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Comment: The death penalty in Judaism

August 5, 2010

An oft repeated accusation used against Judaism is that it is bloodthirsty. That it prescribes death for so many sins that it is impossible to do live as a Jew. The idea that Judaism is impossible to observe, that the law is too harsh etc is a tactic often utilised by missionaries when trying to convince uneducated Jews that Jesus was needed in order to allow us to live. Of course this is nonsense (and recognised as such by those few “messianic jewish” sects that adhere to the Talmud) but as it is a frequently raised question I have decided to address it.

Firstly, let us look at the requirements to implement the death penalty:
1) The Sanhedrin has to be sitting in the Chamber of Hewn stone in the Temple. If they are not, then NO Jewish court can impose a death sentence! Immediately that shows that in the modern era we cannot utilise the death penalty. Thus the rest of the requirements are based on a time when that will be possible- i.e. the messianic era or in the past when the temple stood.
2) The action has to be done with the knowledge that it is forbidden, and with the intent to do it regardless of it being forbidden. If it was done accidently or without intent, the person brought a Korban Oleh v’yored (a variable sin sacrifice). If the person had killed someone accidently, they had to go and live in one of the cities of exile until the death of the current Kohen Gadol (if he happened to do it at a time when there was no Kohen Gadol, he stayed there for life even if one was appointed, and then subsequently died while he was in exile).
3) The people have to be warned beforehand by two kosher witnesses. They warning has to include the fact that the action is punishable by death (some authorities are stricter and say not only must they state it is a death penalty offense, but state which form of death penalty is involved- a wrong form or leaving it out invalidates the warning). So, think about it this way, you are about to commit a forbidden action- two people who are known to be upstanding citizens are standing and watching you and tell you that what you are about to do will earn you the death penalty… which leads to the next point
4) The person has to ACKNOWLEDGE the warning! So continuing the example above, you have these two people warn you- and you tell them you have hard the warning….
5) The person then has to immediately perform the forbidden action. This is defined as doing it within the time it takes to say “Shalom lecha Rebbi”- in other words around 3 seconds. So, as we continue our example, the person is warned, acknowledges the warning and then, in front of these two upstanding citizens that have warned him, he immediately does the forbidden action! Not a highly probably sequence of events!
6) The court has to have a minimum of twenty three judges. (In Jerusalem there were three courts- but only the great Sanhedrin of 72 judges heard capital cases). In front of the judges sat three rows of disciples with the most seniour disciples at the back, closest to the judges. They had to be there for the entire case and if a judge died, one would be elevated to replace him.
7) The witnesses were asked two sets of questions- one which established the facts such as when, where, how etc, the other based on their observations. Any discrepancy would render their testimony invalid.
8.) Witnesses could be called to either defend the accused or to claim the other witnesses were lying (eidim zomemim)
9) The judges would deliberate- While deliberating a judge that argued for innocence could not then raise an argument to find them guilty- a judge who had argued they were guilty, could raise an argument that they were innocent (after which he could not raise further arguments for their guilt)
10) The most juniour judge would put their arguments across first and then it would continue in order of reverse seniority so that people would not be worried about contradicting the more seniour judges after they had spoken
11) ) The disciples could raise an argument to find the defendant innocent, but could not argue for his guilt. A disciple that raised an argument would be temporarily elevated to the position of judge.
12) when a vote was finally taken only a majority of one was needed for innocence, but a majority of two needed for guilt (A note here- those judges who had argued for innocence, while not allowed to raise arguments for guilt, could vote for the person to be found guilty)

In all, it was exceptionally difficult for a court to sentence someone to death- there is thus a statement made in the Talmud that a court that sentenced more than two people to death in 7 years was bloodthirsty, an alternate opinion states it was 70 years. Rabbi Akivah stated that if the courts had the power to sentence people to death in his day (they didn’t as the Temple had been destroyed), no one would ever have been convicted as he would have asked such questions as to make sure the witnesses were invalidated.

