Governmental and Judicial Ethics in the Bible & Rabbinic Literature
CHAPTER IV – REWARD AND PUNISHMENT IN JUDICIAL ETHICS
Subjects reviewed in Chapter IV
Introduction – Divine Reward and Punishment for Rulers and Subjects: Rabbinic Jurisdiction via the Courts, God’s Direct Justice, Ancient Israel: A Theocracy – The Death Penalty: Introduction, Capital Punishment: The Biblical Perspective, Putting Away Evil, The Deterrent Motive – Hanging: Judicial Hanging, Extrajudicial Hanging – Burning – Stoning: General Participation, No Guarantee Against Injustice – Capital Punishment: Rabbinic Perspectives: First Principle: Love, Second Principle: Nonmutilation, Nonmultilation in Burning, Nonmutilation in Strangulation, Third Principle: Removal of Sins, Exception to Nonmutilation: Decapitation, The Most Common Type of Execution – Alleviating the Harshness of Capital Punishment: A Difficult Task, Judicial Techniques, Rabbinic Debate Over Capital Punishment, Effect of Roman Rule, Effect of Temple’s Destruction – Summary
Introduction
Every ethical system is based on an overriding conviction. The great conviction in the theology of the ancient Israelites was that God is one. “Hear, O Israel: The Lord our God is one Lord.”1 This conviction related their ethical behavior (morality) to obedience to God. They believed that obedience to God brought blessings and disobedience brought punishment.2 Therefore, with regard to the question under consideration, reward and punishment in judicial ethics, one needs to remember that the regulations of law were based upon theological principles.
The people could not long remain ideally related to God or to each other without encouragement and restraint applied in balanced proportion. It has been well said, “. . . it had to be made clear that . . . in spite of certain temporary setbacks that it might entail, honesty was in the long run the best policy, while, on the other hand, whatever immediate advantages crime might appear to bring, it did not, when reviewed from the standpoint of its ultimate effects, really pay.”3
The fact that “it had to be made clear” is a pervading principle which operated throughout the Jewish governmental system. Thus, punishment was a deterrent to lawlessness. Reward was an inducement to lawfulness. In the following analysis of reward and punishment in judicial ethics, these principles will be seen to operate at every level of government.
Divine Reward and Punishment for Rulers and Subjects It has been pointed out in the preceding chapters that the Israelites saw the system of law under which they lived as derived from God and therefore authoritative.
Rabbinic Jurisdiction via the Courts Although this authority was of God, the power to implement his laws was exercised by duly appointed leaders, such as Moses, and designated agencies, such as the court. It was also noted earlier that the Rabbis eventually taught that a “voice from heaven” (or “echo of a heavenly voice”) was not to be recognized as having legal authority.4 This meant that the Torah had been finally given, and its development and application rested under rabbinical authority.5 They held that this rabbinical authority was derived from Torah, and therefore delegated by God and expressed and enforced within Jewish society through the system of courts described in the previous chapter.
God’s Direct Justice This did not mean, however, that they thought God’s power or determination to administer direct punishment had been diminished. Indeed, the people were well aware that Scripture placed a heavy emphasis upon God’s direct punishment of the wicked in the past.6 Korah’s rebellion was a historical example which reminded them of that truth. That incident, which occurred among the Israelites in the wilderness and involved political and religious issues affecting their government, portrayed the fate of Korah and the corps of leader, who joined him in their rebellion against Moses and Aaron. “. . . and they rose up before Moses, together with some of the sons of Israel, two hundred and fifty leaders of the congregation, chosen in the assembly, men of renown. And they assembled together against Moses and Aaron, and said to them, ‘You have gone far enough, for all the congregation are holy, every one of them, and the Lord is in their midst; so why do you exalt yourselves, above the assembly of the Lord?’”7
The wider implications of this rebellion, viz., the claim of the Levites for a share of the priestly privileges, was a recurrent problem in the history of the Jews, as the historian Josephus points out: “Those of the Levites – this is one of our tribes – who were singers of hymns urged the king to convene the Sanhedrin and get them permission to wear linen robes on equal terms with the priests, maintaining that it was fitting that he should introduce, to mark his reign, some innovation by which he would be remembered. Nor did they fail to obtain their request; for the king, with the consent of those who attended the Sanhedrin, allowed the singers of hymns to discard their former robes and to wear linen ones such as they wished. A part of the tribe that served in the temple were also permitted to learn the hymns by heart, as they had requested. All this was contrary to the ancestral laws, and such transgression was bound to make us liable to punishment.”8
In the case of Korah’s rebellion against Moses and Aaron, who were duly appointed by God to their respective roles as leader and high priest, the punishment was not slow in coming. The rebels were committed by God for destruction, “. . . . and the earth opened its mouth and swallowed them up, and their households, and all the men who belonged to Korah, with their possessions. So they and all that belonged to them went down alive to Sheol; and the earth closed over them, and they perished from the midst of the assembly. And all Israel who were around them fled at their outcry, for they said, ‘The earth may swallow us up!’ Fire also came forth from the Lord and consumed the two hundred and fifty men who were offering the incense.”9
It goes without question, in view of the above example, that the nation of Israel had ample opportunity to understand the meaning of this catastrophic phenomenon, namely God’s approval of the lawful and disapproval of the unlawful.
Thus, God did “make it clear,” by what was believed to be his direct intervention of punishment, that rebellion against proper authority could not be practiced with impunity. However, direct intervention was not the only way this principle was made known. There were, of course, great numbers of laws given in the Torah, the violation of which brought sanctions upon the people as applied by the appointed authorities. This will be discussed later at greater length.
Kareth
In addition to the sanctions of law just mentioned, there occasionally appears in the Hebrew Scriptures a warning of God’s act of “cutting off” for the commission of certain crimes: e.g., “Say to the people of Israel, ‘Any man of the people of Israel, or of the strangers that sojourn in Israel, who gives any of his children to Molech shall be put to death; the people of the land shall stone him with stones.’ I myself will set my face against that man, and will cut him off from among his people, because he has given one of his children to Molech, defiling my sanctuary and profaning my holy name.”10
However, the meaning (usually translated as “extirpation”) is disputed and rather doubtful, suggesting that any attempt to relate this subject to the theme of judicial or political ethics among the Hebrews may be too dubious a task. Goldin’s remarks are apropos: “As the Mosaic Law is not very precise in its definition of that punishment, there has arisen much speculation as to its true nature. Some modern commentators on the Bible maintain that karet is nothing less than capital punishment decreed by a legally constituted court of Law (e.g., Gesenius, Thesaurus, p. 718). According to the Talmudic authorities, however, the cases punishable by karet do not come under the jurisdiction of any human tribunal.”11
Ancient Israel
A Theocracy While the Israelites understood that the justice of God required that all violations of his will be punished, they also saw his divine holiness as an incentive for them to follow him; e.g., this instruction through Moses, “Speak to all the congregation of the sons of Israel and say to them, ‘You shall be holy, for I the Lord your God am holy’” (Lev. 19:2, NASB).12 However, God’s divine attributes of love, mercy, and holiness were not, per se, incentive enough to elicit complete loyalty from his people. Therefore, God’s Torah was not only given to instruct, but also to encourage them in righteousness with promises of blessings for obedience, and to warn them about the consequences of disobedience.
