בס”ד

I heard that the court may administer lashes and capital punishment, even when not required by Torah law.
– Sanhedrin 46a

Makin Veonshin Shelo Min Hadin:

The authority of a court to deviate from the law when circumstances demand it.¹

There may be situations where a judge must issue a ruling that goes against the law:

There are several cases in the Talmud where individuals were given punishments they would not have received under standard legal regulations. In these instances, the court exceeded its usual authority and acted contrary to established rules.

This principle is explicitly stated and appears multiple times throughout the Talmud.

In the Talmud

The primary source for this principle is a Baraita² quoted in the Talmud (Sanhedrin 46a, and Yevamot 90b):

It is taught in a baraita: Rabbi Eliezer ben Ya’akov says: I heard that the court may administer lashes and capital punishment, even when not required by Torah law. And they may not administer these punishments with the intention of violating the statement of the Torah, i.e., to disregard the punishment stated in the Torah and administer another punishment; rather, they may administer these punishments to erect a fence around the Torah, so that people will fear sinning.³

This principle is also cited in the Jerusalem Talmud, Chagigah 2:2, albeit with slight variations. In the Babylonian Talmud, Rabbi Eliezer ben Ya’akov⁴ is quoted as saying, “I have heard that the court may administer lashes and punish not by Torah.”⁵ In the Jerusalem Talmud, however, he is quoted as saying, “I heard that one punishes not according to practice and punishes not according to Torah.”⁶

Following this Baraita, the Jerusalem Talmud poses the question: “How far?” – meaning, to what extent can the court deviate from regular legal proceedings? A dispute follows: Rabbi Eleazar ben Rabbi Yose argues that the court may act based even on mere hearsay,⁷ while Rabbi Yose argues that punishments must still be based on the testimony of witnesses. However, he maintains that prior legal warnings – typically required for an act to be considered criminal – are not necessary in such cases.

Similarly in Megillat Ta’anit⁸ (Elul) Rabbi Eliezer ben Ya’akov is quoted as saying, “I heard that the court administers lashes and kills not by Torah,”⁹ It then presents an alternate version of this statement in the name of Beit Levi (the House of Levi): “I heard that the court administers financial penalties and ‘hit’ (physical penalties) not by Torah.” The Megillat Ta’anit adds that this is done not because the Torah explicitly commands it, but because it states: “Thus you will sweep out evil from your midst.”¹⁰

The aforementioned sources go on to present cases where the court deemed it necessary to exercise excessive force, surpassing its usual legal authority.

And an incident occurred involving one who rode a horse on Shabbat during the days of the Greeks,¹¹ and they brought him to court and stoned him, not because he deserved that punishment, as riding a horse on Shabbat is forbidden only by rabbinic decree, but because the hour required it, as people had become lax in their observance of Shabbat and therefore it became necessary to impose the severe punishment for a relatively minor offense. Another incident occurred involving a man who engaged in intercourse with his wife in public under a fig tree,¹² and they brought him to court and flogged him,¹³ not because that punishment was fitting for him, as such conduct is not forbidden by the Torah, but because the hour required it. People had become remiss in matters of modesty; therefore, stringent measures had to be taken to rectify the situation.¹⁴

The Talmud justifies these unlawful verdicts by stating that “the hour required it.” Similarly in Yevamot 90b, the Talmud refers to it as “safeguarding.” This establishes a precedent for the legitimacy of ad hoc decisions within Jewish law.

Examples of unlawful verdicts in the Talmud and Jewish law

The Talmud in Sanhedrin 58b recounts a striking case in which Rav Huna severed a man’s hand as a punishment for repeatedly assaulting others:

Reish Lakish says: One who raises his hand to strike another, even if he ultimately does not strike him, is called wicked… Rav Huna says: His hand should be cut off, as it is stated: “And the high arm shall be broken” (Job 38:15). If one habitually lifts his arm to strike others, it is better that it be broken. The Gemara relates that Rav Huna cut off the hand of a person who would habitually hit others.¹⁵

Similarly in Niddah 13b:

With regard to anyone who raises his hand upon another, his hand should be severed, and Rav Huna indeed acted accordingly and severed the hand of an offender?

While some sources suggest that Rav Huna may have ordered the man to pay the monetary value of his hand rather than physically severing it,¹⁶ the traditional interpretation maintains that he actually cut it off. This case appears to be an example of a court imposing a sentence beyond the standard punitive measures, applying the principle of “makin veonshin shelo min hadin.”¹⁷

This carries halachic significance, in Shulchan Aruch HaRav (Nizkei Mamon 6) the Talmudic ruling is presented as a possible approach to addressing someone who habitually strikes others.¹⁸ Likewise, the Vilna Gaon, among others,¹⁹ cites this ruling in his commentary on Shulchan Arukh (Even Haezer 154:9) and asserts that it should apply even more so to one who repeatedly strikes his wife.

There was an incident in Córdoba involving Judge Yitzchak ben Nachmanish, who ruled to seize a sum of money from Meir ben Magish for unpaid taxes. In retaliation, Meir physically assaulted the judge on his way to the synagogue at night – striking him on the shoulder, tearing his garment, and then hitting him again in the face, even cutting his lips and beard.

Lacking acceptable witnesses, the community sought guidance from Rabbi Judah ben Asher, then a rabbi in Toledo. In his response (Zikron Yehudah 79), Rabbi Judah ben Asher advised that, despite the absence of proper witnesses, the assailant should still be punished. He referenced precedents for extrajudicial punishment when necessary and concluded that while the offender should not be executed, he would support cutting off both of his hands. He further noted that, after consulting with local rabbis, they agreed that their own court would impose such a penalty if a similar incident occurred in their jurisdiction.

Similar rulings can be found in the responsa of Rabbi Asher ben Jehiel, the father of Rabbi Judah ben Asher.

One particularly notable ruling by Rabbeinu Asher appears in Teshuvot HaRosh 17:8.²⁰ In this case, the leaders of the Jewish community in Córdoba sought his guidance on punitive measures for a man who had “cursed and blasphemed against his king and his God.” In their inquiry, they noted that although the blasphemy was spoken in Arabic, they still considered it blasphemous: “since the Arabic noun constitutes blasphemy… and also in order to create a safeguard on this matter that will not be breached by wicked simpletons casting insults toward the One above.” They also admitted character evidence against the man, stating: “This man has long been a tough evildoer. There is no one in the city who speaks positively of him, and he has violent horsemen propping him up.” After deliberation, ten esteemed community members, along with local scholars and city elders, agreed that he should be punished. The Jewish community coordinated with local authorities to keep him imprisoned until Rabbi Asher ben Jehiel provided a ruling.

In his response, Rabbi Asher ben Jehiel stated that they could not impose the death penalty. However, he added:

Yet I see that you all consent to eliminating this evil from your midst. He has certainly desecrated God’s name publicly, and it has been heard by the Ishmaelites, who are very harsh against those who speak against their religion and their faith. This desecration will be exacerbated if we do not take lawful action/vengeance against him, as a safeguard… Similarly, to create a safeguard, they stoned [to death] someone who rode a horse on Shabbat. So too, it is proper to sanctify God’s name by eliminating this wicked man.

Rabbi Asher then proposed a specific punishment:

Do to him as you see fit. Had I been present at your meeting, I would have been inclined to the view that his tongue should be pulled from his mouth and most of it, the part necessary for speech, cut off. His lips would thus be muted. In this way, the punishment meted out would fit his deed. This is the well-known sort of justice that we see with our own eyes each day. Yet do with him as you fit per this matter.

In a separate incident, Rabbi Asher ben Jehiel received another letter seeking his counsel on punitive measures. This case involved a widow who had engaged in an illicit relationship with a non-Jewish man, resulting in pregnancy and the transfer of most of her wealth to him. The letter also mentioned that she had a daughter who had already been taken by non-Jews and converted out of Judaism, as well as a son who had passed away.

The community voiced concerns about the risk of her converting out and the preservation of the dignity of the Jewish faith. Despite the absence of sufficient legal evidence and the proposed punishment falling outside the standard judicial framework, they recommended cutting off her nose. They justified this by citing Talmudic precedent, referencing the previously mentioned cases where extrajudicial punishments were administered – for riding a horse on Shabbat or engaging in intercourse under a fig tree.

In his response, recorded in Teshuvot HaRosh 18:13, Rabbi Asher ben Jehiel affirmed their judgment and approved their proposed ruling.

The Talmud in Sanhedrin 27a recounts a notable ruling issued by an Exilarch:²¹

…as that incident occurred in which a man named bar Ḥama killed a person. The Exilarch said to Rav Abba bar Ya’akov: Go investigate this case, and if he certainly killed him, let them put his eyes out.²²

We do not find precedent for such a ruling in Jewish law, so it is reasonable to assume that the Exilarch exercised his authority to rule beyond the law.²³

The Mishnah in Sanhedrin 6:4 states:

…And the Rabbis say: the corpse of a man is hung, but the corpse of a woman is not hung. Rabbi Eliezer said to the Rabbis: Did Shimon ben Shataḥ not hang in Ashkelon women who were found guilty of witchcraft, proving that the corpse of a woman who is executed is also hung? They said to him: No proof can be brought from here, as he hanged eighty women on that day, and the halakha is that the same court may not judge even two people charged with capital transgressions on the same day. ^{[It is therefore clear that he was not acting in accordance with Torah law, but rather his execution of the eighty women was an extraordinary punishment necessitated by unusually pressing circumstances.]}²⁴

The Jerusalem Talmud, Sanhedrin 6:6, recounts an intriguing story associated with this incident. It describes how Shimon ben Shataḥ proved that these 80 women were witches by lifting them off the ground, rendering them unable to perform their magic. The Jerusalem Talmud explains the ruling in the Mishnah, stating: “That is what we have stated: ‘Simeon ben Shetaḥ hanged eighty women in Ascalon, but one does not try two on the same day.’ But the hour needed it.”²⁵

In Bava Metzia 83b an interesting story is told about Rabbi Elazar, son of Rabbi Shimon, who arrested numerous thieves, including Jewish ones, and handed them over to the local authorities. The account includes many details about how he went to great lengths to catch the criminals. His actions can also be understood as an example of “makin veonshin shelo min hadin.”²⁶

