Jewish Law, the Burial of Jesus, and the Third Day

by Richard Carrier

Reprinted from Kiosk at The Secular Web

The details of Jewish Law are preserved in several sources, five of which are important here: the Mishnah, the Tosefta, the Semahot, and the Palestinian and Babylonian Talmuds.

The Mishnah is a written record, transcribed around 200 A.D., of traditional oral law passed down by Pharisees since the Second Temple Period (ending with the first Jewish War in 66-70 A.D.). Though it contains some identifiable additions afterward, these are usually given as added opinions rather than redactional changes, and the content is clearly conservative in preserving very early law. For example, though the temple was destroyed forever in 70 A.D., and Jews were banned from entering Jerusalem after 135 A.D. (a ban lasting almost two centuries), the Mishnah law retains very detailed rules for temple worship and refers constantly to affairs and circumstances unique to Jerusalem.  Moreover, after the first war, Sadducees and the Sanhedrin no longer existed, yet they are frequently featured in the preserved oral sayings, further proving a 1st century origin and context. The Tosefta, meaning “supplement,” was compiled by other rabbis over the following century as an adjunct to the Mishnah, and the tractate known as Semahot was a compilation of Jewish laws pertaining to funeral rites and care of the dead that was collected, probably by a community in Babylon, in the later 3rd century A.D.[1]

The two Talmuds are scholarly commentaries on the Mishnah laws, made in two different communities politically and culturally divided: one under the Roman Empire, in the again-free Jerusalem of the 4th century (though the compiling was begun by schools in outlying Galileean cities a century earlier); the other in Babylon, inside the new Persian empire, and completed c. 500 A.D. The textual tradition of the latter is far superior, and it is complete, whereas the extant Palestinian Talmud has large gaps, and overall the Babylonian Talmud has always held greater authority (hence all quotes from the ‘Talmud’ shall come from this). Though developed independently, and deviating on some points, containing different stories, etc., the two Talmuds corroborate each other in numerous details, demonstrating the enormous conservatism of the Jewish schools. This is not surprising given how serious the Jews were about their oral law: it was supposed to have been passed on since Moses and was regarded as equal in authority to the Torah (Old Testament), so changes in the law itself were little tolerated. Instead, the Mishnaic law was left largely unchanged, and the Talmudic commentary was used to interpret the law as needed, though even then the main principle was consistency with Mishnah and Torah and so the Talmud was likewise remarkably conservative. Consequently, unless specific reasons can be adduced for thinking otherwise, the contents of these texts applied to the time of Jesus.[2]  This is confirmed by external sources from the first century: the principles and even many of the laws themselves are corroborated in the various works of Josephus (37-c. 100 A.D.) as well as in several works by Philo (c. 15 B.C.-c. 50 A.D.), especially the De Specialibus Legibus.  What deviations we find are usually minor points of interpretation.[3]

It is generally agreed that before the Jewish War the Jews had the full practice of their own laws, to a quite remarkable degree. This was a tradition of respect passed down since Julius Caesar decreed it.[4] After the Jewish War, this was no longer the case, although the mere fact that Jews continued to pass down, write down, and interpret their laws for centuries more shows that they were never outright deprived of them, even when some of this was certainly hopeful preservation in wait for the time when the Temple and the Kingdom would be restored.

Romans, like Pontius Pilate, running roughshod over Jewish law seem to have been acting extra-legally, against the decrees of ‘good’ emperors like Caesar, Augustus, and Tiberius. It was this sporadic abuse that in fact ultimately led the Jews to war, for they believed it was ‘righteous’ to die for the law (that is how seriously they took it). Pilate learned this the hard way his first day on the job.  Josephus says that when Pilate marched legions into Jerusalem itself, bearing their standards, he first snuck them in by night, but when day broke hundreds of Jews protested urgently against the breaking of their law against icons. When he threatened them with violence, they all offered their necks and said they would rather die than see the law transgressed. Overawed by this fanaticism, Pilate removed the legionary standards.[5] This sort of respect for Jewish law was extensive. We are told even in wartime Titus respected the laws of the Sabbath and suspended his siege of Jerusalem for a day, and though obviously victorious he was willing to return all their laws to them in exchange for peace.[6] Though that may be mere post-war propaganda, there is more believable evidence: before the war, Romans would even use their manpower to enforce the Jews’ own laws,[7] and Josephus repeats at several points that the Romans before the war made sure the Jewish laws were observed.[8] The only successful or notable violations of Jewish law, by Roman authorities, recorded in Josephus before the time of Caligula are lootings of the temple fund and similar financial actions, which is not surprising since the Romans didn’t care how the Jews governed themselves so long as Caesar got his cash. More importantly, Josephus preserves, verbatim, numerous imperial decrees declaring that the Jews shall have their laws observed.  Prominent is a law passed by Augustus Caesar, stating that “the Jews are to follow their own customs in accordance with their ancestral law, just as they did in the time of Hyrcanus, High Priest of the God Most High.”[9] Thus, Jewish law was certainly active and applicable in the time of Jesus.

