ESSAY: Unanimous Verdict
The complexity of capital punishment
INSIGHTS: Two Witnesses
The astronomers telescope and the praying Jews
tefillin both bear witness to G-ds presence in
our world. The difference: the first testifies to the divine
essence of reality; the second makes real the divine essence
The issue of capital punishment excites much heated and vociferous
discussion. One aspect of the debate concerns the fallibility
of human judges and the element of uncertainty that accompanies
their decisions. Can human judges be entrusted with the weighty
responsibility of ruling on life and death matters? Another
factor is whether capital punishment is right in itself. Does
a society have the right to condemn its citizens to death?
Does one injustice justify another?
What is the Torahs position on the death penalty? The
Torah is adamant in its views on the sanctity of life. No
one has the right to harm or destroy any aspect of life, even
if it affects only the individual himself. The entire Torah
may be suspended to preserve a life, indeed, a court that
metes out the death penalty once in seventy years is labeled
in Torah as a court of executioners! Yet, Torah
allows for and advocates capital punishment in certain instances.
So we have a self-contradictory situation, where the Torah
permits the court to put someone to death, but when they do
so legally, the Torah declares them executioners!
How does the Torah reconcile its view on the absolute value
of human life with its condoning of capital punishment? How
does the Torah ensure that the judges will not err and will
In Jewish law, the courts primary responsibility is
to find merit for the accused, and to seek to preserve his
life. "The congregation will judge him and the congregation
will preserve him.
The process of trying a capital case is overwhelmingly skewed
towards the benefit of the defendant. No circumstantial evidence
is accepted. The testimony of not one but two eyewitnesses
is required, and both are carefully cross-examined for any
discrepancies in their accounts. Furthermore, capital punishment
is only meted out in a case where deliberate intent can be
conclusively proved. Two witnesses must be produced who can
testify to having warned the defendant in advance that his
action was wrong, and of the consequences of that action.
Another requirement of capital cases is the rule of "halanat
that a guilty verdict must not be completed in one day, but
must be deferred for another day in order to leave more opportunity
to find credit.
In Maimonides Laws of Sanhedrin,
the following law is cited: "If a Sanhedrin opens a capital case with a unanimous
guilty verdict, he is exempt, until some merit is found to
acquit him; then, those who convict will be in the majority,
and then he will be put to death."
The source of Maimonides ruling is in the Talmud Sanhedrin.
The reason given for the exemption is that the court did not
fulfill the condition of "halanat hadin",
deferring judgment for the next day in order to find merit.
Since they have all found him guilty, they will no longer
find merit for him.
It is possible to interpret the meaning of the Talmudic passage
in one of two ways. One is that the courts verdict is
disqualified, due to the lack of "halanat hadin".
Another way of viewing it is that by failing to find even
one facet of merit, the Sanhedrin has disqualified itself
from judging the case.
From Maimonides ruling it appears that he accepts neither
interpretation. The condition of halanat hadin is not
mentioned by Maimonides, indicating that this was not a primary
factor in his ruling. Also, the ruling does not say "the
court exempts him", but rather "he is exempt,
until some merit will be found
then,... he will be put
to death". In other words, the courts lack of
finding merit places a temporary obstacle in the way
of actually carrying out the verdict. The defendant is exempt,
but the judgment is not vacated. We must therefore seek to
understand Maimonides position that the verdict is a
valid one, but merit must be found in order to carry out the
According to Jewish thought, the purpose of punishment is
for expiation of the sin. Indeed, it can even be said that
punishment is an inaccurate translation of the
Hebrew onesh. Punishment is not retribution, a
Divine getting even. It is a cleansing process,
like a needle used to remove a splinter. Furthermore, reward
and punishment in Torah is actually cause and effect. The
Torahs prescription for various forms of behavior (be
it positive or negative) is no more punishment than say, fire
punishing the hand that is placed into it.
This is stated explicitly regarding the punishment of lashes:
Once he has been flogged, he is as your brother.
Carrying out a capital verdict expunges the sin and enables
the condemned one to experience eternal life. Maimonides rules regarding all who incur death
by the courts, or punishment by lashes, that "their death
or lashes do not atone for their sins until they will
do teshuva and confess their guilt.
It is understood from Maimonides wording that the intention
of the sentence is to bring atonement to the soul of the judged,
which is facilitated through teshuva and confession
(confession being a form of repentance).
Since the death penalty is meant to serve as atonement, it
can only be applied in a case where atonement can be achieved
through death. Certain crimes, however, are considered so
severe that no death penalty can be meted out for them. The
crime is so horrific that the defendant, as it were, is not
worthy of being put to death by the court and thereby
attaining expiation for the crime. One example of this is
if witnesses bring false testimony that results in the court
putting to death an innocent person. If the defendant had
not yet been executed, and the treachery is discovered, the
false witnesses are punished in the same manner they had intended
for the victim. But if the victim had already been put to
death, the false witnesses are not punished.