Thus, the concept of reward and punishment in the theocracy of ancient Israel was articulated through laws which were believed to be of divine origin. The judicial and political framework within which these laws were operative reflected, theoretically at least, the high ethical standards inherent in their theocratic system of government.
During the theocratic system of government which characterized the Mosaic period of ancient Israel, the people were governed by God through Moses, and the priesthood functioned by divine authority (Ex. 20, Lev. 8, Num. 17-18, etc.). Josephus speaks to this point as follows: “He [Moses] had good reason for thinking that he had God for his guide and counsellor. Having first persuaded himself that God’s will governed all his actions and all his thoughts, he regarded it as his primary duty to impress that idea upon the community. . . . There is endless variety in the details of the customs and laws which prevail in the world at large. . . . Our lawgiver, however, was attracted by none of these forms of polity, but gave to his constitution that form of what – if a forced expression be permitted-may be termed a ‘theocracy’ [n. The word was apparently coined by Josephus; the idea goes back to the O.T.], placing all sovereignty and authority in the hands of God.”13
During the period of the Judges, the tribes functioned in a loose and fluid sort of tribal league somewhat analogous to the amphictyony of the Greek city-states that had a common sacral center at Delphi. “The confederation of the 12 tribes was primarily religious, based upon belief in the one ‘God of Israel’ with whom the tribes had made a covenant and whom they worshiped at a common sacral center as the ‘people of the Lord’ (Judg. 5:11: 20:2. The Tent of Meeting and the ark of the covenant were the most sacred cultic objects of the tribal union.”14
Oded continues, “In the period of the judges there was no predetermined pattern of leadership among the tribes, except for deliverer-judges sent to them by God in time of need. Such crises forced the tribes into cooperative action against enemies under the leadership of the ‘deliverers.’ Shiloh served as a sacral center for all the tribes, housing the ark of the covenant under the priestly family of Eli (I Samuel 1:3, 12; 2:27).”15
Thus the essential features of theocracy were retained through this period. Throughout the monarchical periods of the Israelites the theocracy technically ceased, although there remained certain theocratic features of government, e.g., the prominent role of Jerusalem as a “holy city,” the Temple, and the priesthood.
Epstein speaks of the reestablishment of theocracy in the post-captivity period in his book, Judaism: A Historical Presentation. He points out that the political prerogatives of Zerubbabel, governor of Judea under Persian tutelage when the rebuilding of the Temple began, were “turned over by the Persian authorities to Joshua, who had become High Priest in the rebuilt Temple and who, by virtue of his new position, had vested in him the supreme authority-religious and civil (including political) – held hitherto by the Judean kings.”16
Epstein states that, under Ezra’s efforts, “slowly but surely the Torah became the final source of every Jewish norm and practice, rule and custom, in all departments of life – religious, moral, political, social, economic, and domestic. . . . the Judean theocratic state – a state ruled by Torah – which, though politically and economically insignificant, was destined not only to give a definite direction to Jewish history, but also to prove a factor of the greatest consequence in the history of mankind.”17
Zeitlin points out the type of government and authority that prevailed in Palestine at a later time. “Prior to the Hasmonean period, the high priest had complete civil and religious authority. He was the pontifical head of both religion and the state. As high priest he had the power to appoint judges to try those who transgressed religious law and these judges were responsible only to him. In civil matters he had the council, gerousia, made up of representatives of the Jewish aristocracy. . . . In matters that involved the vital interests of the state, the high priest would convene a Great Synagogue.”18
This type of government, of course, had a major feature of a hierocracy – a government by rule of priesthood.
The Death Penalty
In the previous chapter it was pointed out in both the introduction and in the discussion concerning divine reward and punishment for rulers and subjects that the fact of capital punishment was a vivid reality in Bible times. In the next chapter, where the principle of “measure for measure” and the statement in Genesis 9:6 are discussed, it will be shown that the practice of capital punishment was a method whereby the principles of both “measure for measure” and “blood for blood” were accomplished.
Introduction
The specific purpose of this chapter on the death penalty is to see it, as described in the Torah, as a prominent feature of the law with carefully defined rules of application and judicial guidelines.19 After the biblical perspective of the subject has been clarified, the last part of this chapter will be concerned with the way the Sages dealt with the judicial question of capital punishment during talmudic times.
In such an inquiry it is obvious that a grasp of the judicial ethics involved in the concept of capital punishment is crucial to an understanding of those who were concerned with it in both the biblical and talmudic eras. Therefore, not only will this analysis deal with the descriptive, legislative, and judicial aspects of the question, but there will also be an examination of the ethics, morals, and motives involved.
It has already been noted that the Hebrew nation understood the Torah as having emanated from God at Sinai.20 They looked to Moses as the mediator of both the Written and the Oral Law.21 In this divinely revealed Law of God, the Hebrews found his will and what they should do to stay in his favor and receive his blessings. They also found in the law the assurance of punishment if God was disobeyed. This punishment was varied in method of application and degree of severity. Sometimes it was applied directly by an angry God (Num. 11:33-34); again it was applied indirectly through God’s appointed leaders, such as priests (Num. 25:6-13) and prophets (II Kings 5:25-27); more often punishment was meted out through the established judicial channel of courts and judges (Deut. 17:8-13). But in every case, and at all times, the biblical Hebrews saw the law as divine law and were in subjection to it as a religious tenet.
Capital Punishment
The Biblical Perspective The extreme penalty of death was decreed in the law for many different crimes. “Not only such major crimes as idolatry, adultery, and murder, but even relatively minor transgressions like witchcraft, false prophecy, and rebelliousness against parents (to name but a few) were visited with the extreme penalty.”22
The fact that a capital offense might be “criminal” (murder), “religious” (false prophecy), “social” (adultery), or “domestic” (rebellious son) did not strike a discord for the Hebrews in that they saw, through the Law of God, that all of these and similar offenses were, in the final reckoning, offenses against the divine will or nature. The distinction between “civil” and “criminal” violations was not significant so far as punishment for disobedience was concerned. This “oneness” of law made for a unity of life so that the Hebrews’ response to law was in actuality a moral, ethical, and religious response, as well as legal. Thus, an obedient person’s relationship to the courts and institutions of society was an ethical one.
