Sermon – Werner Herzog, Rabbi Akiva and capital punishment

Written by Rabbi Josh Levy — 4 May 2012

I love television. I think it is a much maligned art form.  No-one ever boasts that they don’t have a radio, or that they never go to the theatre.  But somehow it is a boast to say: ‘I don’t have a television” or “I never watch TV”? Not having a TV does mean that there is no possibility of accidentally watching Britain’s Got Talent or becoming inexplicably drawn to The Voice (at least to the blind auditions at the beginning – it has become a bit samey since then).

But it also means missing out on the greatest story-telling medium that we have – it means missing out on great dramas and comedies, on a world of high quality documentaries: not just extraordinary nature programmes opening our eyes to new wonders, but also on hard and disturbing examinations of our world and its horrors.

Such as Werner Herzog’s recent series of portraits of prisoners on America’s death rows:  Three programmes, each focussing on one case, with one-on-one interviews with prisoners, about their experiences and their crimes.

Herzog admits to being an opponent of the death penalty, but nonetheless does not present these murderers – for that is unequivocally what they are – as victims, does not sugar-coat their crimes.  This is not a soap box for them to plead their cases, not a place for excuses or hard-luck stories, but a deeper discussion about what it is to commit the most horrific of crimes, what it is to exist in the odd world in which they have put themselves.  And while some of them come across as eloquent, others as incoherent or unhinged, none of them seem like they are particularly nice.  We definitely feel safer for their being behind bars.

And yet, what becomes clear in watching these programmes – which I am sure is Herzog’s intention – is that these are also individual human beings – individuals with relationships, hopes, emotions – unique human lives which are to be ended by the state.

I have spoken before from this Bimah about the acute sensitivity of Jewish texts to the possibility of miscarriages of justice in capital cases; the way in which the ultra-pragmatic rabbinic exercise created a legal structure which made the carrying out of executions extraordinarily difficult for fear of killing an innocent.  I did so in reference to the case of Linda Carty, a British woman currently on death row in America despite the fact hers was a catastrophically mishandled trial, and who any moment is likely to be given the date of her execution, the appeals process having now been exhausted.  Hers is a case which as Jews demands our attention and our intervention, however limited that might, unfortunately, be.

But the point Herzog makes in his films is different.  He is not especially focussed on the guilt or innocence of his subjects, but on the nature of capital punishment itself.  That it takes away the life of a unique individual, that these are human beings despite the nature of their crimes.

And this is also a strong voice in Jewish texts.  Some of the rabbis of the first centuries CE were advocates of the death penalty; some were pragmatic – tolerating it as long as it was exercised with extreme caution.  But for some capital punishment was wrong irrespective of guilt. Leading from the biblical concept that we are all created in the image of God, they believed that each life is inherently of value whatever the behaviour of the individual.  And this led them to reject the possibility of execution as fundamentally immoral.

Chief among these voices in our texts is that of Rabbi Akiva.  In a famous text in the Mishnah, Rabbi Akiva and Rabbi Tarfon respond to the saying that “A Sanhedrin – a supreme court – that executed once in seven years is called bloodthirsty” by stating that “if we had been in the Sanhedrin no-one would ever have been executed”.

In the Tosefta, a compilation of traditions contemporaneous with but not in the Mishnah, Rabbi Meir the close student of Rabbi Akiva draws an extraordinary parallel.  Commenting on the commandment in Deuteronomy that the body of someone who has been hanged must be taken down – ki kilat elohim talui – because it is ‘a curse against God’ he compares the case to two twin brothers, identical to one another.   One is ruler of the whole universe, while the other takes to highway robbery. After a while the criminal brother is caught and crucified.  Everyone who passes by stops and remarks: It is like the king is being crucified. If we are created in the image of God then – ki v’yachol, if you could say such a thing – it is as if God is being killed whenever someone is executed.  To execute someone, one might say, is the ultimate act of blasphemy.

Which brings us back to today’s portion.  Because as Oliver has read for us this morning, blasphemy, at least in one form – cursing God using the name of God, is a capital offence as presented in the Torah.  One of 36 capital offences found in a Torah which not merely allows for capital punishment but in places requires it.  And this tells us quite how radical these rabbis were in their stance.

The context in which they lived made their voices quite remarkable – they lived, especially the rabbis in Eretz Yisrael under Roman rule, in a society in which the concept of the sanctity of human life was absent.  Capital punishment, far from being a source of debate, was an accepted norm.  Lest we forget, Rabbi Akiva himself was to become subject to capital punishment at the hands of the Romans.

More radical still was the religious step that they made.  They took the instructions of Torah and tried to convert them into a ‘law on the books’, never to be enacted.  In their rhetoric they were willing to contradict the Torah that they considered to be the ultimate expression of divine will; To Rabbi Meir the creation of human beings in God’s image makes capital punishment an abomination.  In Genesis the very same ideal makes capital punishment a requirement: “Whoever sheds the blood of man, by man shall his blood be shed; For in the divine image did God make man.” So passionately did they feel the fundamental immorality of capital punishment that they were willing to subvert the meaning of the text so that it reflected their convictions about what Judaism required of them.  These ancient rabbis, sometimes presented as voices of conservatism were able to be utterly radical in their relationship with scripture.  They recognised that Torah could be sacred and at the same time that they could continue to develop it, indeed, to subvert it – in the name of social progress, but also in the name of God.

So theirs’ is a powerful challenge to us – A challenge to be radical for the sake of religious principle – to speak up against the prevailing voice (and it is worth remembering that public support for capital punishment in this country rarely falls below 65%) and to speak up for the sake of right and truth – even against the perceived voice of God.  To not only be pragmatists, but visionaries. And theirs’ is a specific challenge about this issue – to seek to eradicate the death penalty – to recognise that its continued existence shames all of us in the Western world.  Rabbis Akiva, Tarfon and Meir understood something that, thanks to Herzog, thanks to television, we also might be able to see.  That the scandal of the death penalty is not only the risk of miscarriages of justice; it is that that even those who commit the most horrific of crimes are still human beings created in the image of God.