The Talmud contains numerous accounts of rabbis deciding on action in the heat of the moment, sometimes even leading to death, against individuals who posed a threat to the wider community.²⁷

The Talmud in Sanhedrin 75a, recounts an intriguing story about a man who became so lovesick that his life was at risk. The doctors suggested that the woman in question perform an act that would provide him with some level of sexual satisfaction – even something as minimal as conversing with him behind a fence in a secluded area. However, even if she was unmarried, she might not have been permitted to do so. A possible explanation for this restriction is offered by Rav Aḥa, son of Rav Ika: “This is so that the daughters of Israel should not be promiscuous with regard to forbidden sexual relations. Were they to listen to the doctors’ recommendations, Jewish women might lose moral restraint.”²⁸

The aforementioned cases from Talmudic and halachic sources illustrate both ad-hoc rulings and legislative punitive measures that deviate from the standard legal procedures in Jewish law. Examples include cutting off a person’s hand,²⁹ executing multiple individuals in a single day, imposing punishments without proper evidence, witnesses, or prior warning, and even penalizing actions that would not ordinarily warrant punishment. These measures were implemented as a means of “safeguarding.” Similar rulings can already be found in biblical times.³⁰

In the Bible

In the Book of Judges (chapter 19), a story is told in which members of the tribe of Benjamin raped a woman, leaving her to die by morning. The other tribes of Israel demanded that Benjamin hand over the perpetrators. When the Benjaminites refused, war was declared against them, and the tribe was nearly wiped out, with only six hundred men surviving. This ruling can be interpreted as an example of “makin veonshin.”³¹

Another notable example is found in Genesis 38, where Tamar became pregnant, and Yehuda sought to sentence her to death by burning. The Da’at Zekenim quotes Rabbi Ephrayim from Kahse, who argued that this was not a legitimate legal sentencing, as it lacked the required witnesses and prior warning necessary for such a verdict. Rabbi Ephrayim believed that Yehuda was exercising “makin veonshin shelo min hadin.”³²

In II Samuel, chapter 1, we find another example of extra-legal punishment. In this account, David orders the execution of a young man who claimed responsibility for killing Saul. Although Jewish law does not accept self-incrimination as valid evidence for punishment, David still had him put to death, declaring, “Your blood be on your own head! Your own mouth testified against you when you said, ‘I put the LORD’s anointed to death.’”³³ Regarding this incident as well, some rabbis suggest that David acted beyond the standard boundaries of Jewish law.³⁴

There are numerous similar stories throughout the Bible, unfolding across different time periods, with varying concerns and circumstances.³⁵

At times, deviating from the law is necessary for the well-being of society.

Establishing a just, reliable, and stable legal system is essential for a functioning society. However, if courts are not granted the flexibility to deviate from the law when necessary, individuals may exploit legal loopholes and evade justice. Laws cannot account for every possible scenario, and as times change, certain crimes may require different approaches. Therefore, the option for alternative penal measures must remain viable. While this flexibility carries risks, it is crucial for fostering a fair and healthy society.

The Beit Yosef (Choshen Mishpat 2)³⁶ writes in the name of Rabbi Shlomo ibn Aderet that “makin veonshin” is for the upkeep of the world, as without it there will be anarchy, the world would be “ruined” and “desolate.” He cites the Talmud in Bava Metzia (30b):³⁷ “Rabbi Yoḥanan says: Jerusalem was destroyed only for the fact that they adjudicated cases on the basis of Torah law in the city.” The Talmud adds that they should have gone “beyond the letter of the law.”

At times, rabbis acted in the public’s interest by establishing new laws for the greater good, even when these rules did not conform to standard legal proceedings.

Alternative punishments

Situations arise where a specific individual may not face repercussions for their actions, effectively placing them “above the law,” or where standard punitive measures would be ineffective for a particular person or circumstance. In such cases, alternative solutions are sought.

The “kippah” treatment

The Mishnah (Sanhedrin 9:5) states:

One who was flogged for violating a prohibition and then repeated the violation and was flogged again assumes the status of a forewarned transgressor. The court places him into the vaulted chamber [lakippa] and feeds him barley bread until his belly ruptures due to the low-quality food, and he dies.³⁸

If someone commits murder but escapes legal consequences due to technicalities, or if they repeatedly offend, proving that standard punishments are ineffective, the “kippah” punishment is applied.³⁹

Maimonides⁴⁰ writes that the “kippah” sentence may be used to execute murderers even without legally admissible evidence, but this measure does not apply to other capital crimes. Regarding those offenses, he states, “If he is not liable for execution, he should be released.” He further explains that this law is specific to murder because, “Although there are other sins that are more serious than murder, they do not present as serious a danger to society as murder does.”⁴¹

The “kippah” method differs from the standard execution of the death penalty, as the court does not actively carry out the execution; rather, the person dies on their own.⁴² In such cases, nature is used to bring about the convict’s death, since a formal execution cannot be performed.The Torah (Deut. 19:13) states, “eliminate the injustice caused by the shedding of the blood of the innocent murder victim from Israel.”⁴³ However, a literal translation of the verse would read: “eradicate the innocent blood from Israel.”⁴⁴ Rabbi Abraham Saba⁴⁵ therefore interprets this as referring to cases where an individual is legally deemed innocent, yet the judge knows with certainty that he is guilty and deserving of death. In such instances, the judge must ensure justice is served, following the principle of “makin veonshin.”⁴⁶

“Lowering,” “not raising” from a pit

We find a parallel concept in cases where an individual cannot be legally punished because they have not committed a crime, yet they are perceived as a potential threat due to profiling. Alternatively, there are situations where a person may indeed pose a danger but has not committed an offense that warrants legal punishment. In such instances, while a formal death sentence cannot be imposed, there remains a desire to eliminate the potential threat they pose. This gives rise to two distinct legal categories: one in which, if the person has already fallen into a pit, they are simply left there to die without intervention, and another in which they are actively placed into the pit.⁴⁷

The distinction between these two categories lies in the level of involvement in the individual’s death. In the first case, where they are left in the pit, it is forbidden to take any action that would directly cause their death, one is only permitted to refrain from rescuing them from the danger they are already in. However, in the second case – actively placing them in a pit – it involves creating a situation that directly leads to their demise. This could include actions such as removing a ladder from the pit, thereby ensuring their inevitable death.⁴⁸

“one may not raise them from a pit, and one may not lower them into a pit”⁴⁹

A notable example of this law is the case of shepherds.⁵⁰ In Talmudic times, shepherds of domesticated animals were known to let their flocks graze in other people’s fields. The Talmud (Sanhedrin 25b) states that they are considered like robbers because their actions constituted habitual theft. Unlike someone who occasionally transgresses, shepherds engaged in this practice as a way of life. Consequently, while an individual shepherd could not be legally punished for theft without concrete evidence of a specific crime, society was considered better off without them. As a result, the law dictated that if one encountered such a shepherd in danger, they should not save him.

It is important to emphasize that this was not a formal court ruling; the deaths of such individuals were not imposed by judicial sentence. The notion that “the world is better off without them” was never a valid legal basis for execution. Rather, it appears to be a ruling that does not conform to standard legal procedure but was implemented for the greater good of society – an example of “makin veonshin.”⁵¹Rabbi Yosef Engel⁵² cited this case as proof that a court may establish permanent legal measures under “makin veonshin” rather than restricting its application to ad-hoc or temporary rulings.

“Are lowered into a pit, but not raised out of it”⁵³

Moser

A Moser is an informer or slanderer who denounces individual Jews or the Jewish people in general to a foreign ruler or anyone that may cause them financial or physical harm. “The attitude of the Talmud toward such persons is extremely hostile. It is said of them: ‘The minim and the informers and the scoffers… these will go down to Gehinnom to be punished there for all generations’ (rh 17a).”⁵⁴

The execution of informers has historical precedent in Jewish law, with various cases throughout history where authorities deemed an informer dangerous and decided to execute them. However, determining whether an informer should be put to death or dealt with in an alternative manner is not always straightforward:

A notable case occurred in Barcelona,⁵⁵ where an informer was sentenced to death following extensive discussions between local authorities and rabbinic leadership. Three years after the execution, the informer’s brothers filed a complaint, arguing that his sentencing was unlawful since Jewish courts no longer have the authority to carry out capital punishment. In response, Rabbi Shlomo ibn Aderet (a Barcelonian rabbi) defended the ruling in a letter, citing numerous precedents for such cases and referencing Maimonides (Mishneh Torah, One Who Injures a Person or Property 8:11):

If the moseir carried out his threat and informed on a fellow Jew, it appears to me that it is forbidden to kill him, unless he has made it an established pattern to inform. In such an instance, he should be killed, lest he inform on others.
In the cities of the west, the common practice is to kill the mosrim who have made an established pattern of informing with regard to people’s property, and to hand the mosrim over to gentiles to punish them, beat them and imprison them, according to their wicked ways.
Similarly, one who causes difficulty and irritation to the community may be handed over to the gentiles to be beaten, imprisoned and fined. It is, however, forbidden to hand over to gentiles a person for causing irritation to one individual.

In this case, the justification for execution was based on self-defense (to eliminate the informer before he could endanger others).

Rabbi Reuben Margolies (Margaliot Hayam, Sanhedrin 46a) recounts an incident from his father involving an informer who was killed due to the threat he posed and subsequently buried. After his burial, local authorities exhumed the body to investigate the case, but since no one was willing to testify, they were unable to take legal action.

While there is precedent for executing informers, such action is only permissible if the overall benefit outweighs the harm. The punishment may be justified under self-defense or as an application of “makin veonshin.”⁵⁶ However, if the same level of protection for the community can be achieved through other means, or if the execution is likely to create greater problems than it solves, the court is not permitted to implement such a ruling.

Heretics

This issue is particularly intriguing to me. I struggle to see how an individual with different beliefs poses a significant threat to the religion or the general public.⁵⁷ While it is possible that in certain historical or cultural contexts, such individuals were perceived as dangerous, it is clear that such measures would no longer be appropriate in modern times.

