Opposing Israel’s Death Penalty: When Human Rights Override Torah Interpretation

In cases where the obligation to uphold human rights conflicts with interpretations of the Torah, international ethical standards must supersede strict adherence to Halacha (Jewish law). The death penalty presents one of the most significant illustrations of this dynamic. The latest version of Israel’s proposed death penalty bill for terrorists would require executions to be carried out by hanging, to be performed by a designated prison officer. The bill, initiated by far-right MK Limor Son Har-Melech of Otzma Yehudit, specifies that the Israel Prison Service commissioner would appoint the officer. Proponents of this bill regularly seek to justify it by stating that the Torah makes space for capital punishment. That deeply flawed argument merits a deeper review into just what the Torah deems “kosher” when it comes to state killings.

The Torah lists nearly thirty capital offenses. The bar for some of these “sins” is exceptionally low – such as for “cursing” one’s parents, an infraction which, if in effect, would have led to this author’s own execution decades ago. The Torah also allows for various methods of state killing. Stoning (sekilah) was the most common method mentioned in the Torah for crimes like adultery, idolatry, or cursing parents. In reality, it involved pushing the condemned off a height, and if they survived, throwing stones at them until they perished. The biblical text also prescribes burning to death (sereifah) for offenses like incest or bestiality. Torah verses call for decapitation (herev) via the sword for crimes such as murder. Finally, the default method for when the Torah did not specify another was strangulation (chenek), preceded by burial up to the knees.

Such was the ancient Jewish understanding of the Biblical “eye for an eye.” Rabbinic commentators, however, engineered strict judicial conditions to ensure that no innocent person was put to death (i.e., requiring two witnesses, warnings, and specific court processes). This extremely high bar made executions exceedingly rare in practice, with the authority to apply them ceasing after the Second Temple’s destruction. Effectively, rabbinic Judaism placed so many prodigious safeguards as to render the death penalty virtually impossible to enact. In a striking example, the very phrase “eye for an eye” in Rabbinic parlance actually referred to financial compensation for the value of said eyes. In this historical context, the lex talionis was intended to curtail, rather than augment, the collective bloodlust of expansive vengeful massacres that societies practiced in response to killings in ancient times — and still all too often today.

Arguably, the most famous comment on this matter comes from one of the most renowned Jewish sages: the Rambam, Rabbi Moses ben Maimon (1135-1204). Maimonides, as he is often called, was a Sephardic Jewish physician and philosopher who became one of the most prolific and influential Torah scholars of the Middle Ages. He wrote of capital punishment in Sefer HaMitzvot, Prohibition 290: “It is better to acquit a thousand guilty persons than to put a single innocent one to death.” Many other powerful and brilliant rabbinic voices reflected this position. Rabbi Dr. Shlomo Brody, the executive director of Ematai and the Jewish Law Live columnist for the Jerusalem Post, recently quoted a much earlier famous Talmudic example in his interview for the podcast Israel from the Inside with Rabbi Daniel Gordis.  Brody emphasized the words of Rabbi Eliezer ben Azariah, Rabbi Tarfon, and Rabbi Akiva:

“A Sanhedrin [Rabbinic court] that affects an execution once in seven years is branded a destructive tribunal. Rabbi Eliezer ben Azariah says: once in 70 years. Rabbi Tarfon and Rabbi Akiva say: Were we members of a Sanhedrin, no person would ever be put to death. [Thereupon] Rabban Simeon ben Gamaliel remarked, they would also multiply shedders of blood in Israel!” (Mishnah, Makkot 7a).”

Indeed, there were dissenters — like Rabban Simeon ben Gamaliel above — who were pro-death, citing similar deterrence factors and other now antiquated notions of “justice.” Posterity can forgive them for their views, which reflect the understanding of their times, including in the realm of deterrence. They were not privy to recent meta-studies that have concluded that when it comes to deterrence, there is no demonstrable link between the presence or absence of the death penalty and murder rates. For this reason alone, most traditional Jewish arguments for the death penalty no longer apply in our world.

