My views on the death penalty

I had a disgruntled subscriber unsubscribe from this blog. It’s not that bad of a thing. I don’t do this to make a posse or a club. People can come and go as they choose, and it’s fine to disagree with me. I’m just an independent fellow student that likes to share his ideas even with himself, not some all-knowing teacher who must be obeyed and followed. But he raised some points that I would like to think about and write about. I hope you don’t mind me sharing. It’s not to make this guy seem like a bad guy or anything. He has an opinion, made a choice and it’s got nothing more to do with me.

Anyway, here it goes.

I have followed this blog for some time and I have decided to unsubscribe because of your constant banging on about the same thing, that the death penalty should be enforced for all the infractions of the 7 laws, You state and re-state this without offering any discussion, comparing views from differing authorities and differing times of Judaism. And don’t say as you did before that you don’t care much about Judaism because it is Jewish law that underpins all you teach.
The truth is even in Talmudic times rabbis were doing everything they could to avoid the death penalty being carried out. This long before Islam started with sharia law, and far in advance of the penalties still being carried out in the Europe of the Middle Ages.
Times change, interpretations change. The reason Jews have survived so long as a people is their ability to change and adapt.

Now, if I gave into some of my inner impulses, I’d simply reply with “well, I don’t care much about Judaism!” And then I would end it right there. But that would just be a small-minded reply, the sort of reply that would be a slight slap in the mouth to this person. But why disrespect the man? What has he said or done to receive disrespect?

Now it is true that in my past articles, I just briefly touch on the punishment for breaking any of the Seven Laws. I don’t discuss the issues regarding the death penalty. I don’t sugar-coat it. I don’t point to the notion that some vocal ancient rabbis stated that there was much good in avoiding the death penalty. I don’t bring up what I’ve heard about there being so many stipulations around the death penalty in the Torah laws that applies to Jews that it is very difficult for a Jew in Torah observant times to actually be sentenced to be put to death. Because my previous articles were not focused on the death penalty but were discussing other subjects, I believe it would be understandable that I don’t actually focus on the issue.

I do think that a problem with this disgruntled ex-subscriber’s position is that he thinks that “it is Jewish Law that underpins all that I teach.” The problem for this person is that I don’t teach Jewish law, by which I mean the laws that apply to Jews. I share what I’ve learned about the Torah law for Gentiles. There is a difference. It has been stated and shown in previous articles that the Seven Commandments that God enjoined upon Gentiles are, by nature, different from “Jewish Law.” You can look at articles like Two different roads – the Gentile and the Jew and Defending oneself against a rabbi and Ignorance of Law is no Excuse … even for Jews where I touch upon this fact. This fact is significant. I do my best not to deal with Jewish law per se. And although there may be protections within the Jewish law and the rulings of the rabbis that prevent the death penalty occurring for Jews, I think there are valid grounds for questioning whether those protections and safeguards are inherent in the Gentile Torah Law, especially if these protections are rabbinical. [NB. That doesn’t make the protections any less valid for Jews as rabbis would have legal authority over Jews. There is nothing to make their rulings part of the Seven Commandments and therefore obligatory on non-Jewish courts.]

Although there are a handful of less severe rabbinical obligations, there are no ‘rabbinical fences’ to Noahide law …
However, being charged to uphold no more than the sheer bedrock of morality by which a human is elevated above the animal comes at a price: there is no padding or cushioning of protective rabbinical ‘fences’ around HaShem‘s law for one to break first, causing him to stop before committing a severe crime … Furthermore these are not laws given in the framework of any special nation’s special, protective, Divine Covenant, with minimal measures beyond which one is exempt, and a justice system that makes capital punishment rare and unusual. (Rabbi Michael Shelomo Bar-Ron, Guide For the Noahide – A Complete Guide to the Laws of the Noahide Covenant and Key Torah Values For All Mankind, the chapter called “The Price of Freedom: Understanding The Inflexibility of the Noahide Laws”, ebook so no page numbers)

This point of view is also evinced in the footnotes of the Soncino translation of the Babylonian Talmud, Tractate 57a. In footnote 29, commenting on the statement “Their prohibition is their death sentence,” it states,

I.e., in speaking of [non-Jews], when the Tanna teaches that [non-Jews] are forbidden to do something, he ipso facto teaches that it is punishable by death; for only in speaking of Jews is it necessary to distinguish between prohibition and punishment.

So it could be understood that only Jews have that innate protection in their law that separates the warning, the prohibition, from the actual punishment. See also an understanding of Ramban’s words about the law of Dinim and how certain words are explained.

