The Gemara has spent a while discussing the specifics of how capital punishment is meted out — in particular, stoning — and placing strict limits on the court’s ability to exercise this punishment. For example, a few days ago, we learned that multiple appeals can be made in the minutes before execution. On today’s daf, we encounter a beraita that does the opposite — it actually expands the court’s powers to execute:
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 do so to violate the statement of the Torah, rather, they may administer these punishments to erect a fence around the Torah.
Rabbi Eliezer reports hearing the radical notion that the court can impose lashes or even death — punishments only merited by Torah-level violations — for lesser crimes. However, he immediately reels it back, acknowledging that such a statement without qualification could invest the courts with a concerning level of power. He states that courts can only impose these punishments that go beyond the letter of Torah law when there’s a dire need — i.e., when doing so is necessary to shore up Torah law.
A scenario like this may be difficult to picture. The Gemara proceeds to give two examples of the court exercising this power:
An incident occurred involving one who rode a horse on Shabbat during the days of the Greeks, and they brought him to court and stoned him, not because he deserved that punishment, but because the hour required it.
Another incident occurred involving a man who engaged in intercourse with his wife in public under a fig tree, and they brought him to court and flogged him, not because that punishment was fitting for him, but because the hour required it.
We have testimony of both capital punishment and lashes being meted out for violations that do not ordinarily merit this level of punishment, because they are not Torah-level violations; they are only rabbinic level. Riding a horse on Shabbat is only prohibited mishum shvut, on account of rest, and is not a forbidden labor — it is, in essence, not Shabbisdik (in the spirit of Shabbat). Under normal circumstances such a violation wouldn’t even merit lashes, let alone stoning. However, the Gemara explains, “the hour required it.” This was “during the time of the Greeks,” a period of intense repression and widespread assimilation, when the rabbis were worried that people would come to disregard Shabbat entirely. Therefore, they used this horse-rider as an example to highlight the stringency and seriousness of even rabbinic level Shabbat violations.
Similarly, in the case of the man having sex with his own wife in public, there is no Torah violation. Such behavior is, however, considered immodest, and presumably the rabbis at the time perceived that the public was taking matters of immodesty too lightly, and sought to make an example of him.
These cases help elucidate what the beraita meant by “erecting a fence around the Torah.” The court isn’t imposing these punishments at all times, on a whim, or even on a case-by-case basis. Rather, it’s only in very specific moments and circumstances, when the rabbis perceive there to be a crisis in the community’s ability to uphold Torah. Only under these more dire circumstances is the court licensed to carry out punishment that goes beyond the letter of Torah law.
Read all of Sanhedrin 46 on Sefaria.
This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on February 1, 2025. If you are interested in receiving the newsletter, sign up here.
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