The Death Penalty in Rabbinic Judaism

"We have just seen how the rabbis of antiquity made the death penalty all but impossible to implement despite the fact that it is found throughout the Hebrew Bible. Why do you think the rabbis did this? What is gained and what is lost by the rabbis' willingness to avoid implementing scriptural punishments?"



MY RESPONSE:

Mishnah (Makkot 1:10) tells us that, "A Sanhedrin that executed [more than] one person in a week is called a “murderous” [court]. Rabbi Elazar ben Azarya states: “[More than] one person in 70 years [would be denoted a murderous court].” Rabbi Tarfon and Rabbi Akiva state: “If we had been members of the Sanhedrin, no defendant would ever have been executed.”

This creates a gap between principle and practice, between very specific Torah commands requiring capital punishment, and the legal ability to do so. This is often seen as evidence that Judaism is very uncomfortable with capital punishment, to the extent that the Talmudic sages created significant legal barriers to make it exceedingly difficult, and therefore rare, to carry out capital punishment.

While this above quoted passage nearly always finds its way into discussions of capital punishment and Judaism, other Mishnaic statements of equal authority with different perspectives are often overlooked.

Bottom line, the Jewish tradition has grappled with the fundamental ethical question that confronts every society which considers capital punishment: how can a society protect human lives with an institution that itself takes human life? If the institution has the right and responsibility to kill, why does an individual or other "unauthorized" group not have that right? What is a human life worth? What are our responsibilities to one another? Is it ever right to take satisfaction in the death of a fellow human being?

What is gained is that, at its heart, Judaism is devoted to championing each human life as unique and sacred. Rabbi Meir noted that the Torah says human beings are created in the image of G!d, so that when a person is executed, it brings disgrace on the divine image, and therefore on G!d. Jews must never forget that any punishment of a human being, even when justified, is an injury to G!d.

In a case of capital punishment, Mishnah (Sanhedrin 37a) tells us that the court would deliberately “intimidate” the witnesses, to impress upon them the grave seriousness of giving testimony that could result in a person’s death. One of the methods of intimidation was to tell the witnesses, “Adam was created alone, to teach you that anyone who destroys one soul from the Jewish people, the verse ascribes him blame as if he destroyed an entire world.” Because each person is potentially the ancestor of countless unborn generations, taking a single life means eliminating potential generations of righteous Jews. And on the flip side of that coin is the commandment which tells us that helping a single individual is equivalent to sustaining an entire world. Capital punishment, then, should only be carried out in a spirit of reluctance, and even grief. This shows the difference between Jewish law and Roman law, which was the civil law in that time and place, that the rabbis of the Talmud knew all too well.

What is lost is that many who commit murder and heinous crimes might go free and hence go on to take more innocent lives.

The Torah was the product of a primitive tribal society of shepherds and nomads. The Talmud, too, is a product of its time, reflecting a more urban and educated rabbinic elite who were in transition from a sacrificial Temple cultic worship system to a rabbinical prayer-as-sacrifice worship system. Everything changed during that transition. Since the Talmudic rabbis could not simply annul the provisions of the Torah that they disliked, they could interpret them so extensively as to render them almost impossible to carry out, thus preserving what they deemed the more important part of Judaism, that of choosing and preserving life.