Was Crucifixion a Jewish Penalty?

Some academics have questioned whether Jesus died on the cross. Exploring historical sources, however, we can learn much about the ancient world’s way of death

Faith Judaism Text The Catholic Church
Yohanan's foot: his bones were discovered in Jerusalem in 1968

The idea of crucifixion, for many people linked to the story of Jesus, is in general associated with Rome’s infliction of “the most cruel and abominable form of execution” (Cicero) on foreigners and slaves. Jesus of Nazareth, condemned by Pontius Pilate, governor of Judaea (26-36 CE), is unquestionably the most famous victim of this brutal death penalty to die on the cross. It would occur to few, if any, outside the select company of specialists to inquire whether the cross might have had a role in the Jewish legal system towards the end of the pre-Christian era.

It is hardly necessary to point out that in the contemporary Western world the idea of the death penalty is generally abhorred. Many see it as judicial murder. Disapproval of capital punishment is quietly backed by the United Nations’ call for a moratorium on executions in the countries where it is still on the statute book, and the European Union has outlawed it. However, this 21st-century outlook stands in stark contrast with the worldview expressed in biblical and late antique Judaism, whose religious and social ethics were inherited by nascent Christianity.

The legal systems of Jewish antiquity were developed in two periods: the biblical era, reflected in the books of the Hebrew Scripture (c. 1000-500 BCE), and the age of the Rabbis, based on the earliest code, the Mishnah, and further developed in the Talmud (c. 200-500 CE). The intervening epoch, known also as the Second Temple period, represented by the Apocrypha, the Pseudepigrapha or pseudonymous extra-biblical writings, the Dead Sea Scrolls and the monumental literary output of Flavius Josephus (37-c. 100 CE), takes us down to the end of the first century of the Common Era. The question of crucifixion, as part of Jewish penal law, arose during those centuries and left copious marks not only in Josephus, but also in the Targums, the Aramaic paraphrases of the Hebrew Scriptures, which although reaching their finally redacted form between the third and seventh centuries CE, preserve much earlier, at times pre-Christian, traditions.

The Hebrew Bible, the Old Testament of the Christians, does not provide a systematic presentation of criminal law and the relevant passages must be collected from various places in four books of the Pentateuch: Exodus, Leviticus, Numbers and Deuteronomy. Dispersed in them figure no fewer than eight types of offence punishable by death.

The first category comprises transgressions against God and the Jewish religion: idolatry, blasphemy, sorcery and the breaking of the Sabbath. Idolatry in its various forms entails the worshipping of deities other than the God of Israel, or the attempt by false prophets or even by members of one’s family to induce Jews to embrace the cult of other gods. Blasphemy amounts to cursing or reviling the name of God by an Israelite or even an alien. Sorcery, enacted by male or female practitioners, consists of prohibited rites with a view to obtaining forbidden effects, such as recalling the spirit of the dead from the underworld. Finally, the breaking of the Sabbath is achieved by the performance of acts qualified as work. 

The second class of capital sentences punishes offences committed against human beings. To these belong premeditated murder legislated on in Exodus, Leviticus and in greater detail Numbers, and the kidnapping of a free Israelite with the intention to turn him into a slave. The death sentence also awaited the youth who gravely misbehaved towards his parents, one who hit or cursed his father or mother or constantly disobeyed them, and thus became what the Bible calls a “stubborn and rebellious son”. 

The last category includes various sexual transgressions: the death penalty was pronounced on both parties found guilty of adultery. The same fate was decreed for the man guilty of incest with his stepmother, his daughter-in-law or his sister, whether the daughter of his father or his mother, and for someone who had married both a girl and her mother; for a priest’s daughter who had become a whore; for people, either male or female, who had committed bestiality, that is, sexual contact with an animal. Death was to be inflicted on both humans and beasts. Finally — dare I formulate this in this age of homosexual rehabilitation? — anyone committing a male homosexual act was to be executed. The Hebrew Bible (and St Paul) considered gay sex an abomination, although curiously lesbianism is nowhere legislated against in Scripture. 

Only two forms of capital punishment are specified in the Bible-stoning and burning. Stoning was the most common mode of execution. It was administered by the whole community, with the two prosecution witnesses starting the stone-throwing. It was laid down as the punishment for idolatry, blasphemy, the profanation of the Sabbath, the crime of being a “stubborn and rebellious son”, the non-disclosure by a bride that she was no longer a virgin, and sexual intercourse forced on an engaged virgin by a man in town. The reference to the town as opposed to the countryside implies that if the woman had cried out for help someone might have come to her rescue.

