Eitz Hayim 1088-1094; Plaut 1456-1459; Hertz 820-823
Parashat Shof=tim has enough content to make up a whole course. Among many other things, capital punishment is one of the important topics treated in Shof’tim and that is the focus of my dvar. I am not talking today about the times that God sends down fire or plague and some Israelites die. Nor am I talking about capital punishment instituted in the Middle Ages for informing to Christian authorities. Here I am talking about Biblically authorized capital punishment based on from formal judicial proceedings that results in the death of some Israelite on the basis of his or her actions. My use of Ahis or her@ is not just modern non-sexism; over and over again, the text says Aman or woman@ to indicate that justice is not biased by sex (for example, 17:2 and 17:5). Much of what I have to say is not pleasant, and, as CBC Radio would say, it may be disturbing to some individuals.
There is no question but that capital punishment is clearly part of the judicial system in Biblical Israel. There are 36 specific acts in the Hebrew Bible for which death is the prescribed punishment. Indeed, there are many more that are implied but not explicit. Should someone be gored to death because you kept an ox that was known to gore human beings, or should someone fall to his or her death because you neglected to provide a parapet around the roof of your building, you would be charged with murder. Someone has died because of what you did or did not do. Blood for blood.
Wait, you may interject at this point! We know that for much of Biblical time and thereafter the Jewish community had no authority to administer its own judicial system, and that many rabbis worked to soften the Biblical prescriptions. True, and therefore I am going to divide my d=var into two parts: principles and practice. The principles define the nature and occurrence of capital punishment as found mainly in the Bible but also in later documents. In contrast, the practice of applying laws of capital punishment is mainly found in the Talmud and other later documents. However, there are exceptions. For example, Shof=tim rules that a person cannot be made subject to capital punishment on the basis of a single witness; it requires a minimum of two witnesses (17:6).
Continuing with the principles, from words in the text itself, the rabbis inferred that the law of capital punishment involved four and only four forms of execution. In the order of importance as judged by the times they are prescribed:
Stoning (), applies to 17 of the 36 actions, about half of them sexual, and most of the rest involving some form of sorcery, plus a few such as cursing one=s parents and violating the sabbath. There is some confusion about how stoning was imposed; one view says that the victim was taken to a cliff about eight metres high, and dropped head first; should he or she survive this drop, a stone so large that two men have to carry it is dropped onto the victim=s chest; the other view says that it was carried out much as one thinks and, as seems to be specified in Shof=tim (17:7), the first stones are thrown by the two witnesses. This approach that has the secondary effect that, should their testimony later be shown to be incorrect, they themselves would be guilty of murder.
Burning (), the second most common form of execution, is specified for 17 transgressions, all of them sexual. Jewish execution by burning is not like burning at a stake but by pouring molten lead down the victim=s throat, something that sounds and no doubt was awful but apparently resulted in instant death. No Biblical source indicates that execution by burning was ever carried out.
Strangulation () is specified for six infractions that are a mixture of sexual and ritual infractions plus kidnapping. It was accomplished by having the convict stand in mud up to his or her knees, after which a pair of scarves were wound around the neck and then pulled in opposite directions by two witnesses (other texts say two priests).
Decapitation (hereg; Hebrew??) is associated with only two crimes, murder and living in a city which formerly worshipped God but now worships some non-god. It is commonly referred to as dying by the sword, and is the only one of the four that means exactly what one thinks of by the name.
Execution by hanging is mentioned in the Bible but only for non‑Jews who were presuma- bly following their own laws or as an extra‑judicial measure (Josh. 8:29). Impaling is also mentioned (Bmd 25:4) but later text (Dvr 21:22) suggests that it only applies after death. That is, after execution the dead body could be impaled on a stake and exhibited to the community. However, biblical law prescribes that the body had to be taken down the same day and buried before nightfall, "for an impaled body is an affront to God" (ibid., 23). The exhibition of the dead body reinforces other indications that the main rationale for capital punishment is to frighten other Israelites away from committing the same crime.
These forms of execution and the frequency of their mention suggest values that are inherent to Judaism. First, capital punishment is reserved for only the most serious crimes, at least from a Biblical perspective. A majority of those crimes involve one or another form of idolatry, or violate a sexual code that expressed a horror of incest. At no time is capital punishment prescribed for crimes of property. Second, as much as possible the integrity of the individual is preserved; no torture and no prolonged dying is permitted. And, third, judicial executions should avoid destroying or mutilating the body (Sanh. 52a; Sifra 7:9). From this perspective, it becomes evident why burning at a stake or crucifixion is never used as a form of Jewish execution. Hertz summarizes the principle in a few words: “Judaism requires that human personality be respected in every human being . . . even in the criminal condemned to death (Hertz 1936; 821).i Practice
With minor exceptions, discussions in the Mishnah and the Gemorah show a general distaste among the rabbis for the death penalty. For example, Parashat Shof=tim requires at least two witnesses to justify the death penalty. That was not enough for post-Biblical rabbis. They argue that the Atwo witnesses are required to testify not only that they witnessed the act for which the criminal has been charged but that they had warned him or her beforehand that if he or she carried out the act he would be executed, and he had to state his willingness to commit the act despite his awareness of its consequences. The criminal's own confession is not accepted as evidence.@ii To add to the complications, the Mishnah (Sanhedrin 1:4) concludes that the death penalty could only be inflicted, after trial, by a Sanhedrin composed of 23 judges (ibid.).
