Punishment

In Parashat Noach, following the disembarkation of Noach and his family from the ark, God defines the rigid moral principles that were to accompany mankind from that time on. One of these fundamental principles stands out in particular:

Whoso sheds man's blood by man shall his blood be shed: for in the image of God made He man. (Bereishit 9:65010)

What is the meaning of the rationale, "for in the image of God made He man"? Rabbi David Kimchi (Radak) understands these words as follows:

"For in the image of God made He man" – for he is more venerable than all the lowly creatures, to the extent that God created him in His image, with the intelligence that He implanted within him. Therefore, the rest of creation should fear him, and also one person his fellow, so that he not destroy his body and image. For if he kills him, he has destroyed the work of God, the most venerable among the lowly creatures. God had fashioned him in His image, and this one destroyed him, thus acting against God to nullify His work…

God also commanded that a man's blood be shed when he sins, as He [later] commands in the Torah of Moshe Rabbenu, with respect to those deserving the death penalty according to their sin, each sinner according to what he deserves. For [the sinner] corrupted his image first when he transgressed God's commandment. (Radak, Bereishit 9:6)

Attention should be paid to the fact that Radak offers here two explanations of the rationale, "for in the image of God made He them." The first explanation relates to the victim: since the victim had been fashioned in the image of God, his murderer deserves to be punished severely. The second explanation relates to the murderer: the murderer himself corrupted the image of God within him when he committed the murder, and for that he must be punished. It may also be added that it is precisely the godly image in the murderer that justifies his punishment, for it is on account of that image that he bears responsibility for his actions.

Rabbi Yosef Bekhor Shor, and in his wake also Chizkuni, understand the matter differently:

"For in the image of Elohim made He them." In the image that he should be a judge [= elohim], and not that people should scorn and kill him, as it is written: "You shall not revile the judges [= elohim], nor curse the ruler of your people" (Shemot 22:27). For if they scorn the great ones, who will judge between them, and to whom shall they listen? Every man will do what is right in his own eyes, and the world will be destroyed in the absence of judgment and justice." (Rabbi Yosef Bekhor Shor, Bereishit 9:6)

It is not entirely clear what Rabbi Yosef Bekhor Shor is saying: Do the words "in the image of Elohim" refer to the victim, to whom the murderer should have related with respect as a distinguished human being, or to the judge? The plain sense seems to follow the second possibility (this is Nechama Leibowitz's understanding as well): Man was created in the image of God, and therefore it is his duty to execute justice and judgment.

We have already seen that according to Radak special justification is necessary in order to impose punishment upon man: "God also commanded that a man's blood be shed when he sins, as He [later] commands in the Torah of Moshe Rabbenu… For [the sinner] corrupted his image first when he transgressed God's commandment." In this lecture we shall deal with this very issue: the justification for punishment meted out by man. It should be emphasized that we shall not be dealing here with the punishments inflicted upon man by God, but only with those imposed by man upon his fellow.

Recompense and Justice

Punishment is founded, first and foremost, on the principle of recompense. By right, a person who commits a sin must be punished, the primary reason being the very fact that he has sinned and therefore deserves to be punished. This is the idea implied by the Torah’s formulation of the punishment administered to a person guilty of inflicting bodily injury:

And if a man maim his neighbor; as he has done, so shall it be done to him; breach for breach, eye for eye, tooth for tooth; as he has maimed a man, so shall it be done to him. And he that kills a beast, he shall restore it; and he that kills a man, he shall be put to death. (Vayikra 24:19-21)

In actual practice, it is only in the case of murder that this law is carried out in its literal sense. It seems, however, that the Torah chose the formulation, "as he has done, so shall it be done to him," in order to teach us that from the perspective of pure justice, this would have been the appropriate way to punish a person who maims his neighbor. Here we consider the principle of just recompense in and of itself. Punishment based on the principle of "measure for measure" is, indeed, the clearest manifestation of punishment based upon justice and recompense.

This spirit underlies the following verses as well:

You shall take no ransom for him that is fled to the city of his refuge, that he should come back to dwell in the land, until the death of the priest. So you shall not pollute the land in which you are; for blood pollutes the land, and the land cannot be atoned of the blood that is shed therein, but by the blood of him that shed it. And you shall not defile the land which you shall inhabit, in which I dwell: for I the Lord dwell among the children of Israel. (Bamidbar 35:31-34)

Mention is made here of the idea of "atonement," to which we shall devote a separate discussion below. The passage, however, speaks of the land's atonement and seems to be referring to the realization of justice on that land. In any event, it is clear from the moral passion expressed here that we are not dealing with deterrence.

