Having summarized the history of the four methods of legal capital
punishment recognised by the Jews, we are now in a position to review
more broadly the question of the Jewish attitude towards capital
punishment.
The Hebrew Bible undoubtedly stands for the principle of capital
punishment, as has clearly emerged from the detailed consideration
of the particular methods of inflicting the death penalty set forth
above. In Biblical times, when the organization of Jewish society was
comparatively simple, retributive justice brooked few of the law’s
delays. In the simplest and most rapid manner, the avenger of blood
exacted the penalty of life for life. Society protected itself by a
swiftly effective punishment.
But the Bible recognises in capital punishment also a deterrent
character and an expiatory character, in addition to its retributive
character. It holds capital punishment to be a necessity as a
deterrent. The phrases “and thou shalt remove the evil from thy
midst,” “and Israel shall hear and understand and no more do this
evil,” which occur many times, coupled with the admonition to impose
capital punishment, show that this preventive purpose was closely
associated with the imposition of the death penalty. Malicious false
witnesses had to be treated as they would have treated the one against
whom they had testified, so that the public should take warning.[82]
The Bible also teaches explicitly that capital punishment is the just
punishment for murder, in order to atone for the pollution of the
land.[83] No pity was to be shown to the wilful murderer.[84] The right
of sanctuary granted to the one guilty of manslaughter, was not granted
to the murderer,[85] and the crime of shedding innocent blood had to be
atoned for in order to cleanse the sacred community of Israel.[86]
Yet the old Testament teaching of justice is tempered by mercy. “But if
the wicked turn from all his sins ... he shall surely live, he shall
not die.... Have I any pleasure in the death of the wicked? saith
the Lord God; and not rather that he should turn from his way and
live.”[87] It was a duty to try to save those going to death.[88]
The New Testament also admits the right of society to exact capital
punishment.[89] We have seen that Philo, Josephus[90] and the
apocryphal and apocalyptic books also do not doubt the reasonableness
and necessity of capital punishment. In the last pre-Christian
century, the Jewish people, particularly the Sadducees who were in
the ascendant, still followed the Bible in their maintenance of the
theory and the practise of capital punishment. The letter and the
spirit of the Biblical laws governed Jewish practise. But in the first
post-Christian centuries, these teachings of the Bible were modified in
many directions.
It may be safely affirmed that the Rabbis did not question the right
of society to inflict capital punishment, even though they pictured
God as grieving over the death of the wicked.[91] In the Mishna, they
enumerated thirty-seven crimes (nineteen of morals, twelve of religious
law, three against parents and three assaults), which they held to be
punishable by death. In commenting on the Biblical warning “thine eye
shall not spare the wilful murderer,” they say ‘thou shalt not say
wherefore should I punish murder by murder. The one whom thou knowest
indubitably to be guilty of a premeditated murder thou shalt not pity
nor spare.’[92] The sternness of the capital sentence was recognised by
the Rabbis as being in the best interests both of the criminal and of
society.[93] “When the wicked perish there is joyful shouting,” was
quoted in justifying the death penalty, to convince those who hesitated
to help bring a capital offender to justice.[94] R. Akiba declared that
so long as sinners such as Achan remain alive, the Divine anger rests
upon the community. But when they are put to death, the Divine favor
is restored.[95] The noxious thorns in the garden of humanity must be
destroyed.[96] When Akiba (d. c. 132 C. E.), claimed that had he been
a member of the Sanhedrin, a death sentence for murder or immorality
would never have been imposed, Rabbi Simon ben Gamliel retorted “had
you been a member of the Sanhedrin, you would have been responsible for
the increase of murders.”[97]
The Rabbis also approved of the preventive character of the Biblical
death penalty. For instance, the death penalty for the rebellious,
gluttonous son, is regarded by them not as a punishment commensurate
with the wrong that the son may have committed, but as a preventive
measure, necessary for society and necessary for the criminal. In
explaining why the son must pay the penalty of death even though he has
not spilled blood nor committed any major offence, they say that the
Torah looks ahead. Let him die before he has incurred graver guilt;
otherwise, he will sink lower and lower until finally he commits
a capital offence. Therefore he should be put out of the way as a
preventive measure.[98] Although we immediately see the danger lurking
in such a principle of preventive punishment, the recognition of this
principle by the Rabbis is further evidence that in theory they
approved of the death penalty.
Furthermore, the Rabbis approved of a fitting retribution. Biblical
justice demands that the punishment correspond with the crime. He who
digs a pit should fall into it.[99] The Psalmist prays that God may
repay the wicked according to the works of their hands.[100] The Rabbis
recognise this principle of retribution in kind in every phase of
life.[101] The principle underlying the talio is that which they call
“measure for measure.”[102] Bloodshed, according to this principle,
could be expiated only by bloodshed.[103]
The Rabbis also saw in the death penalty an expiation of the sin that
had been committed. This supreme expiation was religious in character,
and was brought into connection with the Temple and its sacrificial
worship. Thus it is stated that only so long as the altar stood,[104]
or the priest officiated,[105] could the death penalty be carried
out.[106] According to the opinion of R. Akiba,[107] a capital sentence
on “a defiant elder” could not be consummated outside of Jerusalem, nor
even in Jabneh by the great Sanhedrin, while the Temple still stood;
but he should be brought to Jerusalem and put to death on one of the
middle days of the next festival when the city and the Temple were
thronged with worshippers. Those condemned to death were given the
opportunity to confess their sins when within ten cubits of the place
of execution, the confession opening for them the gates of the future
world.[108] It is related of one condemned man that when bidden confess
he prayed “May my death be an atonement for all my sins”....[109] If
the condemned man was unable to confess fully, he was bidden say “May
my death be an atonement for all my sins.”[110]
These four considerations, (a) the plain command of the written word
of the Torah, (b) the recognition of the deterrent and preventive
value of capital punishment, (c) the claims of just retribution and
(d) the recognition of the expiatory character of the death penalty,
leave it beyond doubt that the Rabbis approved of the theory of capital
punishment. They accepted without question the teachings of the Torah,
implying the justifiability of imposing the death penalty. At the same
time, numberless passages testify to the sacredness in which they held
human life,[111] and many passages prove that they had a vivid sense
of the irrevocability of a consummated death sentence. To put a man to
death wrongfully is as though one destroyed the whole world.[112]