Of course, as mentioned at the start, all of this Mishnaic commentary was written after Jewish communities had no authority to impose the death penalty; it is nothing but theoretical commentary. They were written without regard to the reality of a real judicial system. AIt is hard to believe that when the courts did impose the death penalty they could only do so when the conditions above obtained. Who would commit a murder in the presence of two witnesses when these had solemnly warned him that if he persisted they would testify against him to have him executed for his crime?@ (Ibid.)
Mishnah Makkot (1:10) implies the extent of this musing when it says that "A Sanhedrin that puts a man to death once in seven years is called destructive.@ Not content with that, AR. Eliezer ben Azariah says: even once in seventy years. R. Akiba and R. Tarfon say, >had we been in the Sanhedrin none would ever have been put to death.=@ It is left to Rabban Simeon ben Gamaliel to add some realism when he responds, saying Athey would have multiplied shedders of blood in Israel." However, the fact that all of these citations about capital punishment are mishnaic, which is the first part of the Talmud, redacted between 180 and 220 CE, indicates how prominent capital punishment was in the minds of minds of post-Biblical rabbis. Indeed, according to Louis Isaac Rabinowitz,iii R. Akiva himself, who would have abolished capital punishment, enters into the halakhic discussion of the application of the various forms of punishment as fully as his colleagues. More generally, as with the five misnayot about the Astubborn and rebellious son,@ they are included among other parts of the Talmud that Anever happened and never will happen,@ and therefore are included not for practical application but rather that Ayou may study it and receive reward@ (for pure study) (ibid.)
Let me close with a quotation from Rabbi Louis Jacobs (op. cit.). In response to his consideration of the foregoing matters, Rabbi Jacobs inserts a note just below the heading for his electronic essay in AMy Jewish Learning@ He writes: ABut the question of capital punishment in actual practice in ancient Jewish society is extremely complicated.@ I agree completely, and it is no less complicated today in modern Israel. As you may know, capital punishment is only permitted in Israel for individuals linked to the Holocaust and treason at times of actual warfare. However, Talmudic considerations still play a role. After being confronted with the proliferation of brutal terrorist acts, the military courts stated that, though the death penalty may be more appropriate, they were bound "to uphold principles of the State of Israel, the moral concepts of Jewish tradition, in which a Sanhedrin that passed a death sentence was considered to be 'a bloody Sanhedrin.'" (Menachem Elon.iv)
Annex: Which forms of Capital Punishment go with which Crimes
According to Maimonides in his Mishneh Torah (Hilchoth Sanhedrin Chapter 15), the following list assigns specific crimes to one of the four forms of capital punishment:
Punishment by Sekila (stoning)
Intercourse between a man and his mother.
Intercourse between a man and his father's wife (not necessarily his mother).
Intercourse between a man and his daughter in law.
Intercourse with another man's wife from the first stage of marriage.
Intercourse between two men.
Cursing the name of God in God's name.
Giving one's progeny to Molech (child sacrifice).
Attempting to convince another to worship idols.
Instigating a community to worship idols.
Violating the Sabbath.
Cursing one's own parent.
A stubborn and rebellious son.
Punishment by Serefah (burning)
The daughter of a priest who completed the second stage of marriage commits adultery.
Intercourse between a man and his daughter.
Intercourse between a man and his daughter's daughter.
Intercourse between a man and his son's daughter.
Intercourse between a man and his wife's daughter (not necessarily his own daughter).
Intercourse between a man and his wife's daughter's daughter.
Intercourse between a man and his wife's son's daughter.
Intercourse between a man and his mother in law.
Intercourse between a man and his mother in law's mother.
Intercourse between a man and his father in law's mother.
Punishment by Chenek (strangulation)
Committing adultery with another man's wife, where it doesn't fall under above criteria.
Wounding one's own parent.
Kidnapping another member of Israel.
Prophesizing in the name of other deities.
A sage who is guilty of insubordination in front of the grand court in the Chamber of the Hewn Stone.
Punishment by Hereg (beheading)
Unlawful premeditated murder.
Being a member of a city that has gone astray.
i. Rabbi J. H. Hertz (1936). The Pentatuch and Haftorahs, 2nd edition. London: Sonciono Press.
ii. Rabbi Louis Jacob, available at:http://www.myjewishlearning.com/life/Life_Events/Death_and_Mourning/About_Death_and_Mourning/Death_Penalty.shtml
iii. Rabinowitz= comments on Talmudic discussions on capital punishment are found in the Jewish Virtual Library: http://www.jewishvirtuallibrary.org/jsource/judaica/ejud_0002_0004_0_03929.html
iv. Jewish Virtual Library, op. cit. The specific case cited is: Ram 3009/89 Army Pros. v. Ahmed Gibril Ottrrzan Takrzrru.