Chapter Seven of Mishnah Sanhedrin is devoted to the four methods of capital punishment that may be ordered by a Jewish court: stoning, burning, decapitation, and strangulation. Even though Jews in this period were probably without any authority to sentence or carry out capital punishment, rabbinic discourse on decapitation in this mishnah and its parallel in Tosefta Sanhedrin 9:11 sheds light on the sages’ acceptance of a Roman practice – or, in the case of Rabbi Yehudah in the Tosefta, the desire to avoid Roman norms – which informs this area of rabbinic law. This source and, even more so, the parallel in Tosefta Sanhedrin 9:11 are significant, for they mention the conduct of the Roman legal system and offer a glimpse of its effect in the development of rabbinic halakhah, whether by adoption or rejection of Roman standards.

Our mishnah explains that the commandment to execute by beheading should be performed by sword, exactly as “the kingdom,” namely Rome, does. However, Rabbi Yehudah, a fourth-generation tanna who was active in the mid-second century, rejects this method, presenting it as a disgrace, and advocating the qofitz (i.e. a large knife, hatchet, or ax) as the preferable instrument. In response, “they” (probably the sages) state that no form of execution could be more disgraceful than the one suggested by Rabbi Yehudah (probably because a qofitz is less efficient than a sword). Beth A. Berkowitz explains the term “disgrace,” nivul in Hebrew, as follows: “The verb and adjective form of n-v-l suggest a loss of dignity, frequently through the diminution of sexual appeal or vigor. Rabbi Judah [Yehudah] and the Sages would thus seem to be arguing here about the (gendered) norms of bodily dignity” (Execution, p. 160). Scholars have debated whether the clause “just as the kingdom (malkhut) does” simply describes this method of decapitation or whether it suggests that the sages mimicked this Roman practice (regardless of whether it was actually performed by Jews; more on this debate in Berkowitz, Execution, p. 161-162; cf. Lorberbaum, “Blood and the Image of God”; Lorberbaum, In God’s Image, p. 124-134). In that context, Berkowitz writes: “But the Sages have good reason to borrow from Rome, if only to describe their form of decapitation. Under the Roman penal system, decapitation was a relatively honorable way to die, reserved generally for the upper-class condemned. […] If the Sages were concerned to preserve the criminal’s dignity, as they seem to be in m. Sanh. 7:2 [sic], then they chose well regarding Roman execution, adopting its most honorable method” (Execution, p. 162).

Tosefta Sanhedrin 9:11, which includes a more detailed version of the argument between Rabbi Yehudah and his peers, confirms that the Roman method of beheading is at the crux of these passages:

A)    ר' יהודה או'. הרי הוא אומ' "ואהבת לריעך כמוך". ברור לו מיתה יפה שבמיתות. כיצד עושין לו. מניח ראשו על הסדן וקוצץ בקופיץ.

B)     אמרו לו. אין מיתה מנוולת מזו.

C)     אמ' להם. ודיי אין מיתה מנוולת מזו. אלא משום שנ' "ובחקתיהם לא תלכו".

A)    Rabbi Yehudah says: “Behold, he says: ‘And you shall love your fellow as yourself’ (Leviticus 19:18). Choose for him the fairest possible execution (lit. the death that is the most beautiful of all deaths). How do they do it to him? They set (lit. He sets) his head on an [execution] block and he cuts [his head off] with a hatchet (or a large knife or ax).”

B)    They said to him: “There is no execution (lit. death) more disgraceful than this one!”

C)    He told them: “Indeed no execution (lit. death) is more disgraceful than this [one], but [we use this one] because it is stated [in Scripture]: ‘You shall not follow their statutes’ (Leviticus 18:3, NRSV).”

In contrast to our mishnah, which rules that decapitation should be carried out by sword (as Romans do), the Tosefta focuses on the dialogue between Rabbi Yehudah and his anonymous interlocutors (as noted, probably the sages), locating it in the more general context of methods of execution. In the Tosefta’s discussion of the optimal means for Israelites to carry out the death penalty, Rabbi Yehudah explains his preference for the qofitz with a biblical verse “You shall not follow their statutes” (Leviticus 18:3, NRSV). Indeed, in other rabbinic sources, the sword is a symbol of Rome and its power (see, for example, Tosefta Avodah Zarah 6:1). Thus, although Rabbi Yehudah knows that his recommendation disgraces the one who has been condemned to death, he maintains that the sword cannot be used by an Israelite court due to its association with Rome. For Rabbi Yehudah, “the fairest possible execution” should differ from the one implemented by Rome.

At this point, it is important to consider the relationship between parallel texts from the Mishnah and the Tosefta. The Tosefta has long been viewed as an elaboration on the Mishnah (see, for example, Berkowitz, Execution, p. 163 on this subject). However, Shamma Friedman’s seminal research on the Tosefta and its relationship with the Mishnah suggests that there is often a “primacy of the Tosefta pericope vis-à-vis its parallel Mishnah,” especially in halakhic material. Moreover, he contends that the Mishnah often reflects a more intensive editorial process relative to the Tosefta (Friedman, “The Primacy of Tosefta,” p. 100). If this tendency is at work here, it is clear that, although the Mishnah partially cites Rabbi Yehudah’s opinion, it omits his key reasoning, namely the importance of avoiding Roman statutes, in accordance with Leviticus 18:3 (“You shall not follow their statutes”).

In our mishnah, which instructs that Israelite beheadings should be performed by sword, as Romans do, Rabbi Yehudah’s ruling is placed within a discussion of which methods of execution incur disgrace. Thus, in the Mishnah, the imitation of Roman norms is not explicitly mentioned. However, for Rabbi Yehudah, following a Roman form of decapitation is more disgraceful than the effects of its alternative on the convicted criminal being put to death.