Halakhah su Deuteronomio 17:8

With the destruction of the Temple, the statutory death penalty lapsed entirely. In establishing this rule the Gemara, Sanhedrin 52b, cites the biblical passage, "And you shall arise and go up to the place which the Lord your God shall choose. And you shall come unto the priests, the Levites and the judges who shall be in those days …" (Deuteronomy 17:8-9). Judicial authority was vested in the courts, not in the priests and Levites. Reference to priests and Levites in this context is therefore incongruous. The Gemara declares that the juxtaposition of the terms "priests and Levites" with "judges" serves to teach that judges may impose the death penalty only during such periods as the priest performs his priestly functions in conjunction with the sacrificial rituals. The concluding phrase, "and go up to the place which the Lord your God shall choose," serves to establish a second condition, viz., that such penalty may be imposed by the courts only when the Great Sanhedrin sits in "the place which the Lord your God shall choose," i.e., within the precincts of the Temple.¹Citing these considerations, Rabbi Isaac ha-Levi Herzog, Yavneh, Vol. III, no. 1 (Nisan 5709), p. 10, expressed opposition to introduction of capital punishment in the State of Israel. Rambam, Hilkhot Sanhedrin 14:11, codifies both requirements in ruling that the death sentence may not be imposed in the absence of either of these two conditions.²Another impediment to imposition of capital punishment is a lack of qualified judges. In order to sit in judgment in capital cases, as well as in some areas of jurisprudence involving imposition of fines, the judges must be recipients of semikhah or ordination conferred upon them for this purpose. Semikhah was transmitted by the ordainor to the ordainee in an unbroken line of succession having its origin in the appointment by Moses of the seventy elders; see Numbers 11:16-17, 24-25 and Rambam, Hilkhot Sanhedrin 4:1. This chain of transmission was interrupted in the middle of the fourth century as a result of persecution; see Ramban in his gloss to Rambam’s Sefer ha-Miẓvot, miẓvot aseh, no. 153. An attempt to restore the institution of semikhah was made in Safed in 1538 by R. Jacob Berab. This scholar predicated his action upon a ruling of Rambam, Hilkhot Sanhedrin 4:11, to the effect that all the sages residing in Ereẓ Yisra’el even though they themselves lack semikhah, may nevertheless collectively confer ordination and any person so ordained is thereupon privileged to ordain others. This action was bitterly opposed by R. Levi ben Jacob ibn Habib, who, at the time, was the foremost scholar of Jerusalem. The latter scholar composed a treatise entitled Kuntres ha-Semikhah (Venice, 1565) detailing the reasons for his opposition. As a result no further candidates were ordained and the institution of semikhah was allowed to lapse. For a discussion of this controversy see Jacob Katz, “The Ordination Controversy between R. Jacob Berab and R. Levi b. Habib,” Ẓion, XVI (1951), 28-45. A comprehensive list of articles written in recent years dealing with the question of semikhah in conjunction with the issue of reinstitution of the Sanhedrin appears in Nahum Rakover’s Oẓar Mishpat (Jerusalem, 1975), pp. 161-163.

Rabbenu Nissim, Derashot ha-Ran, no. 11, however, asserts that this power is vested solely in the king, at least insofar as offenses "against man" are concerned. If the Bet Din enjoys such power at all, asserts Rabbenu Nissim, it is limited to offenses "against God." Rabbenu Nissim concedes, however, that in the absence of a king such monarchical prerogatives are vested in the Great Sanhedrin. See also Or Sameaḥ, Hilkhot Rozeaḥ 3:10. Abarbanel, in his commentary on Deut. 17:8, takes issue with Rabbenu Nissim but apparently maintains that only the Great Sanhedrin, as distinct from inferior courts, possesses this power. Similarly, Nemukei Yosef, Sanhedrin 52b, declares that the power to impose capital punishment in this manner is limited to the Great Sanhedrin. Similarly, Teshuvot ha-Rosh, klal 17, no. 8, states that capital punishment may be imposed only by a Sanhedrin. According to Nemukei Yosef, inferior courts may impose extraordinary forms of corporal punishment but may not execute malefactors. Rabbenu Nissim, Hiddushei ha-Ran, Sanhedrin 46a, states that extra-statutory punishment can be imposed only by a Bet Din which is "expert and ordained as [were] Shimon ben Shetaḥ and his colleagues." These positions are rejected by Shulḥan Arukh, Hoshen Mishpat 2:1. See also Teshuvot R. Ya'akov ben ha-Rosh, no. 58; Teshuvot Rivash, no. 251; Me'iri, Sanhedrin 52b; and Teshuvot Maharam me-Lublin, no. 138. Cf., however, Urim ve-Tumim, Urim 2:2. Teshuvot ha-Rashba, V, no. 238, states that the death penalty may be imposed only by the greatest authority of the generation; see also Tur Shulḥan Arukh, Hoshen Mishpat 2:1. For an analysis of Rambam's position see Birkei Yosef, Hoshen Mishpat 2:3 and R. Benjamin Rabinowitz-Teumim, Ha-Torah ve-ha-Medinah, IV, 56-58.

From the laws of the commandment is that which they, may their memory be blessed, said (Sanhedrin 87a), that even though one who transgresses that which the Sages explained about the words of the Torah, transgresses this negative commandment of "you shall not stray"; nonetheless a man does not have the designation of a rebellious judge - known in the Gemara at the end of Sanhedrin 89a, who is liable for the death penalty - until he disagrees with the Great Court (see Mishneh Torah, Laws of Rebels 3:5, 7), and that he is a sage that has reached [the level] of pronouncing decisions [and] is ordained like the [members of the] Sanhedrin, and that he disagrees with them on a matter the volitional transgression of which [brings] excision and the inadvertent violation of which [brings] a sin-offering, and he instructs to do according to his decision or [himself] does the act according to his decision, as it is stated (Deuteronomy 17:12), "who wantonly does" - and not that he only instructs. But if he is a student that has not reached [the level] of pronouncing decisions, and makes a decision; he is exempt, as it is stated (Deuteronomy 17:8), "If a matter is baffling to you" - one who only a baffling thing is beyond him. And so [too,] if he found them outside of the Compartment of Paved Stone (in the Temple) and he rebelled against them, he is exempt, as it is stated, "and you will arise and go up to the place" - teaching that the place causes (is a requirement for) the death penalty.