Ben Sorer Umoreh and the Purposes of Punishment

Many schools gravitate towards teaching the eighth perek of Sanhedrin in part because many of its sugyot raise fundamental moral questions that can prompt excitement and reflection among students. The topic with which the chapter begins, and from which it derives its name, Ben Sorer Umoreh, the “wayward and rebellious son” of Devarim 21:18-21, is no exception. The seemingly unfair death penalty for what sounds like teenage rebellion of the Ben Sorer Umoreh raises thorny questions about justice and the purposes of punishment. The rabbinic reception and interpretation of the halakhot raise additional questions about the interpretative power of the rabbis and the role of outcome-oriented reasoning in halakha. Framing this topic carefully, beginning with a robust background on punishment and the death penalty in general, moving into the pesukim, and then looking at the Mishnayot and then beraitot in the chapter, offers a structured way to highlight these issues with clarity.

While the topic of Ben Sorer Umoreh on its own generates sharp moral questions and critiques from students, I have found that it is helpful to introduce terminology and concepts from general theories of punishment first. Students can then use these terms to clarify and articulate their reactions when we come to the Ben Sorer Umoreh specifically. From this comparison, certain unique features of the rabbinic approach to punishment and to Ben Sorer Umoreh also emerge.

Framing the Death Penalty and the Purposes of Punishment

The textbook purposes of punishment are often listed as retribution, deterrence, incapacitation, rehabilitation, and restitution. I generally introduce these categories by presenting a series of hypothetical scenarios about relatable offenses such as school disciplinary infractions or street crime, and asking students what they think the punishments should be and why. The ensuing discussion naturally generates several key points, including these: how “bad” both the intent behind an action and its consequences are should impact how harsh the punishment is (retribution or “just desserts”); repeat offenders may require harsher punishments to stop their behavior (in legal parlance, this is called “specific deterrence”); authorities may feel the need to “make an example” out of someone to deter others from engaging in the same behavior (known as “general deterrence”); sometimes an administrator may give a penalty with the hopes that the student will learn or grow from the experience (rehabilitation); sometimes someone may be so unreliable not to repeat their offense that they need to lose the right to participate in a particular activity or in society at large (incapacitation); and sometimes the most obvious consequence would be to right the wrong, such as by helping the person you harmed or paying back¹ something stolen (restitution).

Once students have articulated the concepts and been introduced to formal terms for them, we consider which could apply to the death penalty. Retribution, deterrence (general, but not specific), and incapacitation are all plausible reasons to execute someone.² Rehabilitation is, presumably, irrelevant since the person is not alive to be rehabilitated.

The Torah, in fact, does seem to articulate all three of these reasons for the death penalty in different places. The first discussion of the death penalty appears in parashat Noach (Berishit 9:5-6):

(ה) ואך את־דמכם לנפשתיכם אדרש מיד כל־חיה אדרשנו ומיד האדם מיד איש אחיו אדרש את־נפש האדם. (ו) שפך דם האדם באדם דמו ישפך כי בצלם אלקים עשה את־האדם.

(5) But for your own life-blood I will require a reckoning: I will require it of every beast; of humankind, too, will I require a reckoning for human life, of everyone for each other. (6) Whoever sheds human blood, by human shall his blood be shed; for mankind was made in the image of God.

Verse 6 begins with the chiastic phrase שפך דם האדם באדם דמו ישפך. The “case,” one who spills human blood, is reversed literally in the “rule:” by humans will his blood be spilled. This literary reversal reflects the idea that the punishment is what the crime “deserves.” The punishment fits the crime linguistically as it does conceptually. The Chumash thus suggests retribution as the reason murder should carry the death penalty. The continuation of the verse, which offers a reason for the punishment (humans were made in God’s image), reinforces the same idea: murder carries the death penalty because of the crime’s severity.

