by Dr. Walter Brinitzer – Breslau.
[Translator’s note: Warning! The following article contains explicit descriptions of methods and instruments for carrying out the death penalty up until the period immediately following WW1, when some European countries had revised their capital punishment laws and practices in light of the devastating experience during that war.]
Nowadays we have the same fights over eliminating or keeping the death penalty as in ancient Israel.
With regard to the recent revision of the German penal code, it is of the greatest significance that one is clear on which position to take on the death penalty.
Hence there is every reason to discuss Judaism and the death penalty.
I. The Death Penalty in Judaism.
Thou shalt not kill (Exodus Moses 20, [1]3).
Humanity’s most valuable possession is life.
Man has a right to this gift that one receives from God and no one may rob him of it.
As long as the Israelites were building an independent state on Palestine’s land, only the court had the right and the duty to sentence to death those criminals who deserved to die.
In the Bible, the death penalty is threatened:
Genesis 9.6
Exodus 21.12, 15-20, and 22.17
Leviticus 20.2, 10 and 24.16
Numbers 15.35, 21.9, 35.30-31
Deuteronomy 13.6, 17.2, 18.22, 19.13 19.15 ff, 21.18, 22.23, 22.20, 24
Everywhere the Bible states he should be killed, pour his blood over him, he shall be utterly destroyed the death penalty is meant.
The crimes punishable by death are murder, beating and cursing parents, abduction, blasphemy, adultery, incest, idolatry, false prophesy, public breaking of the Sabbath.
Depending the magnitude of the crime, the following ways to execute someone are set by the law:
- Stoning (Genesis)
- Burning (Exodus)
- Death by Sword (Leviticus)
- Strangling Deuteronomy
Wherever a death sentence is mentioned in the Scriptures without specifying the method, death by strangulation is meant.
- Stoning. The guilty man’s hands are tied and he is thrown from the place of judgment (the height of two men) by one who witnessed the crime. If he survives the fall, the second witness throws a stone at his heart and if he still doesn’t die, everyone present throws stones at him (Sanhedrin tractate, Chapter 6).
- Burning. The condemned man stands in a that reaches to his knees and a hard rope with a soft covering is wrapped around his neck. One after the other pulls on the rope until the criminal opens his mouth into which is thrown a glowing piece of lead that slides into the intestines and burns them (Sanhedrin, 7, 12).
- Death by Sword is beheading.
- Strangling. The guilty man stands in a Mistboden that reaches to his knees and a rope with a soft covering—to lessen the pain—is wound around his neck. Two witnesses of the crime pull from either side until the criminal dies (Sanhedrin 7, 3).
In the Talmud there is disagreement about the justification of the death penalty.
While the famous teachers of the Law Rabbi Tarfon and Rabbi Akiva declared, “If we had been in the Sanhedrin, no one would every have been executed. Whereupon Rabbi Simeon ben Gamaliel replied, “they would have increased the number of murderers in Israel (Mishnah Makkot I 10).
The disagreement continues to this day.
II. The Death Penalty in Present Times
Apart from special courts, the death penalty nowadays applies in four cases and is the only punishment that is prescribed, namely 1) for completed murder 2) high treason through the assassination or assassination attempt on the chief of state 3) endangerment of property, life, or health of another by using explosives, when this causes the death of a person, this death being foreseen by the bomber, and 4) the planning and execution of an expedition with the intention of enslavement that causes the death of the person against whom the expedition was carried out.
In comparison with the Bible, this is a narrow scope for applying the death penalty. It should be noted that in 1810 France still listed more than 115 crimes punishable by death ([Georges] Vidal, “Cours droit criminel” 4th edition, Number 458).
The death penalty is administered by beheading. This occurs mostly by means of the guillotine (axe blade or sword blade). In Prussia, except for the Rhine province and Hannover, an axe is used. In Hannover, a guillotine with a sword blade is used, in the Rhine province, a guillotine with an axe blade is used.
Pregnancy and mental illness prevent the death penalty from being administered.
The execution takes place in an enclosed space with limited access to the public and in the presence of representatives of the community.
