29 Oct 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.