Chapter 7

                                                                         Part 1

 

                                   What Gave Joshua the Right to Kill Achan in a Non-judicial Fashion?[1]

 

Chapter 7 of the biblical book Joshua recounts a rather remarkable tale of theft by a man called Achan and his hasty execution by Joshua and the Israelite nation for his thievery. It is significant that his death was contrary to later Jewish law. A glimpse at other biblical tales as well as post-biblical Jewish history reveals that Joshua was not unique in not following what the later rabbis considered to be proper Jewish law.

 

Questions

1.   What did Achan do that was wrong?

2.   How was he punished?

3.   Was the punishment proper under Torah law as interpreted by the rabbis?

4.   Under what unique authority was Achan punished?

5.   What other examples do the rabbis give of this unique rule?

6.   Was the special power, known as hora’at sha’ah, actually known and considered by the people in the examples cited by the rabbis, such as that of Joshua, or was the concept of hora’at sha’ah invented after the fact to justify and rationalize Joshua’s unusual behavior?

7.   Assuming that the situation facing Joshua called for an abnormal response, was it necessary to take the extreme measure of an execution? Couldn’t a lesser punishment have produced the same result?

 

The Biblical Story of Achan

Shortly after Joshua guided the Israelites across the Jordan River following their forty-year desert wandering under Moses’ leadership, Joshua led the people in the miraculous victory against the fortified city of Jericho. At that time, Joshua commanded the Israelites not to take any spoils from the city.

Unknown to Joshua and the other Israelites, Achan had breached the ban and stolen some articles from Jericho. As a result, chapter 7 states the entire nation was punished. The Israelites lost their next battle. God tells Joshua that the defeat was the result of a violation of the ban. Joshua casts lots to determine the guilty party. The lots were cast and Achan was miraculously revealed as the thief.

Joshua persuaded Achan to confess. Achan admitted that he had filched a mantle, silver, and gold. He, along with his family, animals, and property were brought before the assembled people. “And all Israel stoned him [singular] with stones. They burned them [plural] with fire and stoned them with stones.”

The story is packed with difficulties, including why the death sentence was warranted, why it was inflicted upon Achan’s family and property (according to some scholars – note the plural “burned them”), and why he was killed with both stoning and fire.

 

Rabbinic Law: Achan’s Act Did Not Warrant the Death Penalty

According to Jewish law as taught by the rabbis in Midrashim and Talmuds as well as later code books, one cannot be sentenced to capital punishment for theft, and, in addition, an execution is only rendered when the offense is seen by two eyewitnesses who warn the culprit before he acts that his contemplated act is illegal and that its punishment is death. Since no one knew what Achan did, he could not be killed under Jewish law even if he had committed an act whose penalty was death.

What authority gave Joshua the power to kill Achan? The sages answer that he could be killed under the provisions of hora’at sha’ah, the “extraordinary needs of the time,” which required that the usual law be ignored in this case.

The rule of “extraordinary needs of the time” means, in essence, that sometimes a situation is so extraordinary that unusual steps must be taken to save Judaism or the Jewish people. The rule is mentioned in several midrashic and talmudic sources.[2]

 

Biblical Examples of This Extraordinary Rule

The following are some of the examples brought by the rabbis to demonstrate the application of hora’at sha’ah:

1.   Moses kills the Israelites who worshipped the golden calf in Exodus 32:27 even though, as we stated earlier, capital punishment is only authorized when the culprits are warned ahead of time that the contemplated act is wrong and that its punishment is death, which did not occur. Rabbis argue that the punishment was necessary in this instance to inform the people of the gravity of the offense.

2.   Moses instructs his brother Aaron’s sons, the newly installed priests, not to cut their hair or cut their garments as a sign of mourning in Leviticus 10:6 even though the law allows these acts of mourning. Rabbis say it was necessary so that the first day of their priesthood should not be marred by solemn acts of mourning.

3.   The tribal leaders brought sacrifices in Numbers 7:14 that were contrary to law: among other things, individuals are not allowed to bring incense offerings and the sacrifices were offered on the Sabbath. Rabbis state that since this was the first day of the consecration of the Sanctuary, these sacrificial offerings were necessary.

4.   The person who cursed God in Leviticus 24:12 was executed, even though he was not warned, in order to highlight the significance of this outrageous misdeed.

5.  Some rabbis argue that Samson was granted an exception and allowed to marry a Philistine woman in Judges 14 because of a special need: he required an excuse to attack the Philistines who later took advantage of his wife.

 

The urgency in some of the examples cited by the rabbis is difficult to find:

6.   Contrary to the accepted law, the tribe of Levi was given one fiftieth of the spoils of the war against Midian in Numbers 31:20, due to a hora’at sha’ah.

