Commandments – Table
The following table lists these transgressions, number in the 10 Commandments, and verses from the Torah citing the prohibition and punishment.
| Transgression | Number | Prohibition | Punishment |
| Striking Parent | 5 | Deuteronomy 25:3 | Exodus 21:15 |
| Adultery | 7 | Exodus 20:13 | Leviticus 20:10 |
| Kidnapping | 8 | Exodus 20:13 | Exodus 20:16 |
Striking a Parent
If a son or daughter intentionally strikes a parent and draws blood they are liable to execution by strangulation.
Verse – Prohibition
The Torah does not provide a specific verse for striking a parent. Rather the Mechilta, on Exodus 21:15, cites Deuteronomy 25:3 which prohibits an agent of the court to exceed the number of lashes determined by the court. Hence if a court agent who is authorized to apply lashes cannot exceed the number of lashes then certainly a son or daughter is prohibited to strike a parent. Maimonides (Laws of Rebellion 5:8) similarly explains, “Since a person is warned not to strike any person, his father and mother are also included.”
Deuteronomy 25:3 – “He (court approved enforcer) shall flog him with forty lashes but not exceed … to avoid degrading your brother in your eyes.”
Verse – Capital Punishment
Exodus 21:15 – “One who strikes his father or mother shall surely be put to death.”
As mentioned above since the Torah did not specify the method of execution strangulation is implied.
Details
The Talmud derives details of the prohibition of striking a parent through exegesis as follows:
- Striking but not murder.
- Drawing blood.
- Medical procedure permitted.
Striking but not Murder
The Talmud (Sanhedrin 84b) asks, “How do we know that the verb ‘strikes’ in Exodus 21:15 means delivering a blow and not killing?” The Talmud (ibid.) answers this question by:
- Logic.
- Interpretation.
Logic
The Talmud (ibid.) reasons that striking in this verse means delivering a blow and not killing by comparing the relative severity of the methods of execution. According to the Halacha (Maimonides Laws of Sanhedrin 14:4) beheading is a more severe form of execution than strangulation and murder is punishable by beheading. Hence if a murderer of a non relative is executed by beheading then certainly a son or daughter who murders a parent should be executed by beheading and not the less severe execution of strangulation. Therefore when the verse (Exodus 21:15) states that one who strikes a parent is executed; it must refer to a blow and not murder.
Interpretation
The Talmud (ibid.) points out that when the Torah refers to striking a person, murder is not implied unless specifically indicated. For example in the verses of Numbers 35:16-18 the crime of murder is clearly stated. In Leviticus 24:17 the Torah states, “If a man (mortally) strikes any human being (נפש) he shall be put to death.” Although the word ‘mortally’ is not clearly specified in the Torah, the Talmud (Sanhedrin 77b) interprets the Hebrew word נפש (soul) as taking the soul.
The Torah (Leviticus 24:21) states,”One who strikes a person shall be put to death.” This verse does not state that the blow was fatal leading to the question, “Does this verse contradict the above observation that unless otherwise stated, striking does not mean murder?” The Talmud (Sanhedrin 84b) answers that this verse refers to striking a parent which is punishable by strangulation which then prompts the question, “What does this verse teach since the verse in Exodus 21:15 mentions the death penalty for striking a parent?”
Medical Procedure
The Talmud (ibid.) answers by quoting the full verse and expounding upon it. The verse reads, “One who strikes an animal shall pay for it. One who strikes a person shall be put to death.” The Talmud then compares damage to an animal to that of a parent. Just as it is permitted to strike an animal for therapeutic purposes even if blood is drawn, so too a son or daughter may perform a medical procedure on a parent even if blood is drawn. The Talmud (ibid.) reasons that is permitted to perform medical procedures on an animal because the verse mentions compensation for damage to the animal. This is not applicable to a medical procedure which is beneficial to the animal and its owner. Although the Shulchan Aruch Yoreh Deah 241:3 advises against a son daughter operating on a parent the Rema (ibid.) permits this operation if another doctor is not available.