There is historical precedent for viewing heresy as a serious threat, leading some rabbis to apply extreme measures in response. For example, during the rise of Shabbateanism, many viewed it as dangerous enough to justify invoking “makin veonshin.” Rabbinic authorities at the time deemed the principle of “lowering into a pit” an appropriate response, classifying Shabbateans as heretics.⁵⁸

Similarly, in the late 18th century, as concerns over the Hasidic movement grew, the Rabbi of Vilna believed that this ruling applied to them.⁵⁹

However, as previously mentioned, such punishments are no longer applied in our time.

Rabbi Avraham Yeshayahu Karelitz (Chazon Ish, Yoreh De’ah 2:16) explained that these measures were based on “makin veonshin” as a safeguard, but they were only effective in an era when divine providence was apparent – when miracles and direct communication with God were regular and undeniable realities. In today’s world, he argued, a more effective approach is to treat such individuals with kindness, as this is more likely to achieve the intended goal.

Experienced robber

The Talmud in Bava Kamma (96b) recounts a case involving a habitual thief who was deliberately overcharged as a penalty for his repeated offenses:

There was a certain man who robbed another of a pair [padna] of oxen. He then went and plowed his field with them, and sowed seeds with them, and eventually returned them to their owner. The robbery victim came before Rav Naḥman to claim payment from the robber. Rav Naḥman said to the robbery victim and the robber: Go estimate the amount by which the value of the land was enhanced during the time that the pair of oxen was in the possession of the robber, and the robber must pay that amount. Rava said to Rav Naḥman:…
…Rav Naḥman said to Rava: Didn’t I tell you that when I am sitting in judgment, do not say anything to me, i.e., do not question or comment upon my rulings… This man is an experienced robber, and I wish to penalize him. Therefore, I compelled him to pay the enhanced value, although by right he is not obligated to do so.⁶⁰

This ruling raises an important legal question: Jewish law distinguishes between two forms of monetary obligations – fines (kenasot) and damages.⁶¹ “Fines are distinguishable from damages in that they are not commensurate with the actual amount of damage suffered.”⁶² Rav Naḥman’s verdict would seemingly fall under this category.

However, it seems that Rav Naḥman lacked the formal jurisdiction to impose such a fine. According to Jewish law, “Formal jurisdiction for the imposition of fines ceased with the destruction of the Temple.”⁶³ Moreover, the authority to issue fines was restricted to courts in Israel, while Rav Naḥman presided in Babylonia.

Given this, Rabbi Isaac ben Jacob Alfasi (Rif, Bava Kamma 34a) concluded that Rav Naḥman was applying the principle of “makin veonshin,” using this case as a basis for permitting the imposition of fines in analogous situations.⁶⁴

The violent man

The Talmud (Bava Metzia 39b, and Ketubot 27b) recounts a case involving a powerful and violent individual whom witnesses feared testifying against in court.

Mari bar Isak, who was a wealthy and powerful man, had a brother whom he did not previously know, come to him from Bei Ḥozai, which was distant from central Babylonia. His brother said to him: Divide the property that you inherited from our father and give half to me, as I am your brother. Mari said to him: I do not know who you are. The case came before Rav Ḥisda. He said to the brother: Mari bar Isak spoke well to you, as it is stated: “And Joseph knew his brothers and they knew him not” (Genesis 42:8). This teaches that Joseph left Eretz Yisrael without the trace of a beard, and he came with the trace of a beard. This proves that it is possible for brothers not to recognize each other. Mari bar Isak may be telling the truth when he claims he does not recognize you. Rav Ḥisda said to the brother: Go bring witnesses that you are his brother. The brother said to him: I have witnesses, but they fear Mari bar Isak because he is a violent man. Rav Ḥisda said to Mari bar Isak: You go bring witnesses that he is not your brother. Mar bar Isak said to him: Is this the halakha? Isn’t there a principle in these cases that the burden of proof rests upon the claimant? Rav Ḥisda said to him: This is the way I judge you and all of your fellow violent people.⁶⁵

Rabbi Isaac ben Moses Arama, in Akeidat Yitzchak (43), discusses the idea that rules are not always suited to every situation and that there are times when it is necessary to deviate from them:

Tzedek is the justice that applies to most men in similar circumstances. Chessed is the allowance made for special circumstances when the law, which is after all designed to cover only most situations, fails to allow for special circumstances. The right to grant pardon is based on the recognition that strict application of the law does not always mean that true justice is being meted out.⁶⁶

As examples, he cites the Talmudic story about the violent man and the concept of “makin veonshin.”

Similarly, Rabbi Hai ben Sherira wrote about the importance of a judge seeking the truth, even if some factors guiding his decision may not qualify as legally conclusive evidence or follow standard legal procedures. He cites this story to illustrate his point.⁶⁷

There was an incident in Würzburg involving a man who was known for regularly assaulting others. On one occasion, when someone retaliated, causing him financial loss, the local community felt that, given the heat of the moment, the person who struck back should not be held accountable. Rabbi Meir Ben Baruch of Rothenburg (Teshuvot Maharam MeRothenburg VeChaveirav Vol. 2, 402) acknowledged that, strictly speaking, the law did not exempt the retaliator from liability. However, he argued that if one were to follow the rigid letter of the law, then the habitual aggressor should have his arm cut off as a punishment (as mentioned earlier). Since this extreme measure is not applied, he maintained that the court has the authority to impose a fine. He further justified this approach by citing the Talmudic phrase: “This is the way I judge you and all of your fellow violent people.”

A similar ruling was issued in the case of an individual who transferred his estate to his minor son, seemingly to evade his creditors. Rabbi Shlomo ibn Aderet (Teshuvot haRashba Vol. 6, 253) ruled that if the judge determined this transaction was a deliberate attempt to avoid repayment, the court had the authority to seize the assets and ensure justice was served.⁶⁸ He, too, cited the same Talmudic phrase as precedent.

This principle seems to follow the pattern of alternative punishments – actions taken beyond the strict letter of the law to ensure justice is served.⁶⁹

He had it coming!

The Talmud in Chullin 132b states:

Rabba bar Rav Sheila said: These butchers of the city of Huzal have remained under the excommunication of Rav Ḥisda these last twenty-two years, as they have continuously refused to separate gifts of the priesthood for this period…
…Rabba bar Rav Sheila means that because the butchers of Huzal have refused to give the gifts for so many years, we fine them even without forewarning. There was a case like this of a person who refused to give the gifts of the priesthood to a priest, where Rava fined him by taking the entire thigh of his animal and giving it to a priest. Similarly, Rav Naḥman bar Yitzḥak fined an individual who refused to give the gifts of the priesthood to a priest by taking his cloak and giving it to a priest.⁷⁰

Rabbi Yom Tov Ben Abraham Ishbili (Ritva there) comments that this serves as proof that the court has the authority to impose fines and administer punishments beyond the standard legal framework when necessary.

We find multiple stories like this in the Talmud, when the rabbis ruled beyond the rules for someone because of his unethical behavior. A Talmudic phrase comes to mind in connection to this which goes: “This man acted improperly; consequently, the Sages acted improperly with him.”⁷¹

Rabbi Yom Tov Ben Abraham Ishbili (Ritva on Ketubot 86a) writes that this⁷² demonstrates that whenever someone engages in deceit to transfer assets and evade paying creditors, the court has the authority to act beyond the standard legal framework, as it sees fit, to ensure the creditors do not incur losses.

Rabbi Asher ben Jehiel (Teshuvot HaRosh 78:1) discusses a case in which an individual, unwilling to repay his debt, instead transferred his property as a gift to someone else. He asserts that whenever a person attempts to circumvent the law in a way that causes financial loss to others, Jewish law nullifies such actions. This principle, Rabbi Asher explains, extends even to cases with differing details, as “the Talmudic rabbis did not manage to write every future scenario.”⁷³

He also references a similar sentiment found in the Talmud:

Rav Yosef, son of Rava, sent before Rav Pappa the question of what the halakha is in this circumstance. He sent to him a response that paraphrased biblical verses: As he has done, so shall it be done to him, his dealing shall return upon his own head (see Leviticus 24:19 and Obadiah 1:15). In other words, since the master acted deceitfully to circumvent the ruling of the Sages, one should deal with him deceitfully.⁷⁴

In the following responsum (Teshuvot HaRosh 78:2), he further states that someone who tries to evade payment should receive a harsher sentence. To support this, here too he cites the Talmudic principle: “This man acted improperly; consequently, the Sages acted improperly with him.”

Here too, one could argue that this is not a formal court procedure but rather an extralegal ruling implemented because it is needed.⁷⁵

Justice vs. the threat of corruption

As mentioned above, in financial matters, a judge has the authority to rule according to what he perceives as the truth, even if his reasoning relies on witnesses who would not be deemed acceptable or credible under standard legal procedure. Maimonides writes:⁷⁶

A judge may adjudicate cases involving monetary law bases on factors that he is inclined to regard as true and concerning which he feels strongly in his heart are correct even though he does not have proof of the matters. Needless to say, that if he personally knows that a matter is true, he may judge the case according to his knowledge…
…These matters are solely given over to the heart of the judge to decide according to what he perceives as being a true judgment.

While the court’s primary duty is the pursuit of truth – ensuring that those who owe money are held accountable even when technical legal requirements are not met – this approach carries significant risks. It opens the door to corruption and irresponsible sentencing. Maimonides acknowledges this concern in the following halakha:

All of the matters mentioned above are the fundamental standard of law. Nevertheless, when courts which were not fitting – not necessarily courts which were not upright, but even those whose deeds were just, but whose judges were not sufficiently wise and masters of understanding – proliferated, the majority of the courts among the Jewish people agreed not to…

Maimonides maintained that, given the decline in judicial expertise, and the potential for corruption, courts should adhere strictly to standard legal procedure. However, Rabbi Jacob ben Joseph Reischer (Shevut Ya’aḳov Vol. 3, Choshen Mishpat 142) took the opposite view. He argued that this principle is even more relevant today, precisely because courts have become increasingly incapable of properly applying Torah law.

The authority for a judge to rule and sentence freely without strict adherence to protocol, while necessary in certain cases, also carries significant risks. It is possible that restricting this authority could actually lead to a fairer judicial system. In fact, the inability of the court to judge in this manner might itself serve as an exercise of judicial discretion for the benefit of society, perhaps withholding this power is a form of “safeguarding.”

