disclaimer: I’m no expert- no expert at all. Just an interested secular person who read through this with a friend. To repeat: this is not the flower of expertise! This is a personal journey through a complex and technical text, and there is no weight behind my thoughts except that of the merit of the arguments. If you want to know what’s really going on in this text, consult a historian or a Rabbi.

The following is Maimonides summary of Jewish laws regarding capital crimes, along with my own notes which I wrote to try and help me understand the topic. In the first part we go through paragraph by paragraph. In the second, much briefer part I give my thoughts on this

1 How are cases involving capital punishment judged? When the witnesses come to the court and say: “We saw this person violate such-and-such a transgression,” the judges ask them: “Do you recognize him? Did you give him a warning?” If they answer: “We do not recognize him,” “We are unsure of his identity,” or “We did not warn him,” the defendant is exonerated.

The text begins by giving two important criteria by which capital cases are judged, the witnesses must recognise the offender, and must have given a warning (we will talk more on this later).

Already we see a supreme concern for certainty. Note that the courts questions are two-fold: “Do you recognize him? Did you give him a warning?”, but the possible answers leading to exoneration are three-fold: “We do not recognize him,” “We are unsure of his identity,” or “We did not warn him,”. The additional point which has been added is “We are unsure of his identity.”, although it is included implicitly in the judge’s question that the witnesses must be sure it is further spelt out explicitly to emphasise that it is not enough that the witnesses recognise him, if they say they are unsure.

2 Both a Torah scholar and a common person need a warning, for the obligation for a warning was instituted only to make a distinction between a person who transgresses inadvertently and one who transgresses intentionally, lest the person say: “I transgressed inadvertently.”

Here we diverge radically from all other codes of justice. In other codes of justice it is often said that ignorance of the law is no excuse. Here not only is ignorance of the law an excuse, but even a (possibly momentary) lapse in awareness of how the law applies in a particular case is an excuse. Even a Torah scholar who can be presupposed to know the law must be warned, because for all sorts of reasons he may not recognise- especially in the moment! the application of the law. Thus one cannot be found guilty of a capital crime unless one was warned that one was about the commit the crime.

The gate through which a conviction must travel is becoming narrower as the text proceeds, it’s about to tighten even further

How is a warning administered? We tell him: “Desist…” or “Do not do it. It is a transgression and you are liable to be executed by the court…” or “to receive lashes for it.” If he ceases, he is not liable. Similarly, if he remains silent or nods his head, he is not liable for punishment. Even if he says: “I know,” he is not liable for punishment until he accepts death upon himself, saying: “It is for this reason that I am doing this.” In such a situation, he is executed.

The warning must state what you are not allowed to do. The warning must mention the punishment you are liable to receive. You must explicitly respond to the warning given to you. The response must be verbal. The response must explicitly state that you recognise the punishment. The response must be that: “It is for this reason that I am doing this.”

We have reached an extraordinary moment from a theological, ethical, political and sociological standpoint. In effective terms according to Maimonides no one should be put to death except by their own consent at the time they committed the crime!

Almost unbelievably, the rules will narrow further still.

He must commit the transgression directly after receiving the warning, within the time to offer a salutation. If he waits longer than that, a second warning is necessary.

If he does not commit the deed within the time taken to say a few words after hearing the warning he is no longer liable for punishment. According to commentators this is because it is possible -however unlikely- that he may have forgotten the warning in that time.

It is now entirely clear that these laws have, in practical terms, abolished the death penalty.

The warning is acceptable whether it was administered by one of the witnesses or by another individual, even a woman or a servant. Even if the transgressor hears the voice of the person administering the warning, but does not see him, and even if he himself administers the warning, he should be executed.

A rare concession is made to the beleaguered prosecution. This is concordant with many other passages is rabbinic Judaism which indicate that a good point is a good point, whatever it’s source. Other commentators here say that a warning is good even if received from a demon.

One might argue that, from the perspective of someone concerned with the equal dignity of human beings, it upholds the capacity of everyone regardless of class or gender to make a compelling point- a point so compelling in this case that it makes the difference between life and death. Of course given that a literal demon’s warning is also held sufficient, the egalitarian implications of this passage a fairly limited. Nonetheless, in some sense the ability to have reasoned points accepted as reasoned points regardless of who is saying them is one of the many strands that eventually leads to greater egalitarianism in human civilisation. Focused attention on the merit, rather than the source, of speech and ideas tends towards a much greater equality than alternatives.

