Tuesday, 31 May 2011

JVO: The Death Penalty

Jewish Values Online (jewishvaluesonline.org) is a website that asks the Jewish view on a variety of issues, some specifically Jewish and some from the world around us -- and then presents answers from each of the dominations of Judaism. Nishmablog's Blogmaster Rabbi Wolpoe serves as an Orthodox member of their Panel of Scholars, offering answers from our perspective.

This post is part of a weekly series on the Nishmablog presenting the questions to which he responded and the answers that he gave.

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Question:We haven't heard much about the death penalty lately, but public debate surrounding capital punishment seems to flare every so often. I'm never sure how I feel about it - on one hand, "an eye for an eye" is surely justice served. On the other, who are we to play God, particularly when the US criminal justice system is so flawed? How can Jewish values inform our views on the issue?

Judaism has two "Torahs" or Torot The Written Torah and the Oral Torah The Written Torah is quite in favor of capital punishment The Oral Law is largely opposed - though not entirely.

What is certain is that Talmudic Judaism opposes an "eye for an eye" in a physical sense. The best understanding is this is a legal idiom denoting "just compensation" The Pentateuch has numerous capital offenses. While Talmudic Law makes it almost impossible to implement. The beauty of this tension is that Judaism is reluctant to execute, BUT it does reserve this right. For example, the State of Israel has banned capital punishment but had no compunctions executing the evil Adolf Eichmann.

This, in my opinion, is the paradigm for the Torah approach. That is many crimes deserve capital punishment from a sense of rooting out evil. Or - from a spiritual perspective - many crimes are deemed worthy of capital punishment, as an act of treason towards Our Heavenly Ruler. However, we humans are too imperfect to use this authority, and so we reserve it for only the most extraordinary cases. It must meet several severely limiting criteria. Thus, from even a Talmudic perspective, Nuremberg,and similar major crimes would justify capital punishment.

Mishnah Makkot 1:10

1) A Sanhedrin that executes once in seven years, is called murderous.
One) Rabbi Eliezer b. Azariah Says: once in seventy years.
Two) Rabbi Tarfon and Rabbi Akiva say: “Had we been members of a sanhedrin, no person would ever be put to death.
Three) Rabban Shimon ben Gamaliel remarked: “They would also multiply murderers in Israel.”

Section three: This famous piece of mishnah testifies to some of the Rabbis’ deep hesitations with regards to the death penalty. As we have seen throughout tractate Sanhedrin and tractate Makkoth, convicting a person of a capital crime is no easy matter. The person must be warned beforehand and then the crime has to be explicitly witnessed by two valid witnesses. Therefore, the first opinion in our mishnah, concludes that a court that executes once every seven years is a murderous court. Since the laws of testimony are so strict, any court that executes more often than this is assumed to be illegally suspending the laws and is therefore, in a sense, engaging in murder itself. Rabbi Elezar ben Azariah says that once in seventy years already makes a court murderous. Rabbi Tarfon and Rabbi Akiva brag that had they been on a sanhedrin no one would have ever been executed. At the end of the mishnah Rabban Shimon ben Gamaliel, the political leader of the Jews at the time, notes a sound of caution. The Rabbinic tendency to be overly lenient on executing murderers can take its toll on society. In his opinion the attitudes of the other Rabbis cause the numbers of murderers to rise.

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