This same paradox exists with “makin veonshin,”⁷⁷ on one hand, there is a strong case for its necessity, yet on the other, there is a legitimate concern over its potential misuse. This raises the question of whether we are ultimately better off maintaining these powers, following the reasoning of Rabbi Jacob Reischer, or limiting them, in line with Maimonides’ perspective.

To some extent, it seems inevitable that courts must occasionally extend their authority beyond standard legal frameworks. For a society to function effectively, the legal system must adapt to changing circumstances and evolving needs.

Fines for the upkeep of the city

As mentioned earlier, the court no longer has the authority to impose fines. However, there are exceptions. Some authorities maintain that city leaders have the power to enforce fines,⁷⁸ and similarly that fines for the upkeep of the city may be imposed.⁷⁹

Regulation and maintenance of societal order

The Torah recognizes the necessity of adapting to changing times and evolving societal needs. This includes enacting tax laws, identifying new crimes, and implementing appropriate punishments as deemed necessary by the authorities of each generation to ensure effective governance.

The Torah states (Leviticus 18:30): “You, through your representatives, the court, must safeguard My charge,”⁸⁰ which is understood as a directive for rabbis to enact protective measures to uphold Torah law.⁸¹ However, this principle can also extend to granting authority to leaders of different generations to introduce new societal safeguards and regulations as needed.⁸²

Rabbi Shlomo ibn Aderet (Teshuvot haRashba, Vol. 4, 311) asserts that in his opinion, it is self-evident that a community has the right to judge matters as it deems necessary, as they are engaged in the regulation and maintenance of societal order, which does not follow the standard procedures of Torah law. He follows this assertion with citing multiple examples of “makin veonshin.”

Similarly, Rabbi Meir Ben Baruch of Rothenburg (Teshuvot Maharam, Prague Edition 383) discusses a case in which an individual grabbed another by the neck and brandished a knife. While courts are no longer authorized to impose fines, he notes that every community establishes its own rules, regulations, and safeguards to prevent such behavior. Therefore, he suggests that the perpetrator should be penalized in accordance with the local regulations governing such offenses.

This authority extends to all communal affairs, ranging from compelling individuals to contribute to the construction of a synagogue to punishing acts of violence – essentially, anything deemed necessary for maintaining order and stability within the community.

Further examples of judicial exercises:

Courts are “empowered to expropriate,”⁸³ they can enact regulations in the spirit of “makin veonshin” to uphold justice, utilizing this clause as a legal basis.⁸⁴ Similarly “The court flogs one due to his being the subject of a bad rumor.”⁸⁵

Furthermore, Maimonides (Mishneh Torah, Theft 1:10) writes: “It is appropriate for the court to administer corporal punishment to a child who steals, according to the child’s strength, so that he will not become accustomed to such conduct.”⁸⁶ Rabbi Shem Tov ben Abraham ibn Gaon (Migdal Oz, ibid.) comments that this is not a formal law, rather a fine, under the principle of “makin veonshin.”

Beyond being a discretionary power, the ability of courts to act beyond standard legal regulations is, at times, an obligation when it serves to create a better and safer society. The Mishnah (Avot 1:1) states: ‘The Men of the Great Assembly said… make a fence round the Torah.⁸⁷ While this is traditionally understood as a directive to safeguard religious observance, by enacting rabbinic restrictions,⁸⁸ Naphtali Hirz Wessely (Yein Levanon, Avot 1:1) interprets it as referring to “makin veonshin.” He explains that, since it was then that “the Divine Spirit of prophetic revelation departed from the Jewish people,”⁸⁹ ensuring societal order through extrajudicial intervention became not just a practical necessity but a fundamental obligation to safeguard the Torah.

For the sake of heaven

While we have demonstrated the significance of this authority, the potential for corruption remains a major concern. It is crucial not only to recognize the necessity of such power but also to regulate and limit its use to prevent misuse.

A recurring condition regarding “makin veonshin” is that it must be exercised for the sake of heaven. Rabbi Abraham Isaac Kook (Be’er Eliyahu, Choshen Mishpat 2) explained that while every court ruling should ideally be issued with the proper intentions, a ruling based on established law remains valid even if the judges lacked the correct motivation. However, when a court acts outside the bounds of standard law, if it is not done for the sake of heaven, those issuing the ruling are not considered judges but mere thugs, and their rulings are not legally binding.

The threat of corruption and unfair judgment is a particular concern when rulings of this nature are issued with improper intent, as there seems to be no clear concept of a “wrong” verdict in such cases. As Rabbi Abraham Bornstein (Avnei Nezer, Yoreh De’ah 312:48) stated: ’Since he is not bound by Torah law in this matter, how can there be a mistake? He may rule as he sees fit!’

This raises crucial questions: Are there limitations on who has the authority to impose such sentences? And are there defined guidelines regarding the punishments that may be administered?

Who can sentence?

Some opinions maintain that only a court with semikhah (formal rabbinic ordination)⁹⁰ has the authority to impose “makin veonshin.”⁹¹ Since semikhah has ceased, this ruling may no longer be applicable today.⁹² Others suggest that while courts can no longer impose the death penalty, they retain the authority to administer other extralegal punishments.⁹³

Additionally, some Rabbis believe that this power is granted to the king, and only a court operating under the king’s authority may judge extralegally.⁹⁴ It could be argued that in contemporary times, the government assumes the role of the king, and the responsibility for administering such punishments falls upon its shoulders, as matters of communal governance fall under its jurisdiction.⁹⁵

However, the widely accepted position is that even today, courts retain the authority to impose such penalties – but not just any court.⁹⁶

Some opinions hold that only esteemed rabbis, such as Rav Naḥman,⁹⁷ or city leaders who have been appointed and accepted by the people,⁹⁸ have the authority to impose such penalties.⁹⁹ A regular court, however, does not have this power. Some maintain that an “important court” is sufficient,¹⁰⁰ while others argue that even the local city court retains this authority.¹⁰¹

It appears that even for an extralegal ruling, a court of 23 members is required to impose the death penalty. However, one could argue that a standard three-member court might suffice, and perhaps even a single, highly esteemed rabbi could have the authority to do so.¹⁰²

Furthermore, in cases of extreme emergency, such as saving the Jewish nation, one could argue that no formal court is necessary at all.¹⁰³ Since semikhah is not a prerequisite for issuing such rulings, it would seem to me that a 23-member court may also not be required.¹⁰⁴

The sentence

The Talmud (Sanhedrin 52b) states:

Imrata bat Talei was a priest’s daughter who committed adultery. Rav Ḥama bar Toviyya surrounded her with bundles of branches and burned her.
Rav Yosef says: Rav Ḥama bar Toviyya erred with regard to twohalakhot. He erred with regard to the ruling of Rav Mattana, i.e., that burning is performed using a wick of lead, and he erred with regard to that which is taught in a baraita: It is derived from the verse: “And you shall come to the priests, the Levites, and to the judge that will be in those days” (Deuteronomy 17:9), that at a time when there is a priest serving in the Temple, i.e., when the Temple is built, there is judgment of capital cases. By inference, at a time when there is no priest, there is no judgment of capital cases.¹⁰⁵

This incident seemingly could not have been a case of “makin veonshin,” as that would have permitted sentencing even “at a time when there isn’t a priest serving in the Temple.” If it had been “makin veonshin,” they would not have been deemed to have erred. Based on this, some suggest that “makin veonshin” should be applied with a level of severity lower than the prescribed penalty under standard legal procedures. Since no lighter sentence was imposed, it is evident that this was not a case of “makin veonshin” but rather a formal legal ruling, which explains why Rav Yosef stated that they erred.¹⁰⁶ Others, however, interpret this punishment as an exercise of “makin veonshin.”¹⁰⁷ According to this view, the judges did not make a mistake, as they were authorized to carry out the punishment, including the death sentence, since it was an extralegal measure rather than a formal ruling. It could be argued that they intentionally altered the details of the execution to distinguish it from a formal judicial sentence, ensuring it would not be mistaken for a standard legal ruling. This position holds that when administering punishments under “makin veonshin,” courts should deliberately modify certain elements to differentiate them from formal judicial penalties. However, others believe that the closer the punishment is to the standard legal penalty, the better.¹⁰⁸

The necessity and ethics of the death penalty

The Zohar (Zohar Chadash, Midrash Rut) writes that a judge may rule truthfully and still be punished for it, while another judge may issue an unjust ruling and be rewarded. This highlights a broader reality: strict adherence to legal technicalities can sometimes create loopholes that allow perpetrators to escape justice. A judge who becomes entangled in these formalities and, as a result, exonerates a guilty party may technically be following the law but is failing in his greater duty to uphold justice. Conversely, the Zohar presents an example of a judge who sentenced a man to death for merely hugging and kissing a married woman – an excessive punishment beyond the legal framework.

The Zohar explains that such rulings stem from the judiciary’s broader authority to enact extralegal measures when necessary.

Rabbi Moshe Feinstein addressed the issue of the death penalty in a letter to government officials in New York. He explained that its purpose was not rooted in hatred toward the offender but rather as a societal tool to underscore the severity of transgressions.¹⁰⁹ However, he also noted that in Jewish law, the conditions required for implementing the death penalty make it virtually impossible to carry out. Additionally, Jewish courts today lack the authority to administer capital punishment. Nevertheless, at the conclusion of his letter, he acknowledged that in extreme cases – when lawlessness prevails or when dealing with an exceptionally evil individual – extralegal measures may be justified for the sake of public safety.

While capital punishment serves as a statement on the gravity of sin, it may also fulfill a practical societal need. Rabbi Saadia Gaon elaborates on this:

Finally, I meditated over the fact that, even before this retribution in the future life, man was ordered to be put to death by means of four different forms of execution. I realized, however, that all this was for his benefit and that it was not contrary to reason. For it is in accordance with the verdict of reason that, just as the individual recognizes that the cutting off of one of the members of his body, which has been rendered worthless by poison or disease, is a corrective necessary for the preservation of the rest of his body, so the human species must recognize that the slaying of one of its members who has become corrupted and is causing trouble on earth is a corrective necessary for preserving the rest of the species. Thus Scripture also says: And those that remain shall hear and fear (Deut. 19:20).¹¹⁰

It seems to me that while formal capital punishment has been abolished, the concerns that originally justified its implementation persist. However, the principle of “makin veonshin” may serve as a functional substitute. This suggests that the role of the death penalty – as a deterrent and a safeguard – has, in practice, been replaced by the broader judicial discretion to impose extralegal measures when necessary.

