The Image of the Non-Jew in Judaism
David Novak
ANTI-CAPITAL PUNISHMENT
In the Jewish system of law one could not be explicitly opposed to capital punishment in principle inasmuch as it was positively Ordained by the Written Torah in numerous places. However, one could emphasize that capital punishment involved the ever-present danger that an innocent person might be executed and as such, in the words of my teacher, Professor Robert Gordis, “the imposition of a death penalty by the court would be a fully conscious and completely premeditated act, it would be exceeding the guilt of the criminal if any uncertainty prevailed regarding the conscious and willful character of the crime.” In other words, it is recognized that society can commit crimes worse than those committed by any individual. Thus we see some very deliberate steps to make the institution of capital punishment theoretical rather than practically operable, even long after the Roman rulers removed the power of execution from the Jewish courts. This comes out in the following famous passage in the Mishnah.
A Sanhedrin that executes once in seven years is called 'murderous' (hoblanit). R. Eleazar ben Azaryah says once in seventy years. R. Tarfon and R. Akibah say 'were we in the Sanhedrin, no one would have ever been executed.’
The Amorayim indicate how R. Tarfon and R. Akibah could have accomplished this within the specific confines of the Law.25 In the case of homicide it could always be argued that the victim was already suffering from a fatal wound (trayfah) and the murderer would not be prosecutable in a human court. Although this specific type of interpretation was not subsequently accepted, the statement of these two Tannaim is important because it is part of a tendency in the development of Jewish law which preceded them. Thus Josephus wrote that the Pharisees “did not think it right to sentence a man to death for calumny, and the Pharisees are naturally lenient (epieikos) in matters of punishment.”
The Pharisee and rabbinic leniency in these matters might well have been a reaction to the judicial practices of the Romans, who were notorious for the number of persons they executed on flimsy evidence, especially non-Roman citizens in the provinces. Thus the second century C.E. Tanna, R. Joshua ben Qorhah, rebuked his colleague, R. Eleazar son of R. Simon, for turning Jewish criminals over to the Roman authorities. When the latter argued that he was only ridding society of criminals, R. Joshua ben Qorhah answered that this should be left to God. The medieval commentator, R. Menahem Meiri, pointed out that this was because such practices would cause many Jews to be executed under Roman law which is usually harsher than Jewish law. The rabbis in other places expressed disgust for Roman readiness to execute and the fact that the Romans gloried in this.
R. Akibah's leniency on the question of capital punishment was accomplished by the strictest possible interpretation of the laws of evidence. This legal precision in determining the exact function of witnesses at times led R. Akibah to be more severe on the question of capital punishment, but this is the result of his systematic legal approach, which on the whole made capital punishment almost impossible to carry out. Thus his approach strove to be as objective as possible and was not presented as motivated by subjective or sentimental factors. Leniency had to be accomplished by consistent, exegetical means. This can be seen in the following text, commenting on the verse, “By the testimony of two or by the testimony of three witnesses shall a matter be ascertained” (Deuteronomy 19:15).
R. Akibah said that if testimony is ascertained by two, why are three mentioned? This is to make the standards applicable to two witnesses applicable to three. Just as with two witnesses, if one of them is a close relative (qarob), or one disqualified from being a witness (pasul), the whole testimony is null and voice (batlah), so also with three. . . Whence do we learn that this applies even to one hundred witnesses? Scripture states 'witnesses' in the plural (edim). It is clear that the more witnesses there are, the chances of fully consistent testimony are considerably diminished.
PRO-CAPITAL PUNISHMENT
Because of the widespread opinion among modern liberals which regards capital punishment as some sort of barbaric relic, there has been a trend among them to emphasize the anti-capital punishment tendency among the rabbis. What has received too little attention, however, is the equally prominent rabbinic and post-rabbinic tendency to regard capital punishment as a social necessity to be endorsed and encouraged by Jewish authorities.
In the very same Mishnah where R. Tarfon and R. Akibah made their famous statement that were they in the Sanhedrin no one would ever have been executed, Rabban Simon ben Gamliel retorts that “they too increase shedders of blood (shofkhay damim) in Israel.” This pro-cpital punishment view acceptance in the refusal of the Amorayim to interpret the laws of evidence as strictly as it was assumed that R. Tarfon and R. Akibah would to legally prevent executions. In this line of reasoning we should mention the baraita which states that when a specifically prescribed type of capital punishment was impossible to implement, then any other type may be substituted. Also, in the Palestinian Talmud it is reported that the Palestinian rabbis were of the opinion that when the elders of the city, wherein a murder victim was found without indication of who murdered him, are required to say “our hands did not shed this blood” (Deuteronomy 21:7); this means that they are insisting that their negligence did not allow guilty criminal, one deserving capital punishment, to go free and thereby commit a new crime.88
There is an important difference between the pro- capital punishment and anti-capital punishment halakhists, as far as we can see from the literary sources at our disposal. The anti-capital punishment halakhists attempted to accomplish their purposes within the strict limits of the law itself. The pro-capital punishment halakhists, on the other hand regarded capital punishment as something so necessary for society that at certain times it should be instituted even when the strict letter of the law forbids it. Before examining the pertinent texts which clearly manifest this tendency, it might be useful to examine an insightful analogue to the whole process of extraordinary removal of a Torah institution.