So, if it was so difficult to sentence people to death according to the Torah, then why does the Torah utilise it so often? The answer here is that it is to illustrate the seriousness of a particular action. It is letting us know that certain actions are serious enough for us to lose our lives, and that these actions are hard to atone for. The point is made in the Talmud that if the person repented their action, then when the death penalty was carried out, they achieved full atonement for their action- it wasn’t just a punishment, but an atonement. However, if the person did not repent, then they were punished with death in this world and punished further in the World to Come. In the modern world, with no death penalty from Jewish courts, the highlighting of those actions punishable in this fashion serve as an indicator to us of the seriousness of such actions and how we need to be especially careful not to transgress. Here we are helped by the rulings of the Sages who established gezeiros (fences) to keep us back from those behaviours that lead to sin.

Are there any exceptions to the above? The main exception noted is that of the “meizid’, the enticer, the person who tries to get Jews to convert to another religion. The exception here is that, unlike with other offenders, the witnesses can be hidden and do not have to issue a warning. The Talmud notes that the person who is approached should get two witnesses to hide, and then ask the meizid to repeat what he had said previously. The person should then state to the meizid “But is that not against what we are taught and against the G-d of Yisrael?” (Or a variation of that- but with the same intent- to point out that it is against Jewish law.) If the meizid retracts his enticement, then he goes free- if he repeats it, calls on the person to worship in a manner not Jewish, then the witnesses step forward and he is taken before the courts- where the rest of the procedure detailed above is applied. However, a further variance then takes place- unlike normally where arguing for innocence prevents someone arguing for guilt- for the meizid this is not the case and they are judged more harshly. Why? This is because when it comes to the meizid the Torah states in Devarim Chapter 13

9. You shall not desire him, and you shall not hearken to him; neither shall you pity him, have mercy upon him, nor shield him. ט. לֹא תֹאבֶה לוֹ וְלֹא תִשְׁמַע אֵלָיו וְלֹא תָחוֹס עֵינְךָ עָלָיו וְלֹא תַחְמֹל וְלֹא תְכַסֶּה עָלָיו:

Where we judge others as G-d judges us, with mercy- here G-d commands us not to do so but to be harsh, to show no mercy.

The above exception is what makes this relevant to this blog. It can be seen that the Torah and Talmud, while allowing for a death sentence, the vast majority of time it is made nearly impossible to sentence someone to death. What is the exception? The missionary, the one seeking to get Jews to abandon G-d. And the Torah is even more explicit; who does it state is the meizid? Devarim Chapter 13

7. If your brother, the son of your mother, tempts you in secret or your son, or your daughter, or the wife of your embrace, or your friend, who is as your own soul saying, “Let us go and worship other gods, which neither you, nor your forefathers have known.”

Yes, the one it is harshest to, the one it condemns the most is the person who should be Jewish but abandons it for other another religion, and then seeks to get you to abandon it! Sound familiar? Sound like the “messianic jews”? They claim to be Jewish, to be our brothers- and then come and try to get us to worship in a manner that we, and our forefathers, have rejected.

Of course in the modern era we cannot sentence anyone to death. We do not have a Sanhedrin and there is no Chamber of Hewn Stone for them to sit within; we cannot sentence anyone to death. In decades past families would sit shiva for those that converted to other religions, they would mourn them as if they were dead- today we do not do so. Why? Because of the ruling of HaRav Moshe Feinstein zs”l who stated that in the modern era, where the vast majority of converts have little to no Jewish education, and even those who have, have grown up in an environment where they are continuously assaulted by non-Jewish imagery and ideas, we cannot state they ever had the proper environment to be innured to the non-Jewish message as peopel in the past were. The shtetl may have been a place in which we were forced to live- but in provided a secure and strong environment in which Jewish values flourished and Jewish norms were ingrained into the inhabitants. Thus, HaRav Moshe Feinstein zs’l ruled that today such people are “captured children”- the child who has never learnt Judaism and thus cannot be held liable for violating halacha. Instead of cutting them off, denying the opportunity to see real Judaism, repent and return- we keep the door open and hope they will choose to enter. We hope and pray they will repent, they will return and a precious Jewish soul, instead of being lost, will be counted amongst the Jewish people once again. And this applies to all those unfortunate enough to have been tricked or enticed by missionaries into converting, regardless of what form their new religion takes- we hold the door open and hope they will abandon their non-Jewish beliefs to return to Kahal Yisrael

Note: For a discussion of the meizid as seen from this weeks Torah portion (Re’eh)- see here)

From → Comment

  1. Excellent description… It’s like you learned Makkos, and Sonhedrin like 50 times!

  2. Isadora permalink

    I believe this to be untrue. My cousin went to Israel w/her parents and wore knee length peddle pushers w/sandals. The Hassidim threw stones at her. We have a video of it taken by an IPhone.