Considerations for an evolving world

When it comes to religion, there is a delicate balance to maintain. On the one hand, if religious laws are subject to change, they risk losing their divine authority, becoming human-made and evolving rules that shift according to societal preferences. This can, in turn, lead people to question the divinity of the Torah. On the other hand, circumstances inevitably change over time, and no fixed legal system can remain equally applicable in all eras without some form of adaptation.

Maimonides addresses this issue, explaining:

But permission is at the same time given to the wise men, i.e., the great court (Synhedrion) of every generation to make fences round the judgments of the Law for their protection, and to introduce bye-laws (fences) in order to ensure the keeping of the Law. Such fences once erected remain in force for ever. The Mishnah therefore teaches: “And make a fence round the Law” (Abot 1:1). In the same manner they have the power temporarily to dispense with some religious act prescribed in the Law, or to allow that which is forbidden, if exceptional circumstances and events require it; but none of the laws can be abrogated permanently, as has been explained by us in the Introduction to the Commentary on the Mishnah in treating of temporary legislation. By this method the Law will remain perpetually the same, and will yet admit at all times and under an circumstances such temporary modifications as are indispensable.¹¹¹

It seems that “makin veonshin” serves as a compromise of this nature – ensuring that societal regulations remain relevant, ethical, and proportionate to the crimes committed. This principle allows for the enforcement of punishment, as mandated by the Torah, while also considering evolving ethical standards and the protection of individual rights.

The ideal punishments prescribed by the Torah remain necessary, as they provide a measure of the severity of crimes; even if the practical application of justice adapts to the realities of the times.

As we have seen throughout this article, the nature of extralegal rulings has evolved across different periods and places. As societies progress, the necessity for harsh punishments often diminishes, while ethical considerations surrounding justice grow stronger. It is the responsibility of communities, their members, and their leaders to cultivate a society with high ethical standards. This ongoing ethical refinement not only shapes societal values but also influences the way courts administer justice, ensuring that punishments align with an increasingly elevated moral standard.

Talmudi Fogalmak Magyarul

1
Regarding this general topic, see; “Extraordinary Remedies .” Encyclopaedia Judaica.
2
A Baraita is “a tannaitic tradition which is not included in the Mishnah of Rabbi Judah ha-Nasi,” see “Baraita, Baraitot .” Encyclopaedia Judaica.
3
Sanhedrin 46a, William Davidson Edition.
4
See Petach Einayim on Yevamot 90b, regarding the identity of Rabbi Eliezer ben Ya’akov in this Baraita.
5
Yevamot 90b, William Davidson Edition.
6
Jerusalem Talmud, Chagigah 2:2, Heinrich W. Guggenheimer, 1999-2015.
7
See Korban HaEdah for a possible interpretation of Rabbi Eleazar ben Rabbi Yose’s position, which suggests that even the concern of future sins may be grounds for punishment.
8
Megillat Ta’anit (Heb. lit. “scroll of fasting”), is “a list of 36 days on which there were significant victories and happy events in the history of the Jews during the Second Temple, as a result of which the rabbis forbade fasting on them, as well as, in some cases, the delivery of memorial addresses for the dead (hespedim). The title should therefore be taken as meaning “the scroll of (the days of prohibited) fasting.” The work received its present form close to the time of the destruction of the Second Temple or at the latest during the Bar Kokhba era. It is written in Aramaic and with extreme brevity. According to a tannaitic source (Shab. 13b), it was compiled by “Hananiah b. Hezekiah (b. Garon) and his company,” but the appendix to the megillah gives the author as Eliezer, the son of this Hananiah, one of the leading rebels against the Romans (Jos., Wars, 2:409). S. Zeitlin regards it as a literary remnant of the rebel party,” see “Megillat Ta’anit .” Encyclopaedia Judaica.
9
Author’s translation. In Heb.

“אמר רבי אליעזר בן יעקב שמעתי שב”ד מלקין והורגין שלא מן התורה. דבית לוי אמרו שמעתי שב”ד עונשין ממון ומכים שלא מן התורה. לא מפני שכתוב בתורה אלא משום שנאמר ובערת הרע מקרבך”
10
Deuteronomy 17:7, The Contemporary Torah, JPS, 2006.
11
This is relevant, since the Greeks introduced laws preventing Jews from observing Jewish laws like shabbat, see Megillat Antiochus (the Open Siddur Project) 7-12 “And he spoke to his officers, saying, ‘Surely you know that there is a Jewish people in our midst in Jerusalem. They do not sacrifice to our gods, our laws they do not keep, and they neglect the laws of the king, to follow their own… Come now, and let us go up against them, and destroy the covenant their God has made with them, their Sabbaths, new-moon [festivals], and circumcision.’ And this found favor in the eyes of his officers and in the eyes of all his army.” It is reasonable for the court to believe that the times called for the use of excessive force, as the religion was in an existential threat. And see Yein Levanon, Avot 1:1. However, see Mishnat Eretz Yisrael (Sanhedrin, Preface), that this may be referring to the times of the Bar Kokhba revolt.
12
In the Jerusalem Talmud, the man engaged in intercourse with his wife behind a wall or gate. Similarly, in Zohar Chadash, Midrash Rut, in contest of the previously mentioned Baraita, it recounts a story about the author’s father, who allegedly administered lashes and sentenced a man to death for merely hugging and kissing a married woman.
13
See; Margaliot Hayam, Sanhedrin 46a, that in some versions of this story, he was sentenced to stoning.
14
Sanhedrin 46a, William Davidson Edition.
15
Sanhedrin 58b, William Davidson Edition.
16
See; Yad Ramah and Meiri on Sanhedrin 58b that cite such a position anonymously. And see; Chamra Vechayei, Sanhedrin 58b.
17
See for instance; Rashi, Sanhedrin 58b; Beit Yosef, Choshen Mishpat 2; Meiri and Yad Ramah, Sanhedrin 58b; Teshuvot haRashba, Vol. 5, 238; Teshuvot HaRivash 251. In Tosafot (Sanhedrin 58b) two interpretations are presented. The first suggests that the ruling was a “kenas” (a fine), meaning it was not an established, codified law but rather a discretionary punitive measure applied when deemed necessary. The second interpretation holds that this is the legal consequence (“dina”) for someone who habitually physically harms others. Based on the context of the Talmud in Niddah 13b, it also appears that he cut his hand off, and see Arukh LaNer, Sanhedrin 58b. In addition see; Piskei Tosafot (118), and Ritva (Niddah 13b), who also understood it as dina rather than kenas. However, this does not necessarily mean that it was not “shelo min hadin.” It is possible that Rav Huna acted within the framework of legal procedures, with such a penalty being introduced specifically for repeat offenders of this transgression. While the punishment was neither Torah-prescribed nor a standard legal consequence warranted by the transgression itself, it was imposed as an extra-legal measure for the purpose of “safeguarding,” allowing for a harsher sentence than usual. As a matter of fact, Chamra Vechayei (Sanhedrin 58b) writes in the name of the Ritva, that this punishment is “makin veonshin shelo min hadin.” See however, Teshuvot Maharach Or Zarua 142, it would seem that he understood the justification for this penalty to be based on self defense, and not based on “makin veonshin shelo min hadin.”
18
“Similarly, if a person frequently strikes others and it is impossible to save oneself from him except by having him seized by non-Jews, it is a mitzvah incumbent on everyone to have him seized by non-Jews so that they will take his money or cut off his hand so that he will not strike others again.” Shulchan Aruch HaRav, Choshen Mishpat, The Laws Governing Damage to Property 6 (trans. Weiss edition).
19
See for instance; Sefer Meisharim (Rabbeinu Yerucham) 23:5 (58b). The Vilna Gaon did not cite the Talmudic ruling to mandate this specific punishment; rather, he referenced it as a source to justify the need for alternative punishments. See also Teshuvot Maharam, Prague Edition 81.
20
Trans. Sefaria Responsa Anthology.
21
Exilarch is the “head of the Jewish community in Babylon”, see “Exilarch .” Encyclopaedia Judaica.
22
Sanhedrin 27a, William Davidson Edition.
23
See for instance; Rashi (Sanhedrin 27a); Beit Yosef, Choshen Mishpat 2; Nimukei Yosef, Sanhedrin 5b, and 16a; Or Zarua Vol. 4, Piskei Sanhedrin 35; Mordechai, Gittin 384; Noda BiYehuda Vol. 1, Even Haezer 57, and Yaavetz, Sanhedrin 52b. And see Chidushei Haran, Sanhedrin 27a that this was not based on the authority of the court, rather it was that of the king, and the Exilarch was given power by local governing authorities, he possessed the ability to exercise such power. See later that in his opinion “makin veonshin” is dependent on the power of the king.
24
Sanhedrin 45b, William Davidson Edition.
25
Similarly, in Sifrei Devarim 221 (trans. Rabbi Shraga Silverstein):
“A man is hanged (i.e., suspended after death) and not a woman. R. Eliezer says: A woman, too, is hanged. R. Eliezer said to them: Didn’t Shimon b. Shetach hang women in Ashkelon? They answered; He hanged eighty women and (even though) two are not to be judged on one day, but “the times required it.” (Here, too, [vis-à-vis hanging] the times required it.)”
See Korban HaEdah on Jerusalem Talmud Sanhedrin 6:6; the legal justification for this punishment was based on the principle of “makin veonshin.”
26
See for instance; Beit Yosef, Choshen Mishpat 2, and Teshuvot haRashba, Vol. 5, 238 and Teshuvot HaRivash 251.
27
One particularly striking example appears in Berakhot 58a, where a complex story unfolds.
In this account, Rabbi Sheila flogged a certain man. When the case reached the local authorities, he falsely claimed that the man had engaged in sexual relations with a donkey—an offense punishable by death under local law. Rabbi Sheila explained to the government officials that while a Jewish court could not impose a death sentence for this offense, the local authorities were free to act as they deemed appropriate.
Regarding a moser (an informant), see the later section of this article. Tamim De’im 203 (and seemingly the Rashba, in his responsum (Vol. 5, 238)), argues that such cases are based on the principle of “makin veonshin shelo min hadin.” For further reading, see HaOnshin Acharei Chatimat HaTalmud, p. 65. However, see Teshuvot HaRivash 238. Regardless of Rabbi Sheila’s reasoning for wanting the man killed, at this stage, what is relevant is the immediate decision to cause his death rather than a formal judicial death sentence, seemingly Rabbi Sheila did not have time to determine the legal course of action, and seemingly acted in the heat of the moment. Though it may not be an example for makin veonshin shelo min hadin. The Talmud continues the story that Rabbi Sheila thanked God for the government.
28
Sanhedrin 75a, William Davidson Edition. And see Zikron Yehudah 79.
The Talmudic text in its entirety reads as follows: “Rav Yehuda says that Rav says: There was an incident involving a certain man who set his eyes upon a certain woman and passion rose in his heart, to the point that he became deathly ill. And they came and asked doctors what was to be done with him. And the doctors said: He will have no cure until she engages in sexual intercourse with him. The Sages said: Let him die, and she may not engage in sexual intercourse with him. The doctors said: She should at least stand naked before him. The Sages said: Let him die, and she may not stand naked before him. The doctors suggested: The woman should at least converse with him behind a fence in a secluded area, so that he should derive a small amount of pleasure from the encounter. The Sages insisted: Let him die, and she may not converse with him behind a fence. The Gemara comments: Rabbi Ya’akov bar Idi and Rabbi Shmuel bar Naḥmani disagree about this issue. One of them says: The woman in question was a married woman, and the other one says: She was unmarried. The Gemara tries to clarify the issue: Granted, according to the one who says that she was a married woman, the matter is properly understood. Since the case involved a severely prohibited forbidden relationship, the Sages did not allow any activity hinting at intimacy. But according to the one who says that she was unmarried, what is the reason for all this opposition? Why did the Sages say that the man must be allowed to die, rather than have the woman do as was requested? Rav Pappa says: This is due to the potential family flaw, i.e., harm to the family name, as it is not permitted to bring disgrace to the entire family in order to save the lovesick man. Rav Aḥa, son of Rav Ika, says: This is so that the daughters of Israel should not be promiscuous with regard to forbidden sexual relations. Were they to listen to the doctors’ recommendations, Jewish women might lose moral restraint.”
29
See Beit Yosef, Choshen Mishpat 2, in the name of the Rashba.
30
See for instance Yevamot 90b regarding Elijah.
31
See; Abarbanel on Judges 20:8, and 20:14; and see Ramban on Genesis 19:8 it would seem that the lack of administering “makin veonshin” caused the incident.
32
Da’at Zekenim on Genesis 38:24 (trans. Eliyahu Munk):