Torah Law is clear on the burial of executed men:

If a man has committed a sin worthy of death, and he is put to death, and you hang him on a tree, his corpse shall not hang all night on the tree, but you shall surely bury him on the same day, for he who is hanged is the curse of God, so that you do not defile your land which the Lord your God gives you as an inheritance. (Deuteronomy 21:22-23; cf. Joshua 8:29, 10:26-27).

This law is confirmed and elaborated in the Mishnah tractate Sanhedrin: people could be executed either by stoning, burning, decapitation, or strangulation (7.1a-c), but whichever it was, when the crime was blasphemy (6.4h-i) the corpse was then hung on a pole for display, apparently like a slab of meat, which resembled a crucifixion (6.4n-p).  And whether executed or not, a body had to be taken down by sunset (6.4q-r), for “whoever allows his deceased to stay unburied overnight transgresses a negative commandment” (6.5c), unless one needs that time “to honor the corpse,” e.g. to get the necessary shroud and bier (6.5d).  There is no doubt, then, that taking the bodies of the condemned down by sunset was a fundamental commandment that was sacrilege to disobey.

Josephus confirms the seriousness with which this commandment was followed. When he describes the Jewish ‘constitution’ handed down by Moses, he includes these laws:

Let him who blasphemes God be stoned to death and hung during the day, and let him be buried dishonorably and out of sight...[and]...when he has continued there for one whole day, that all the people may see him, let him be buried in the night. And thus it is that we bury all whom the laws condemn to die, upon any account whatsoever. Let our enemies that fall in battle be also buried; nor let any one dead body lie above the ground, or suffer a punishment beyond what justice requires.[11]

They proceeded to that degree of impiety as to cast away their dead bodies without burial, although the Jews used to take so much care of the burial of men, that they took down those that were condemned and crucified, and buried them before the going down of the sun.[12]

It is fairly certain that Jesus was believed from very early on to have been executed in accordance with this law. In fact, our earliest source, Paul, explicitly says so, quoting the very Torah law above: “Christ redeemed us from the curse of the law, having become a curse for us--for it is written, ‘cursed is everyone who hangs on a post’” (Galatians 3:13).  And in accord with the Torah law condemning blasphemers to death (Leviticus 24:16), three of the four Evangelists state unequivocally that Jesus was condemned to death for blasphemy by the Jewish high council (Mark 14:64, Matthew 26:65-66, John 19:7).  Mark (10:33) and Matthew (20:18) even have Jesus predict he will be condemned to death by the Jewish council. Only Luke fails to mention this sentencing, and seems to deny it in Acts 13:27-28, yet he actually assumes it in Luke 24:20, and in Acts 4:10, and 5:30 where he has Peter accuse the Jews of putting Jesus to death by hanging him on a cross (xylon, paraphrasing the Septuagint). Thus, although Jesus is ultimately executed by the Romans in the Gospel stories (seemingly on some charge like sedition), he was clearly believed from the earliest time to have been condemned to death for blasphemy by the Jewish high council. Paul even connected Jesus’ death with the burial law. Given this, and what we know the Jewish law on blasphemy was, and the fact that the Jews enjoyed the practice of their laws at the time, especially ones taken so seriously as this, and the fact that Josephus writes as if the law was both observed under the Roman peace and regarded as especially vile to break, it seems fairly certain that, if the stories about his death are at all correct, Jesus had to have been taken down before sunset and buried immediately.[13]

