Makkot 7a: Jewish Law and the Death Penalty Debate in America – Part I

Rabbi Daniel Z. Feldman             

One of the most controversial topics of modern times, the Death Penalty debate, was highlighted in the recent Daf Yomi (7a), as well as being a frequent topic of the previous tractate, Sanhedrin.  Assessing a Jewish perspective on this issue, and how it could be applied to American society, is a complicated venture.  Many are aware that the Torah itself incorporates capital punishment for numerous offenses, and thus seems not only to condone but to mandate the practice.  Competing with this impression, though, is not only the reality that biblically ordered executions are not performed today, but also the well-known Talmudic opinion recorded in the mishnah on that recent daf, that even in that period, a court that executed once in seven years, or according to another view seventy years, was considered “murderous”.  The intuitive and popular reconciliation is to limit the concept to the theoretical (or largely so).

 

While this notion may or may not be of substantial merit, the truth is in any case not so easily attained.  The views of the Torah and the Talmud on the matter are rich and multifaceted, and extrapolating a single position requires careful consideration of myriad details, analyses, explanations and applications.  Extraction of a “Jewish” view on the subject is further hampered by the fact that references in the literature could be to any of at least three contexts: execution by the Sanhedrin of a transgressor of a biblically prescribed capitol offense, under the necessary circumstances; execution under unusual, exigent circumstances; execution by a non-Jewish court, the establishment of which is also mandated by the Torah. Thus, before application of any source to general society is possible, two questions must be considered: first, is this reference grounded in the proper context, and second, if it is not, perhaps it nonetheless reflects an attitude or principle that is abstractable and thus maintains relevance.

 

A discussion of capital punishment might appropriately begin with some reflection on the nature of punishment in general, its goals and its functions.   A debate that appears purely technical may nonetheless be illuminating in this regard.

 

It is commonly assumed, although without absolute unanimity, that the commandments of the Torah number six hundred and thirteen. That the Sanhedrin executes guilty parties by force of such commandment is not in dispute.  The question, however, is to the precise number of commandments involved. Nachmanides (Glosses to Maimonides’ Sefer haMitzvot, shoresh 14) includes all executions within the rubric of one general exhortation: “you shall eliminate the evil from your midst”.  The author of the Halakhot Gedolot (quoted by Maimonides, ibid; note the defense of this position by Nachmanides, despite his own differing opinion, in his gloss.) stakes a position at the other extreme, listing separately each and every offense that carries the capital punishment.  Maimonides (Sefer haMitzvot, shoresh 14, and positive commandments 226-229) takes sharp issue with that opinion, and himself falls in between the two, listing four commandments, one for every prescribed method of execution: stoning (sekilah), burning (sereifah), sword (hereg), and strangulation (chenek). (As to technical issues concerning Maimonides’ opinion, see R. Moshe Rosmarin, D’var Moshe, Sanhedrin #272)

 

This dispute, while indeed technical in nature, may be conceptually motivated at its base.  Punishment, in all forms, is motivated by several factors and goals.  These elements might be grouped into three categories, each focusing on different parties affected by the punishment.

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On one, very practical level, punishment protects society.  This is particularly applicable to punishments of incarceration or execution.  When one is exerting a destructive impact on the surrounding society, whether by directly endangering life or property, or by lowering the standards of that society and negatively influencing others, there develops an immediate necessity to remove that element from the general population.  Thus, one function of punitive measures is the insulation of the community from harmful individuals.

 

Another level of punishment exists for the benefit of the transgressor himself.  Within a secular framework, such a concept is relevant only to penalties other than execution, to those that can be hoped to somehow rehabilitate the offender.  Certainly when punishment is applied to children this is a frequent theme, and even adults placed into the criminal punitive system may be there to “save them from themselves” and guide towards a more productive future.  Within a religious framework, this element can be present in capital punishment as well.  As it is believed that the soul can suffer after death as well, it is then conceivable that such suffering can be mitigated by punishment on the temporal plane.

 

Finally, punishment exists for the offense itself, that is, to confirm its definition as such.  A crime that can be committed with impunity ceases to exist as a crime.  Penalty serves to maintain the criminal nature of the action, to assert in a meaningful manner that it is a transgression not to be condoned.  Thus, regardless of the need of society to be protected, or of the individual to receive rehabilitation or atonement, punishment is imposed.