“‘take her outside so that she may be burned.’ Ephrayim from Kahse, (location) says that Tamar was the daughter of Shem who we heard was the priest of Shalem, and as such if she had committed adultery while still in her father’s house, if sentenced to death for harlotry would die by burning; (Leviticus 21,9) (compare also B’reshit Rabbah 85,10). Yehudah’s judgment is hard to understand as there had been no witnesses to the adultery Tamar had been accused of. Neither had she been warned not to commit such an act and been advised of the potential penalty, as is required by Jewish law. Rabbi Joseph, a resident of the land of Israel, answered this by saying that the generation in which Yehudah lived was morally deprived, and in such circumstances warnings and witnesses are dispensed with when her pregnancy was proof enough of how it had come about. In times like that, the Torah applies additional measures to counteract serious crimes as no one would commit such acts in the presence of acceptable witnesses and after being warned. Rabbi Joseph based himself on the Talmud in tractate Sanhedrin folio 46, where we read as follows: ‘Rabbi Eliezer son of Yaakov said that the Jewish Court is authorized to decree death penalties not according to the legislation of the Torah when the circumstances demand it, in order to be deterrents to potential sinners.’ The Talmud quotes several historical instances when this occurred, including the carrying out of a death penalty against 80 witches on a single day, in spite of the generally accepted rule not to carry out more than one such sentence per day. This happened already during the first hundred years of the period of the second Temple. Joshua’s executing Achan ben Karmi for stealing from the loot of Jericho, obviously without witnesses, why else had lots to be cast to find the guilty party, (Joshua chapter 7) is further proof of the authority of the leader appointed by G–d in circumstances that are not normal.”
33
II Samuel 1:16, JPS, 1985.
34
See for instance; Mishneh Torah, The Sanhedrin and the Penalties within Their Jurisdiction 18:6, and Teshuvot haRashba, Vol. 4, 311.
35
See for instance Yevamot 90b regarding Elijah, and see also Tosafot and Maharam there. In addition, see; Rosh David (Chida), end of Vayeshev, in the name of Rabbi Moshe Galante II, interpreting the dispute between Judah and his brothers regarding killing Joseph as “hora’at sha’a” and “makin veonshin.” And see Torat Hanvi’im (Chajes) from chapter 3.
36
And see Responsa Maharashdam, Choshen Mishpat 360 who also quotes this responsum.
37
Bava Metzia 30b, William Davidson Edition.
38
Sanhedrin 81b, William Davidson Edition.
39
See “Imprisonment” JewishEncyclopaedia:
“The Rabbis, however, fixed this punishment for the following cases: (1) When the court is convinced of the guilt of one accused of murder, but can not legally convict because some condition has not been complied with (Sanh. 81b; Maimonides, “Yad,” Roẓeaḥ, iv. 8)… When one who has been twice condemned and punished with stripes for the same offense is found guilty for the third time (Sanh. 81b; “Yad,” Sanhedrin, xviii. 4)… When one can not be convicted by the court for a crime which involves capital punishment because he does not acknowledge that he was conscious of the guilt, even after being warned three times by the witnesses (Sanh. 81b; Tosef., Sanh. xii. 4; “Yad,” l.c. xviii. 5). In all these cases… the sentence was for life, the treatment being very severe, aiming at the speedy death of the criminal (Sanh. 81b).”And see Shita Mekubetzet, Keritot 2a, that “one who divests himself of the yoke of God, by denying His existence,” – idolatry – “and one who impudently reveals facets of the Torah in a manner that departs from their true meaning, and one who nullifies the covenant of the flesh, i.e., circumcision” also gets the “kippah” treatment.
40
Mishneh Torah, Murderer and the Preservation of Life 4:9, trans. by Eliyahu Touger, Moznaim Publishing.
41
Many sources interpret “Kippah” as a form of “makin veonshin.” See, for example; Margaliot Hayam, Sanhedrin 81b, 3; and Prof. Menachem Elon (1987), “Teguva lema’amar ‘onesh hakippah’”, Ma’aliyot journal, issue 7. Additionally see; Shut Maharam Lublin 138, and Milḥemet Mitzvah [Rashbash], (Piotrków) p. 10, 19. Chemdas Yisrael, Ner Mitzva, from 81b (cited in the above mentioned Margaliot Hayam), also argues that the punishment is rabbinic. And see Teshuvot haRashba, Ḥadashot Mi-Ktav Yad (Machon Yerushalayim, Vol. 8), 349; it can also be inferred from Teshuvot HaRivash 251 (he explicitly states that it is rabbinic); and see Shut Maharam of Lublin 138.
However there are those that argue – most notably the Ran (Sanhedrin 81b) – and don’t think of it as rabbinic, or as “makin veonshin.” And see the above mentioned Chemdas Yisrael who brings these opinions. Nevertheless, even they acknowledge that this is not a standard judicial sentence but rather a safeguard mechanism. See Prof. Menachem Elon’s previously mentioned article. Furthermore, the Ran himself, on Sanhedrin 84b, writes: “kippah, which is a death that is not with the letter of the law – a legal procedure – like other judicial executions – which are -” (“כיפה שהיא מיתה שאינה בקו הדין כשאר הדינין”). And see Rabbi Noah Gardenswartz (2007), Alon Shvut issue 168, “Beinyan Hachnasa L’kippah Shelo Bifnei Ba’al Din,” where he explains that the Ran too understands this law as a means to maintain societal order and stability.
Some rabbis argue that “makin veonshin” can be institutionalized as a standing regulatory punishment rather than merely a temporary, case-specific measure. See, for instance, Gilyonei haShas, Yevamot 90b, which bases this view on a Tosafot regarding the “lo ma’alin” punishment. And some argue that it can only be instituted temporarily, but as long as the reason for the law is relevant, it stands, see for example Torat Hanvi’im (Chajes) 6, p. 13d.
42
“Me’elav” or “Mimeila”
See Chidushei HaRan, Sanhedrin 81b (notably, this is mentioned in the context of this punishment not being considered “makin veonshin”; however, see the sources cited in the previous footnote, where others do classify it as “makin veonshin.”). Additionally, see Chidushei HaRitva, Yevamot 64b; Chidushei Agadot, Sanhedrin 81b. [And see Teshuvot HaRivash 251.]A similar concept appears in the Talmud Sanhedrin 77a (William Davidson Edition):
“Rava says: If one bound another and he died of starvation, he is exempt from the liability to receive a court-imposed death penalty, as it was not his action that caused the death of the victim. Even if the victim was hungry when he was bound, the starvation that caused his death ensued at a later stage. The one who bound him is liable to be punished by the heavenly court. And Rava says: If one bound another in the sun and he died of the heat, or in a cold place and he died of exposure, he is liable to be executed, as from the moment that he bound him, the victim began dying.”
Rashi explains the exemption in the first scenario, stating that when the perpetrator placed the victim in that situation, he did not directly kill him; rather, the victim died from starvation, which occurred independently and was not directly caused by him.
Similarly, see Tosafot Rid on Gittin 28b, where he discusses the linguistic distinction between the terms “died” and “killed” as used in the Talmud there, referencing the “kippah.”
Furthermore, see Sanhedrin 81b with regards to the execution of the “kippah” punishment for someone who is liable for Karet—i.e., “a punishment at the hands of heaven” (“Karet.” Encyclopaedia Judaica) – the Talmud states: “we advance his execution upon him”
This distinction has significant halachic implications. See, for example, Chidushei Harim, Choshen Mishpat 2, which explains that the laws of “plotting witnesses” (zomemim) do not apply if they conspired to have someone executed by kippah for this very reason. (Once again, it should be noted that Chidushei Harim does not classify this punishment as “makin veonshin.”)
This differentiation between killing and causing death appears in many places, including discussions on the permissibility of this punishment. See, for instance, Teshuvot haRashba, Ḥadashot Mi-Ktav Yad (Machon Yerushalayim, Vol. 8), 349. And see Shiurei Rabbi Shmuel, Makkot p. 405, footnote 110, and see Chemdas Yisrael, Ner Mitzva from 82b.
43
Deut. 19:13, The Kehot Chumash.
44
