Why Didn't The Brothers Try To Stone Yosef To Death?

So asks Hillel, in a comment on my previous post. In that previous post, I suggested that they had determined that Yosef was a choleim chalomot, and thus a navi, sheker. And so they wished to put him to death as a false prophet.

Hillel asks in a comment:

R' Waxman,
Respectfully, your answer fails to explain why they did not perform sekillah k'din - or any sekillah at all!

This under the assumption that a false prophet is killed with sekilah. This is actually not so clear-cut. Yes, a pasuk in the approximate context in parashat Reeh does state {Devarim 13:10-11}:

י  כִּי הָרֹג תַּהַרְגֶנּוּ, יָדְךָ תִּהְיֶה-בּוֹ בָרִאשׁוֹנָה לַהֲמִיתוֹ; וְיַד כָּל-הָעָם, בָּאַחֲרֹנָה.	10 but thou shalt surely kill him; thy hand shall be first upon him to put him to death, and afterwards the hand of all the people.
יא  וּסְקַלְתּוֹ בָאֲבָנִים, וָמֵת:  כִּי בִקֵּשׁ, לְהַדִּיחֲךָ מֵעַל יְהוָה אֱלֹהֶיךָ, הַמּוֹצִיאֲךָ מֵאֶרֶץ מִצְרַיִם, מִבֵּית עֲבָדִים.	11 And thou shalt stone him with stones, that he die; because he hath sought to draw thee away from the LORD thy God, who brought thee out of the land of Egypt, out of the house of bondage.

However, there the topic is a meisis, one who entices others to sin in idolatry -- including perhaps a navi sheker for idolatry. But what the specific punishment for neviei sheker are, for different offenses, is a matter of dispute. Thus, for example, in Sanhedrin 84a, we read:

A ZAR WHO OFFICIATED IN THE TEMPLE. It has been taught: R. Ishmael said: It is here written, And the stranger that cometh nigh shall be put to death;¹³  whilst it is elsewhere said, Whosoever cometh anything near unto the tabernacle of the Lord shall die:¹⁴  just as there death was at the hands of Heaven, so here too. R. Akiba said: It is here written, And the stranger that cometh nigh shall be put to death; whilst it is elsewhere said, And that prophet, or that dreamer of dreams, shall be put to death:¹⁵  just as there, it is by stoning, so here too. R. Johanan b. Nuri said: Just as there, it is by strangling, so here too. Wherein do R. Ishmael and R. Akiba differ? — R. Akiba maintains, 'shall be put to death' must be compared with 'shall be put to death' but not with 'shall die'.¹⁶  Whilst R. Ishmael maintains, a layman must be compared to a layman, but not to a prophet. But R. Akiba avers, Since he seduced, no man is more of a layman than he.¹⁷ 

Let us say it was stoning. How did they try to stone?

Well, I'll remind you that stoning has two parts. The first is throwing the person down from a height. Then, the person is stoned.

By Yosef, in fact, we have precisely that. To remind you, they first cast him into the pit. It depends upon how deep the pit was, but we may conclude that it was the appropriate height.

If so, wouldn't Yosef have been severely injured? I would answer no. The Midrash Rabbah tells us:

והבור רק אין בו מים מים אין בו אבל נחשים ועקרבים יש בו.
שני בורות היו: אחד מלא צרורות.
ואחד מלא שרפים ועקרבים.

אמר רבי אחא:בור רק, נתרוקן בורו של יעקב.
אין בו מים, אין בו דברי תורה, שנמשלו למים, היך מה דאת אמר (ישעיה נה) הוי כל צמא לכו למים. 
כתיב: (דברים כד) כי ימצא איש גונב נפש מאחיו, ואתם מוכרים את אחיכם?!

Thus, there were snakes and scorpions in the pit to cushion his fall! The brothers didn't realize that there were snakes and scorpions there, when they performed this first act of sekilah.

What about the second portion of sekilah? Well, that was why they reserved the second pit. As the above midrash stated,

שני בורות היו: אחד מלא צרורות.
ואחד מלא שרפים ועקרבים

What is the point of a pit entirely filled with rocks and pebbles, if not for the sake of stoning Yosef?!

So, in the end, why didn't they stone Yosef?

I will venture a guess. The dispute between Reuven, Yehuda and the brothers about how to dispose of Yosef is the same as the dispute between Rabbi Akiva and Rabbi Yochanan ben Nuri.

The brothers said:

20. So now, let us kill him, and we will cast him into one of the pits, and we will say, 'A wild beast devoured him,' and we will see what will become of his dreams."

כ. וְעַתָּה לְכוּ וְנַהַרְגֵהוּ וְנַשְׁלִכֵהוּ בְּאַחַד הַבֹּרוֹת וְאָמַרְנוּ חַיָּה רָעָה אֲכָלָתְהוּ וְנִרְאֶה מַה יִּהְיוּ חֲלֹמֹתָיו:

In which case for some reason they thought to kill Yosef directly. Though the word וְנַהַרְגֵהוּ  might imply hereg, with a sayif, perhaps they were inexact in their language and meant chenek. They would then dispose of the body in the pit. Thus, they held like Rabbi Yochanan ben Nuri.

Reuven meanwhile held like Rabbi Akiva, and thus stoning was the appropriate course of action:

21. But Reuben heard, and he saved him from their hand[s], and he said, "Let us not deal him a deadly blow."		כא. וַיִּשְׁמַע רְאוּבֵן וַיַּצִּלֵהוּ מִיָּדָם וַיֹּאמֶר לֹא נַכֶּנּוּ נָפֶשׁ:
22. And Reuben said to them, "Do not shed blood! Cast him into this pit, which is in the desert, but do not lay a hand upon him," in order to save him from their hand[s], to return him to his father.		כב. וַיֹּאמֶר אֲלֵהֶם רְאוּבֵן אַל תִּשְׁפְּכוּ דָם הַשְׁלִיכוּ אֹתוֹ אֶל הַבּוֹר הַזֶּה אֲשֶׁר בַּמִּדְבָּר וְיָד אַל תִּשְׁלְחוּ בוֹ לְמַעַן הַצִּיל אֹתוֹ מִיָּדָם לַהֲשִׁיבוֹ אֶל אָבִיו:

Perhaps his reason for objecting, on halachic grounds, was to save him from their hands. (Alternatively, from their direct killing. Instead, it would be via their stones, and from the fall.)

Yehuda decided that, in keeping all the commandments, it would be better if they removed themselves from this machlokes between the two Torah greats, just as Yaakov took steps to avoid the safek on the correct bracha for lentils by providing Esav with bread, to make a hamotzi. Therefore, he counseled that they sell him to the Ishmaelites.

Compare with this vort, by krum as a bagel:


Thus, Yehuda said:

26. And Judah said to his brothers, "What is the gain if we slay our brother and cover up his blood?

כו. וַיֹּאמֶר יְהוּדָה אֶל אֶחָיו מַה בֶּצַע כִּי נַהֲרֹג אֶת אָחִינוּ וְכִסִּינוּ אֶת דָּמוֹ:

By מַה בֶּצַע, he is referring to betzias hapas, the breaking of bread after hamotzi. He is asking: what is the comparison to Yaakov's giving of bread to Esav so that he could make hamotzi to their present case? For whichever way they kill him, they are acting like one side in the machlokes. Better to avoid the machlokes entirely, just as Yaakov Avinu did. And so he counsels the selling of Yosef to the Yishme'eilim.