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EXODUS — 21:12 death

EXOD541 In addition to murder, the death penalty is listed [in Torah] for striking one's parents, kidnapping, bestiality, violating Shabbat, idol worship, adultery, homosexual behavior, and cursing God. (This verse, 21:15-17, 31:14, Leviticus 20:2, 10, 13, 24:16). All the sins are heinous from a Jewish perspective, and the seriousness of their punishment attests to that. However it would be foolish to form the Jewish view of capital punishment based on these verses alone. Why is this so? According to Jewish tradition, the corpus of Oral Law was given along with the Written Torah at the very same time, in order to render the bare bones legal system of Torah verses into a working Jewish society of law for every day living. Therefore, if we examine the details of capital punishment along with the details of its oral laws, we will discover that it was almost impossible to actually punish a perpetrator for any of these crimes or sins with the death penalty.

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EXODUS — 21:12 death

EXOD542 Judaism's effort to individualize justice applies not only to punishment, but to defining crimes in the first place. The clearest example maybe the laws of homicide. The shedding of blood is the subject of the first admonition of a criminal nature in the Bible: "Whoever sheds the blood of man by man shall his blood be shed; for in His image did God make men." (Genesis 9:6. The term is first used in Genesis 4:8). Murder is prohibited by the Ten Commandments (Exod 20:13; Deut 5:17), and is marked as a capital offense in [this verse]. However, long before secular systems sought to differentiate among offenders, Jewish law had already done so. Not all homicides are treated the same. Distinctions are made according to the crucial element of the defendant's intent. In Judaism, the death penalty is prescribed for murder only if it is willful [this verse, Exod 21:14; Leviticus 24:17, 21]. The Torah articulates a distinction between premeditated murder and accidental killings. Today we might speak of the difference between deliberate killings (murder) and accidental killings (manslaughter or negligent homicide). Both are deserving of punishment, but they are not deserving of the same punishment. The Torah provides for Cities of Refuge, to which an offender could flee if he accidentally kills another human being. (Exod 21:13; Numbers 35:30-34; Deut 19:1-13). In those cities, the accidental killer would be safe from the avengers, at least pending an assessment of whether he had killed intentionally. The unintentional killer would then have to reside there until the current High Priest died, at which point he could leave the city and be legally protected from avengers for the rest of his life. (By Laurie L. Levenson, "Judaism and CriminalJustice"

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EXODUS — 21:12 man

EXOD543 Abortion in the Bible. The legislation of the Bible makes only one reference to our subject, and this is by implication: [Exodus 21:22-23]. A. The Jewish Interpretation. -- This crucial passage, by one of the most curious twists of literary fortunes, marks the parting of the ways between the Jewish and Christian rulings on abortion. According to the Jewish interpretation, if "no harm follow" the "hurt" to the woman resulting in the loss of her fruit refers to the survival of the woman following her miscarriage; in that case there is no capital guilt involved, and the attacker is merely liable to pay compensation for the loss of her fruit. "But if any harm follow," i.e., if the woman is fatally injured, then the man responsible for her death has to "give life for life"; in that event the capital charge of murder exempts him from any monetary liability for the aborted fruit. [Mekhilta and Rashi. For a translation of these sources, see 3 Lauterbach, Mekhilta 66-67 (1935); Rosenbaum & Silbermann, Pentateuch with Rashi's Commentary, 112-13 (1930)]. This interpretation is also borne out by the rabbinical exegesis of the verse defining the law of murder: "He that smites a man, so that he dieth, shall surely be put to death ..." [this verse] which the rabbis construed to mean "a man, but not a fetus." [Mekhilta and Rashi. For a translation of these sources, see 3 Lauterbach, Mekhilta 32-33; Rosenbaum & Silbermann, Pentateuch with Rashi's Commentary, 110-10a] These passages clearly indicate that the killing of an unborn child is not considered as murder punishable by death in Jewish law. B. The Christian Interpretation. -- The Christian tradition disputing this view goes back to a mistranslation in the Septuagint. There, the Hebrew for "no harm follow" was replaced by the Greek for "[her child be born] imperfectly formed." [The mistranslation, also followed in the Samaritan and Karaite versions, is evidently based on reading zurah or surah (meaning "form") for ason (meaning "harm" or "accident"). See Kaufmann, Gedenkschrift 186 (1900)]. This interpretation, distinguishing between an unformed and a formed fetus and branding the killing of the latter as murder, was accepted by Tertullian, who was ignorant of Hebrew, and by later church fathers. The distinction was subsequently embodied in canon law as well as in Justinian Law. [See Westermarck, Christianity and Morals 243 (1939)]. This position was further reinforced by the belief that the "animation" (entry of the soul) of a fetus occurred on the fortieth or eightieth day after conception for males and females respectively, an idea first expressed by Aristotle [Aristotle, De Anim. Hist. vii. 3; see 1 Catholic Encyclopedia 46-48 (1907)], and by the doctrine, firmly enunciated by St. Augustine and other early Christian authorities, that the unborn child was included among those condemned to eternal perdition if he died unbaptized. [See 1 Ploss & Bartels, Woman 483 (1935); 2 Catholic Encyclopedia 26-67 (1907)] Some even regarded the death or murder of an unborn child as a greater calamity than that of a baptized person [See 2 Lecky, History of European Morals 23-24 (3d ed. 1891)]. Eventually the distinction between animate and inanimate fetuses was lost; and since 1588, the Catholic Church has considered as murder the killing of any human fruit from the moment of conception.[See 1 Ploss & Bartels, op. cit, at 484; Bonnar; The Catholic Doctor 78 (1948)]. This position is maintained to the present-day [See, e.g., Catholic Hospital Association of the United States and Canada, Ethical and Religious Directives for Catholic Hospitals 4 (1949)]. It assumes that potential life, even in the earliest stages of justation, enjoys the same value as any existing adult life. Hence, the Catholic Church never tolerates any direct abortion, even when, by allowing the pregnancy to continue, both mother and child will perish [See Bonnar, op. cit, at 84]; for "better two deaths than one murder." [Tiberghien, "Principles et Conscience Morale," Cahiers Laennac, Oct. 1946, p. 13].

