Комментарий к Дварим 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.