The legal sections of the Torah also, sometimes, offer reasons for the death penalty. For example, in discussing the rebellious elder in Devarim 17:12-13, the Torah offers two reasons for his execution. First, ובערת הרע מישראל, “thus you will sweep out evil from Israel,” and then וכל־העם ישמעו ויראו ולא יזידון עוד, “all the people will hear and be afraid and will not act presumptuously again.” The second is easily identifiable as a concern about deterrence. The former, “sweeping out evil,” maps less clearly onto the five secular purposes of punishment. It seems to combine retribution and incapacitation,³ and in some classes I would leave our analysis at that. In other classes, I might dig deeper into the ways this rationale, even if it is incapacitation, differs from its secular counterpart, either because there is some suggestion of metaphysical pollution that must be stamped out⁴ or because the concern is not with physical harm to individuals or society but with spiritual harm.⁵

So the Chumash does arguably present the three reasons for the death penalty that we would anticipate. So far so good. Chazal, however, take a surprising turn. Mishnah Sanhedrin 6:2 (43b), in discussing the procedure for execution, states:

היה רחוק מבית הסקילה כעשר אמות, אומרים לו: התודה, שכן דרך כל המומתין מתודין. שכל המתודה יש לו חלק לעולם הבא… ואם אינו יודע להתוודות, אומרים לו, אמור: תהא מיתתי כפרה על כל עונותי.

When the condemned man is at a distance of about ten cubits from the place of stoning, they say to him: confess your transgressions, as the way of all who are being executed is to confess. As whoever confesses his transgressions has a portion in the World to Come… And if he does not know how to confess, they say to him: say, “Let my death be an atonement for all my sins.”

Here, the rabbis introduce, if not a purpose, then at least a side benefit of the death penalty: with confession, it may achieve atonement for the person being executed. Although initially we may have written off rehabilitation as impossible when the criminal is killed, a legal system that assumes humans have souls changes the calculation. Although the person may not be alive, their soul may still reap benefits from their punishment. Having introduced the terminology of rehabilitation and set it up as distinct from other purposes helps to highlight this point more clearly than learning the Mishnah alone.⁶ The focus on the status of the criminal’s soul in this Mishnah from chapter 6 also prepares students to encounter similar concerns in chapter eight, both with Ben Sorer Umoreh and the idea of מצילין אותן בנפשן on 73a (as read by Rashi there).

This Mishnah about confession is also an interesting opportunity to introduce last words from executed convicts in the United States. For example, the now-defunct website GoodbyeWarden.com collected the last words of inmates executed in the state of Texas, which are also published by the state Department of Criminal Justice. Some of these quotes can dramatize both the human stakes in these abstract conversations about the death penalty as well as the societal motives for continuing it.⁷

As a final piece of background, I often like to introduce Mishnah Makkot 1:10, the well-trodden dispute about how frequently a Sanhedrin should carry out the death penalty.

סנהדרין ההורגת אחד בשבוע נקראת חבלנית. רבי אלעזר בן עזריה אומר, אחד לשבעים שנה. רבי טרפון ורבי עקיבא אומרים, אלו היינו בסנהדרין לא נהרג אדם מעולם. רבן שמעון בן גמליאל אומר, אף הן מרבין שופכי דמים בישראל.

A Sanhedrin that executes once in seven years is called destructive. Rabbi Elazar ben Azarya says: once in seventy years. Rabbi Tarfon and Rabbi Akiva say: if we had been members of the Sanhedrin, no person would have ever been executed. Rabban Shimon ben Gamliel says: they too would increase the number of murderers in Israel.

Rabban Shimon ben Gamliel explicitly justifies the death penalty as a deterrent, but the motivation of the first three opinions, and especially of Rabbi Tarfon and Rabbi Akiva, is unclear. This Mishnah raises thorny questions about the degree to which halakha’s own terms can be used to redirect it in radical directions, and whether and how rabbis may rely on their own ethical intuitions to shape the law.⁸

Ben Sorer Umoreh

With all this as background, we are ready to encounter the Ben Sorer Umoreh, introduced in Devarim 21:18-21:

(יח) כי־יהיה לאיש בן סורר ומורה איננו שמע בקול אביו ובקול אמו ויסרו אתו ולא ישמע אליהם. (יט) ותפשו בו אביו ואמו והוציאו אתו אל־זקני עירו ואל־שער מקמו. (כ) ואמרו אל־זקני עירו בננו זה סורר ומרה איננו שמע בקלנו זולל וסבא. (כא) ורגמהו כל־אנשי עירו באבנים ומת ובערת הרע מקרבך וכל־ישראל ישמעו ויראו.