The Kessef Mishnah explains the ruling thus: "Their
sin is too great to bear, and it is not fitting to give them
the death penalty, as this would atone for them. It is more
proper to leave them be, so that they will be judged after
death with severe punishment."
Such might also apply in a situation where the case against
the accused was so compelling, and his guilt so obvious, that
not a single judge on the Sanhedrin could put forth any argument
in his favor. He would be exempt from the death penalty not
due to innocence on his part, but rather because his sin is
too great to deserve expiation through this method.
However, Maimonides ruling states that "he is
," which indicates that the court's
ruling stands, and he is only temporarily exempt, until some
merit can be found for him. In other words, the court is not
exempting him from punishment; rather, their judgment is valid,
but merit must be found in order to carry out the sentence.
According to Maimonides, the explanation is that, in his
essence, every Jew truly desires to fulfill G-ds will,
to fulfill all mitzvot and distance himself from sin. However, with certain individuals this desire
exists on a revealed level, and in others it may be completely
concealed. Being, though, that all have a soul, the essential
goodness must eventually be brought to the surface. Goodness
is inherent to the nature of the soul; it is not superimposed
onto the personality, but is an essential part of its identity.
Therefore, every individual, even one convicted of a capital
crime, must possess some merit, because his true will and
essence is the goodness within him.
In a case where not a single member of Sanhedrin can find
any favor for the accused, this indicates a situation where
the goodness is so hidden that not even the Sanhedrin - who
are trained to "infer one thing from another. and reveal hidden dimensions - can find it. Therefore, the
verdict of the court cannot be carried out. This does not
indicate a defect in the court's judgment; after all, a judge
can only decide on what his eyes see.
Nevertheless, the Torah states as fact that every Jews
essential desire is to do good. Therefore, the court cannot
impose a verdict upon him until some merit is found for him.
As mentioned, the purpose of punishment in Jewish law is
to allow the defendant to achieve kapparah -
expiation of the sin. The punishment brings atonement through
revealing the defendants inner good. If the judges all
see only guilt, they have not succeeded in fulfilling their
purpose to preserve the person by penetrating
the soul's essence, and their punishment will not have the
desired effect. Only once a merit is found, and the essential
goodness revealed, can the punishment be carried out, and
the defendant then merits eternal life in the World to Come.
The above ruling teaches us a profound lesson regarding the
sensitivity required in our attitudes to our peers. The job
of the Sanhedrin is to "preserve" the defendant
by finding merit for him. This applies even in a case where
the crime was so horrific and the guilt so obvious that every
member of the Sanhedrin came to an immediate guilty verdict.
How much more so, then, does this apply to people in our spiritually
starved generation, who may be in a state of slumber with
regard to their G-dly nature, yet their heart - their inner
being - is awake to G-d and His Torah.
Our role, when dealing with others, is not to be vindictive,
punitive or judgmental, but rather to assist each person in
getting in touch with his or her spiritual essence.
This applies particularly in this month of Elul, known as
the month of mercy, when G-d is "in the field",
and is open to receive anyone who so wishes, with a friendly
and shining countenance.
Now is a time when the goodness of every soul shines forth,
and the inner desire of each person to "greet the king"
is expressed. When we find merit in another person, we help
unveil his spark of G-dliness, and bring out in him his essential
desire to "be with the King".
Through finding positive merit, every person can be aroused
to complete teshuva, which will naturally lead
to complete expiation and atonement for sins. There will be
no need for further punishment or sentencing, and each person,
as a healthy soul in a healthy body, will enjoy a good and
sweet year, both in physical and material matters.
From an address of the Rebbe, Shabbat Parshat Ki Tissa,
by Yanki Tauber
By two witnesses... shall a thing be established
Torah law distinguishes between two types of witnesses. The
first type of witnesses (witnesses, according
to Torah, are never less than two individuals) establish
a thing only in the sense that they inform us of its
existence. For example, if Reuven borrows $100 from Shimon,
the obligation for him to return the money exists regardless
of whether there were witnesses to the loan or not. It is
only that, without the witnesses, the court would not have
sufficient proof of the existence of the obligation (should
Reuven deny it) and could not compel Reuven to carry it out.
This category of witnesses are called eidei birurclarifying
A second category of witnesses literally establish
a thing: without their witnessing, the thing would not
exist. For example, Torah law requires that a marriage be
witnessed by two witnesses. Without these witnesses, the marriage
does not take effect, even if all parties involved admit that
everything else was in order. This category of witnesses are
called eidei kiyumestablishing witnessesfor
their witnessing of the event is an integral part of the process
which establishes a new legal state.
