Death and Power

Torah and the death penalty bill

The last day of Pesach that we celebrate today, associated with the people of Israel crossing the Red Sea, is the only festival on which the series of psalms known as Hallel is not recited in full. The commentators (Mishnah Berurah 490:7) give two explanations for this anomaly: one is technical, to do with the sacrifices that were brought on this day, and the second is a well-known midrash that indicates that this day is not entirely joyous.

אָמַר רַבִּי יוֹנָתָן: מַאי דִּכְתִיב ״וְלֹא קָרַב זֶה אֶל זֶה כׇּל הַלָּיְלָה״? בְּאוֹתָהּ שָׁעָה בִּקְּשׁוּ מַלְאֲכֵי הַשָּׁרֵת לוֹמַר שִׁירָה לִפְנֵי הַקָּדוֹשׁ בָּרוּךְ הוּא. אָמַר לָהֶן הַקָּדוֹשׁ בָּרוּךְ הוּא: מַעֲשֵׂה יָדַי טוֹבְעִין בַּיָּם וְאַתֶּם אוֹמְרִים שִׁירָה לְפָנַי?

At that time the ministering angels desired to recite a song before the Holy One, Blessed be He. The Holy One, Blessed be He, said to them: My handiwork (the Egyptians) are drowning in the sea, and you are reciting a song before Me? (Sanhedrin 39b)

When we encounter this midrash and treat it, not as a historical fact but as a teaching, we have to wonder with whom we are meant to identify — the people of Israel, who sang a song of joy, or the angels, who didn’t? I think the answer is both: in the moment, being saved from oppression is a cause for celebration, and instinctively one thinks of themselves first. The ideal is the answer given to the angels, that the death of any human being is a tragedy, no matter the context. Certainly, the death of the Egyptians isn’t the ideal, and later we see among the 613 commandments an explicit prohibition to hate an Egyptian (Deuteronomy 23:8). Not to love them, certainly, but an explicit command not to hate or bear vengeance.

Why should the emotional relationship towards enemies matter to the Torah? Because in calling us to be the best version of who are meant to be, our attitudes matter as much as our actions. The Talmud (Yevamot 79a) says that the Jewish people have three distinguishing features: they are merciful, modest and kind. This is codified in halacha, with Maimonides saying (Issurei Biyah 19:17) that if someone doesn't show these characteristics, their Jewish status should be questioned.

Now, if you ask a person on the street today, almost anywhere in the world, what character traits they associate with Jews, I am willing to bet that they won't say the words merciful, modest and kind. Why not? Antisemitism and prejudice are only one fraction of the answer, and it would be feeble to cling to these responses without questioning further what’s going on. What seems to me the most tragic is that Jews are not only not associated with mercy and kindness, but are associated in the minds of millions around the world with their exact opposite traits, cruelty and violence. To be merciful one must have power. Now that some Jews have some amount of power, however it is defined and measured, the question of how that power is exercised is crucial to who we are and how we are perceived.

Again, that some people project all sorts of fantasies and libels on the Jews is a perverse feature of our world, but isn’t what keeps me awake at night. What unfortunately does, recently, is the law recently passed by the Knesset in Israel to apply the death penalty to Palestinian terrorists. Enough has been written on the legal, ethical and diplomatic aspects of this law; here in France the CRIF represented Jewish institutions in denouncing it as immoral and ineffective. But since the authors and proponents of the law evoke the Torah for its legitimacy, I feel I have to stand up too and defend this defamation.

That the law is unjust is obvious, and an unjust law has nothing Jewish about it. A Jew and a Palestinian living in neighbouring villages and committing the same crimes would receive different sentencing; one would live and one would die. The Torah rejects this differentiation, insisting (Leviticus 24:22) “You shall have one law for foreigner and citizen alike: for I the Eternal am your God.”

I know that no legal system is perfect, and no justice system in the world is absolutely synonymous with Justice. There’s something more deeply troubling here though, something almost bloodthirsty about this law. The death penalty by hanging would be the default punishment, could not be pardoned, revisited or overturned by higher authorities, and would be carried out speedily after sentencing. Rabbi Rivon Krygier has already spoken eloquently and adequately (here) about the way that the Torah allows for the death penalty, and doesn’t flinch from punishing evil, but advocates from restraint in even extreme situations, and extremely cautious with irreversible punishment. Maimonides says this explicitly: “If we apply non-rigorous standards of judgement, we may come to kill an innocent person, and it would be better to absolve a thousand guilty men than to ever spill innocent blood.” (Sefer Hamitzvot, Lo Taaseh 290) This law was quoted by Rav Moshe Avigdor Amiel, the chief rabbi of Tel Aviv after rioting in the city in 1938.

[Revenge killing of Arabs] is forbidden by the law of You Shall Not Murder… even if we would know clearly that this would lead us to a complete redemption, we should push such a ‘redemption’ away from us with two hands, and not be redeemed through blood. Moreover, even if we were to capture these Arab murderers and would have a doubt that among a thousand of them even one was innovent, we would not be allowed to touch them, knowing that perhaps the innocent would too would be killed.” (Techumin 10, p.148)

One of the objections to this law is its slippery slope aspect. It’s not difficult to imagine lax standards to implicate anyone associated with a terrorist attack, fuelled by vengeance and pain. But I would go further and say that even with iron-clad proof of the crime, the death penalty itself is not what the Torah wants. Now you’ll object — but the Torah says it explicitly! But we have an idea that humanity should be moving along towards ethical and spiritual refinement, and that civilisation is not stagnant.

Two giants of halakha in the twentieth century wrote concerning the death penalty in the United States. Rav Moshe Feinstein wrote to the governor of New York in the 1980s to explain that Jewish tradition used the death penalty in only the most exceptional cases, and otherwise punishments involving death were to be left to the hands of God (Igros Moshe HM II:68). Rav Yosef Eliyahu Henkin saw its abolition as a preparation for the messianic age.

“ביטול דיני נפשות על ידי גלות סנהדרין... אולי נסבה מה’ יתברך בתור הכנה לימות המשיח והוטל עליהם לבטל יצרא דשפיכת דמים כמו שנעקר יצר דעבודה זרה מלבם” // קץ הימין, הדרום י (תשי”ט), עמ’ 6.

In the same way that the Sanhedrin exiled themselves in order to stop sentencing Jews to death (cf. Avodah Zarah 8b)… perhaps this came about through divine intervention as preparation for the days of the Messiah, and they needed to abolish from humanity the desire for spilling blood, just as they had done with the desire for idolatry (cf. Sanhedrin 64a).

Perhaps all this can be summarised in the words, not of a rabbi but of Robert Badinter, who both drove the abolition of the death penalty in France, and oversaw the trial of Klaus Barbie, the Nazi commander who has signed the orders to kill his parents. There, the evidence of the crime was unquestionable. Yet knowing that Barbie would be imprisoned for life rather than executed, he exclaimed “This is the true victory of civilisation.”

I hope to hear the same words when this law is revoked in Israel, and hope that one day soon, the Jews will again be known for their aspects of mercy, modesty and kindness. I encounter these traits every day in the community around me, I know that they are the essence of who we are, and I hope that soon our anger and pain subside enough for them to be acknowledged.

Chag Sameach.