Putting Away Evil – In such a climate it was perfectly logical that the ultimate motive for capital punishment was to drive evil away. Very often this is specifically stated as the reason for the death sentence. For example, in the case of the one who disregarded both priest and judge it was said, “The man who acts presumptuously, by not obeying the priest who stands to minister there before the Lord your God, or the judge, that man shall die; so you shall purge the evil from Israel.”23
From the ethical point of view, it is worth noting that capital punishment was for the purpose of putting away the evil, and not primarily for the purpose of putting away the evil one. This motive for capital punishment did not change the fate of the convicted criminal, but it did mean that this practice in biblical times was based on a higher principle than mere retaliation. This can be illustrated at length with Bible examples. For instance: “If a man is found stealing one of his brethren, the people of Israel, and if he treats him as a slave or sells him, then that thief shall die; so you shall purge the evil from the midst of you.”24
The Deterrent Motive – Since the supreme motive for capital punishment was ultimately to remove the evil, this meant that one of the most desirable effects forthcoming from an execution was that it be a deterrent against further crime. This is specifically stated in a number of cases; e.g., (1) when the presumptuous one is executed, “And all the people shall hear, and fear, and not act presumptuously again,” and (2) when the false witness is executed, “And the rest shall hear, and fear, and shall never again commit any such evil among you.”25
Hanging
The desire for deterrent benefits as a prime motive for capital punishment becomes obvious when one considers the biblical injunction about hanging, and then compares that legislation with examples of this type of execution among other peoples. The Torah calls for hanging in the following way: “And if a man has committed a crime punishable by death and he is put to death, and you hang him on a tree, his body shall not remain all night upon the tree, but you shall bury him the same day, for a hanged man is accursed by God; you shall not defile your land which the Lord your God gives you for an inheritance.”26
From this legislation it is clear that when one had been executed for a sin “punishable by death,” he was then hanged on a tree.27 Since death was not the purpose of the hanging, it appears that the motive was to deter others from committing such crimes. However, the deuteronomic requirement to remove the body by sunset was interpreted by the Rabbis to mean only formal hanging for a moment, and was generally given a remarkable homiletical interpretation.28
Judicial Hanging – The judicial practice of hanging after execution was in contrast to the hangings or impaling often noted in the Bible among non-Jewish peoples. For example, the Pharaoh of Joseph’s time “hanged the chief baker” (Gen. 40:21-22). The Gibeonites also used hanging as a method of execution (II Sam. 21:9). Likewise, in summary fashion the king of Persia ordered the execution of Haman as follows: “Then said Harbona, one of the eunuchs in attendance on the king, ‘Moreover, the gallows which Haman has prepared for Mordecai, whose word saved the king, is standing in Haman’s house, fifty cubits high.’ And the king said, ‘Hang him on that.’ So they hanged Haman on the gallows which he had prepared for Mordecai. Then the anger of the king abated.”29
Extrajudicial Hanging – As an extrajudicial action during time of war, it is recorded that Joshua hanged the king of Ai. “So Joshua burned Ai, and made it for ever a heap of ruins, as it is to this day. And he hanged the king of Ai on a tree until evening; and at the going down of the sun Joshua commanded, and they took his body down from the tree, and cast it at the entrance of the gate of the city, and raised over it a great heap of stones, which stands there to this day.”30
This example stands out in Bible history for two main reasons: first, it shows a very rare occurrence of death by hanging under the authority of a Jewish leader; second, it was an extrajudicial action.31 Thus, it does not alter the principle which has been established above that hanging as a judicial procedure in the Torah was not to execute, since the hanged criminal was already dead, but to deter others from committing similar offenses.
Burning
The other two forms of capital punishment in biblical law were burning and stoning. Burning was required by law for only two crimes, viz., “If a man takes a wife and her mother also, it is wickedness; they shall be burned with fire, both he and they, that there may be no wickedness among you. . . . And the daughter of any priest, if she profanes herself by playing the harlot, profanes her father; she shall be burned with fire.”32
This legislation, which required burning as the means of execution for only two different offenses, was in spite of the fact that it was a practice known to the Hebrews before they received the law (Gen. 38:24).33 Perhaps the rare demand for this type of execution indicates the relative humaneness of the Torah as contrasted to the extrajudicial practice. Since this legislation was directed specifically against those who were guilty of “harlotry” and “immorality,” it may well be a clue to the extreme divine displeasure at such acts. This realization on the part of the people, plus the horrible punishment itself, served to facilitate a higher standard of ethics and morals among the populace. This suggestion is strengthened when one realizes that burning, like judicial hanging, was sometimes utilized after execution with the apparent motive of deterrence. For example, when Achan’s trespass had been established beyond doubt, the following events transpired concerning Achan and his family: “And Joshua said, ‘Why did you bring trouble on us? The Lord brings trouble on you today.’ And all Israel stoned him with stones; they burned them with fire, and stoned them with stones.”34
Stoning
Stoning was the most common type of judicial punishment for capital offenses; e.g., the Torah ordained for the convicted idolater, “. . . then you shall bring forth to your gates that man or woman who has done this evil thing, and you shall stone that man or woman to death with stones” (Deut. 17:5). For one who was guilty of blasphemy against God the sentence was stoning. “He who blasphemes the name of the Lord shall be put to death; all the congregation shall stone him; the sojourner as well as the native, when he blasphemes the Name, shall be put to death” (Lev. 24:16).35 Also, the Torah legislated that the stubborn and rebellious son, if convicted, was to be stoned to death. “Then all the men of the city shall stone him [the stubborn and rebellious son] to death with stones; so you shall purge the evil from your midst; and all Israel shall hear, and fear” (Deut. 21:21). Many other examples may be found in the Torah.
General Participation – The biblical practice of judicial stoning involved the participation of the witnesses and the people. Some of the above examples show this. Others include the punishment of those who were convicted of participating in the Molech cult of child sacrifice and the similar sentence for those found guilty of other forms of idolatry, i.e., worship of sun, moon, or stars (Lev. 20:1-2; Deut. 17:6-7). This had the effect of placing the witnesses in a very sobering position. It also meant that the execution was communal in effect, although popular approbation was legally not required for them to participate in the execution. Popular participation was optional. This merging of the legislative, judicial, and executive procedures in carrying the requirements of the law to their logical conclusion was a unifying factor within the Hebrew nation. It elevated compliance with the law to a level higher than slavish obedience; and, by involving the community as well as the individual in the application of punishment, greatly reduced the possibility of execution out of vengeance.
No Guarantee Against Injustice – However, in spite of the aforementioned safeguards incorporated into the judicial and penal procedures in criminal cases, there was no absolute guarantee against the miscarriage of justice. Sheer savagery could be practiced under the guise of legal proceedings when the ruling power became corrupt. For example, when king Ahab desired the vineyard of Naboth the Jezreelite, which was near his palace in Samaria, queen Jezebel “wrote letters in Ahab’s name and sealed them with his seal, and she sent the letters to the elders and the nobles who dwelt with Naboth in his city. And she wrote the letters, ‘Proclaim a fast, and set Naboth on high among the people; and set two base fellows opposite him, and let them bring a charge against him, saying, You have cursed God and the king. Then take him out, and stone him to death,’”36
The elders, nobles, and witnesses obeyed her orders. Naboth was stoned, and the vineyard was seized by Ahab.37
Capital Punishment
Rabbinic Perspectives
The biblical period of criminal jurisprudence eventually gave way to the period of rabbinical interpretation, adaptation, restriction, and even elimination of many severe features of the criminal law found in the Torah. It was noted in the previous discussion that the death penalty described in the Bible was by stoning and burning, with hanging as a superimposed action on the criminal after execution. The death penalty applied to a large number of infractions, and many examples are found in the Bible of executions under the law. “Yet, in spite of the severity of the Law, changing social conditions made the death penalty increasingly inapplicable. Throughout the Biblical period, idolatry and vice were constant problems, and the Sabbath was frequently profaned (cf. Jer. xvii, 19 ff.; Nehem. x, 32, xiii, 15 ff.). The extreme penalty – or, for that matter, any other punishment – for these offences must, therefore, have been in abeyance. Similarly, in pre-Hasmonean times, the power of the Hellenised aristocracy was no doubt an effective check against any serious penalty for religious transgressions.”38
Therefore, when one considers the question of capital punishment during the Talmudic period of Judaism, one sees, perhaps as nowhere else, the struggle of the rabbinical authorities to retain a system of justice while adapting to changing conditions. This struggle was stabilized by the retention of three principles which were applied to the execution of the convicted criminal whether the penalty took the form of strangling, decapitation, burning, or stoning.