It should be noted that, according to Deuteronomy, the dead body of the person executed by stoning was to be “hanged” on a tree to serve as an example to the community, and was to stay there until sunset when it had to be taken down and buried. The important distinction between hanging a cadaver and hanging a living person as a death penalty will come up presently. 

Death by burning was pronounced for two kinds of sexual offences: for marrying simultaneously a woman and her mother, and for the adoption of the lifestyle of a prostitute by a priest’s daughter. 

No doubt because the priestly legislators of the Bible were focused on religion rather than on civic duties, no crimes against the Jewish state or its ruler are dealt with in the Mosaic Law.

After the closure of biblical legislation, new customs developed and are reflected in the literature of the Second Temple era (c. 500 BCE-100 CE), some Dead Sea Scrolls, Flavius Josephus and the Aramaic Targums supplying important sporadic evidence, but for a more systematic presentation of the legal concepts of the rabbis we have to wait until the compilation of tractate Sanhedrin of the Mishnah somewhere around 200 CE.

As a preliminary to the evaluation of the earliest stages of rabbinic legislation formulated in Mishnah Sanhedrin 7:1, it must be recalled that after the destruction by the Romans in 70 CE of Jerusalem and the consequent disappearance of the Judaean state institutions, Rome deprived Jewish law courts of capital jurisdiction. However, these courts quietly pretended that they still possessed it. Hence they continued to legislate and redefined stoning and burning. They even added two new forms of death penalties to those of the Bible: beheading and strangling. At the same time, the rabbis shied away from the idea of actually condemning a Jew to death and described as bloodthirsty the tribunal that imposed one capital sentence a year.

The rabbinic stoning process takes the condemned outside the town, to the edge of a slight elevation twice the height of a man, say 3.5 metres. One witness pushed the guilty person so that he/she fell down from the ridge. If the fall resulted in death, the “stoning” was completed. If not, the second witness dropped a large stone on the heart of the condemned. If this was still not enough, the whole community went on throwing stones until death ensued. Stoning was followed by the ritual hanging of the body on a tree or gibbet until the evening.

While the Bible takes the burning to death of a criminal in the literal sense on a pile of wood, Mishnah Sanhedrin 7:2 defines this mode of execution differently. The condemned was immobilised by being put into dung up to the knees. The two witnesses then started to strangle him/her, forcing the man or woman to gape and thus allow the insertion of a lethal burning “wick” into the mouth. According to the Talmud, this wick was in fact hot melted lead.

Beheading was a mode of execution reserved for the civil authority. The Bible never refers to decapitation, but we know that it was practised not only by Rome but also by Herodian rulers. King Herod Agrippa I (41-44 CE), for example, is reported to have ordered the execution with the sword of the apostle James, son of Zebedee.

Strangling was the second rabbinic innovation without scriptural precedent. Herod the Great used it against members of his family. Hyrcanus II, the grandfather of his wife Mariamme, and two of his sons by Mariamme, Alexander and Aristobulus, were the victims of this kind of execution. The Mishnaic strangulation, like burning, entails the immobilisation of the condemned in dung, with the two witnesses acting as executioners by pulling the rope until the condemned’s breathing stopped.

Why did the rabbis introduce this new manner of execution? Paul Winter came up with the interesting suggestion that after 70 CE, when Rome no longer granted capital jurisdiction to Jewish tribunals, strangling, unlike stoning, could be performed in secret. He notes that as late as the middle of the third century CE, the Church Father Origen (c. 185-254 CE) mentions that Jewish courts continued to condemn and execute criminals in a half-secret, half-open manner. “Trials are held secretly according to the Law,” he writes in his Letter to Julius Africanus (§20), “and some are condemned to death. This is done neither in complete openness, nor without the knowledge of the [Roman] ruler.”

From the beginning of the Common Era, crucifixion as a form of death penalty was lurking in the extant Jewish literature, but for a combination of reasons was swept under the carpet. It evoked bitter memories among Jews during the late Second Temple era, when many patriotic inhabitants of the Holy Land ended their lives on Roman crosses. We learn from Josephus that the violent repression of the rebellion which followed the death of Herod the Great (4 BCE) involved mass crucifixions, 2,000 in one case, ordered by the general of the Roman forces, Varus, the governor of Syria. 

