Jewish Law

It never fails that when I share the gospel of the Torah, or even mention the word Torah, or law the same question almost always comes up. “What? Do you expect us to go back to the days of stoning one another every time someone steps out of line?” Or some variation, usually having to do with stoning our children. I usually try, with no avail, to show them the beauty of God’s Law, and how it is a Law of Life and not death (Lev 18:5). But usually ignorance born of tradition, and lack of context wins out in the end. So, I am writing this to show that even in some of the strictest times in the history of Jewish Law (I am speaking of Jewish Law because we have accurate records of it in action.) which is based on the Torah, it is nowhere close to being as cruel as even our own.

The humanity of Jewish law is most clearly revealed in its at­titude toward capital punishment. While accepting it in prin­ciple as prescribed in the Mosaic law, the Rabbis nevertheless kept from prescribing the death sentence and protected it with so many strict laws of evidence as to make its application almost impossible. A Sanhedrin which imposed capital punishment once in seven years was considered tyrannical. Eleazer b. Azariah added, "even once in seventy years." R. Tarfon and R. Akiba declared, "If we had been members of the Sanhedrin, no man would ever have been put to death." The strong tendency of Pharisaic legislation was to do away with capital punishment altogether, and there was a marked trend to mitigate all forms of judicial punishment.

No circumstantial evidence was admissible in capital cases. If it wasn’t concrete it wasn’t allowed. There was a need of at least two reputable eyewitnesses (Duet 17:6). They had to be reputable and there testimonies had to agree on all accounts. No man could incriminate himself—a principle not found in Roman law which so much of our own laws are based upon. Because of this torture was ruled out. Writing of law enforcement in ancient Egypt, at the time of the New Kingdom (16-8 c. b.c.), Erwin Seidl states:

“Criminal law and criminal procedure were inhuman. In contrast to the Jewish law which limited corporal punishment to forty strokes, one hundred strokes was the ordinary punishment in Egypt. Torture was often used, not only upon the accused but also upon independent witnesses. Strange forms of capital punishment seem to have been practiced, such as leaving the prisoner to be eaten by crocodiles. It was a special favor to allow a convicted criminal to commit suicide. Numbers of criminals, with their ears and noses cut off, were con­demned to forced labor in concentration colonies on the frontiers of the country.”

Athens and Rome also permitted the torture not only of slaves but of others to obtain evidence. Roman judicial procedure de­veloped a very elaborate system of torture of the accused (quaestio) and of reluctant witnesses. The Fourth Book of Mac­cabees enumerates a list of the horrible instruments of torture—wheels, joint screws, dislocators, rocks, and bone-crushers, catapults, caldrons, braziers, thumbscrews, iron claws, wedges, and branding irons. From Rome, the institution of torture passed over to medieval Europe and was standard practice in England, Scotland, France, Italy, Spain, Germany, and elsewhere until the eighteenth century. Even today scandals of torture used by investigators on US citizens in the form of sleep and food deprivation are common place in today’s society. Not to mention cases of water boarding within our governmental systems. Which raises the question of just how far even our government will, or can go.

The Church itself, through the Inquisition, and many other periods, employed torture to extort confessions. Heretics were often tortured by the civil power at the direction of the religious authorities. In Asiatic countries, torture as part of the legal system was and in many cases still is almost universal. Modern totalitarian regimes have added psychological forms of torture to the already crowded chamber of human horrors. Jewish law forbade torture. There is no mention of it in the Bible and no reference to it in the Talmud except as employed by the Romans or by King Herod, who in many other cruel respects copied the ways of the Romans.

During the Second Temple period in Jewish law no kinsmen, paternal or maternal relatives, or relatives by marriage could act as witnesses. If the accused had not been first warned by the witnesses of the consequence of his contemplated crime, he could not be found guilty. The court sitting in a capital case was composed of twenty-three judges, and the trial was held in the court of the Hewn Stone in the Temple at Jerusalem. A simple majority was suf­ficient for acquittal, while a majority of two was required for con­viction. All, including the disciples of the Sages who were not among the judges, might argue in favor of acquittal, but not all in favor of conviction. There had to be an opposing voice raised in favor of the accused. Unlike non-capital cases, one who had argued in favor of acquittal could not afterward change his mind and argue in favor of conviction, but he was always free to alter his position in favor of acquittal. A verdict of acquittal could be reached on the same day of the trial, but not a verdict of convic­tion. A verdict of conviction could be reversed, but not a verdict of acquittal.

The judges declared their opinion in order, beginning with the youngest who sat at the sides of the benches which were ar­ranged like the half of a round threshing floor. This was done so that the younger judges might not be influenced by the opinion of their elders. Witnesses were thoroughly examined in inquest and cross-examination.

If the accused was finally found guilty and sentence was pronounced, every precaution was taken to the very last moment of the actual execution, to reconsider the verdict in case any new evidence was presented. The court appeared to be hoping to the very end that some new evidence would turn up to clear the man, or that some technicality would be pointed out to force an acquittal. As the condemned man was being led away to the place of execution, a man stood at the door of the court with a flag in his hand, and another, mounted on a horse, at a distance. If in the court someone said, "I have something new to argue in favor of acquittal," then the man waved the flag and the horseman hurried and stopped the condemned who was being led to execution. Even if the doomed man himself said, I have something new to argue. Even if he said this four or five times, provided that there was any substance to his words. A herald went before him calling out: “if any man knows anything in favor of his acquittal, let him come and plead it”.

When everything failed, the condemned man was urged to make confession. Because it was believed that everyone that makes confession has a share in the world to come. He was given a strong drugged wine to drink to benumb his senses. If his punishment was hanging, his body was let down immediately after the hanging, and was never allowed to remain on the scaffold overnight (Dt. 21:23). That would have been a needless indignity inflicted on a human being.

At every stage of the trial, sentence, and execution, one is made aware of the scrupulous care which Jewish law took to protect the accused—a care scarcely paralleled anywhere in the ancient world, and not everywhere in the modern world. Jewish Law’s deep regard for the sanctity of human life, its vast com­passion for the erring and the sinner, its profound humanity and its instinctive abhorrence of the shedding of blood—even the blood of the guilty—are everywhere in evidence.

Yet many would have us believe that our God the Creator of the world was such a tyrant that we were to stone our children at the slightest offense, and use this as a justification of not following our Father’s law. Yet even Jewish law was more compassionate than our laws today. And anyone who has studied antiquity will know was far more stringent than that of Torah alone.

May many insights into the traditional views be illuminated by this article. It is my sincerest hope that this article will at least raise some questions into the typically negative view of the Will of our Creator or His law, and help to lead us to the truth. Let us pray that our Father gives us His Spirit of wisdom, understanding, and truth.  So we may see and walk as our Messiah walked, and be true disciples in the Name of Yeshua Ha-Mashiach (Jesus Christ).  May we pray for eyes to see, ears to hear, and hearts to change for the glory of our God. The God of Abraham, Isaac, and Jacob.