7.   Joshua, according to the understanding of the story in the Babylonian Talmud, Megillah 14b, was able to marry the Canaanite zona (“prostitute” or “innkeeper”) Rahab, despite the Israelites being commanded not to marry Canaanites and to kill them.

8.   In Joshua 6, Joshua engaged in a preemptive battle against Jericho on the seventh day of the Israelites’ march around the city, which according to some rabbis was the Sabbath.

9.   Some people who insist that women cannot be judges explain that Deborah was an exception (Judges 4 and 5) because of the exigency of the time.

10.  In II Samuel 1:15, David executed a man from Amalek who admitted that he killed King Saul, even though the rabbis understood that a confession could not be used for proof of a misdeed and as grounds for execution.

 

Many biblical personalities offered sacrifices outside of the Tabernacle because of hora’at sha’ah:

11. Joshua brought sacrifices on Mount Ebal in Joshua 8:30.

12. Gideon sacrificed away from the Tabernacle in Judges 6:25, 26 and committed about a half a dozen other violations.

13. Manoah also brought a sacrifice outside of the prescribed area in Judges 3:19.

14. Similarly, in I Samuel 7:9, the prophet Samuel offered a sacrifice outside the prescribed area and committed several other violations.

15. The inhabitants of Bet Shemesh deviated even more. In I Samuel 6:15, they sacrificed the Philistine oxen that carried the ark that had been captured by the Philistines back to the Israelite camp. According to Rabbi Eliezer in the Babylonian Talmud, Avodah Zarah 24b, one is prohibited from sacrificing non-Israelite oxen.

 

Problems with the Solution of Hora’at Sha’ah

The subject of hora’at sha’ah is complex and raises many questions. We will examine a few.

1.   Could a modern Orthodox court justify killing Reform Jews with the concept of hora’at sha’ah? Could they claim that they are defending the faith? Wouldn’t this be seen as fanaticism?

2.   Is it possible that the rabbis invented the concept of hora’at sha’ah to explain why the biblical leaders acted contrary to the rabbis’ post-biblical interpretation of the law?

3.   If the concept of hora’at sha’ah existed in the biblical era and the biblical personalities knew that their acts were violations of biblical law and were allowed only because of the exigencies of the time to teach some lesson or accomplish some unusual deed, why doesn’t the Torah mention this authority and the lesson derived from the act? Why does it leave the Torah readers with the idea that the biblical characters acted improperly?

4.   Again, assuming that the biblical leaders acted contrary to Torah law, why did they have to take such extreme measures? Couldn’t the lesson that Joshua wanted to teach be taught without killing Achan? Was it necessary to execute his family? What was accomplished by stoning and burning his animals?

 

Yehezkel Kaufmann’s Explanation

Yehezkel Kaufmann explains[3] that Joshua was very careful not to allow the Israelites to settle on land during the entire period they were conquering Canaan. “The Canaanites had a most important technical-military advantage: they had a trained army with cavalry and chariots. The Israelite army consisted of popular levies, an army of sword-bearing infantry. But the Canaanites were disunited…. The tribes of Israel could conquer them only by unity.” Thus Joshua had to keep them together and keep them united under his leadership. This explains why he kept them in the Gilgal camp during all the years of the conquest of Canaan – according to tradition, seven years – and why he could not allow them to establish homes and settle. If they settled, they would not return to fight. “This would appear to be the hidden reason for the banning and cursing of Jericho…. He has to separate the war from the settling.”

This also explains the execution of Achan and his family. It was “a most grimly impressive ceremony. The harsh punishment was essential to reinforce that absolute submission to the prophetic leader [Joshua] without which [submission and unity] there was no hope of victory. Moreover, the discovery of the sinner and his punishment dispelled the terror by defeat. Indeed, the confidence, that God’s hand was to be seen in everything that happened, was now strengthened.”

 

Another Solution

There is a simpler and more understandable solution that is consistent with the way I interpreted many biblical episodes. The explanation offers an historical perspective. Laws develop over time; it is therefore reasonable to assume that the examples that the rabbis cited of apparent violations were acts that the perpetrators felt were not contrary to law. These laws simply did not exist during their lifetime; they were post-biblical rabbinical enactments. This resolves all of the questions raised by the story of Achan.

 

Summary

Many Bible tales prompt us to ask questions. Sometimes the answers to our questions are obvious. At other times, they are not. The story of Achan is a story that raises many questions.

Among other difficulties, we wonder what authority Joshua used in burning and stoning Achan, his family, and his possessions. The rabbis are quite open in stating their understanding of the rules when an execution is permissible. Under these restrictive rules, Joshua had no right to act as he did.

The rabbis tell us that sometimes situations arise that mandate an extraordinary response, contrary to the law as they understood it. One of the principle exigencies is that a failure to act will result in Jews being misled about Judaism.