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EXODUS — 21:12 man

EXOD544 The basic halakhic principle governing abortion practices is recorded in the Mishnah, Oholot 7:6, in the declaration that when "hard travail" of labor endangers the life of the mother an embryotomy may be performed and the embryo extracted member by member. This ruling is cited as definitive by Rambam, Hilkhot Roze'ah 1:9, and Shulhan Arukh, Hoshen Mishpat 425:2. The halakhic reasoning underlying this provision is incorporated in the text of the Mishnah and succinctly couched in the explanatory phrase "for her [mother's] life has priority over its [the fetus'] life." In the concluding clause of the Mishnah, a distinction is sharply drawn between the status of the fetus and that of a newly born infant. The Mishnah stipulates that from the moment at which birth, as halakhically defined [Yoreh De'ah 194:10], is considered to have occurred, no interference with natural processes is permitted, since "one life is not to be set aside for the sake of another life." It may readily be inferred from this statement that destruction of the fetus is prohibited in situations not involving a threat to the life of the pregnant mother. Incorporation of the justificatory statement "for her life takes precedence over its life" within the text of the Mishnah indicates that in the absence of this consideration abortion is not sanctioned. Tosafot (Sanhedrin 59a; Hullin 33a) states explicitly that feticide, although entailing no statutory punishment, is nevertheless forbidden. Elsewhere we find that according to rabbinic exegesis (Mekhilta, this verse; Sanhedrin 84a) the killing of an unborn child is not considered to be a capital crime --an implication derived from the verse "He that smiteth a man so that he dieth, shall surely be put to death" [this verse]. Tosafot, on the basis of the Mishnah, apparently reasons that although feticide does not occasion capital punishment, the fetus is nevertheless sufficiently human to render its destruction a moral offense.

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EXODUS — 21:12 strangulation

EXOD545 Jewish courts must administer capital punishment by means of strangulation. Were crimes to go unpunished, lawlessness would reign and people would kill each other. Why a murderer is executed by strangulation: In most cases a murderer tries to kill his victim quickly so that death is immediate. For this reason, the Torah prescribes strangulation as the means of execution, for of the four methods of capital punishment, strangulation is the quickest and least painful. If violation of a sin gives pleasure to the offender and the sin carries the death penalty, the Torah prescribed slower and more painful methods of capital punishment, such as stoning or burning.

