State sanctioned death penalty is cruel. It displays a distinctly vengeful, barbaric, indifferent and callous society. A Jew struggles with the culture of the death penalty in the simple knowledge of the sanctity of the soul and indeed the sacredness of the body. Our bodies are not ours to defile or destroy. We are born with body and soul, with the heavenly mandate to grow and to improve. We do not have absolute rights over our own bodies, nor a mandate to destroy or defile the body, nor is a court sanctioned to destroy or defile a body. The death penalty can only be administered in the face of utter evil.
The State of Israel has abolished capital punishment for all offenses other than genocide, war crimes, crimes against humanity, crimes against the Jewish people, and treason in wartime. The only execution that has taken place in Israel was the execution of Adolf Eichmann, in which he was hanged.
Andrew Chan and Myuron Sukumaren whilst committing the callous and heinous crime of trafficking in drugs, would never have been put to death under Torah-Biblical law. They never pulled the trigger or injected the drug.
The Talmud Makot 7A attributes the infrequence of the death penalty in Biblical and Talmudic times to the meticulous application of stringent rules regarding the admissibility and sufficiency of evidence. A court (Sanhedrin) of at least 23 judges would have to be satisfied, to a legal certainty, that the capital offense had been committed, two eye-witnesses were required to actually have seen the cause and the deed of the act of murder.
Witnesses were subjected to searching and detailed interrogation by the court, there was rarely an instance when the evidence met the prescribed legal standard (if witnesses did not agree on the colour of the eyes then evidence would not stand). In fact the Talmud posits that a Sanhedrin (supreme/High Court) that executes one person in seven years is called “murderous.” Rabbi Elazar ben Azariah says that this extends to one execution in seventy years. Rabbi Tarfon and Rabbi Akiva say,
“If we had been among the Sanhedrin, no one would ever have been executed.”
Parenthetically it is Rabbi Tarfon and Rabbi Akiva who were the Rabbinical authority in the time of Jesus.
What then can be understood by the clear mandate of capital punishment in the Torah? (Leviticus 24:17) A man who kills any human being shall be put to death? Rabbi Shlomo Riskin when discussing the interpretation of the Torah of “Pshat”, the simple basic translation of the Bible; and “Drush” the exposition of the Bible; to mean that “Pshat” is how the Torah is understood then in Biblical times and “Drush” is how the Torah is expounded and understood in the here and now. If the Talmud as seen above abhors (Makot 7A) the application of capital punishment then that sheds light retrospectively on the verses and directs us, to soften the culture of capital punishment within Torah and Biblical law.
Allow me to put the case of the biblical death penalty into the context of the verses as found in Exodus. Exodus 21:12. A man who murders another man is put to death. 21:13. A man who kills unintentionally (manslaughter) is condemned to banishment to the city of refuge. 21:16. If a man kidnaps another man he shall be put to death. 21:18. If a man strikes the other and he does not die but is confined to bed he is obligated for damages, compensation and medical expenses. 21:22. If two men quarrel and hit a pregnant woman, and she miscarries, the assailant must pay damages and compensation for the foetus. 21:23. If there is a fatal injury to the women then you shall give (v’natata) a life for a life, an eye for an eye, a tooth for a tooth, a hand for a hand, a wound for a wound.
Talmud Tractate Baba Kama 84A explains the usage of the word v’natata in verse 23 “and you shall give a life for a life” to mean, that a monetary compensation is given and paid out for a wound, a tooth, a hand, an eye and a life. The Torah does not literally punish an eye for an eye, a hand for a hand or a life for a life. By placing murder within the context of the other laws of accidental death, inadvertent death, manslaughter, kidnapping, the killing of a feutus and the striking of a person encourages, the Torah charges the Rabbinical Judges to be discerning, judicious and clever in the application of the law to penetrate with wisdom and humility and to uncover the loophole in the law so as to not to apply the rule of capital punishment. The Talmud expounds “though shalt not kill” of the Ten Commandments as applying to the Sanhedrin as well.
What is the value of Life in the context of the devastating tragic earthquake in Nepal? The culture for the preservation and sanctity of “a life for a life” seems to have been passed down from generation to generation from the times of the great Sanhedrin through to the Jewish aid workers from the state of Israel. Israel one of the smallest countries in the world is amazingly the largest donor of manpower to Nepal in the world. It has a field team of doctors and search and rescue personal of 260 members more than double that of the USA. Israel has even sent members of ZAKA the Israeli chevra kadisha to help in the recovery and sanctity of bodies. A Chinese back paper marvelled and cried at the stoicism of the Israeli embassy in Nepal, she could not help but to compare the two countries.
“What type of country do you come from? she said, our embassy closed its doors after the earthquake and yours opened up its doors for its sons and daughters”.
And our Australia still does not have people on the ground and is struggling to land a military plane in Kathmandu with a crisis team on board.
There are nearly two thousand Israeli backpackers in Nepal. All have been accounted for, name by name except for 22 year old Or Asaf who is still missing. May we hear good news of his whereabouts soon.
As always L’chaim.
See you in shule.
Rabbi Elozer Gestetner. Coogee Synagogue, an Orthodox synagogue in Coogee, a beach-side suburb of Sydney. The rabbi and his family are Chabad-Lubavitch and are representatives of the world wide Chabad Chassidic Movement.