Drawing Blood
The reader may ask, “How did the Talmud derive that striking a parent, in the verse of Exodus 21:15, involves drawing blood?” The Talmud (ibid.) invokes the 20th rule of biblical exposition of Rabbi Eliezer which states that if a scriptural passage does not have a direct application in its own context then apply the passage to another context. In this manner every word in the Torah teaches a lesson. Specifically the Talmud (ibid.) notes the word נפש (soul) in Leviticus 24:18, “One who mortally (נפש) strikes an animal shall make restitution.” Although the literal meaning of the verse refers to killing an animal the Talmud explains that restitution equally applies to injuring an animal. Hence the word נפש (soul) in this case may refer to blood based upon the verse in Leviticus 17:11, “The soul (נפש) of the flesh is in the blood.” Since restitution for an animal applies whether or not blood is drawn, the word נפש (soul) may be linked to striking a parent. This teaches that the capital punishment of Leviticus 24:21,” One who strikes a person shall be put to death” means striking a parent and drawing blood.
This analysis illustrates how verses that appear unclear in the Torah may be interpreted to derive a definitive law.
Adultery
Verse – Prohibition
Exodus 20:13 – “You shall not commit adultery.”
Verse – Capital Punishment
Leviticus 20:10 – “A man who commits adultery with a wife… the adulterer and the adulteress shall surely be put to death.”
Since the Torah did not specify the method of execution strangulation is implied.
Details
Adultery applies whether the woman is betrothed or fully married to her husband.
The following table summarizes the different types of adultery, method of execution, and source verse in scripture.
| Adultery | Execution | Verse |
| Betrothed Young Girl | Stoning | Deuteronomy 22:21 |
| Daughter of a Priest | Burning | Leviticus 21:9 |
| All Others | Strangulation | Leviticus 20:10 |
Kidnapping
If someone kidnaps another person he is liable to execution by strangulation.
Verse – Prohibition
Exodus 20:13 – “You shall not steal.”
The Talmud (Sanhedrin 86a) explains that this verse refers to kidnapping and not theft of property by invoking the 12th rule of Torah interpretation of Rabbi Yishmael, “A matter elucidated from its context”. Since this verse mentions murder and adultery which are capital crimes so too the prohibition of theft in this verse must also be a capital crime (i.e. kidnapping).
By contrast the verse in Leviticus 19:11, “You shall not steal, deny falsely, and lie” refers to theft of property because both this verse and the surrounding verse (ibid. 19:13) refer to property, “You shall not rob and withhold a worker’s wage.”
From this example one can see the importance of context when interpreting verses in the Torah.
Verses – Capital Punishment
Exodus 21:16 – “Whoever kidnaps a man, sells him, and was found in his possession, shall surely be put to death.”
Deuteronomy 24:7 – “If a man is discovered kidnapping … enslaves, and sells him, that kidnapper shall die.”
Details
The Talmud (Sanhedrin 85b) derives from the above verses that the kidnapper is liable to capital punishment only when he:
- Kidnaps the victim (both verses).
- Transfers the victim to his domain (found in his possession – Exodus 21:15).
- Uses the victim (enslaves him – Deuteronomy 24:7).
- Later sells the victim (both verses).
In this manner the Talmud uses both verses to derive details of this crime.
Maimonides (Laws of Theft 9:1) explains that even if the kidnapper did not commit a capital crime of kidnapping, the transgressor would be in violation of the following Torah prohibitions when he:
- Kidnaps (steals the victim Exodus 20:13).
- Sells the victim (Leviticus 25:42 – “Do not sell him in the manner of a slave.”
Maimonides (ibid.) further explains that the transgressor of these 2 prohibitions does not receive lashes because these prohibitions could lead to capital punishment based upon the Talmud Makkot 13b.
