Death Penalty in the Torah

Overview: Why the Torah seems so strict with the death penalty, sentencing relatively light-offenders. The rabbinic changes to the penalty and the reasons for those changes.

Capital punishment in general

The general idea of the death penalty is well-established. There may be different opinions to what extent it should be applied but almost everyone will agree that people like Hitler or Adolf Eichmann surely deserved the death penalty. The logic is that society as a whole would be much better off without these evil people who lost all rights to sympathy. The same would apply to serial killers and terrorists. Before the establishment of Big State and large prisons, the death penalty would have also been applied to typical murderers since jail wasn’t usually an option in those times (as we shall soon discuss).

That is the death penalty for civil offenses and the punishment matches the crime very well. The problem is that Torah Law prescribes the death penalty for, what seems to be, minor religious offenses. For example, the Torah applies the death penalty to anyone who violates the Sabbath. In Numbers 15, a man is killed by the Court for collecting logs of wood.^[1] Does Torah have less respect for human life than society nowadays? Are these death penalties moral? Would it still apply today if, theoretically, the Torah Law was established on a State level?

This is a big issue in the discussion of Torah and morality and not nearly enough Jewish theologians deal with this issue. I will attempt to give some perspective to the biblical death penalty by looking at the theological outlook of Torah and the historical context in which Torah was dealing with. In order to better understand why, perhaps, the Torah legislates the death penalty three aspects must be noted; the theological aspect, the theoretical aspect, and the historical aspect:

The theological aspect

The approach we take here is of course assuming the divine nature of Torah Law in general, including the death penalty prescribed in Torah. If we are to assume that Torah was man-made then this whole issue is much simpler: the ancient primitive writers of Torah were inspired by the morals and standards of their time in which the death penalty was easily applied for any religious offense. (There is room for this approach even in a partially-divinely-inspired document – with human additions – see end of “Was Torah Influenced by Surrounding Cultures.”)

Torah sees the mundane world but also a spiritual world. The physical world is a means to an end – a divine will achieved via a divine Law. Sometimes the physical world and its pleasures are at contradiction to the meaning and purpose of the divine plan. This is why the Torah is often restrictive in what we can eat and when we can have sex. There’s a divine, spiritual element being played out in these laws.

The sins that result in the death penalty may sometimes appear as minor sins (e.g. violating the Sabbath), but the very fact that they are given the death penalty shows how severe the sin actually is. This shouldn’t suggest the lack of respect for human life in the Torah but rather should demonstrate the spiritual significance of these laws.

In order to achieve the divine plan (see “What is the Purpose of Creation”), Torah took drastic measures in order to make sure that the fragile Jewish/Torah culture survives among the dominant pagan cultures and strong deterrence against violating the Law was often necessary.

Some suggest that not only was the death penalty beneficial for the collective whole of the survival of Jewish/Torah culture, but even for the individual himself it is beneficial that he be killed so that he be cleansed from his sin and merit a blissful afterlife. While this is a possibility, it is purely speculative and there is no evidence for such.

The theoretical aspect

The Torah does liberally prescribe the death penalty for religious violations. But there is room to suggest that it wasn’t always the preferred punishment. It may have been like a “maximum punishment” only applied in specific scenarios. (For example, in modern Law as well there may be warnings of distributing copyrighted material with up to 5 years in prison and a $250,000 fine – although that maximum punishment is almost never applied.) In fact, we see in the days of Nehemiah that the Jews who violated the Sabbath were not executed.^[i] Similarly, all throughout the Hasmonaean dynasty there is no record of mass executions for all the secularized Jews who violated biblical Law. This is because the judges recognized that there are times when it makes sense to apply the death penalty punishment and times when it doesn’t. When the violator is a public “rebel” against God, then it would make sense to execute them on behalf of their violation. But generally it doesn’t seem to have been applied too often.

In the days of the sojourn in the Wilderness, everyone was most likely keeping the sanctity of the Sabbath and refrained from work on that day. One rebel decides to openly work on Sabbath as he collected the wood. Therefore, Moses saw fit that he be executed as per the death penalty prescribed. That was an isolated scenario and the man was executed more for the rebelliousness that his action represented than the act itself.

With this aspect in mind, the death penalty begins to make more sense. It isn’t a typical Sabbath-violator who is being executed for their sin but a rebel against God who openly defies His laws and stirs up trouble.

