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Thou shalt not kill? Jewish teachings on death penalty

by rachel biale

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Jewish teachings hold contradictory views on capital punishment. While biblical law mandates it for many offenses, the rabbis limit its application to the point of near extinction.

The Torah mandates capital punishment for numerous grievous offenses: murder, idolatry, cursing God or parents, sexual transgressions, public violation of Shabbat, witchcraft, etc. It requires courts to mete out such punishment for murder: “Whoever sheds man’s blood, by man his blood shall be shed” (Genesis 9:6).

Biblical law emerged in the ancient Near East where capital punishment was universal practice. The Torah innovated, seeking to correct the common practice that allowed the wealthy to pay for a life taken, while the poor gave “life for life.” “You shall not take ransom for the life of a murderer who is guilty” (Numbers 35:31).

vbiale_with_nameBiblical law balanced capital punishment with its core value, the sanctity of human life: “And God created the human in God’s image; in the divine image (betzelem elohim) [God] created him…” (Genesis 1:27).

Furthermore, the Torah placed stringent limitations on capital punishment by requiring the testimony of two eyewitnesses to convict and execute a murderer: “Whoever strikes down a person, by [testimony of] two witnesses shall the murderer be killed; and a single witness shall not testify against a person [sentenced] to die” (Numbers 35:30).

Rabbinic law turns the two-eyewitnesses requirement into a mechanism that renders capital punishment essentially unenforceable. The fact that Jewish authority to execute criminals was suspended by the Romans “forty years before the destruction of the Temple” (Babylonian Talmud, Sanhedrin 41a) does not deter the rabbis from lengthy discussion and exacting legal principles.

“They would examine them [witnesses] with seven searching queries: In what seven-year period [did it occur]? In what year? What month? On which day of the month? What day of the week? At what hour? At what place?” (Sanhedrin 40a)

Few if any eyewitnesses could answer all these questions; few if any testimonies would be accepted. Furthermore, the rabbis required establishing in cross-examination that the witness duly warned the perpetrator of the gravity of his intended crime and his liability for capital punishment.

“Did you warn him? … Did he accept the warning? Did he admit his liability to death? Did he commit the murder within the time needed for an utterance [to hold sway]?” (Sanhedrin 40a)

How likely is it that a murderer in pursuit of his victim would receive and acknowledge such warnings, then commit his crime forthwith? It’s clearly a theoretical construct, making capital punishment nearly impossible.

Finally, the rabbis directly state their aversion to capital punishment: “A Sanhedrin [high court] that executes a person once in seven years is a murderous one [hovlanit].” Rabbi Ele’azar ben Azariah said: “Once in seventy years.” Rabbis Tarfon and Akiva said: “If we were members of the Sanhedrin, nobody would ever be put to death” (Mishnah, Makkot 1:10).

In the talmudic tradition of preserving minority opinions, the passage ends with the lone voice of Simeon ben Gamliel: “[Thus they] would multiply the shedders of blood in Israel.” His warning is valued, but rejected.


Rachel Biale is the author of “Women and Jewish Law” and a former Bay Area regional director of Progressive Jewish Alliance, now Bend the Arc: A Jewish Partnership for Justice. She also writes a parenting column for j.


