Capital and corporal punishment in Judaism has a complex history which has been a subject of extensive debate. While the Bible and the Talmud specify capital and corporal punishments, including death by stoning, decapitation, burning, and strangulation for some crimes, these punishments were substantially modified during the rabbinic era, primarily by adding additional requirements for conviction. According to Talmudic law, the competence to apply capital punishment ceased with the destruction of the Second Temple. The Mishnah states that a sanhedrin that executes one person in seven years -- or seventy years, according to Eleazar ben Azariah -- is considered bloodthirsty. During the Late Antiquity, the tendency of not applying the death penalty at all became predominant in Jewish courts. 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. 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. 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.
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.
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 once, in the case of Adolf Eichmann.
Video Capital and corporal punishment in Judaism
Capital punishment in classical sources
In the Pentateuch
Warrants for the infliction of capital punishment, as opposed to private retribution or vengeance, are found in the Pentateuchal codes for the commission of any one of the following crimes: adultery (Lev. xx. 10; Deut. xxii. 22); bestiality (Ex. xxii. 18 [A. V. 19]; Lev. xx. 15); blasphemy (Lev. xxiv. 16); false evidence in capital cases (Deut. xix. 16-19); false prophecy (Deut. xiii. 6, xviii. 20); idolatry, actual or virtual (Lev. xx. 2; Deut. xiii. 7-19, xvii. 2-7); incestuous or unnatural connections (Lev. xviii. 22, xx. 11-14); insubordination to supreme authority (Deut. xvii. 12); kidnapping (Ex. xxi. 16; Deut. xxiv. 7); licentiousness of a priest's daughter (Lev. xxi. 9); murder (Ex. xxi. 12; Lev. xxiv. 17; Num. xxxv. 16 et seq.); rape committed on a betrothed woman (Deut. xxii. 25); striking or cursing a parent, or otherwise rebelling against parental authority (Ex. xxi. 15, 17; Lev. xx. 9; Deut. xxi. 18-21); Sabbath-breaking (Ex. xxxi. 14, xxxv. 2; Num. xv. 32-36); witchcraft and augury (Ex. xxii. 17; Lev. xx. 27).
Only in comparatively few instances is the particular mode of death incurred by the commission of a crime prescribed. Blasphemy, idolatry, Sabbath-breaking, witchcraft, prostitution by a betrothed virgin, or deceiving her husband at marriage as to her chastity (Deut. xxii. 21), and the rebellious son are, according to the Pentateuchal laws, to be punished with death by stoning; bigamous marriage with a wife's mother and the prostitution of a priest's daughter are 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, as we shall see presently, post-Biblical legislation applies to death by stoning. The Bible speaks also of hanging (Deut. xxi. 22), but, according to the rabbinical interpretation, not as a mode of execution, but rather of exposure after death (Sanh. vi. 4, 75b).
In Rabbinic Judaism
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). 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 a murderous one. Rabbi Eliezer ben Azariah says '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.'"
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. 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.
It was almost impossible to inflict the death penalty because the standards of proof were so high. As a result, convictions for capital offense were rare in Judaism. The standards of evidence in capital cases include:
- It requires two witnesses who observed the crime. The accused would have been given a chance and if repeated the same crime or any other it would lead to a death sentence. If witnesses had been caught lying about the crime they would be executed.
- Two witnesses were required. Acceptability was limited to:
- Adult Jewish men who were known to keep the commandments, knew the written and oral law, and had legitimate professions;
- The witnesses had to see each other at the time of the sin;
- The witnesses had to be able to speak clearly, without any speech impediment or hearing deficit (to ensure that the warning and the response were done);
- The witnesses could not be related to each other or to the accused.
- The witnesses had to see each other, and both of them had to give a warning (hatra'ah) to the person that the sin they were about to commit was a capital offense;
- This warning had to be delivered within seconds of the performance of the sin (in the time it took to say, "Peace unto you, my Rabbi and my Master");
- In the same amount of time, the person about to sin had to both respond that s/he was familiar with the punishment, but they were going to sin anyway; and begin to commit the sin/crime;
- The Beth Din had to examine each witness separately; and if even one point of their evidence was contradictory - even if a very minor point, such as eye color - the evidence was considered contradictory and the evidence was not heeded;
- The Beth Din had to consist of minimally 23 judges;
- The majority could not be a simple majority - the split verdict that would allow conviction had to be at least 13 to 11 in favor of conviction;
- If the Beth Din arrived at a unanimous verdict of guilty, the person was let go - the idea being that if no judge could find anything exculpatory about the accused, there was something wrong with the court.
- The witnesses were appointed by the court to be the executioners.
Maps Capital and corporal punishment in Judaism
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)
- Unlawful premeditated murder.
- Being a member of a city that has gone astray.
Punishment by Chenek (strangulation)
Contemporary attitudes towards capital punishment
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. 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.
Orthodox Judaism
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.
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."
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."
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."
See also
- Capital punishment in Israel
- Religion and capital punishment
- Testimony in Jewish law
References
Further reading
- Capital Punishment, Jewish Virtual Library
- The Death Penalty in Jewish Tradition
- Jewish Law Legal Briefs
Source of the article : Wikipedia
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