We saw earlier that Radak embraces this idea as well: "God also commanded that a man's blood be shed when he sins, as He [later] commands in the Torah of Moshe Rabbenu, with respect to those deserving the death penalty according to their sin, each sinner according to what he deserves. For [the sinner] corrupted his image first when he transgressed God's commandment." According to Radak, punishment is the fitting and just recompense for the destruction of the divine image in man.

Among the non-Jewish thinkers, Plato has Protagoras rejecting the idea of punishment for the sake of recompense and justice:

No one punishes the evil-doer under the notion, or for the reason, that he has done wrong, only the unreasonable fury of a beast acts in that manner. But he who desires to inflict rational punishment does not retaliate for a past wrong which cannot be undone; he has regard to the future, and is desirous that the man who is punished, and he who sees him punished, may be deterred from doing wrong again. (Plato, Protagoras)

On the other hand, the important philosopher Immanuel Kant vigorously advocates punishment, the purpose of which is the execution of justice. The only valid purpose of punishment is just recompense for the criminal:

Juridical punishment can never be administered merely as a means for promoting another good either with regard to the criminal himself or to civil society, but must in all cases be imposed only because the individual on whom it is inflicted has committed a crime. For one man ought never to be dealt with merely as a means subservient to the purpose of another … Even if a civil society resolved to dissolve itself with the consent of all its members - as might be supposed in the case of a people inhabiting an island resolving to separate and scatter themselves throughout the whole world - the last murderer lying in the prison ought to be executed before the resolution was carried out. This ought to be done in order that every one may realize the desert of his deeds, and that blood-guiltiness may not remain upon the people. (Immanuel Kant, The Science of Right, Pt. II, 49, E, 1)

Kant resolutely rejects other outlooks that justify punishment on the basis of the benefit it brings to society. According to Kant, the purpose of punishment is the execution of justice. Kant goes further and argues that any punishment imposed for the benefit of society is morally flawed: who authorized us to exploit a particular individual for the benefit of others?[1]

Our generation is marked by a moral relativism that questions the right of one person to judge another. According to such an approach, the justification for punishment must lie in deterrence, prevention or some other purpose, which we shall discuss below. Psychoanalysis has given an additional push in this direction. It diminishes the criminal's guilt by arguing that man lacks free will. It is therefore important to emphasize that the Torah acknowledges that punishment may be imposed merely for the purpose of fitting recompense. The Torah's approach is not relativistic; it recognizes that a particular deed may be judged in absolute terms as good or evil.

Deterrence

There are four people, regarding whom the Torah states: "So that they shall hear, and fear." That is to say, the punishment imposed upon these four offenders is primarily for the sake of deterrence. They are: one who incites others to worship idols, a rebellious son, a rebellious elder, and false conspiring witnesses. In these cases, the factors of deterrence and prevention appear to have special significance. We cite here the law pertaining to the inciter as an example:

If your brother, the son of your mother, or your son, or your daughter, or the wife of your bosom, or your friend, who is as your own soul, entice you secretly, saying. Let us go and serve other gods, which you have not known, you, nor your fathers, of the gods of the peoples who are round about you, either near to you, or far off from you, from the one end of the earth even to the other end of the earth; you shall not consent to him, nor hearken to him; nor shall your eye pity him, nor shall you spare, nor shall you conceal him. But you shall surely kill him; your hand shall be first upon him to put him to death, and afterwards the hand of all the people. And you shall stone him with stones, that he die; because he has sought to draw you away from the Lord your God, who brought you out of the land of Egypt, from the house of bondage. And all Israel shall hear, and fear, and shall do no more any such wickedness as this is among you. (Devarim 13:7-12)

This is the way Rambam summarizes the unique laws applying to the inciter, in light of the rationale, "and all Israel shall hear, and fear":

