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Parshas Mishpatim (Shekalim) 5770

To Kill or not to Kill: The Bible and Capital Punishment

Everyone knows that the Torah prescribes capital punishment for a variety of transgressions including murder and idolatry. In this week’s Torah portion alone we find at least nine capital offenses (see, for example, Exodus 21:12-18). But what many don’t know is that in all the thirteen hundred or so years from when Joshua led the Jews into the Land of Israel until the great Sanhedrin disbanded (thus effectively abolishing the practice of capital punishment until the Messiah comes) just prior to the destruction of the Second Temple by the Romans in 70 CE, the death penalty was rarely implemented.

In fact, the Mishnah in Makkos 1:10 states that a court that administered the death penalty more than once in seventy years was called a “murderous court”. One of the many reasons why capital offenders were hardly ever put to death in the Torah’s justice system is due to a technicality: The Torah mandates that the offender must be warned of the consequences of his actions by two witnesses immediately prior to committing the offense – and he must then acknowledge their warning and say he that he is going forward with his plan regardless of their warning - and only then can the court actually put him to death. So you can see why the death penalty would almost never be carried out.

Which begs the question ... If the death penalty was almost never carried out, why did the Torah bother to write it in the first place?

We can answer this question with another question. We know that the 613 commandments in the Torah are split into three categories – Eidos (Testimonies), Chukim (Statutes), and Mishpatim (Judgments or Laws). Eidos are commandments that serve as a testimony and remembrance of important religious truths or events in our history. These include the mitzvahs of Matzah and Tefillin among others. Chukim are decrees that have no rational explanation. These consist of ritual laws, such as the Dietary Laws, and their main function is to strengthen the bond between G-d and man. Mishpatim are laws dictated by human intellect as well as by Divine intellect. These include most moral laws, and make up the entire ethical structure of Judaism.

As a matter of fact, this week’s Torah portion, Parshas Mishpatim, takes its name from the fact that it includes a fair amount of moral and ethical laws, such as the prohibitions of stealing and kidnapping.

Now we know that the nations of the world are commanded to follow the “Seven Noachide Laws” – a set of seven moral imperatives that, according to the Talmud, were given by G-d to Noah as a binding set of laws for all mankind. These laws are similar to the Mishpatim that were given to the Jewish people, in that they are mostly rational laws, dictated by human intellect.

Yet we find in the Psalms, written over 3000 years ago by King David, the following verse: “He [G-d] relates His Word to Jacob, His statutes and judgments to Israel. He did not do so for any nation, such judgments – they know them not. Praise G-d!” (Psalms 147:19-20). This verse seems to suggest that only the Jewish people were commanded in Mishpatim (judgments) and not the other nations, when, in fact, the seven Noachide “judgments” were all that the non-Jews received?!

I believe the answer to these questions can be found in a fascinating letter written in 1981 by Rabbi Moshe Feinstein, the most outstanding rabbinical authority in the United States at that time, to (then) President Ronald Reagan. Rabbi Feinstein had been asked by the President to present the Orthodox Jewish approach to capital punishment, which was then (as ever) a controversial topic in the country.

In his answer (Volume II of Iggros Moshe Choshen Mishpat Responsum #68), Rabbi Feinstein constantly emphasizes the many different practical obstacles that the Torah justice system places in the way of actual execution of this punishment. For this reason, Rabbi Feinstein explains, the death penalty was never used in Jewish communities even when the secular government authorized them to employ it.

But here’s the main point that I want to bring out from his letter. Rabbi Feinstein concludes: "And even so, in all the generations there were virtually no murderers among the Jews, because of the gravity of the prohibition and because they were educated by the Torah and by the punishments of the Torah to understand the gravity of the prohibition, and not because they were simply afraid of the punishment."

In other words, whereas the Seven Noachide laws given to the other nations act primarily as deterrents to “scare” people into acting morally and ethically, the Mishpatim laws of the Torah are mainly an educational device meant to impress upon us the severity of a small core of basic regulations which are essential for an ethical society. And the hope is that by learning about these laws and studying their rationale and moral underpinnings as explained in the Torah, we will become more spiritually sensitive and inclined to lead moral lives without ever having to resort to actual punishments to deter us from sin.

It is primarily for its educational impact that the Torah prescribes the death penalty for various crimes even though it was rarely carried out. And this is what King David meant when he wrote that G-d related His judgments to the Jewish people but the nations “know them not”. The non-Jews also have moral laws to keep the peace, but since these laws are merely followed by the nations (most of the time) but are not known and studied by them, they fail to create an enlightened society. The fundamental bedrock of society is education towards uplifting morals and values, and the criminal justice system, like other aspects of law and society, must take this into account if it is to be effective.

So, for example, the next time we have a problem with youth gun violence and murder in our cities, we would do well to take our cue from the Torah and the morally strong society it has created – and instead of merely resorting to external measures like tougher gun control laws to “fix” the problem, we should turn our focus towards educating and enlightening our young people about the sanctity and preciousness of human life, in the hope that this heightened sensitivity and morality will serve as a true deterrent to murder.

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