(18) If a man has a wayward and defiant son, who does not heed his father or mother and does not obey them even after they discipline him, (19) his father and mother shall take hold of him and bring him out to the elders of his town at the public place of his community. (20) They shall say to the elders of his town, “This son of ours is disloyal and defiant; he does not heed us. He is a glutton and a drunkard.” (21) Thereupon all the men of his town shall stone him to death. Thus you will sweep out evil from your midst and all Israel will hear and be afraid.

According to their simple meaning, the pesukim can be broken into a casuistic mikreh-din-ta’am (case-rule-reason) format: Case: parents have a rebellious child who does not respond to their punishment, so they bring him to court.⁹ Rule: He is stoned to death. Reason: Expunge evil and create a deterrent (similar to what we saw with the rebellious elder). At this point we can notice that the “case” is ambiguous. For example, we may wonder: what is the nature of this child’s “rebellion”? And how much of a “child” is he (or she?)? The straightforwardness of the rule and reason, and the severe nature of the penalty, only serve to underscore these questions. What could a child have done that would justify stoning him and would not otherwise be included among the Torah’s many other death penalty offenses?

Using the terminology and concepts they have learned about the purposes of punishment, students can begin to formulate exactly what is so distressing to many of them about the punishment of the Ben Sorer Umoreh. While they may concede that it could serve the two stated purposes of the Torah, incapacitation and deterrence, they are bothered because it seems sorely lacking on the retribution axis. This is a useful moment to pause and reflect on the centrality of retribution in our conception of fairness. Many learners (both children and adults) express discomfort with retribution, sensing that it comes uncomfortably close to revenge, and preferring forward-looking, societal rationales for punishment such as deterrence, incapacitation, or rehabilitation. The widely-shared reaction to the Ben Sorer Umoreh’s prescribed execution highlights the central role retribution plays in our instincts about punishment — especially, but I would suggest not exclusively, capital punishment.

At the end of this step in the unit, we are left with a clearly articulated problem and no clear solution: the punishment does not seem to fit the crime.

We are now ready to turn to the rabbinic reading of these texts, keeping our central question at the forefront. Were Chazal sensitive to this problem? How can we tell? And if they were bothered by the same question as we are, how did they respond?

I like to begin by having the students review Mishnayot 8:1-5 bechavruta with guiding questions (and with a brief maturity reminder about the impending mention of pubic hair). I ask them to evaluate the rules in the Mishnayot and their stated sources in the pesukim. What do they think of these drashot? Are they “good” sources for the rules? And can they pick out any trends in the rules? What is happening to the scope of the rules potential application? Since the goal is to evaluate overall trends, I offer the texts in English for a class with weak Hebrew skills so that they can spend their energy on the larger questions.

As they frequently are with drashot, students are often skeptical of some of the derivations. For instance, students often question why the parents cannot be physically disabled because the Torah says they “grab” the son (Mishnah 4). This allows me to ask, why might the Rabbis be engaging in these readings? Even in a class where students generally struggle with abstract thinking, someone generally raises the possibility that the Rabbis are intentionally narrowing the scope of the halakha with these technical or hyper-literal readings. It is important to offer the caveat that technical and hyper-literal readings are not unusual for drashot, something students have encountered before. Nevertheless, having framed our learning with the big question from the pesukim, students are primed to suggest the trends in the Mishnah as possibly reflecting a rabbinic sensitivity to the same question.¹⁰

Approaching the Mishnayot with the fundamental questions of “does the punishment fit the crime?” encourages students to read the Mishnah with an eye to broader questions of interpretative license and motive. If the Rabbis are intentionally narrowing the scope of Ben Sorer Umoreh, further, that has something of a parallel in the Gemara we have already seen on Makkot 7a, where the Gemara suggests that Rabbi Akiva and Rabbi Tarfon would apply the rules of evidence hyper-technically to acquit capital defendants. Applying procedural rules in a specific case, and applying interpretive rules to a topic as a whole, are different. Nevertheless, they raise overlapping questions about the nature of rabbinic authority, preparing students for discussions of those questions elsewhere in our curriculum.¹¹

Near the end of the Misnhnah’s discussion of Ben Sorer Umoreh we encounter the Mishnah’s claim that בן סורר ומורה נידון על שם סופו, the wayward and rebellious son is judged “according to his end,” that is, based on his projected future actions. With this line, the Mishnah seemingly concedes that the Ben Sorer Umoreh’s actions to this point do not “deserve” the death penalty that he will receive. This seems like clear evidence that the Rabbis were sensitive to the “big question” of Ben Sorer Umoreh, as are we. Their answer, however, leans into the lack of retribution rather than “resolving” it.