First Principle: Love – The first principle was love. “. . . you shall love your neighbor as yourself . . .” (Lev. 19:18b)39 was applied even to the one convicted of a capital offense in that the judicial authorities were committed to rendering the capital punishment which was most humane in each individual case. “When he is about four cubits distant from the place of stoning, he is stripped of his garments. A man is covered in front and a woman both in front and behind: This is R. Judah’s view. But the Sages say: A man is to be stoned naked but a woman is not to be stoned naked. Raba said: Is there only an inconsistency between R. Judah’s two statements and not between those of the Rabbis? – But, said Raba, R. Judah’s two statements are not contradictory, even as we have solved the difficulty. And the Rabbis’ views are also not opposed: Scripture says, ‘That all women may be warned and not to do after your lewdness’: (Ezek. 23:48) but here, no greater warning is possible than this [sc. the execution]. (n. Hence there is no need to add humiliation.) And should you say, Let us wreak both (n. Humiliation and stoning.) upon her, behold R. Nahman said in Rabbah b. Abbahu’s name: Scripture says, ‘Love thy neighbor as Thyself’: (Lev. 19:18) choose an easy death for him. (n. One entailing as little humiliation as possible.).”40
Second Principle: Nonmutilation – The second principle retained in capital punishment eases was closely connected with the way in which the Rabbis perceived God as taking life-that is, natural death. In natural death there was no external disfigurement or mutilation of the body. Since it was concluded that this was God’s way of terminating life, it was accepted as being the proper way to apply God’s death penalty laws. The conviction that God’s way of taking life was without mutilation of the body had given rise to an ancient teaching that the bodies of Nadab and Abihu 41 had remained intact while their souls were burned. “What is meant by a wick? – R. Mathna said: A lead bar. (‘Lit’ in the Mishnah will therefore mean ‘melted.’) Whence do we know this? (n. That death by fire was thus carried out, instead of burning the body.) – It is inferred from the fact that burning is decreed here; (Lev. 21:9 ‘She shall be burnt with fire.’) and was also the fate of the assembly of Korah; (Num. 17:4) just as there the reference is to the burning of the soul, the body remaining intact, so here too. R. Eleazar said: It is deduced from the employment of the word ‘burning’ here and in the case of Aaron’s sons; (Lev. 10:6 ‘Let your brethren . . . bewail the burning which the Lord hath kindled.’) just as there the burning of the soul is meant, while the body remained intact, so here too. . . . Now he [R. Eleazar] who infers it from the sons of Aaron, whence does he know [that their bodies were not burnt]?-Because it is written. ‘And they died before the Lord,’ (Lev. 10:2) teaching that it was like normal death [from within].”42
Nonmutilation In Burning – In harmony with this principle of leaving the body unchanged by execution, even the teachings concerning execution by burning were meant to assure that no mutilation would result. The rabbinic explanation of how this was to be accomplished is as follows: “The manner in which burning is executed is as follows: He who had been thus condemned was lowered into dung to his armpits; then a hard cloth was placed within a soft one, wound round his neck, and the two loose ends pulled in opposite directions, forcing him to open his mouth. A wick was then lit, and thrown into his mouth, so that it descended into his body and burnt his bowels. R. Judah said: Should he however have died at their hands [being strangled by the bandage before the wick was thrown into his mouth, or before it could act], he would not have been executed by fire as prescribed. Hence it was done thus: His mouth was forced open with pincers against his wish, the wick lit and thrown into his mouth, so that it descended into his body and burnt his bowels.”43
As in biblical law, so in rabbinical law, execution by burning was restricted to a priest’s daughter convicted of adultery and those guilty of specified forms of incest. According to the Mishnah, “The following are burnt: He who commits incest with a woman and her daughter, and a priest’s adulterous daughter. There is included in ‘a woman and her daughter’ his own daughter, his daughter’s daughter, his son’s daughter, his wife’s daughter and the daughter of her daughter or son, his mother-in-law, her mother, and his father-in-law’s mother.”44
As was pointed out, care was to be taken that the body not be disfigured in this type of execution. In one recorded case where the proper procedure was not followed in execution by burning, the Mishnah states that the court's ignorance of the law was the reason. “R. Eleazer b. Zadok said: It once happened that a priest’s daughter committed adultery, whereupon bundles of faggots were placed round about her and she was burnt. The sages replied, That was because the Beth Din at that time was not well learned in law.”45
However, R. Joseph stated in a later commentary on this text, “It was a Sadducee Beth Din that did this” (San. 52b). The significance of this statement becomes clear when it is pointed out that the Sadducees, in criminal jurisdiction, “were very rigorous and . . . carried out the penalty of death by fire in a literal manner.”46
Nonmutilation In Strangulation – The talmudic reforms of capital punishment resulted in another method of execution which was supposed to be more humane and less mutilating than any of the others.47 Strangulation was the sentence imposed upon a criminal who had committed a capital offense the punishment for which was not specified in the law. Thus, if the convicted person had committed a capital offense which was not specifically punishable by burning, decapitation, or stoning, he was to be strangled.48 The procedure was in some ways similar to execution by burning. “Strangulation was thus performed: – The condemned man was lowered into dung up to his armpits, then a hard cloth was placed within a soft one, wound round his neck, and the two ends pulled in opposite directions until he was dead.”49
In addition to applying the mode of strangling to all criminals convicted of a capital offense the punishment for which was not specified, strangulation was also assigned as the definite punishment for a few special capital crimes. “According to the Mishnah, the following are strangled: He who strikes his father or mother; or kidnaps a Jew [to sell as a slave]; an elder rebelling against the ruling of Beth Din; a false prophet; one who prophesies in the name of an idol; one who commits adultery; witnesses who testified falsely [to the adultery of] a priest's daughter, and her paramour.”50
Third Principle: Removal of Sins – Before considering the other two methods of execution set forth in the laws of Judaism, it is time to mention a third principle in the governmental system of Judaism with regard to sanctions which showed an ethical ingredient of considerable merit in the ultimate motive for capital punishment.
