Capital and corporal punishment in Judaism

The Jewish tradition describes certain forms of corporal punishment and capital punishment for certain crimes, while cautioning against the use of such punishments.

Capital punishment in classical sources

Illustration in 1883 encyclopaedia of the ancient Jewish Sanhedrin council

The harshness of the death penalty indicated the seriousness of the crime. Jewish philosophers argue that the whole point of corporal punishment was to serve as a reminder to the community of the severe nature of certain acts. This is why, in Jewish law, the death penalty is more of a principle than a practice. The numerous references to a death penalty in the Torah underscore the severity of the sin rather than the expectation of death. This is bolstered by the standards of proof required for application of the death penalty, which has always been extremely stringent (Babylonian Talmud Makkoth 7b). Because the standards of proof were so high, it was well-nigh impossible to inflict the death penalty. The Mishnah (tractate Makkoth 1:10) outlines the views of several prominent first-century CE Rabbis on the subject:

A Sanhedrin that puts a man to death once in seven years is called destructive. Rabbi Eliezer ben Azariah says that this extends to a Sanhedrin that puts a man to death even once in seventy years. Rabbi Akiba and Rabbi Tarfon say: Had we been in the Sanhedrin none would ever have been put to death. Rabban Simeon ben Gamaliel says: they would have multiplied shedders of blood in Israel.

The Sanhedrin stopped issuing capital punishment either after the Second Temple was destroyed in 70 CE or alternatively, according to passages in the Talmud and New Testament, in 30 CE when the Sanhedrin were moved out of the Hall of Hewn Stones. Other sources such as Josephus and other passages in the New Testament disagree. The issue is highly debated because of the relevancy to the New Testament trial of Jesus.[1][2] Ancient rabbis did not like the idea of capital punishment, and interpreted the texts in a way that made the death penalty virtually non-existent. The idea of killing someone for a crime they commit is frowned upon in the Jewish tradition.

The 12th-century Jewish legal scholar Maimonides stated that "It is better and more satisfactory to acquit a thousand guilty persons than to put a single innocent one to death." Maimonides argued that executing a defendant on anything less than absolute certainty would lead to a slippery slope of decreasing burdens of proof, until we would be convicting merely "according to the judge's caprice." Maimonides was concerned about the need for the law to guard itself in public perceptions, to preserve its majesty and retain the people's respect.[3]

Stringencies of evidence in capital cases

As a result, convictions for capital offense were rare in Judaism.[5][6]

The four types of capital punishment

Before any capital sentence was carried out, the condemned person was given a drug to render them senseless. There were four types of capital punishment, known as mitath beth din (execution by the rabbinic court). These four types of capital punishment, in decreasing severity, were:

Capital sins separated by the four types of capital punishment

The following is a list by Maimonides in his Mishneh Torah (Hilchoth Sanhedrin Chapter 15) of which crimes carry a capital punishment.

Punishment by Sekila (stoning)

Punishment by Serefah (burning)

Punishment by Hereg (beheading)

Punishment by Chenek (strangulation)

Corporal punishment in classical sources

There was only one form of corporal punishment - lashes (malkoth). The maximum number of lashes allowed per sentence was 40, given in multiples of 3, effectively making the maximum 39. Apart from as a punishment for violating Torah law, malkuth mardus (lashes of rebellion) was also administered in cases of contempt of court and violation of rabbinic law, where the court lashes the violator to the extent they see fit.

Contemporary attitudes towards capital punishment

Leading rabbis in Reform Judaism, Conservative Judaism, and Orthodox Judaism tend to hold that the death penalty is a correct and just punishment in theory, but they hold that it should not generally be used (or not used at all) in practice. In practice the application of such a punishment can only be carried out by humans whose system of justice is nearly perfect, a situation which has not existed for some time or never existed at all.