 

It might be suggested that the difference of opinion as to the counting of the commandments centers on the issue of the prime motivation for punishment.  To Nachmanides, who locates all executions within a single imperative of “eliminating evil”, the focus appears clear: protect society, practically, physically, morally, by eliminating the harmful element.  All execution shares this function.  The method, or the specific crime, is possibly very significant, but takes secondary importance to this function.

 

Alternatively, the second possible function, penalty for the benefit of the transgressor, may figure prominently in the thinking of Maimonides, who groups execution into four categories, paralleling the methods of execution.  These methods are distinguished from each other in that they differ in severity.  Thus, a more severe punishment is applied when a greater need for atonement is present.  In the words of English writer George Ollyffe, "An execution that is attended with more lasting torment, may strike a far greater awe." (An Essay Humbly Offer'd, for an act of Parliment to Prevent Capital Crimes", cited in Stuart Banner, The Death Penalty: An American History, p. 70). It follows, then, that the main issue at hand is the benefit to the transgressor himself, and his need for expiation determines the listing of commandments in this regard.

 

In a modern, secular context, it might be assumed that capital punishment is taken as an absolute, not subject to either dilution or intensification.  It is interesting to note, as Stuart Banner does, that this was not always the case, particularly at that point in American history when alternative punishments had yet to be developed. "Capital Punishment was more than just one penal technique among others.  It was the base point from which other kinds of punishment deviated.  When the state punished serious crime, most of the methods at its disposal were variations on execution.  Officials imposed death sentences that were never carried out, they conducted mock hangings ... and they dramatically halted real execution ceremonies at the last moment.  These were methods of inflicting a symbolic death, a penalty that mimicked some aspects of capital punishment without actually killing the defendant.  Officials also wielded a set of tools capable of intensifying a death sentence - burning at the stake, public display of the corpse, dismemberment, and dissection - ways of producing a punishment worse than death.  Taken together, these provided a wide range of possible punishments for serious crime, within a penal system that in principle included only one. (p. 54)”.

 

Finally, the position of the Halakhot Gedolot might be said to reflect the third theory mentioned above, that of penalty affirming the criminal nature of the offense.  Each instance of capital punishment mentioned in the Torah is counted separately, as each is attached to a distinct offense, which it thus maintains and enforces.

 

Allowing focus to fall on one of the above three aspects potentially enhances the understanding one may bring to the halakhic penal system.  For example, the laws calls for a convict facing execution to be served substances to induce intoxication that will have the effect of dulling the physical pain of execution (Sanhedrin 43a, and see S’makhot 2:9; Mishneh Torah, Sanhedrin 13:2.). This practice was in effect even when the harshest method of execution, stoning, was called for.  As some authorities observe (See R. Moshe Sternbuch, Moadim U’Zmanim VI, 30, and also R. David Sperber, Responsa Afarkasta D’Anya, Yoreh Deah, 187), this reflects the understanding that the main objective of capital punishment is “eliminating evil”.  Once that goal is accomplished, it becomes desirable to minimize suffering to whatever extent possible.  This, despite the fact that a particularly harsh method is intentionally in employ; that serves to heighten public awareness of the crime, but need not impose itself completely upon the convict. (It is important to note that R. Sternbuch draws a distinction in this regard between capital punishment and corporal punishment (lashes).)

 

That last point raises a fascinating issue. It is granted that the court, representing society, is charged with punishing the guilty.  To what extent can the religious obligation inherent in the penal process be said to take hold upon the convict himself?  If the imperative is one of ridding society of deleterious influences, can these very influences, as members of that society, be asked to willingly partake in that process?  Further, if punishment is considered to center on benefit to the transgressor, is that transgressor thus bidden to actively participate, beyond the confession and repentance vital to achieving atonement?

 

The question of the obligation of the convict to take part in his own execution is one that was taken up by several Rabbinic authorities and that affects certain details of the process.  Among these authorities was the Kogaglover Rav, R. Tzvi Hirsch Frimer, who found that the convict was responsible to comply with his own execution (Responsa Eretz Tzvi II, 66.  Note, however, the conflicting statements in his Siach haSadeh, Sha’ar Birkat HaShem, #7 ).[10]  Nonetheless, he is not licensed to enact the penalty upon himself; by definition it must be externally imposed, “by force and strength, in a manner of punishment” (see also R. Elchanan Wasserman, Kovetz Shiurim, II, 13:3 ) As such, the responsibility is thus upon the court, with mandated cooperation by the convict. R. Frimer supports this by noting that the equipment used in the execution was from communal property (note the critique of R. Mordechai M. Z. Babad, Minchat Machavat, II, 135). 