During the final stages of the siege of Jerusalem in 69-70 CE, when crowds of rebels sought to escape from the city, no fewer than 500 captured Jews were crucified every day so that, to quote Josephus, “there was not enough room for the crosses and not enough crosses for the bodies”. Whether the remains of a crucified man whose bones were discovered in Jerusalem in 1968 in an ossuary inscribed with the name of Yohanan son of Ezekiel were one of these we cannot say, but the nail piercing his anklebone, to which bits of olive wood are still attached, and his broken shinbones clearly indicate how Yohanan died.

Not surprisingly, the words “cross” and “to crucify” turned into a kind of taboo until, it would seem, quite recent times. For instance, the commonly used Hebrew/Aramaic dictionary to rabbinic literature compiled by Marcus Jastrow (1903) translates the relevant terms (tslb, tslybh) as “to hang, impale” and “hanging, impaling”, whereas Michael Sokoloff’s parallel work, published in 1990, almost always gives “crucifixion” as the appropriate meaning. If the connection between the cross and Jesus, and its anti-Semitic reverberation inspired by the popular cry, “Crucify him, crucify him”, are also taken into account, it is easy to grasp why the subject was kept under cover in Jewish circles.

Nevertheless two significant references to crucifixion from outside the Mishnaic-Talmudic tradition survived in the sources. One is buried in the rarely used Targum of Ruth. Commenting on Ruth 1:17, the Aramaic interpreter lists the death penalties codified in the Mishnah-stoning, burning, beheading — but substitutes for strangling tselibat qissa, “crucifixion on the tree”, thus turning the cross into a Jewish instrument of death penalty. The second source is Flavius Josephus, a non-rabbinic author, who reports that the Hasmonaean priest-king Alexander Jannaeus (103-76 BCE) crucified 800 of his political opponents. The episode could be taken, not as the outcome of due legal process, but as a horrible act of cruelty, and some Jewish historians of the last century, mistrusting Josephus, declared the anecdote unhistorical. However, the discovery of two Dead Sea Scrolls in the mid-20th century has completely changed the perspective. 

The Qumran Commentary on Nahum, officially published in 1968 in Discoveries in the Judaean Desert V by John Allegro, but released in a preliminary study already in 1956, contains according to Allegro’s interpretation a reference to the death on the cross of the Teacher of Righteousness, the founder of the Dead Sea community, who in Allegro’s understanding prefigured the crucified Jesus. Unanimously rejecting Allegro’s interpretation, scholarly consensus maintains that the Commentary speaks in the usual figurative language of the Qumran exegesis of prophecy, of the Jewish group of the Pharisees, called “the seekers of smooth things” (teachers pretending to present the harsh truths of the Law as easy and appealing). This party is said to have invited the Seleucid (Syrian Greek) king Demetrius (named in the fragment and identified by historians as Demetrius III) to attack Jerusalem and defeat their enemy, the Jewish ruler alluded to with the sobriquet, “the furious young lion”, that is, Alexander Jannaeus. The plan of the Pharisee “seekers” misfired and Jannaeus took his revenge on them and “hanged men alive on the tree”. 

This metaphorical imagery neatly reflects the gruesome account of the historian Josephus, who reports that after the withdrawal of Demetrius, Jannaeus crucified 800 of his Pharisee adversaries for the crime of encouraging the Syrian king to attack Jerusalem, and made them watch from the cross the massacre of their wives and children. In legal terms, this macabre story presents crucifixion as the penalty for betraying king and country.

The publication of the Nahum Commentary was followed in 1977 by that of the Qumran Temple Scroll, purporting to be direct revelation by God to Moses, and representing a rearranged and enlarged version of the Law from the first half of the second century BCE. Among the many previously unregistered rules included in it, one concerns the Jew who “delivers his people to a foreign nation”, and another someone who “curses his people” among foreigners. Both are to be sentenced to the same capital punishment: “You shall hang him on a tree and he shall die.” In the light of this legislation, Jannaeus simply applied to the 800 Pharisees the existing Jewish law for treason: crucifixion.

But does “to hang” (the Hebrew talah of the Dead Sea texts) mean “to crucify” rather than to hang someone by the neck? To the best of my knowledge, hanging by the neck never appears as a Jewish method of execution either in Scripture or in the Mishnah and is not a synonym for rabbinic strangling. All the three extant examples describe suicides, intended or actual: the New Testament reference, from Matthew, concerns Judas. 