Betrayal of Public Trust – Table
The following table lists the transgressors of betraying the public trust and verses from the Torah citing the prohibition and punishment.
| Transgressor | Prohibition | Punishment |
| Rebellious Sage | Deuteronomy 17:11 | Deuteronomy 17:12 |
| False Prophet | Exodus 20:13 | Deuteronomy 18:20 |
| Idolatrous Prophet | Exodus 20:13 | Deuteronomy 18:20 |
Rebellious Sage
The rebellious sage is a judge who rules differently than his colleagues in a matter of Halacha. Since they cannot resolve the dispute locally the case advances to a court of 23 judges in Jerusalem. If they cannot resolve the dispute, the case is presented to the supreme court of 71 judges in Jerusalem for a final ruling. After they rule on this matter the sage is bound by the Torah to follow their decision. If he does not accept their decision and either acts on his own ruling or instructs others to neglect the court’s decision he is liable to capital punishment.
Verse – Prohibition
Deuteronomy 17:11 – “According to the law they (i.e. Sanhedrin of 71 sages) teach you and according to the judgment they say to you, you shall do. You shall not deviate from the word they tell you, either right or left.”
Verse – Punishment
Deuteronomy 17:12 – “The man (i.e. rebellious sage) who acts intentionally, not obeying the priest or … judge shall die to remove evil from Israel.”
Details
The rebellious sage is not liable to capital punishment unless he:
- Is a judge.
- Continues to rebel against the Sanhedrin of 71 sages
- Rules in a matter that may lead to excision.
- Rules in a law of tefillin.
Judge
Maimonides (Laws of Rebellion 3:5 based upon Talmud Sanhedrin 87a) writes, “A rebellious sage is not liable for execution unless he is qualified to issue halachic judgments and has received ordination from the Sanhedrin.” Hence a student of the law is not liable to this punishment.
The Talmud (ibid.) derives the requirement of a judge from the word יפלא in Deuteronomy 17:8, “If a matter of judgment eludes (יפלא) you …then you shall ascend to the place that Hashem … chooses (i.e. Jerusalem).” This word derives from the root פלא which means exceptional, extraordinary, or remarkable. Hence the Talmud concludes that just as this legal matter is extraordinarily difficult to resolve, so too the sage who rebels against the Sanhedrin must be of exceptional stature.
Continues to Rebel
Maimonides (Laws of Rebellion 3:5 based upon Talmud Sanhedrin 88b) writes, “A rebellious sage is not liable for execution unless he acts himself or directs others to act or according to his ruling in violation of the Sanhedrin.” Hence if the rebellious sage only teaches according to his interpretation but does not act on it he is not liable to execution (ibid. 3:6). This is derived from Deuteronomy 17:12, “The man (i.e. rebellious sage) who acts intentionally”, meaning that punishment is warranted for action and not for lecturing.
Legal Matter
Maimonides (ibid. based upon Talmud ibid.) writes, “A rebellious sage is not liable for execution unless he differs with the Sanhedrin in a matter whose willful violation is punishable by excision and whose inadvertent violation requires a sin offering or with regard to tefillin.” Maimonides (ibid. 4:1) continues, “This punishment applies whether the court forbids the matter and he permits it or the court permits the matter and he forbids it. Even if he bases his statements on a received tradition and they derive their ruling from reasoning. Since he differs with their ruling and performs a deed or directs others to do so, he is liable. Needless to say, this applies if they also rule on the basis of received teachings through the Oral Tradition”. Appendix 2 elaborates on a ruling directly or indirectly involving excision.
Tefillin
Maimonides (Laws of Rebellion 4:3 based upon Talmud Sanhedrin 88b-89a) explains, “If the rebellious sage ruled to add a fifth compartment to tefillin or he himself made tefillin with five compartments, he is liable. This applies provided he first made four compartments as required by law and then added a fifth compartment to the outer compartment. For when the outer compartment (i.e. 4th compartment) is not exposed to the open space at all times, it is not valid as tefillin.” The Talmud (ibid.) explains that the sage is liable to execution because the tefillin were initially valid with 4 compartments and then became invalid with the 5th compartment. Maimonides (ibid.) adds that this law about the rebellious sage with regard to tefillin is not written in the Torah but is known by tradition through the oral law.