Still, by not officially abolishing capital punishment, rabbinic authorities left the door open to this veritable Pandora’s Box. Ardent death penalty advocates like Israeli National Security Minister Itamar Ben-Gvir regularly seize upon this mistake to try to enact legislation that would maximize state murders in Israel, claiming that the Torah and Jewish tradition greenlight their macabre approach to “justice.” Their conclusion is patently false, of course, as many various progressive and orthodox rabbinic leaders arguing against the death penalty have demonstrated. Adherents to this exercise in collective vengeance delude themselves with the disproven fallacy of deterrence, which closes their eyes to the fact that the opportunity for the death penalty would only incite and invite the creation of more shaheeds – martyrs – among would-be terrorists. Those who reject this logic as well as the plethora of historical and modern Jewish voices against executions instead grasp onto strict interpretations of Torah law with Karaite-like fervor. For example, in response to this writer’s recent article entitled “Israel’s Death Penalty Would Violate the Human Right -and Jewish Value- of Life,” one individual saw fit to write: “No, it would not. Our Torah unambiguously demands [the] death penalty for most egregious crimes: murder, acts of homosexuality and bestiality, striking one’s own parents, just to name very few.” Another commenter wrote:  “BS.  [The death penalty is] all over our Holy Torah. (Glad I cleared that up. You’re welcome).”

Individuals who espouse such extremist views have a significant choice to make: they must decide how to reconcile the reality of the human right to life that the Universal Declaration of Human Rights enshrines and their strict interpretation of Halacha. Some might respond to this discrepancy by citing the Talmudic principle of dina d’malchuta dina (lit. “the law of the land is the law”). In general, this idea holds that Jewish law requires obedience to rules issued by civil authorities. However, it is essential to note that this notion is limited and is discussed at length by modern-day rabbinic authorities. It also merits mention that this proposition applies to laws of individual nations, not to evolving international standards. In the United States, the situation is even more complex. The same dina d’malchuta dina approach that would require American Jews in Texas to abide by executions in their jurisdiction, where it is legal, would also call upon Jews in New York to respect its abolition, which the Empire State achieved long ago.

A more rational standard to follow is to acknowledge that human rights – including the fundamental, well-established, and Jewishly informed right to life – supersede strict Torah observance. The targeting of Jews in the Shoah should serve as a resounding reminder to the Jewish community today of what can happen when human rights violations are met with silence. Human rights icon and death penalty abolitionist Elie Wiesel comprehended this all too well. Of the death penalty, Wiesel famously concluded that “death should never be the answer in a civilized society.”  He also poignantly wrote: “I swore never to be silent whenever and wherever human beings endure suffering and humiliation. We must always take sides. Neutrality helps the oppressor, never the victim. Silence encourages the tormentor, never the tormented.”

Wiesel’s charge reminds us of the danger of silence in the face of all human rights violations, including the death penalty. Hence, if I did not sound the alarm as loudly as possible now as Israeli lawmakers consider crossing this Rubicon of death, I would be dishonoring the “Rabbinic Human Rights Hero” status that my colleagues at Truah: The Rabbinic Call for Human Rights conferred upon me last year for my anti-death penalty work with the thousands of members of “L’chaim! Jews Against the Death Penalty.”

Rabbi Mordecai Kaplan, founder of Reconstructionist Judaism, famously taught that Jewish tradition should get a vote, not a veto. As outlined above, most traditional Jewish arguments for the death penalty no longer apply in our world. Given the evolving nature of Jewish law over the millennia, and the fact that over seventy percent of civilized nations have abolished capital punishment as a blatant human rights violation, the time has come for 21st-century Judaism to reject the death penalty, without exception. The Knesset’s halting of Israel’s current proposed death penalty bill would mark the first necessary step in this existentially vital process.

Cantor Michael J. Zoosman, MSM, BCC

Co-Founder: L’chaim! Jews Against the Death Penalty

Advisory Committee Member: Death Penalty Action