Kommentar zu Dewarim 21:22

וכי יהיה באיש חטא משפט מות AND IF THERE BE IN A MAN A SIN DESERVING THE JUDGMENT OF DEATH — The juxtaposition of these sections (this and that of the rebellious son) tells us that if father and mother spare him (the rebellious son), he will in the latter end turn to mischief and commit sins for which he will become liable to the death penalty by the court (cf. Midrash Tanchuma, Ki Teitzei 1).

AND THOU SHALT HANG HIM. “Our Rabbis have said:¹⁰³Sanhedrin 45b. All that have been stoned must be hanged. It is this which is stated, for he that is hanged is a reproach unto G-d,¹⁰⁴Verse 23. and is a degradation of the King, for man is made in the image of the King, and the Israelites are His children. There is a parable of two brothers who resembled each other etc.”¹⁰⁵“One became king and the other was arrested for robbery and hanged. Whoever saw him hanging said that the king was hanged.” (Rashi, quoting the words of the Rabbis in Sanhedrin 46b). This is Rashi’s language. “All that have been stoned must be hanged” are the words of an individual Sage [i.e., Rabbi Eliezer],¹⁰³Sanhedrin 45b. but the law is according to the words of the Sages that no offender [executed by] stoning is hanged save the blasphemer and the idolator. This is the sense of the phrase, for he that is hanged is a reproach unto G-d,¹⁰⁴Verse 23. — because people will say, “Why was this person hanged? Because he blasphemed G-d or worshipped a particular idol by means of this particular service, and he saw therein this sign or wonder.” The discussion of the idol and the service thereof are considered a k’lalah [“a reproach” to G-d]. Or it is an expression of “degradation” as the Rabbi [Rashi] mentioned, from the expressions and he cursed me with a grievous ‘k’lalah (curse);¹⁰⁶I Kings 2:8. that his sons did bring ‘a curse’ upon themselves¹⁰⁷I Samuel 3:13. [both verses being expressions of] contempt. And the parable concerning the twin brothers contains a secret; it does not refer, as the Rabbi thought, to the Israelites who are called the children of G-d.¹⁰⁸See above, 14:1. Aboth 3:15.
In line with the simple meaning of Scripture the verse is stating: “If a man has committed a great sin for which he is deserving of death and of hanging on a tree because of the grievous nature of his sin, nevertheless his body shall not remain all night upon the tree,¹⁰⁴Verse 23. for the most accursed and blasted of all people is the hanged. Among all forms of death, there is none as ugly and despicable like it [this degradation of the human body], and it is not fitting that we defile the Land and that G-d’s curse be within the Holy Land, for there the Eternal commanded the blessing, even life forever.¹⁰⁹Psalms 133:3. Therefore Joshua commanded and they took them down off the trees.¹¹⁰Joshua 10:27.
In my opinion the affair of Saul’s children who were left hanging¹¹¹II Samuel 21:1-10. Related there is the event of a three-year famine in the days of King David. When he asked G-d the reason for it, he was told that it was in punishment of Saul’s mistreatment of the Gibeonites. (See Note 116 for the nature of Saul’s sin.) When David asked the Gibeonites how they could be appeased, they requested that they be given seven men of Saul’s family whom they would hang. As much as the king tried to mollify them, they insisted upon satisfying their lust for vengeance upon members of Saul’s family. When David acceded to their wishes, they left the victims hanging for a long period of time until the rains came. — The question here arises as to why David allowed the victims to be left hanging when the Torah states, his body shall not remain all night upon the tree? The answer follows in the text. — It should also be pointed out that because of their display of cruelty the Gibeonites were forever banned from marrying into Israel (Yebamoth 79a). was because they were not hanged by a court of Israel, nor by any Israelite. Rather, David who turned them [the seven members of Saul’s family] over to the Gibeonites to do as they pleased with them, and it was they who hanged them [Saul’s relatives] and did not wish to bury them in order to demonstrate their vengeance against Saul’s family, and those that remain shall hear, and fear.⁹⁸Ibid., 19:20: And those that remain shall hear, and fear. But when water was poured upon them from heaven¹¹²II Samuel 21:10. then David knew that their sin had been forgiven, and that G-d was entreated for the Land,¹¹³Ibid., Verse 14. that the Eternal had remembered the Land¹¹⁴See Ruth 1:6. with rain and the famine would end. Then he commanded and they [the Israelites] buried them with their fathers¹¹⁵See II Samuel 21:13-14. in honor of their royal status. David bore no guilt at all [in the entire affair], for we were commanded only that we not defile the Land by allowing someone whom we hanged [to remain on a gallows overnight]. Now, G-d did not want to forgive their sin [i.e., the sin of Saul’s conduct towards the Gibeonites] immediately in order to let it be known that G-d loves proselytes, as our Rabbis have said.¹¹⁶Joshua had made the Gibeonites hewers of wood and drawers of water for the congregation, and for the altar of the Eternal (Joshua 9:26). When Saul smote Nob, the city of the priests (I Samuel 22:19) the Gibeonites were thus deprived of their source of livelihood. It was this grudge that they held against Saul and his family. When they finally satisfied their vengeful feelings against the members of Saul’s family, all the heathens proclaimed “There is no nation as worthy of our allegiance as Israel! See how the G-d of Israel atoned for a wrong inflicted upon wretched proselytes through the sons of kings!” At that time, one hundred and fifty thousand heathens were converted to Judaism, because it was shown that G-d loves proselytes (Yebamoth 79a).
And Rabbi Abraham ibn Ezra said by way of the plain meaning of Scripture [that the phrase ki kilelath Elokim talui¹⁰⁴Verse 23. means] “that it is G-d Who invokes the evil, and the curse will descend upon the place near the hanged person, for there is a secret [in the fact that the contaminated air surrounding the corpse] affects the soul [of the living]. Therefore thou defile not thy Land. ”¹⁰⁴Verse 23. Thus whoever allows the body [of a criminal] to hang overnight transgresses both a negative commandment [his body shall not remain all night upon the tree]¹⁰⁴Verse 23. and a positive commandment¹¹⁷These are so listed among the Taryag (613) Commandments. See “The Commandments,” Vol. I, pp. 243-244, and Vol. II, p. 65. [but thou shalt surely bury him the same day].¹⁰⁴Verse 23. Our Rabbis have likewise interpreted¹¹⁸Sanhedrin 46a-b. that the same law applies to all other dead, that whoever suffers his dead to remain overnight, except in order to render it honor,¹¹⁹Such as the need for more time to secure a coffin, burial clothes, mourners, etc. (ibid.). If the burial is delayed for any of these reasons, no transgression is committed. [violates the above commandments]. Just as [leaving the criminal hanging overnight upon] “the tree” is a form of disgrace, so all forms of disrespect [shown to the dead are also forbidden]. Now, according to the opinion of the Rabbis [that this law applies equally to every deceased, we must say] that the phrase ki kilelath Elokim talui¹⁰⁴Verse 23. states that “although this criminal is deserving of disgrace” because of his great sin, nevertheless you shall not do so. And the parable of the two brothers [mentioned above] applies to everyone who suffers his dead to remain overnight. So also the curse [emanating from a corpse] to which Rabbi Abraham ibn Ezra referred, applies to every house where there is a dead person, and therefore he defiles everyone that cometh into the tent, and every thing that is in the tent.¹²⁰Numbers 19:14.

