SH’LACH L’KHA (third part)
Bemidbar 15:8 - 15:41
Plaut 1119-1122; Hertz 631-634; Eitz Hayim 851-855
The third part of Sh’lach L’kha comes right after the discouraging report of the Israelite spies about the strength of the existing inhabitants of Canaan. Despite God’s promise that the Israelites would be successful in their attack, they failed to take advantage of this opportunity. In disgust at their lack of faith, God is prepared to dispense with the Israelites, but, as so often before, Moses induces a change of mind, and God merely condemns all the adults other than Caleb and Nun to die in the wilderness.
What comes next is a chapter that seems designed to cover miscellaneous issues that had been neglected to now, including sacrifices to mitigate sins made in error, repeated emphasis about equal laws for Israelite and non-Israelite residents, and instructions about the tallit that we read every day in the morning and evening services. In the midst of all this are five short verses (15:32-36) about a man who was put to death for gathering wood on shabbat. My d’var will focus on those verses within the larger issue of capital punishment. I will focus on text in the Torah and only at the end refer to later Talmudic discussions that practically eliminate the possibility of applying a death sentence. Let’s start with the text:
Once, when the Israelites were in the wilderness, they came upon a man gathering wood on the sabbath day. Those who found him as he was gathering wood brought him before Moses, Aaron and the whole community. He was placed in custody, for it had not been specified what should be done to him. Then the Lord said to Moses, “The man shall be put to death: the whole community shall pelt him with stones outside the camp.” So the whole community took him outside the camp and stoned him to death– as the Lord had commanded Moses.
There is little commentary on this passage, not even in A Modern Commentary by Plaut nor A Women’s Commentary by Eskenazi and Weiss, both of which seem to delight in finding ethical issues in the text. Let us therefore start with a general question: Does the Bible condone capital punishment? Yes, It does. The Bible Now by Friedman and Dolansky (2011; hereafter F&D) identifies 25 specific instances where the text says that a person doing XYZ is guilty of a capital crime1 – mainly for murder, kidnaping, or selected ritual or sexual offenses; but not for manslaughter nor for property crimes. Distinguishing murder from manslaughter is common in ancient law codes, but distinguishing personal from property crimes was a major advance in criminal law. This list of 25 crimes excludes numerous other times where that the text says that someone should be cut off from his people or otherwise punished by God, not by a human court.2
The guilt of the man gathering wood on shabbatt is clear. Shemot 31:14 reads, “You shall keep the sabbath, for it is holy to you; he who profanes it shall be put to death . . .” Among other reasons, the Torah argued that the death penalty will “put away evil from your midst, and all Israel will hear, and fear” (Dvr 21:21). Though not developed until post-Biblical times, the rules for conviction also seem to be satisfied in this case. The plural “They came upon” indicates that there were at least two face-to-face witnesses, and, as required by Dvr 17:7, they seem prepared to head the execution squad.
So what is special about this passage, and why is it even there in the Torah? Most chumashim give a simple answer to this question. In the early years of Israelite nation-hood, it was important to be clear about which punishment went with which crime, and God’s answer for violations of shabbat is stoning.3 However, on further exploration this answer turns out to be weak. According to the Talmud (TB San. 7:1), courts have four means for putting a person to death: sword, strangling, burning, and stoning. But only two methods are mentioned in the Bible: stoning and burning, and stoning appears to be the default option. Burning was probably just used after death by stoning as a public demonstration that evil is being purged from the land, which is why it only seem to apply to sexual crimes (Wigoder, 151). Prison, as we understand the term, is never mentioned in the Bible (F&D, 140-145). Therefore Moses really has no need to ask God about which punishment to impose – he only has one option – and, indeed, he does not ask. Nevertheless, God intervenes to tell him to have the man stoned.
What is going on here? Why does God step in at this point? This is the one of only two time in the Torah that God is directly involved in condemning someone to death.4 Further, God does not just act as judge and jury, but also insists that the whole community participate in the stoning and thus share responsibility for the man’s death. I found no direct answer to the question about God’s intervention, so I had to work one out for myself. However, before I can do so, I must digress to deal with a question that the rabbis did ask: Why are these five verses placed at this point in the Torah, so long after descriptions of the Sinai experience, which is when most commentators think they occurred? The most common answer is that the text is gathering together comments on disobedience. Some verses before the story of the man gathering wood is one about how the Israelites were beaten when they fought the Canaanites without God’s endorsement. And almost immediately afterwards is the destruction of Korach’s band of rebels against Moses’ leadership. This explanation is also weak. Not only do other topics, such as fringes, appear in the text, but also the sequence of perpetrators is awkward – from national to individual to familial.
