==Rabbi Moshe Feinstein==

In 1981, the late Rabbi Moshe Feinstein addressed this question in

Igrot Moshe, Choshen Mishpat, Vol. 2 ch. 68. He wrote that the Torah

prescribes capital punishment for a number of grave offenses,

including murder, certain types of kidnapping, adultery and idol

worshiping. The transgressors in these cases, he explained, are

capable of committing all kinds of atrocities and cruel acts for their

own benefit. The punishment, however, was not to be inflicted because

of hatred for the offender or concern for the survival of society, for

it is the Jewish belief that G-d will punish the offenders (Bava

Metzia 83b). The purpose of inflicting capital punishment for these

offenses is to educate people about the severity of the offenses,

rather than to end the life of the offenders.

Jewish law strongly emphasizes the significance and value of every

soul, including those of offenders. For this reason only a

twenty-three member court, a small Sanhedrin, is authorized to try

capital crimes. Only prominent scholars, well-versed in the wisdom of

the Torah as well as in other scholarly disciplines, and who possess

excellent values, qualify for membership on this court. A candidate

must be humble, G-d fearing, one who despises money, a lover of truth,

beloved by people for his qualities of goodness and humility, and who

is sociable, self-composed, compassionate and not the subject of any

gossip. For this reason a childless person or a very old one, who has

forgotten the pain of raising children, is not qualified for

membership on the court, because this person might lack compassion and

become unduly harsh with offenders. Furthermore, these righteous and

excellent judges cannot try offenders of capital crimes in a court

that consists of less than twenty three members. In addition, three

rows of scholars (candidates for serving on the court) are seated in

front of the court, watch the proceeding and alert the court to any

error which might lead to an unlawful conviction. These scholars,

however, cannot intervene when the error favors the defendant.

Circumstantial evidence is inadmissible; to convict the defendant two

qualified witnesses who have no material interest in the case are

required. Prosecution witnesses are disqualified if they are motivated

by a desire to testify in order to escape punishment. The witnesses

must be warned about the graveness of perjury in general and in

connection with capital punishment in particular. Furthermore, the

defendant must have been warned prior to committing the crime about

its severity and must have acknowledged an awareness of it.

Because of all these requirements, execution of criminals in the

Jewish community was rare, taking place only once in many years.

Furthermore, capital crimes were tried only at the time of the Holy

Temple, in which the Great Sanhedrin, consisting of seventy one

members, was housed. Following the destruction of the Temple, capital

crimes were not tried in Jewish courts even when they were granted

jurisdiction by the state to try Jewish criminals according to Jewish

law.

These rules, however, applied in normal times when murder was rare and

committed as a result of unrestrained passion or during a dispute over

property or because of injury to one's honor. In case one killed out

of cruelty and indifference of the prohibition of murder, or when

murder became widespread, the strict evidentiary and procedural rules

in favor of defendants in criminal cases were relaxed, and criminals

were convicted and executed. Note that the above deals with cases

where Jews are governing Jews under Jewish law.

With respect to countries such as the United States, one must look at

the imposition of capital punishment under Noahide law, which applies

to non-Jewish people, or the power of a king or a state legislature to

impose capital punishment, based upon the principle of dina

de'malchuta dina, literally, "the law of the state is the law." The

authorization for the imposition of capital punishment and the

relevant evidentiary and procedural rules under Noahide law or the

principle of dina de'malchuta dina are entirely different from those

under Jewish law.

The question of capital punishment under the Noahide code was

discussed in the Talmud. See B. Talmud, Sanhedrin 57a-b. It was

decided that all seven Noahide laws are capital crimes. (Maimonides,

Mishneh Torah, Judges, the Laws of Kings 9:14) Under Noahide law one

may be executed based on the testimony of one witness or a confession,

and without a prior warning. (Maimonides, ibid, 9:14; Chinuch ch. 26)

According to one opinion, a criminal might be executed under Noahide

law based upon circumstantial evidence (Rabbi Z.H. Chayoth, Ma'aritz

Chayot, Vol. 1 ch. 49). According to Maimonides, non-Jews are required

to establish a judicial system and apply the Noahide law, including

the imposition of capital punishment (Maimonides, ibid, 9:14). It

would appear, then, that American courts might be required under

Noahide law to impose capital punishment for the violation of any one

of the seven Noahide laws based upon one-witness testimony,

circumstantial evidence or a defendant's confession.

Similarly, the imposition of capital punishment by a non-Jewish state

under the principle of dina de'malchuta dina does not require the

application of strict evidentiary and procedural rules as in Jewish

law. For instance, the testimony of one witness or the defendant's

confession might suffice to convict a defendant (Rabbi B. Ashkenazi's

commentary (Shita Mekubetzet) on Bava Metzia 83b-84a, citing Ritva)

Although the principle of dina de'malchuta dina was primarily intended

to subject Jewish people to the authority of a non-Jewish state, it

could a fortiori apply also to non-Jewish people. This is because the

underlying theories of this principle, e.g., the people's implied

consent to the state's authority, or the power of the state to expel

disobedient inhabitants, applies to everyone. The restrictions in

Jewish law on the execution of criminals, delineated by Rabbi

Feinstein, are limited to trials conducted according to biblical law.

A Jewish king, however, is not subject to these restrictions and may

execute criminals more easily than a Jewish court. (Maimonides,

Mishneh Torah, Kings, 3:10, 4:1-3; Drush ha-Ran, ch. 11). The

principles which guide a non-Jewish king regarding capital punishment

are more readily compared to those which guide a Jewish king, rather

than those which are applied by a Jewish tribunal. Furthermore, some

scholars believe that the power of a non- Jewish king or government to

try criminals is based on the Jewish king's prerogatives under Jewish

law. (Rabbi M. Meterani, Kiryat Sefer, the Laws of Robbery and Lost

Objects Ch 5; Maimonides, Guide for the Perplexed, Vol. 3, ch. 40).

Consequently, a non-Jewish king is not subject to the restriction

applied to Jewish courts with regard to punishment of criminals.

==Rabbi J. David Bleich==

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