“Whoever sheds human blood, by humans shall his blood be shed; for in the image of God has God made mankind.” This verse from the Book of Genesis appears to place capital punishment at the foundation of Judaism.
Over the generations, however, the penalty was hedged with numerous safeguards to prevent errors that could cost an innocent person’s life.
2 View gallery
Itamar Ben-Gvir in the Knesset plenum after the announcement approving the death penalty for terrorists law
(Photo: Shalev Shalom)
In Jewish sources, the taking of a life because of one’s actions is divided into two spheres: the battlefield and the court of law. At the scene of an incident, when a person defending himself senses a threat to his life, the rule is set: “If someone comes to kill you, rise early to kill him first.” The Book of Exodus also addresses a person who did not come with intent to kill but to steal, arriving “in the tunnel” (a biblical term referring to a burglar breaking in). If there is concern that, upon being discovered, the intruder might harm someone trying to stop him, there is permission to kill the intruder. Similarly, one may kill anyone subject to the “law of the pursuer”, meaning a person actively endangering another’s life.
In the courtroom, however, entirely different rules apply. Although capital punishment is mentioned in Talmudic sources, the sages (Hazal, the rabbinic authorities of the Talmudic era) placed strict limitations on its use.
The Book of Deuteronomy states: “On the testimony of two witnesses or three witnesses shall a person be put to death,” and the process leading to a death sentence was complex. To impose capital punishment on someone convicted of murder, judges had to conduct detailed examinations and questioning of at least two qualified witnesses who saw the act, in close proximity to its occurrence. In addition, there had to be prior warning — an explicit caution before the offense that it was forbidden and punishable by death.
If a court convicted a person and issued a unanimous death sentence, with no dissenting opinion in favor of acquittal, the verdict was invalidated. Even after a death sentence was handed down, rabbinic law required that if a witness emerged who could testify in the defendant’s favor, or even if the defendant himself claimed he had an argument for acquittal, he would be returned to court and the process would begin anew.
The Mishnah, in tractate Makkot, states: “A Sanhedrin that executes one person in seven years is called destructive; Rabbi Elazar ben Azariah says: once in seventy years. Rabbi Tarfon and Rabbi Akiva say: had we been in the Sanhedrin, no person would ever have been executed.” At the same time, Rabban Shimon ben Gamliel says: “They would thereby increase bloodshed in Israel” — meaning that, in his view, the complete absence of capital punishment would increase murder due to insufficient deterrence.
In any case, the prevailing view is that these Jewish legal principles apply to Jews and do not necessarily address non-Jews, although the commandment “You shall not murder” prohibits killing non-Jews as well.
In modern law, the death penalty is rare. In Israel’s civilian legal system, it has been used only once, against Nazi war criminal Adolf Eichmann. Rabbi Ovadia Yosef, the former Sephardi chief rabbi (Rishon Lezion, the traditional title for the Sephardi chief rabbi of Israel), wrote in his responsa series “Yabia Omer”: “We do not adjudicate capital cases in our time, and even if it were possible, there is concern lest a grave error emerge from our hands.”
Similar views were expressed by Rabbi Ben-Zion Meir Hai Uziel, another former Sephardi chief rabbi: “The outlook of Jewish law, which has shaped the spirit of Israel as a whole, is to prevent capital punishment as much as possible. The State of Israel denies the courts the authority to rule and carry out capital punishment in any form.”
One rabbi who supports the possibility of legislating the death penalty for terrorists is Rabbi Dov Lior, formerly the rabbi of Kiryat Arba and associated with the far-right Otzma Yehudit party. In a letter published about three years ago, he wrote: “The Torah encompasses all areas of life. If there are situations not explicitly addressed in the Torah, then the king of Israel or a government elected by the public — which in this respect has the status of a monarchy — has the authority to punish, even by death, if it serves the public good.”
Rabbi Lior added: “All these murderers and the like, who are not liable for court-imposed death under standard judicial procedures — if the king of Israel wishes to execute them under the law of the kingdom and for the sake of societal order, he has that authority. If, in the view of members of Knesset, who are familiar with reality, such a punishment would deter terrorists, then not only are they permitted to enact a death penalty for terrorists, they are obligated to do so for the sake of public safety.”
Rabbi Lior referred to “the king’s law” (mishpat hamelech), a kind of alternative track intended to address offenders not handled by the courts. Under halachic principles, a king is granted authority to order executions of enemies or criminals even without standard judicial procedures. Rabbi Lior argued that this authority provides the state with a basis to carry out the death penalty for terrorists.