Rabbinical courts have given up the ability to inflict any kind of physical punishment, and such punishments are left to the civil court system to administer. But the modern institution of the death penalty is opposed by the major rabbinical organizations of Reform, Conservative, and Orthodox Judaism

Reform Judaism

Since 1959, the Central Conference of American Rabbis (CCAR) and the Union for Reform Judaism (URJ) have formally opposed the death penalty. The CCAR resolved in 1979 that "both in concept and in practice, Jewish tradition found capital punishment repugnant" and there is no persuasive evidence "that capital punishment serves as a deterrent to crime."[7]

Conservative Judaism

In Conservative Judaism the death penalty was the subject of a responsum by its Committee on Jewish Law and Standards, which has gone on record as opposing the modern institution of the death penalty:

The Talmud ruled out the admissibility of circumstantial evidence in cases which involved a capital crime. Two witnesses were required to testify that they saw the action with their own eyes. A man could not be found guilty of a capital crime through his own confession or through the testimony of immediate members of his family. The rabbis demanded a condition of cool premeditation in the act of crime before they would sanction the death penalty; the specific test on which they insisted was that the criminal be warned prior to the crime, and that the criminal indicate by responding to the warning, that he is fully aware of his deed, but that he is determined to go through with it. In effect this did away with the application of the death penalty. The rabbis were aware of this, and they declared openly that they found capital punishment repugnant to them… There is another reason which argues for the abolition of capital punishment. It is the fact of human fallibility. Too often we learn of people who were convicted of crimes and only later are new facts uncovered by which their innocence is established. The doors of the jail can be opened, in such cases we can partially undo the injustice. But the dead cannot be brought back to life again. We regard all forms of capital punishment as barbaric and obsolete.

— Rabbi Ben Zion Bokser, Statement on capital punishment, 1960. Proceedings of the Committee on Jewish Law and Standards 1927-1970, Volume III, pp. 1537-1538

Orthodox Judaism

Orthodox Rabbi Yosef Edelstein writes:

So, at least theoretically, the Torah can be said to be pro-capital punishment. It is not morally wrong, in absolute terms, to put a murderer to death… However, things look rather different when we turn our attention to the practical realization of this seemingly harsh legislation. You may be aware that it was exceedingly difficult, in practice, to carry out the death penalty in Jewish society... I think it's clear that with regard to Jewish jurisprudence, the capital punishment outlined by the Written and Oral Torah, and as carried out by the greatest Sages from among our people (who were paragons of humility and humanity and not just scholarship, needless to say), did not remotely resemble the death penalty in modern America (or Texas). In theory, capital punishment is kosher; it's morally right, in the Torah's eyes. But we have seen that there was great concern—expressed both in the legislation of the Torah, and in the sentiments of some of our great Sages — regarding its practical implementation. It was carried out in ancient Israel, but only with great difficulty. Once in seventy years; not 135 in five and a half.

— Rabbi Yosef Edelstein, Director of the Savannah Kollel

Orthodox Rabbi Aryeh Kaplan writes:

In practice, however, these punishments were almost never invoked, and existed mainly as a deterrent and to indicate the seriousness of the sins for which they were prescribed. The rules of evidence and other safeguards that the Torah provides to protect the accused made it all but impossible to actually invoke these penalties… the system of judicial punishments could become brutal and barbaric unless administered in an atmosphere of the highest morality and piety. When these standards declined among the Jewish people, the Sanhedrin… voluntarily abolished this system of penalties.

— (Rabbi Aryeh Kaplan, Handbook of Jewish Thought, Volume II, pp. 170-71

On the other hand, Rabbi Moshe Feinstein, in a letter to then New York Governor Hugh Carey [8] states: "One who murders because the prohibition to kill is meaningless to him and he is especially cruel, and so too when murderers and evil people proliferate they [the courts] would [should?] judge [capital punishment] to repair the issue [and] to prevent murder – for this [action of the court] saves the state.”

See also

References

  1. ↑ https://www.jewishvirtuallibrary.org/jsource/judaica/ejud_0002_0004_0_03929.html
  2. ↑ Watson E. Mills, Roger Aubrey Bullard, eds. (1990). Mercer Dictionary of the Bible. Mercer University Press. p. 795.
  3. ↑ Moses Maimonides, The Commandments, Neg. Comm. 290, at 269-271 (Charles B. Chavel trans., 1967).
  4. ↑ Babylonian Talmud, Tractate Sanhedrin, page 17a. Also Maimonidies, Mishneh Torah, Sanhedrin, Chapter 9.
  5. ↑ Mishnah Maccot, 1:10
  6. ↑ "讚讬谞讬 谞驻砖讜转". cet.ac.il.
  7. ↑ "Position of the Reform Movement on the Death Penalty". Religious Action Center.
  8. ↑ Responsa Iggerot Moshe, Choshen Mishpat v. 2 responsum 68

Further reading

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