The historical aspect

In addition to the above points, another key element in understanding the biblical death penalty is appreciating the time in which the Torah Law was given. In the Ancient Near East, the death penalty was liberally applied for various violations. The measure may seem drastic to modern man, but these severe punishments actually made much sense back then. Now, this doesn’t justify all the extreme punishments of the ancient world, but it will rationalize at least some of them.

What is the point of punishment? Punishment isn’t “revenge” since the act was already committed and we gain nothing from casting revenge. Similarly, the person doesn’t “deserve” the punishment since the concept of “deserving” only applies once there is a system in place in which we decide that Person A deserves X. So why did we society set up a “punishment” or “consequence” system? The answer is simple. It dissuades people from committing the crimes that make society a worse place. By setting up court systems and prisons, we discourage the potential criminal from committing horrible crimes.

The extent of the punishment is a delicate balance between what level of deterrence is needed and sympathy for the criminal in some cases (unless the person is unworthy of any sympathy). The level needed to discourage people from murdering others, for example, would depend on the homicide rate and the education level of the public.

When murders are commonplace and the morality level is low (mainly due to lack of public education and lack of general prosperity) then a stronger deterrence is needed to fight back against the will to murder another person. Therefore, in the ancient world, a murderer was put to death. Similarly, a kidnapper was put to death. It was the best way to fight crime in a chaotic and violent society.

Another reason for the common death penalty punishment in the ancient world is the lack of a prison system. A prison system needs to be well funded and maintained by a large government. This wasn’t so practical in the ancient world and prison was only a temporary lockup. The people couldn’t afford to lock the large number of criminals in cells for years upon years. Therefore, it made much more sense to kill a kidnapper – for the sake of society’s benefit as a collective whole – then to lock him up or leave him on the street.

But this approach has its shortcomings. It only explains the frequent death penalties in Torah for severe civil offenses such as kidnapping and murdering. But it doesn’t explain the death penalty for religious offenses such as violating the Sabbath whose punishment is death. For religious offenses, refer to the previous two aspects.

Why is there no religious death penalties nowadays

“A High Court that executes (more than)^[ii] once in seven years is called murderous. Rabbi Eliezer ben Azariah says even once in seventy years. Rabbi Tarfon and Rabbi Akivah say: “had we been part of a High Court no man would have been ever put to death.” Rabbi Shimon ben Gamliel remarked: “they [Rabbi Akiva and Rabbi Tarfon] would multiply murderers in Israel [by removing a strong deterrence against killers who otherwise would have been put to death].””

(Mishnah Makkot 1:10, Talmud Makkot 7a)

The Talmud asks how would Rabbi Tarfon and Rabbi Akiva manage to acquit all those facing execution for biblical violations. The Talmud answers that they would avoid executing violators by creating criteria almost impossible to meet. In order for the violator to get executed, the High Court would have to be certain without the shadow of a doubt that the violator actually violated the law. Let us take a murder case for example. The judges would ask the witnesses if they can verify that the victim hasn’t already had a stabbed neck from beforehand to which the accused may have merely reinserted a knife. Meaning to say that the accused murderer isn’t in fact the murderer but rather a different man stabbed the victim earlier and the accused murderer merely reinserted him knife into the already dying victim. If the witnesses cannot verify that this wasn’t the case (for example if clothing was covering the stabbed area and was therefore not visible), then the accused murderer is acquitted!

The judges would take such extreme measures in light of their general negative approach to the death penalty.^[2] The obvious question is how can the Talmudic sages argue with the morality of the death penalty if it is clearly embraced by the Torah?

I imagine that the circumstances of the time required a reinterpretation of the Torah Law. The rabbinic Court (Sanhedrin in Heb.) was very limited in their jurisdiction and almost all matters were dealt with by the Roman Empire who occupied Israel at the time. They didn’t allow the rabbis to execute based on the Torah Law, opting for Roman Law instead. Therefore, the sages sought to abolish the Jewish Court’s role in the death penalty. But they also didn’t want to abandon their sacred obligation to punish the murderers and major criminals. Therefore they reinterpreted the Law, applying so many loopholes, to the point that even a murderer would get away from the Jewish Court as an “innocent” man and he was then sent to the Roman authorities for trial and punishment.^[3]

Nowadays, there is no Sanhedrin all-together, thus making it impossible to ever apply the biblical death penalty.

But even if given the ability, it is unlikely that the death penalty would be practiced nowadays in Jewish courts too often. Refer to the theoretical aspect discussed above.