In recent years, a growing body of scholarship has developed in the United States that applies concepts in Jewish law to unsettled, controversial, and challenging areas of American legal thought. One area of Jewish legal thought that has found prominence in both American court opinions and American legal scholarship concerns the approach taken by Jewish law to capital punishment. In this Essay, Levine discusses the issue of the death penalty in Jewish law as it relates to the question of the death penalty in American law, a discussion that requires the rejection of simplistic conclusions and the confrontation of the complexities of the Jewish legal system. Levine also presents a general and balanced overview of Jewish law with respect to legal and historical attitudes towards the death penalty. More specifically, this Essay focuses on the conceptual underpinnings behind pertinent Jewish law, considering the potential relevance and effect of those conceptualizations on American legal thought. Part II of this Essay discusses the United States appellate court case of Hayes v. Lockhart which makes reference to the death penalty in Jewish law. This case reflects some of the methods employed by members of the legal community who seek to support their positions on the death penalty by referring to Jewish law. Part III takes a close look at the death penalty in the Written Torah, which is often cited by those favoring capital punishment. Part IV examines the complex position taken by the Oral Torah towards the death penalty as reflected in the Talmud and other rabbinic sources. Levine concludes that any meaningful application of Jewish law to the death penalty debate is impossible without an accurate and complete analysis and understanding of Jewish law in its proper context.
29 St. Mary's L. J. 1037 (1997-1998)
29 St. Mary's L. J. 1037