Capital Punishment 69 BE cts sR Ev ARAL 10 ESL A ARE

In the post-talmudic era, too, Jewish courts were sometimes empowered to impose the death penalty.(Asher ben Jehiel , also known as Rosh ) attests to the practice in 14™ century Spain ,* and himself imposed it on an informer. Maimonides declares that killing informers or handing them over to non-Jews to be killed was a regular occurrence“in the cities of the West.” Jews were also granted the power to impose capital punishment in North Africa and 17% century Lithuania .

One scholar summarized as follows,“From all of these deci­sions and incidents we have seen that in every period the impor­tant rabbinic authorities of Israel , men of renown, imposed capital punishment on Jewish criminals if they considered the matter imperative to deter wrongdoers.”#” Another, Justice Haim H. Cohn of the Supreme Court of Israel , put it this way,

Though in strict law the competence to inflict capital punishment ceased with the destruction of the Temple, Jewish courts contin­ued, whenever they had the power... to pass and execute death sentences... not even necessarily for capital offenses as defined in the law, but also for offenses considered in the circumstances pre­vailing at the time, as particularly dangerous or obnoxious... In order not to give the appearance of exercising sanhedrical jurisdic­tion, they would... normally refrain from using any of the four legal modes of execution; but isolated instances are found of ston­ing, slaying and strangling, along with such newly devised or imi­tated modes of execution as starvation in a subterranean pit, drowning, bleeding or delivery into the hands of official execution­ers. In most cases, however the manner in which the death sen­tences were to be executed was probably left to the persons who were authorized or assigned by the court to carry them out.

Clearly, just as the rabbis approved of capital punishment in theory, they utilized it in practice, though seemingly rarely and with reluctance. While the Talmud indeed contains two antithe­tical bodies of material on capital punishment, it is a mistake to view one as theoretical and the other as practical. Rather, they are both largely theoretical and reflect the classic tension between Midat hadin and midat harakhamim. The Talmud ’s gory and detailed accounts of execution methods amount to a rabbinic relief map of“the attribute of justice.” Strict justice demands the death of the sinner for serious crimes against people and God . Talmudic restrictions on capital punishment constitute a rabbinic atlas of“the attribute of mercy.” Mercy pleads for a concession to human weakness and an opportunity to do teshuvah.