This principle has already been mentioned earlier in this discussion.51 Therefore, it needs little elaboration here. The reason it is emphasized is because it illustrates an ethical foundation of capital punishment as it was practiced in biblical and Talmudic times. The principle held that capital punishment was primarily to remove the evil, rather than the doer of evil, from the land. This high motive. if properly followed, meant that no judicial execution in either biblical or rabbinical times could be, theoretically at least, vindictive and lawful at the same time. An example of how the removal of sins, rather than the removal of sinners, satisfied the Rabbis is found in the life of R. Meir, viz., “There were once some highwaymen (n. Baryone, a word of doubtful meaning.) in the neighbourhood of R. Meir who caused him a great deal of trouble. R. Meir accordingly prayed that they should die. His wife Beruria (n. Valeria) said to him: How do you make out [that such a prayer should be permitted]? Because it is written ‘Let hatta’im cease’? Is it written hot’im? (n. Pres. part. of the verb hata, to sin. Hence meaning sinners.) It is written hatta'im! (n. Which can be read sins. M.T. vocalizes [sinners].) Further, look at the end of the verse: ‘and let the wicked men be no more.’ Since the sins will cease, there will be no more wicked men! Rather pray for them that they should repent, and there will be no more wicked. He did pray for them, and they repented.”52
Exception To Nonmutilation: Decapitation – Execution with the sword was obviously a method of capital punishment which mutilated the body. However, it was specifically stated in the Torah that the inhabitants of a city who had been seduced into abominable idolatry were to be put to “the edge of the sword.” “If you hear in one of your cities, which the Lord your God gives you to dwell there, that certain base fellows have gone out among you and have drawn away the inhabitants of the city, saying, ‘Let us go and serve other gods,’ which you have not known, then you shall inquire and make search and ask diligently; and behold, if it be true and certain that such an abominable thing has been done among you, you shall surely put the inhabitants of that city to the sword, destroying it utterly, all who are in it and its cattle, with the edge of the sword.”53
Indeed, the sword (or war) was described in the Torah as being the very instrument of God. “And I will bring a sword upon you, that shall execute vengeance for the covenant . . .” (Lev. 26:25). With this biblical emphasis before them, the Rabbis specified those who were to be decapitated as follows: “The following are decapitated: A murderer, and the inhabitants of a seduced city. A murderer who slew his fellow with a stone or an iron, or kept him down under water or in fire, so that he could not ascend thence, is executed.”54
And the manner of decapitation was also established in rabbinical law, viz., “Execution by the sword was performed thus: The condemned man was decapitated by the sword, as is done by the civil authorities. (n. Under the Empire the Romans practiced various forms of execution, including beheading by axe and sword.) R. Judah said: This is a hideous disfigurement; but his head was laid on a block and severed with an axe. They replied, No death is more disfiguring than this.”55
The Most Common Type of Execution – Stoning was the most prevalent form of execution for a capital offense in biblical and talmudic times. However, the Rabbis modified this method of punishment in keeping with their conviction that there should be as little mutilation of the body as possible and that the procedure should be no more humiliating than necessary. They were trying to be humane.56 To achieve these goals they established a procedure by which the general public would be restricted in its participation in the execution. The role of the witnesses as the ones who did the initial stoning was also regulated so they would, in all likelihood, put the criminal to death in short order with little, if any, mutilation. This entire judicial form of capital punishment was carried out in a place which had been prepared into which the felon was pushed. A description follows: “The place of stoning was twice a man’s height. One of the witnesses pushed him by the hips, [so that] he was overturned on his heart. He was then turned on his back. (n. To see whether the drop brought his death forthwith.) If that caused his death, he had fulfilled [his duty]; (n. I.e., the witness, the obligation of execution lying primarily upon him.) but if not, the second witness took the stone (n. ‘The’ stone, because it was prepared before. This was a very heavy stone, which it required two men to lift.) and threw it on his chest. If he died thereby, he (n. Sc., the second witnesses.) had done [his duty]; but if not, he [the criminal] was stoned by all Israel, (n. I.e., all the bystanders.) for it is written: ‘The hand of the witnesses shall be first upon him to put him to death, and afterwards the hand of all the people.’ (Deut. 17:7).”57
Alleviating the Harshness of Capital Punishment
The attempt to alleviate the harshness of capital punishment as set forth in the Torah was the chief aim of the Sages as they regulated its application and modified the procedures to be used. This is evident in the above analysis, The determination of the scholars to restrict the use of the death penalty still further, or virtually eliminate it entirely, is indicated in the history and literature of talmudic Judaism.58
A Difficult Task
This was not to be an easy task. For example, during the period of Greek domination, Palestine was subjected to the cross-currents of many different influences. The Hellenizing tendencies brought with them the inevitable relaxation of the strict religious, moral, and ethical codes which had characterized the Jewish nation after the great reforms of Ezra and his contemporaries instigated at the building of the Second Temple (Ezra 6:15-21, 9:1-10:14; Neh. 8:1-10:33, 13:1- 47). In order to maintain the integrity of the Jewish nation, at times it was necessary for the authorities to apply the law even more severely than was technically intended in order to safeguard the principles of Torah,59 e.g., “It has been taught: R. Eliezer b. Jacob said: I have heard (n. From my teachers.) that the Beth Din may, [when necessary] impose flagellation and pronounce [capital] sentences even where not [warranted] by the Torah; yet not with the intention of disregarding the Torah but [on the contrary] in order to safeguard it. It once happened that a man rode a horse on the Sabbath in the Greek period and he was brought before the Court and stoned, not because he was liable thereto, (n. The prohibition against riding on the Sabbath is only a ‘shebuth,’ i.e., a Rabbinical injunction.) but because it was [practically] required by the times. (n. During the time that Palestine was under Greek rule . . .)”60
In such cases it was understood by the law-abiding citizens that these severe judicial actions were necessary if government was to be ethical as well as legal. Therefore, when the death sentence was applied “not with the intention of disregarding the Torah but in order to safeguard it,” the relatives who had lost their kinsman responded positively to the court in the following way to indicate their conviction that the judges had rendered a true judgment. “When the flesh was completely decomposed, the bones were gathered and buried in their proper place. (i.e., the family vault.) The relatives then (n. Soon after the execution.) came and greeted the judges and witnesses, as if to say, We have no [ill feelings] against you in our hearts, for ye have a true judgment. And they observed no mourning rites but grieved [for him], (n. As, in ordinary cases, before the burial.) for grief is borne in the heart alone.”61
After the struggles of the Maccabees had resulted in relief from Greek domination, and a treaty had been confirmed with Rome in ca. 140 B.C.E., the country was actually ruled by the Sadducean party.62 Their period of dominance was characterized by a strict judicial rule coupled with a literal interpretation of Scriptural law. With the rise of the Pharisees, however, there was a progressive development toward a more lenient and humane judicial perspective. This turn of events was the result of a more enlightened rule on the part of the Pharisees and also of the eventual control of Palestine by the Roman conquerors.