What exactly is the Mishnah saying? I’ve been tempted to suggest that נידון על שם סופו here means that the Ben Sorer Umoreh does “deserve” punishment, based on the evil that is already in his heart and just has not come to full expression in action yet. This response tracks most closely with our intuition that retribution is a necessary criterion to make the death penalty “fair.” At the same time, this reading is unsatisfying, as the “pre-crime”¹² punishment of the Ben Sorer Umoreh is not – and we sense should not be – generalizable to other, even more hardened evildoers. An alternative explanation of this line alone would be that the Ben Sorer Umoreh ’s “end” justifies his incapacitation-by-death now to protect his future victims.¹³

The next line in the Mishnah takes us in a different direction:

ימות זכאי ואל ימות חייב, שמיתתן של רשעים הנאה להן והנאה לעולם. לצדיקים רע להן ורע לעולם.

Let him die innocent and not die guilty, for the death of the wicked is a benefit to them and a benefit to the world. [The death] of the righteous is bad for them and bad for the world.

The idea that the death of the wicked is good for the world reinforces that the Mishnah is aiming for incapacitation here: removing the Ben Sorer Umoreh before he causes (more) harm. What of the idea that his death is good for him? Here we return to the radical rabbinic move in Mishnah 6:2 of presenting the death penalty as a form of כפרה for the criminal. There confession execution and subsequent decomposition of the body provide a path back into the community and into God’s presence for the sinner’s soul. Here the Torah does the sinner the “favor” of executing him before his soul is “too” tainted allowing him to “die innocent.” This is less rehabilitation than salvation but once our focus is on the state of the sinner’s soul in the next world rather than on his actions in this one the idea of “pre-crime” is less disturbing.

The idea that the Torah’s legal system exacts very real, physical punishments that it ultimately justifies on an entirely spiritual basis (since the usual purposes of punishment fail to adequately justify the penalty) is challenging. At the same time, this is a good place to reflect on two things: first, the rabbis’ concern for the wellbeing of the criminal actually is generalizable to secular legal systems. While the idea that that concern could manifest entirely spiritually may be foreign, the idea that the law should consider not only what is best for society but what is best for even the person it is punishing can be powerful. Second, for all that we can use contemporary legal terms and concepts to explain the Torah, it is not “just” another legal system that can be justified or explained solely in human terms.

In connection with this Mishnah, I find it useful to introduce the beraita at the top of 72a which expands on נידון על שם סופו to explain exactly what “end” is being avoided.

תניא, רבי יוסי הגלילי אומר וכי מפני שאכל זה תרטימר בשר ושתה חצי לוג יין האיטלקי אמרה תורה יצא לבית דין ליסקל? אלא הגיעה תורה לסוף דעתו של בן סורר ומורה, שסוף מגמר נכסי אביו ומבקש למודו ואינו מוצא, ויוצא לפרשת דרכים ומלסטם את הבריות.

It is taught: Rabbi Yosi HaGelili says: Is it just because this boy ate a tarteimar of meat and drank a half-log of Italian wine that the Torah states that he shall be taken out to court to be stoned? Rather, the Torah considered the ultimate mind-set of the stubborn and rebellious son, for in the end he will squander his father’s property, and then, seeking that which he had become accustomed but not finding them, he will go out to the crossroads and rob people.

There are several points to make about the “story” this beraita tells. It is noteworthy that the beraita feels the need to tell a story at all. Here I point students to legal scholarship about the nature of “slippery slope” arguments.¹⁴ We can discuss how slippery slope arguments (if X now, then Y later) may be stronger or weaker depending on whether the proponent can tell a compelling story of exactly how X would lead to Y, not only in the mind of the critic but in concrete steps in the world. The beraita here tells such a story: a son who consumes rapaciously will not be able to stop just because he has run through his parents’ assets; he will instead turn to robbery and murder.

This story may sound implausible on some level; high school students have no trouble imagining that an out-of-control teenager may “straighten out” rather than become a highway robber! At the same time, this story may raise associations with the contemporary understanding of addiction. There, too, while we resist the idea that anyone is irretrievable, students understand more how, especially in the ancient world, some people might have seemed truly incorrigible.

