The basic text of Jewish law against which the trial must be measured is the Mishnah, the legal codification in six “Orders” or volumes, edited by Rabbi Judah the Prince in the second century.
The source of the material in the Mishnah is the Old Testament Scripture as elaborated on in the traditional Oral Law. The Mishnah is thus not statute law enacted at or about the time the work was edited, but a consolidation of much earlier material which includes case law. The section of the Mishnah relevant to the trial is that entitled Sanhedrin and dealing with Jewish criminal jurisprudence. Its contents cover the constitution and jurisdiction of the courts, the prerogative rights of the king and high priest, the qualification of judges and witnesses, the method of examining and cross-examining witnesses, rules of general procedure and practice, crimes subdivided according to their punishment (death, imprisonment, or citizen action), and sins which bring forfeiture of the after-life.
In the hierarchy of courts, the two highest courts were both known as Sanhedrins – “small” Sanhedrins of 23 judges and the “great” Sanhedrin of 71 judges. A ‘small” Sanhedrin sat in every major centre of population, with two such courts in Jerusalem; it heard appeals from lower courts and had original jurisdiction in cases involving the possible application of the death penalty.
The “great” Sanhedrin was the supreme court which sat in the Chamber of Hewn Stone in the Temple, heard appeals from lower courts and had original jurisdiction over matters of major religious and national significance such as the boundaries of Jerusalem, the permissibility of a war and cases such as an idolatrous tribe, a false prophet, etc.
The purported Jewish trial of Jesus must be weighed against the principles and practices embodied in the Mishnah.
The task is rendered more difficult by the fact that the Gospels do not agree as to the sequence of events. There is vagueness on crucial points such as dates, places and persons, and there are discrepancies which are a subject in themselves. But taking into account the different versions, the trial story may be summarised in this fashion:
1. Jesus was arrested at night by an armed group of men, accompanied according to John by Jewish policemen. None of the evangelists explains clearly the reason for the arrest, but Mark. Matthew and Luke imply that Jesus considered that he had been arrested as a rebel; the Greek leeistees can also mean “robber”, and in this context probably indicates a person who had embarked upon armed resistance to Roman rule. In Pilate’s court, and also when the crucifixion was carried out, it was the charge of being a Jewish rebel that was attached to Jesus; but it was not this charge on which he was “tried” by the Sanhedrin.
2. He was taken to the high priest’s house. According to Luke he spent the night in the custody of his guards, according to John he was subjected to a private interrogation by the high priest, and according to Mark and Matthew there was a night-time trial by the Sanhedrin.
3. In the morning, say Mark and Matthew, there was a second session of the Sanhedrin, but without reference being made to the previous hearing. Luke says there was a morning session but there had been none the night before. John has no session of the Sanhedrin at all, either at night or in the morning.
4. All four agree that he was handed over to Pontius Pilate who tried him without reference to any previous trial by the Sanhedrin. It is not within my competence to analyse the strange features of Pilate’s actions. I will only comment that the crucifixion was at an early hour – according to Mark, nine o’clock – and thus if there was a Jewish trial before the trial by Pilate that morning, the Sanhedrin must have sat extremely early.
Even a cursory study of the Mishnah Sanhedrin raises a whole series of fundamental questions. Let us first examine the account of the night-time trial in Mark and Matthew.
1. The time of the hearing presents a grave problem. Both the “small” and the “great” Sanhedrin met only in the day time. The rule in the Mishnah is, “Civil cases are tried during the day and may be completed at night; criminal cases are tried during the day and must be completed during the daytime. If the accused is acquitted, the criminal trial may be completed on one and the same day; but if not, it is adjourned to the next following day, on which judgment will then be pronounced”. A night-time hearing would thus be unlawful.
2. The date of the hearing, the first night of Passover, likewise presents a grave problem. The courts did not sit on Sabbaths or festivals, or on the eves of Sabbaths or festivals. If a trial commenced on a Sabbath or festival eve and the accused were not acquitted that day, the case would, as we have seen, need to be adjourned. This would mean a further delay until after the Sabbath or festival, with the prisoner being kept in painful suspense in the meantime: on the first night of Passover there could thus be no hearing.