Judicial Techniques
In their attempt to reduce to an absolute minimum the application of the death penalty, the judges utilized the following tactics: (1) they subjected witnesses in capital cases to extensive cross- examination (M. Sanh. V, 1-2; Aboth I, 9), and if contradictions developed the testimony was thrown out; (2) there was no admission of circumstantial evidence (B. San. 37b); (3) near- relatives and persons of questionable character could not testify (M. San. III, 3-4); (4) a judge who merely expressed a view that the defendant was innocent could not retract his statement (M. San. IV, 1, V, 5); (5) even after conviction by at least a majority of two, any of the judges could recall the condemned, and the condemned man could have himself recalled, if anything else could be said favorable to his case (M. San. V, 5-VI, 1).63
Rabbinic Debate Over Capital Punishment
This climate of concern for the defendant gave rise to debates among the Rabbis regarding the propriety of capital punishment in any case.64 For example, in the following excerpt three Rabbis are aligned against one in their affirmation that capital punishment would never have been carried out while they were members of the Sanhedrin. “A Sanhedrin has jurisdiction within the land [of Palestine] and outside it. A Sanhedrin that effects an execution once in seven years, is branded a destructive tribunal; R. Eleazar b. Azariah says: Once in seventy years. R. Tarfon and R. Akiba say: Were we members of a Sanhedrin, no person would ever be put to death. [Whereupon] Rabban Simeon b. Gamaliel remarked, [Yea] and they would also multiply shedders of blood in Israel!”65
In a similar fashion two Rabbis form a majority against one in their contention that the death penalty against a “stubborn and rebellious son” never was carried out and never would be! “With whom does the following Baraitha agree: There never has been a “stubborn and rebellious son,” (In the Biblical sense, to be executed.) and never will be. Why then was the law written? That you may study it and receive reward. – This agrees with R. Judah. Alternatively, you may say it will agree with R. Simeon. For it has been taught: R. Simeon said: Because one eats a tartemar of meat and drinks half a log of Italian wine, shall his father and mother have him stoned? But it never happened and never will happen. Why then was this law written? – That you may study it and receive reward. R. Jonathan said "I saw him (n. A rebellious son who was executed at his parents' demand.) and sat on his grave.”66
It was stated above that this turn toward the mitigation, and even elimination, of capital punishment in Pharisaic Judaism was the result of enlightened rule on the part of the Pharisees and the eventual control of Palestine by the Romans.67
Effect of Roman Rule
Two elements under Roman rule further reduced the use of the death penalty by the courts of Judaism almost to the vanishing point. One was the fact that the Roman government had the power to inflict the death penalty. If the death penalty was pronounced by a Jewish court, no execution could take place without prior approval by the Roman governor. Another circumstance which prevailed under Roman rule was the destruction of the Temple in 70 C.E.68 This had far- reaching consequences for the people of Israel in a multitude of ways, and devastating consequences for the functioning of the priesthood and the Great Sanhedrin. “. . . the following Baraitha: ‘And thou shalt come unto the priests, the Levites, and unto the judge that shall be in those days’: (Deut. 17:9) This teaches that when the priesthood is functioning [in the Temple], the judge functions [in respect of capital punishment]; but when the priesthood is not functioning, the judge may not function.”69
Effect of Temple’s Destruction
In 30 C.E. there had already been a shift in the location of the Great Sanhedrin away from the Hall of Hewn Stones, where it had convened for generations. “And it has also been taught: Forty years before the destruction of the Temple, the Sanhedrin were exiled (n. From the Hall of Hewn Stones.) and took up residence in Hanuth. (n. Hanut. A place on the Temple Mount outside the hewn chamber where they had temporary residence.”70
Then, with the destruction of the Temple, the Great Sanhedrin ceased. The cessation of Sanhedrin activities at Jerusalem led to the rabbinic conclusion that the four forms of capital punishment discussed in this section also ceased. “Since the day of the destruction of the Temple, although the Sanhedrin ceased, (n. And capital punishment could no longer be decreed by the Jewish Courts.) the four forms of capital punishment have not ceased? ‘They have not ceased,’ [you say]? Surely they have ceased!”71
Discussions with respect to the death penalty continued among the Rabbis in later talmudic times. However, the emphasis was more and more upon an academic consideration of situations and laws from the past. “Speaking of talmudic penology, it is . . . highly relevant to bear in mind that criminal jurisdiction ceased with the destruction of the Temple in 70 C.E., and the bulk of criminal legislation – and all of the penology – in the Talmud dates from then. Thus whatever is said in the Talmud about capital punishment, is said without relation or reference to actualities, since they were never put into practice.”72
In this kind of climate, the study of the laws relating to capital punishment was classed with the study of the laws relating to sacrifices, i.e., worthy of study because learning has its own merit, but not to be applied. “R. Joseph queried: [Do we need] to fix a halachah for [the days of] the Messiah? (n. Since the Sanhedrin no longer had jurisdiction in capital offences, there is no practical utility in this ruling, which can become effective only in the days of the Messiah.) – Abaye answered: If so, we should not study the laws of sacrifices, as they are also only for the Messianic era. But we say: Study and receive reward. (n. Learning has its own merit, quite apart from any practical utility that may be derived therefrom.)”73
Summary
To sum up, this section on the death penalty was a study of the Torah with regard to capital punishment as a prominent feature of the law. Special attention was given to the judicial guidelines and rules of application of the death penalty as found in Scripture. Then, an analysis was made of the talmudic sources to examine the way in which the Sages dealt with the judicial question of capital punishment.
As the descriptive, legislative, and judicial aspects of the whole question were considered, it became obvious that ethics, morals, and motives were closely linked with judicial philosophy, regulation, and application of the laws relating to capital punishment. One of the most outstanding features of the study is the evidence showing how the Sages of talmudic times persistently mitigated the harshness of the death penalty by various procedures. These techniques stand out in very sharp relief when compared to the judicial approaches utilized in handling civil cases. “1) Civil cases may be decided by three; capital cases require at least twenty-three judges. 2) In civil cases they may first discuss the evidence either for or against the defendant; in capital cases they must first discuss that in his favor. 3) In civil cases a majority of one suffices for acquittal or condemnation; in capital cases a majority of one suffices for acquittal but a majority of at least two is required for condemnation. 4) In civil cases a revision of the verdict may take place either in favor of the defendant or against him, if further evidence is produced; in capital cases a revision can only take place in order to free him from the death penalty to which he has been sentenced. 5) In civil cases anyone, even a student of law who is listening to the proceedings, may plead either for or against the accused; in capital cases anyone may speak for but not against him. 6) In civil cases a judge may retract his view already expressed whether that was for or against the defendant; in capital cases he may retract only if that was against the accused. 7) In civil cases the judges discuss the evidence by day and may give their verdict after dark whether it be for or against; in capital cases both discussion and verdict must be during daytime. 8) In civil cases the decision maybe given whether it be for or against the defendant on the same day as the evidence is discussed; in capital cases this is so only if the verdict is one of not guilty, but if it is found impossible to decide in favor of the accused, the matter must be postponed until the morrow in order to give an opportunity for discovering something in his favor. 9) In civil cases the eldest of the judges is the first to give his views; in capital cases the youngest does this first, for fear lest, out of respect for the President of the Court, he may express an agreement with him that he does not actually feel. 10) In civil cases am Israelite though of illegitimate birth may act as judge; in capital cases only Priests and Levites, and Israelites whose descent is such that they may ally themselves by marriage with a priestly family.”74
Attention is turned in the next section to two methods of punishment mentioned in the Torah and Talmud which are especially susceptible to the criticism of being lacking in ethical quality – “measure for measure” and “blood for blood.” The chapter will analyze and evaluate the ethics of these two methods of judicial punishment from the biblical and talmudic points of view.