Deut. 19:13, The Schocken Bible, Everett Fox, 1995.
45
Ẓeror haMor, Deut. 19:13, and 21:9 (and see 21:1).
46
This phrase also appears in Deuteronomy 21:9.
There is an obligation to execute those who commit murder and possibly anyone deserving of capital punishment. However, this obligation is distinct from the court’s duty to administer the specific punishment prescribed for a given crime. This principle is derived from an earlier verse in Deuteronomy 13:6, which states, “Thus you will sweep out evil from your midst” (Deut. 13:6, The Contemporary Torah, JPS, 2006). See Sanhedrin 78a, and Mishneh Torah, Murderer and the Preservation of Life 2:9. See Minchas Elazar Vol. 4, 50, where he discusses the case of a person who, after being sentenced to death, becomes insane. He explains that the convict may still be executed based on this verse. [See HaMiddot leCheker haHalakhah, Part II, Method XI 33, which suggests that the obligation of “sweeping out evil” applies to the court rather than the individual being sentenced, this may not be entirely evident from the responsum in Minchas Elazar.]Rabbi Joseph Rozin (Rosen ) “the Rogachover” discussed this in multiple places, see for example; Responsum Ẓafenat Pa’ne’aḥ, (Warsaw) 19, and Ẓafenat Pa’ne’aḥ (on Mishneh Torah) Mahadura Tinyana, Mishneh Torah, Foreign Worship and Customs of the Nations 6:4. And similarly, the Kobetz Shiurim (Vol. 2, 39:3) considers the “kippah” punishment analogous to – and possibly an extension of – the obligation derived from this verse. Additionally, see Mishneh Halakhot Vol. 9, 328:3, where he distinguishes between two aspects of murder: the act of killing, for which the court sentences the perpetrator to death, and the removal of the victim’s soul from this world, which does not carry a formal death sentence. Consequently, one who kills a “treifa” (a person with a terminal condition) is not convicted but is still subject to the “kippah” penalty, for removing a soul from the world, and “permission was given to the court to kill and safeguard, and also to put him in a ‘kippah’…”
47
See; Tosefta Bava Metzia (Lieberman) 2:33; and see Avodah Zarah 26a, 13b, and Sanhedrin 57a.
48
See; Shulchan Arukh, Yoreh De’ah 158, and Shulchan Arukh, Choshen Mishpat 425, and Avodah Zarah 26b. Whether or not it is permissible to actively kill them, see; Siftei Kohen, Choshen Mishpat 388:56, and see Tosefta Kifshutah on Tosefta Bava Metzia 2:33, 82-83.
49
Avodah Zarah 26a-b, William Davidson Edition.
50
See Tosefta Kifshutah on Yevamot 3:1 (24), he brings an opinion that argues that this law applies to the domesticated animal, i.e. if the animal fell in a pit it is forbidden to save it, but it is also forbidden to place it in the pit.
51
See Tosafot, Avodah Zarah 26a, which explains that this ruling specifically applies to shepherds who are disqualified as witnesses only on a rabbinic level. However, it does not extend to others, even to those disqualified as witnesses on a biblical level. Tosafot writes that since the consequence was only rabbinic, people were not particularly careful about it. To reinforce their ruling, the rabbis implemented this measure, hoping it would encourage repentance and lead them to become honest citizens. He therefore argues that the rabbis enacted this under the “makin veonshin” clause. And see Nimukei Yosef (there), and Siftei Kohen, Yoreh De’ah 158:3. However, many authorities (see Responsa Chatam Sofer, Collected Responsa 67 and Chidushei Mahari Shapira, Avodah Zarah 26a) suggest that the Rambam may take a broader approach, extending the punishment beyond shepherds to apply more generally to sinners (on a biblical level as well).
52
Gilyonei haShas, Yevamot 90b. Others make this claim as well, see for instance; Divrei Yirmiyahu on Mishneh Torah, Foreign Worship and Customs of the Nations 10. And see; Torat Hanvi’im (Chajes) 6, p. 13d.
53
Some authorities believe that it is permissible to cause the death of a moser, but it is forbidden to kill him actively, similarly to the “kippah” punishment. Regarding this dispute see; Siftei Kohen, Choshen Mishpat 388:56, and see Chidushei HaRe’ah Avodah Zarah, and Tamim De’im 203, and see Rabbeinu Chananel, Avodah Zarah 26b. In addition, see Tosefta Kifshutah, Bava Metzia 2:33 (82-83).
54
See; “Informers .” Encyclopaedia Judaica.
55
See HaOnshin Acharei Chatimat HaTalmud, p. 65, and see “Moser” JewishEncyclopaedia:
“In Barcelona a descendant of a wealthy and respected family who had lost his fortune turned informer. In vain was he warned and threatened with an informer’s death. He was probably favored by the authorities and encouraged to continue in his nefarious conduct; and he was not to be enticed from his chosen path. His own family wished to get rid of him, and insisted on his being prosecuted. Rabbi Jonah of Gerona (nephew of Jonah b. Abraham Gerondi) and Solomon ben Adret of Barcelona, because of the insistence of King Pedro III. of Aragon, found themselves forced to let justice take its course and to deliver the informer to the king. The latter ordered his execution, which took place in the year 1280 in the square before the Monjuich, the Jewish cemetery in Barcelona, the arteries of both arms being opened (Solomon ben Adret’s Responsa in “J. Q. R.” viii. 228).”
56
See for instance; Tamim De’im 203, and see; Teshuvot HaRivash 238; Teshuvot haRashba Vol. 5, 238; Divrei Yirmiyahu on Mishneh Torah, Foreign Worship and Customs of the Nations 10.
57
See later that even for an individual’s safeguarding the court may punish “shelo min hadin.”
58
See for instance; Sefer Shimmush 15b, and Torat HaKenaot (Baumbach edition), p. 160.
59
See Igrot Kodesh Admur Hazaken, 89.
60
Bava Kamma 96b, William Davidson Edition.
61
Regarding this, see; “Damages .” Encyclopaedia Judaica.
62
“Fines .” Encyclopaedia Judaica.
63
“Fines .” Encyclopaedia Judaica.
64
In addition, see; Mordechai, Gittin 384; Teshuvot HaRivash 499; Teshuvot HaRi Migash 161. For further reading, see for instance; Shut Tzitz Eliezer Vol. 19, 51. Furthermore, it is an interesting topic, regarding exercising “makin veonshin” for an individual, even if not a communal necessity, regarding this see: https://www.psakim.org/Psakim/File/1141
65
Bava Metzia 39b, William Davidson Edition.
66
Akeidat Yitzchak 43 (Eliyahu Munk).
67
See; Sefer HaTashbetz, Vol. 1, 84 (towards the end Rabbi Hai Gaon’s responsum is quoted).
68
He then continued his responsum, exploring the possibility that even if the transfer was not intended to evade creditors, it still would not prevent them from collecting the debt.
69
See for instance; Mishneh Torah, The Sanhedrin and the Penalties within Their Jurisdiction 24:6; Ritva, Chullin 132b; Teshuvot HaRivash 499. And see; Torah Temimah, Exodus 24:14. Furthermore, see; Tur, Choshen Mishpat 2.
70
Chullin 132b, William Davidson Edition.
71
Bava Batra 48b, William Davidson Edition. The Talmud there discusses a case in which a man forcibly betrothed a woman, stating: “the Sages acted improperly with him, and the Sages expropriated her betrothal from him.” The same ruling appears in Yevamot 110a, concerning an individual who seized a child and married her. Likewise, in Ketubot 86a, this principle is invoked to compel someone to sell his field to repay a debt, as he had ready money but intentionally “attached” it to another to avoid payment. The Talmud states: “the Sages acted improperly with him by forcing him to sell the land.”
72
See the previous footnote, the Talmudic story was regarding one who “attached” his money to another to avoid payment, “the Sages acted improperly with him” and forced him to sell his land.
73
Authors translation, in hebrew: “כי חכמי התלמוד לא הספיקו לכתוב כל העתידות לבא”.
74
Gittin 40a, William Davidson Edition, and see Bava Metzia 101b.
75
See for instance; Sefer HaZekhut, Yevamot 44a. It would also seem so from Teshuvot haRashba Vol. 4, 203, and see Rav Hai Gaon quoted in Sefer HaTashbetz, Vol. 1, 84. See however; Tosafot, Gittin 40b, and Sefer HaTashbetz, Vol. 2, 3. Nonetheless, as noted in an earlier footnote, even if this is considered a legitimate law, its underlying reasoning could still fit within this paradigm.
76
Mishneh Torah, The Sanhedrin and the Penalties within Their Jurisdiction 24:1, trans. by Eliyahu Touger, Moznaim Publishing.
77