 

Other authorities exempted the victim from any participation (See, for example, R. Ya’akov Breisch, Responsa Chelkat Yoav, mahadurah kama, C. M. 15).[13]  R. Chaim Elazar Schapiro, the Munczacer Rebbe, felt that the convict was morally obligated not to flee, but was unsure of the status of one who felt himself unjustly convicted (Responsa Minchat Elazar I, 18:4; see also his discussion (II, 50), concerning a convict who has become mentally incapicitated: as he is thus exempt from religious obligations, the viability of a mandated execution that cannot contain his participation is thrown into doubt.  See also R. Joseph Rosen,  Responsa Tzofnat Pa’aneach, Warsaw, II, 19).

 

Essentially, though, the obligation devolved on the community, as indicated by the Talmudic discussion.  Stuart Banner notes that this perception was palpable in the society of early America as well, evident in the use of nonprofessional executioners: "In the 17th and 18th centuries the amateur hangmen reinforced the communal nature of capital punishment.  Executions were often conducted by true representatives of the community, men without any specialized training, men who were known to the spectators as friends and neighbors.  A professional executioner might be seen as an agent of the central government, but an American sherrif was a member of the local community." (p. 38).  Banner goes on to note that this was a reflection not only of communal obligation but of attitude: "Acted out through the sheriff or his hired hand, the hanging ceremony embodied norms that were truly popular."

 

Beyond the defining of the theoretical underpinnings of the commandment of capital punishment, the actual implementation was indeed obstructed by several substantial obstacles. 

 

First of all, the capital jurisdiction of the Sanhedrin was greatly delimited, both in terms of time and of location.  The Sanhedrin tried capital cases only when they sat in their office in the hewn-stone chamber (Lishkat ha-Gazit), within the Holy Temple and under the influence of the Divine Spirit; once they were in exile from that place, they no longer undertook such cases (see Shabbat 15a).

 

The Talmud is replete with astounding restrictions on the Rabbinic license to execute.  Some of these of course flow from the hesitancy to impose the irreversible death sentence.  Another element is the structure of the process, which differs significantly from the American model.  Under the U.S. adversarial process, the defendant is either assigned or hires an advocate who advances the arguments for defense, countered by the prosecutor, who presents the case to convict, representing the government, which has already decided on the guilt of the defendant and has therefore brought him to trial.  A presumably neutral jury is charged with evaluating the evidence and voting to convict or acquit, and a presumably objective judge presides over the entire venture.  Witnesses, essentially, are presenters of evidence.

 

The Sanhedrin operated under a markedly different understanding. The judges acted in the triple role of judge, jury, and defense attorney, burdened with the obligation of searching vigorously for exonerating evidence.  The role of prosecutor is assumed by the witnesses, who in presenting their incriminating testimony are transformed into advocates for conviction.

 

The opinion of R. Akiva and R. Tarfon in the above-cited mishnah (Makkot 7a) is that if they were on the Sanhedrin, no one ever would have been executed, and the view criticizing a court that executes once in seven years is codified by Maimonides (Hil. Sanhedrin14:10), who emphasizes the great care necessary in deliberation. Some suggest that this also emphasizes a responsibility on the leadership to pray that such things not happen (see R. Yitzchak Isaac Leibes, Noam, pp. 121-122, “Al Davar Onesh Mavet LaRotzchim”).

 

One example of the restrictions placed upon the judges is the dictum that a court who actually witnessed a murder becomes ineligible to adjudicate.  Having witnessed the crime, their ability to exonerate the defendant would consequently be hampered (Rosh HaShanah 26a).

 

A vital ingredient in the process, and one that greatly impedes the likelihood of conviction, is the necessity of issuing a warning ("Hatra'ah").  This element calls for the witnesses, two reputable, observant, adult men, not related to one another or to the principals, to advise an individual suspected of intending a crime of the illicitness of the behavior, and that there are consequences.  Further, the suspect must explicitly accept the warning and express his understanding of its message.  In the United States, prosecutors have been frustrated by arrests invalidated due to a failure to issue a Miranda Statement.  The prosecutors in front of the Sanhedrin were hampered by a more complicated statement, issued necessarily before the very commission of the crime.

 

One more element greatly increased the difficulty of this aspect.  It was not enough to issue the warning, and for the suspect to affirm it.  The warning also had to be issued in extremely close proximity to the commission of the crime, in a time period variably measured as between three and nine seconds, known as tokh kdei dibbur (see Sanhedrin 40b-41a and Ketubot 33a).

