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Capital punishment in traditional Jewish law has been defined in Codes of Jewish law dating back to medieval times, based on a system of oral laws contained in the Babylonian and Jerusalem Talmud, the primary source being the Hebrew Bible. In traditional Jewish law there are four types of capital punishment: a) stoning, b) burning by ingesting molten lead, c) strangling, and d) beheading, each being the punishment for specific offenses. Except in special cases where a king can issue the death penalty, capital punishment in Jewish law cannot be decreed upon a person unless there were a minimum of twenty-three judges (Sanhedrin) adjudicating in that person's trial who, by a majority vote, gave the death sentence, and where there had been at least two competent witnesses who testified before the court that they had seen the litigant commit the offense. Even so, capital punishment does not begin in Jewish law until the court adjudicating in this case had issued the death sentence from a specific place (formerly, the Chamber of Hewn Stone) on the Temple Mount in the city of Jerusalem. [1]
Capital and corporal punishment in Judaism have a complex history which has been a subject of extensive debate. The Bible and the Talmud specify capital punishment by the "Four Executions of the Court," — stoning, burning, decapitation, and strangulation — for the most severe transgressions, [2] and the corporal punishment of flagellation for intentional transgressions of negative commandments that do not incur one of the Four Executions. According to Talmudic law, the authority to apply capital punishment ceased with the destruction of the Second Temple. [2] [3] The Mishnah states that a Sanhedrin that executes one person in seven years — or seventy years, according to Eleazar ben Azariah — is considered bloodthirsty. [4] [5] During the Late Antiquity, the tendency of not applying the death penalty at all became predominant in Jewish courts. [6] In practice, where medieval Jewish courts had the power to pass and execute death sentences, they continued to do so for particularly grave offenses, although not necessarily the ones defined by the law. [2] While it was recognized that the use of capital punishment in the post-Second Temple era went beyond the biblical warrant, the rabbis who supported it believed that it could be justified by other considerations of Jewish law. [7] [8] Whether Jewish communities ever practiced capital punishment according to rabbinical law, and whether the rabbis of the Talmudic era ever supported its use even in theory, has been a subject of historical and ideological debate. [9]
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." [10] Maimonides argued that executing a defendant on anything less than absolute certainty would lead to a slippery slope of decreasing burdens of proof, until convictions would be mere "according to the judge's caprice". Maimonides was concerned about the need for the law to guard itself in public perception, to preserve its majesty, and to retain the people's respect. [11]
The position of Jewish Law on capital punishment often formed the basis of deliberations by Israel's Supreme Court. It has been carried out by Israel's judicial system only twice, in the cases of Adolf Eichmann [8] and Meir Tobianski.
The institution of capital punishment in Jewish law is defined in the Law of Moses (Torah) in multiple places. The Mosaic Law provides for the death penalty to be inflicted upon those persons convicted of the following offenses:
The principal tractate in the Talmud that deals with such cases is Tractate Sanhedrin.
Cases concerning offenses punishable by death are decided by 23 judges. [34] The reason for this odd number is that the early rabbis had learnt that it takes at least 10 judges to convict a man, and another 10 judges to acquit a man, and the court being unequal will result in a verdict rendered by majority vote. [35] Strict regulations were in place as to how these judges were to be selected, based on their sex, age and family standing. For example, they could not appoint a judge who did not have children of his own, for he was thought to be less merciful towards other men's children. [36] Neither could they select a judge who was not a male, by way of an edict, [37] [38] and which others say was because of the levity and temerity of the other sex. [39] Nor could they admit the testimony of women in a court of Jewish law where the death-penalty hinged over the accused. [40] [41] [42] [43]
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 the 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 were extremely stringent. [44] The Mishnah 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 a murderous one. Rabbi Eliezer ben Azariah said, 'Or even once in 70 years.' Rabbi Tarfon and Rabbi Akiba said, 'If we had been in the Sanhedrin, no death sentence would ever have been passed'; Rabban Simeon ben Gamaliel said, 'If so, they would have multiplied murderers in Israel.'" [45] [46]
The Talmud notes that "forty years before the destruction of the [Second] Temple, capital punishment ceased in Israel." [47] This date is traditionally put at 28 CE, a time that corresponds with the 18th year of Tiberius' reign. At this time, the Sanhedrin required the approbation of the Roman procurator of Judea before they could punish any malefactor by death. Other sources, such as Josephus, disagree. The issue is highly debated because of its relevance to the New Testament trial of Jesus. [48] [49] 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.
