This week’s parasha presents us with a law concerning capital punishment which, at face value, seems irrelevant to us, but, in fact, plays a significant role in both Jewish burial practices and in our appreciation of the value the Jewish tradition places on human life. The Torah commands: And should there be against a man a death sentence offense and he is put to death, and you hang him on a tree, you shall not let his corpse stay ((lo talin) the night on the tree but you shall surely bury it on that day, for a hanged man is God’s curse (killat Elokim), and you shall not pollute the soil that the Lord your God is about to give you in estate.” (Deut. 21:22-23)
It is unclear from this verse whether the “hanging” was done as a form of capital punishment or whether the hanging was done post-mortem. There is, however, ample evidence from the ancient world that leaving corpses to the elements was used as a “second punishment” by the powerful to embarrass and to inflict mental anguish on the living. In any case, for the rabbinic sages, this verse refers to hanging which was preformed after the death penalty had been carried out. (See Sifrei Devarim 221, Finkelstein ed. pp. 253-4) Rabbinic legislation called for capital punishment to be carried out towards evening after which the body would be posted for a brief time, taken down quickly and then buried before sundown. (Sanhedrin 46b) Any prolongation of the period before burial was considered a transgression known as “bal talin” (delaying the burial). In traditional Jewish burial practice, this prohibition is still in effect. (Shulhan Arukh Yoreh Deah 347:1)
The rationale for this prohibition is founded in the rabbinic understanding of the words “kililat Elokim” as an offence against God, namely, leaving the body unburied is somehow a defamation of God’s dignity. The Talmud illustrates this idea with a colorful parable from the period of the Mishnah: “It has been taught [in a Baraita]: Rabbi Meir said: A parable was stated – To what is this matter comparable? To two identical twin brothers [who lived] in one city; one was appointed king, and the other took to highway robbery. At the king’s command they hanged the brother who became a highway robber. But all who saw the hanged man exclaimed, ‘The king has been hanged!’ whereupon the king issued a command and the body of the brother was taken down”. (adapted from Sanhedrin 46b)
In this parable, the king represents God and the other brother a criminal. There are two ways to understand why the king might be offended. On the one hand, the people might confuse the king with the thief and assume the king to be a criminal but more likely the king is embarrassed because his lookalike is being publicly shamed. Without getting too deeply into the idea that being created in the image of God means looking like God, the point being made here is that even denying human dignity to a criminal is an offence to God’s dignity. If this is true for a criminal, it is true for all people. And for the Jewish tradition this idea is as important in life as it is in death.