Drasha
In a famous scene from the West Wing, President Bartlet is struggling with a decision about whether or not to commute a death penalty sentence for a prisoner convicted of a drug crime. After a visit from his rabbi and a sermon montage about how the Torah does not command humans to seek vengeance, Toby Ziegler approaches the president and tells him not to let this prisoner be executed. The President rebuffs that the bible seems okay with the death penalty, to which Toby responds that while that’s true, the Rabbis of the Talmud couldn’t stomach it, and therefore, they legislated it out– a reference to the Gemara in Makkot which severely limits the practical application of the death penalty.
While Toby Ziegler successfully convinced President Bartlet, and Talmudic Logic prevailed, the truth is that the history of Jewish corporal punishment is much more complicated than a pithy Aaron Sorkin scene can capture. While it is true that the death penalty seems to have been rather reserved in its application, other forms of physical punishment and mutilation seem to be commonplace in Halakha and perhaps even in practice. In this week’s Parashah, we learn that those who violate prohibitions in the Torah are punished with 40 lashes– a severe and nearly fatal corporal punishment. In fact, the Gemara in Makkot connects these two corporal punishments, saying that lashes are themselves a mini-form of death penalty– and thereby, is halakhically regulated by the same laws that regulate the death penalty.
At first glance, then, it is tempting to adopt a Toby Ziegler approach, and say that while we acknowledge our discomfort surrounding the brutality of whipping someone 40 times, practically, the rabbis have avoided applying this law, sidestepping the ethical questions. Nowadays, none of us are getting lashed in court for violating prohibitions. Jewish Courts seem to have largely been relegated to monetary matters in the diaspora. However, while that may be true now, when we look across Jewish history, we see a much more complicated picture of corporal punishment. Indeed, Rabbeinu Asher ben Yechiel, the Rush, writes in one of his responsum that upon moving from Germany to Spain he was shocked to find out that the Spanish government had given the Jewish community full legal authority to judge themselves autonomously, and therefore, it was common practice in Spain for the Beit Din to whip, lash, and occasionally even execute sinners. Even more shocking, the Rush writes that while he personally feels uncomfortable by it, since it is the custom of the land he’ll uphold it and sentence people to corporal punishment as well! And, as late as the 17th century, we have examples of Jewish courts maiming or lashing perpetrators as a halakhic punishment. It seems that Toby was wrong, then, when he said that the rabbis didn’t have the stomach for corporal punishment...continued here.
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