The laws applying in a case of a person suspected of incitement to idolatry are not the same as those applying in other capital cases. Witnesses may be concealed in order to apprehend him, and he does not require a warning, as do other capital offenders. If a court exonerated him, and someone came forward claiming that he has something to say that would incriminate him, the case is returned to court. If he was found guilty, and someone came forward claiming that he has something to say in his defense, the case is not returned to court. We do not suggest arguments in defense of the inciter. He is tried by a court that includes an old man, a eunuch, and one who has no children, so that he be shown no mercy. For cruelty to those who lead the people astray after vanity is mercy for the world. (Rambam, Hilkhot Sanhedrin 1:5)

The special need for deterrence leads to heightened stringency with respect to the inciter. Truth be said, however, Rambam views deterrence as the general purpose of and fundamental reason for punishment in general. This follows from the four factors which Rambam lists as effecting the severity of punishment: the severity of the transgression, the frequency of its occurrence, the level of its attraction, and the difficulty of its execution (Moreh Nevukhim III, 41). At the very least, the last three factors mentioned by Rambam are explicitly connected to deterrence. Rambam allows us to understand that the way we comprehend the purpose of punishment effects the severity of the punishment. This effect may lead either to stringency or to leniency. Sometimes we may rule leniently regarding a grave offense because it is relatively rare; at other times we may rule stringently regarding a light offense on account of its frequency. The emphasis placed upon deterrence also results in punishment that attaches greater significance to the practical result of the transgression and less importance to the offender's intentions.

Rabbenu Sa'adya Gaon also stresses the significance of deterrence as a central component of punishment:

Man was ordered to be put to death by means of four different forms of execution. I realized that all this was for his benefit, and that it was not contrary to reason. For it is in accordance with the verdict of reason that, just as the individual recognizes that the cutting off of one of the members of his body, which has been rendered useless by poison or disease, is a corrective necessary for the preservation of the rest of his body, so the human species must recognize that the slaying of one of its members who has become corrupted and is causing trouble on earth is a corrective necessary for preserving the rest of the species. As Scripture says: "And those that remain shall hear and fear." (Rabbenu Sa'adya Gaon, The Book of Beliefs and Opinions, IV, 2)

Rabbi Ya'ir Bacharach, the author of Chavvot Ya'ir, also maintains that the primary objective of the Torah's punishments is deterrence. He argues further that the guilty party must be punished for the benefit of society as a whole, even if the sinner himself may suffer spiritual damage as a result. In other words, deterrence takes precedence over rehabilitation. Rabbi Bachrach relates to the case of a person who had violated the prohibition against drinking gentile wine, and the community was now debating whether or not to punish him. The local Rabbi had advised against punishing the sinner, so as not to reject him altogether, lest he come to commit more severe transgressions. Rabbi Bachrach disagrees with that Rabbi:

The Rabbinic authority incorrectly objected to the community's conduct, and I am afraid that he may have sinned. On the contrary, it would be fitting for him to don zealotry for the God of hosts, and excommunicate and punish [the sinner], until he comes to do penance and sin no more. Were we to be concerned about this, God forbid, evil people would continue to act as they pleased. Even judges would fear such a threat and concern; they would never vindicate the righteous, nor convict the wicked to relieve the oppressed and pluck the prey out of the teeth of the wicked. Truth would be cast to the ground, and God's laws would be nullified … The Sanhedrin were never concerned about this while the Temple stood, lest because of this concern the number of sinners would grow. Regarding such a case, the Sages said: "They too cause the number of murderers in Israel to grow" … for we should be concerned about the benefit to the community, even when it is detrimental to the individual … We should also conduct ourselves in this manner, acting in accordance with the law and the rules of our Torah. We should not be concerned about the deterioration of the corrupt who has sinned, even in the case of one individual against another. All the more so when there is concern about the corruption of others. The punishment administered to the wicked is directed primarily at [the prevention of such corruption], as the Torah has written in several instances: "And the others will hear, and fear" … How very much must we be concerned about the corruption of the generation, to the point that we execute an innocent man … as they have written that someone rode a horse on Shabbat, and they stoned him because the hour demanded such a punishment. We should certainly not cross the border of justice because of concern that the corrupt person who has [already] sinned will be further corrupted. (Havvot Ya'ir, no. 141)

