Tractate Makkot is a continuation of Tractate Sanhedrin, which is why the famous mishnah on today’s daf may have just as logically been found in the previous tractate:
A sanhedrin that executes a transgressor once in seven years is characterized as a destructive court (chovlanit).
Rabbi Elazar ben Azarya says: This categorization applies to a sanhedrin that executes a transgressor once in 70 years.
Rabbi Tarfon and Rabbi Akiva say: If we had been members of the sanhedrin, no person would have ever been executed.
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Rabban Shimon ben Gamaliel says: In adopting that approach, they too would increase the number of murderers among the Jewish people.
In his authoritative talmudic dictionary, 19th-century scholar Marcus Jastrow renders the word “chovlanit,” employed by the mishnah to describe a court that executes a prisoner once in 70 years, as not merely “destructive,” but rather “tyrannical,” noting that such a court “does not spare human lives.” After dozens of pages in the previous and current tractates exploring the conditions for enacting the death penalty, are we really to believe that applying the law would tarnish the reputation of a court so much that it is dismissed as tyrannical? After all, tyranny brings to mind dictators who decree at whim rather than by the rule of law, and determining the law underpins the entire purpose of the Talmud. How are we to understand this statement?
The opinions expressed by the rabbis quoted in this mishnah parallel the modern debate about the death penalty, enumerating three different opinions about its application. Let’s unpack them.
First, we have the tanna kamma, the first opinion which represents the anonymous editor of the Mishnah, and Rabbi Elazar ben Azarya. Their opinion seems to be that sentencing someone to death should be done only in exceedingly rare cases. The way the mishnah is written, though, it’s unclear whether such a court is called destructive or tyrannical if they execute just one person, or more than one person, within the time frame. The Gemara doesn’t know either:
A dilemma was raised before the sages: Is Rabbi Elazar ben Azarya saying that a sanhedrin that executes once in 70, rather than seven, years is characterized as a destructive tribunal? Or perhaps he is saying that standard conduct is for a sanhedrin to execute once in 70 years, and only if it executes more than one person during that period is it characterized as destructive? The Gemara concludes: The dilemma shall stand unresolved.
The second opinion is that of Rabbis Tarfon and Akiva: The death penalty should never be enacted. These two assert that if they had been on the sanhedrin, it never would have been. How would they have avoided it? The Gemara notes that they would have asked such difficult questions of the witnesses that it would have been impossible to sentence a person to death.
The third opinion, that of Rabban Shimon ben Gamaliel, is that the death penalty is essential in order to deter murderers. If it’s known that the sanhedrin would never actually execute anyone, potential killers would feel empowered to act on their murderous desires; as Rashi states, “If you would have done this you would have increased murder in Israel because people would no longer fear the court.” Rabbi Shimon ben Gamaliel’s view shouldn’t be dismissed as an outlier, however; as chief justice of the sanhedrin, he likely saw more of these types of cases than most.
Still, other forms of deterrence exist without relying on court-enacted capital punishment. As our previous studies in Tractate Sanhedrin make clear, there are additional ways to ensure that a murderer is held accountable. Remember the tactic of locking up a prisoner and feeding them barley until their stomach bursts and kills them? And of course, there’s the theological understanding that a person who commits murder or another capital crime for which they are not executed will nevertheless get their comeuppance in the hereafter.
It’s important to note that capital punishment could only be enacted when a full sanhedrin was able to meet. By the time of the Talmud, this was no longer the case, and so discussions of the death penalty in rabbinic literature are largely theoretical. In the modern State of Israel, the sentiment of the Mishnah underpins current law: While the death penalty is legal, it has been employed just twice in the country’s more than 70-year history. Most of us know about the trial of Adolf Eichmann, one of the primary architects of the Holocaust, who was executed in 1962 for crimes against humanity and crimes against the Jewish people as a whole. Less well known is the case of Meir Tobiansky, an officer in the Israeli army, who was executed for treason in 1948 – and posthumously exonerated.
Read all of Makkot 7 on Sefaria.
This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on April 15, 2025. If you are interested in receiving the newsletter, sign up here.
