Tookie, part two
Ori Pomerantz wrote:
Oral Torah seems to limit capital punishment to the point where it would almost never happen. IIRC, capital punishment requires two witnesses with foreknowledge of the crime who warned the would be murderer and to whom that would be murderer replied he or she will do it anyway.
Does this mean that the capital punishment written in the Torah is written more to emphasize the evil of murder than as practical Halacha? Are Noahide courts empowered to execute murderers more than Jewish courts?
Yes, under Noahide law, non-Jewish courts do have more latitude than the Sanhedrin had.
It is true that in normal times, the Sanhedrin rarely carried out a death sentence. Your surmise is probably correct, that the death penalty is on the books — i.e., in the Torah — more to emphasize the gravity of certain crimes than to actually put murderers to death.
However, the King (and if I’m not mistaken, also the Sanhedrin) had broad discretion to impose the death penalty under a wide variety of circumstances — extra-judicially. One such circumstance mentioned in the classical sources is a period of widespread lawlessness — what we would call a high crime rate. The Talmud tries to balance a general reluctance to impose the death penalty with an assumption that the death penalty does deter crime — and therefore must be imposed often enough to achieve that effect.
And the Rambam implies in the yad that in cases of murder the king or court should go out of their way to impose the death penalty.
So, the judicial death penalty is extremely rare. However, the King is allowed to execute people without due process. Is it just my modern sensibilities, or does this sound like a really bad idea?
Let’s look at a few of our Kings.
1. Saul, who ordered the priests of Nob executed for helping David, the contender to the throne.
2. David, who ordered Uriah Hachiti killed to cover his own crime of passion.
3. Yerab’am, who decided to build two golden calves so people won’t go to Jerusalem for the temple.
4. Ahab, who did everything his idolaterous wife wanted.
5. Ahaziyahu, who did everything his idolaterous mother wanted.
Is the fact we don’t have a king these days a punishment, or a blessing?
However, the King is allowed to execute people without due process
Not without any due process, without the same due process that is required for beis din. If he does it for fun, he is guilty of murder. The king is not exempt from punishment.
What is the due process a king has to observe, and is there any human authority with the power to punish him, or is it in the hands of heaven. Many kings did not seem to fear divine retribution, so it wouldn’t deter them.