Footnotes:
1 Deut. 6:4.
2 Deut. 7:9-10, 11:13-28, chap. 28, 30:15-20; Lev. 26:3-42.
3 Samuel Rosenblatt, Hear, Oh Israel (New York: Philipp Feldheim, 1958), pp.113-114.
4 Above, p. 78, n. 11.
5 M. Lazarus, The Ethics of Judaism, pt. II (Philadelphia: Jewish Publication Society, 1901), pp. 174-175.
6 Gen. 6:5, 17; 18:20-21, 19:24; Num. 25:3, 9; etc.
7 Num. 16:2-3 (NASB).
8 Josephus, Jewish Antiquities, bk. XX, ix. 6 [trans. Louis H. Feldman], Loeb Classical Library ed., vol. 9).
9 Num. 16:32-35 (NASB). George Buchanan Gray, Numbers, International Critical Commentary (1903), pp. 186-208. This author sees this episode as a blending of several different literary sources in an attempt to present a unified story. Actually, he says, two distinct themes may be detected: (1) “the revolt against the civil authority of Moses under the leadership of Dathan and Abiram and On” (p. 189); and (2) the revolt of representatives of the whole people under Korah against the Levites (represented by Moses and Aaron) in vindication of their equal holiness. With reference to the latter, Gray states, “in these verses all Israel except Levi drop entirely into the background, for they have no concern in this dispute: the struggle is confined to the tribe of Levi. The object of these passages is to condemn the non-Aaronic Levites for seeking the priesthood” (pp. 192-193).
10 Lev. 20:2-3.
11 Hyman E. Goldin, Hebrew Criminal Law and Procedure (New York: Twayne Publishers, 1952), pp. 40-41.
12 R.A. Redford, “Leviticus,” in The Pulpit Commentary, [eds. H.D.M. Spence and Joseph S. Exell], (Grand Rapids, Mich.: Eerdmans, 1950), vol. 2, p. 310. The writer suggests this injunction is based on two universalities: (1) it is addressed to “all”; and (2) it is predicated on the authority of an “all-holy” God.
13 Josephus, Against Apion, II, 16 ([trans H. St. J. Thackeray], Loeb Classical Library ed., vol. 1, pp. 357, 359).
14 Bustanay Oded, “Tribes, The Twelve,” Encyclopaedia Judaica, vol. 15, col. 1383.
15 Ibid., cols. 1381-1382.
16 I. Epstein, Judaism: A Historical Presentation (Baltimore: Penguin Books, 1959), p. 81.
17 Ibid., p. 85
18 Solomon Zeitlin, The Rise and Fall of the Judaean State, vol. 1 (Philadelphia: Jewish Publication Society, 1962), p. 202.
19 W.H. Bennett, “Crimes and Punishments (Hebrew),” Encyclopaedia of Religion and Ethics, [ed. James Hastings], vol. 4. Cf. p. 281 for description of the death penalty as legislated and applied under biblical law.
20 W.F. Albright, New Horizons in Biblical Research (London: Oxford University Press, 1966), p. 29. “For the first time in history, we have a series of general laws: the Ten Commandments. Unfortunately for the historian, their exact date is not certain, though their original formulation cannot be later than the tenth century B.C., and may easily go back to the thirteenth.”
21 Jacob Neusner, [ed.], Understanding Rabbinic Judaism from Talrnudic to Modern Times (New York: KTAV, 1974), p. 7.
22 Moses Aberbach, “Jewish Attitude to Capital Punishment,” Jewish Chronicle (London), Nov. 28, 1952, p. 15.
23 Deut. 17:12. The punishment was of course of a specific nature, for a specific act, not just for “not obeying.”
24 Deut. 24:7. S.R. Driver, Deuteronomy, International Critical Commentary (1895), p. 152: “And thou shalt exterminate the evil from thy midst” so 17:7, 19:19, 21:21, 22:21, 24; and with ‘from Israel’ 17:12, 22:22 (cf. 19:13, 21:9), – always at the close of instructions for the punishment of a wrongdoer, and always, except 19:19, with reference to capital punishment. A formula peculiar to Dt., whereby the duty is laid upon the community of clearing itself from complicity in a crime committed in its midst, and of preventing, as far as possible, an evil example from spreading.”
25 Deut. 17:13, 19:20.
26 Deut. 21:22-23.
27 tree (Gen. 2:9), wood (Gen. 22:7), article of wood (Lev. 11:32), timber (II Kings 12: I 2), pole (Josh. 10:26), gallows (Esth. 2:23). Cf. Francis Brown, S.R. Driver, and C.A. Briggs, Hebrew and English Lexicon of the Old Testament (London: Oxford University Press, 1951), pp. 781-782.
28 San. 46b ([trans. Jacob Shachter], “Scripture says, ‘And he be put to death, then thou shalt hang him’ – he is first put to death and afterward hanged. And how is this done? – It [the verdict] is delayed until just before sunset. Then they pronounce judgment and put him [immediately] to death, after which they hang him: one ties him up and another unties [him], in order to fulfill the precept of hanging. . . . R. Yleir said: A parable was stated; ‘To what is this matter comparable”. To two twin brothers [who lived] in one city; one was appointed king, and the other took to highway robbery. At the king’s command they hanged him. But all who saw him exclaimed, “the king is hanged!” (n. Being twins their appearance was similar. So man has some resemblance to God, having been created in His image. Cf. Gen. V, I.) Whereupon the king issued a command and he was taken down.’”
29 Esth.7:9-10.
30 Josh. 8:28-29.
31 H. Freedman, “Joshua,” in Joshua and Judges, [ed. A. Cohen], (London: Soncino Press, 1950), p. 44. Here Freedman reminds his readers that in another case of wartime execution, involving “five kings of the Amorites,” “Joshua smote them and put them to death, and he hung them on five trees. And they hung upon the trees until evening; but at the time of the going down of the sun, Joshua commanded, and they took them down from the trees” (Josh. 10:26-27). The point is made that, in this case, the law of Deut. 21:23 was carried out even with non-Israelites.
32 Lev. 20:14, 21:9.
33 John Skinner. Genesis, International Critical Commentary (1910), pp. 454-455: “Death by burning is the punishment imposed in Hammurabi (law) no. 157, for incest with a mother, and was doubtless the common punishment for adultery on the part of a woman in ancient Israel. In later times the milder penalty of stoning was substituted (Lv. 20:19, Dt. 22:23 ff., Ezek. 16:40, Jn. 8:5), the more cruel death being reserved for the prostitution of a priest's daughter (Lv. 21:9; cf. Hamm. [law] no. 110).”
34 Josh. 7:25.
35 M. Lazarus, The Ethics of Judaism, pt. I (Philadelphia: Jewish Publication Society, 1900). Cf. pp. 129-130, where Lazarus stresses that this equality before the law was a broad principle which was a characteristic distinction of the most ancient Jewish legislation, as well as later Judaism. There was “‘one law and one code,’ alike for the native and the stranger (Num. I5:15).”
36 I Kings 21:8-10.
37 A N.T. example of unbridled passion leading to an unjustified execution is the stoning of Stephen, Acts 7:54-60. Thus, popular motivation was not necessarily consistent with ethical behavior.