Conclusion
In both of these cases the rulings of the rebellious sage undermine the Halacha and could lead to serious division in Israel hence the death penalty is applied. Maimonides (ibid. 3:4), based upon Talmud (Sanhedrin 88b), notes that the Sanhedrin cannot pardon the rebellious sage thereby to minimizing disputes in Israel.
False Prophet
The Torah commands that a false prophet is executed by strangulation. The Talmud (Sanhedrin 89a) defines a false prophet as one who fabricates or plagiarizes a prophecy or in the words of the Talmud (ibid.) respectively, “One who did not hear (the word of Hashem) or Hashem did not communicate to him (but was said to another prophet”). In addition these laws only apply to a recognized prophet and not an ordinary person. Similar to the rebellious sage the public would not regard the prediction of a common person and therefore there is no threat to society.
Verse – Prohibition
It is interesting to note that neither the Babylonian Talmud nor Maimonides cites a verse for this prohibition. The Jerusalem Talmud (Sanhedrin 11:6) cites Exodus 20:13, “You shall not bear false witness (against Hashem by prophesying falsely)”. However this interpretation of the verse only refers to a prophet who speaks against the Torah and its mitzvoth but nor a prophet who speaks falsely about future events.
Some derive the prohibition from Leviticus 19:11, “You shall not lie (about the word of Hashem).” Although both verses, at a literal level, discuss falsehood with respect to another person the prohibition may be extended to lying about Hashem.
Verse – Punishment
Deuteronomy 18:20 – “The prophet who intentionally speaks a word in My (divine) name, which I did not command him to speak … that prophet shall die.
At a literal level the clause, “Did not command him to speak” is an explanation of the clause “speaks a word”. However the Talmud (Sanhedrin 89a) interprets these two clauses as different forms of the prohibition as follows:
- Speaks a word – fabrication.
- Did not command him to speak – plagiarism.
Details – Fabrication
Due to the severity of the case, the false prophet is judged by the Sanhedrin of 71 judges which is the Supreme Court in biblical Israel (Sanhedrin 2a). The reader may ask, “How does the Sanhedrin prove that a prophet fabricated his prophecy?” Maimonides (Fundamentals of Torah) answers that a prophet is proven false whether by fabrication or attempted plagiarism if:
- He speaks against the Torah and its mitzvoth (ibid. 9:1).
- Or prophecy not fulfilled.
Against the Torah
Maimonides (ibid.) writes, “It is explicit in the Torah that Hashem’s commandments are permanent without addition or diminishment, as the verse states (Deuteronomy 13:1) states: All these matters which I command (i.e. mitzvoth) … You may not add to them or diminish from them. In addition Deuteronomy 29:28 states: What is revealed (i.e. mitzvoth) for us and our children forever, to carry out all the words of this Torah. This teaches that we are commanded to fulfill all of the Torah’s directives forever. “
Therefore Maimonides (ibid.) states that the Sanhedrin can declare a prophet is false if he prophesizes against the Torah and its mitzvoth as any one of the following:
- Adds a new mitzvah.
- Withdraws a mitzvah.
- Interprets a mitzvah in a manner which differs from the tradition received from Moses.
- Claims the mitzvoth are not forever; rather were given for a limited time.
- Permits idolatry even for a limited time even if the prophet performs miracles to bolster his claim (ibid. 9:5).
The permanency of the mitzvoth of the Torah is a fundamental tenet of Judaism which means that Israelites cannot embrace the sister religions of the bible which interpret the laws of the Torah in a different manner.