3. It is not clear whether it was the court of 23 or the court of 71 which was supposed to have sat that night; the text only hints at a large number of judges. Jesus was said to have been guilty of blasphemy, a capital charge requiring trial by a court of 23. If the court were the “great” Sanhedrin, it had no original jurisdiction over such cases.
4. Neither court is known to have met in a high priest’s house. The official place of meeting was, for the court of 23, the gate of the Temple Mount or the Temple Court; for the court of 71, the Chamber of Hewn Stone. The Talmud states that at some stage the Sanhedrin had to move from the Temple to various other meeting-places, but the date of the first move cannot be pinpointed precisely: and none of the new meeting-places coincides with the high priest’s house as far as we can tell.
5. The procedure described by the Gospels is completely out of accord with that required by the Mishnah. The latter required that a trial be at the initiative of the witnesses, not of the court. Two lawfully qualified witnesses had to testify that they had first warned the accused that the act he contemplated was criminal, and warned him of the punishment that would attach to it; they had to have witnessed the act being carried out; and their testimony had to be unambiguous, and their accounts had to tally. No person might be convicted on his own testimony or on the strength of his own confession. The court did not examine the accused, it examined the witnesses, though the accused could advance evidence in his favour. It goes without saying that the court could not go out seeking witnesses.
6. The crime of which Jesus was accused was evidently that of blasphemy. The words complained of included a reference to his being about to destroy the Temple (Mark) or being able to destroy it (Matthew) and a further statement relating to his sitting at the right hand of power, and corning with (or on) the clouds of heaven. The rule in the Mishnah is, “The blasphemer is not amenable to the law unless he explicitly pronounce the Name itself”. Capital punishment therefore applies only if he blasphemes God using the authentic Divine Name. This Jesus did not do. The words he used in relation to himself indicate attitudes which Judaism would regard as pretentious and unfounded, but they do not constitute a capital offence.
7. The rules regarding the length of a trial are also infringed in the Gospel narrative. If, as the Gospels have it. Jesus was adjudged guilty, then the court erred in not adjourning without a verdict until the following day. (The purpose of the adjournment procedure was to enable the judges to ponder the matter in groups during the night in the hope of finding arguments for acquittal.)
8. In a blasphemy case, the witnesses’ statement of what they heard the accused say was followed by all the judges rending their garments as a mark of grief and mourning. It would not be correct for only the president of the court to rend his garments, despite the statement of Mark and Matthew.
9. In capital cases a verdict to acquit might be reached by a majority of one vote; a verdict to convict needed a majority of at least two. A unanimous decision to convict was invalid and the accused would have to be set free. It was therefore unlawful for all the judges to have declared Jesus to be deserving of death. It goes without saying that it is completely out of character with the tradition of Hebrew justice for the judges to spit in the face of the prisoner and assault him: the law goes to every possible length to assure him of dignified and humane treatment.
The night-time hearing described by Mark and Matthew is full of irregularities and cannot be regarded as even approaching a valid trial.
Three of the Gospels describe a morning session. This, like the accounts of the night-time session, involve irregularities in terms of elate, place, type of court, procedure, the nature and criminality of his alleged acts, length of trial, etc. Since the morning’ session is not described by Mark and Mathew as the continuation of the evening session, at best it can be seen as an informal consultation concerning how to carry out the sentence handed clown (unlawfully) at night.
The night-time meeting cannot be regarded as a preliminary investigation with the morning session as the actual trial, since Jewish law does not know of any such procedure.
The time of the morning session presents problems. If Mark is right that the crucifixion was at 9 am, then the Sanhedrin would have to convene long before dawn in order to allow time for a further trial by Pilate.
John is the only one to make no reference to a Jewish trial at all, though stating that the high priest carried out a private interrogation of Jesus before handing him over to Pilate.
That he was handed over to Pilate all the Gospels agree. We have to ask Mark, Matthew and Luke why a Jewish trial was apparently insufficient.