This is confirmed, though possibly qualified, by a contemporary of Jesus: Philo, a Jewish philosopher who wrote several treatises to protest the abandonment of the usual respect for Jews after the death of Tiberius. Though he writes about conditions in Egyptian Alexandria, under Caligula and the prefect Flaccus, where circumstances were significantly different than in Jerusalem, under Tiberius and Pilate, his remarks support Josephus a fortiori. In his attack on the prefect Flaccus (In Flaccum), Philo throughout presents the anti-semitic actions of this Alexandrian prefect as illegal, or extra-legal, and first concealed from Tiberius, and then supported by the tyrannical Caligula. And in his account of his own failed embassy to Caligula (“Embassy to Gaius”), Philo points out how things once were under Augustus, who “maintained firmly the native customs of each particular nation no less than of the Romans” (153) and to such an extent in the case of the Jews that “everyone everywhere, even if he was not naturally well disposed to the Jews, was afraid to engage in destroying any of our institutions, and indeed it was the same under Tiberius,” who, even when he punished Jewish conspirators, “charged his prefects in every place to which they were appointed...to disturb none of the established customs but even to regard them as a trust committed to their care.” (159, 161).

In particular, when Flaccus committed a gross violation of Roman custom, and crucified innocent men on a holiday, he even went so far as to deny them burial. In describing this crime, Philo observes:

I know that some of those crucified in the past were taken down when a day-of-rest of such a kind was about to start, and they were returned to their families for the purpose of enjoying burial and the customary rites. For there is need even that the dead enjoy some good upon the birthday of an emperor and, at the same time, that the sacred character of the public holy day be protected.[14]

Thus, though the Gospels make it appear as though Joseph of Arimathea was winning some special privilege for Jesus, there is in fact no reason to suppose he was doing anything out of the ordinary for a Jew in Jerusalem.  Approaching the Roman prefect and asking for the bodies of the condemned before sunset may have been a routine courtesy (since Pilate would not expect Jesus to have died already). For Pilate to have forced a corpse to remain up against one of the most sacred of Jewish laws could not have failed to result in the sort of suicidal demonstration that followed his placing of the standards within the city walls.  At the very least, Jewish outrage at this crime (and it would be a crime even to the Romans, violating the Augustan law cited above) could hardly have escaped record. And as Pilate acquiesced in the case of the standards, he would just as likely acquiesce in the treatment of a condemned corpse, since he would hardly want to irk the fanatical Jews on a daily basis as the law was continually and arrogantly violated in front of them.

It should also not be regarded as unusual that Joseph seeks the body of Jesus: Mark makes it clear that no family relations of Jesus are in the city at the time of the crucifixion, leaving it to the Sanhedrin to ensure the commandments of God were not violated. So serious was this holy duty that:

the Talmud (BK 81a) states that speedy burial of a corpse found unattended (met mitzvah) was one of the ten enactments ordained by Joshua at the conquest of Canaan and is encumbent even on the high priest who was otherwise forbidden to become unclean through contact with the dead (Nazir 7.1). Josephus records that it is forbidden to let a corpse lie unburied (Contra Apion, 2.211).[16]

The Mishnah tractate Sanhedrin goes on to explain the law regarding the burial of condemned men:

they did not bury the condemned in the burial grounds of his ancestors, but there were two graveyards made ready for the use of the court, one for those who were beheaded or strangled, and one for those who were stoned or burned.(6.5e-f)

The Tosefta likewise repeats the Mishnah, and then comments, emphasizing the Biblical basis for this law: first, as God himself says (Deuteronomy 21:23), anyone who is hanged is cursed before God (Sanhedrin 9.7), and thus had to be treated as such--and there were no exceptions, for “even if he were a king of kings, they would not bury him in the burial grounds of his ancestors, but in the burial grounds of the court” (Sanhedrin 9.8d, several parables are then told exemplifying this fact), meaning the two burial grounds “made ready for the use of the court” as the Mishnah states. The Tosefta also claims the words of King David confirm the law, for he said, “Do not gather my soul with the sinners” (Sanhedrin 9.9a-b, cf. Ps. 26:9). The Jerusalem Talmud also repeats this Mishnah law, and likewise cites similar Biblical authority, noting that the Mishnah law is “in line with that which David says, ‘sweep me not away with sinners, nor my life with bloodthirsty men’. ‘With sinners’ refers to those stoned and burned to death. ‘With bloodthirsty men’ refers to those who are beheaded and strangled” (Jerusalem Talmud, Sanhedrin 6.10.II.b-c, cf. Ps. 26:9). Finally, the Midrash Rabbah is a collection of commentaries on the Torah compiled in the sixth-century, which says: “Those slain by a court of law are not buried in their fathers’ sepulchres, but in a grave by themselves” (Numbers [XXIII:13 (877)]).

