The Torah and the Death Penalty

Many people ask about the harshness they perceive when reading the Torah. They read the words, almost without exception a translation of the Hebrew, and see the many crimes for which a person can be executed. It seems like YHVH is very tough and unforgiving. Indeed, these passages do exist but they are very much misunderstood.

The Torah has several overarching jurisprudential concepts that can be difficult to understand. Each of these larger concepts effects these smaller infractions. As an example, the doctrine of Lex Talionis (an eye for an eye, a tooth for a tooth, a life for a life) says several things about how justice works in the Torah. Oliver Wendell Holmes calls this form of justice a retribution based system. In his sight this is the very basic foundation of the law and more complex systems of law grow out of this as society grows and becomes more complex.
With Lex Talionis idea is that one is deterred from committing a crime by 1) a high likelihood of being caught; and 2) knowledge that the perpetrator will face a punishment that is both severe and equal to the weight of the crime. A rich man’s eye has no greater value than a poor man’s and no one can be put to death for plucking out an eye.
Another important factor arises from Shemot (Exodus) 21:14 where it says:
14. But if a man come presumptuously upon his neighbour, to slay him with guile; thou shalt take him from mine altar, that he may die.

This one provision has led Jewish scholars to the understanding that the death penalty can only handed out at the altar, in either the Tabernacle (Mishkan) or the Temple. Only one court sits in judgement at the altar: the Sanhedrin. This court is made up of 71 judges and constitutes a kind of supreme court. In fact this is the court upon which the framers of the US Constitution based the US Supreme Court. One can imagine how few sentences of the death penalty could be handed out of the proceedings for each case had to take place at the altar. No proceedings can take place on Shabbat or any of the holidays that originate in the Torah. Moreover, the judges have to rest and take vacations as well.

In the Neviim we see instances wherein communities and their judges were allowed to sentence individuals to death. These cases almost always involved murder. During the reign of Kings David and Solomon we see that the King was the chief judge and often heard appeals to cases wherein the death penalty has been awarded. The sentence of death is thus a serious matter and ever one to be taken lightly. Most scholars agree that very few people were ever sentenced to death for violating religious laws, and most of these being sentences of a political nature by corrupt judges.

This is not to say that mobs did not occasionally attempt to take the law into their own hands. In the Christian scriptures is recorded an incident wherein Yeshua (Jesus) visits a village wherein the villagers want to execute a prostitute. The mob wanted to stone the woman but Yeshua intervened. He pointed out that under the Torah two witnesses are needed for a sentence of death. These witnesses must have personal knowledge of the crime and if their testimony is discovered to be false after sentence is carried out, they will share the fate of the accused.

During that period of history women were not allowed to testify as witnesses, although there is nothing in the Torah that precludes them. Yeshua then asks the mob where can be found two men who have personal knowledge that the woman is a prostitute? Naturally, the only way to obtain this knowledge is to hire her in which case the man (everyone married young in that time) would have committed adultery. Thus he spoke those now famous, although deeply misunderstood words: “Let he who has committed no misdeed come forward to accuse this woman.” When no witnesses could be found the case against the woman must be dismissed. In this instance no court had ever been convened, essentially Yeshua broke up a mob and a kangaroo court, both of which constitute wickedness.

The death penalty appears prevalent in the Torah but is much less accessible than it seems. I encourage more people to read and study these books as a whole to gather a larger understanding of the concepts contained in them.

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