APPENDIX 7 - Capital Authority
APPENDIX 7
Capital Authority
Some believe that the Romans would have acted without a session from leaders of the municipal aristocracy,1 but this expectation does not fit the usual Roman manner of delegating preliminaries to local officials (unless Jesus offered an immediate military threat, which contradicts the evidence we examined in chs. 1, 20-21). Detractors sometimes protest that if the Sanhedrin genuinely tried Jesus, they would have executed him themselves, avoiding a Roman cross. This objection rests, however, on the highly improbable notion that the Sanhedrin had legal capital authority or, if they did not, would have lynched a popular prophet during a festival with the governor in town.
John’s Gospel is probably correct to note that the Judean leaders were not legally permitted to put anyone to death (Jn 18:31); the governor held the power of life and death in a province.2 The local aristocracy would prepare the charges and suggest action, but Pilate had to pronounce sentence. A few scholars think that the Sanhedrin could execute capital sentences,3 but this proposal does not fit what we know of the way the Romans administered their provinces. Against one contrary suggestion,4 Acts 23:1-10 constitutes a preliminary inquiry to formulate a charge (22:30; 23:28-29), not evidence for capital authority.5
Although Theissen recognizes that the Sanhedrin lacked capital authority in Jesus’ time,6 he thinks that the passion narrative presupposes this jurisdiction, and thus reads its own milieu’s circumstances of A.D. 41-44, under Agrippa I, into the narrative.7 Others might employ this lack of capital authority to deny the passion narrative’s own evidence that some of the high priests tried Jesus. Such approaches, however, face two major obstacles: First, the logic of the passion narrative actually presupposes that the Sanhedrin lacks capital authority; why else would they hand Jesus over to Pilate?8 Second, Agrippa I, like Herod the Great, was a client king and he was on personal terms with the emperor. He was not the municipal aristocracy, and his capital authority did not transfer to them. In the last decade of the first century, Johannine tradition still preserves the Sanhedrin’s lack of authority (Jn 18:31-32). An intermediate position is that Romans rarely delegated capital authority, but that Roman governors were authorized to do so.9 Whatever governors of some provinces may have wished to do, however, it is inconceivable that Pilate would have simply shared this authority with Jerusalem’s local aristocracy, given what we know about them and especially all that we know about him.10
Later rabbis discussed appropriate grounds11 and means12 for execution, but rabbinic literature itself shows that these discussions were primarily theoretical. 13 Some rabbinic tradition traces the loss of Jewish courts’ capital authority to 70 CE,14 other tradition to no later than 30 CE.15 Although Josephus naturally does not report any precedents unfavorable toward Jewish autonomy, this loss of sovereignty16 must have begun much earlier. Although Rome delegated the right of the sword to Herod and other client rulers, and although even Diaspora Jewish communities could enforce corporal penalties on their own members,17 Rome withheld capital jurisdiction from municipal aristocracies who could employ it against citizens loyal to Rome, as we have noted.18 For this penalty, local rulers needed at least Roman ratification.
Some precedent existed for Romans overlooking past executions, or even human sacrifices, that could be justified by local custom, but they expected such practices to be discontinued.19 Provable extrajudicial executions were thus not in the political interests of the priestly aristocracy, whose interests typically coincided with preserving security and Roman order. Although councils of subject territories could pronounce a death sentence, they had to bring their sentence before the governor for ratification.20 Most scholars thus currently recognize that the Sanhedrin lacked the legal authority to execute prisoners in this period.21 As Roman legal scholar A. N. Sherwin-White notes,
When we find that capital power was the most jealously guarded of all the attributes of government, not even entrusted to the principal assistants of the governors, and specifically withdrawn, in the instance of Cyrene, from the competence of local courts, it becomes very questionable indeed for the Sanhedrin.
The Sanhedrin could sentence offenders and recommend them for execution, but apart from violating the Temple few Jewish religious charges would receive an automatic capital sentence from the Romans (e.g., Jesus ben Ananias was not executed).23 It is not impossible that Roman officials might look the other way in the case of some lynchings, but even these could prove problematic if they could generate complaints to Rome.24 It was in all the leaders’ interests for Jesus to be accused by Jerusalem authorities but handed over to the governor for official sentencing.