At this point, we can pretty confidently answer in the affirmative that Chazal were sensitive to the same qualms about Ben Sorer Umoreh that bother contemporary readers. Whether or not the halakhot of Ben Sorer Umoreh intentionally narrow its scope, that the Mishnah needed to offer an explicit justification for his execution (נידון על שם סופו) and that the beraita opens with a rhetorical question that highlights the mismatch between the crime and its punishment are evidence that the Rabbis too were bothered by the lack of apparent retributive justice in this case.

In addition to the beraita that expands on the Mishnah, there is a related beraita on the previous page (71a) to which we now turn.

דתניא, אמר רבי שמעון: וכי מפני שאכל זה תרטימר בשר ושתה חצי לוג יין האיטלקי, אביו ואמו מוציאין אותו לסקלו? אלא לא היה ולא עתיד להיות, ולמה נכתב? דרוש וקבל שכר. אמר רבי יונתן: אני ראיתיו וישבתי על קברו.

It is taught: Rabbi Shimon says: And just because he ate a tarteimar of meat and drank a half-log of Italian wine that his father and his mother shall take him out to stone him? Rather, there has never been [a ben sorer umoreh] and there will never be one in the future. And why, then, were [these laws] written in the Torah? So that you may expound them and receive reward for your learning. Rabbi Yonatan says, I saw [a ben sorer umoreh] and I sat on his grave.

The beraita begins with a very similar question to the one from 72a: just because this child stole meat and wine, should he be killed? This is, again, a fairly explicit articulation of our central question in this unit: does the punishment of Ben Sorer Umoreh fit the crime? It is highly tempting to suggest that Rabbi Shimon writes Ben Sorer Umoreh out of practical existence because his answer to our question is “no, this punishment seems unjust.” Nevertheless, as Rabbi Shmuel Hain has argued,¹⁵ the larger context of the sugya suggests that Rabbi Shimon’s claim (earlier also attributed to Rabbi Yehudah) is driven by the pragmatic impossibility of fulfilling the various criteria that midreshei halakha have imposed. And yet, I do think a categorical reading of Rabbi Shimon’s position in the beraita is still worth introducing.¹⁶ If Rabbi Shimon were making a claim about something being unlikely, then Rabbi Yonatan’s “testimony” that Ben Sorer Umoreh did happen should sway Rabbi Shimon. Instead, Rabbi Shimon’s concern about not only the lack of past but the lack of future implementation suggests that he may be motivated by a categorical opposition to executing the Ben Sorer Umoreh, not merely a practical one.

Perhaps the key phrase of the beraita for our purposes however is not לא היה ולא עתיד להיות but the rhetorical question and answer: rather ולמה נכתב? דרוש וקבל שכר, so, if it is not to be implemented, why was Ben Sorer Umoreh written in the Torah? Interpret it and receive a reward.

First, the question: If Rabbi Shimon is responding to the practical impossibility of executing a Ben Sorer Umoreh, his question is only magnified for us and our students, living thousands of years after the Sanhedrin ceased to conduct executions at all. While we may not need to ask “why is it written,” we certainly ask “why are we learning this?” If, alternatively, we understand Rabbi Shimon as raising an ethical objection, then his question also has a contemporary analog: “How could the Torah say this?” Students may ask both of these questions, either at the beginning or the end of our studies of this topic.

Rabbi Shimon’s answer provides an opportunity for reflection on our learning process. What does he mean when he says, “interpret it and receive reward”? Students who are socialized into a culture that valorizes Talmud Torah as a mitzva for its own sake may intuitively understand this line as simply saying “learning Torah is valuable even if its practical application is limited.” There are other interpretations, however. For example, perhaps the process of studying these laws is supposed to reinforce certain values, such as discipline in child rearing¹⁷ or respecting one’s parents. The lesson for us may also be one level of abstraction: this passage is in the Torah so that we can grapple with it, expound upon it, and come to the conclusion that it should not be implemented as the pshat suggests.¹⁸

While often the work of “making sense” of Gemara arises through the flow of an individual sugya, there is also parallel work to be done in framing sugyot with background that allows richer engagement with their content. Introducing concrete concepts and terminology for the purposes of punishment, and tracing their appearance in the Torah and Chazal, allows students to express their reactions to Ben Sorer Umoreh and analyze the rabbinic readings with greater precision than relying on their moral intuitions alone. Further, through this introduction, students may gain a greater appreciation for unexpected ways the rabbis weave concern for the soul of the accused into their death penalty jurisprudence. As an added benefit, encountering this concern in multiple contexts also allows students to see that a masekhet like Sanhedrin can and should be understood as not just a collection of disparate sugyot, as it is often studied, but as a cohesive work with recurring themes.