Prophecy not fulfilled
A prophet may be proven false if his prophecy does not come true. However Maimonides (ibid. 9:4) explains that if a prophet predicts retribution from Hashem (e.g. death, war, or famine) and the prophecy does not come true the prophet is not proven false. Hashem is slow to anger, abundant in kindness, and forgiving of sin (Exodus 34:7-8). Therefore if the people heed the words of the prophet and return to Hashem the retribution will be held in abeyance as in the case of Jonah and the people of Nineveh (Jonah 3:1-10).
By contrast if a prophet predicts that good events will come and they do not materialize then he is surely a false prophet. The Talmud (Shabbat 55a) cites only one exception to this rule. At the destruction of the first temple Hashem had promised that the righteous would be protected but later were killed because they did not protest against the sins of the Israelites.
Role of a Prophet
Since a prophet is not permitted to change the Torah, Maimonides (ibid. 9:2) asks, “What is the role of a prophet?” He answers as follows (ibid.) to:
- Inspire the people to follow the Torah and warn them of the consequences of transgression.
- Command the people to do something which is neither permitted nor forbidden by Torah law using his prophetic gifts. For example the prophet may say, “Go to a certain place or do not go there. Wage war today or wait. Build a wall or do not build it.”
- Temporarily transgress Torah law to sanctify the name of Hashem. For example, Elijah the prophet (1 Kings 18:19-39) offered a sacrifice outside the Temple of Jerusalem which is a transgression punishable by excision. However he felt that he had to convince the people of the truth of Hashem against the prevailing idolatry of Baal. Specifically, Elijah publicly challenged the false prophets of Baal. He suggested that each side of the challenge bring an offering of a bull but without fire (ibid. 23). Each side would then pray to their deity to bring fire from heaven as a proof of their religion (ibid. 24). Elijah suggested that the prophets of Baal go first because they were the majority (ibid. 25). These false prophets prayed from morning until the afternoon to no avail (ibid. 26-29). To bolster his claim, Elijah insisted that water be poured on the wood and his offering (ibid. 34). In addition Elijah instructed that a trench be dug and filled with water (ibid. 35). Then Elijah prayed and a fire descended from heaven and burnt the offering, wood, altar, and water in the trench (ibid. 38). This convinced the Israelites of the power of Hashem and they exclaimed (ibid. 39), “Hashem is (the true) G-d, Hashem is (the true) G-d.”
Details – Plagiarism
If a person hears a prophecy and claims that the prophecy is his own he is guilty of plagiarism. However he cannot be executed by the Sanhedrin unless his prophecy is proven false. The Talmud (Sanhedrin 89a) records an incident involving a false prophet who heard Jeremiah predict the downfall of Eilam as stated in Jeremiah 49:35. The false prophet incorrectly reasoned if Eilam will fall then certainly Babylon will fall because the former was a minor power that aided the latter in the war against the Israelites. Consequently the false prophet predicted the downfall of Babylon and return to Jerusalem within 2 years as recorded in Jeremiah 28:2-5. In fact Babylon fell about 60 years later.
If the Sanhedrin cannot prove the prophet false he cannot be executed. For example if the false prophet merely repeats the words of a true prophet and claims ownership of the prophecy the Sanhedrin cannot establish which prophet received the message from Hashem and is therefore exonerated.
Idolatrous Prophet
The Torah commands that an idolatrous prophet be executed by strangulation. The Talmud (Sanhedrin 89a) defines an idolatrous prophet as one speaks in the name of idolatry even if his prophecy accorded with the Halacha (Sanhedrin 89a). In addition this law only applies to a recognized prophet and not an ordinary person. Similar to the false prophet, the public would not regard the prediction of a common person and therefore there is no threat to society.
Verse – Prohibition
Maimonides (Laws of Idolatry 5:6) cites the verse for prohibition as Exodus 23:13 – “You shall not mention the name of the gods of others.” Since this prophet speaks in the name of other gods he is in violation of this prohibition.
Verse – Punishment
The Talmud (Sanhedrin 89a) cites Deuteronomy 18:20 – “The prophet who speaks in the name of other gods shall die” as the source for capital punishment.
