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ɳ Response

In Teshuvos Ha’rosh (17,8) Rabbenu Asher was asked to consider the
fitting punishment for a sinner who had blasphemed – should he be
put to death? The Rosh answers as follows:

“You have asked me an extreme question concerning capital pun-
ishment, for in all the lands I have heard about they do not judge
capital cases except for here, in Spain [where the Jewish courts judge
sinners and impose capital punishment by themselves]. I was very
surprised when I arrived here – how could they judge capital cases
without a sanhedrin? They told me that it is done with the king’s
permission and furthermore that the [ Jewish] court judges leniently,
for many more lives would be lost if they were judged by the Arabs. I
left the situation alone for them to continue as they were accustomed,
though I never agreed with them about taking life.” [As to the blas-
phemer’s punishment, the Rosh concludes:“I was inclined to say that
they should remove his tongue from his mouth, excising most of the
unattached part of the tongue so that he thus falls silent. They would
deal with him as he dealt; this would be a public vengeance, visible
every day.”]

The Rosh’s reluctance to countenance capital punishment is echoed
by the Rema’s ruling (Choshen Mishpat beginning of 425): “All who
incur the death penalty in beis din nowadays – it is not in our power
to flog them, exile them, put them to death or to beat them; instead
we place them under ban and separate them from the community.”

However, all that the Rosh writes concerns the question of whether
or not we are permitted to judge capital cases ourselves. Handing over
a sinner to the authorities who do judge capital cases may be permit-
ted, according to the Beis Yosef (Choshen Mishpat, 385) who cites the
Rashba’s comments regarding whether or not it is permitted to hand
over robbers to the authorities, who level the death penalty on rob-
bers.“We were asked by our master the king… to advise him and we
told him that he can put the robber to death, for these matters were
only said [i.e. that cases involving the death penalty can only be judged
by a twenty three member beis din and kosher witnesses] in regard to

304 1 Medical-Halachic Responsa of Rav Zilberstein