The Halakhah of Jesus' Trial

The question of who is responsible for the death of Jesus has a long and vexatious history, with answers provided both in Christian writings and the Talmudic tradition. While the four New Testament accounts agree that the Roman governor Pontius Pilate carried out the crucifixion, they differ in the degree to which responsibility for the death sentence itself resides with a Jewish mob, the high priest, the Sadducees, or the Jewish high court, the Sanhedrin.

The most explicit source is Matthew 27, where Pilate is described as desperately trying to avoid a death sentence until, threatened with a riot, he washes his hands and tells the assembled crowd: “I am innocent of this man’s blood; see to it yourselves.” To this the people answer: “His blood be on us and on our children!”

Beginning with Melito of Sardis in the second century and ­continuing into the Middle Ages, Matthew’s text was cited to support the charge of deicide: the claim that all Jews throughout history are eternally guilty of causing the death of Jesus. It also frequently offered a pretext for violent aggression against Jews, particularly on and around Good Friday.

As is well known, all this changed dramatically in the latter part of the twentieth century, when both ­Catholics and Protestants began explicitly to abjure theologies holding the ­collective Jewish community responsible for Jesus’ death. The ­central document is Vatican II’s Nostra Aetate, which states that Jesus’ execution “cannot be charged against all the Jews, without distinction, then alive, nor against the Jews of today”—and also that Jews “should not be presented as rejected or accursed by God.”

The Catechism of the Catholic Church goes further, laying responsibility for Jesus’ death equally on all sinners, including Christians themselves: “The Church does not hesitate to impute to Christians the gravest resposibility for the torments inflicted upon Jesus, a responsibility with which they have all too often burdened the Jews alone.”

The Evangelical Lutheran Church in America’s Guidelines for Lutheran–Jewish Relations asserts that “blame for the death of Jesus should not be attributed to Judaism or the Jewish people.” In Building New Bridges in Hope, the United Methodist Church likewise repudiates the “use of New Testament passages that blame ‘the Jews’ for the crucifixion of Jesus [and that have] throughout history been the basis of many acts of discrimination against Jews, frequently involving physical violence.”

On the Jewish side, meanwhile, a wholly different development has taken place. This is owing to the rediscovery of a number of texts that had been censored or preemptively suppressed during the centuries of Christian rule. Of particular relevance are several Talmudic sources that analyze the actions of the Sanhed­rin during the trial of Jesus from the perspective of rabbinic law.

As a historical matter, scholars seriously doubt that in Roman-ruled Palestine the Sanhedrin had the authority to execute anyone or that it concerned itself with any of the specific procedures attributed to it in the Mishnah, completed about 200 c.e., or, even later, in the Talmud. This is also the view taken by Benedict XVI in his Jesus of Nazareth.

But the Talmud is not a work of history. It is a work that centers on law, and it frequently presents didactic retellings of past events with little regard for historical accuracy. For example, in the Talmudic retelling of the clash between David and King Saul, the main issue between them is framed in terms of a dispute over the finer points of Talmudic law, and even a villain like Haman in the book of Esther is pictured by the Talmud as engaging with Mordecai on halakhic topics.

This text we are about to encounter should be read in a similar way. It does not tell history but uses the details of halakhah to offer a message to Jews living in a world that relentlessly charged them with Jesus’ death. But leaving aside the question of what happened, what is this imaginative retelling trying to teach?

The text is not found in any of the standard printed editions of the Talmud, having been either censored by the Church or self-censored by Jewish printers anxious to avoid trouble. From several medieval manuscripts, however, a fairly stable version emerges that has been carefully analyzed and translated by Peter Schäfer in Jesus in the Talmud.

In both medieval and modern times, there has been a debate among Jewish scholars as to whether these texts refer to the Christian Jesus or to another person of the same name who lived a century earlier. This contention is reflected in the absence of the term “Nazarene” in some of the manuscripts (see the square brackets in the excerpted text below).

The Talmud shows no particular interest in Jesus’ death per se, but keeping with its normal practice, it focuses on a legal detail that ­emerges—almost incidentally—from its reconstruction of the issue at hand. The detail is this: According to the Mishnah, prior to every capital conviction, a crier must go forth proclaiming the names of the accused and of the incriminating witnesses, in the hope that someone will come forward with evidence sup­porting acquittal.

By contrast, the Jesus narrative in the Talmud maintains that the crier announced the pending death ­sentence forty days before execution—considerably more than required by law:

On [Sabbath eve and] the eve of Passover, Jesus [the Nazarene] was hanged. And a crier went before him forty days proclaiming that Jesus [the Nazarene] will be stoned because he practiced sorcery and instigated and seduced Israel to idolatry. Whoever knows anything in his defense may come and state it. But since they did not find anything in his defense, they hanged him on [Sabbath eve and] the eve of Passover.

The Talmud then records a rabbi as objecting: “Do you suppose that ­Jesus [the Nazarene] was one for whom a defense could be made? He was a merit”—that is, someone who instigates others to perform idolatry and hence does not merit a crier, much less one providing forty days’ notice. To which the Talmud responds: “Rather, the case of Jesus [the Nazarene] was different, for he was close to the ­governing authorities.”

This Talmudic account runs counter to the New Testament version in two ways. First, the Talmud assumes that the Sanhedrin lawfully tried and convicted Jesus on counts of sorcery and seduction to foreign worship, which are capital offenses. This is to say that, in the Talmud’s view, Jesus died for his own sins and not for anyone else’s. Second, the text mentions neither the high priest, the Sadducees, nor Pilate or the ­Romans, though a hint that Pilate tried to spare Jesus may (or may not) reside in the claim that the Sanhedrin took extra precautions because the accused was “close to the government.”

