CAPITAL PUNISHMENT IN JEWISH LAW AND ITS APPLICATION TO THE AMERICAN LEGAL SYSTEM: A CONCEPTUAL OVERVIEW

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 Moreover, the views of Rabbi Tarfon and Rabbi Akiva are not representative of the whole of Jewish law; rather, their opinions are two among many and did not represent the opinions of mainstream Jewish legal authorities. Thus, Judge Bright’s statement regarding the “virtual impossibility” of an execution in ancient Jewish law reflects a minority opinion.⁴⁵ In fact, Professor Blidstein, on whose article Judge Bright’s statement was based, deemed Rabbi Akiva to be “the final expositor of a muted tradition.”⁴⁶ Blidstein further observed that Rabbi Simeon ben Gamliel, who contested the views of Rabbi Tarfon and Rabbi Akiva, “was probably not alone in protesting this virtual abolition of the death penalty. His is merely the clearest voice.”⁴⁷ The view of Rabbi Simeon ben Gamliel appears to find support in other rabbinic statements, which dispute the overriding concerns that motivated Rabbi Tarfon and Rabbi Akiva. For example, the Rabbis of the Talmud comment on the Biblical verse which instructs that in executing a murderer, “do not pity him.”⁴⁸ According to the Rabbis, this verse was a response to those who would oppose the execution of a murderer on the grounds that, because the victim is already dead, the taking of another life serves no purpose.⁴⁹ As Blidstein explains, “[h]owever generous the motive, the perversion of justice is evil, its motivation misguided. The Rabbis feared that true love of humanity could only be undermined by indiscriminate recourse to ‘mercy,’ which, as Rabbi Simeon ben Gamliel pointed out, would deny an innocent society the concern shown the criminal.”⁵⁰