Details
Maimonides (ibid.) writes, “A person who says: This false deity or star told me that we are commanded to do this action or refrain from it. Even if he states the law accurately, labeling the impure as impure and the pure as pure he is judged as an idolatrous prophet.”
Conclusion
This article analyzed the range of transgressions punishable by burning, beheading, or strangulation, involving for example forbidden relations, murder, and betrayal of the public trust by distinguished individuals. For each transgression the article cited a verse for prohibition and execution. In most cases the verses are explicit but in some cases the verses for prohibition or execution are derived through exegesis. In this manner the transgressor is duly warned from scripture in both a legal and moral sense.
As mentioned several times on this web site capital punishment was rarely applied in Israel. The Talmud states (Makkot 7a), “A Sanhedrin that executes a person once in 7 years is considered as murderous. Rabbi Eliezer ben Azariah says once in 70 years.” Hence the Torah specifies capital punishment with the intent to describe the seriousness of the offense in the eyes of Hashem and how far the transgressor has misused the potential of being created in the image of G-d.
Appendix 1 – Exegesis
This appendix describes the different methods of exegesis to find a biblical source for the following:
- Daughter from father (out of wedlock) – prohibition.
- Daughter from father (out of wedlock) – burning.
- Mother in law – Her mother or mother of her father – prohibition and murder.
Daughter from father – Prohibition
The Talmud (Sanhedrin 76a) notes that the Torah does not explicitly forbid relations with one’s daughter born out of wedlock. The verse (Leviticus 18:7), “You shall not uncover the nakedness of your father” refers literally to a relation with his father (Sanhedrin 54a) and makes the son liable to two transgressions for this relation (viz. with a father and a male) in connection with a sin offering. In addition the Torah (Leviticus 18:17), clearly states the prohibition of relations with a daughter born in wedlock, Leviticus 18:17 – “You shall not uncover the nakedness of a woman (i.e. wife) and her daughter.”
The Talmud (ibid.) derives the above prohibition through the following methods of exegesis:
- A fortiori קל וחמר.
- Similar words גזרה שוה.
A Fortiori (All the more so)
Since the Torah explicitly mentions the prohibition of incest with a granddaughter (Leviticus 18:10) all the more so with his own daughter who is a closer relation. However the Talmud objects to this approach because one cannot derive a Torah based punishment through human reasoning (e.g. a fortiori) which may be overturned by logic. Hence the Talmud explains that the derivation is based upon an implicit connection between the daughter and granddaughter and not by logical deduction (i.e. a fortiori). Since a granddaughter is a direct descendant of a daughter it is implicit that the daughter is included in the prohibition of incest.
Similar words (Verbal analogy)
Since the former approach is based upon inference which may be debated, the Talmud (ibid.) uses the 2nd of the 13 principles of expounding the oral law as taught by Rabbi Yishmael (i.e. גזרה שוה – similar words in different contexts). This rule only applies when supported by tradition from Sinai and cannot be used without specific authorization from the sages of the oral law. Where sanctioned, this rule applies even in the Hebrew words are similar but not identical.
The Talmud (ibid.) links verses Leviticus 18:10 to 18:17 through a similar word (הנה) thereby establishing the prohibition for incest with a biological daughter from a daughter of his wife. The verses follow:
Leviticus 18:10 – “You shall not uncover the nakedness of your son’s daughter or your daughter’s daughter… for they are (הנה) your own shame.”
Leviticus 18:17 – “You shall not uncover the nakedness of a woman (i.e. wife) and her daughter. You shall not take (in marriage) her son’s daughter or her daughter’s daughter … they are (הנה) close relatives, it is depraved.”
The former verse explicitly prohibits incest with a granddaughter but not a daughter. The latter verse prohibits incest with both a daughter and granddaughter. Through the common word הנה (they are) the Talmud (ibid.) reasons just as the Torah explicitly prohibits incest with a daughter or granddaughter from his wife so too is incest with a daughter or granddaughter from a father prohibited.
