Overruling Torah Law

Mishnah Makkot 1:10

...A Sanhedrin that would execute somebody once every seven years would be considered a violent Beit Din. Rabbi Elazar Ben Azariah says: "Once every 70 years." Rabbi Tarfon and Rabbi 'Akiva said: "If we were on the Sanhedrin we would never have killed anyone!" Rabban Shim'on Ben Gamliel said: "They would have increased violence in Israel."

The above quote from the Mishnah is often used to show how humanistic the rabbis were, especially Akiva, and that capital punishment is not the ideal of Judaism. The opinion of Shim'on Ben Gamliel, which points out the effect of ceasing capital punishment, is not usually mentioned in rabbinic discourse, and they tend to support Akiva, who was the supreme rabbinic leader.

There is a serious problem with this discussion, and this is aside from one's personal views on capital punishment today. Capital punishment is part of the Torah law, for murder and some other crimes. Ben Gamliel's perception of this is its deterrent effect. By allowing people to get away with murder, he opines, the deterrence is lost and society becomes more violent.

But Akiva, and colleagues have a different view, in that they can bend and manipulate the Torah law to suite the modern temperament. It is also no coincidence that Akiva was not of Jewish descent, his father was a non Jew or convert. Ben Gamliel, although a Pharisee, was a conservative and steeped in an important rabbinic family.

The discussion in the Mishnah is theoretical, since the death penalty (under rabbinic law) was not always available, i.e. there had to be fully functional Temple, and this took place after the destruction of the temple. It also betrays the anachronistic fallacy of the Mishnah. If Oral Law supposedly was given on Sinai, then this discussion is out of place. Was Moses having this discussion on Sinai and disagreeing with the Torah he just received? No, it is a revisionist text which is simply imposing Greco-Roman and Hellenistic ideas onto the Hebrew bible.

This Hellenist influence in the mishnah is characterised by new recruits to the religion, driving its direction away from the Bible. Although this is not quite the Christian New Testament itself, it certainly takes a similar path. For the New Testament, the Old Testament (Torah) was too strict and a modernised religion was founded. Whilst the Mishnah and Talmud certainly contain thousands of new laws, they also make the same statement as the New testament, ie that the Torah is old fashioned and needs updating. It is also no coincidence that these two new religious literatures, i.e. Mishnah and NT emerged at very much the same time. It was also perhaps more than coincidence that the Talmud and the Koran also emerged within a century of each other.