The Death Penalty in Jewish Tradition
Though the Torah prescribed capital punishment for certain crimes, the rabbis moderated its use.
The remarks of Rabbi Isaac Herzog (1888-1959) in an article on Sanhedrin published in 1932 are worth noting. Herzog begins: "I have often heard it remarked that the restoration of the Jewish State in accordance with Jewish law would isolate the Jewish people from the modern civilized world; for the Hebrew penal code includes the death-penalty for purely religious offences such as the willful desecration of the Sabbath, etc." Herzog, quoting the material mentioned above and other Talmudic sources which make the re-establishment of the Sanhedrin dependent on the rebuilding of the Temple in the Messianic age, demonstrates in his reply that until the advent of the Messiah it is illegal to impose the death penalty for any offence, even for murder. There follows this statement:
"The difficulty in question is therefore a matter which could only arise in the Messianic age and need not enter into any practical calculations affecting the reconstitution of the Jewish State in Palestine. But, of course, in view of the actual position the idea of a Jewish State in Palestine (as distinct from a National Home), quite irrespective of the restoration of the Temple, is, in itself, rather a Messianic hope than a question of practical politics."
Little did Rabbi Herzog think when he wrote this that the State of Israel would be established and that he would become its Chief Rabbi. When the State of Israel was established the Israeli Parliament, the Knesset, did debate whether or not to retain the death penalty as in the law established under the British mandate but the Knesset was not acting as a religious court or Sanhedrin, only as a secular body, albeit one influenced in its decisions by the Jewish religious tradition. The debate between Rabbi Akiba and Rabbi Tarfon and Rabban Simeon ben Gamaliel was referred to it the Knesset debate, and it was eventually decided to abolish capital punishment entirely except for treason committed in time of war.
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