The Death Penalty in Jewish Tradition
Though the Torah prescribed capital punishment for certain crimes, the rabbis moderated its use.
This Mishnah is a kind of reflection on the whole law of capital punishment. Faced with the clear biblical injunctions, the Rabbis mentioned could not simply have said that capital punishment was wrong. After all, the Bible states that it is right and has to be imposed on the guilty. But the statement seems to imply that the Rabbis welcomed the development by which the Sanhedrin no longer functioned with the power to impose the death penalty and Rabbi Akiba and Rabbi Tarfon speculate that even when the Sanhedrin did possess this power, various legal means could have been adopted to negate the imposition of the penalty.
It is not so much as Jewish apologists maintain, that the Rabbis consciously attempted to reform the law, but rather that when the power to inflict the death penalty fell into abeyance in any event this development was interpreted as being fully in accord with the Torah's regard for all human life, including the life of the criminal; so in a sense it was felt to the good that the death penalty could no longer actually be imposed but was simply left in the books for theoretical discussion. Once the matter was discussed on a purely theoretical basis the gruesome details could be described in all their starkness while, at the same time, restrictions could be piled on in order to make the death penalty virtually impossible. In practice it became illegal for a Jewish court to impose the death penalty.
Against all this is the Talmudic statement (Sanhedrin 46a) that as an emergency measure, "when the generation requires it," a court has the power to "act against the Torah" and to order an execution or other "illegal" physical penalties. In other words, although it is illegal to impose the death penalty, the court can, on rare occasions, act illegally if the aim is to protect the Torah. Naturally, it all depends on the circumstances that would warrant executions without the due process of the law. The statement was never interpreted as meaning that what the Law took away with one hand it gave back with the other.
The German and French communities in the Middle Ages ignored the statement altogether and never imposed the death penalty, not even when circumstances seemed to call for it. Not so in Muslim Spain, where the Gentile authorities gave the Jewish courts a good deal of autonomy. In Spain, albeit on rare occasions, the courts did rely on the Talmudic statement and imposed otherwise illegal penalties such as mutilation (found nowhere in the classical sources) of certain offenders; they also executed offenders such as informers who endangered the community. When Asher ben Yehiel (d. 1327) came from Germany to Toledo in Spain he expressed his horror at the Spanish practice, totally unknown in Germany, although later on he himself conformed to the Spanish norm.
There the matter rested until the establishment of the State of Israel.
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