Who by Fire: b. Sanhedrin 50

Today’s page reminds me a lot of the litigation and debate surrounding execution protocols in the United States: three injections, one injection, this chemical, that chemical, the wildcard of bringing back the firing squad, etc. Following yesterday’s daf‘s concerns with the order of things, the sages are hard at work trying to figure out the order of four biblical execution methods: stoning, burning, killing by decapitation, and strangulation. Again, it is important to say that this is a purely academic exercise; at the time these debates took place (if they ever did in an organized fashion), there was no Sanhedrin, and even to the extent that there ever was one, it was not nearly as punitive as the biblical stories the disputes cited. Because the issue is so disturbing and jarring, the conversation comes off as very crass.

The talmudic debate addresses the severity of execution methods as a function of the seriousness of the offense; the underlying logic is that the harsher execution methods must correspond to the more heinous crimes and vice versa. Assorted arguments made in this vein:

• Stoning is more severe than burning, because it is the sentence for a blasphemer, who פּוֹשֵׁט יָדוֹ בָּעִיקָּר (undermines the most basic principle of peoplehood).
• Burning is more severe than stoning, because it is the sentence of a priest’s daughter who committed adultery, whose transgression מְחַלֶּלֶת אֶת אָבִיהָ, profanes her father as well as herself.
• Stoning is more severe, as it is the sentence of an engaged (אֲרוּסָה) adulteress, which is more serious than being a married (נְשׂוּאָה) adulteress.
• Stoning is more severe than decapitation, as it is the sentence of cursers and idol worshippers (who undermine the basic principle of peoplehood).
• Decapitation is more severe than stoning, as it is the sentence for inhabitants of an idolatrous city, whose property is destroyed as well as their lives.
• Counterargument: the instigator of idolatry (הַמַּדִּיחַ) is stoned, while those who are persuaded (הַנִּידָּח) are decapitated, and the former is a more severe transgression.
• Stoning is worse than strangulation, as it is the sentence of cursers and idol worshippers.
• Counteargument: strangulation is worse, as it is the sentence for those who hit their father and mother, whose honor is an analogy to divine honor (הוּקַּשׁ כְּבוֹדָן לִכְבוֹד הַמָּקוֹם).

These arguments raise a few issues. The first is that the punishment logic is circular. It’s fair to argue that the principle of proportionality, as articulated by Cesare Beccaria and considered a fundamental aspect of the fairness edifice of modern law, requires that more heinous behavior be punished more severely. According to this logic, we can debate apriori which the harshest punishment is (by the infliction of pain? by duration? by disgrace?) and then ascribe that to the most serious transgression. But the directional logic here operates in the opposite direction. There doesn’t seem to be the assumption that stoning is worse than, say, burning because stoning is more painful, lasts longer, shames the condemned, etc., but because stoning is prescribed for the more heinous offenders–and if, therefore, stoning is more serious, then it should be prescribed to more heinous offenders. The only way out of this circularity is to remember that the sages are not in the business of making prescriptive law – they are merely interpreting biblical law. So a better way to understand these arguments is this: stoning must have been regarded by the divine, the biblical lawmakers, etc., as the more severe of the punishments, because it was attached to the most heinous behaviors.

The other interesting issue is that the gemara leaves us with no consensus about which offenses are more serious than others. It looks from the language that each expressed viewpoint assumes there’s no other way to see things: because of course idol worshipping is worse than parent hitting, or because of course parent hitting is worse than idol worshipping. But does this really work in real life?

As early as the 1970s, criminologists and legal scholars attempted to figure out how people, communities, nations, calibrate the relative severity of different offenses. As Maynard Erickson and Jack Gibbs explained, the exercise is worthwhile even for those who don’t believe in punishment, and later studies have confirmed that severity scales are useful even for calibrating community corrections and treatment options. It turns out that, to a large degree, people throughout many countries and societies tend to agree that offenses against the person are more serious than offenses against property, and that offenses that endanger the basis of society (betraying king and country) are especially severe. Even within the category of homicide, people seem to share the idea that more malicious/sinister intent makes the crime more severe even if the outcome is the same. There is, however, considerable disagreement about the minutiae. Is it worse, for example, to kill a police officer than to kill another citizen? Some of these questions are left unanswered even if the law has provisions that settle them, and I’m not surprised the Talmud hosts disagreements on that count.

Toward the end, the daf turns to some deeply misogynistic inquiries into the particular execution methods of adulteresses, which we will discuss, and if need be, eviscerate tomorrow.