    We ran for cover and the tour guide got us out of there.

    I suppose they weren’t trying to kill her with the rocks? Any of them could have done it or blinded us.

    It is still a tradition that is used.

    • I love it when people trying to attack Judaism do it a manner which shows their ignorance!

      See, unlike how it is portrayed in Christian sources and the popular media, stoning in Judaism was NOT standing around throwing stones at the person! How was it done? The person was taken outside of the city to either a cliff or a to a platform built to the equivalent of three stories in modern terms. The two witnesses on whose word the person had been convicted, then pushed the person off the cliff/platform. If the person survived the fall, they had to throw a large boulder onto them. Only then, if the person was still alive, did anybody else throw stones- and then it was not little stones but they had to bu of sufficient size in order to inflict substantial injury in order that the person die as quickly as possible and not suffer more than necessary!

      The attempt to try and claim the Chassidim were trying to kill them is just typical of the slander we see on the itnernet attacking Orthodox Jews. If the incident even happened as described, at most they were doing it to chase the people away, no one was intending to kill anyone- but attacking Orthodox Jews and claiming they want to kill everyone that doesn’t agree with them is typical of anti-Semites. Heh, I have even had people on yahoo! answers misrepresenting this post and claiming I am calling for the death of “mesisanic jews”! Of course that is blatantly false as anyone who has actually read this article knows- but it hasn’t stopped the “messianic jews” on yahoo! Answers from claiming I am calling for the death of ‘messianic jews” here!

  3. I must correct you… In one of your paragraphs you say there were 72 judges, while according to Halacha they are supposed to be 71.

    • You’re right! Whoops! Just as a general comment, a sanhedrin could never have an even number of judges- dunno how I managed to get the number wrong above, but it is fixed

  4. Hebe permalink

    When hebe learns some honesty- his posts will show. However, as this person has previously posted as Regina from a different email address- I see no need to let his posts through. An apology, and a decision to stick to one ID, and I will let his posts through. Bottom line- I am sick of the dishonesty of messianic jews and posts from people using multiple IDs will NOT be allowed through!

  5. On Sanhedin 2a/b it speaks about the amount of judges needed for each thing. Money matters- 3, murder- 23, etc… But when Moshiach comes (BimHerah BeYamenu!!!!!!!!), we will have the 71 Sanhedrin, and have the proper “Avodah”.

    Sorry to bother so many times about this, but did you have time to get to my question yet?

    • Carry on reading- it specifies that in Yerushalayim there were three Sanhedrins- two of 23 judges and then the great Sanhedrin that sat in the Temple of 71.

      I am looking into your question- I loaned my copy of moreh nevuchim out and the person (my cousin) made aliyah 2 weeks ago! So, I am now trying to find another copy of moreh nevuchim to be abler to give the exact comments of Rambam on the ayin hara,

  6. Sorry to bother, just my brothers are nagging to me about it.

    My father always starts a Masechta with me, and does a little then never continues- so that’s pretty much all I know about Masechta Sanhedrin. Actually, I what you just said in like a Mishnah (maybe Ta’anis?).

    Mazel Tov!

    Thank you very much. I’ll give you a Bracha-
    “Misheh Berach Avotenu Avraham, Yitzhak, Yaacov, Moshe, Aharon, David U’Shlomo Hu Yevarech Et Ha shem Hatov_________________(your name) v’yeten lo bracha v’hatzlacha bechol ma’asei yadav, v’izkeh liv’not bayat kasher beYisrael, v’yimtzah isha kedosha, she’ya’aleh malah malah, ve’yieh talmid hacham beYisrael, ve’ Hashem yishlah` bracha lekol mishpachtav, u’lekol yisrael achav v’nomar amein!!!”

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