Mishpatim: Judaism’s Stance on (Extrajudicial) Witch Hunts

The Torah prohibits witchcraft under the penalty of death, but if you think you know what that means and why, then you may be in for a surprise.

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Artwork: Cuombajj Witches, by Seb McKinnon

Mishpatim: Judaism’s Stance on (Extrajudicial) Witch Hunts

The Mainstream View

One of the more jarring mitzvos in Parashas Mishpatim is: “Machasheifah lo techayeh – A witch you shall not allow to live” (Shemos 22:17). Although the pasuk (verse) specifically mentions a female, the Torah’s lo taaseh (negative commandment) against kishuf (sorcery) applies equally to males, as we see in Parashas Shoftim: “There shall not be found among you … a mechasheif (sorcerer)” (Devarim 18:10). Our pasuk refers to a witch because the Torah speaks in terms of the common case (Rashi), and “most practitioners of sorcery are women” (Mechilta de’Rashbi).

What does the Torah mean by “you shall not allow [her] to live”? We would have expected it to say something like “she shall surely be killed” or “her blood is upon her”—phrases commonly used to denote the death penalty.

Rashi (Shemos 22:17) explains: “you shall not allow [her] to live—rather, she shall be put to death in beis din (court).” This is the unanimous halacha. While the Tannaim (Sanhedrin 67a) debated whether a witch is liable for death by hereg (decapitation) or skilah (stoning), the undisputed conclusion is that she is subject to skilah.

Why, then, does the Torah express this death penalty in such unusual terms? Ramban (ibid.) explains:

Here [Hashem] did not say “a witch you shall put to death,” for He expressed a stricter warning through a negative commandment, [prohibiting] us from allowing her to live. The reason is that she “is defiled in name and great in mayhem” (cf. Yechezkel 22:5), and fools are misled after her. [Therefore,] He was more stringent with her [by commanding this as] a lo taaseh. The same applies to all who cause widespread harm, as He said regarding the meisis (one who incites others to worship idolatry), “you shall not have compassion nor shall you conceal him” (Devarim 13:9), and regarding a murderer, “you shall take no ransom for the life of the murderer” (Bamidbar 35:31).

This is the mainstream peshat (straightforward reading) of the pasuk in accordance with the halacha: a witch is liable for death by skilah, must be brought to beis din for trial, and this penalty is so severe that the Torah adjures us—by force of a lo taaseh in addition to an aseh (positive commandment)—not to allow her to live.

The Minority View

There is, however, a minority view that interprets “lo techayeh” in a shockingly different manner. This interpretation is most fully articulated by the Tosafist Bechor Shor (Shemos 22:17)

you shall not allow [her] to live – This implies that she should not stand trial before the Sanhedrin. Rather, once it is known that she is a sorceress, whoever encounters her first merits [killing her]. For if she is brought to court, she might use sorcery to escape or cause harm. Similarly, regarding the Canaanites, it says: “you shall not allow any soul to live” (Devarim 20:16), [and we see that] this did not mean they were brought to trial. Here too, “a sorceress you shall not allow to live” does not mean she should be brought to court. Likewise, we find that Shimon ben Shetach hanged eighty women [who practiced sorcery] in Ashkelon on one day (see Mishnah Sanhedrin 6:4; Yerushalmi Sanhedrin 6:6:4; Yerushalmi Chagigah 2:2:6).

This explanation is paraphrased by Chizkuni (ibid.) in even more concise terms:

you shall not allow [her] to live … The Torah left her manner of death unspecified in order to teach that whoever acts first to strike her down has merited [in fulfilling the mitzvah], for if you delay her until she stands trial, she will perform sorcery to save herself.

The third and only other medieval commentary which mentions this interpretation is the Hadar Zekeinim (ibid.), a compilation of Torah commentaries by the Tosafists of the Franco-German school in the 12^th-13^th centuries:

"you shall not allow [her] to live" – This is why the Torah does not explicitly specify a method of execution for a sorcerer, for if they knew how they would be put to death, they would be able to avoid being killed in that manner. The meaning of "A sorceress you shall not allow to live" is as follows: she should not be brought to trial before the Sanhedrin. Rather, whoever knows that she is a sorceress should act first to kill her, and whoever does so merits [killing her]. For if she is brought to court, she might use sorcery to escape.

Aside from these three Rishonim, I have not found any other commentaries that reflect this radical view. The only one who expresses anything similar is R’ Dovid Tzvi Hoffmann (ibid.). Although he raises this merely as a possibility after citing Rashi and Ramban, he articulates this minority position in even more explicit terms:

It is also possible that “you shall not allow [her] to live” comes to teach us that even if she has not yet committed an act punishable by death, it is forbidden for you—the Israelite state—to allow her to live, similar to the principle of ha’ba le’horgecha hashkem lehorgo (“if someone comes to kill you, rise up and kill him first”). Even though the attacker has not yet committed a capital offense, if it were possible to save oneself in another way, it would be forbidden to kill him. However, for the sake of survival, one must rise up and kill him first. So too here—the state, the community, is obligated to execute the sorcerer to secure their survival, for if they do not, the sorcerer will bring about their downfall. The execution must be carried out in the most severe manner to deter other sorcerers from continuing in their ways.

