Ask the Rabbi: Does the Torah support public executions?

A close examination of rabbinic interpretations of these texts reveals that the Sages greatly minimized the role of the masses, while elevating the role of a formal judiciary in this process.

By RABBI SHLOMO BRODY
A close examination of rabbinic interpretations reveals that the Sages greatly minimized the role of the masses (photo credit: PUBLIC DOMAIN FROM THE BRITISH LIBRARY’S COLLECTIONS 2013)
A close examination of rabbinic interpretations reveals that the Sages greatly minimized the role of the masses
(photo credit: PUBLIC DOMAIN FROM THE BRITISH LIBRARY’S COLLECTIONS 2013)
Among the many atrocious actions performed by Islamic State, Hamas and other extremists, one of their more abominable is the public execution of “infidels,” “traitors” and other sinners. The horrific scenes raise difficult questions for Bible lovers who might believe that a similar type of behavior is seemingly condoned in the Torah.
We will argue that such a construal is inconsistent with classical Jewish law, even as it remains important to understand the interpretive process that created this understanding of the texts.
The Torah seemingly mandates public executions (usually in the form of stoning by the masses) on several occasions.
Take, for example, the case of a man who had willful sexual relations with an engaged woman. “You shall take the two of them out to the gate of that town and stone them to death.... Thus will you sweep away evil from your midst” (Deuteronomy 22:24).
Other crimes with similar punishments include individual idol worshipers (ibid.17:6), those who incite to such behavior (ibid. 13:10), one who sacrifices a child (Lev. 20:2), and the wayward and rebellious son (Deuteronomy 21:18-21). The Torah further reports that while in the desert, the Israelites stoned a blasphemer (Lev. 24:13) and a Sabbath violator who gathered wood (Numbers 15:36). As we read, “The whole community (edah) took him outside the camp and stoned him to death.”
While the Torah clearly points to the deterrent aims of such public executions (Deuteronomy 21:21), some biblical commentators further argue that the public role of the community might additionally serve as a national embracement of justice. Either way, it would appear that the Torah gives the masses a prominent role in executions.
Yet as Devora Steinmetz and Beth Berkowitz have documented, a close examination of rabbinic interpretations of these texts reveals that the Sages greatly minimized the role of the masses, while elevating the role of a formal judiciary in this process.
Take, for example, the case of the killing of the blasphemer and wood gatherer.
According to some Sages, only the witnesses to the sin performed the execution, but not the people. According to others, this was a unique historical event in which the masses partook in the execution, yet the normative law (ledorot, for the generations) restricts such actions to the court. According to Rabbi Naftali Berlin, this meant that future executions would be done with the knowledge of the masses, but only in the presence of the court.
Similar types of interpretations were applied in the other cases as well. With regard to child sacrifices, for example, the onus of executing the villain was placed squarely on the formal judiciary, with the masses given authority to assist only if the court lacked sufficient power. Berkowitz has aptly called this hermeneutical trend the “institutionalization” of executions. That is to say, the killing must happen within the confines of the authorized institution, namely the court.
Yet as Yitzhak Brand has noted, this does not mean that the masses were entirely removed from the process. In the cases of the wayward son and the adulteress fiancée, the midrashim assert that the stoning is performed by agents of the court, with the people on the sidelines. Furthermore, the court may publicize the execution in order to increase the deterrent effect.
In this respect, the system of the Sages is similar to contemporary executions within many states in America, in which public representatives witness an execution to ensure proper procedure is performed, while loved ones of the victims, if so desired, may witness purported justice executed on the killer.
Yet within the rabbinic worldview, mass stoning will not take place. In fact, this trend of institutionalization is extended to the case of the so-called blood redeemer, in which relatives of a victim unintentionally slain may take vengeance on the killer before he reaches a city of refuge (Numbers 35). According to the Sages, the blood redeemer may not act until the killer has been convicted in court. Even then, the community is entrusted with helping the killer to reach the city of refuge safely. In short, attempts are made to ensure that justice is executed, not a lynch.
How does one explain this mode of interpretation? Undoubtedly, some might assert that the Sages were morally perturbed by the prospects of such mass executions and therefore aimed to limit them. Yet I suspect that what ultimately propelled their thinking was a deep understanding that the edah (“the nation”) is ultimately represented by its national leaders and judges, who are authorized to execute justice on behalf of the people. The Sages taught that justice must indeed be performed by the people for the people, but that this is done best when performed in a civilized manner through just institutions and trained authorities, thereby preventing lynches by bloodthirsty masses.
When Islamic State and other fundamentalists internalize this rabbinic legacy, the world will find itself in a better place.
The writer directs the Tikvah Overseas Students Institute and is a presidential fellow at Bar-Ilan Law School. His anthology of columns, A Guide to the Complex: Contemporary Halakhic Debates, received a National Jewish Book Award. Facebook.com/RabbiShlomoBrody