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EXODUS — 21:12 strikes

EXOD546 Another characteristic of Jewish morality becomes manifest when we focus upon the dimension of death or inwardness. This includes what is sometimes referred to as personal morality. That is to say, Judaism is not really concerned with actions and their consequences, with overt behavior, but seeks to penetrate the consciousness of the agent and demands good thoughts and attitudes, benevolent intentions and sincere motivation. As the rabbis expressed it: "The Merciful One requires the heart." (Sanhedrin 106b) If confronted by an "either–or" choice between thought and deed, intention and action, Judaism would indeed select the deed over the thought and the consequences over the intent as the prime moral element. This is reflected in the following teachings: "He [Rabbi Chanina ben Dosa] used to say, "He whose deeds exceed his wisdom, his wisdom shall endure; but he whose wisdom exceeds his deeds, his wisdom shall not endure" (Avot 3:12, 3:22) Not learning but doing is the chief thing (Avot 1:17). The emphasis on deeds is also seen in the phrase which is used most frequently in rabbinic literature to designate moral virtue or the life of piety: ma'asim tovim --"good deeds." Moral value is to be found in the real world of action and consequences rather than in the amorphous realm of motives and intentions (See Kiddushin 40b; Albo, Ikkarim, vol.II, p. 263). Nevertheless, it is equally clear that the perfect moral experience is a total process in which the motivation, the sustained kavanah (directed consciousness), is incorporated into the fully executed action.… Hence, the Pentateuch distinguishes the murderer from the accidental homicide, condemning the first to death and providing the second with asylum [this and following verses]. The rabbis ruled, however, that good deeds performed out of ulterior motives are acceptable, because the agent, it is hoped, will ultimately learn to develop the proper motives (Pesachim 50b).

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EXODUS — 21:14 altar

EXOD547 R. Akiva expounded: "from My altar" [i.e., from near My altar], and not "from upon My altar" i.e., A priest who is upon the altar (i.e., in the midst of sacrificing) is not to be taken thence to be killed for a murder that he has committed]. And this applies only to an instance where he is to be killed; but where one is to be saved [i.e., if this priest can testify to save someone's life], then even "from upon My altar." From here it is derived [by a fortiori reasoning] that the saving of life overrides the Sabbath (Yoma 5:1)