How are we to understand such a heterodox interpretation? As mentioned above, the only debate in Talmudic literature regarding the punishment for kishuf is the Tannaitic dispute over which of the four standard methods of execution applies. The Sages never even entertain the hava amina (tentative hypothesis) that a sorcerer is subject to extrajudicial killing—or “pre-crime punishment,” to use the term popularized in The Minority Report. How, then, can Bechor Shor, Chizkuni, and the Hadar Zekeinim interpret “a sorceress you shall not allow to live” in a manner that contradicts not only the unanimous halacha here, but also halachic precedent everywhere?

Answer #1: Lefi Derech Eretz

I can think of two possible answers. The first is that these Rishonim do not mean what they appear to say. In reality, they agree with the unanimous halachic interpretation of our pasuk, but their commentary reflects the kind of non-halachic interpretation that Rashbam introduces in his preface to Parashas Mishpatim:

Rationalists know and understand that I have not come to explain halachos, even though they are primary, as I explained in Bereishis (1:1) … [but] I have come to explain the peshat of the Scriptures, and I will explain the laws and rules lefi derech eretz (lit. “in accordance with the way of the world”). Nevertheless, the halachos are primary, as our Rabbis said, “halacha okeres mikra – halacha uproots Scripture” (Sotah 16a).

Rashbam acknowledges that the halachic interpretations transmitted by the Sages of the Oral Torah are exegetically authoritative and legally binding. Nevertheless, since his goal is to explain the peshat, not to teach halacha, he interprets the legal passages in Parashas Mishpatim “lefi derech eretz.” Renowned Rashbam scholar Prof. Marty Lockshin translates lefi derech eretz as “in a manner that conforms to the [natural] way of the world.” In his critical edition of Rashbam (Chorev, 2009, Parashas Mishpatim note 4), Lockshin clarifies the difference between Rashbam and Rashi on this point:

Touitou (HaPeshatot haMitchadshim b’chol Yom, pp. 135–136) demonstrates that even Rashi used the term derech eretz to mean the conventional manner of speech or customary practice. However, Rashi never claimed that his commentary on the Torah was written "according to derech eretz." Rashbam, on several occasions, explains that the difference between his interpretive approach and that of Rashi is that Rashbam interpreted the Torah “according to derech eretz,” meaning that his commentary is based on the assumption that “the Torah speaks in human language,” whereas Rashi assumes that the Torah must be interpreted through special methods based on the premise that it was not written in the conventional manner of speech.

For example, the Written Torah states that if an Israelite bondsman’s period of servitude is nearing its end but he desires not to go free, “his master shall pierce his ear with the awl, and he shall serve him forever” (Shemos 21:6). The unanimous interpretation given by the Oral Torah is that “forever” in this context means “until the Jubilee year” (Mechilta). Nevertheless, Rashbam (ibid.) interprets “forever” as “for the rest of his life.” Rashbam does not dispute the halacha but, as he stated, his aim is not to give halachic explanations, but to elucidate the peshat lefi derech eretz, in accordance with natural speech.

If we assume that the interpretation of our pasuk given by these minority Rishonim was intended lefi derech eretz, then the halachic meaning of “you shall not let [her] live” as expounded by the Talmudic Sages remains intact. According to this, the Torah is emphasizing the severity of kishuf—so destructive is sorcery that even potential offenders deserve elimination through extrajudicial execution, even if this is not carried out in practice.

This is reminiscent of Ibn Ezra’s explanation of “an eye for an eye” (Shemos 21:24, second commentary). After affirming the Oral Torah’s ruling that the culprit must provide monetary compensation for the victim’s eye, Ibn Ezra writes: “it is fitting for the culprit to give his eye in place of his victim's eye if he does not pay restitution for it.” In other words, the Torah expresses the penalty this way to convey what the criminal deserves, not what we actually implement. The same applies here: “you shall not allow [her] to live” means that she deserves to be killed at all costs, even if we don’t halachically carry this out in practice.

I am not sufficiently familiar with Bechor Shor, Chizkuni, or the Hadar Zekeinim Tosafists to know whether they offer derech eretz interpretations elsewhere, but if they do, then this would be the simplest explanation.

Answer #2: Lefi Halacha

The second possible answer is that these Rishonim meant exactly what they wrote. Although sorcery is liable for the death penalty according to the letter of the law, a sorceress is so dangerous—even, and especially, once apprehended—that she is effectively regarded as a rodef (one who chases after a victim with the intent to kill) and must be stopped at all costs.

If it is known with certainty that a man or woman practices sorcery, preemptive execution is justified to prevent a greater catastrophe. From this perspective, Bechor Shor’s reference to Shimon ben Shetach is fitting. His hanging of eighty women on the same day was an extrajudicial killing, contrary to the established halacha (see Mishnat Eretz Yisrael on Sanhedrin 6:4, citing the incident as recorded in the Yerushalmi).

Concluding Question

Both answers above presuppose that sorcerers represent a real threat. But what about those who hold that magic isn’t real, like Rambam? I will save the answer to that question for my paid subscriber addendum:

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