וכי יהיה באיש חטא משפט מות, "And when a man is guilty of a sin carrying the death penalty, etc." The reason the legislation in this paragraph follows on the heels of the legislation of the previous paragraph is because G'd extols the importance of refining man. First the Torah was concerned with man's personal refinement as expressed in the verse כי תצא למלחמה, man goes to war against his evil urge. Next G'd showed His concern about the rehabilitation of man's children, hence the paragraph about the delinquent son, בן סורר ומורה. In our verse the Torah refers to the scholars of the respective generation whose task it is to watch over evil doers. The Torah writes: כי יהיה באיש חטא משפט מות and he continues to be rebellious against G'd's law without repenting he will wind up being executed, והומת. The Torah blames the fact that it came to an execution on negligence by the leading scholars, the Rabbis. When the Torah writes: ותלית אותו על עץ, "you must hang him from a tree," this refers to the scholar, the fruit-bearing tree, who will have to bear the guilt or punishment of the sinner. G'd had charged the scholars with ensuring that errant sinners become penitents by disciplining them both by word and by deed (compare Erchin 16). We have written about this duty of the scholars already in Parshat Kedoshim. When the scholars are derelict in their duty to persuade the sinner to mend his ways the result is the death by execution of the sinner.

The Rabbis remark that all those who are stoned are also hung, etc. Because it is written, “[If a man is guilty of a capital offense] and is executed; you shall hang [him from a tree].” This is a general rule (כלל) that implies that all those who are executed are hung. Afterwards it is written, “For a hanging corpse is an affront to Hashem.” This is a specific statement (פרט) that implies that only someone who blesses [i.e. curses] the Name, is hung [because when people see him they are reminded of his sin that was an affront to Hashem], but not others who are executed, even those executed by stoning. When they (i.e., a כלל and a פרט) are juxtaposed, it is considered [a case of] כלל ופרט where [the rule is] the general rule only includes what is in the specific case; [implying] someone who blesses the Name, yes [i.e., he is hung, but] any other case, no [i.e., he is not hung]. But now [in our verses] they [the כלל and the פרט] are distant from each other, the general rule comes [and teaches] to include all who are executed. And the particular case comes and limits the general rule [and teaches] that only those who are stoned are hung, since they are partially similar to the particular case, for they are stoned just as the one who blessed the Name [is stoned].