In a section of the Mishnah where the various radical procedures of the Pharisee authorities are recorded, we read the following.
When adulterers became numerous the ordeal of the bitter waters (ha-mayim ha-marim) was stopped. Rabban Johanan ben Zakkai stopped it according to this Scriptural verse, 'I will punish your daughters because they are promiscuous” (Hosea 4:14)
The verse from Hosea indicates that the women cannot very well be singled out for their promiscuity when the men are no better. Both Talmuds indicate that the words in the Written Torah, “and the man is innocent (naqi) of iniquity” (Numbers 5:31) mean that only the man who is free of sexual taint has the right to subject his wife to the ordeal of jealousy. When this can no longer be generally assumed, then the institution loses its basic justification because it is a mockery of the law itself if there is a double standard of sexual purity for men and for women.
My point in bringing this example is that whereas in the Written Torah it seems as though the husband's power to subject his wife to the ordeal of jealousy is a right which the law enforces, the rabbinic interpretation of the act of Rabban Johanan ben Zakkai sees it as a privilege which the law can remove. Thus the 13th Century Spanish exegete, Rabbenu Bahyah ben Asher, wrote, concerning the act of Rabban Johanan ben Zakkai, “that this means this great miracle (ha-nes ha-gadol ha-zeb) would no longer be done for them, for it was done for the glory of Israel in that they are to be a holy people, free from illegitimacy.” Similarly the pro-capital punishment halakhists seemed to regard the peculiar requirements for valid testimony in Jewish law, and the even more peculiar institution of hatra'ah, as being in effect privileges granted to Jews. This is like the privilege of the ordeal of jealousy granted to Jewish husbands, which could be removed if the authorities of the people judged that they were no longer deserved.
The most striking example of the removal of the privilege of a conviction based on strictly verifiable testimony and hatra'ah is the action of Simon ben Shetah in executing eighty women who were practicing witchcraft in Ashkelon. The very name of Simon ben Shetah was intimately associated with the very strictest criteria in the process of taking testimony, as we have already seen. He was extremely reticent to exercise the Written Torah's mandate to the Jewish community to administer capital punishment for certain specified crimes. Nevertheless, his action is justified on the grounds that “the hour required (tzerikhah) such a measure.” In the discussion of the incident recorded in the Mishnah the Babylonian Talmud brings the following baraita.
R. Eleazar ben Jacob said that I have received a tradition (sham'ati) that a court may inflict corporal punishment not specifically prescribed in the Torah. This is not considered to be transgressing the words of the Torah, but is done in order to 'make a fence for the Torah' not because such a person is Scripturally liable (she-ra’uy le-kakh), but because the hour requires it.
In other words, an assessment of the social and political needs of the hour was considered sufficient grounds or instituting capital punishment on an ad hoc basis. In another passage the Mishnah prescribes capital punishment for those who continually transgress negative commandments, and for those who committed murder in the presence of witnesses, but the testimony was deficient on some specific legal grounds. The Gemara mentions lack of hatra'ah as a prime example. Maimonides emphasizes that especially in cases of murder we take such extraordinary measures because murder is of such danger to society. In discussing the responsibilities and obligations of the court, Maimonides emphasizes,
It is forbidden for the court to take pity (la-hus) on the murderer, for they should not say, 'One has already been killed, what purpose (u-mah to'elet) is there in killing this one? --- And they will become derelict (mitrashlin) in their duty to execute him.
The notion here is that pity on murderers resulting in reticence to execute them is itself a form of cruelty to society, both by refusing to eliminate a dangerous person and by refusing to establish a deterrent to other world-be murderers.
Finally, R. Joseph Karo, in his commentary on the Tur, notes the following opinion of R. Solomon ibn Adret.
Rashba wrote in a response, 'it seems to me . . that this is for the preservation of society (mequyyam ha'olam), because it bases everything on the laws collected in the Torah, and only does what the Torah prescribes as punishment in these and similar offenses, then society will be destroyed, for we require witnesses and hatra'ah. It is as the rabbis said that Jerusalem was destroyed only because they based their judgment on the law of the Torah.
This radical interpretation of Rashba is based on two rabbinic precedents. The first is that the Mishnah expresses the principle of the “maintenance of society (tiqqun ha'olam)” as a ground for changing earlier laws, which if allowed to remain unchanged would lead to social breakdown in one way or another. The second precedent is an aggadic passage indicating that at times the needs of society require one to go “beyond the boundaries of the Law (lifnim me-shurat ha-din). “Now this concept is usually interpreted to mean that a more lenient ruling is called for in place of the strict letter of the law. Rashba, on the other hand, takes the destruction of Jerusalem as a paradigm of the breakdown of society in general, and he attributes this to the fact that the authorities, by sticking to the letter of the law of capital punishment, contributed to the breakdown of law and order. They should have seen the danger to society in such permissiveness and been harsher, which he sees as the spirit of the law.
David Novak holds the J. Richard and Dorothy Shiff Chair of Jewish Studies at the University of Toronto, as Professor of the Study of Religion and Professor of Philosophy.
Excerpted from The Image of the Non-Jew in Judaism. Reprinted with permission by the Edwin Mellen Press.
