Fleeing Justice: b.Sanhedrin 71

In keeping with the general theme of this sugiyah, today’s page features four Gemaraic takes on Mishnaic rules designed to narrow the unpalatable rebellious son rule as much as possible. The trend remains the same: the Mishna narrows the rule in the Torah, and the Gemarah narrows it further.

The first rule has to do with a son who steals:

מַתְנִי׳ גָּנַב מִשֶּׁל אָבִיו וְאָכַל בִּרְשׁוּת אָבִיו, מִשֶּׁל אֲחֵרִים וְאָכַל בִּרְשׁוּת אֲחֵרִים, מִשֶּׁל אֲחֵרִים וְאָכַל בִּרְשׁוּת אָבִיו – אֵינוֹ נַעֲשֶׂה בֵּן סוֹרֵר וּמוֹרֶה עַד שֶׁיִּגְנוֹב מִשֶּׁל אָבִיו וְיֹאכַל בִּרְשׁוּת אֲחֵרִים. רַבִּי יוֹסֵי בְּרַבִּי יְהוּדָה אוֹמֵר: עַד שֶׁיִּגְנוֹב מִשֶּׁל אָבִיו וּמִשֶּׁל אִמּוֹ.

The gemara explains the two relevant factors: the difficult of going through with the theft and the extent to which fearing apprehension will deter the son from further crime. This, by the way, is straight out of the playbook espoused today by situational crime prevention experts. In their work on routine activity theory, Cohen and Felson say that the likelihood that crime will be committed is a function of the convergence in time and place of three factors: likely offenders, suitable targets, and the absence of capable guardians against crime. Assuming that our kid is a bad ‘un, what remains is to make the target less accessible and the guardian more potent. Accordingly, stealing from your father is easy, but eating on your father’s property puts you in fear of your dad catching you and will thus discourage you from reoffending. Stealing from others is difficult, but if you eat it on your father’s property, you still could be frightened into going straight. Stealing from others is hard to do, and thus daunting. So, it is only the son who steals from his father and eats it elsewhere who counts are rebellious.

A further limitation requires stealing from both parents. Presumably, whatever the mother has belongs to the father (ugh), so the rebellious son gets dinged for stealing from a meal prepared to both of them (to purchase himself the aforementioned cheap meat and wine), or from stealing from property designated as belonging to the mother only.

The second rule requires both parents to be on board with declaring their son a rebellious one:

מַתְנִי׳ הָיָה אָבִיו רוֹצֶה וְאִמּוֹ אֵינָהּ רוֹצֶה, אָבִיו אֵינוֹ רוֹצֶה וְאִמּוֹ רוֹצָה – אֵינוֹ נַעֲשֶׂה בֵּן סוֹרֵר וּמוֹרֶה עַד שֶׁיְּהוּ שְׁנֵיהֶם רוֹצִין. רַבִּי יְהוּדָה אוֹמֵר: אִם לֹא הָיְתָה אִמּוֹ רְאוּיָה לְאָבִיו, אֵינוֹ נַעֲשֶׂה בֵּן סוֹרֵר וּמוֹרֶה.

The gemara goes further than that: they start off by trying, for size, the idea that if the parents aren’t a good match from a halakhic perspective then they can’t be on board with each other. Then again, one might have parents who are not married to each other and nevertheless both on board with declaring him rebellious. So, the gemara argues that the parents have to be on par with each other, so that their uniform declaration ״אֵינֶנּוּ שֹׁמֵעַ בְּקֹלֵנוּ״ (“he doesn’t listen to us”) sounds homogenous. So, they have to have a similar voice, visage, and height מִדְּקוֹל בָּעֵינַן שָׁוִין, מַרְאֶה וְקוֹמָה נָמֵי בָּעֵינַן שָׁוִין.

