What is the most important Mitzvah?

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What is the Jewish view on capital punishment?

by Rabbi Moshe Miller

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Capital punishment, or dinei nefashot in Hebrew, is mentioned early on in the Torah in regard to punishment for murder: immediately after the flood, G-d commanded Noah: “Whoever sheds the blood of man, by man will his blood be shed, for in the image of G-d He created man” (Genesis 9:6). It is precisely because man reflects the Divine image that we were commanded to deal strictly with anyone who diminishes the expression of His image by committing murder.

Other transgressions were also liable to capital punishment, including adultery and idolatry. After the giving of the Torah, other transgression also became liable to capital punishment, such as desecrating the Sabbath. (Obviously the latter applies to Jews only).

During Temple times all capital cases were decided by a Beth Din of 23 members. Certain situations required a special Beth Din (the Sanhedrin) comprising 71 members. Capital cases could only be judged in the Holy Land. 40 years before the destruction of the Second Temple (in 70 CE) the rabbis ceased to hear capital cases.

Precisely because man reflects the Divine image that we were commanded to deal strictly with anyone who diminishes the expression of His image by committing murder

[Ed. note: Read about "When and why did the Rabbis discontinue capital and corporeal punishment?"]

Capital cases required at least two witnesses who actually witnessed the crime (no circumstantial evidence was accepted). The accused had to have been warned that his actions would incur the death sentence. Witnesses in capital cases were cross examined extensively by the judges. If their testimony did not concur fully the case was dismissed. If the witnesses were found to be deliberately telling untruths they themselves would be tried for murder.

The verdict in capital cases was decided by a majority – a majority of one in order to exonerate the accused, but a majority of two was necessary in order to convict him. Interestingly, if all 23 judges gave a guilty verdict the accused could not be put to death, since there “cannot be a Jew in whom nobody sees the good.”

Conditions for convicting and executing a person were so restrictive that a Beth Din that put to death more than one person in 7 years, and some say in 70 years, was referred to as a “destructive court”.¹

The educational dimension of a system of justice is at least as important as the deterrent factor. Severe punishments are meant to impress upon citizens the gravity of the crime

In recent years leading rabbinical authorities in the United States have been consulted by the government regarding the Orthodox Jewish approach to capital punishment. Rabbi Moshe Feinstein, one of the foremost modern authorities on Jewish Law, explained: “the death penalty is administered . . . not out of hate for the wrongdoers or [even] out of concern for the stability of society . . . but rather so that people should be aware of the seriousness of these prohibitions and therefore would not transgress them . . . And so, throughout the generations there were virtually no murderers among the Jews, because of the gravity of the prohibition and because they were educated by the Torah and by the punishments of the Torah to understand the gravity of the prohibition, and not because they were simply afraid of the punishment.”²

We can learn from his reply that the educational dimension of a system of justice is at least as important as the deterrent factor. Severe punishments are meant to impress upon citizens the gravity of the crime.

Rabbi Moshe adds that although Jewish Law does not advocate capital punishment in all cases, it nevertheless permits the death penalty to be applied where the law of the land permits it. However this should be restricted to cases of particularly cruel murders, or in a situation where bloodshed becomes widespread and out of control and the threat of capital punishment will restore respect for the law.

To end on a positive note – the word for “dead” in Hebrew is met (spelled mem tav). When one adds to them the letter aleph – an allusion to the Master of the Universe, Alufo shel Olam, this spells the word for truth – emet. Education about G-d teaches truth and prevents crime.

Footnotes

1. Talmud Makkot 7a
2. Igrot Moshe volume II of Choshen Mishpat responsum 68

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COMMENTS

death penalty

Posted by: Eduard Nilno, Berlin on Aug 17, 2006

Thank you very much for this article. I myself being a child of the sixties have had a long struggle with death penalty. But when growing older I learned of truly cruel crimes against Humanity and felt that these criminals had somehow to be excluded from the community. In ancient time they would have had to leave the tribe and of course perished.

If I read here now how thorough and responsible an examination was applied before taking the life of a fellow Human - still respecting him as a Human - I would gladly see this kind of spiritual, social and political procedure implemented in 'modern' society.

Thank you very much!

RELATED CATEGORIES

Life Cycle » Death » Passing On

Torah

Torah is G–d’s teaching to man. In general terms, we refer to the Five Books of Moses as “The Torah.” But in truth, all Jewish beliefs and laws are part of the Torah.

Sanhedrin

The Jewish Supreme Court. The court would convene in a designated chamber in the Holy Temple, and was comprised of 71 of the greatest scholars of the time. Continued after the destruction of the Temples, but was dissolved in the 5th century when due to Roman persecution the seat of Torah scholarship relocated from Israel to Babylon.

Noah

Tenth generation from Adam. Of all humankind, only he and his family survived the Flood which destroyed all civilization in the year 2106 BCE.

Genesis

The first book of the Five Books of Moses. It records the story of Creation and its aftermath, and chronicles the lives of the Patriarchs.

Temple

1. Usually a reference to the Holy Temple which was/will be situated in Jerusalem. 1st Temple was built in 825 BCE and was destroyed in 423 BCE. The 2nd Temple was built in 350 BCE and was destroyed in 70 CE. The 3rd Temple will be built by the Messiah. 2. A synagogue.

Beth Din

(Lit. House of Law). Rabbinical court.

G-d

It is forbidden to erase or deface the name of G-d. It is therefore customary to insert a dash in middle of G-d's name, allowing us to erase or discard the paper it is written on if necessary.