Winter 1984 - 1985 - Quarterly Review

QUARTERLY REVIEW, WINTER 1984
because humanity is created in the image of God (Gen. 9:6). Rabbinic
sources adopt the same approach when they state:
It is written, "I am the Eternal, your God" and over against this it is
written, "You shall not murder." Torah testifies that one who
murders is regarded as one who lessened the Image of the King. . .
(Mekilta, Bahodesh, 5).
This concern for the value of a life because each life is unique, i.e.,
each human life is "one" just as God is "one," meaning without peer
(compare Exod. 15:11), led to a deepening of the meaning of "You
shall not murder." Indeed, the sense of the value of the individual
finally prompted the rabbinic legal tradition to re-evaluate the
question of the meaning of capital punishment. This led to a change in
the sense of capital punishment's purpose which, for the Bible, is
either retaliation, deterrent, or the maintenance of an orderly society
(Lev. 24:17-22; Deut. 17:6-7, 12-13). For the rabbis, however, capital
punishment was part of a program of repentance. Violation of those
laws in the Torah which required the death penalty were sins needing
atonement. Hence, "those sentenced to death confess" (Mishnah,
Sanhedrin 6:2) because their death is their atonement and is
efficacious only when accompanied by penitence.
This new sense of what capital punishment represented, as well as
further consideration of the concept of the image of God, pressed
some rabbis toward the conclusion that capital punishment should be
avoided even in cases where the Torah might require it. From their
perspective, the Torah could be construed to demand total certainty
that a crime carrying the death penalty was committed with criminal
intent and awareness of the penalty. Furthermore, the Torah's
concern for careful examination of witnesses in death penalty cases
(Deut. 19:18) could serve as the basis of such meticulous scrutiny that
no two witnesses could produce equivalent evidence except in the
rarest cases. Both "strategies" were employed, and the end result is
found in a statement by R. Akiba, one of the greatest sages of rabbinic
Judaism (ca. 90-135): "Had I been a member of the Court when it was
empowered to impose the death penalty, no person would have been
put to death" (Mishnah, Makkot, 1:10).
The process we have described does not abolish the Torah's law of
capital punishment. Given rabbinic theology, that could not happen.
Rather, some rabbis interpreted certain requirements of the Torah
stringently, for example, the laws of testimony, in order to make
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