Naftali Rothenberg
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Death penalty contradicts Judaism

If we start with terrorists, we risk cheapening human life, and degenerating to a new moral low
Illustrative. (via Shutterstock)
Illustrative. (via Shutterstock)

The early release of cruel murderers raises serious moral questions, in addition to the anger and deep pain among the families of the murdered and the public. Perhaps it is not surprising, then, that the call for the imposition of the death penalty on murderers returns to the agenda almost after every terrorist attack in which the terrorists are caught alive. Recently the government announced legislation that would extend the authority to impose the death penalty to civil courts.

Let us leave aside for a moment the debate over whether the death penalty functions as a successful deterrent, and whether there is a global security significance to the potential murder of released prisoners before the end of their sentences. The fundamental question is whether in Israel, the Jewish nation-state, we must allow the court to impose the death penalty.

The defense establishment has a moral right, and also the legal ability, to use violence, and even to take the lives of people who intend to harm Israel’s sovereignty and the welfare of its residents. This ability is a condition for the existence of a state. That is, the state has the right to take human life in order to fulfill its duty to protect its citizens from outside and domestic enemies. We will leave the difficult decision on the restrictions on the use of force necessary to maintain our sovereignty to the security forces, whose duty it is to decide what action is legal and what is not. Questions of life and death must remain the responsibility of forces that are subordinate to an elected civilian government, and subject to criticism by various inspection bodies.

The judicial system functions in a completely different arena. While it also serves as an important tool for maintaining public safety, the conditions under which it operates are different. The court examines the evidence presented before it under sterile conditions. That is, the legal process is independent. The court does not have weapons, but the law gives it great power to determine the fate of the person facing it.

The judicial system should not be granted unlimited power. It is wrong to allow a flesh-and-blood judge to issue a final verdict that cannot be reversed. This is the meaning of the sanctity of life: wherever we can, we make it clear to ourselves in society that we do not grant the state, the court, the right to take the life of a person, even one whose terrible deeds violated this sanctity. In war, this principle cannot be implemented, and therefore the security forces are allowed to kill our enemies. In the courtroom, where the defendant no longer poses a threat, we are able to let the sanctity of life be superior to other potential concerns.

This moral position derives from the Jewish tradition, which not only strongly opposed the execution of criminals by the halakhic judicial system, but also sought to facilitate parallel justice systems (the king’s trial, for example) and to commute the punishments of those whose guilt was determined on the basis of questionable evidence. Even today, the Torah sages are concerned about the “slippery slope.” The concern is that the death penalty initially imposed on terrorists, on murderers, would later be imposed on the abominations of rapists, accessories to murder, and others. We would risk executions becoming routine, human life turning cheap, and Israel would degenerate into a moral low.

The law that is being formulated in the government has so far won the support of Yisrael Beiteinu, the Likud and Kulanu. However, the coalition agreement does not oblige United Torah Judaism and Shas. If these parties operate on behalf of Torah opinion and the authority of great Torah scholars, they cannot be part of a coalition that will allow the imposition of the death penalty in Israeli courts.

As Jews who uphold a tradition that sanctifies human life and rejects violence and cruelty against any person in principle, we must oppose the fact that in the Jewish nation-state, the court can sentence a person to death. These are our values, and we must live up to them even when the sight of murderers being released engenders difficult feelings.

We must not turn our courts into another system that has the authority to order the taking of a person’s life – not even the life of the worst murderer.

About the Author
Rabbi Naftali Rothenberg is the rabbi of Har Adar township, Israel, and a senior research fellow at the Van Leer Jerusalem Institute
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