Why the Date Must Die

Question:

Why did Yehuda sentence Tamar to death? First, since when does circumstantial
evidence (her pregnancy) allow a court to sentence someone to death? Second, even
if circumstantial evidence was sufficient, her only aveira was yevomo
lashuk, which is a stam lav, carrying no more than malkos,
unless she was regarded as a Bas Noach – in which case she did not even have the
mitzva of yibum!

Answer:

You (and many others who ask this question) assume that the same laws that govern
us after the Torah was given applied in that historical period. I challenge that
assumption and argue that the customs and punishments then were unrelated to standard
practice post–Har Sinai. Nevertheless, I will share with you some of the common
and more novel explanations offered on this subject.

The Ba'al Haturim quotes Rav Yehuda Hachasid as saying that sereifoh in
this context does not mean death by fire, but the branding of a mark on her forehead
to cause her embarrassment (such as the A for adulteress that Nathaniel Hawthorne
wrote about). Support for this creative notion can be found in the Torah's wording:
tisoref. At the end of Kedoshim and in Emor, the Torah writes ba'esh
tisoref. The textual difficulty with this interpretation is that it says
she was taken out: hi mutzeis. This sounds as if she was taken to be executed.
Furthermore, Chazal learn from this episode that it is better to throw oneself into
a furnace than embarrass a person. Obviously they understood she was to be killed
by burning.

Rashi explains that she was the daughter of Shem, and the daughter of a kohen
is burned for adultery. This is challenged by the Ramban on the grounds that
she was not an arusoh or nesuoh. An obligation for future yibum
is not enough to burn a bas kohen. The Lubavitcher Rebbe, in his commentary
on this statement by Rashi, also refutes Rashi's thesis on the grounds that a
shomeres yovom is not at all like a nesuoh. The Ramban explains that
Yehuda was a political figure and he judged her as someone who is showing disrespect
to the monarch or rebelling against him. Another explanation offered by the Ramban
is that in those times a wife who acted unfaithfully was sentenced by her husband
as he saw fit. In this case of shomeres yovom, that was done by Yehuda. The
Lubavitcher Rebbe explained that although it was a more severe punishment than is
normal, it was a horo'as sho'oh; a one-time ruling for a special reason.
It seems to be similar to the opinion of the Da’as Zekeinim that although a shomeres
yovom doesn't deserve this punishment, it was necessary because the people in
that time were promiscuous. The beis din has the power to enact a sentence
greater than normally allowed if the generation needs such shock treatment.

BookID: 5 Chapter: Vayeishev