Despite the claim that the Sanhedrin had no power, from a date 40 years before the destruction of the Temple, to pass and carry out death sentences, there is evidence that Jewish courts did carry-out such sentences on their own authority at least up till the year 66. The New Testament, itself tells of cases in which the Sanhedrin could impose and carry out the death sentence.
Even had it been necessary to hand a person over to the Romans for execution, how could the charge have been changed from a religious one – blasphemy – to a political one – sedition? The Roman authority would have dealt with the case on the basis of the Jewish law according to which it had been heard at first instance. The Jewish court’s verdict would not have been satisfied by a Roman court’s verdict on a different charge.
Further, the Mishnah hedged capital crimes about with so many procedural complications, making it almost impossible for any accused ever to be sentenced to death, that the Sanhedrin would have preferred to avoid passing a death sentence rather than to have to hand the prisoner over to the Romans whose authority over Judea they regarded, as a matter of principle, as unlawful.
Why are the Gospel accounts of the trial so greatly out of conformity with the Mishnah?
Was it that the Mishnah rules were not yet formulated or that they had not yet reached the clarity of their final articulation? In other words, can we say that the information in the Mishnah is not an accurate picture of the actual position in Jesus’ time? Israel Abrahams, writing on the Tannaitic Tradition and the Trial Narratives (“Studies in Pharisaism and the Gospels”, 1924), demonstrates that the rules of the Mishnah may already be taken for granted at this period. Further, he shows that the basis of the Mishnah must have been an authentic series of traditions.
Was the court described in the trial narratives one that was more ignorant, inexpert, unreliable or even wicked than the norm? We do know of courts sometimes being considered less expert than others, but how likely would it be that almost every possible irregularity would be perpetrated by one and the same court without apparent protest? Was it, as some suggest, a Sadducee court and therefore less scrupulous than a Pharisaic court in adherence to established rules?
A number of scholars approach the whole problem in revolutionary fashion. They recognise that the term Sanhedrin was not limited to the official law courts described in the Mishnah. and postulate the theory that there were two Sanhedrins – the religious, dealing with the regular administration of justice as prescribed by the Mishnah and the political, i.e. an ad-hoc Council which dealt with matters of national policy, and operating as it felt necessary in any given situation. The sources, however, do not conclusively demonstrate the existence of such a Sanhedrin.
Haim Cohn’s book, “The Trial and Death Of Jesus” (1977), takes a fresh and original look at the Gospel narratives. His theory is that “the Great Sanhedrin did meet that night” (P.95) but that it was not a regular court session at all. As a matter of national emergency the members convened even though it was night and even though it was Passover or the eve of Passover. Says Cohn, “The high priest knew that Jesus was to be tried before the Roman governor early the next morning… if anything was to be done by the Jewish leadership about the trial of Jesus, it had to be done forthwith, during the night. But what was so important about the trial of Jesus as to warrant an emergency meeting of the Great Sanhedrin by night?
Only one thing in which the whole Jewish leadership of the day can have been, and indeed was, interested was to prevent the crucifixion of a Jew by the Romans, and, more particularly, of a Jew who enjoyed the love and affection of the people.
Cohn argues that any Jewish intervention was not to harm Jesus but to save him, to urge him to abandon his pretensions and plead “not guilty” before Pilate. His co-operation would be in his own interests and those of the Jewish nation as a whole. Jesus, however, refused to co-operate, and in anguish the high priest rent his clothes: the councillors sadly remarked that Jesus had sealed his own doom. The theory is startling, and the hook is learned and lucid, yet it is not in itself convincing evidence.
This of course is the problem with the whole subject, and this is why it is so controversial and has led to so much injustice toward the Jew: that the questions are much easier to pose than are the answers, and in any case the Gospel accounts suffer from a steadily growing after-the-event tendency to rewrite and distort the story to present Pilate and the Romans in a favourable light and to maximise Jewish involvement and Jewish culpability.
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Rabbi Dr Raymond Apple’s book discusses some 98 themes in the New Testament and Christianity and shows how Jesus and the early Christians can only be understood against a Jewish background. Rabbi Apple never resiles from his own faith and commitment, but sees the book as a contribution to dialogue.