Comments

Posted by dudleysharp
10/12/2012  at  08:59 AM
God's law vs man's desires

Ms. Biale:
The most imnportant quote from your article, is this one:
” While biblical law mandates (the death penalty) for many offenses, the rabbis limit its application to the point of near extinction.”
Precisely, God’s law is clear, it is a mandate/command, and man does all he can to thwart God’s law.
The simple question is, why did anyone let the rabbi’s get away with this?
The answer is: They shouldn’t have.
Secondly, I question your two translations.
First, your “Thou shalt not kill” is incorrect.
Rabbi Azriel Rosenfeld at .(JavaScript must be enabled to view this email address)
68. Murderer and Protection of Life - Rotze’ach u-Shemiras Nefesh
“It is forbidden to murder, as it says “You shall not murder”.1
then
A murderer must be put to death, as it says “He shall be avenged"2; it is forbidden to accept compensation from him instead, as it says “You shall not take redemption for the life of a murderer…; and there shall be no atonement for the blood that was spilled… except the blood of him that spilled it”.3 It is forbidden to execute a murderer before he has stood trial, as it says “And the murderer shall not die until he stands before the congregation for judgment”.4 However, we are commanded to prevent an attempted murder by killing the would-be murderer if necessary, and it is forbidden to refrain from doing so, as it says “And you shall cut off her hand; you shall not be merciful"5; and similarly for attempted fornication, as it says “[If the man seizes her and lies with her…] just as a man rises up against his friend and murders him, so is this thing.“6 It is forbidden to refrain from saving life when it is in one’s power to do so, as it says “You shall not stand on your friend’s blood.“7,a

1. Ex. 20:13; Deut. 5:17
2. Ex. 21:20; see Lev. 24:17,21
3. Num. 35:31,33
4. Num. 35:12 d.
5. Deut. 25:12
6. Deut. 22:26
7. Lev. 19:16 a. 1:1,4-11,14
From
Halacha Overview,
http://www.torah.org/learning/halacha-overview/chapter68.html

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Posted by rachel biale
10/12/2012  at  09:38 AM
Let me begin with the

Let me begin with the minor point of contention: the translation of “lo tirzach.”  I actually totally agree with you that “Thou shalt not murder” is better than “Thou shalt not kill”.  I used “kill” (per the King James Translation) simply because that it the more common translation.  I wanted the citation to ring as very familiar for most readers.

The second issue you raise is huge and goes to the core of how differently you and I see the development of Jewish law.  You say: “God’s law is clear, it is a mandate/command, and man does all he can to thwart God’s law. The simple question is, why did anyone let the rabbi’s get away with this?  The answer is: They shouldn’t have.”

I - and the vast majority of Jews today and throughout history!- totally disagree with you.  WE DO, indeed, accept and respect the Rabbis’ interpretations, includign major amendments, of Biblical Law.  This view has been the core of Jewish teachings since antiquity. It is only a very tiny fragment of the Jewish community in any given period that has taken the fundamentalist position that the word of the Bible is the word of God “as is,” with no room for changes or interpretations. You appear to wish to dispense with the Mishnah, Talmud and all subsequent halakhic writings.  There we part ways. I am sure that the sources you quote would not agree with you either.

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Posted by dudleysharp
10/12/2012  at  09:44 AM
Biblical Requirement for Two Eyewitnesses?

Ms. Biale:

Secondly, the other translation is question, is this:

“Whoever strikes down a person, by [testimony of] two witnesses shall the murderer be killed; and a single witness shall not testify against a person [sentenced] to die” (Numbers 35:30).

Biblical Requirement for Two Eyewitnesses?
Dudley Sharp

Some find that God’s mandate for justice must be very weak because capital punishment and other criminal sanctions require two witnesses for prosecution (Numbers 35:30; Deuteronomy 17:6). Such drastically reduces the enforcement of the law.
Such evaluation may be unwarranted.

According to biblical scholar and ancient linguistics expert Prof. Gleason Archer, some wrongly isolate the Hebrew ‘d (1) , “witness”, from its broad biblical context, and, therefore, may have wrongly concluded that two eyewitnesses are required in capital cases and some other criminal cases (Deuteronomy 19:15).

As Prof. Archer observed: Did God want nearly all criminals, including murderers, to get off, scot-free, if ” . . . (they) had not taken the prudent measure of committing (their) crime where two people did not happen to be watching him?” (2)
Prof. Archer finds that witnesses in the OT means either persons or things, as in to bear witness or provide evidence.
Prof. Archer finds that the word “witness”, ‘ d has broad meaning, including, anyone with ” . . . pertinent knowledge concerning the crime, even though he had not actually seen it.” (Lev 5:1), which can mean such things as motive, opportunity, accomplices, overheard confessions, wiretaps, etc.; and physical evidence can also bear witness, also ‘ d (Ex 22:13), which could mean such evidence as bloody clothing, murder weapon, DNA, fingerprints, etc.; written documents may serve as evidence and witness (‘ d or ‘ dah, Jos 25:25-27), which may mean such evidence as a confession, documents showing motive or implication, etc.; or things such as monuments and memorial stones, such as gal-‘ d in Gen 31:46-49, can also bear witness.

