21 Jan DEATH PENALTY

Even those with only
a passing knowledge
of the Five Books of
Moses recognize the
death penalty applied
to various sins. The Oral
Torah, committed to writing centuries later,
explains the procedural limitations to these
penalties. However there is another Jewish
penalty that was administered in one way
or another into the early Modern Era.
I. Talmudic Punishments
The Talmud (Sanhedrin 58b) says that
someone who threatens another by lifting
his hand — even without actually hitting
him — has committed a terrible sin. Rav
Huna even had someone’s hand cut off for
doing this. This is quite astonishing because
no such punishment is mentioned in the
Bible or elsewhere in rabbinic literature.
On what authority did Rav Huna punish
that criminal so harshly?
Earlier, the Talmud (Sanhedrin 52b) says

that Rav Chama Bar Tuviah burned with
branches a cohen’s adulterous daughter.
Rav Yosef says that Rav Chama Bar Tuviah
made two mistakes. First, the official form
of execution by burning consists of feeding
the criminal burning metal, to consume
only the internal organs. He mistakenly
burned the entire person. Second, courts
are only authorized to execute criminals
when the Temple is intact. In other words,
the Talmud’s final word is to denounce this
execution.
However, Rav Shlomo Luria (Maharshal,
16th cen., Poland; Chochmas Shlomo, ad
loc.) daringly disagrees with Rav Yosef’s
denunciation of this execution. Maharshal
does not but could have quoted Sanhedrin
46a where the story is told of someone who,
during the era of Greek control of Israel,
rode a horse on Shabbos and was executed
by the religious court. This overly severe
punishment for the violation of a rabbinic
edict is justified by the general rule that a

court can punish and even execute someone
in order to maintain religious order (we will
discuss the parameters below).
If so, asks Maharshal, perhaps Rav Chama
Bar Tuviah’s two mistakes answer each
other. He was fully aware that he lacked
authorization to administer a biblical
execution because the Temple was no longer
functioning. Therefore, he administered a
different execution — an actual burning
rather than an internal burning.
II. Early Modern Punishment
Rav Meir of Lublin (Maharam Lublin,
early 17th cen., Poland; Responsa, no. 138)
was asked about a Jewish murderer who
was being held by Polish authorities. The
local rabbi asked whether he is allowed to
recommend execution, a recommendation
that would certainly be implemented.
Maharam Lublin describes how Medieval
authorities (e.g. Rashba and Rivash) had
permitted execution based on the above
Talmudic passages. Without quoting
Maharshal, Maharam Lublin responds
to his criticism of Rav Yosef. Rav Chama
Bar Tuviah was, indeed, mistaken in
executing the woman through burning.
He should have used a completely
different method of execution. From the
fact that he used burning, we see that he

was attempting to implement the Torah-
based form of execution, about which he

was doubly mistaken.
Rav Yosef Karo (16th cen., Israel;
Shulchan Aruch, Choshen Mishpat
2:1) writes that a religious court has
permission to punish and even execute
above the letter of the law when the court
sees that people are promiscuous sinners.
Rav Yehoshua Falk Katz (early 17th cen,
Poland; Sema 2:3) adds that a court can
punish in this way an individual of that
nature, even if the criminal behavior
is not widespread. However, Pischei
Teshuvah (Choshen Mishpat 2:1) quotes
Rav Yonasan Eybeschutz (18th cen.,
Germany; Urim 2:1) who disagrees. He
argues that extra-legal execution serves
only as an extreme measure for public
welfare when lawlessness already exists.
If people generally obey the law, the
court has no right to take such an extreme
measure on individuals. Execution and
other overly strict punishments are
intended as a deterrent for future sin,
not as a punishment for past sin.

III. Individual Criminals
Rav Ya’akov Reischer (early 18th cen.,
Germany; Shevus Ya’akov 1:130) was
asked about a growing trend of grooms
falsely claiming to have found their brides
not being virgins, in order to obtain larger
dowries from their fathers-in-law. A rabbi
who caught someone doing this asked Rav
Reischer whether he may flog and fine

the groom as a deterrent to future would-
be false claimants. Aside from the theft

involved, the humiliation of a young bride
by her new husband is detestable. While
the actions of a few unsavory individuals
do not constitute widespread lawlessness,
the possibility that the trend may grow was
troubling.
Rav Reischer quotes Maharam Lublin
above, who says that a court may punish
extra-legally even if only an individual
flagrantly violates a law, similar to Rav Falk
Katz. If a court carefully and cautiously
evaluates the sociological situation and
concludes that they must set an example
to prevent societal decline, they may do
so. Even if there is no current emergency,
they may take action to prevent one from
developing. No judges should render this
decision lightly but neither may they
abdicate their responsibility to maintain
law and order.
In Maharam Lublin’s case of a blatant
murderer, he ruled that in theory the local
rabbi may recommend execution but he —
Maharam Lublin — was too distant to reach
an informed conclusion. Rav Reischer
similarly ruled that the local court may
punish harshly a falsely accusing groom
but must do so after careful deliberation
and taking into account the possibility that
a harsh punishment may push the criminal
to leave the fold entirely. According to these
authorities, when — and if — execution
and other harsh punishments serve as
effective deterrents, they may be imposed
even today, albeit within governmental
regulations. But if they do not effectively
deter crime, then these punishments have
no place in our society.