Project Genesis

The Jewish Legal System

Criminal Law

Capital Punishment in Practice?

Question: I heard a radio host say that the punishments mentioned in Leviticus (e.g. stoning someone to death for some horrible act, etc) were only mentioned to show how egregious God thought such acts were, but that the punishments were never meant to be carried out and probably never were. What? Did I hear this correctly? Is there any truth to this? If so, where can I find reliable discourse on this topic?

Answer: Thank you for your excellent question.

Capital punishment certainly was practiced in ancient Torah society until the Romans took over in the days of the Second Temple. The Bible itself records a few accounts of capital punishment, notably Leviticus 24:23, Numbers 15:36, and Joshua 7:25. However, our Rabbis say that these cases are mentioned because they are, essentially, “newsworthy” (i.e. it was very, very rare for capital punishment to be actually carried out, so the Bible makes a point of mentioning it when it actually happened).

The Bible says, “On the evidence of two witnesses or three witnesses, he who is to die shall be put to death; he shall not be put to death on the evidence of one witness” (Deuteronomy 17:6). The Rabbis tell us that in order for a person to be executed, the witnesses must be valid (there are many laws about the validity of witnesses, such as the witness must be male, adult, observant of religious practice, and the two witnesses may not be related to each other). Additionally, they must warn the offender, specifying exactly the sin he is about to commit and the punishment for it. If the potential offender ceases with the warning, he is exempt from the death penalty. It is only if he is brazen and continues saying “I don’t care, I will do it anyway”, that he will get the death penalty. (There are some exceptions, though). As you can see, it is very difficult for all of these conditions to be met.

The Talmud in Tractate Makkoth 7a says the following: “A sanhedrin (high court) that executes someone once in seven years is considered destructive. Rabbi Eliezer ben Azaria says once in seventy years [is considered destructive]. Rabbi Tarphon and Rabbi Akiva say, ‘If we were in a Sanhedrin, we would never execute a person’, Rabban Simeon ben Gamliel says, ‘They are causing murder to increase in Israel’ [by eliminating the deterrent of capital punishment].”

The Talmud records a few cases of capital punishment, particularly in tractates Sanhedrin and Makkoth, where the laws of capital punishment are discussed in depth.

Nonetheless, the Bible does mention the case of executing a “rebellious son” in Deuteronomy 21:18-21. Regarding this case, the Talmud asserts that, due to the fact that the conditions are too difficult to meet, “It never actually happened, and never will.”. However, this does not apply to all cases of capital punishment, rather only to this particular case. The other cases did occasionally end with execution, but that was very rare. [Ed. – It should be noted though that the High courts were empowered to create stricter laws of punishment if society was in need of a stronger deterrent. So, although the basic laws of capital punishment might appear quite lenient and might not serve as a proper deterrent, the court enacted punishment would insure that the proper deterrent was in place.]

Thus, the statement, “They probably never were carried out,” is patently false, inasmuch as both the Bible and Talmud say they were, albeit very rarely. As far as saying they were “never meant to be carried out”, that could be an accurate statement, inasmuch as God does not want us to commit these sins.

All the best.

Rabbi J. Kolakowski

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