Image: A Judge’s Gavel. (Public Domain)
Parashat Vayahkel-Pekudei begins with an alarming statement:
Moses then convoked the whole Israelite community and said to them: These are the things that the LORD has commanded you to do: On six days work may be done, but on the seventh day you shall have a sabbath of complete rest, holy to the LORD; whoever does any work on it shall be put to death. You shall kindle no fire throughout your settlements on the Sabbath day. – Exodus 35:1-3
After this bombshell, Moses continues to tell the Israelites the directions for building the Tabernacle without saying anything more about Shabbat or capital crimes. What?!
Commenters including Sarna point out that this brief mention of the regulations of Shabbat echoes a longer passage about Shabbat in Exodus 31: 12-18. Both passages about the Sabbath stand paired with passages about the building of the Tabernacle. The text is making two points here:
- Keeping Shabbat is very important, more important than any work, even such work as the building of a sanctuary for God.
- Jews have two holy sanctuaries: one in space and one in time. Our sanctuary in space was the Temple in Jerusalem. Our sanctuary in time is Shabbat. This juxtaposition in Torah is the source for the “cathedral in time” in Abraham Joshua Heschel’s poetic The Sabbath: Its Meaning for Modern Man.
As for the death penalty:
We have an account in Torah of a man who was executed for violating the Sabbath. In his case:
Once, when the Israelites were in the wilderness, they came upon a man gathering wood on the Sabbath day. Those who found him as he was gathering wood brought him before Moses, Aaron, and the whole community. He was placed in custody, for it had not been specified what should be done to him. Then the Eternal said to Moses, “The man shall be put to death: the whole community shall pelt him with stones outside the camp.” So the whole community took him outside the camp and stoned him to death—as the Eternal had commanded Moses. – Numbers 15:32-36
Notice that this is much later – in Numbers! – and yet “it had not been specified what should be done to him.” Rabbeinu Bachya suggests that they were waiting to see precisely what sort of death penalty was required, since there were four possibilities. Only when Moses consults with God do they learn that the punishment is stoning. Whatever is going on here, Moses and the Israelites gave this matter great seriousness, wanting direct confirmation from God before proceeding.
Many centuries later, the rabbis would write down their understanding of the rules they had received from God for capital punishment. They had strict requirements for it, without which the sentence could not be carried out:
- There must be 2 eye witnesses to the crime who were willing to testify.
- Those witnesses must be willing to participate in the execution.
- Those witnesses must have warned the accused before the crime that he was about to commit a capital crime.
- Valid witnesses must be adult Jewish males not related to the defendant or one another.
- The court had to consist of 23 learned rabbis.
- Each witness must be examined separately. If there were any discrepancies in their testimony, no matter how minor, the court must acquit.
And then in Sanhedrin 17a, we get yet another requirement:
Rav Kahana says: In a Sanhedrin where all the judges saw fit to convict the defendant in a case of capital law, they acquit him. The Gemara asks: What is the reasoning for this halakha? It is since it is learned as a tradition that suspension of the trial overnight is necessary in order to create a possibility of acquittal.
The rabbis seemed to feel that if the court was unanimous, then there was so much emotion running high that it was inappropriate to go forward with a conviction; best to sleep on it. The rabbis were worried that a unanimous court had something wrong with it – vengeance, perhaps?
At any rate, we learn from all of this that in our tradition, while the Written Torah appears to speak lightly of execution, in fact the Oral Torah – the larger context of tradition – is extremely cautious about capital punishment, so cautious that it is hard to see how they ever managed to convict anyone of a capital crime. (It is also worth noting that after the Romans took control of Judea in 63 BCE, the Sanhedrin no longer had the power to carry out such a verdict. The whole discussion was theoretical.)
At any rate, don’t panic at the beginning of Exodus 35. While the peshat [simple meaning of the verse appears to say that people should be executed for violating the Sabbath, our tradition does not advocate capital punishment.
That said, there are parts of the soul that come to life when we keep Shabbat, and that cannot survive without it:
More than the Jews have kept the Sabbath, the Sabbath has kept the Jews. – Ahad Ha’am (Asher Ginsberg, poet, philosopher, 1856-1927)
