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Mishpatim 5772-2012

Capital Punishment: Revenge or Restitution?

by Rabbi Ephraim Z. Buchwald

With fifty-three commandments–thirty negative and twenty-three positive, parashat Mishpatim ranks fourth among all the parashiot of the Torah in the number of mitzvot found in the weekly Torah readings.

It is in parashat Mishpatim that the Torah introduces the concept of capital punishment. In Exodus 21:12, the Torah states, “Mah’kay eesh va’met, moht yoo’maht,” One who strikes a man so that he dies, shall surely be put to death. While accidental homicide is punishable by exile to a city of refuge (see Matot-Masei 5762-2002), premeditated murder is punishable by execution.

Included among the capital offenses that are recorded in parashat Mishpatim are: premeditated murder, striking or cursing a father and mother, and kidnapping and forcing the victims to work or selling them into slavery.

In Chapter 21 of Exodus, we find two cases of people quarreling that provide insight into the nature of homicide and capital punishment in Jewish law. In Exodus 21:18-19, the Torah records the following scenario: “V’chee y’ree’voon ah’nah’sheem, v’hee’kah eesh et ray’ay’hoo b’eh’vehn oh v’ehg’rohf v’loh yah’moot, v’na’fahl l’mish’kahv,” If men quarrel, and one strikes his fellow with a stone or a fist, and he does not die, but falls into bed; if the victim gets up (recovers) and goes about outside under his own power, the one who struck him is absolved.

This encounter is understood by the commentators to be a case in which a verbal argument escalated into physical violence. The blow, even though it may have been administered by only a hand or a fist, was powerful enough to kill the victim. If the victim was so badly injured that there is a reasonable chance that he may die, the aggressor is held by authorities pending the victim’s recovery or demise. If the victim fails to recover and the blow results in a fatality, the attacker may be liable to the death penalty.

A second case recorded in parashat Mishpatim, is in Exodus 21:22-23. There the Bible relates: “V’chee yee’nah’tzoo ah’nah’shim, v’nahg’foo ee’shah harah, v’yahtz’oo y’lah’deh’hah v’lo yih’yeh ah’sohn, ah’nohsh yay’ah’naysh kah’ah’sher yah’sheet ah’lahv bah’ahl ha’ee’shah, v’na’tahn bif’lee’lim,” If men fight and they collide with a pregnant woman and she miscarries, but there will be no fatality, he shall surely be punished as the husband of the woman shall cause to be assessed against him, and he shall pay it by order of judges. But if there shall be a fatality, then you shall give life for a life.

In this instance, the commentators assume that both men were trying to kill one another. In the course of their struggle, the pregnant woman came by, and a blow, which was intended for one of the disputants, struck her. Although the blow did not kill the woman, it did cause her to lose her child. The rabbis rule in this case that since no homicide was intended, the loss of the pregnancy may be compensated by monetary payment. In contrast to a life for a life, the Torah demands only monetary compensation for the fetus. It is from this scenario that Jewish law derives that a fetus is not to be regarded as a full-fledged human being and that abortion should not be considered murder. Also derived from this is the halakhic conclusion that a mother’s life, which is a definite life, always takes precedence over the potential life of a fetus. Thus, a pregnancy that threatens a mother’s life may be legally terminated.

Professor Moshe Greenberg has written insightfully, “The guilt of a murderer is infinite, because the murdered life is invaluable. By contrast, the Torah never requires the death penalty for crimes against property. In Biblical law, life and property are incommensurable; taking of life cannot be made up for by any amount of property, nor can any property offense be considered as amounting to the value of a life.” Although other near-Eastern societies permitted the family of the murdered to accept monetary settlement from the murderer, the Torah code strictly forbids such payments.

Rabbi Samson Raphael Hirsch (1808-1888, the great Bible commentator and leader of German Jewry) offers a penetrating analysis on the subject. Rabbi Hirsch points out that the verse in Exodus 21:22, mandates that the husband shall, together with the court of law, determine how much of a fine is placed upon the perpetrator who killed the fetus. In that instance, the Torah states, “ V’na’tahn bif’lee’lim,” that the husband receives payment as the judges determine.

Rabbi Hirsch then notes that the very next verse, Exodus 21:23, states that, “V’im ah’sohn yih’yeh,” and if fatal results ensue, where the pregnant woman indeed dies, “V’nah’tah’tah nefesh tah’chaht na’fesh,” then you shall give a life for a life. Rabbi Hirsch interprets this to mean that the Jewish “community” is responsible for giving a life for a life. Rabbi Hirsch notes that the verse does not state that one should “take” a life for a life, but “give” or give up a life for a life. According to Rabbi Hirsch’s astute insight, capital punishment is not revenge, but rather restitution. Human life belongs to G-d and only to G-d. As G-d’s representatives on this earth, the community and its courts of law have the responsibility to give up a life (that of the murderer) for the life that was taken. Quite unexpectedly, Rabbi Hirsch makes certain to emphasize that even the death of the murderer is to be regarded as a communal loss.

In other ancient civilizations, those who came from noble families were almost always able to be excused from punishment. Often, murder charges against the upper class or nobility would never be brought, or the victim’s family would be compensated by the payment of cash or livestock. By asserting that only the actual perpetrator may be punished for such a crime (Deuteronomy 24:6), Judaism revolutionized the idea of the sanctity of human life and the penal code. No matter how important, no matter how noble, no one may buy their way out of punishment.

Parashat Mishpatim stands as the foundation of enlightened law, and reflects truths that are, in many instances, light-years ahead of other judicial systems.

May you be blessed.

Please Note: On this Shabbat, an additional Torah portion is read known as Parashat Shekalim.  It is the first of four additional thematic Torah portions that are read on the Shabbatot that surround the holiday of Purim.  This week’s supplementary Torah reading is found in Exodus 30:11-16 and speaks of the requirement for all the men of Israel, aged 20 and above, to bring a half-shekel in order to be counted as a member of the People of Israel. In later years, these shekels were donated to the Temple in anticipation of the festival of Passover, when funding for the daily sacrifice had to be renewed.