Regarding this law as “makin veonshin,” see; Beit Yosef, Choshen Mishpat 2; Sefer HaTerumot 62:6: and Terumat HaDeshen, Vol. 2, 209. In addition, see; Teshuvot haRashba Vol. 4, 311, and see Shenei Luchot HaBerit, Torah Shebikhtav, Mishpatim, Torah Ohr (as well as sources cited in earlier footnotes regarding this matter).
78
See; Mordechai, Gittin 384, Drisha, Choshen Mishpat 2.
79
See; Beit Yosef, Choshen Mishpat 2; Mordechai, Gittin 384; Teshuvot Maharam, Lemberg Edition 423; Rema, Shulchan Arukh, Choshen Mishpat 1:5, 2:1; Me’irat Einayim and Netivot HaMishpat Choshen Mishpat 2; Teshuvot haRashba Vol. 4, 311; Teshuvot haRashba Meyuchas LehaRamban 279; Teshuvot HaGeonim (Harkavy) 165. And see; Shut Maharam Lublin 138, that even for future considerations the court may impose “makin veonshin.”
80
Lev. 18:30, The Kehot Chumash.
81
See for instance, Mishneh Torah, Transmission of the Oral Law, trans. by Eliyahu Touger, Moznaim Publishing:
“Also, [the sources mentioned above] relate those matters which were decreed by the sages and prophets in each generation in order to ‘build a fence around the Torah.’ We were explicitly taught about [this practice] by Moses, as [implied by Leviticus 18:30]: ‘And you shall observe My precepts,’ [which can be interpreted to mean]: ‘Make safeguards for My precepts.’”
82
See Beur HaGra, Yoreh De’ah 228:93. And see; Terumat HaDeshen, Part I 281, and see Rabbi Avraham Sherman (1998), “Democratia VeShilton HaKahal BiMekorot HaHalakha” Shanah BeShanah journal, and (2012), “tzedek chevrati uzchuyot adam berei mishpat hatorah,” Shaarei Tzedek journal, issue 13. Regarding the concept of “takkanot ha-kehilot” being binding as halakha, see Teshuvot haRashba Vol. 5, 184, and Sefer HaTashbetz Vol. 4, 3. However, see; Turei Zahav there (Yoreh De’ah 228). [It only being rabbinic does not contradict our point, as the Vilna Gaon himself also believed it to only be rabbinic, and therefore would agree with the Turei Zahav, nonetheless, he felt that the ability to do so is recognized by the Torah the same way all rabbinic enactments are.]
There are those who understand this verse to be the source for “makin veonshin,” see Commentary on Sefer Hamitzvot of Rasag (ba Rabbi Yerucham Fishel Perla), Communal Laws, Introduction 15, and see Magen Avot on Avot 1:1.
83
See; “Confiscation, Expropriation, Forfeiture .” Encyclopaedia Judaica.
84
See for instance; Teshuvot Maharam MeRothenburg VeChaveirav Vol. 2, 402; Teshuvot Maharam, Lemberg Edition 423; Mishneh Torah, The Sanhedrin and the Penalties within Their Jurisdiction 24:6 and Rema, Choshen Mishpat 2.
85
Kiddushin 81a, William Davidson Edition. And see; Mishneh Torah, The Sanhedrin and the Penalties within Their Jurisdiction 24:5 and Beit Yosef, Choshen Mishpat 2.
86
Mishneh Torah, Theft 1:10, trans. by Eliyahu Touger, Moznaim Publishing.
87
Pirkei Avot 1:1, trans. Dr. Joshua Kulp.
88
See for instance Rambam ibid.
89
Sanhedrin 11a, William Davidson Edition. And see; Tosefta Sotah (Lieberman) 13:3.
90
Regarding Semikha, see; “Semikhah .” Encyclopaedia Judaica.
91
See for instance; Beur HaGra, Choshen Mishpat 1:25, the Rif quoted a Gaon seemingly with this opinion. And see; Guide for the Perplexed, Vol. 3, 41 (and see Chidushei Harim, Choshen Mishpat 2 [and the Nimukei Yosef he discusses]).
92
However, see Mishpat Kohen 144:8, that with “big things” the court has the authority to judge even outside its jurisdiction (due to the lack of semikhah), and saving the jewish nation constitutes that, he argues the court may judge even without “makin veonshin.”
93
See for instance; Nimukei Yosef on Sanhedrin 16a, Bnei Shmuel, Urim VeTumim, Urim and Chidushei Harim, Choshen Mishpat 2. See however; Shut Maharam Lublin 138, he brings a potential explanation according to which the Nimukei Yosef would allow the death penalty.
It should be noted, that even those that allow the death penalty, it is only as a one time ruling, not a consistent policy, see for instance; Torat Hanvi’im (Chajes) 6, p. 14d.
While we mentioned above many consistent rules under “makin veonshin,” the financial ones are incomparable to death penalty, see for instance, Rashi on Gittin 36b.
94
See for instance; Chidushei Haran, Sanhedrin 46a, and Derashot HaRan11, Abarbanel on Deuteronomy 17:8 (hoda’a 5). Furthermore see; Meiri, Sanhedrin 52b, and Torat Hanvi’im (Chajes) 6.
95
See for instance; Derashot HaRan 11, and see Mishpat Kohen 144, p. 335-337, and Meiri, Sanhedrin 52b, and Avnei Nezer, Yoreh De’ah 312, 50-52. Furthermore, see; Chevel Nachalato (Epstein) Vol. 1, 4. And see; Devar Avraham 1:5 (however he does not agree that the authority of “makin veonshin” comes from the king). And see; Torat Hanvi’im (Chajes) 7 (regarding the responsibilities of the king, and it being for the upkeep of the world).
96
See Tur, Shulchan Arukh, Choshen Mishpat 2. And see Igrot Moshe, Choshen Mishpat 2, 68.
97
See; Yam Shel Shlomo, Bava Kama 9:7.
98
See; Me’irat Einayim, Choshen Mishpat 2:9.
99
See for instance; Rosh, Bava Kamma 9:5; Tur, Shulchan Arukh, Choshen Mishpat 2.
100
See; Darkhei Moshe, Choshen Mishpat 2. In addition see; Ritva, Yevamot 89b. And see Maharach Or Zarua Responsa 180 seemingly needs to be like “Shmuel” or “Yiftach.”
101
See; Teshuvot HaRi Migash 161, and see Prof. Hanina Ben-Menahem (2002), “Anisha Shelo Min HaDin”, Mishpetei Eretz journal, issue 1 (Din Dayan VeDiyun), footnote 34. In addition, see; Teshuvot Maharam, Lemberg Edition 423. And see Teshuvot Maharik 188 that he brings authorities with this position as well.
102
Regarding a single judge see: https://www.psakim.org/Psakim/File/1141 However, regarding whether a court of 23 judges is required – particularly in cases involving the death penalty – see the following footnotes.
103
See Mishpat Kohen 143.
104
Regarding whether 23 judges are required or three judges can also judge these cases, see; Chemdas Yisrael, Ner Mitzva 84a, and Margaliot Hayam, Sanhedrin 81b. And see Teshuvot Maharik 188.
אף דראיתי שכתבו שאפשר וצריך ב”ד של כ”ג לא מסתבר שיצטרך זה למאי דקיי”ל דלא בעינן סמוכים כנ”ל, אך מ”מ אפשר דהי’ סברא שצריך לעשות כן לקרב אל הדין כפי שהוא ע”פ דיני התורה, ודוחק. ומ”מ יש לדקדק קצת מגמ’ דהוציאוה לשריפה דאיך טעו לומר שהית’ טעות אי הוי רק בב”ד של שלשה, ולכאורה טעות כזאת היו זוכרים, וגם דכתבו האחרונים ובמהרי”ץ חיות על הגמ’ התם דאע”פ ששינו מאחר שהי’ שלא מין הדין “ומ”מ כעין דאורייתא עבד,” ואע”ג דכוונתו לכאורה לזה שהי’ שריפה, מ”מ יש לדייק קצת דהוה ב”ד של כ”ג, ולדמות לדין של התורה, ובשו”ת משפט כהן סי’ קמ”ג כתב דזה הוה המחלוקת האמוראים במעשה הנ”ל, ד”הוא סבר שבדין של הוראת שעה יותר טוב להתקרב כמה דאפשר לדין תורה” ואף דכתב כן לענין דין שריפה מ”מ משמע דבכל ענין. ומיהו ראיתי בחי’ הרי”ם דכ’ דאים היו כ”ג שם לא היו טועים, ולכאורה הי’ אפשר בסברא לבאר דצריך כ”ג: דאי גם לדין מכין ועונשין צריכים כ”ג, שפיר אפשר לומר דהיו כ”ג ולא טעו, אך אם לא היו כ”ג התם ממ”נ קשה. וגם קצת משמע מהירושלמי סנהדרין ו’ ו’ בעובדה דהמחשפות דתלה שמנים ביום אחד ולא כתב רבותא דלא הי’ בב”ד של כ”ג, ודוחק לומר דלא ידעו מאי הוי, דאיך ידעו כל המעשה דהמכשפות, וכמ”כ אין לדייק מהא דכתיב שם של אדם אחק וכמו שמעון בן שטח, אך מ”מ אין ראי’. ומ”מ ע”פ מאי דקיי”ל דא”צ סמיכה ווודאי דמעיקר דינא דהוראת שעה אין צורך בב”ד של כ”ג. ומ”מ אף לענין דין כיפה, יש שכתבו דאפשר בב”ד של ג’ ואף החולקים בזה היינו משום דלדידהו הוי דאורייתא ולא תקנת חכמים ובוודאי אינו מדין מכין ועונשין.
105
Sanhedrin 52b, William Davidson Edition.
106
See for instance; Nimukei Yosef, Sanhedrin 16a. And see; Shut Maharam Lublin 138.
107
See for instance; Chokhmat Shlomo and Haggahot Ya’avetz on Sanhedrin 52b. And see; Mishpat Kohen 143. And see Chidushei Harim, Choshen Mishpat 2, he seemingly explains that the Talmud and the Nimukei Yosef could be saying that it was “makin veonshin.”
108
See for instance; Chidushei Harim, Choshen Mishpat 2, and see Chiddushei Anshei Shem, Yevamot 28b. And see; Haggahot Ya’avetz, Sanhedrin 52b (that is why they burned him, to make it similar to the real punishment, but nonetheless they made a small change). And see; Mishpat Kohen 143 that this is what the mistake was.
109
Different punishments for different crimes can also serve as means to judge severity of different transgressions, see; Rambam, Pirkei Avot 2:1.
110
The Book of Beliefs and Opinions, Treatise IV, chapter 2, trans. by Samuel Rosenblatt.
111
Guide for the Perplexed, Vol. 3, 41, Friedlander, 1903.

Olvass!

1. Talmudi Fogalmak

Talmudi Fogalmak Magyarul

Talmudi Fogalmak Magyarul

Makin Veonshin Shelo Min Hadin

Talmudi Fogalmak Magyarul

Olvass!

Táromet

Mákin Veonsin Selo Min Hádin

Gólem Gyilkolás

Diné Sámájim

Mi Seporá Midor Hámábul

Kinjánim