Legal proceedings involving capital punishment were to be handled with extreme caution. In all cases of capital punishment in Jewish law, the judges are required to open their deliberations by pointing out the good qualities of the litigant and to bring up arguments about why he should be acquitted. [50] [51] Only later did they hear the incriminating evidence. It was almost impossible to inflict the death penalty because the standards of proof were so high. As a result, convictions for capital offenses were rare, but did happen in Judaism. [52] [53] [54] The standards of evidence in capital cases include:
Where the death sentence was warranted but the court did not the jurisdiction to mete out the death sentence, such as when there were not two or more witnesses, the court had the authority to lock up the convicted individual within a cupola, or similar confined structure, and to feed them meager portions of bread and water until they died. [57]
According to an oral teaching appearing in Megillat Taanit , the four modes of execution formerly used in Jewish law were mostly orally transmitted practices not explicitly stated in the Written Law of Moses, although some modes of punishment are explicitly stated. Megillat Taanit records that "On the fourth [lower-alpha 1] [day] of [the lunar month] Tammuz, the book of decrees had been purged (עדא ספר גזרתא)". The Hebrew commentary (scholion) on this line brings two different explanations of this event; according to one of the explanations, the "book of decrees" was composed by the Sadducees and used by them as proof concerning the four modes of capital punishment; the Pharisees and rabbis preferred to determine the punishments via orally transmitted interpretation of scripture. [58]
The court had the power to inflict four kinds of death penalty: stoning, burning, beheading, and strangling. [59]
For some crimes, the Bible specifies which form of execution is to be used. Blasphemy, idolatry, Sabbath-breaking, witchcraft, prostitution by a betrothed virgin, or deceiving her husband at marriage as to her chastity (Deut. 22:21), and the rebellious son are punished with death by stoning; bigamous marriage with a wife's mother and the prostitution of a priest's daughter is punished by burning; communal apostasy is punished by the sword.
With reference to all other capital offenses, the law ordains that the perpetrator shall die a violent death, occasionally adding the expression, "His (their) blood shall be upon him (them)." This expression applies to death by stoning.
The Bible speaks also of hanging (Deut. 21:22), but (according to the rabbinical interpretation) not as a mode of execution, but rather of exposure after death. [60] [61]
The following is a list by Maimonides of the crimes punished by each form of capital punishment: [62]
Death by stoning (סקילה, skila) was issued for the transgression of one of eighteen crimes, among which being those who wantonly transgressed the Sabbath day by breaking its laws (excluding those who may have broken the Sabbath laws unintentionally), as well as a male who had a licentious connection with another male. [63] Stoning was administered by throwing the condemned person off a height, typically twice the height of an average person, so that they would fall to the ground. If the fall did not result in death, a large stone would be dropped on the person's chest. If this still did not cause death, bystanders would then continue to hurl stones until the person was dead. [64]
Death by burning (שריפה, serefah) was issued for ten offenses, including prostitution and bigamous relations with one's wife and their mother. [63] Perpetrators were not burnt at the stake, but rather molten lead was poured down the perpetrator's esophagus. Alternatively, the burning was inflicted after the perpetrator had been stoned, a precedent that was established in Achan's stoning. [65]
According to Halakha, this punishment is conducted by pouring molten metal (lead, or a mixture of lead and tin) into one's throat, rather than burning at the stake.
Death by the sword (הרג, hereg) was issued in two cases: for wanton murder and for communal apostasy (idolatry). The perpetrators of these crimes were beheaded. [63]
Death by strangulation (חנק, chenek) was issued for six crimes, among which being a man who had a forbidden connection with another man's wife (adultery), and a person who willfully caused injury (bruise) to one of his/her parents. [61]
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. The modern institution of the death penalty, at least as practiced in the United States, is opposed by the major rabbinical organizations of Orthodox, Conservative, and Reform Judaism. [66] [67] In a 2014 poll, 57 percent of Jews surveyed said they supported life in prison without the chance of parole over the death penalty for people convicted of murder. [68]
Orthodox Rabbi Aryeh Kaplan wrote:
"In practice, ... 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. [69]
On the other hand, Rabbi Moshe Feinstein, in a letter to then-New York Governor Hugh Carey, 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." [70]
According to Yaakov Elman, imprisonment of criminals was impractically expensive under the material conditions of ancient society, which meant that the death penalty and other corporal punishments were the only available options for severe crimes. Thus, use of the death penalty in ancient society would not necessarily imply that the Jewish tradition prefers it in wealthy modern society. [71]
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." [72]
Since 1959, the Central Conference of American Rabbis and the Union for Reform Judaism have formally opposed the death penalty. The Central Conference also 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". [73]
Humanistic Judaism has no policy on the use of the death penalty. [74]
The Sanhedrin was a legislative and judicial assembly of either 23 or 71 elders, existing at both a local and central level in the ancient Land of Israel.