1. I find that the specific term “pay back” can be confusing in this context – since “payback” describes retribution while “pay[ing] back” describes restitution. In general, I am less interested in students learning these terms than the underlying concepts, but even so, “pay back” can lead to confusion.
2. I say plausible because they are theoretically compatible with the death penalty. Depending on the class, some students may know or be interested in pragmatic counterarguments. For example, in a world with the realistic possibility of life-long imprisonment, execution is no longer necessary for incapacitation. Further, there is empirical evidence that it is inconclusive whether or not the death penalty, at least as practiced in the United States today, acts as a significant deterrent. See, e.g., “Deterrence and the Death Penalty,” Report of the Committee on Deterrence and the Death Penalty, eds. Daniel S. Nagin and John V. Pepper, Committee on Law and Justice, Division of Behavioral and Social Sciences and Education, National Academies of Sciences, Engineering, and Medicine, 2012. Reviewing the research on both sides, the authors write “research to date on the effect of capital punishment on homicide is not informative about whether capital punishment decreases, increases, or has no effect on homicide rates.” This is an opportunity to suggest that persistent support for the death penalty likely derives mainly from a desire for retribution. The primacy of retribution as the basis of our intuitions about fairness becomes an important point regarding Ben Sorer Umoreh.
3. See, for example, Sifrei, Devarim 86:10: ובערת הרע מקרבך, בער עושה הרעות מישראל. The focus on eliminating the evil-doer seems either to assume that they “deserve” this punishment (retribution) or that this is the way to stop their evil-doing (incapacitation).
4. See, for example, Haketav Vehakabbalah on Devarim 21:21:

   ובערת הרע. הוא טעם על מיתתו, כי טומאתו מתפשטת בכל אנשי עירו, ויבערו הרע מקרבם.

   See also, Shadal on Devarim 19:19

   ובערת הרע מקרבך: אין זו מיתה, כי לא כל עד זומם יומת, אך ענינו תבער החטאת בהענישך החוטא, שאם לא כן תהיה החטאת בישראל, וכלם יהיו נענשים עליה.