Another problem is that just as the text does not match either a Christian or a historical account, it fails to square with Talmudic law itself. First, a requirement of forty days’ notice has no basis in the law of the Mishnah, which is why the Talmud questions it.

Second, in the Mishnaic system, the crimes of which Jesus stands accused—sorcery and instigation to idolatry—are punishable not by hanging but by stoning. The text appears to equivocate between the two, although elsewhere the Mishnah does discuss a process whereby, following the death by stoning, the body is hanged (perhaps crucified?) for a brief moment before it is taken down. But whether this would apply in Jesus’ case is far from clear, and in any event, the regular procedure in such cases is almost always referred to as stoning.

But we have yet to reach the true anomaly suggested by this source, which is that an execution is said to have taken place at all. Capital convictions by the Sanhedrin are vanishingly rare, as every doctrine of Talmudic jurisprudence pushes toward acquittal.

To secure a conviction, the Talmud requires that the criminal act be observed by two valid male witnesses, that the witnesses verbally warn the criminal that his contemplated act is punishable by death, and that the criminal accept the warning, stating, “I am aware, and I am acting with these consequences in mind.” If any of these or the Talmud’s many other requirements fail, the defendant cannot be convicted.

Given these procedural hurdles, it is hardly surprising that rabbinic literature reports only a handful of cases where the death penalty was actually administered. The Mishnah even cites two of its leading scholars saying that “had we sat on the Sanhedrin, no one would have ever been executed.” Furthermore, the few ­instances of execution mentioned in the Talmud are uniformly held to run counter to the general rules. In each instance, the Talmud deems the case exceptional because the court (legitimately or otherwise) acted beyond the limits of its legal authority.

Thus far we have reviewed what is known in the field. Less appreciated is that while Talmudic law works very hard to avoid capital convictions, an exception to its normal policy is the case of the mesit, one who entices others to engage in “foreign worship,” which the Bible sees as the most severe violation of God’s law. A mesit is not only excluded from the protection afforded by the requirement of verbal admonition but, in contrast to every other case, the court can subject him to double jeopardy, take an active role in ensuring that his actions have been properly witnessed, and need not exonerate him on the basis of evidence that comes to light after trial.

In the case of the mesit, capital conviction is transformed (or reverts) from a theoretical construct to a realistic possibility. Since the Talmud considers Jesus a mesit, the technical rules that ordinarily restrict the death penalty are suspended.

While Jesus’ case is exceptional, even the exception itself is excep­tional. Whenever the Talmud addresses an execution ordered by the Sanhedrin, a later group of Talmudic rabbis calls the verdict into question for failing to adhere to one of the Talmud’s many procedural barriers to carrying out the sentence.

In the case of Jesus’ trial, however, the opposite is true. The ­Talmud claims he was afforded more due process than the law prescribes. Thus, not only does the Talmud claim that the Sanhedrin executed Jesus, but the case also seems to be the only recorded one conducted pursuant to the Sanhedrin’s legal ­formalities.

Where does all this leave us? It cannot be repeated frequently enough that the Talmud’s discussion of Jesus’ trial is not undertaken in the name of historical accuracy. Rather, the Talmud seems engaged in an act of cultural reappropriation: the process whereby a group reclaims terms or tropes previously used to disparage that group. Thus, fully aware that Jews were being blamed for this event, the Talmud offered a way for Jews to draw ­meaning from it.

More interesting for us (Jews and Christians both) is these texts’ relevance for contemporary Jewish–Christian relations. The first thing to observe is a striking paradox: For both historical and theological reasons, contemporary Christians deemphasize the Jewish role in Jesus’ death, while ­several recent printings of the Talmud have reincorporated into Judaism's canon texts highlighting the Sanhedrin’s role. (Though Artscroll, one of the most prominent American pub­lishers of the Talmud, has not.) We have, in other words, a complete reversal of the medieval situation.

Second, while there may be much to lament about the impact of modernity on religious observance, surely this role reversal in Christian and Jewish views of the execution of Jesus is an unmitigated good. Jews and Christians alike should thank God that they live in a religious and social climate where each tradition can return to its canonical sources and where even this most fraught issue can be discussed without fear of recriminations.

But as both Meir Soloveichik (“No Friend in Jesus,” January 2008) and J. H. H. Weiler (“The Trial of Jesus,” June/July 2010) have written in these pages, Jews and Christians neces­sarily draw different lessons from Jesus’ life and death. In downplaying the extent to which any specific group caused Jesus’ death, Christians, while maintaining Jesus’ innocence, can focus on the theological meaning of that event within the Christian scheme of salvation.

For their part, Jews will be drawn to the Talmud’s view that the most famous critic of halakhah’s formality, and the person who accused the rabbis of favoring legal technicalities over justice and mercy, was the only person for whom those same formalities proved of no avail. Presenting Jesus as the sole exemplar of halakhic execution, the Talmud poetically argues that the mercy, grace, and compassion that Jesus sought outside the law are found within the halakhah itself.

Chaim Saiman is professor of law at Villanova Law School, the Gruss Professor of Talmudic Law at University of Pennsylvania Law School, and the William E. Simon Visiting Fellow in Religion and Public Life in the James Madison Program at Princeton. His book Halakhah: The Rabbinic Idea of Law will be published next year.