3 If the witnesses say: “He was given a warning and we recognize him,” the court intimidates them. How do they intimidate them in cases involving capital punishment? They say: “Maybe you are speaking on the basis of supposition, or on the basis of hearsay, one witness from another witness, or maybe you heard from a trustworthy person?” “Maybe you do not know that ultimately we will subject you to questions and crossexamination?”

Their intimidation is not simply a matter of scaring the witnesses alone (although this is part of it)- for this might make them simply harden their positions in defence. Instead the witnesses are offered various exits. For example- “or maybe you heard from a trustworthy person?” The would-be-false-witness is offered ways to honourably back down, perhaps they might say “It’s not that I was lying- I simply heard it from a trustworthy person but did not see it myself”.

The authors had a clear understanding of human nature in a judicial context. In life in general this is good advice, allow people a way to honourably retreat from error or malignity.

“Know that cases involving capital punishment do not resemble those involving financial matters. With regard to financial matters, if there is any deceit, a person can make financial restitution and receive atonement. With regard to capital punishment, the victim’s blood and the blood of his unborn descendants are dependent on the murderer until eternity. As it is said with regard to Cain, ‘The voice of the blood of your brother is crying out.’ The Torah uses the plural form of the word blood, implying his blood and the blood of his descendants.

Let us begin by noting that, just as the possibility of execution via these rules is largely theoretical (effectively contingent on your consent at the time you committed the crime!) So is the possibility that one could be executed for giving false witness under these rules, for unless I’ve made a grave error, giving false witness that leads to execution is a capital crime and thus also covered by these rules. In order to be convicted for giving false witness under these rules one would have to, as per the previous passages:

Have been warned, a few seconds before and no more- that one was giving false witness. Acknowledged this, and acknowledged also that the penalty for such was death, and stated that this was why one was doing it!

But this would negate the effectiveness of one’s false witness- potentially exculpating you even if this absurd chain of events happened! Here, as in the rest of the capital code, actual punishment is extremely unlikely, and perhaps all but impossible in practice.

Giving false testimony in a capital case doesn’t just ‘result in someone’s death’ or some passive construction like that, the verb ‘murder’ is used. This is doubly true since in Jewish law the witnesses, false or otherwise, will be the ones to carry out the punishment.

Notice the dual meaning of this passage. The victim most obviously means in context the victim of false testimony in a capital case. However there is a secondary meaning- for the victim might also be the victim of the accused if it is a murder case. Thus the passage subtly commends a true witness to testify even as it admonishes a false witness not to.

“For this reason, man was created alone in the world. This teaches us that a person who eliminates one soul from the world is considered as if he eliminated an entire world. Conversely, a person who saves one soul is considered as if he saved an entire world.

One of the most famous sentiments in Jewish thought, paralleled in many other religious traditions.

“All the inhabitants of the world are created in the image of Adam, the first man, and yet no one person’s face resembles the face of his colleague. Therefore each person can say: ‘The world was created for me.’

I don’t fully understand this! The best sense I can make of it is that each person has unique value, for no person is fully like another. I do not know why this is phrased in terms of the resemblance of faces.

“If you might say: ‘Why should we enter this difficulty?’ It is written Leviticus 5:1: ‘If he witnessed, observed, or knew….’ If you will say: ‘Why should we become responsible for shedding the defendant’s blood? It is already said: ‘At the destruction of the wicked, there is joy. ‘

The argument is made explicitly to the would-be-witnesses that true witnesses in capital cases must testify.

If they stand by their word, the witness of the greater stature is brought into the court alone and he is questioned and cross-examined, as will be explained in Hilchot Edut. If his testimony appears to be factual, the second witness is brought into the court, and he is questioned as the first one was. Even if there are 100 witnesses, each one is questioned and cross-examined.

The question of how to gauge stature here is an interesting one. Could one challenge a judgement on the basis that the order of stature was incorrect?

If the testimony of all the witnesses is accurate, we begin the judgment with a statement that tends to acquittal as stated. We tell him: “If you did not transgress, do not fear their words.” Then we judge him. If grounds for acquittal are found, he is released. If they do not find grounds for acquittal, the defendant is imprisoned until the following day.