Daughter from father – Burning
The Torah does not explicitly cite a verse for execution by burning for relations with a daughter (i.e. out of wedlock). The Talmud (Sanhedrin 75b) links verses Leviticus 18:17 to 20:14 through a similar word זמה (it is depraved) thereby establishing the punishment of burning for incest with a daughter from her mother to the punishment of burning for incest with a mother in law. The verses follow:
Leviticus 18:17 – “You shall not uncover the nakedness of a woman (i.e. wife) and her daughter. You shall not take (in marriage) her son’s daughter or her daughter’s daughter … they are close relatives, it is depraved (זמה).”
Leviticus 20:14 – “A man who takes a woman and her mother it is depraved (זמה). They shall burn him and them in fire.”
The latter verse explicitly states the punishment of burning for incest with a mother in law but not a daughter. The former verse prohibits incest with both a mother and daughter but does not mention the punishment of burning. Through the common word זמה (it is depraved) the Talmud (ibid.) reasons just as the Torah prohibits incest for both a mother and daughter so too the Torah punishes for incest with a mother and daughter.
Although this analysis establishes the punishment of burning for incest with a mother’s daughter, it does not derive the punishment of burning for incest with a daughter from a father (i.e. out of wedlock). The Talmud (Sanhedrin 76a) uses the above word linkage through the common word הנה (they are) to link incest with a daughter born out of wedlock to a daughter born in wedlock for the prohibition. The Talmud (ibid.) reasons just as incest with a daughter or granddaughter from his wife is punished by burning, so too is incest with a daughter or granddaughter from a father.
Hence this is a two stage derivation based upon the common words הנה (they are) and זמה (it is depraved). In mathematical terms if a=b and b=c then a=c.
Mother in Law –Her mother or mother of her father
In addition the Torah does not mention the prohibition or punishment for incest with the mother of either the mother in law or father in law. Rather the Torah (Leviticus 20:14) only specifies the punishment for incest with a mother in law. Using a word linkage through the common word זמה (depraved) the Talmud (ibid. 75b) compares incest with a daughter to that of a mother in law. Just as the former prohibition spans 3 generation as indicated in Leviticus 18:17, (viz. wife, daughter, and granddaughter from son or daughter) so the latter punishment of Leviticus 20:14 spans 3 generations (viz. wife, wife’s mother, and wife’s maternal or paternal grandmother). In terms of her husband the later three are mother in law and mother of mother in law and mother of father in law) The inclusion of the father in law’s mother is based upon symmetry of these generations (i.e. granddaughter from a son). The word linkage also extends the punishment of Leviticus 20:14 to an implied prohibition. For ease of reference the verses with key word underlined follow:
Leviticus 18:17 – “You shall not uncover the nakedness of a woman (i.e. wife) and her daughter. You shall not take (in marriage) her son’s daughter or her daughter’s daughter … they are close relatives (3 generations), it is depraved (זמה).”
Leviticus 20:14 – “A man who takes a woman and her mother it is depraved (זמה). They shall burn him and them in fire.”
Appendix 2 – Prohibition Involving Excision
Introduction
As discussed above the rebellious sage is not liable to capital punishment unless he rules in a matter that may lead to excision. The Talmud (ibid.) derives the requirement of excision through a verbal analogy, the 2nd of the 13 principles of expounding the oral law as taught by Rabbi Yishmael (i.e. גזרה שוה – similar words in different contexts). This rule only applies when supported by tradition from Sinai and cannot be used without specific authorization from the sages of the oral law.
The Talmud cites the word matter (דבר) of Deuteronomy 17:8 which is in reference to the rebellious sage, “If a matter (דבר) of judgment eludes you” and links it to the word matter (דבר) in Leviticus 4:13, “If the entire community of Israel errs because a matter was hidden from the eyes of the congregation, and they transgress one of the commandments of Hashem thereby incurring guilt.” The Talmud (Horayot 8a) explains that the community of Israel refers to the Sanhedrin of 71 judges and the legal matter refers to a prohibition that involves excision when transgressed willingly and bringing a sin offering when violated inadvertently. Just as this case involves the Sanhedrin and a specialized prohibition so too the rebellious sage involves the Sanhedrin and this type of prohibition.