 

This last detail is certainly striking. The basis for its requirement is the concern that the suspect may have forgotten the warning, nullifying its value (See Rashi, Sanhedrin 40b, s.v. hemit).  However, it is exceedingly unlikely that such an extremely short time elapsing will lead to forgetting a message of such consequence (See Ketzot HaChoshen, 28:8)

 

Rabbi Joseph B. Soloveitchik advanced a different understanding of the function of the warning.  Indeed, the warning served to ascertain the willfulness of the criminal; the Sanhedrin would not punish a crime committed without intent. However, intentional transgression in and of itself does not suffice to merit execution.  The Sanhedrin administers punishment not only for a willful transgression, but primarily for the rebellion against God contained within the action.  The goal of “hatra’ah”, then, was not only to ascertain intent but to measure the degree of open rebellion.  For several seconds after hearing something, the effect lingers in the mind.  Thus, a crime committed in that time period is one perpetrated at the very moment one is consciously meditating on its egregiousness.  It is only that level of blatant defiance that merits the Sanhedrin’s harshest penalty (similarly, see the comments of R. Zalman Nechemiah Goldberg, Lev HaMishpat, introduction, as cited by R. Aryeh Yitzchak Koren.   R. David Sperber (Responsa Afarkasta D’Anya, IV, 368) advances an alternate theory, along technical lines, suggesting that one who delays acting after hearing the warning may be considered to have reconsidered as a result, and the subsequent crime, a reversal of that reconsideration, is a new decision unconnected to any warning and thus unpunishable.

 

The efforts to exonerate did not end with the conviction.  Still open to any possibility of error, the Sanhedrin would continue to invite exculpatory evidence up until the actual execution.

 

The Sanhedrin’s hesitancy to execute, from both external and internal considerations, may give comfort to opponents of the Death penalty.  However, even those thus inclined must be given pause when confronted with the image of a near-impotent Sanhedrin, unable to rein in even wanton murderers.  What hope is there for a society guarded by a toothless court?

 

It thus must be realized that in actuality the Sanhedrin served a dual function.  On one level, the rabbinic tribunal was the vanguard of the Jewish religion and ritual, charged with placing human authority behind biblical exhortations.  In this capacity, the Sanhedrin indeed appears to have proceeded with unusual caution and an extreme sensitivity to the remotest possibility of innocence.

 

However, the Sanhedrin also functioned as a civil court, not only in the sense of adjudicating disputes but also in the protection of the welfare of the populace.  As will be discussed, the Sanhedrin was not alone in this responsibility. When an individual was in actuality posing a threat to society, the Sanhedrin would act outside the constraints of its normal code and act decisively to respond to the threat (see Sanhedrin 46a, and Mishneh Torah, Hil. Sanhedrin 24:4 and Hil. Rotzeach 2:4).

 

Rabbinic authorities differed as to the historic span of this license.  Some were of the opinion that only during the Temple period were the rabbis thus empowered,  while others did not assume such a limitation. Still others acknowledged some level of extralegal rabbinic authority, but drew the line before allowing an execution under those circumstances (see Sanhedrin52a and Nimukei Yosef); one method the Talmud, involving detention leading to death, does describe was particularly designated for dealing with murderers (see Sanhedrin 81b, Mishneh Torah, Hil. Rotzeach 4:8, and Hil. Sanhedrin 18:4). (See R. Yechiel Michel Tukachinsky, HaTorah VeHaMedinah IV, pp. 33-44 “Mishpat haMavet al pi haTorah b’Avar u’b’Hoveh”).

 

As noted, the Sanhedrin was not the only entity charged with defending the public well-being.  In essence, this responsibility fell on the seat of government, the “executive branch”, so to speak.  For much of Jewish history, this meant the monarch, who constituted an authority in and of himself.  In this authority, known as Mishpat haMelekh, or “Justice of the King”, he was granted broad autonomy in imposing punishment. The nature of this authority was discussed at length by one of the preeminent medieval rabbinic scholars, R. Nissim of Gerondi, in his homlies (Derashot HaRan, 11).

 

The issuing of defining the parameters of Jewish governmental authority was a moot one for several centuries.  However, in 1948, that dramatically changed, with the creation of the modern state of Israel. Suddenly, questions long thought theoretical were given urgent moment.  How does a Jewish state handle its criminals?  What type of penal code would best reflect the ideals and values guiding the newborn state?

