[Avodah] The impracticality of Torah criminal law

[Micha Berger]

On Sun, Feb 02, 2025 at 05:32:31PM +0200, Marty Bluke via Avodah wrote:
> After learning the first 45+ dapim of Sanhedrin it is patently clear that
> it's absolutely impossible to convict anyone of a crime in a Beis din. The
> rules of evidence and the need for hasraah toch kdei dibbur make it
> virtually impossible to convict anyone. The Ran in derasha 11 famously
> writes that there was a parallel justice system run by the king which was
> more practical...

REMT z"l chimed in when I raised a similar question during bayis sheini.
With no (legitimate) melekh in the picture. Or would the Ran say that
despite the illegitimacy of the Chashmonaim's melukhah, they would still
have the duty of creating a civil law...

My suggestion about what was done in the last days of Bayis Sheini, to
which REMT objected as being too much guesswork without enough basis:

We know that they had kippot. Which in general were used as jails before
trial. Although in cases where a proven murderer couldn't get the
mandated death sentence (like a lack of eidus or hasra'ah), they would
administer a death penalty there. (Sanhedrin 81b, Rambam Hil' Rotzeiach
4:8)

So a kippah can be used to administer a prison sentence too.

So I wondered out loud about how other people dangerous to society were
treated. Not necessarily murderers. Perhaps most dangerous criminals
ended up in prison.

We talk about the on-the-job-training that a thief leased into avdus
can get. But what about the thief who is such a repeat offender no one
would rent him?

Why is there at most hints to this in the gemara? Because the gemara is
dealing with Torah mandated penology, and this is by definition outside
the kind of thing Ravina and R Ashi set out to codify.

As I said, REMT thought I was just being too fanciful. Less about
the existence of civil law, because there are examples of that from
autonomous communities centuries after the end of semichah. Including
death penalty. More about the idea that Chazal were okay with imprisonment
in particular.


> 1. The parallel justice system is not described anywhere, not in the
> written Torah and not in the oral Torah. Why not? Do we have any idea what
> the rules were?

Tzedeq tzedeq tirdof and other such phrases that become platitudes are
about having justice in general.

And if it's one of the 7 Mitzvos Benei Noach, wouldn't we be obligated too?

> 2. The ran writes that the kings justice system was to fill in the gaps.
> However, in truth it seems to me that it would have to have been the main
> system as the Torah system could never punish anyone. Why would the Torah
> create a justice system that is never used?

To teach an inculcate values.

Tir'u baTov!
-Micha

-- 
Micha Berger                 The fittingness of your matzos [for the seder]
http://www.aishdas.org/asp   isn't complete with being careful in the laws
Author: Widen Your Tent      of Passover. One must also be very careful in
- https://amzn.to/2JRxnDF    the laws of business.    - Rav Yisrael Salanter