V. 22. וכי יהיה באיש וגו׳. Das vorangehende בן סו׳׳מ-Gesetz schloss mit der Bestimmung: וכל ישראל ישמעו ויראו, und wird damit das dort behandelte Verbrechen zu den drei andern gefügt, deren Strafvollzug als Warnung für alle andere zu veröffentlichen war. Daran schließt sich hier das Verbot, nicht etwa in gleicher Absicht diejenigen Verbrecher, deren Leichen nach der Hinrichtung vorschriftsmässig an einen Pfahl schwebend hingehängt werden, zur Abschreckung anderer an dem Pfahle hängen zu lassen. Vielmehr sollen sie sofort wieder herabgenommen und, wie jeder andere Verstorbene, vor Sonnenuntergang begraben werden. Denn das augenblickliche Schwebenlassen der Leiche an dem Pfahl hat einen anderen Zweck und geschieht keineswegs in der Absicht, einen abschreckenden Anblick zu bereiten.

וכי יהיה באיש חטא משפט מות, “If someone had been guilty of a capital offense, (and had been duly executed);” this was added at this point as the corpse is going to be hung (for a few hours maximum)

ותלית אתו על עץ [AND IF THERE BE IN A MAN A SIN DESERVING THE JUDGMENT OF DEATH] THOU SHALT HANG HIM ON A TREE — Our Rabbis said, All those who have to be put to death by stoning must afterwards be hanged, for it is said here (v. 23) “for cursing of God ends in hanging”, and we are told that one who curses God is punished with stoning (cf. Leviticus 24:15—16; Sanhedrin 45b).

The Torah continues with לא תלין "do not let the body hang overnight." This is a commandment addressed to the people at large not to suspect a Torah scholar of a sin when they have observed him commit a deed which could be interpreted as a sin. You must assume that even if had committed a sin, he had already repented it by nightfall so that he would have rehabilitated himself before the following morning. The word נבלתו, "his dead body" in the sequence לא תלין נבלתו is a reference to the sin. We find that sin is also referred to as a "dead body" on occasion. כי קבר תקברנו, "for you must surely bury him." The Torah speaks about the need for you to bury this sin on that very day when it had been committed or presumed to have been committed. The reason for this is כי קללת אלוקים "for it is a curse of G'd." If you were not to give the scholar in question the benefit of the doubt and at least assume that he has meanwhile repented his mistake you would be desecrating the name of the Lord and would besmirch His honour.

Dieser ganze V. 22 ist Vordersatz und לא תלין וגו׳ ist der Nachsatz. Denn keineswegs ist die Leiche eines jeden Hingerichteten aufzuhängen. Nur bei zwei Verbrechen, מגדף und ע׳׳ז, ist dies Vorschrift, dass ihre Leiche nach der סקילה aufgehängt werde. Wir haben dies, sowie die Bedeutung dieser תליה als Vervollständigung des in סקילה sich verwirklichenden Gedankens des דמיו בו bereits Wajikra S. 442 zu entwickeln versucht. Hier folgt nur die gesetzliche Bestimmung, dass selbst bei diesen das allgemeine Verbot und Gebot לא תלין und קבר תקברנו nicht außer acht gelassen werden soll. Daher die Form: קבר תקברנו.

על עץ, not a tree that is still rooted in the earth, but on a wooden structure that had once been a tree. All the sinners guilty of death through stoning, including the rebellious son, will be hung afterwards as a deterrent, but must be buried before sunset. Compare Esther 5,14, where the gallows constructed by Haman to hang Mordechai from is called: עץ, “tree.”

The Torah concludes this paragraph with לא תטמא את אדמתך, "do not defile your soil." We can best understand this in conjunction with Shabbat 119 that Jerusalem was not destroyed until people were wont to impute base motives to the Torah scholars. The Talmud bases this on a verse in Chronicles II 36,16: "But they mocked the messengers of G'd and disdained His words and taunted His prophets." This is the reason that G'd commanded that people must not insult the Torah scholars. If they do, the Jews would be replaced by Gentiles in the Holy Land, who in turn will defile the land by their very presence.

ת׳׳ר אילו נאמר כי יהיה באיש חטא משפט מות ותלית, הייתי אומר :והומת ותלית תולין אותו ואחר כך ממיתין אותו כדרך שהמלכות עושה ת׳׳ל והומת ותלית ממיתין אותו ואחר כך תולין אותו (Sanhedrin 46 b). Offenbar ergibt sich aus dem Wortlaut unseres לל Textes, dass תליה keine Todesart, sondern eine Prozedur ist, welche nach der Hinrichtung vorzunehmen sein soll, und zwar, wie daselbst bemerkt wird, verschob man bei den Verbrechen, die תליה erforderten, Urteilsfällung und Hinrichtung bis gegen Ende des Tages, vollzog nach der Hinrichtung die תליה der Leiche an einen Pfahl und nahm sie sogleich wieder herab.