Getting away with murder
Apart from beautiful poetic structure of Genesis 9:6 (”שֹׁפֵךְ דַּם הָאָדָם, בָּאָדָם דָּמוֹ יִשָּׁפֵךְ”, “the spiller of man’s blood, his blood by man will be spilled”1), it seems to support quite radical capital punishment, or surely avengance at the hand of man. Most modern societies would not support such a simple policy; even early translations and interpretations do not take it literally; but Rabbinic Judaism tends to quite the opposite, possibly to a fault.2
Onkelos either has great distaste in poetry,3 or was worried by a literal reading. He “translates”:
דְיֵישׁוֹד דְמָא דַאֲנָשָׁא בְסָהֲדִין, עַל מֵימַר דַיָנַייָא דְמֵיה יִתאֲשַׁד
The spiller of man’s blood with witnesses, upon the word of judges his blood will be spilled.
Pseudo-Jonathan takes this another step and, while saying that the court may kill with evidence, without witnesses, “the Master of the World will surely take retribution on him on the great day of judgement.”4
The rabbinic system in effect follows Pseudo-Jonathan, but qualifies it to two valid witnesses who had warned the killer immediately prior to the act and who had witnessed its perpetration after the warning was ignored. Resultingly, it becomes very difficult to convict a murderer and — as I have heard many rabbis boast — a Sanhedrin that committed someone to death once in seventy years was considered bloody.5 That is, the death sentence was extremely rare (as it should be!).
But this makes no sense to me: the reason for not performing execution is not because of the sanctity of life, it is because the person cannot be convicted under the strict requirements of rabbinic courts. Letting all but one murderer in seventy years go unpunished6 does not make the justice system moral, it makes it dysfunctional!7 Is there a system for handling the majority of cases where the heavy proof required could not be burdened? Or do we leave justice to God and killers on the street as Pseudo-Jonathan suggests?8
Am I the only one who has agonised with this question when Rabbis have proudly praised the moral supremacy of the Sanhedrin?
Notes:
- Or possibly this could be read as “by the man” in which case it is the man who was killed, or his kin. But definite “הָאָדָם” is used throughout Genesis to refer to mankind. [↩]
- I know the verse is applying to all of humanity, and therefore is Noahide law, but Jewish law still has to qualify under the Noahide criteria. [↩]
- For a targum that follows the poetic shape, but not the alliteration, see the Fragmentary Targum: “דשפך אדמיה דברנש, על ידי ברנש אדמיה משתפך”. The Peshitta and Neofiti also come close. [↩]
- In full: “דישוד דמא דאינשא: בסהדין, דיינייא מחייבין ליה קטול; ודישוד בלא סהדין, מרי עלמא עתיד לאיתפרעא מיניה ליום דינא רבא.” I also wonder if this “great day of judgement” comes in death, afterlife, apocalypse, messianic age, or otherwise. [↩]
- Mishnah Makkot 1:10:
סנהדרין ההורגת אחד בשבוע נקראת חובלנית. רבי אליעזר בן עזריה אומר: אחד לשבעים שנה. רבי טרפון ורבי עקיבא: אומרים אילו היינו בסנהדרין, לא נהרג אדם מעולם. רבן שמעון בן גמליאל אומר: אף הן מרבין שופכי דמים בישראל.
A Sanhedrin that executes one person in seven years is called murderous.
Rabbi Eleazer ben Azariah says: One person in seventy years.
Rabbi Tarfon and Rabbi Akiva says: If we were in the Sanhedrin, no person would ever be executed.
Rabbi Simeon ben Gamaliel responds: Yes; and thus they would increase spillers of blood in Israel.[↩]
- In this world, at least; with or without the death sentence. [↩]
- In the actual Mishnah brought in the preceding note, we see that Simeon ben Gamaliel had this idea too, although with support for capital punishment. [↩]
- The verse itself seems quite explicitly against leaving justice to God on such matters, and implies at least an effective justice system, or at most individual zealous avengance. [↩]
Ah, but the Sanhedrin system has a way of compensating for the fact that most cases will end in acquittal, see the Mishna, about 2/3 into Sanhedrin I think — specifically for *murder*, if there is enough evidence to know that someone did it but not enough to execute I think you’re put in jail and effectively killed by having your stomach burst — the whole point of this is to stop societal desintegration specifically with people who do violence (as opposed to any other things that are capital cases).
Comment by Michael — 18 October, 2007 @ 8:28 am
Well, that’s what I wanted at least– a punsishment for the unconvictable offender. Although it’s not a particularly satisfying answer. As usual I should have researched this better…
Comment by Joel — 18 October, 2007 @ 5:34 pm
That’s rather a risque (is that how you spell it) link you have there
Anyway what would have been a satisfactory answer?
Also: the king has the power to put anyone to death for any reason, including for the sake of preserving public order. Also there is a mechanism in which the rabbis have the power to impose a rabbinnic death penalty even when it’s not mandated by the Torah, eg. see the dude in Mas. Shab who got killed because he rode a horse (observance was lax so the rabbis decided to make an example of him). I don’t think this mechanism would be satisfactory either though…..
Comment by Michael — 19 October, 2007 @ 8:18 am
I wasn’t sure whether to note how risqué the link was… It is not a satisfactory answer in that it doesn’t make me feel much better about the situation. But I guess it doesn’t mean people get away with murder…
Comment by Joel — 19 October, 2007 @ 10:27 am
“But this makes no sense to me: the reason for not performing execution is not because of the sanctity of life, it is because the person cannot be convicted under the strict requirements of rabbinic courts. Letting all but one murderer in seventy years go unpunished6 does not make the justice system moral, it makes it dysfunctional!”
Have I missed what your problem/objection is to the system? That the very sanctity of life demands that we not put anyone to death, ever? As I see it - the alleged murderer cannot be put to death because of the rabbinic stringencies that are there BECAUSE of the sanctity of life. Is it impossible to connect the two?
The very sanctity of life in Judaism necessitates Rabbinic strictures for putting people to death. Whether extant and understood at Sinai or inferred after by the sages, that’s something else.
As I understand it, the Torah informs the appropriate punishment, that as a general rule fulfils G-d’s manner of middah k’neged middah. That is, the murderer should be put to death means that he should be made to endure the same (perhaps one can apply here also ‘who can say his blood is redder’ than anothers’? Murder is one such a statement of value).
G-d being merciful didn’t intend eye for an eye, as we know, but the Written Torah nevertheless intends to teach values. What one WOULD have to pay, so that the gravity of one’s crime can be understood (hopefully before the action). Torah Sh’Biktav is meant to be severe for this reason. However, no one wants to actually do this - sentence a man to death. After all, the sanctity of life is made evident elsewhere in the Torah, and thus it presents the rabbis with some balancing. So they bend over backwards to try get the dude off, and let G-d deal with it later.
And yes, as Michael mentioned, if people become lax, hora’ath sha’ah can be enacted. It could be argued that hora’ath sha’ah should have been enacted more frequently, so that the adequacy and functionality of the law can be maintained. But that’s a harsh thing to say, I’ll admit.
Comment by MikeS — 20 July, 2008 @ 4:25 pm