Jesus, as a blasphemer, would be ear-marked for stoning and thus for the Graveyard of the Stoned and Burned.[17] The Mishnah itself goes on to explain that only “when the flesh was completely decomposed were the bones gathered and buried in their proper place,” i.e. only then could the family rebury the condemned man in their ancestral tomb (see below). There were no apparent exceptions made for execution by a Gentile government (Talmud, Sanhedrin 47b), and there certainly would be none when the Sanhedrin had already condemned the man, since that meant his death was “merited” in the eyes of the Jewish law. Indeed, Talmudic interpretation held that the mere fact of a disgraceful death, and the stain of wickedness it entailed, required burial in a special graveyard, since the corpse could only be placed next to others of like indignity--as noted above, this was the purpose of having two graveyards reserved for different kinds of criminals.

I have not found enough information to confirm or refute the claim that the Jews were “not permitted to put anyone to death” (John 18:31, repeated in no other place). If true, it would mean that Pilate, having the imperium, would have to be consulted before an execution took place. Though there is no direct evidence for this, it is plausible: as a Roman province, capital punishment would fall under Roman magisterial law, which held that only a magistrate legally holding the fasces had power over life and death. This would not violate the decree of Augustus, since the Sanhedrin could still try people under their law. They merely had to seek approval from Pilate before carrying out the execution. But we have no examples of any such limitation affecting the Sanhedrin and thus cannot say how it was dealt with, or if it was genuine. The Tosefta hints at a possibility--a symbolic touching of a stone to a condemned man’s heart could satisfy “the religious requirement of stoning” (Sanhedrin, 9.6h), and it says one had to do what one could--if you couldn’t carry out the proper execution prescribed by law, you were allowed to use another method, even one more severe, since the exact means was less important than the execution itself, for, as the Tosefta notes, “as it is said, ‘And you will exterminate the evil from your midst’” (Sanhedrin 12.6b-d, cf. Deut. 17:7).

Since this essay was first written, I have found that all of the above is supported even more by the thorough scholarship of Byron McCane, in "Where No One Had Yet Been Laid: The Shame of Jesus' Burial," in B.D. Chilton and C.A. Evans (eds.), Authenticating the Activities of Jesus (NTTS, 28.2; Leiden: E.J. Brill, 1998) p. 431-452.

The law requiring prompt burial could be fulfilled by placing a corpse in a temporary resting place when burial rights could not be carried out right away.  One such case was the arrival of the Sabbath, on which it was forbidden to perform any labor, including burial rites (Talmud, Sanhedrin 35a-35b).  This is almost certainly what Joseph was doing when ‘burying’ Jesus Friday night, since the Sabbath began at sundown Friday.  As Amos Kloner puts it:

During the Second Temple period and later, Jews often practiced temporary burial...a borrowed or temporary cave was used for a limited time, and the occupation of the cave by the corpse conferred no rights of ownership upon the family...[and] Jesus' interment was probably of this nature.[18]

Such use of ‘temporary tombs’ is attested in the Semahot, where temporary burial is implicit in the rule that “Whosoever finds a corpse in a tomb should not move it from its place, unless he knows that this is a temporary grave” and in the story told that “Rabban Gamaliel had a temporary tomb [lit.  ‘a borrowed tomb’] in Yabneh into which they bring the corpse and lock the door upon it,” just as Joseph does with Jesus, “Later, they would carry the body up to Jerusalem.”[20] This means that, as there was a commandment to bury the body the night of death, except when something like a Sabbath intervened, Joseph would have been required to place Jesus in a temporary grave and formally bury him Saturday night. So the body could not have been in Joseph’s tomb Sunday morning when all four Gospels claim the women visited it. Though they find it empty, by then his body would have to be, by law, in the graveyard of the stoned and burned.