The RAMBAN (Bereishis 34:25) asks many questions on the words of the Rambam. Among his questions, he asks that the Mitzvah of Dinim includes the law that a judge is not allowed to decide a case based on corrupt or fraudulent grounds. If a judge does so, he is Chayav Misah [worthy of the death penalty] for the active transgression of a prohibition. (The Ramban cites a Yerushalmi as proof for this.) However, if the Nochrim [gentiles] in a certain city failed to set up a court altogether, they are not Chayav Misah [, since they merely neglected to perform a positive commandment and did not transgress a prohibition. The Gemara later (57a) teaches that “Azharasan Zo Hi Misasan” — the law prescribes the death penalty for Bnei Noach for transgressing any command for which they have been warned. This implies that only the violation of an Azharah, which refers to a negative prohibition (see 59b), carries the death penalty. Since the Mitzvah of Dinim is a positive commandment, failure to fulfill it should not warrant the death penalty. (INSIGHTS INTO THE DAILY DAF – Sanhedrin 56, http://www.dafyomi.co.il/sanhedrin/insites/sn-dt-056.htm)

Elisheva Barre, in her excellent book “Torah for Gentiles,” in the chapter called “The Obligation to Institute Courts,” makes it plain, in agreement with Rambam, that

Any transgression of one of the Bnei Noah prohibitions is
liable to a death sentence, which makes this legislation
criminal law. (ibid. pg 168)

I feel it is definite that breaking any of the Seven Commandments makes one worthy of death, punishable by the hand of Heaven and a righteous human court, righteous because it judges according to the Seven Laws. [It goes without saying that no such court exists today … hmmm … if it goes without saying, then didn’t I just say it???] I can say that without qualification.

Now part of me says “David, you know you’re playing right into the hands of those fear-mongers who say that the Noahide Laws mean countries will be bathed in the blood of the many guilty gentiles.” But I can silence that voice rather quickly. Once again, as I’ve stated in previous articles, I don’t believe the implementation of the Seven Laws as international law is for this period of time, for this culture. Although the Seven Commandments are always obligatory on each non-Jew, for now it is for Heaven to judge, not for a human court of law. It is for a time when people will volitionally accept the laws upon themselves because the morality of the world would have been elevated beyond the bodily excretion product it is now.

BUT …

But …

There is another reason why fear-mongers have no real footing to stand on, why I’m not talking about “instant death” to all and sundry. I still remember a couple of facts that are pertinent to this issue. It’s not as if my mental picture of a Gentile court is a simple two-word judge who sees a guilty party, and instantly bangs that hammer, shouts “guilty” (the other word would be “innocent”), and then the person is slaughtered on the spot. Even in the Seven Laws, there is still what is called “due process,” some necessary steps between an act and its punishment. There may even be something to say about the punishment as well.

A number of years ago, I made a video series against an unsavoury character called “Asher Meza” otherwise known as “George.” My series was in response to a number of ignorant claims he had made about the Seven Commandments and being a “Noahide” (I’ve developed quite a lot in my views since then, so some of my points may have changed slightly, but I’m still very much in opposition to ideas such as his). In that video series, particularly in a section called Noahide Laws vs Asher Meza Part 12 – All Noahide offenders get the death penalty?, I state what should be a normal conclusion for such a law: that the law of “Justice” should be just. It may sound very simple, but it bears saying in the face of people who are afraid of mass slaughter. The law concerning courts should be about basically proper courts. The law concerning “laws” should be about just laws, not just arbitrary ones. To speak on the flip-side, as there are two sides to the law of Dinim, an active aspect and a prohibitory side, the law that prohibits injustice should at least on some basic level be about not doing unfair and unjust things, right? That should stop and make a person wonder: the fear-mongers and those afraid of the death penalty, are they afraid of justice, proper courts and measured lawful proceedings? Are they afraid of a law that stops unfairness and injustice, even if it is on a basic level, from happening?

It seems that fear is more the issue rather than level-headed thinking.

So let’s think a bit more about this prohibition against injustice or the commandment about courts and laws.

If one were to look a bit further into the basic laws of Dinim, almost at the beginning, if they were thinking, hopefully they’ll trip up on the first few clauses … and the rest of the way through it as well. Now, I had been learning about these Seven Laws for a number of years, but it was only within the last year that I was challenged about this myself. That shows how long I wasn’t really thinking for.