 

The question was debated in the Knesset, the Israeli Parliament, and simultaneously brought before prominent rabbinic scholars of that era. The feeling was largely that the modern state, while not empowered as a Sanhedrin, would have the powers of “Justice of the King”; however, that would limit them only to that which was necessary to protect society, which they felt that life imprisonment could accomplish. This is a point currently up for intense debate.

 

The entire discussion until now, with all of the suggested possibilities, has in actuality been a very limited one.  This is because it addressed capital punishment within a very constricted context, that is the enactment of the death penalty by a Jewish Sanhedrin in punishment for a capital crime as dictated by the Torah and under the circumstances so dictated.  However, an often overlooked fact is that this is not the only manner of execution that is recognized by Jewish law and philosophy, and certainly not the only manner that is relevant in a discussion meant to reflect on the question of the death penalty in general society.

 

The Talmud (Sanhedrin 58b-59a) relates that aside from the six hundred and thirteen commandments incumbent upon Jews, there are seven that are applicable to humanity as a whole.  These precepts are known in Hebrew as the sheva mitzvot b’nei Noach and in English as the seven Noahide laws.  These include six prohibitions: murder, idolatry, blasphemy, sexual immorality, theft, and eating the flesh of a live animal.  The lone positive commandment is that of din, or justice.

 

The practical understanding of that single positive precept is debated by Maimonides and Nachmanides.  The context of their dispute is the interpretation of a biblical event: the killing by Simeon and Levi of the male population of Shechem, following its eponymous leader’s rape of Dinah.  Maimonides, in his Mishneh Torah (Hilkhot Sanhedrin 9:14) explains their actions in light of the imperative of din. This principle demands the institution of a system of justice and punishment, to enforce the six prohibitions.  Laxity in this task is a violation of the Noahide code, which is punishable by death. Thus, the populace’s harboring of a criminal made them deserving of execution themselves.

 

Nachmanides (Commentary to the Bible, Genesis 34:13) takes issue with Maimonides’ reading of the narrative, noting that had Simeon and Levi indeed been justified, Jacob would have taken part himself, or at the very least not criticized his sons for their actions.  Beyond that point, Nachmanides differs in his interpretation of the din imperative itself.  The focus of the commandment is not the institution of a criminal justice system, but rather the enactment of a civil code.  This is to parallel that of the Jewish civil code, known in the Code of Jewish Law (Shulchan Arukh) as “Choshen Mishpat”.  Such a system would, of course, incorporate courts. Further, notes the Ramban, even if the focus were a criminal justice system, failure to implement this would not be punishable by death; that penalty is reserved for the active transgression of prohibitions.

 

Commentators differ as to which interpretation is more compelling (See Lechem Mishneh, Mirkevet haMishneh, and Masa Bnei Kehat to Mishneh Torah, and Divrei Shaul to Genesis, as well as Torah Temimah, Genesis ch. 18, # 42), and the issue is taken up by R. Moshe Isserles, the Rama, in a responsum (#10), who traces the matter to a dispute in the Talmud (Sanhedrin 56b; See also R. Yaakov Etlinger, Arukh L’Ner to Sanhedrin, and R. Shmuel Greinman, Chidushim U’Biurim to Sanhedrin (56b, #9), and note the alternative interpretation of R. Joshua Baumol, Responsa Emek Halakhah, II, 12). In either case, certain principles are agreed upon, including that at least in theory transgressors of the Noahide Code are eligible for execution, as stated in the Talmud (note R. Moshe Sofer, Responsa Chatam Sofer, likutim, VI, 14, who minimizes the ramifications of the dispute in regards to monetary law; see also R. Abraham Borenstein, Responsa Avnei Nezer, Orach Chaim324:6).

 

The details and circumstances of this execution are subject to much discussion. At the very least, the standards for conviction are lesser than that required by the Sanhedrin, as the testimony of one witness (even a relative) suffices, without having issued the formal hatra’ah, and the judgment can be made by a single magistrate (see Mishneh Torah, Hilkhot Sanhedrin 9:14).

