Extra-Legal Punishments in Medieval Jewish Courts
By Zev Farber
Mishpetei Shalom – A Jubilee Volume in Honor of Rabbi Saul (Shalom) Berman, edited by Yamin Levy (Ktav Pub, 2010)
Introduction: Laws are created to govern law-abiding citizens in law-abiding societies, and to protect these citizens from the few who try to take advantage of them. Unfortunately, not in all times or all places is society law-abiding. For this reason, governments over the generations have explored the possibility of using extra-legal or emergency measures to deal with situations that either disturb the society by their shocking nature, or that may begin a cycle of law-breaking that could threaten the society’s social fabric.
These extra-legal methods are often officially sanctioned by governments and even legislated as exceptions to standard rules. Some contemporary examples might be the execution of Adolf Eichman in Modern Israel – a country where there is no death penalty with the exception of captured Nazis; the execution of serious opium dealers in the Peoples Republic of China in the first half of the twentieth century; and the suspension of habeas corpus by Presidents Clinton (2001) and Bush (2006) for people suspected of being terrorists or enemy combatants. This same trend is found explicitly in Rabbinic literature and can be divided into two conceptual categories:
A. Applying standard punishments in cases where they don‟t technically apply.
B. Creating new punishments that are not found on the books for any crime.
We will begin by looking carefully at these two different categories as they are described in Rabbinic literature. Afterwards we will look at examples from the medieval period and how these methods were weighed and implemented.