The clarifying witness and the establishing witness are both
witnesses in that they observe a certain fact
or occurrence. But they differ greatly in their function and
the manner in which they carry it out. Clarifying witnesses
fulfill their function by testifying before the courtif
they witness the loan but do not tell the court what they
saw, their observation is of no legal significance. Establishing
witnesses fulfill their function by observing the
eventit is their observation itself that establishes
the fact, even if they never testify to what they saw.
This essential difference between the clarifying witness
and the establishing witness translates into various legal
differences. For example, while Torah law requires that witnesses
be cross-examined, this requirement applies only to clarifying
witnesses, not to establishing witnesses. Cross-examination
is part of the testifying process: testimony can be properly
understood and fully convincing to the court only when the
witnesses are cross-examined. Thus, clarifying witnesses,
whose function is to testify to the truth of an event
or fact, require cross-examination. Not so establishing witnesses,
whose witnessing of the event, rather than their testimony,
is what establishes its truth.
Nature and Man
The Torah is G-ds blueprint for creation.
When the Torah recounts an event that occurred at a particular
point in history, or decrees a law regarding a particular
conflict or relationship between two individuals, it is also
describing the very structure of life and reality. Every story
contains a universal truth; every law relates to our relationship
with G-d and the purpose of our creation. The two different
types of witnesses described above, and the legal distinctions
between them, relate not only to the witnessing of loans and
marriages, but also to the cosmic witnesses that establish
the truth of all truths: the all-pervading truth of G-d.
Two types of witnesses attest to the divine reality: nature
and man. I set as witnesses before you today the heavens
and the earth, says Moses to the children of Israel. For does not the earth, from the vital energy
in its every blade of grass to the intricate structure of
its every grain of dust, bespeak the wisdom of G-d? Does not
the vastness of the heavens reflect the infinity of their
Creator? When I see Your heavens, sings King David,
the work of Your fingers, the moon and stars which You
have ordained... the beasts of field, the birds of heaven,
the fish of sea... O G-d our L-rd, how majestic is Your name
in all the earth!
The second witness is man. In the words of the prophet, You
are My witnesses, says G-d. Man bears witness to the truth of G-d through
his observance of the mitzvot, the divine commandments. When
a person puts on tefillin, the leather, parchment and
ink out of which they are fashioned, the arm and head about
which they are wrapped, the mind that meditates upon their
significance and the heart that is aroused by the deedthese
all become instruments of the divine will, the means by which
a divine commandment is fulfilled. When a person contributes
to charity, the hand that does the giving, the metal or paper
that facilitates the exchange, and the energy and resources
that were expended to earn the money, all become vehicles
of G-dliness. In the words of the Midrash, the performer of
a mitzvah is making a dwelling for G-d in the physical
worldtransforming the materials of his or her
life into something that houses and realizes the divine truth.
Making Him Real
Both nature and the mitzvah-performing person are witnesses
to the truth of G-d. Yet they differ greatly in the manner
and function of their witnessing. The first is a clarifying
witness who testifies to the divine essence of reality;
the second is an establishing witness who makes
real the divine in our world.
The heavens and the earth do not make G-d realthey
only bespeak His reality. In fact, they only do so when cross-examined
in courtwhen their testimony is coaxed from them
by the astronomers telescope and the psalmists
soul. In and of itself, the natural world actually conceals
the divine presence; it is only through our examination and
interrogation of nature that we make it speak and tell us
Man on the other hand, is an establishing witness:
his life generates G-dliness. Our every performance of a mitzvah
makes G-d a reality in this world, regardless of the extent
to which we publicizes our deeds or are even aware of what
they achieve. Like the establishing witness, we effect an
essential change in the reality to which we relate, regardless
of whether we testify to what we have witnessed.
Based on the Rebbes talks on various occasions
 the Supreme Court of the Jewish people
 Maimonides; Hilchot Edut
 Commentary on Hilchot Edut, 20:2
 Hilchot Girushin. Maimonides cites this law in
reference to divorce. One condition in Torah for divorce
to be valid is that the husband must grant it willingly
to his wife. If he refuses to grant a divorce, Maimonides
rules that the court must compel him "until he says
'I want'". This appears self-contradictory, which
is why Maimonides explains that the true and inner desire
of every Jew is to live in compliance with the Torah.
 Likuttei Torah Re'eh 32a
 Likuttei Sichot XXIX, pp. 113-121
. Shaalot UTeshuvot Tzafnat Paaneach
(Dvinsk), part I, section 9.
. Midrash Rabbah, Bereishit 1:2.
. Midrash Tanchuma, Nasso 16.
. Likkutei Sichot, vol. XIX, pp. 188-191, 195.