 

Nonetheless, the suspect is still entitled to due process.  R. Chaim Sofer (Responsa Machaneh Chaim, II, Orach Chaim 22) observes that while the standards for conviction may indeed differ, basic fairness and justice make it inconceivable that anyone would be executed without having had an opportunity to follow a different path.  Thus, it must be assumed that the imperative of din requires not only the appointment of judges, but also the education of the populace in the principles of Noahide law, without which capital punishment would be unjust. (Note, however, Tosafot, Sanhedrin 66b, s.v. yatzu.  As to the responsibility of the Noahide for his own moral education, see Mishneh Torah, Sanhedrin 10:1; R. Yehudah Graubart, Responsa Chavalim B’Ne’imim, I,4; and R. Yoel Teitlbaum, Responsa Divrei Yoel, Yoreh Deah, 92:8.)

 

Whether or not that capital punishment is absolute is also debated.  R. Yoav Yehoshua Weingarten (Responsa Chelkat Yoav, 14) suggests that in matters of interpersonal law, the death penalty would not be imposed if the society in question has put into place a system calling for an alternative punishment.  R. Aaron Soloveichik (Beit Yitzchak journal, vol. 19, (5787), pp. 335-339.) goes further, positing that the death penalty is only the upper limit of what is actually a matter of judicial discretion.  Banner notes that this was also the perspective of colonial America:  “Americans of the 17th and 18th centuries assumed that the written law provided only an upper limit to the punishment a criminal might receive.  While every death sentence was the same, the circumstances of every capital crime were different, and so were the life histories of the condemned criminals.  The power of clemency was understood as a means by which the state could tailor the sentence to the individual case" (p. 54). The possibility of alternative penalties is also examined by R. Meir Dan Plotski ( Chemdat Yisrael, p. 99, #30.  Note also his citation of Zekhuta D’Avraham).

 

In any event, the halakhah clearly recognizes the authority of a secular court system, and appears to further call for its imposing of the death penalty at least under some circumstances. This court system, to whatever degree it may or may not resemble the functioning of the Sanhedrin, can be said to differ from that body in a fundamental sense. 

 

The Sanhedrin played a role that was functional but religious as well.  The establishment of justice within Jewish society was certainly utilitarian but had a ritual aspect as well, as is evident from many of the highly specific details, reminiscent of other mitzvot of the Torah.  Indeed, the Talmud (Berakhot 6a, per Psalms 82:1) derives that justice is also called “Torah”.  This is however not the case when dealing within the secular system.  There, the court is purely functional, acting to prevent anarchy and chaos from engulfing society (see the commentary of the Meiri to Sanhedrin). Thus, while fairness must be maintained, the standards are not the same as that of the Sanhedrin, where rules are influenced by ritual considerations as well (See R. Baruch Rakovsky, Birkat Avot, 55, and R. David Yitzchak Man, Be’er Miriam, to Mishneh Torah, Hilkhot Sanhedrin.)

 

In light of all the above, it would seem clear that the question of the Death Penalty in America is a completely different one from that involving the Sanhedrin, and citations from the latter context should not be relevant to the former. It is thus perhaps surprising that R. Ahron Soloveichik, in a profile in New York Magazine (January 30, 1995) is quoted as advising then-newly elected NY State Governor George Pataki, who had run on a pro-death penalty platform, with a citation from our mishnah:

 

“the Jewish view on the death penalty is that it should exist but it should never be used. How do you explain this apparent variance? You must return to the sources. The Torah provides the death penalty for no fewer than 36 sins. Yet the Talmud, the oral law, says that any Sanhedrin that enacts the blood the death penalty once in seven years is a bloody Sanhedrin. So you have the written law mandating the death penalty and the oral law saying, in effect, that you can never apply it. Now, the death penalty should be there for use in extraordinary situations, in extraordinary threats to the public order. And it is Governor Pataki's job to ensure order. But he must remember that as a leader, he must exhibit attributes of both the father and the mother. Governor Pataki is a nice man. But if he acts on the death penalty, he will be the leader of a bloody government.”

 

If, indeed, the rules for the Sanhedrin and the civil court system are different, how can R. Soloveichik apply sources from one context to the other? (It is noteworthy that R. Moshe Feinstein also advised a NY State governor, Hugh Carey, on the death penalty; see Resp. Iggerot Moshe, CM II, 68). However, in light of a reference noted earlier, it can be understood. R. Soloveichik elsewhere (in the journal Beit Yitzchak) had explained that in the civil court system as well, in his understanding, capital punishment was not mandatory, but a tool at the discretion of the judges. If so, even if the rules differ, the philosophy of the Sanhedrin is greatly relevant to analyze to inform the discretion needed for the civil system. This is a process that is far from simple, but life, death, and the well-being of society depend on its wisdom.