A cautionary note is needed to prevent confusing temporary burial with secondary burial. It is well known that the Jews practiced secondary burial: a corpse would receive a funeral and burial, then when the flesh rotted away (typically some months to a year later) the bones would be gathered, cleaned, and placed in an ossuary, a small box or chest for holding the bones of the reburied. Hence the Mishnah states “When the flesh has rotted, they collect the bones and bury them in their appropriate place” (Sanhedrin 6.6a; also, Tractate Semahot 12.6-9; Tosefta, Sanhedrin, 9.8c, etc.). Numerous ossuaries have been found attesting to the practice, including one case of a clearly crucified man.[21] Whereas temporary burial is not burial at all, but the use of a holding place until burial can be performed, much like we store bodies at a morgue today, secondary burial is an actual second act of burial, where it is permitted to enter a tomb and ‘disturb’ the dead with proper reverence, so that the bones can be reconsecrated in a new grave. As the Mishnah states, the corpses of condemned men, which have to be buried in the criminal graveyards, can be reburied where they belong, e.g. in their ancestral tombs, where they would have been buried in the first place if not for their disgraceful manner of death.

Finally, several passages in the Midrash Rabbah, which tie into the Mishnah, suggest a third-day motif could have been latent throughout a Jewish understanding of the dead. These laws are especially relevant to the passion narrative of Jesus, possibly inspiring the very idea that he was raised ‘on the third day’. The key passage is as follows, based on Job 14:22:

Bar Kappara taught: Until three days [after death] the soul keeps on returning to the grave, thinking that it will go back [into the body]; but when it sees that the facial features have become disfigured, it departs and abandons it [the body]. (Genesis [C:7 (994)])

For three days [after death] the soul hovers over the body, intending to re-enter it, but as soon as it sees its appearance change, it departs, as it is written (Job 14:22), “When his flesh that is on him is distorted, his soul will mourn over him.” Bar Kappara said: The full force of mourning lasts for three days. Why? Because [for that length of time] the shape of the face is recognizable, even as we have learnt in the Mishnah: Evidence [to prove a man's death] is admissible only in respect of the full face, with the nose, and only [by one who has seen the corpse] within three days [after death]. (Leviticus [XVIII:1 (225-226)])

One may go out to the cemetery for three days to inspect the dead for a sign of life, without fear that this smacks of heathen practice. For it happened that a man was inspected after three days, and he went on to live twenty-five years; still another went on to have five children and died later. (8.1)

[1] Jacob Neusner, The Tosefta: An Introduction, 1992; Dov Zlotnik, The Tractate "Mourning", Yale Judaica Series 18, 1966, cf. p. 9.

[2] For all the details herein, cf. s.v. “Jerusalem,” “Mishnah,” and “Talmud,” Encyclopedia Judaica, 1974.  See also Thomas Sheehan’s “Notes on Rabbinical Literature,” in The First Coming: How the Kingdom of God Became Christianity, 1986.

[3] Steve Mason, ed., Flavius Josephus: Translation and Commentary, v. 3, Brill, 2000.  Cf. p.xxxvii.  Also, “Josephus” and “Philo,” Encyclopedia Judaica, 1974, and David Goldenberg, “Antiquities IV, 277 and 288, Compared with Early Rabbinic Law,” pp. 198-211, Josephus, Judaism, and Christianity, Feldman & Hata, eds., 1987.

[4] One of these decrees of Caesar was set up, e.g., at Rome, Sidon, Tyre, and Ascalon, in both Greek and Latin: Nina Jidejian, Tyre Through the Ages (1969), p. 86.

[5] Josephus, The Jewish War (JW) 2.169-174.

[6] JW 4.97-105, 4.406.

[7] JW 2.289-292.

[8] JW 6.101; 6.334 quoting Titus himself: “We have preserved the laws of your forefathers to you, and have withal permitted you to live, either by yourselves, or among others, as it should please you.”

[9] Josephus, Antiquities of the Jews (AJ) 16.160-173. For scholarship on this passage, cf. the bibliographies provided in Appendix J of vol. 7 of the Loeb edition of the works of Josephus, and the introductory paragraph to section 4.6 of Margaret Williams, The Jews Among the Greeks & Romans: A Diasporan Sourcebook, 1998 (p. 93).  It is important to understand the special and peculiar place Jews had in the pre-Caligula Roman empire, especially within Jerusalem. How the Romans, for example, dealt with the bodies of the crucified elsewhere, or in other times, is thus of no use in ascertaining what was usual under Pilate.

