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
[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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