Two men are placed in holding cells in Sefer Bereishit – the “butcher” and the “baker”. The text does not tell us whose crime is worse, yet one of them is executed and the other is recalled to life.
Two men are placed in holding cells during the Jews’ travels through the Wilderness – the “woodchopper” and the “blasphemer”. G-d sentences each of them to be stoned. But are they both executed?
Just about very commentator on the episode of the blasphemer (Vayikra 24: 10-23) notes two difficulties in the concluding verse:
Moshe spoke to Bnei Yisroel
and they removed the blasphemer to outside the camp
and they pelted him with a stone
and Bnei Yisroel did as Hashem had commanded Mosheh.
The plain reading of the text is that Bnei Yisroel’s obedience relates to something other than their pelting. But why would any other topic be introduced at this point in the verse?
The plain reading of the verse is that Bnei Yisroel collectively hurled only one stone. Why?
We are never informed that the blasphemer died.
These anomalies are accentuated when we compare them to Bamidbar 15:37. where we are told that they pelted the woodchopper with stones (plural), and that he died.
Chazal killed the first two birds with one stone. BneI Yisroel observed not only the rules regarding executions that are mentioned explicitly in the text, but also other rules that are implicit. They observed them not only in this case, but in all future cases. Among those rules is that one throws only as many rocks as are needed to kill the convict.
Ramban adds a psychological dimension. One might have thought that Bnei Yisroel had unworthy emotions when they executed the blasphemer, since he was an outsider who had fought with an insider. But in fact they were motivated purely by G-d’s command. Abravanel even argues that Bnei Yisroel were rationally convinced that a matrilineal Jew could not be held fully responsible for blasphemy, and agreed to execute him only because G-d told them otherwise. The evidence is that they threw only the first stone.
Alshikh points out that the concern should not only be for mob ethnic bias, but also for personal bias. Chazal identify the blasphemer’s father as the Egyptian whom Moshe killed and buried in the sand. Therefore, even though it appears in verse 14 that G-d tells Mosheh to personally remove the blasphemer from the camp, in verse 23 we learn that Bnei Yisroel collectively removed him in order to avoid even the appearance of personal bias. Possibly Alshikh thinks this is the meaning of “and Bnei Yisroel – rather than Mosheh - did as Hashem had commanded Mosheh.”
Netziv, however, raises an issue of technical halakhah. Halakhah permits execution only if the defendant has been warned before his violation that it carries the death penalty. Since the blasphemer was put in a holding cell because no one knew whether his crime deserved execution, it follows that he could not have been properly warned. How, then, was he executed? Netziv points to a Talmudic suggestion (Sanhedrin 88b) that G-d explicitly authorized a one-time departure from the rules, but that afterward Bnei Yisroel always followed the rules.
This concession undermines every preceding commentary. The Torah emphasizes in verses 16 and 22 that the criminal justice system cannot take notice of the defendant’s social status, rather there must be one law for ger and ezrach alike. Chazal and Ramban emphasize that the blasphemer’s execution was carried out in accordance with standard procedure and without bias. Yet according to Netziv, based on the Talmud, all this is false, and his execution was possible only because the normal rules were suspended! Shouldn’t we suspect that the exception was motivated by bias?
It seems to me that the best response is to emphasize, as Mesheh Chokhmah does, that G-d never tells Bnei Yisroel to execute the blasphemer. Verse 14 reads: “Remove the blasphemer to outside the camp. All those who heard will rest their hands on his head. The entire congregation will pelt him”.
Meshekh Chokhmah uses this as further evidence for the position that the execution was an exception rather than a function of ordinary law. I suggest instead that the blasphemer was not executed. Rather, he was taken to the scaffold and pelted with a single rock. Then, lehavdil like Yitzchak on Mount Moriah, he was untied and taken down.
The law mandates the execution of subsequent blasphemers. But perhaps this sequence of events teaches us that a criminal justice system cannot include capital punishment unless it has eliminated even the suspicion and appearance of bias. Perhaps that is almost impossible, which is why Rabbinic courts were famously reticent to actually carry out the death penalty.