Archer says “there is no contravention of biblical principles in allowing such testimony, even though only one actual witness may be found, or none at all.”
Meaning that all manner of evidence can be used to bear witness to the guilt of the crime, be that written or oral confessions, various physical evidence against the perpetrator, witnesses with knowledge of motive and other evidence against the perpetrator and/or eyewitnesses to the crime, just as witnesses, today, rightly take the stand and testify as experts/witnesses in psychiatric forensics, financial forensics, DNA, fingerprints, confessions, etc.

It is an interesting translation, particularly in the context of: why would God intentionally provide an avenue for escape for about 99% of the crimes committed by guilty criminals, if convictions were based upon a two eyewitness requirement? Such a requirement would destroy the credibility of the justice system, undermines the government’s ability to protect its citizens and their property. Respect for the law would, necessarily, not exist. Would God establish such a unjust framework? A two eyewitness requirement may appear to contradict God’s call for justice on earth, something He made clear that He cared about.

contd

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Posted by dudleysharp
10/12/2012  at  09:46 AM
contd Biblical Requirement for Two Eyewitnesses?

contd

Biblically, God knows all things for all times, meaning a two pieces of evidence, eyewitness or other, would include DNA, fingerprints, etc. and would assist in confirming guilt in a much higher percentage of cases than a two eyewitness requirement, which suffers from the well known—different eyewitnesses giving different descriptions of the criminal(s) for the same crime, as well as the well known occasions whereby alibis, DNA and other evidence has contradicted the eyewitness accounts.

(1) ‘d - the d should have a line over it, which I cannot place. It is important to meaning.

(2) Dr. Gleason L. Archer, Encyclopedia of Biblical Difficulties, Zondervan Pub., p 143-145, 1982.

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Posted by dudleysharp
10/12/2012  at  10:14 AM
"Shall" is definitive.

Ms. Bialew:

Thank you for your reply.

You write: “You appear to wish to dispense with the Mishnah, Talmud and all subsequent halakhic writings.  There we part ways. I am sure that the sources you quote would not agree with you either.”

I do not wish to dispense with those, at all.

My point was not clear enough.

The three great rabbis had a disagreement, within the crucial area of death penalty application. I may have, wrongly, believed that God’s Word would have been the tie breaker within that discussion.

I do understand how important the oral traditon is.

But these are clear, as you provided:

“Whoever sheds man’s blood, by man his blood shall be shed”(Genesis 9:6).
“You shall not take ransom for the life of a murderer who is guilty” (Numbers 35:31).

“Shall” is definitive.

It is curious that more are not reluctant to dispense with the definitive statement of God.

I don’t see how the balancing of the oral and written traditons went against God’s statement, whose Word never appeared to be contradited, but the Wordd fell, nonetheless, to an interpretation which relgated that Word to all but extinction,

Then:

” . . . the passage ends with the lone voice of Simeon ben Gamliel: “[Thus they] would multiply the shedders of blood in Israel.” His warning is valued, but rejected.

Yet, he was so right.

Many are rejected who should not have been, just as many have been acceptd that were wrong.

THE DEATH PENALTY: SAVING MORE INNOCENT LIVES
Of all endeavors that put innocents at risk, is there one with a better record of sparing innocent lives than the US death penalty?

Unlikely.
1) The Death Penalty: Saving More Innocent Lives
http://prodpinnc.blogspot.com/2012/03/death-penalty-saving-more-innocent.html
2) Innocents More At Risk Without Death Penalty
http://prodpinnc.blogspot.com/2012/03/innocents-more-at-risk-without-death.html

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