Direct Excision
The Talmud (ibid.) derives the prohibition of Leviticus 4:13 involving excision and a sin offering from idolatry as the following verses state (Numbers Chapter 15):
- Excision (ibid. 31) – “For he has scorned the word of Hashem and violated His commandment (about idolatry); that soul shall be utterly cut off (i.e. excision).”
- Sin Offering (ibid. 29) – “One law shall apply to anyone who sins inadvertently (in reference to a sin offering as in verse 24)”.
Indirect Excision
In addition to a direct prohibition involving excision, the sage is considered rebellious even if his ruling will eventually lead to a prohibition involving excision. The Talmud Sanhedrin 87a-88a provides several examples of these types of rulings. For sake of brevity the author will discuss only 2 of these disputes:
- Calendar.
- Monetary matters.
Calendar
The Hebrew calendar is based upon both lunar and solar cycles with the months following the former cycle and the festivals (e.g. Passover in the spring and Sukkoth in the fall) the latter. To adjust to the different cycles the Sanhedrin adds an extra month every 2 or 3 years (or more precisely 7 months in 19 years). Hence most years consists of 12 months with leap years at 13 months. If the rebellious sage disagrees with the Sanhedrin about the calendar his determination of Passover could occur one month earlier or later than the Sanhedrin’s ruling leading to a prohibition that involves excision (viz. eating leaven food on Passover – Exodus 12:15).
Specifically if the rebellious sage rules that a given year consists of 12 months but the Sanhedrin rules at 13 months, then according to the sage Passover will occur one month earlier than that of the Sanhedrin. Consequently those follow the rebellious sage end up eating leaven foods on Passover. A similar situation occurs in the reverse with the rebellious sage ruling for a leap year and the Sanhedrin for a regular year. In this case those who follow the sage will observe Passover one month later than the rest of the Israelites and eat leaven foods on Passover. In both cases the ruling of the Sanhedrin is binding for all Israelites.
Monetary Matters
Two parties appear in court to resolve a dispute over a monetary matter. Later the rebellious sage and Sanhedrin disagree about awarding of money. Although a dispute over money does not directly lead to a prohibition involving excision the Talmud (ibid. 87a) finds a case where this dispute could lead to adultery, which is a prohibition involving excision, as follows.
A man can betroth a woman through a gift of money (Kiddushin 2a). Once betrothed the couple are considered as married even though they do not live together (Maimonides Laws of Marriage 1:3). Hence if another man has relations with the betrothed woman it is considered as adultery (ibid.).
If the rebellious sage awards the claimant (plaintiff in legal terms) a sum of money then the claimant can take this money and betroth a woman. If the Sanhedrin disputes this ruling the money awarded to the claimant is in effect stolen from the defendant. Hence betrothal of the claimant is not valid because betrothal with stolen money is not effective (Kiddushin 52b). If the woman, following the Sanhedrin, would accept betrothal from a second man this betrothal is legally binding. If the first man, thinking that he is betrothed to this woman, consummates his assumed betrothal, he would be committing adultery because the Sanhedrin does not recognize his betrothal.
Adultery may also result in the reverse situation where the Sanhedrin awards the claimant a sum of money and the rebellious sage disputes the ruling. In this case the claimant could take the awarded money and betroth a woman. However the rebellious sage does not recognize this betrothal because the money awarded to the claimant is in effect stolen from the defendant. Therefore this sage would allow another man to betroth this woman. If the second man, thinking that he is betrothed to this woman, consummates his assumed betrothal, he would be committing adultery because the Sanhedrin recognized the first betrothal. In this manner one can see far ranging effects of a decision in Halacha from monetary matters to adultery and the compelling need to minimize disputes.