5. See for example Rabbeinu Bachya on Devarim 13:10 who understands ובערת הרע regarding one who recruits other Israelites to idolatry as about removing future evil by preventing others from falling into the sin. It is unclear to me whether Rabbeinu Bachya is folding ובערת הרע into deterrence (the death penalty scares others from doing these sins) or incapacitation (the death penalty prevents the mesit from recruiting more people).
6. In honors-level classes, I might already have had the students learn the Mishnayot of Sanhedrin independently. Although they may be struck by the idea of confession and the focus on atonement, revisiting the Mishnah in class within the conceptual framework of the purposes of punishment still helps refine their understanding. Students who have learned the rest of chapter 6 can also see other examples of how the rabbis view the criminal’s status as changing at or even after death. For example, in Sanhedrin 6:5-6, the criminal is initially buried in a separate burial plot, but his bones are later collected and brought to his ancestral plot.
7. For example, Ricky Lee Green, executed in 1997, said, “I do want to tell the family that I am sorry but killing me is not going to solve nothing…” This explicitly raises the question of whether execution is only justified if it has a pragmatic benefit to society (i.e., incapacitation or deterrence) or whether the internal logic of retribution is enough. Similarly, Melvin Wayne White apologized to his victim’s family, recited Psalm 23, and then concluded, “All right, warden, let’s give them what they want.” This can be extremely evocative. Is “what they want” a good thing? Is the death penalty about revenge rather than retribution? Both of these examples again highlight the centrality of retribution in our intuitions about the death penalty.
8. Teaching the Mishnah in concert with the Gemara’s explanation (Makkot 7a) that Rabbi Akiva and Rabbi Tarfon would apply the technical rules of testimony so strictly that no testimony would ever be sufficient to convict (“maybe the murder victim already had an internal injury at the exact spot where he was stabbed!”) especially highlights the question of rabbinic interpretative power.
9. For some classes, it will be worth pointing out when we get to the Mishnayot that the Rabbis actually interpret this differently: the case is a rebellious son, and the first step of the “rule” is that he is brought to court and given a warning and minor punishment. See Sanhedrin 8:4.
10. This framing of the trend in rabbinic interpretation of Ben Sorer Umoreh has become popular after Moshe Halbertal, Interpretive Revolutions in the Making (Magnes Press, 1997) [Hebrew]. This basic idea that the Rabbis are making intentional interpretative choices to narrow the law’s application in response to their own difficulties with it can be formulated more and less radically: Were the Rabbis intentionally twisting the text to replace its apparent moral system with their own? Or did ethical questions motivate them to find and amplify possibilities already latent within the text? See Rabbi Aryeh Klapper, “How Did Chazal Interpret Torah Laws They Found Troubling?” See also Rabbi Aryeh Klapper, “Why Didn’t the Rabbis Eliminate Mamzerurt,” Parts 4-5. He argues that many of the narrow readings are motivated by typical midrashic concerns rather than moral ones, and that “the positions that the rebellious son never was and never will be, are not valid precedents for interpreting a halakha out of existence on the basis of moral objections.” Rabbi Dr. Ethan Tucker, “בן סורר ומורה: Moral Revolution or Complex Application?” argues that the Biblical law of Ben Sorer Umoreh is “highly intelligible and meaningful” and the rabbis read it as such rather than from a place of “anger and alienation” as “moral revolutionaries.” I believe it is educationally sound, and valuable, to encourage students to at least raise these questions about the rabbis’ motivations here even if the resolution is contested.
11. I personally also like to further the discussion of these questions in my Sanhedrin class by learning the story for the death of Rabbi Eliezer on 68a, a companion story to the Oven of Akhnai on Bava Metzia 59 that students have usually already encountered several times. Read together, these stories provide a fruitful basis for conversation about the nature of Torah sheba’al peh. See Devora Steinmetz, “‘Like Torah Scrolls That Have Been Rolled Up’: The Story of the Death of Rabbi Eliezer in Sanhedrin 68a,” in Joel Roth, Menahem Schmeltzer, and Yaacov Francus, eds., Tiferet LeYisrael (JTS, 2010), 153-180.
12. See Philip K. Dick, “Minority Report,” originally published in the sci-fi magazine Fantastic Universe in 1956.
13. This idea is again foreshadowing the concept מצילין אותן בנפשן on 73a.
14. See Eugene Volokh, “The Mechanisms of the Slippery Slope.” Harvard Law Review 116, no. 4 (2003): 1026–1137.
15. Shmuel Hain, “‘Ben Sorer Umoreh Never Was and Never Will Be’: Making Sense of Bavli Sanhedrin 71a.”
16. The question of whether Chazal are intentionally restricting Ben Sorer Umoreh lurks in the background here, as the practical reading of Rabbi Shimon could still be the result of other outcome-oriented readings.
17. See Maharsha, Chiddushei Aggadot, Sanhedrin 71a, who notes that Rabbi Shimon’s rhetorical question is phrased in terms of what the parents would do (“his father and his mother shall take him out to stone him?!”), unlike the Baraita on 72a that is phrased in the passive voice about the abstract requirements of the law (“he shall be taken out to court to be stoned”). God sees the son on a slippery slope, but the parents may minimize his current problems and see a positive future for him. Learning the law of Ben Sorer Umoreh should cause these parents to reevaluate and to recommit to giving their child discipline and direction, which will hopefully allow them to re-write his future “story.” While the readers being exhorted to “interpet” are thus the ancient parents of a Ben Sorer Umoreh, Maharsha also criticizes what he sees as the lax parents of his day, whose failure to learn this lesson suggests a second audience for the “interpretation” at issue.
18. See Eliezer Berkovits, Not in Heaven (Shalem Press, 2010 reprint), 48. A different potential “meta” lesson from the impossibility of implementing Ben Sorer Umoreh, shared with me by Rabbi Kenny Schiowitz, could be that despite a dire moral prognosis, no person is ever fully beyond hope.