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Cruelty of Capital Punishment

I have heard people claim that the death penalty of the Torah was barbaric, and man has progressed since that time, which is why it is no longer done. It doesn’t sound right to me that laws of the Torah should fall out of practice. Is the claim I heard correct?

The Aish Rabbi Replies:

You are right that the Torah’s laws are eternally binding. Man has certainly not “advanced” beyond observing the Torah in modern times. Any statement found in the Torah is an expression of God’s eternal and timeless values. They never have and never will go out of style.

The reason there is no death sentence today is technical. Only a major court of 23 ordained judges can sentence a man to death. Today we do not have true ordination (semicha) – which can only be granted by a rabbi who himself was ordained – in an unbroken chain going back to Moses.

In terms of the severity of the death sentences themselves, as a point of fact, most of them are fairly benign (see Mishna Sanhedrin Ch. 7 for detailed descriptions). The Talmud further applies the verse “Love your fellow as yourself” (Leviticus 19:18) even to condemned felons, and derives based on it that whenever possible we apply their sentence as lightly as possible (see e.g. Talmud Sanhedrin 45a). The Talmud further states that a narcotic was administered to the condemned man before his execution (Sanhedrin 43a).

Furthermore and most interesting, although the Torah outlines different types of capital punishment for a wide array of serious sins, in practice they were almost never administered. The Mishna states that if a court would actually put a person to death so much as once in seven years it would be considered a “murderous” court (Makkot 1:10). (Another opinion said that once in 70 years was the upper limit, while other sages stated that had they served, the court would have never carried out a death sentence.)

There were a number of legal reasons which I won’t get into why sentencing a person to death was historically so uncommon. But more broadly, this tends to verify an important principle in Jewish law. The written Torah, for all its breathtaking beauty, was not intended as a practical guide for running a society. It is rather the moral and ethical pronouncements of God, a statement of God’s absolute and eternal values. The Oral Law, by contrast – the Mishna, Talmud, and related works – serves as God’s practical guide for day-to-day living. By stating the severe punishments deserved for certain acts, the written Torah teaches us how heinous those acts are in God’s eyes. But in practice, the punishments were rarely as severe as the Torah outlines.

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