MISHPATIM (Exodus, 21:1-24:18) — “A Capital Idea”

Regardless of your position on capital punishment, it seems possible to find support from the Torah.

This week’s Torah Portion is replete with prohibitions for which the death penalty applies.   Those who engage in murder, (Exodus, 21:14) kidnapping, (Ibid, verse 16) injuring (verse 15) or cursing (verse17) one’s parents, witchcraft, (22:17) bestiality (verse 18) or idolatry (verse 19) can anticipate an appointment with the Executioners.   The Torah makes it abundantly clear that a person who chooses to ignore its guidelines for life runs the risk of forfeiting that life.

On the other hand, we find in the Talmud that the Sages went to great pains to avoid carrying out the death penalty.  In fact, the Talmud (Makkos, Chapter 1, Mishnah 10 reports that a court that carried out a death sentence more than once in seven years is considered destructive.   Rabbi Tarfon, quoted in the same Mishnah, disagrees, and says that that rule applies to a court that kills more than once in SEVENTY years!  Rabbi Tarfon and Rabbi Akiva stated that had they been members of a court ruling capital cases, no one would ever have been executed. They would have been so exhaustive in their cross-examination of witnesses, that they would eventually find a flaw.

If that is the case, what is the point of capital punishment being mentioned in the Torah?  Is this a Mitzvah that is totally theoretical in nature?!

Igros Moshe, (literally, “Letters of Moses”) a collection of responsa from Rabbi Moshe Feinstein, of Blessed Memory, contains a letter (Choshen Mishpat 2:68) that Rabbi Feinstein wrote in 1981 to “Sar Hamedina” – Literally translated, “The Prince of the State.”  (I assume that refers to President Reagan or New York Governor Hugh Carey).  Rabbi Feinstein was responding to a question as to the Torah’s view on capital punishment.

Rabbi Feinstein writes:

“Firstly, let me offer my feelings of love and reverence to the Prince of the State in the matter that he wants to know the view of the Torah that was given by G-d, may He be blessed, through our teacher Moses, explained through the Oral Torah, that was handed down from the Sages of each generation to the Sages of the next generation, until it was transcribed in the Talmud and the Poskim (Deciders of Law), Maimonides and the Shulchan Aruch and elsewhere, which is the True Knowledge; and also that the Prince of the State has faith in me that I am able to respond accurately and properly…”

(What an opening!  We could skip the rest of the letter and learn so much about how a Torah Sage addresses a secular political leader.)

Rabbi Feinstein goes on to explain that the Torah provides capital punishment for sins such as murder, kidnapping, certain types of sexual promiscuity, and the worship of the sun, the moon, trees, and rocks, etc., because such behavior leads to a general breakdown of morality.  The reason for capital punishment, explains Rabbi Feinstein, is neither out of hatred for the sinner nor as a way to “save the world.”  The reason, quite simply, that the Torah prescribes the death penalty for certain sins is in order to emphasize the gravity of the crime.

Capital punishment per se is not a great deterrent.  How could a dust-and-cobweb-covered electric chair be a deterrent?!  Reality is that in the overwhelming majority of cases the perpetrator was not executed.  The Torah is describing these violations as being so totally beyond acceptability that the sinner deserves, at least in theory, to die.  The Torah wants us to understand what terrible crimes murder and kidnapping are.  When one bows to a tree or desecrates the Sabbath (yes, Shabbos violation is on the list as well! – Exodus 35:2) he is negating the role of G-d in the world. That is totally unacceptable.

Rabbi Feinstein also described the various hurdles that stood in the way of a prosecutor with execution in mind.  He makes it very clear that in practice, capital punishment was almost never carried out.  He writes that our People refrained from carrying out capital punishment even in those countries that might have allowed us to do it.

[It is important to point out that Rabbi Feinstein added a disclaimer that all this applies only when murder, etc. isn’t rampant.  However, when there is an epidemic of these types of behavior, society must take more drastic measures to set an example.  So, in the end, it is not totally clear from this letter whether or not Rabbi Feinstein would support capital punishment in the U.S. today. I assume that he probably would.]


It seems pretty clear, in my humble opinion, that G-d never meant for people to be executed when violating these Commandments.  In fact, the Talmud tells us that when non-observance became rampant, the Sages voluntarily disqualified themselves from adjudicating capital cases.  They feared that they would be forced to start killing people, an option that was unthinkable.  The idea was to send a message to those who considered taking liberties with Jewish Law.

The message is that G-d takes His Torah very seriously, and expects us to do the same.

Have a great Shabbos.
Rabbi Yerachmiel Seplowitz

To leave a comment about this article, or to read other readers’ comments on this article, scroll down past the archive links.

“Voting ‘Against’ G-d, or, “Whose Torah IS This Anyway?!” (2010)

… The Talmud records a fascinating dispute between Rabbi Eliezer and his colleagues…

Rabbi Eliezer presented logical argument after logical argument to support his view, but to no avail. The Rabbis disagreed. Rabbi Eliezer, a holy man, decided to miraculously defy nature in order to bring home his point. … Finally, Rabbi Eliezer pulled his “Heaven Card.” “If I am right, let the Heavens prove it!”