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EXODUS — 21:14 neighbor

EXOD549 Some scholars have questioned the validity of the assertion that Jewish morality is indeed universal. Examining the pivotal passage in Leviticus [19:18], "and ye shall love thy neighbor [re'akha] as thyself," they asked, "what does the Bible mean by 'neighbor' and how has the term been understood in Jewish tradition?" (E. Simon, "The Neighbor Whom We Shall Love," in Modern Jewish Ethics, ed. Marvin Fox (Columbus: Ohio State University Press, 1975), 29:55.). Analysis of the biblical use of the term turns out to be inconclusive. (Compare Exodus 11:2, 2:13, 12:35, 3:21, with Deuteronomy 19:14). It appears that the term re'ah is sometimes used in contexts that clearly include non-Jews as well as Jews, while in other places the reference appears to be Jews only. More important, however, is the understanding developed in rabbinic tradition. In regard to a number of crucial laws, rabbinic tradition does restrict the meaning of re'ah to Jews only. [And if one man's ox hurt the ox of his neighbor [re'ehu]...Exodus 21:35; And if a man came presumptuously upon his neighbor to slay him with guile...[this verse]; ... neither shall thou stand idly by the blood of thy neighbor (re'akha) Leviticus 19:36; ...and thou shalt love thy neighbor as thyself Leviticus 19:18]. Rabbinic interpretation as found in the Talmud and the Midrash Halakhah and in the codes understands these laws as referring only to those who are truly "the neighbors" or "fellows"; I.e., one's fellow Jews. Bava Kamma 37,38; Mekhilta on Exodus 21:14. Does the existence of such restrictions on these moral rules disprove the universality of Jewish morality? To put it even stronger: Doesn't such apparently discriminatory treatment of non-Jews show Jewish morality to be seriously flawed? Before we turn to these specific passages and their rabbinic interpretations, let us examine the Torah for other expressions regarding behavior toward non-Jews. We find, for example: "thou shall not abhor an Edomite, for he is thy brother; thou shalt not abhor a Mizri [Egyptian], because thou wast a stranger in his land." (Deuteronomy 23:8). In regard to the runaway slave the Torah teaches: (Deuteronomy 23:16-17; see Rashi). Jewish tradition understood this to apply even to a Canaanite slave who has fled from his Jewish master and seeks refuge with Jews in the land of Israel. In outlining the relationship between employer and employee the Torah states: [Deuteronomy 23:8]. The rabbis interpreted "stranger" here to mean ger toshav, the resident alien who has not converted to Judaism but has rejected idolatry. Maimonides, basing himself on the Talmud, rules that it is forbidden to steal from an idolator as well as from a Jew (Rambam, Hilkhot Gezelah 1:1). And Samuel teaches in the Talmud that it is forbidden to deceive any human being (genevat da'at -- where no monetary loss is involved), even an idolator. (Chullin 94). To support the physical needs of non-Jews in Israel was seen by the Torah as a Jewish obligation: (Leviticus 25:35; See Rashi). The right of the non-Jew in Israel, even of the idolator, to purchase and own a Jewish slave is clearly reflected in the rabbinic interpretation of Leviticus 25:47 (See Rashi on Leviticus 26:1 and Kiddushin 20; also Bava Metzia 71). It remained, however, for the rabbis to make explicit the teachings embodied in the Torah's concept of man and to declare that the law of love applied to the non-Jew as well. [Avot 1:12; The word beriyot denotes the entire human family and in some contexts includes the animal kingdom as well; Avot 2:16, 4:1; Berakhot 17a]. ... Since the Torah in Genesis had already established that all men were created in God's image, and therefore that all men are moral agents and entitled to be treated as ends in themselves, it would follow that any moral rule applies to all human beings, Jews and non-Jews alike. The question that arises, therefore, is why the Torah in several of its commandments of a moral character uses ambiguous terminology (such as re'ah), leading the rabbis in their interpretation to restrict the application to Jews. Since we assume the unitary character of the Torah, self-contradiction prevents us from accepting any explanation suggesting an intrinsic disability in the non-Jew. We must therefore look for considerations growing out of the requirements of the general welfare or moral factors arising from the special circumstances of the particular law. We must remind ourselves that whatever else the Torah is, it must be viewed first and foremost as a practical constitution for a particular society of living men and women at a given point in time and place. In a word, the Pentateuch must be seen within a specific historical context. The Jewish generation that received the Torah found themselves surrounded by barbaric idolaters who lacked the basic structures of law and morality. Indeed, the Siniatic covenant, which creates a special faith-community and whose blueprint is the Torah law, was necessitated by a serious regression on the part of humanity. Reflected in the Torah, therefore, are special obligations that one has to one's own countrymen and co-religionists even as one has special obligations to members of one's own family. Given a specific historical situation to which the Mosaic code addressed itself, priority had to be given to developing cooperating, loving relationships among Jews themselves, and to overcome tribal and other parochial differences before the law of love could be realistically advocated for the non-Jew. Furthermore, given the usual state of politics and relations with the nation on one's borders, advocacy of the law of love to all men would have inevitably included the avowed enemies of one's people. But justice as well as prudence requires that one not jeopardize the security and welfare of one's family and neighbors by embracing the enemies of one's people. Love, like any other moral principle, is not absolute and is context dependent. ... Any just moral system is predicated on a measure of reciprocity which is a realistic expectation if all individuals within the group accept the system as normative or under equal obligation to comply. But if the Torah were, for example, to command Jews to lend money without interest to non-Jews as well as Jews and to cancel in the Sabbatical years all debts to non-Jews as well as Jews (Deuteronomy 23:21, 15:3) without any means of securing reciprocal treatment from non-Jews, a manifestly unjust situation would have been created. The high moral standard, therefore, was best restricted, at least initially, to the faith-community of Israel, to which the Torah was directed. Let us return now to a consideration of the specific laws mentioned above which are restricted to one's re'ah. Maimonides, following the lead of the Babylonian and Jerusalem Talmuds, explores the Mishnah's restrictive interpretation of Exodus 21:35 by pointing to the asocial behavior of the Canaanites of old. The extra payment that the Canaanite is obliged to make in the case of his ox doing damage is to be understood as a punitive measure to impress upon him the need to better restrain his animals (Rambam, Hilkhot Nizikei Mamon 8:5). However, as was already noted by the commentators in the Talmud, the implication here is that a non-Jew who observes the basic humanitarian Noahide laws had to be treated the same as the Jew. Shitah Mekubbetzet on Bava Kamma 38. This received its fullest expression much later when Rabbi Menachem ha-Meiri, in the late 13th century, ruled that "nations who are disciplined by the ways of religion (such as contemporary Christians) are not to be considered idolaters and are to be considered 'your brother.'" See discussion in J. Katz, Exclusiveness and Tolerance (Oxford, 1961), p. 116. (Continued at [[GEN723]] Genesis 9:6 whoever SPERO 130-31).

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