Masei, Mas'ei, or Masse is the 43rd weekly Torah portion in the annual Jewish cycle of Torah reading and the 10th and last in the Book of Numbers. The parashah comprises Numbers 33:1–36:13. The parashah discusses the stations of the Israelites' journeys, instructions for taking the land of Israel, cities for the Levites and refuge, and the daughters of Zelophehad.
Mishpatim is the eighteenth weekly Torah portion in the annual Jewish cycle of Torah reading and the sixth in the Book of Exodus. The parashah sets out a series of laws, which some scholars call the Covenant Code. It reports the people's acceptance of the covenant with God. The parashah constitutes Exodus 21:1–24:18. The parashah is made up of 5,313 Hebrew letters, 1,462 Hebrew words, 118 verses, and 185 lines in a Torah scroll.
Yitro, Yithro, Yisroi, Yisrau, or Yisro is the seventeenth weekly Torah portion in the annual Jewish cycle of Torah reading and the fifth in the Book of Exodus. The parashah tells of Jethro's organizational counsel to Moses and God's revelation of the Ten Commandments to the Israelites at Mount Sinai.
Acharei Mot is the 29th weekly Torah portion in the annual cycle of Torah reading in Judaism. It is the sixth parashah or weekly portion (פָּרָשָׁה) in the Book of Leviticus, containing Leviticus 16:1–18:30. It is named after the fifth and sixth Hebrew words of the parashah, its first distinctive words.
Kedoshim, K'doshim, or Qedoshim is the 30th weekly Torah portion in the annual Jewish cycle of Torah reading and the seventh in the Book of Leviticus. It constitutes Leviticus 19:1–20:27. The parashah tells of the laws of holiness and ethical behavior, repeats the Ten Commandments, and describes penalties for sexual transgressions. The parashah is made up of 3,229 Hebrew letters, 868 Hebrew words, 64 verses, and 109 lines in a Torah Scroll.
Emor is the 31st weekly Torah portion in the annual Jewish cycle of Torah reading and the eighth in the Book of Leviticus. The parashah describes purity rules for priests, recounts the holy days, describes the preparations for the lights and bread in the sanctuary, and tells the story of a blasphemer and his punishment. The parashah constitutes Leviticus 21:1–24:23. It has the most verses of any of the weekly Torah portions in the Book of Leviticus, and is made up of 6,106 Hebrew letters, 1,614 Hebrew words, 124 verses and 215 lines in a Torah Scroll.
Behar, BeHar, Be-har, or B'har is the 32nd weekly Torah portion in the annual Jewish cycle of Torah reading and the ninth in the Book of Leviticus. The parashah tells the laws of the Sabbatical year and limits on debt servitude. The parashah constitutes Leviticus 25:1–26:2. It is the shortest of the weekly Torah portions in the Book of Leviticus. It is made up of 2,817 Hebrew letters, 737 Hebrew words, 57 verses, and 99 lines in a Torah Scroll.
Bechukotai, Bechukosai, or Bəḥuqothai (Biblical) is the 33rd weekly Torah portion in the annual Jewish cycle of Torah reading and the 10th and last in the Book of Leviticus. It constitutes Leviticus 26:3–27:34. The parashah addresses blessings for obeying the law, curses for disobeying it, and vows. The parashah is made up of 3,992 Hebrew letters, 1,013 Hebrew words, 78 verses, and 131 lines in a Torah Scroll.
Naso or Nasso is the 35th weekly Torah portion in the annual Jewish cycle of Torah reading and the second in the Book of Numbers. It constitutes Numbers 4:21–7:89. The parashah addresses priestly duties, camp purification, restitution for wrongs committed, the wife accused of unfaithfulness, the nazirite, the Priestly Blessing, and consecration of the Tabernacle. Naso has the largest number of letters, words, and verses of any of the 54 weekly Torah portions. The parashah is made up of 8,632 Hebrew letters, 2,264 Hebrew words, 176 verses, and 311 lines in a Torah Scroll.
Pinechas, Pinchas, Pinhas, or Pin'has is the 41st weekly Torah portion in the annual Jewish cycle of Torah reading and the eighth in the Book of Numbers. It tells of Phinehas's killing of a couple, ending a plague, and of the daughters of Zelophehad's successful plea for land rights. It constitutes Numbers 25:10–30:1. The parashah is made up of 7,853 Hebrew letters, 1887 Hebrew words, 168 verses, and 280 lines in a Torah scroll.
Devarim, Dvarim, or Debarim is the 44th weekly Torah portion in the annual Jewish cycle of Torah reading and the first in the Book of Deuteronomy. It comprises Deuteronomy 1:1–3:22. The parashah recounts how Moses appointed chiefs, the episode of the Twelve Spies, encounters with the Edomites and Ammonites, the conquest of Sihon and Og, and the assignment of land to the tribes of Reuben, Gad, and Manasseh.