The number of executions in Germany is estimated to be about 10% of the death sentences issued.
The proposed new German penal code is consistent with English, French, American, and Austrian use of capital punishment.
Capital punishment no longer exists in Italy (1890), San Marin0 (1848), Holland (1870) Norway (1904), in 15 Swiss cantons (1874), Romania (1864), Portugal (1867), Guatemala, Honduras, Nicaragua, Costa Rica (1880), Venezuela (1864), Ecuador, Brazil, in four Mexican states, and in five American states, namely Michigan (1864), Rhode Island (1852), Maine (1887), and Kansas (1907). Russia applies the death penalty only for political crimes with the death penalty for all other cases having been removed in 1753.
In Belgium since 1863 and in Finland since 1826, there have been no death sentences issued.
There is not a single instance of the number of murders increasing after capital punishment is eliminated.* (*Footnote: Cf. M. Liepman, Capital Punishment, the agenda of the 31st German Congress, 1912, Vol. 2, p. 572 ff.)
In France and Denmark, the execution is public and in Bolivia, Columbia, Chile, and Uruguay it is carried out by shooting.
Executions are carried out in prisons in Japan, England, and Wales by hanging, in Spain by means of the garotte.
III. The Conflict around the Death Penalty
The only reason cited to justify the death penalty that can even be discussed is that the state takes a defensive stance against the criminals and is the necessary reaction of the state to crimes against life.
It is right that the death penalty is the opposition of human society against crime. The individual must submit to the whole so that the whole can exist and prosper. Anyone who criminally rebels against the existence of the legal order is thereby challenging the state against themselves. The question is, however, whether this act of self-defense by the state can go as far as to destroy the individual. Self-defense is the defense that is necessary to avert a present, unlawful attack.
It begs the question, however, whether this defense of the state can go as far as the destruction of the individual.
Defense is the degree of defense that is necessary to deter a present, criminal attack.
The death sentence would therefore only be justified if in certain instances it constitutes the required defense of the state.
That can only be answered if we are clear about the purpose of the punishment beforehand.
If the punishment’s necessity is deduced from its purpose then it can only be a defensive action taken on the part of all against the individual; only a justified defense can exempt one from the sixth commandment.
Whoever does wrong disturbs the general judicial peace. This fracture requires the restoration of judicial peace. Judicial peace is only then restored when the criminal act is reconciled.
The punishment, as atonement clears the ethical fog that is created by the crime and restores morality.
This idea is quite distinct from the lex talionis [eye for an eye] or deterrence principles.
Reparation in the sense of the lex talionis as well as deterrence and rehabilitation could be side effects of punishment but are not its essence.
One should not gauge the punishment according to these extraneous purposes. Rather it results from the natural effect of a desire to create a balance against the unethical that is rooted in the community and between the community and the individual.
That is also a principle of Judaism. Punishment is meant to remove evil from the nation (5. Mos 13, 6; 17,7,12; 19,20; 22,21,22,24; 24.7. 4. Mos. 35,33 ff.). Through punishment the disrupted order of justice is restored, the power of the law maintained, and the people protected from future injury.
Deriving from this idea, punishment does not atone for the murder of an individual by destroying another.
Punishment must also be understood in the context of spirit of the people during the time when the judgment occurs. At different times in history the idea of reparation is more or less intense, as is the lex talionis principle and thus moves to the foreground as the punishment’s purpose.
Originally punishment took the form of the Talion’s reciprocity as it did with the Egyptians, the ancient Greeks and Romans, the Germanic tribes, and with the Israelites (2. Mos. 21, 23.’ 3. Mos. 24,17,19. 5. Mos. 19,21)
Just as Talmudic teaching interpreted the “eye for an eye, tooth for tooth” statement to mean that the injured party is to receive the monetary value of their eye, just as the Germanic tribes prevented vengeance by individuals by stipulating that the punishment was the weregild amounts stipulated by the law, so too did Jewish law limited these and left vengeance and the destruction of evil to God (5. Mos. 32,5) and the severity of the Talion was mitigated by legal reparations. (Conclusion follows [in the next issue.])
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