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Who Shall Live & Who Shall Die

10/17/2012 10:27:03 AM

Oct17

Rabbi George Gittleman

Proposition 34 , which would abolish the death penalty in California, begs the question, what does Judaism have to say about capital punishment? While it is a common perception that “Judaism is against the death penalty,” the Jewish story (as is the case most of the time) is more complex than that.

The first place to look to discern Jewish notions of capital punishment is the Torah and, according to the plain reading of the biblical text, in ancient Israel one could be put to death for a variety of things including but not limited to lighting a fire on the Sabbath, striking a parent, being a rebellious child, adultery, blasphemy, rape, murder, being a false witness, and making animal sacrifices to alien gods.

However, it is important to remember that the Torah isn’t Judaism. If it was, I would be a priest, not a rabbi, and our primary form of worship would be animal sacrifice (read the book of Leviticus if you do not know what I am talking about). The Torah reflects the life, law and lore of ancient Israel much more than it paints a picture of the Judaism we know today. It is true that the roots of most things Jewish are in the Torah, but much has changed since the Torah was first written down some 3,000 years ago. In fact, if one wants to understand what Judaism or Jewish tradition has to say about most things, it is the Talmud, not the Torah, that one has to mine.

The Talmud is the core text of what is referred to as “Rabbinic Judaism” which is, in essence, the Judaism we know today. The Talmud is a wide-ranging “conversation” spanning over 1200 years (really over 2,000 years since it is still actively studied) that covers almost every aspect of human experience including capital punishment.

The Talmud sees capital punishment as part of “The Rule of Law.”

Taking it cues from the Torah, it recognizes four modes of execution: stoning; burning; beheading; and strangulation (what fun!). In the Talmud, there are extensive debates about these modes of punishment and how and when they should be carried out. However, it is important to distinguish between theory and practice. You see, after the year 70 CE, the overwhelming majority of Jewish courts no longer had jurisprudence in capital cases and, since much of the Talmud was written down after 70 CE, we can assume the “conversation” was mostly theoretical; these first rabbis, the ancient sages that created the Judaism that we know today, were not putting people to death. Rather, they were exploring the issues inherent in the death penalty, lishma, for the sake of learning what they could from it regardless of its practical implications. Nevertheless, it seems clear that early on in the development of Judaism, sometime between 200 BCE and 70 CE, capital punishment was carried out for a variety of offenses for four main reasons:

It’s commanded in the Torah; it was seen as just retribution; it was considered preventive and expiating (cleans the person executed of sin).

However by circa 70 CE, while capital punishment remained “on the books,” the Rabbis of the Talmud erected procedural barriers that made it virtually impossible for a Jewish court to impose the death penalty. They ruled, for example, that for a capital case to be tried there had to be at least two witnesses and those witnesses would have to give separate but identical testimony. In addition, the defendant, prior to committing the crime, had to have been warned what the punishment would be if he or she carried out the crime. In addition there were a number of other safeguards like the requirement that only a Sanhedrin, or a court of 23 highly trained judges, could decide capital cases that together made it virtually impossible for a Jewish court to try a capital case.

To get a sense of how the sages of the Talmud accomplished their goal, it is helpful to read at a few Talmudic texts on this issue. The following text is a classic example of the procedural barriers the Rabbis erected around the death penalty:

“What are the differences between civil and capital crimes?

  • Civil cases are tried by three judges and capital cases by twenty three.

 

  • Civil cases may be decided by a majority of one, either for acquittal or condemnation; capital cases may be decided by a majority of one for acquittal but by a majority of at least two for conviction.

 

  • In civil cases, a decision may be reversed from acquittal to conviction or conviction to acquittal. But in capital cases, the verdict may be reversed only from conviction to acquittal.
  • In civil cases, everyone may argue for or against the defendant; in capital cases, everyone may argue for acquittal but not for conviction.
  • In the civil cases, a judge who argued for conviction may reverse himself and argue for acquittal, and vice versa. In capital cases, a judge who argued for conviction may subsequently argue for acquittal but a judge who argued for acquittal may not reverse himself.
  • Civil cases may be concluded on the same day, whether for acquittal or conviction. Capital cases may be concluded on the same day for acquittal, but a verdict of conviction may be given only on the next day.”Mishnah, tractate Sanhedrin, chapter 4, paragraph 1

    The passage below is perhaps the most often quoted text regarding Judaism’s general attitude toward the death penalty:“A court that orders an execution once in seven years is a murderous court.” Rabbi Eleazar ben Azariah says: “Or even once in seventy years.” Rabbi Tarfon and Rabbi Akiva said: “Had we been members of the Sanhedrin, no person would ever have been put to death.” Rabbi Simeon ben Gamaliel said: “If so, they would have also multiplied the murderers in Israel.”Mishna, tractate Makkot, chapter 1:10While many people quote from the above text, they often leave out the dissenting opinion attributed to Rabbi Simeon ben Gamaliel.  That is to say, while the majority held that the death penalty was wrong, there were those in the days of the Talmud who held that capital punishment was necessary at least as a deterrent to “murderers in Israel.” I don’t think modern social science concurs with that ancient, dissenting, Jewish view, but it is important, if one wants to attempt to be balanced, to note that there was (and there still is) a dissenting Jewish view.Nevertheless, at the end of the day, Judaism speaks with a pretty clear voice against the death penalty.  But why? What motivated our earliest sages to move to procedurally obliterate the ability for a Jewish court to execute someone?

     

    In truth, we don’t know for sure (how anti-climactic!), but we can make a few educated guesses:

    Judaism values life over almost everything else. The Talmud teaches, “To save a life is to save the world and to take a life is to destroy a world.” (Talmud Sanhedrin 37a) Given our high regard for life, one can understand the Rabbis’ great fear that an innocent person would be executed by mistake.  In addition, it is likely that the sages of the Talmud were also concerned about what happens to a society that puts people to death. Here, a little historical context is helpful.

    You see, much of the Talmud was recorded during Roman rule. They saw first-hand the brutality of a state that used capital punishment as a regular and public form of societal control. Only a sovereign disconnected from its subjects, one who no longer sees them as human beings created in God’s image, can carry out capital punishment with impunity. For the Rabbis, killing another human being was tantamount to killing God. They tell a theologically radical parable to illustrate their point.

    The context is the Roman practice of hanging or crucifying. This form of execution was particularly repugnant to the Rabbis because, not only did the person suffer a horrible death, their corpse was often left to rot on the gibbet!

    They begin the parable with a question: “To what is this (form of execution) similar to?” “It is like two twin brothers who resided in the same city. One of them was appointed king and the other became a bandit. The king issued a decree against his brother, and they hanged him. But everyone who saw the bandit hanging from the gibbet said, ‘The king himself has been hung!’ Thus the king ordered that they take the body down from the gibbet.” (Talmud, Shabbat 31a)

    In the above parable “the king” is God and “the bandit” is any human being who is executed. What the Rabbis are suggesting is that killing another human being is like hanging God from the gallows.

    Now, having come this far you may be asking, where have we arrived regarding our original question: what does Judaism have to say about the death penalty? In essence the message is, while Judaism recognizes that we can forfeit our right to life through our actions, the consequences for a society that takes that life are so grave that the ability to do so is severely if not totally nullified.  In other words, the concept of capital punishment is considered valid, just not the practice.

    Vote YES on Proposition 34. End the Death Penalty in California NOW!

Mon, July 13 2020 21 Tammuz 5780