To find the clue, one has to start with Deuteronomy 21:22, ordering the display of the dead body of a stoned person tied to a tree or some kind of pole. By contrast, execution by “hanging” entails the affixing of someone alive to the wooden gibbet until death ensues. Whether the criminal was attached to the tree by means of a rope or with nails is not specified. Judging from Josephus’s numerous mentions of Roman executions, the Pharisees executed by Jannaeus were crucified. By his time and in his writings, late first century CE, the Greek anastaurôsai = crucify from stauros = cross, left no possible room for doubt. 

A survey of Josephus’s use of the Greek verbs (stauroô and anastauroô) shows that they do not occur only apropos of executions from the Roman era, but cover the entire narrative of Jewish Antiquities. Josephus used the word to render the “hanging” of the chief baker by Pharaoh, as do also the Aramaic Targums with their translation of “to hang” by tselab. In Josephus’s terminology, the Persian kings Cyrus and Artaxerxes also threaten or actually implement crucifixion. In the well-known scriptural story of the capital sentence pronounced on Haman by the Persian king, the Hebrew talah (to hang) on a 50 cubit (22.5 metre) high tree, Jewish Antiquities once more opts for the Greek verb “to crucify” as it does also in the case of Haman’s sons. In Maccabees, the Syrian Greeks simply cause faithful Jews to “die”; in Josephus they crucify them. Finally in the momentous Jannaeus account the same word describes the same death penalty.

In the episode of idolatry committed by a large group of Israelites, seduced by Moabite women in Numbers 25, Moses himself issued the following capital sentence for the guilty leaders: “Take all the chiefs of the people and put them to death.” Here the Palestinian Targums as well as the early rabbinic commentary Sifre unhesitatingly interpret Numbers 25:4 with the help of the Hebrew/ Aramaic verbs tsalab and tselab, words that by the early period of the Christian era definitely meant “to crucify”. If so, in their eyes crucifixion was a death penalty ordered by God and implemented by Moses, as the divine Law rewritten in the Temple Scroll later restated. Also in the Second Book of Samuel, King David hands over for execution the seven sons of his predecessor Saul. Once again the Aramaic Targum assumes that they were crucified (tselab). In short, the hypothesis is confirmed that in the late Second Temple period, during the Maccabaean-Hasmonaean rule (c. 160-60 BCE), death penalty by crucifixion was part of Jewish penal legislation. 

I believe that many of my general statements about the employment of the Greek and Aramaic terms by Josephus and the Targums as strictly applicable to crucifixion would be strongly contested by the Swedish scholar Gunnar Samuelsson, author of a very learned, not to say pedantic, recent doctoral dissertation on the subject published in 2011. Crucifixion in Late Antiquity: An Inquiry into the Background and Significance of the New Testament Terminology of Crucifixion presents a full survey of the entire Greek, Latin and Hebrew, biblical and early Jewish literature, from Homer (c. 8th century BCE) to Josephus and the New Testament (c. 100 CE).

Yet his conclusion, to me rather unsatisfactory, questions whether any of the descriptions, even the Gospel records of the execution of Jesus, contain a reliable definition of what crucifixion really was. A journalist’s reading of Samuelsson’s thesis led to the weird headline in the Daily Telegraph that it was not on the cross that Jesus died. 

The trouble with the method of Samuelsson and of similar sceptics is that, like the typical 19th-century German academic, they sit at their desks and absorb the smallest details discoverable in books, but have no time or inclination to face up to reality. Josephus and the early Targumists knew what crucifixion was from eyewitness experience. During the Roman siege of Jerusalem, Josephus used to walk among crosses and one day he even obtained the release of three of his friends from the gibbet. For two of them it was too late, despite the efforts of the physicians, but the third survived. So when he speaks of crucifixion, he means what he says, though he may use the first-century CE notion anachronistically about the “crucifixion” of Pharaoh’s head baker.

Finally, let us speculate for a moment and ask whether the chief priests of Jerusalem, if they had the power in c. 30 CE to apply the Jewish law incorporated in the Qumran Temple Scroll, might have condemned Jesus to crucifixion. Could Jesus have been charged with betrayal, endangering the wellbeing, or even survival, of the Judaean people? In their view, pretending to be the promised Messiah, Jesus could easily have inspired a rebellion against the Emperor, provoking a massive and violent Roman repression. He would thus have betrayed the interests and endangered the survival of his people. His political crime should have been punished by crucifixion in the light of the legislation enacted in the Temple Scroll.

Clearly, the chief priests of the Gospels were not familiar with this legislation, nor would they have accepted it as binding in their day. Nevertheless they sought to avoid personal responsibility, and according to the New Testament trial accounts of questionable historicity, they decided to pass the buck and let Pilate do the dirty work.