A heavenly voice boomed in reprimand of the Sages: “Why are you arguing with Rabbi Eliezer, when the Law, in fact, is always in accordance with his opinion?!” …

They wouldn’t budge. Rabbi Joshua stood up and quoted from Deuteronomy (30:12) “It (the Torah) is not in Heaven!”… Pretty gutsy, no? …

Read more.
“We Wish You a Merry Shabbos???” (2009)

… One Shabbos, he walked into shul and found it to be packed. …it was a non-Jewish holiday. Since stores were legally required to be closed, the otherwise-Sabbath violators took advantage of the opportunity to come to shul, along with their children…

“No doubt,” said the rabbi, “your children must have asked you, ‘Why is this Shabbos different from all the other Shabboses of the year?’

“And you must have answered, ‘This Shabbos is greater than every other Sabbath because today is the birthday of the founder of another religion…’”

Read more.
“Let’s Make a Deal” (2007)

Okay, I admit it! I am a criminal. I am a lawbreaker. I have confessed in open court. I have thrown myself on the mercy of the court and pled guilty to violating the law…

I got to watch some criminal proceedings too. The prosecutor, lawyers, and judge all played their parts professionally. As each one recited his scripted line, the others nodded and scribbled little notes on their legal pads in their legal folders. One young man was accused of breaking and entering. The prosecutor offered to reduce the charge to a less severe one. Scribble, scribble. The judge agreed. Scribble, scribble. Then the judge said, “According to the statutes, you have to give a valid reason for this type of reduction.” Scribble, scribble.

The prosecutor’s response?

“In the interest of Justice.” Scribble, scribble.


Read more.
“A Capital Idea” (2005)

Regardless of your position on capital punishment, it seems possible to find support from the Torah.

This week’s Torah Portion is replete with prohibitions for which the death penalty applies …

On the other hand, we find in the Talmud that the Sages went to great pains to avoid carrying out the death penalty … Rabbi Moshe Feinstein, of Blessed Memory… wrote in 1982 to “Sar Hamedina” — “The Prince of the State.” (I assume that refers to President Reagan or New York Governor Hugh Carey). Rabbi Feinstein was responding to a question as to the Torah’s view on capital punishment…

Read more.
“Oh Say, Can you Sue?!” (2004)

…Jack and Jill lived up the hill.

Each of these two neighbors owned an ox. Jill’s ox was out in the field one day, calmly grazing on grass. Suddenly, out of nowhere, Jack’s ox charged, ramming his horns into his unsuspecting neighbor. To Jill’s utter shock, her ox lay there in the field, and bled to death…

Jill hired Johnnie Cochran, who told the jury how Jill’s life had been shattered by the loss of her livelihood. By the time the trial was over… Jack was ruined, and Jill bought a condo in Boca. 

Now, let’s change the scenario a bit.

Jack and Jill are now Yaakov and Yocheved. Instead of going to court, Yocheved, a religious woman, went to … a rabbinic tribunal for justice… She was dismayed by the response…

Yesterday, Yocheved owned $1000 worth of ox. Today she has $500 cash and $50 worth of dead ox. So much for the condo in Boca. …

Read more.
“Double Trouble” (2003)

What is the best way to discourage theft? … The Torah has a very unique way of punishing someone for stealing. … the Torah makes sure that his efforts will backfire…

 Read more.
“Your Ivory Tower Is Blocking My Driveway!” (2002)

When we overly involve ourselves in the sublime, we run the risk of ignoring the mundane…  How do we explain the occasional unfortunate situation of a religious person who is  dishonest? 

Read more.
“Human Rights: Body Piercing and Slavery” (2001)

Jews have always been known for their spirit of social consciousness. We have always been at the forefront in calling out for fairness to all people. We marched with Martin Luther King in Selma… After all we’ve been through, we know what it’s like to be deprived of civil liberties. We would never want to see anyone subjugated or oppressed in any way.

… Where is the outrage?! Where is the J.C.L.U. (Jewish Civil Liberties Union)? Where is the hue and cry from the AFL/CIO, protesting the cruel and unusual treatment of a worker? Is this why G-d took us out of Egypt, so we could be subjected to harsh working conditions and forced body piercing?!!…

Read more.

 This is the weekly message at www.torahtalk.org.   Copyright © 2000-2014 by Rabbi Yerachmiel Seplowitz.  May be reprinted. Please include copyright information.


Rabbi Yerachmiel Seplowitz is a Mohel (www.Brisrabbi.com)  and chaplain in Monsey, New York. For information about scheduling a Bris or a lecture, or just to say hello, call (800) 83MOHEL.


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Published in: on February 2, 2005 at 8:34 am  Leave a Comment  

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