Rabbi Gideon Weitzman
Former Rosh Kollel in Kansas City (1999-2000)
Head of the English Speaking Section of the “Puah” Institute
“Whoever curses his father and mother shall be put to death” and “whoever steals shall be put to death” as well as “the witch shall not live”. In fact this week’s parshah is full of crimes for which the punishment is capital punishment, ranging from the most severe crimes of murder to ones which appear to be less serious.
There has been a lot of talk recently about murder and killing carried out in the name of religion and the debate has raged as to whether radical Islam is an unusual case or whether in fact many religions and all of the major Western religions embraced murder, pillage and destruction at some point in their
The list of crimes for which we are
instructed to inflict capital punishment that appears in Mishpatim seems to clearly indicate that Judaism was no different than other religions. The Torah appears to dish out the death penalty to a lot of people.
How are we different from the other
religions, or are we just the same?
Some would answer that it is all a matter of historical perspective, that indeed at one point we were more murderous and did put people to death in the legal
process of the courts. However today we have matured and now we have no more capital punishment.
The Mishnah (Sotah 9:9) says something similar but gives this an educational twist. “When murderers multiplied the
ceremony of breaking the calf’s neck was discontinued.” When the number of
murderers increased then the Rabbis stopped the ceremony in which a calf’s neck was broken when a murdered corpse was found. The reason for this
ceremony was to impress upon the
population of the surrounding villages that murder was despicable. However, when murder became a common
occurrence then this ceremony was less effective. People were not perturbed by murder as they had been initially and the ceremony was less meaningful and was therefore discontinued.
The punishment must awaken people to improve their ways and when this did not happen then there was no reason to
exact such a severe punishment.
Another Mishnah (Makkot 1:10) suggests a different reason “if the Sanhedrin killed someone once every seven years they were considered murderous. Rabbi Elazar said ‘Once every seventy years’. Rabbi Tarfon and Rabbi Akiva said ‘If we would have been in the Sanhedrin no one would ever be put to death’.”
While the Torah presents the death
penalty for many crimes in reality the number of people put to death was
extremely small. The Talmud adds so many conditions for a person to receive capital punishment that it hardly ever happened.
Let us consider one example; the Torah assigns the death penalty for breaking Shabbat. But the Talmud
explains that the person has to break Shabbat intentionally, before two kosher witnesses. If this was not enough, they need to warn him that if he breaks Shabbat by doing a particular act and breaking a particular law he will be put to death. He must then reply that he knows that this is the case and still he willingly is breaking Shabbat. If the witnesses accuse him of breaking Shabbat by ploughing but in fact he is sowing seeds which are not the same act then he cannot receive the death penalty.
If so, why does the Torah state that such a person is liable to receive capital punishment? The Mishnah
continues “Rabban Shimon ben Gamliel said ‘They increased the spilling of blood’.” Those Sages who limited the death penalty to once every seventy years, or even less, increased murder by removing the deterrent to killing others. The Torah presents the severity of such sins even though it is just a threat and a warning to make us think about good and evil, right and wrong.
One last answer, the Gemara (Sanhedrin 52b) gives a novel interpretation of the verse “love your neighbor as your friend” (Vayikra 19:18). Rabba bar Avuah taught that this verse means that we should choose a nice death for him. This seems like an oxymoron, how can death be nice, and how is this loving our fellow?
Even in the rare cases that a person does receive the death penalty we are still to love him and treat him as a human being, we cannot show anger or vengeance to him or his family. We must choose the most painless death that we can find.
The Torah wants us to be merciful and kind, to do so we need to preserve all of society and sometimes this entails delivering severe punishment in order to keep law and order. But even then, or maybe specifically in such cases, we are to preserve a sense of humanity, mercy and empathy. We are to choose the most humane death that we can to limit the suffering even of the accused murderer.
The world around us has much to learn about a true system of justice and we have much to teach.