Tuesday, April 20, 2010

Tuesday's Thoughts on the Daf - Sanhedrin 67

Sanhedrin 67 continues the discussion of acts which earn the death penalty under Jewish law. I would like to focus on one of the actors in this post.

It is well established in halacha that for the purposes of testimony in court, there is a requirement that two witnesses must observe the act for which the testimony is offered. Additionally, there is a general principle that a person who is subject to the death penalty must have been warned by the witnesses prior to his actions.

With these concepts in mind lets look at the mishna on Sanhedrin 67a. The mishna first discusses a meysis - a person who attempts to convince others to worship idols. The mishna states that while all other types of actors who are subjected to the death penalty cannot be entrapped, the meysis can be entrapped. The mishna offers the example of a meysis who has made his incriminatory statement in front of one witness. Since the meysis cannot be put to death based on the testimony of only one witness, the witness then sets up the meysis by hiding additional witnesses behind a fence. The witness then tells the meysis - repeat what you had said previously to me. Once the meysis has repeated his statement, the witness then states to the meysis - how can we abandon Hashem? If the meysis recants, then all is good. However if he continues to advocate for avodah zara he is taken out and killed.

Further down the daf, the gemara on Sanhedrin 67a repeats the above scenario with some minor differences. The original witness lures the meysis to a lit inner chamber and prearranges to have the additional witness observe from the dark outer room. Rashi explains that the witnesses need to actually see the meysis rather than just hear his testimony as otherwise he can argue that he was not the person who was overheard by the witnesses. The rest of the example mirrors the mishna's scenario as the witness gives the meysis the opportunity to recant and only if he continues to proselytize is he subjected to the death penalty.

During our daf session we debated whether the opportunity to recant was a type of due process protection where the meysis is at least forewarned that his speech was improper. The problem with this explanation is that the meysis is not given any form of warning prior to being subjected to the death penalty if he initially proselytizes before two witnesses.

One of the members of our group offered the explanation of the Yad Ramah (cited in an Artscroll footnote) that the meysis must initiate the topic of conversation in order to be subjected to the death penalty. As such, the single witness (after first evoking a repetition of the prior statement) opens the floor for a new statement by suggesting that the meysis should not act in this manner. When the meysis offers new argument, he has signed his own death warrant.

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1 comment:

Yaakov said...

Rabbi Elefant brought a similar case of witnesses being outside a buyer and seller shook hands by the selling of a property but the witnesses were outside is it a kosher sale the Ketzos says the witnesses need to be inside the Nesivos argues and says they can be outside hearing is good enough