The Torah established the death penalty as punishment for those who commit the following transgressions: “For adulterers, both men and women; for those who have sexual relations with an animal; for those who blaspheme using the name of God; for those who do not keep the Sabbath; for children who hurt or curse their parents; for incorrigible rebellious children; for homosexuals; for those who have incestuous relations; for premeditated murderers; for rapists; for those who steal slaves; for those who do not arrive virgins on their wedding night; for kidnappers; for false prophets; for those who perform human sacrifices; for those who practice witchcraft and divination; for those who worship idols.”

It is a very long list for this punishment to have almost never been applied in practice throughout the history of the Jewish people. The sages in the rabbinic era set conditions so difficult to meet that they practically prevented any Jewish court from enacting it. The two witnesses required had to present completely consistent and very exact testimony (at what time it happened, in what exact place, how the person was dressed, etc.). It also had to be established that the guilty party was fully aware that what he was going to do was punishable by losing his life. And it was the responsibility of the witnesses to warn him of his transgression and its consequences, and the transgressor also had to acknowledge that he was duly warned. In addition, the Sanhedrin that would have to hear these cases had to be composed of 23 sages of the highest reputation and honorability (Masechet Sanhedrin 1.4).

It is written in the Talmud, Mishnah Makkot 1:10: “A Sanhedrin that executes a person in seven years is a destructive court. Rabbi Eleazar ben Azariah said: “One in seventy years.” Rabbi Tarfon and Rabbi Akiba said that if they were members of a Sanhedrin, the death penalty would not be applied to anyone. Rabban Shimon ben Gamliel warned: “This would multiply the murderers in Israel.” Rabban Shimon only questioned the case of murder, but not in other cases. Today, all denominations within Judaism have spoken out against capital punishment and in Israel it is prohibited except for treason in times of war and for convicted Nazi criminals.

What does all this teach us? How is it possible that the rabbis put up so many obstacles to prevent a biblical commandment from being fulfilled? Has the Torah made a mistake? The Torah considered in those times that committing such actions was reprehensible and wanted to emphasize this in the clearest and most forceful way. But the rabbis realized that on the one hand, not all transgressions were equally serious (some of them we do not see as transgressions against the spirit of Judaism today) and on the other hand, the punishment was too harsh and irreversible. All of this tells us that the interpretation of the Torah is a continuous process of adaptation and adequacy of the mitzvoth to each time and place. Therefore, capital punishment, a commandment designed never to be applied.

By Marcos Gojman

Bibliography: Various sources including The Death Penalty in Rabbinic Teachings by Rachel Biale