[10] Cf. s.v. “xulon,” Liddell & Scott’s Greek-English Lexicon, 9th ed., 1996.  For Hebrew, consult Strong’s concordance and dictionary.

[11] JW 4.202, 260.

[12] JW 4.317; cf. also AJ 4.264-265, and JW 3.377.

[13] This also makes theological sense: for only through legal execution could an offender obtain forgiveness for his sins (Talmud, Sanhedrin 47a)--indeed, some Rabbis believed only execution by a Gentile government secured forgiveness. But all agreed that three things were required to atone for sins before God: execution, shameful burial, and the rotting of the flesh from the bones (Talmud, Sanhedrin 47b).

[14] In Flaccum, 83. My own translation is given, which is more loyal to the Greek than others currently in print. The Geeek for the entire passage is as follows: êdê tinas oida tôn aneskolopismenôn mellousês enistasthai toiautês ekecheirias kathairethentas kai tois suggenesin epi tô taphês axiôthênai kai tuchein tôn nenomismenôn apodothentas. edei gar kai nekrous apolausai tinos chrêstou genethliakais autokratoros kai hama to hieroprepes tês panêgureôs phylachthênai.

[15] This is the case both grammatically and logically: (1) The structure of the sentence is: [it is necessary that] [A] [and, at the same time] [B]. Thus, [B] (surrender of bodies to protect the day’s holiness) is necessary independent of the fact of [A] (surrender of bodies in honor of the emperor’s clemency); (2) Philo’s argument is that the emperor’s birthday was a day so holy that it deserved to be treated like other holy days, holy days generally required the release of bodies, ergo bodies ought to be released on the emperor’s birthday.

[16] s.v. “Burial,” Encyclopedia Judaica, 1974, v. 4, col. 1517.

[17] Mishnah, Sanhedrin 7.4a, d; the same sentence is given for ‘profaning the Sabbath’ or ‘sorcery’ (7.4e, i), other crimes that were suggested by Pharisees as possible grounds for accusing Jesus during his ministry, at least as portrayed in the Gospels. In addition, his treatment of his own parents (Matthew 12:48-49, Mark 3:31-35, Luke 8:19-21) and his teachings about how others were to treat their parents (Matthew 8:21-22 & Luke 9:59-60; cf. also Matthew 10:35, 19:29, and Luke 12:53, 14:26) violated the 5th commandment, which also warranted death by stoning.

[18] Amos Kloner, "Did a Rolling Stone Close Jesus' Tomb?" Biblical Archaeology Review 25:5, Sept/Oct 1999, p. 29.

[19]  Mk. 15:42 (past the 9th hour: Mk 15:34, Mt 27:46, Lk 23:44). The passage is made to appear self-contradictory in some translations, e.g. NAS: “And when evening had already come, because it was the preparation day, that is, the day before the Sabbath.” If the sun had gone down it would be the Sabbath and thus could not be the preparation day. Since Mark specifically says it was still the day before the Sabbath, the word for ‘evening’ (opsia, “late [hour]”) must be meant to refer to the hour or so just before sunset.  Matthew likewise qualifies the time in this way: the opsia in 27:57 must be understood in the context of 27:62 when the time shifts to ‘the next day, which is the one after the preparation’.  Luke is more precise, stating that Joseph had already placed Jesus into a tomb on ‘the preparation day, when the Sabbath was about to begin’ (23:54).

[20] Semahot 13.5 and 10.8 = Zlotnik, op. cit., p. 84 and 74.

[21] See my essay “Doctors Pronounce Jesus Dead!” Secular Web, 2001 (http://www.secweb.org/asset.asp?AssetID=88), spotted August 5, 2001.

[22] Mishnah, Yebamot 16:3a-e. For examples of this law being cited, cf. Midrash Rabbah, Genesis LXV:20 (595), LXXIII:5 (669-670) and Leviticus XXXIII:5.

[23] cf. Zlotnik’s endnote regarding the corrupted reading of “thirty days” in some texts. He demonstrates on palaeographical grounds that “three days” is clearly the correct reading here. This also fits the other passages, and makes far more sense: it is inconceivable that someone would remain alive in a tomb for thirty days.
 

Date published: 08/09/2001