I suggest that a better explanation of why these verses appear here and why God has to intervene stems from the preceding text, which is mainly about how to gain expiation for sins committed by accident. Then, just before the story about the man gathering wood on the sabbath are two verses (15:30-31) that talk about someone who sins defiantly (literally, “with upraised hand”) and spurns God’s commandments. However, instead of some resounding punishment for such an act, the text merely says that the “person shall be cut off–he bears his guilt.” No earthly punishment at all. Certainly the man gathering wood on the sabbath was defiant. He had presumably heard only a week or two before that no fire was to be made on the sabbath (Shm 35:3), and why else would he be gathering wood. The problem is that we now have a conflict between two laws: a general law that a person who acts in brazen defiance of God’s law shall certainly be “cut off” (תרכת תרכה), and a specific law that violation of the sabbath incurs the death penalty. Therefore, God needs to step in with the clarification that some specifically cited ritual sins do still carry the death penalty no matter what the circumstances.
The rabbis raise yet another question: Who was the man out there collecting wood? I do not know why this question even needs an answer, but the one that the rabbis came up with was that it was Zelophehad, which explains the plea of his four daughters to Moses later in the text that they should not be left without an inheritance just because their father had no sons. Nothing in the Bible suggests Zelophehad’s guilt, so this answer is rather like connecting dots that aren’t there. But perhaps there are dots. Perhaps those who suggested that it was Zelophehad gathering wood were trying subtly to emphasize that, contrary to other law codes of the time, families are not collectively responsible for crimes committed by someone in the family. As stated (Dvr 24:16), “The fathers shall not be put to death for the children, neither shall the children be put to death for the fathers; every man shall be put to death for his own sin.” Why else would Zelophehad’s daughters say of their father that he did not link himself to Korach “but died for his own sin” (Bmd 27:3) – with the word for sin (ואטח) in the singular.
Let me conclude by going on briefly to Talmudic legislation. As Etz Hayim points out 854, d’rash), efforts were later made to soften the link between violations of the sabbath and the death penalty, a change for which most of us can be thankful. However, the larger point does not stems from any specific Talmudic response but from the collective body of halachic principles and aggadic comments in the Talmud. Together, they have been described as sufficient, “to view the talmudic circumscription of capital punishment as a de facto reversal of biblical legislation” (Wigoder, 52). Of course something between 500 and 1000 years passed between Biblical and Talmudic legislation, and, by the time the Talmud was being composed, there was little likelihood of a Jewish state with courts able to enforce the death penalty. Still, the kind of reasoning that allowed the classical rabbis to reverse so important a principle as capital punishment is a remarkable demonstration of the vibrancy of Jewish lawmaking in the post-Biblical period.5 It is just the sort of leadership to which the late David Hartman was referring when he said, “the very purpose of halakha is to take one beyond halakha (cited in The Jerusalem Report, 25 March 2013, p. 28).
Various chumashim plus:
Berlin, Adele, and Marc Zvi Brettler, editors (2004). The Jewish Study Bible. Oxford, UK: Oxford University Press.
Friedman, Richard Elliott, and Shawnah Dolansky (2011). The Bible Now. Oxford, UK: Oxford University Press.
Wigoder, Gerald, editor in chief (1989). The Encyclopedia of Judaism. Jerusalem: The Jerusalem Publishing Company.
1. As with most such lists in the Bible, the counting and the divisions into groups are open to question. For example, if desecration of the sabbath is subject to the death penalty, should one count working on the sabbath as a separate sin or merely a specification of desecration. (F&D count them as two separate cases.)
2. Space does not permit me to introduce F&D’s suggestion that the first book of the Bible has verses that indicate that murder is to be judged by God, not by human beings, and that nothing but murder requires a death penalty. See F&D, pp. 133-37.
3. In one of their few weak arguments, F&D (p. 138) suggest it is not the punishment that is unclear but the definitions of work and of desecration. They go on to say that the whole process illustrates the “principle” that “if a society uses capital punishment, there must be careful, deliberate inquiry, to avoid an error that cannot be undone.” However, for me, this is just what is absent in an appeal to the divine.
4. The other time occurs in Vyk 24 10-23, where a man “pronounced the Name in blasphemy.” With one exception, the process is the same – the man is put in custody, brought to Moses, and at the Lord’s instructions executed by stones thrown by the whole community. However, in contrast to the man gathering stones, in this case Moses asks God for instructions and God responds – rather more carefully this time. He tells Moses to tell the Israelite people that, if a man blasphemes, his God shall bear his guilt (that is, punishment is to come from heaven, not from human beings) but if he uses the name of the Lord, he shall be put to death by stoning.
5. Encyclopedia Judaica notes that, later in history, as in Spain, when Jewish communities were once again given legal power, they not only re-instituted capital punishment but added to the list of crimes, notably making informers subject to the death penalty.
6. It is striking how many commentaries and chumashim have no entry for either capital punishment or death penalty. Perhaps it is an embarrassing subject for Jewish scholars.