Va'etchann is the 45th weekly Torah portion in the annual Jewish cycle of Torah reading and the second in the Book of Deuteronomy. It comprises Deuteronomy 3:23–7:11. The parashah tells how Moses asked to see the Land of Israel, made arguments to obey the law, recounted setting up the Cities of Refuge, recited the Ten Commandments and the Shema, and gave instructions for the Israelites' conquest of the Land. The parashah is made up of 7,343 Hebrew letters, 1,878 Hebrew words, 122 verses, and 249 lines in a Torah Scroll. Jews in the Diaspora generally read it in late July or August.
Re'eh, Reeh, R'eih, or Ree is the 47th weekly Torah portion in the annual Jewish cycle of Torah reading and the fourth in the Book of Deuteronomy. It comprises Deuteronomy 11:26–16:17. In the parashah, Moses set before the Israelites the choice between blessings and curses. Moses instructed the Israelites in laws that they were to observe, including the law of a single centralized place of worship. Moses warned against following other gods and their prophets and set forth the laws of kashrut, tithes, the Sabbatical year, the Hebrew slave redemption, firstborn animals, and the Three Pilgrimage Festivals.
Shofetim or Shoftim is the 48th weekly Torah portion in the annual Jewish cycle of Torah reading and the fifth in the Book of Deuteronomy. It comprises Deuteronomy 16:18–21:9. The parashah provides a constitution, a basic societal structure, for the Israelites. The parashah sets out rules for judges, kings, Levites, prophets, cities of refuge, witnesses, war, and unsolved murders.
Ki Teitzei, Ki Tetzei, Ki Tetse, Ki Thetze, Ki Tese, Ki Tetzey, or Ki Seitzei is the 49th weekly Torah portion in the annual Jewish cycle of Torah reading and the sixth in the Book of Deuteronomy. It comprises Deuteronomy 21:10–25:19. The parashah sets out a series of miscellaneous laws, mostly governing civil and domestic life, including ordinances regarding a beautiful captive of war, inheritance among the sons of two wives, a wayward son, the corpse of an executed person, found property, coming upon another in distress, rooftop safety, prohibited mixtures, sexual offenses, membership in the congregation, camp hygiene, runaway slaves, prostitution, usury, vows, gleaning, kidnapping, repossession, prompt payment of wages, vicarious liability, flogging, treatment of domestic animals, yibbum, weights and measures, and wiping out the memory of Amalek.
Ki Tavo, Ki Thavo, Ki Tabo, Ki Thabo, or Ki Savo is the 50th weekly Torah portion in the annual Jewish cycle of Torah reading and the seventh in the Book of Deuteronomy. It comprises Deuteronomy 26:1–29:8. The parashah tells of the ceremony of the first fruits, tithes, and the blessings from observance and curses from violation of the law.
Vayelech, Vayeilech, VaYelech, Va-yelech, Vayelekh, Wayyelekh, Wayyelakh, or Va-yelekh is the 52nd weekly Torah portion in the annual Jewish cycle of Torah reading and the ninth in the Book of Deuteronomy. It constitutes Deuteronomy 31:1–30. In the parashah, Moses told the Israelites to be strong and courageous, as God and Joshua would soon lead them into the Promised Land. Moses commanded the Israelites to read the law to all the people every seven years. God told Moses that his death was approaching, that the people would break the covenant, and that God would thus hide God's face from them, so Moses should therefore write a song to serve as a witness for God against them.
The Hebrew term kareth, or extirpation, is a form of punishment for sin, mentioned in the Hebrew Bible and later Jewish writings. The typical Biblical phrase used is "that soul shall be cut off from its people" or a slight variation of this. Several different suggestions have been made for the understanding of this punishment in the Bible and in rabbinic thought.
Thou shalt not kill, You shall not murder or Do not murder (CSB), is a moral imperative included as one of the Ten Commandments in the Torah.
Similarly, the passage in Mishnah Makkot 1:10: "A Sanhedrin that puts a man to death once in seven years is called a murderous one. R. Eleazar ben Azariah says, 'Or even once in 70 years.' R. Tarfon and R. Akiva said, 'If we had been in the Sanhedrin, no death sentence would ever have been passed'; Rabban Simeon b. Gamaliel said: 'If so, they would have multiplied murderers in Israel.'
This refers to the statement in the Mishnah (Mak. 1:10; Mak. 7a) that a Sanhedrin that kills (gives the death penalty) once in seven years (R. Eleazer b. Azariah said: once in 70 years) is called "bloody" (ḥovlanit, the term "ḥovel" generally implying a type of injury in which there is blood).