Law And Order
‘R. Elazar b. R. Shimon Would Apprehend Thieves …’
(Bava Metzia 83b)
Our daf relates how R. Elazar b. R. Shimon, under orders from the Roman government, would apprehend thieves and other sinners and mete out punishment to them.
Ritva (Bava Metzia ad loc.) questions the halachic basis for R. Elazar’s action on two counts. First, he seemingly meted out punishment on mere circumstantial evidence, without the required hasra’ah – prior warning.
Second, R. Elazar lived after the times of the Beit HaMikdash and as such did not have the authority to impose corporal punishment, even for crimes confirmed through proper evidence. That power is limited to the Sanhedrin – the high court – that existed in the times of the holy Temple.
Capital Punishment
The Gemara (Yevamos 90b) relates that in the time of Greek rule, the beit din imposed capital punishment on a man who rode his horse on the Sabbath in transgression of a rabbinic injunction. The Gemara explains that although the halacha does not call for such a severe punishment, the beit din were nevertheless empowered to enact emergency measures which might even include capital punishment.
The People’s Court
Based on this Gemara, the Mechaber (Choshen Mishpat 2:1) rules that even in our times, where we lack properly ordained judges (smuchin), beit din is empowered to mete out the most severe punishment where necessary. This obviously refers to a situation where they detect a general laxity regarding certain laws.
In such cases, the punishment they mete out is designed to ensure the continued commitment to mitzvot. However, the Mechaber limits this power to a leading sage or to communal officers who are accepted by the community at large.
Rema (ad loc.) seems to limit this ruling somewhat, further suggesting that in place of 39 lashes, the beit din require a monetary payment as an exchange for such punishment. Thus, we may understand R. Elazar’s actions. He detected a general lawlessness and the times demanded severe and prompt actions.
Ritva rejects this explanation, for only duly ordained judges have such powers. If so, then, how do we explain R. Elazar in our Gemara and the incidents as related in Yevamos (90b)? Ritva explains that only in a situation where the king – the ruling authority – has such arbitrary powers that permit him to administer punishment, capital or corporal, is a beth din, as in the case of R. Elazar, empowered to act on their behalf, when this is in the public’s best interest.
Due Process
However, today, where such arbitrary powers are not available to the authorities – rather, there is a requirement of due process – a beit din would not have such power either.