There is an initial judgement and vote.

On that day, the Sanhedrin divides itself into pairs and they examine the judgment. They eat little and do not drink wine throughout that entire day. They debate the matter throughout the night, each one with his comrade or alone. On the morrow, they come to the court early. Each of those who voted for acquittal state: “I am the one who voted for acquittal yesterday, and I still favor that ruling.” Each of those who voted for conviction state: “I am the one who voted for conviction yesterday, and I still favor that ruling,” or “…I have changed my mind and I vote for acquittal.” If they erred in that regard, or did not know who voted for conviction or who voted for acquittal on the basis of one rationale and hence are considered only as one, as we explained, the two scribes of the court remind them, for they write down the rationale given by each one of them.

Now there is a full day and night of debate and discussion followed on the morrow by another vote. The procedure is lengthy and if (perish the thought) there were a lazy person on the Sanhedrin inclined to vote purely in self interest, this ensures that their initial vote would likely be for acquittal. At every point the downward slope is towards acquittal, whereas the path to conviction is difficult trek up a rocky hill.

Notice that each person who voted for acquittal yesterday is presumed to still favour acquittal today (“Each of those who voted for acquittal state: “I am the one who voted for acquittal yesterday, and I still favor that ruling.)”, yet for those who favoured execution they may change their vote to acquittal. It is written elsewhere in this same work that it is commanded: “For a judge who argued in favor of acquittal in a capital case not to argue for a conviction,”

We begin the judgment. If they find a rationale to acquit him, they acquit him. If it is necessary to add judges, they add. If there is a majority of judges who seek to convict him, and he is convicted, he is taken out to be executed immediately.

A delay between sentence and execution is considered inhumane.

The place where the court conducts the execution is outside the court and removed from it, as implied by Leviticus 24:14: “Take the blasphemer outside the camp….” It appears to me that it should be approximately 6 mil , the distance between the court of Moses our teacher which was before the entrance of the Tent of Meeting and the extremities of the camp of the Jewish people.

This is the only time in this text that the author perhaps gives an indication of some uncertainty “It appears to me…”. It relates to a matter of distance.

4 After a defendant has been convicted, we do not delay the matter, but instead execute him immediately. Even if a woman is pregnant, we do not wait until she gives birth. Instead, we give her a blow against the womb so that the fetus will die first. If, by contrast, she is already in the throes of labor, we wait until she gives birth.

The Jewish tradition has historically not accepted the pro-life premise that fetuses are fully separate persons from the mother, although the matter is complex.

Whenever a woman is executed, it is permitted to benefit from her hair.

There’s a lot of context here that I can’t do justice to without a whole essay in its own right.

5 When a person is being taken out to be executed and a sacrifice of his has already been slaughtered, we do not execute him until the blood of his sin offering or guilt offering has been sprinkled on the altar for his sake. If, however, he was already convicted and the animal designated as a sacrifice has not been slaughtered already, we do not wait until the sacrifice is brought, for we do not prolong his judgment.

The need for the convicted to gain as much absolution as possible is balanced against the need for haste. A dead person cannot be redeemed through their sacrifice posthumously, so if the animal is already dead the executioners are to wait for the ritual to be completed for the sake of atonement.

II.

What are we to make of these rules? First of all I think we must recognise that these rules are *very* unlikely to result in anyone actually being put to death.

For many categories of crimes, this simply means that in practice the issue is left up to heaven- adultery etc. In other cases this option simply isn’t viable- the question of, for example, how a medieval Jewish community would have dealt with a serial murderer using these rules is an interesting one. They certainly did not, in practice, simply allow such individuals to act unimpeded, rather they used solutions which were, outside these laws. This is not necessarily to say outside the Jewish law in total, just these rules in particular.

Given that, in the final instance, such questions of life and death, effective deterrence and defence of society have to be dealt with, why have a code of laws seemingly on precisely that topic, but in practice applying unworkable standards for an instrument of deterrence? Why not have a capital crimes code that outlines the undoubtedly sensible ways actual ancient and medieval Jewish communities resolved the problems posed by murderers and others against whom the community had to be protected?

I think perhaps that it is done as a kind of supreme protest against injustice everywhere. A system combining absolute procedural fairness to the accused is described, brimming with both mercy and severity. Because it describes a better world, it may seem incomplete in this one