38 Aberbach, “Jewish Attitude to Capital Punishment.”
39 James L. Mays, Leviticus, Layman’s Bible Commentaries (London: SCM Press, 1964). “This single sentence discloses in a crucial way the intention and basis of God’s instruction for Israel. It transcends the legal idiom because it is stated positively and summons Israel to a way of love” (p. 60).
40 M. San. VI, 3: 45a [trans. Jacob Shachter].
41 Lev. 10:1-2.
42 San. 52a [trans. H. Freedman].
43 M. San. VII, 2.
44 M. San. IX, 1.
45 M. San. VII, 2.
46 I. Epstein, [ed.], The Babylonian Talmud, vol. 3, Seder Nezikin, [trans. H. Freedman, Sanhedrin], p. 353, n. 2. Also, cf. Josephus, Antiquities, XX, ix, 1, where, in speaking of the younger Ananus, he describes the judicial severity of the Sadducees as follows: “The younger Ananus, who . . . had been appointed to the high priesthood, was rash in his temper and unusually daring. He followed the school of the Sadducees, who are indeed more heartless (savage) than any of the other Jews . . . when they sit in judgment.”
47 David Daube, The New Testament and Rabbinic Judaism (London: Athlone Press, 1956). Cf. pp. 304-305, where Daube says that “between about 100 B.C. and A.D. 100 a far-reaching reform of the modes of execution was effected by the Pharisees,” and describes their manner of stoning, burning, strangulation, and decapitation.
48 San. 52b, “Whenever the Torah decree, an unspecified death penalty, you may not interpret it stringently but leniently: (n. Lit., ‘attract it to stringency etc.’ Hence strangulation, the easiest of deaths, must be meant.) this is R. Josiah’s view. R. Jonathan said: Not because strangulation is the most lenient death, but because by every unspecified death in the Torah strangulation is meant” [trans. H. Freedman].
49 M. San. VII, 3.
50 M. San. Xl, l.
51 Cf. above, p. 119.
52 Ber. 10a.
53 Deut. 13:12-15 (Heb. 13:13-16). Historically, no such action was ever taken. However, there is a dispute about this in T.B. San. 71a, viz. “‘There never was a condemned city, and never will be.’ – It agrees with R. Eliezer. For it has been taught, R. Eliezer said: No city containing even a single mezuzah can be condemned. Why so? Because the Bible saith [in reference thereto], ‘And thou shalt gather all the spoil of it in the midst of the street thereof and shalt burn [them]. But if it contains a single mezuzah, this is impossible, because it is written [‘And ye shall destroy the names of them’ – i.e., the idols – . . . ] ‘Ye shall not do so unto the Lord your God’ (Deut. 12:4). R. Jonathan said: I saw it, [a condemned city] and sat upon its ruins.”
54 M. San. IX, 1
55 M. San. VII, 3 (trans. H. Freedman].
56 William F. Albright, Yahweh and the Gods of Canaan (Garden City, N.Y.: Doubleday Anchor Books, 1969), p. 181: “One of the most remarkable features of Mosaic legislation – always using the term in its widest sense, of laws approved or introduced by Moses and developed in later Israel – is its humanity to man. It is the most humanitarian of all known bodies of laws before recent times.”
57 M. San. VI,4.
58 Haim H. Cohn, Jewish Law in Ancient and Modern Israel (New York: KTAV, 1971). Cf. pp. 61-82 for an excellent article on “Penology of the Talmud,” in which the conclusion is stated (p. 82): “The humanization of punishment . . . is the fundamental concept of talmudic penology.”
59 Mordecai M. Kaplan, “The Legal Foundations of Rabbinic Judaism,” in Understanding Rabbinic Judaism from Talmudic to Modern Times, led. Jacob Neusner], (New York: KTAV, 1974), pp. 55-56: “To evaluate properly the significance of a common legal code for Jewish survival, we have to bear in mind that the Rabbis of old succeeded in formulating a code which fulfilled the following functions: 1) It provided the scattered communities of the Jewish people with a sense of unity and solidarity. 2) It called for the leadership of those who were expert in the knowledge and application of Jewish law, and who were authorized to use sanctions as means of enforcing their decisions. 3) It led to the establishment of courts of law which, being sufficiently flexible in structure, were able to adjust themselves to the various contingencies in the life of the Jewish People.”
60 San. 46a [trans. Jacob Shachter].
61 M. San. VI, 6 [trans. Jacob Shacher]. This is a convenient time to note that there was much “idealization” literature written by the Rabbis in connection with legislative rulings. There is no evidence to indicate that this Mishnah was ever literally followed in real life. The Mishnah states in effect what should be the case – if there were an execution. But then the Rabbis virtually abolished executions.
62 Zeitlin, Rise and Fall of the Judaean State, vol. 1, pp. 144-149.
63 Aberbach, loc. cit.
64 Sidney B. Hoenig, The Great Sanhedrin (Philadelphia: Dropsie College, 1953). Cf. p. 207, where Hoenig says that “many interpretations of the law were introduced in a hope that they would rule out the death penalty.” Also, cf. Gerald J. Blidstein, “Capital Punishment – The Classic Jewish Discussion,” Judaism 14, no. 1 (Winter 1965): 165-166.
65 M. Mak. I, 10.
66 San. 71a (trans. H. Freedman).
67 Further evidence of halakhic interpretation requiring greater safeguards in capital cases comes from the Qumran community. Lawrence H. Schiffman’s commentary on B. Levine’s translation of the Qumran Law of Testimony (Damascus Document IX, 17-22) calls attention to their requirement of three witnesses for a capital offense conviction instead of two. Cf Revue de Qumran, no. 32, vol. 8, fasc. 4 (December 1975): 603-605. Cf. also Josephus, Antiquities VIII, xiii, 8, where Josephus, in writing about the so-called trial of Naboth (I Kings 21:8-13), speaks of three witnesses in the face of the biblical account, which mentions two. Was this a “historical error” or did he inadvertently record a practice which was prevalent in his day'? Be that as it may, there is ample evidence, above, to show that the Rabbis were moving away from a harsh view of the law, and that, as they applied its principles, the sternness of the law was mitigated.
68 F. M. Abel, Histoire de la Palestine Depuis la Conyuête d' Alexandre Jusgu'è l’ Invasion Arabe, vol. 2 (Paris: J. Gabalda et Cie, 1952), chap. 2, pp. 22-43, esp. pp. 31-35.
69 San. 52b.
70 San. 41a [trans. Jacob Shachter].
71 Ket. 30a [trans. Samuel Daiches].
72 Cohn, loc. cit. However, it is possible that such “actualities” could have been put into practice during periods of insurrection, e.g., the Bar Kochba War.
73 San. 51b [trans. H. Freedman].
74 A.M. Silbermann, [ed.], Pentateuch with Rashi’s Commentary: Deuteronomy, [trans. and annotated by M. Rosenbaum, A.M. Silbermann, A. Blashki. and L. Joseph], (London: Shapiro, Vallentine, 1934). This summary of Sin. IV, 1, is found on pp. 186-I87.
