Thursday 1 February 2018

Capital Punishment

While the Knesset have been debating whether or not to make it easier for courts to apply the death penalty that already exists in Israeli law, various misleading statements have been issued. I thought it would be appropriate to clarify the halachic side of this discussion.

As I have already written about the special status of war (see War and Peace), for the purposes of this post I am assuming that this special status does not exist. I will also not be discussing any ‘leniencies’ that may exist when it comes to non-Jews.[1]

Anyone who has read the Torah will know that the death penalty does exist in Judaism. Equally, anyone who has learnt some amount of gemara (or read halachic literature derived from it) will know that in practice the application of the death penalty was always rare. The conditions required are so strict to make it virtually impossible.[2]

However, these conditions exist only when it comes to the statutory death penalty. The gemara tells us that a king has the right to kill anyone who disobeys his orders, as long as they do not contradict the Torah.[3] This is derived from an explicit verse, in which the people assure Yehoshua bin Nun that anyone who disobeys him will be killed.[4] The Chinuch states the obvious, that he does not need to have the usual standard of proof to impose this punishment.[5]

Who has the authority?

What happens when there is no king? Clearly the right to punish is not limited to a bona fide king, as Yehoshua bin Nun himself was not one.[6] But exactly how far does this go?

The gemara tells us that Beis Din can punish even when there is no Torah source for doing so, in order to make a ‘fence’ for the Torah. In one example of this, when a certain person rode on a horse on Shabbos (a violation of a rabbinic decree), it was deemed necessary to put him to death. In another example, due to the needs of the time, a man was given lashes for carrying our marital relations in public.[7]

The Ran explains that enforcement of the laws of the Torah is always the responsibility of Beis Din. However, in order to run a country, additional laws and forms of enforcement are necessary. These additions are generally the domain of the king. However, when there is no king, Beis Din is given charge of both of these tasks. This is why Yehoshua bin Nun was given the power to put people to death, even though he was not a king.[8]

The implication is that any ruler accepted by the people, by whatever means is normal in that country, has the right to enforce law like a king does. As the Rambam writes concerning the other powers of a king (whether Jewish or not), if the population accept the coinage of a king they have in effect accepted him as a ruler, and they are his subjects.[9]

A similar point is made by the Meiri (1249-1315, Provence). Explaining why we find cases in the gemara where laws were enforced by dayanim who did not have semicha (see Ubitul Sanhedreya), he says that when authority was given by the state authorities, the assumption is that the community also accepts this authority. He adds that this authority even enables the dayanim to impose capital punishment.[10]

This power is not necessarily limited to religious leadership. The Rosh (1250-1327) writes that the Tovei Ha’ir (lay leaders of the community) also have the power to impose punishments not stipulated by the Torah.[11] This ruling is codified by the Rema.[12]

From all of this it should be clear that any legitimate government does have the halachic authority to impose punishments as they see fit, including capital punishment. If we accept the legitimacy of the Israeli government regarding tax collection and the like,[13] we cannot deny their right to determine when and if capital punishment is appropriate.

Limits and Responsibility

Common sense tells us that this considerable power that the government has is not unlimited. If the government decided to impose capital punishment on anyone caught jay-walking, we would rightly call them murderous. As I wrote in The right to resist the abuse of power, governments are bound by the accepted standards of the time. Where to draw the line is not a hundred percent clear, but when many parts of the western world still have the death penalty for murder this cannot be considered illegitimate.

Obviously, none of the above necessarily implies that it is sensible to impose capital punishment. We have seen two reasons that may necessitate punishments not prescribed by the Torah. The first reason, strengthening the Torah by building a fence (to reinforce to people the severity of transgressions) is clearly not practical or effective when the majority of people are not Torah observant.

The second reason is for maintenance of law and order, as described by the Ran. This may be relevant even now, but the government must act responsibly and examine carefully whether the death penalty will achieve this aim. Above all, they must conduct themselves in the way the Rambam writes about a king:

Just like the Torah gives him great honour, and all are obligated to honour him, so did the Torah command him to make his heart humble inside him.…. He should not deal with Israel with too much brazenness, …. he should be merciful to the lowly and great (of stature) and deal with their desires and interests……. He should always act with exceptional humility.[14]




[1] The truth is that there is little evidence for any difference between Jews and non-Jews in the bottom line halacha here. Furthermore, as the accepted ruling is that we even can break Shabbos to save the life of a non-Jew to avoid animosity, we certainly cannot afford to make any differentiation here.
[2] See Makos 7a and Shevuos 34a for examples of how clear the evidence has to be. In addition, for beis din to be able to apply the death penalty it is necessary to warn the offender of this penalty within a few seconds of committing the crime, and for him to state explicitly that he doesn’t care (Sanhedrin 40b).
[3] Sanhedrin 49a. See also Rambam Melachim 3:8-10
[4] Yehoshua 1:18
[5] Mitzva 497. See also Minchas Chinuch there, who explains that this applies only to putting someone to death, or confiscating the property of one deserving of death.
[6] See Mishpat Kohen siman 144 for a discussion of the halachic status of Yehoshua bin Nun.
[7] Sanhedrin 46a
[8] Drashos HaRan, Drush 11
[9] Hilchos Gezeila 5:18
[10] Beis Habchira, Bava Kama 84b (ד"ה ויש מתרצין)
[11] Bava Kama 9:5
[12] Choshen Mishpat 2:1
[13] As Rav Ovadya Yosef does in Yechave Da’as 5:64, and the Tzitz Eliezer does in 16:49.
[14] Melachim 2:6

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