A gentile is executed on the basis of one witness and a single judge. (Rambam, Mishneh Torah, Laws of Kings and Wars, Chapter 9, halakhah 14 (or 19 in some editions), found at http://www.chabad.org/library/article_cdo/aid/1188354/jewish/Melachim-uMilchamot-Chapter-9.htm)

So right off the bat, it should be clear that this law is not talking about vigilantism. And it’s not talking about instant condemnation and execution. There is a separation between the person doing the forbidden act and the final execution. Firstly there needs to be a witness. First issue: what is a witness? Or, more properly, what is a qualified witness or a proper witness? Let’s pretend that we’re just talking about anybody who sees a crime occur. Even without going into in-depth Hebrew to see what the word means, can you even imagine what is needed for a righteous court to determine this is an adequate witness? Plus we’re talking about a law where there’s a prohibition against the perversion of justice. So what tests are needed to make sure the witness is of the right sort to be used as evidence against someone accused of a crime?

I’m fine leaving that as a question. I just hope that it shows you that things are not so simple, even for a basic court for non-Jews.

Take special note. This shows a significant difference between the seven law courts and the courts of today. In the seven law courts, a witness is needed in order for a person to get executed. There cannot be a valid case that involved the death penalty based only on hearsay or circumstantial evidence. Getting not just any person to see acts that violate the seven commandments but also a valid witness is not an easy thing.

Did I hear someone say “another natural protection against a land full of blood in the basic seven laws?” No? It must have been me then.

What about the next bit? “… by a single judge!” Another issue: what is a judge? Or, more properly, what qualifies a person to be a judge? Now, once again, the text doesn’t say “by any dude or dudette who can call a person guilty or innocent.” It specifies “judge.” And once again, we’re talking about a law where there’s a prohibition against the perversion of justice. So this judge just can’t be an ignoramus. It can’t be Joe Bloggs off the corner of the street who was just getting his haircut for a job interview for a car salesman. There would seem to be qualifications for who can be a judge. What are those qualifications that would ensure that the best justice is served?

Just one more thing: another quote from Rambam’s Mishneh Torah, same section as before, but this time chapter 10, halakhah 1.

A gentile who inadvertently violates one of his commandments is exempt from all punishment with the exception of a person who kills inadvertently. In such an instance, the redeemer of the blood is not executed for slaying the killer … However, the court will not execute him.

Oh. So not only do we have questions about a witness and a judge, but now it has to be decided whether the forbidden act done was done advertently or inadvertently.

So even at this point, this is not a straight open and cut case. And, to be frank with you (don’t ask me who “frank” is – GRIN!), that’s not even the end of the issue. I doubt it’s even close to the beginning of it. Check this out.

How must the gentiles fulfill the commandment to establish laws and courts? They are obligated to set up judges and magistrates in every major city to render judgement concerning these six mitzvot and to admonish the people regarding their observance. (ibid. chapter 9, halakha 14 (or 19))

So what is the basic essence of a proper court? It must have “judges” and “magistrates” (I don’t even know if the English words encapsulate enough of the original intent of the words originally penned down) that are in each “city” (whatever that is defined to be) to judge according to the six (I believe this should be “seven”) commandments and to forewarn the people about them. So these judges are not simply guys who hand out verdicts, or even simply judge cases. It’s also to teach the people.

Now on these criteria a proper court of justice stands. And if the obligation is on the people, the gentiles, to set up such courts then that should tell you about the sort of moral character needed and required by the people on a whole: it needs to be a group of people that at least have some living knowledge of the seven commandments. Without these criteria, and the raft of foundational stuff that Rambam doesn’t even explain here, there isn’t a proper court of justice. And on all, yes, all these criteria, the courts and officials of today generally fail. And since the courts fail, that also shows that the people in general have failed the standard as well. In such a society where people choose to live up to the standard of the seven laws, the occurrence of law-breaking would not be as huge as people nowadays think. And even with the “basic” standard of the Seven Laws, without even touching upon Jewish Law, I think a lot can be said for what is required to reach the place of execution.

And yes, I still refuse to draw back from talking about the death penalty and the fact that breaking any of the seven laws makes a person worthy of the death penalty from the Heavenly “court” and a proper earthly one. But the fact is that God has always shown himself patient with people so as not to give instant execution to gentiles now, even though we are still obligated to keep them.

Wow, there is so much that I haven’t even touched. I think I’m gonna have to do a separate blogpost about the fact that people balk at even the idea of someone committing adultery, theft or eating the limb taken from an animal whilst it was alive being put to death for these acts. But that’s for another time. For now I’ll leave it like this. Hope you don’t mind too much.

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