[MUSIC] In the previous video, we looked at parallel versions of a story and discussed how these materials were once used to tell the larger history of the Jews during the period. Because Rabbinic literature is so vast, and contains so much usable information about Jewish life in late antiquity, it was once common to consider the rabbis' stories as history and Rabbinic history as the history of all Jews in late antiquity. Today, scholars use Rabbinic text, only very skeptically, as sources of broader history. There is a strong awareness of the fact that the rabbis were a small subset of the Jewish population and that much of what they have to say about life should be understood, not as cultural description, but as idealistic fantasy. Rabbinic descriptions of life in their world may describe life as they would have liked it to be, more than life as it actually was. When the rabbis speak about the temple in Jerusalem, for example, their descriptions often do not agree with information called from other historical sources. So scholars conclude that the rabbis have embellished their memories and imagined new possibilities for a future temple, which they would control. The Rabbinic legal system, as an institution, is subject to the same concerns. While some Rabbinic law may have been enacted in real life, much of it, no doubt, reflects Rabbinic hopes for a future society. Rabbinic literature describes a Sanhedrin, which was a Supreme Court that met in the Jerusalem temple, and functioned as both the court of highest appeal, and as a representative body, comprised of talented judges from all over Israel. But documents from the first century provide no evidence that such an institution historically existed, which is not to say that it isn't worthy of consideration, quite the opposite. In recognizing that the Sanhedrin is an idealized institution, we can more comfortably credit the rabbis for the ideas it embodies. The Mishneh asserts that the Sanhedrin exists both inside and outside Israel. This statement cements the fact that we are dealing with a rabbinically, imagined institution. Since even the rabbis of the Tamid, who sometimes talk historically about the travels of the Sanhedrin after the destruction of Jerusalem, never claimed that the Sanhedrin left the country. An anonymous voice opens by saying that a Sanhedrin that kills once in a seven year period would be labeled a decimator. Then, a series of Tannaim add their own opinions on the death penalty. Rabbi Elazar Ben Azaryah says, one that killed once in seventy years. Rabbi Tarfon and Rabbi Aquiba say, if we had been in the Sanhedrin, no one would ever have been killed in it. The rabbis of the Mishneh lived in a Roman society in which people were executed by imperial authorities. The rabbis, on the other hand, had no authority to execute. The Mishneh represents a game of can you top this, in which each view is more aggressive than the next in establishing that the court should not execute. Once in seven years gives away to once in 70 years, which gives way to never. While much of Rabbinic criminal law discusses the nuts and bolts of crimes and punishments, including execution, this text reflects on execution as a practice, and despite the overwhelming number of cases that would seem to demand capital punishment, according to Rabbinic law, the rabbis represented here, strongly opposed actual execution. It is possible that these Rabbinic views represent a commentary on the real imperial executions, which they would have regularly witnessed, however, the Mishneh mentions another rabbi, who disagrees with the anti-execution stance of his colleagues. Rabban Shimon Ben Gamaliel says, they too would increase shedders of blood in Israel. Rabban Shimon Ben Gamaliel differs with the other rabbis, when he comments that the failure to execute would lead to a proliferation of murderers in Israel. The implication of his statement is that a justice system that is unwilling to carry out the death penalty would not provide a sufficient deterrent to criminals. This critique draws attention to the ease with which the rabbis can privilege mercy as an ethic over justice within an entirely idealized system. Were they to actually control real justice? The rabbis would need to punish or risk the proliferation of murderers. The Talmud's treatment of this Mishneh feels insufficient, if not wrong. Where the Mishneh had spoken hyperbolically out of an ethical sensibility, the Talmud treats the Mishneh as if it had spoken technically, as if it had articulated a simple legal case in need of clarification. Against the clear trajectory of the Mishneh's ratcheting up the ethical stakes, the Talmud gets technical in suppressing Rabbi Elazar Ben Azaryah. Once in 70 years is called a decimator, or perhaps that is the normal way? Rabbi Elazar had commented on the statement of, once in seven years is called a decimator, with the statement, once in seventy years. However, Rabbi Elazar did not explicitly say, once in 70 years is a decimator. The Talmud seizes on Rabbi Elazar's decision not to repeat the label decimator, to ask whether Rabbi Elazar did not mean to label such a court a decimator at all, but to claim that once in 70 years is normal. The Talmud leaves the question of Rabbi Elazar's statement unresolved. With respect to Rabbi Aquiba and Rabbi Tarfon, who say that they would never have killed a defendant, the Talmud puzzles over the technical question of method. How would Aquiba and Tarfon circumvent the legal requirements to execute? Drawing upon statements attributed to later rabbis elsewhere in the Talmud, the Talmud suggests that they would have found technical workarounds, unless never convict in capital cases. Whether the Talmud is restricting the meaning of Rabbi Elazar to reduce its hyperbole, or forcing Rabbi Aquiba and Rabbi Tarfon to explain their pragmatic strategies for not executing, the Talmud here consistently suppresses the Mishneh's homily. Where the Mishneh's views, other than Rabban Shimon Ben Gamaliel, compete to hyperbolically oppose execution, the Talmud processes that hyperbole and makes it subservient to the larger goals of legal precedent. This may not have been conscious. But the Talmud's interpretations effectively reduced the hyperbolic message of the Mishneh. The Mishneh was shouting no executions, and the Talmud forces it to accept executions and justify exonerations, according to legal procedures. The rabbis were idealists, who had the luxury of being ethically extreme on behalf of capital defendants, since they did not actually have the power to execute anyone. And quite possibly their ethical stance was a critique of the true powers and their too-quick legal executions. But the rabbis were also producing a rich set of rules, with the expectation that the rules should mean what they say. And so you find a voice in the Mishneh disagreeing with the overly merciful impulse on the basis of its potentially destructive consequences. In the Talmud, the ethical hyperbole is subsumed into the larger system by producing its content as the result of technical exceptions. Engaged as it is in the in-depth discussion of the legal materials as a system, the Talmud cannot allow the hyperbole to exist outside the system. So it brings the rabbis' ethical commentary into the Talmudic legal framework through a process of interpretation. [MUSIC]
