Seasons - Then and Now

For the week ending 2 February 2019 / 27 Shevat 5779

Parshat Mishpatim

by Rabbi Yosef Hershman
Library Library Kaddish

The Death Penalty in Jewish Thought

Special attention must be given to the way the Torah describes imposition of the death penalty. From a close examination of the language, the purpose and justification for the death penalty becomes self-evident.

If there is a fatal injury [in a fight between two men], you must give life for life. In the prior verse, describing a non-fatal injury, the directive is that a fine is imposed, and he shall pay it as the judges determine. Note the difference in the subject. When the perpetrator is fined, he is to pay. But when the perpetrator is to be killed, you are to give life for life. You, the Jewish community, shall give life for life. In the case of one who must pay compensation, he is responsible to pay. The court merely determines the amount to be paid, but it is his obligation to pay. Not so in the case of who is liable to pay with his life. It is not his responsibility to give up his life; indeed it is not his to give. In fact, he may not promote his own conviction, and the law will not even recognize his self-incrimination. Only before the execution of his death sentence is he encouraged to confess, specifically for atonement purposes.

Life and death are in G-d’s hands alone, but in certain cases He has entrusted the community, through the Torah, with the authority to end life. It says here and you shall givelife, not and you shall take life. The execution of the death sentence is called “giving” life, to negate any attempt to regard this penalty as a way of taking revenge on the criminal, or as a deterrent, or as repayment in any kind. His life is not “taken.” Nor has he forfeited his life.

The fact that life is “given” through the administration of the death penalty supports the concept that the death penalty is a form of restitution. It repairs a breach of justice, a breach of law, and a breach of human dignity that was damaged in the personality of the victim. The community is called upon to give and surrender the criminal’s life for the sake of repairing these breaches created by the crime.

That the community “gives” or “surrenders” the life implies that the life of the individual belongs to G-d and the community, and that with every death, even with that of a murderer, the community suffers a loss — yet the duty of restitution takes precedence.

Sources: Commentary, Shemot 21:2

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