The rabbis cite dozens of biblical and post-biblical instances where such a response was necessary. Some of the situations mentioned by the rabbis are obvious; in others it is difficult to understand what the extraordinary circumstances were. We are also left with the question of whether the biblical leaders understood the laws as the rabbis interpreted them and why it was necessary to take measures as extreme as execution.

One simple and rational solution to the problem is the realization that the rabbinical rules did not exist in biblical times and that biblical figures acted according to their understanding of what was proper and lawful.

 


[1] This chapter is from my book Maimonides and the Biblical Prophets.

[2] Midrash Sifrei Deuteronomy 175 and the Babylonian Talmud, Yevamot 90b, allow a prophet to act contrary to Torah law when the “extraordinary needs of the time” require it. Commenting upon Deuteronomy 18:15, which requires people to obey prophets, the Midrash and Talmud state that one must listen to the prophet “even if he directs you to violate one of the commands recorded in the Torah – just as Elijah on Mount Carmel [in I Kings 18] – obey him in every respect in accordance with the needs of the hour (lefi sha’ah).” Elijah brought sacrifices outside the prescribed area, a prohibited act that was punishable by death, but it was permissible in this instance lefi sha’ah, for it was necessary to disprove the prophets of Baal and show the people that God is the true deity.

Sanhedrin 46a contains another example. It states: “Rabbi Eliezer ben Jacob said, ‘I heard that the court may [when necessary] impose flagellation and pronounce [capital] sentences even when they are not [warranted] by the Torah. This is not done to disregard the Torah, but in order to make a fence around it [i.e., safeguard it]. It once happened that a man rode on the Sabbath during the Greek era. He was brought before the court and stoned. It was not because he was liable [by law] to this penalty. It was done because of hasha’ah tzrikhah [it was required by the circumstances of the time]. It also happened that a man had intercourse with his wife [in public] under a fig tree. He was brought to the court and flogged. This was also not done because he merited it. Rather it was required by the circumstances of the time.’”

Maimonides addresses the issue of lefi sha’ah and hora’at sha’ah and hasha’ah tzrikhah, all terms expressing the same idea, in several places. In his Mishneh Torah, Hilkhot Yesodei Hatorah 9:3, for example, he writes about prophets and repeats the law contained in the Midrash and Talmuds, but, as we will see, he extends the exemption, and states that it applies not only to a prophet, but also to a Jewish court: “When a prophet…tells us to violate one or many of the Torah mitzvot…it is a mitzvah to listen to him. We learned this from the early sages, who had it as a part of oral law…we must accept his [the prophet’s] decree in all things except idol worship according to the needs of the hour [lefi sha’ah]. For example, Elijah [in I Kings 18] sacrificed on Mount Carmel, outside the Temple premises.”

In his Perush Hamishnah to Sanhedrin 6:2, and in his Mishneh Torah, Hilkhot Sanhedrin 18:6, Maimonides clarifies that the execution of Achan was by the authority of hora’at sha’ah since Jewish law does not inflict capital punishment upon a person who confesses theft or based on the testimony of a prophet who had a vision that the defendant committed the crime.

In his Mishneh Torah, Hilkhot Mamrim 2:4, Maimonides indicates that the power derived from Deuteronomy 18:15 was extended to a court. It may abolish a biblical law temporarily, but only as a hora’at sha’ah (a ruling to meet the unusual needs of the hour). If the court sees that it is necessary to strengthen Judaism by rendering corporal or capital punishment that is not sanctioned by the Torah, it may do so, but only as a temporary measure to bring many people back to Judaism. This, he continues, resembles a situation in which a doctor may see that it is necessary to amputate an arm or a leg in order to save a person’s life. This, he concludes, is like the rule in the Babylonian Talmud, Yoma 85b: one should desecrate a single Sabbath to save a person’s life and make it possible for him to observe many Sabbaths.

He mentions this judicial power also in his Hilkhot Sanhedrin 24:4, and gives three examples of the application of hora’at sha’ah. He states that although the law requires that a court may only render capital punishment under certain circumstances, including warning the potential violator not to perform the act, clear testimony by witnesses, and close scrutiny of the witnesses, this was not done during the period when many Jews began to follow the Greek practices. Thus a person who cohabitated with his wife publicly and another who rode a horse on the Sabbath were killed by the court under the rule of hora’at sha’ah to impress upon the people that these acts were not permissible. Similarly, the religious leader Shimon ben Shetach killed eighty witches in a single day, as indicated in Mishnah Sanhedrin 6:4, even though women are not killed in this manner and a court may not kill more than a single person in a single day. It was necessary because the notion of witchcraft was drawing the masses away from proper Jewish thought.

[3] Conquest of Canaan, 138–145.