If you think, “this is ridiculous! They’re just finding any excuse to ensure that no one gets labeled rebellious,” you’re absolutely right, and they are aware of it and say so explicitly: בֵּן סוֹרֵר וּמוֹרֶה לֹא הָיָה וְלֹא עָתִיד לִהְיוֹת – a rebellious son has never existed and will never exist. This rule, they say, exists just for the sake of learning it–same as the Draconian rule about destroying idolatrous cities. The funny thing is that one rabbi, Rabbi Yonatan, is not on board with the rest, and says, “I saw a rebellious son’s grave once.” Then, when they all exclaim that an idolatrous city also cannot exist, he pipes up again saying, “I saw one once.” Rabbi Yonatan reminds me of the sole “non-individual” in this immortal Life of Brian scene:

The third rule creatively interprets the biblical text to exclude sons of people with various disabilities:

מַתְנִי׳ הָיָה אֶחָד מֵהֶם גִּידֵּם, אוֹ חִיגֵּר, אוֹ אִלֵּם, אוֹ סוֹמֵא, אוֹ חֵרֵשׁ – אֵינוֹ נַעֲשֶׂה בֵּן סוֹרֵר וּמוֹרֶה, שֶׁנֶּאֱמַר: ״וְתָפְשׂוּ בוֹ אָבִיו וְאִמּוֹ״ – וְלֹא גִּדְמִין, ״וְהוֹצִיאוּ אֹתוֹ״ – וְלֹא חִגְּרִין, ״וְאָמְרוּ״ – וְלֹא אִלְּמִין, ״בְּנֵנוּ זֶה״ – וְלֹא סוֹמִין, ״אֵינֶנּוּ שֹׁמֵעַ בְּקֹלֵנוּ״ – וְלֹא חֵרְשִׁין. .

Let’s recap: since the biblical rule requires the parents to (1) catch the son, (2) take him out, (3) speak up and say (4) “this is our son… (5) he doesn’t listen to us” they must have all their limbs in good functioning order, they must be able to speak, see, and hear. If this strikes you as silly, remember the end goal: to make sure the rule is unenforceable.

In the extremely unlikely event that some unlucky rebellious kid does face the court, the mishna specifies the procedure to follow:

מַתְרִין בּוֹ בִּפְנֵי שְׁלֹשָׁה, וּמַלְקִין אוֹתוֹ. חָזַר וְקִלְקֵל – נִדּוֹן בְּעֶשְׂרִים וּשְׁלֹשָׁה, וְאֵינוֹ נִסְקָל עַד שֶׁיְּהוּ שָׁם שְׁלֹשָׁה הָרִאשׁוֹנִים, שֶׁנֶּאֱמַר: ״בְּנֵנוּ זֶה״ – זֶהוּ שֶׁלָּקָה בִּפְנֵיכֶם.

The kid gets warned before two people, then flogged before three (which is a legal court). The sages deduce this flogging process–akin to the 1980s practice of administering a “short sharp shock” or what today’s probarion officers call “flash incarceration” to scare people straight–from a similar procedure prescribed in the bible for defamers. If the kid recidivates, he is to face justice before 23 judges, including the former three, and identified again by the parents.

The fourth rule has to do with a kid who flees his trial for rebelliousness before reaching puberty :

מַתְנִי׳ בָּרַח עַד שֶׁלֹּא נִגְמַר דִּינוֹ, וְאַחַר כָּךְ הִקִּיף זָקָן הַתַּחְתּוֹן – פָּטוּר. וְאִם מִשֶּׁנִּגְמַר דִּינוֹ בָּרַח, וְאַחַר כָּךְ הִקִּיף זָקָן הַתַּחְתּוֹן – חַיָּיב.

In the two prior pages, you’ll recall, the sages tried to limit the application of the rebellious son doctrine to teenagers within a rather narrow timeline of their maturation process. The situation covered here is of a kid who was still within that range but not yet found guilty and managed to run away. If that kid is found afterwards, when they are beyond the allowed age range, he will have successfully escaped the law. However, if there’s a verdict already and then the kid runs, he will face justice after he is apprehended. The analogy proposed by Rabbi Hanina is of a gentile who curses God and later converts to Judaism. הוֹאִיל וְנִשְׁתַּנָּה דִּינוֹ, נִשְׁתַּנֵּית מִיתָתוֹ (as his legal situation has changed, his fate changes as well). The analogy is not perfect, but the idea is that once the verdict is pronounced, the rebellious son is already a dead man and thus cannot escape his fate.

This principle reminds me a lot of the distinctions made between substantive and procedural new law for the purpose of retroactivity. If, for example, a new law exempts a category of people from punishment (e.g., no more death penalty for juveniles), it acts retroactively. If the change is merely procedural (e.g., new wrinkle to jury selection), it only operates prospectively. And if the case is final, generally speaking, new rules will not apply nor will they be announced.