Rabbi Bachrach argues that the primary objectiof the Torah's punishments is deterrence, based on a concern for the welfare of the community in general. Concern about the further corruption of the criminal pales in the presence of this consideration. Rabbi Kook also believes that the chief purpose of punishment is deterrence. Rabbi Kook bases his argument upon a moral assertion. As opposed to Kant, who said that punishment for the purpose of deterrence is immoral, Rabbi Kook argues that punishment for the purpose of deterrence has greater moral value than punishment administered as recompense. His point of departure is the law stating that a slave-master who kills his slave is, in certain circumstances, exempt from the death penalty:

Many ask: Why does a slave lose his right to life by virtue of his being his master's chattel, so that the law applying to a slave differs from the law applying to a free man? In my opinion, this law too rests on the pillars of true compassion for the human species. For it is clearly the law of our holy Torah that we do not administer justice in order to take revenge even in the case of the most heinous sinner, but only to fill in the breach so that the evil will spread no further. If so, in a matter that has another "fence," it is unnecessary to be stringent regarding the "fence" of punishment, for nothing will remain of it aside from the benefit of lowly revenge. Therefore, regarding a person who strikes his neighbor, were the matter not controlled by way of the death penalty, sinners wishing to kill their neighbors because of a certain benefit that may accrue to them as a result of their deaths would multiply. But as for a person killing his own slave, who is his money and property – it is human nature to care for one's property … Therefore the Torah states that if the slave continues a day or two, his owner shall not be put to death. For in such a case punishment would constitute revenge, not something leading to the perfection of the world. And this would not be right according to the law of He who is merciful over all his works, including sinners. And [the Torah] offers the rationale that there is no need for a fence, for [the slave] is his money and he will have compassion. Very rarely, therefore, will a person strike his own possession with composure, losing money thereby, to the point that there is no reason for concern that the evil will spread further. (Rabbi Avraham Yitzchak Kook, Ta'amei ha-Mitzvot, Nitzanei Eretz XII, pp. 12-13)

Rav Kook explains that the whole purpose of punishment is deterrence, and not revenge. Therefore, in a case where there is no concern that the transgression will become widespread, there is no need to impose punishment. The case of a slave-master who kills his own slave is exceptional, and there is no concern that it will become widespread, for the slave is the property of that slave-master. Hence there is no logical reason to punish him.

Among the non-Jewish thinkers, the philosopher David Hume emphasized the significance of punishment as a deterrent, even at the cost of justice:

When any man, even in political society, renders himself by his crimes, obnoxious to the public, he is punished by the laws in his goods and person; that is, the ordinary rules of justice are, with regard to him, suspended for a moment, and it becomes equitable to inflict on him, for the benefit of society, what otherwise he could not suffer without wrong or injury. (David Hume, An Enquiry Concerning the Principles of Morals, Sec. III, pt. I)

Two-Fold System

In his Derashot, Rabbenu Nissim of Gerondi (Ran) argues that according to Jewish law, punishment has two objectives: the execution of justice and deterrence. Thus, according to him, there exists a two-fold system of punishment: on one level it worries about doing justice, and on another level it is concerned with deterrence:

For the king that we set upon us will complete that correction. But the objective of the judges and the Sanhedrin was to judge the people with true justice, just in itself. This will cause Godliness to cling to us, whether public matters will become perfectly ordered therewith, or not. For this reason, some of the laws of the Gentile nations may be closer to the perfect political order than some of the laws of the Torah. We, however, lack nothing, for whatever is missing from the perfect order, the king would complete. (Derashot ha-Ran, no. 11)

Ran claims that punishment has two main objectives: the execution of justice and deterrence. He argues that the Jewish people are supposed to be governed by two parallel judicial systems, the one whose goal is the execution of justice, and the other whose purpose is deterrence. The courts judge according to Halakha, which always gives expression to absolute justice: the punishment that the convicted party truly deserves. Often, however, were we to judge solely according to the recompense that the offender truly deserves, the deterrent factor would totally disappear. For this reason there exists a second judicial system – the monarchy. The monarchy's goal is the eradication of sin and evil, even if from time to time an injustice is committed against a particular individual.

Prevention

One of the exceptional punishments about which the Torah says, "And all Israel shall hear, and fear," is the punishment administered to the rebellious son:

If a man have a stubborn and rebellious son who will not obey the voice of his father, or the voice of his mother, and that, when they have chastened him, will not hearken to them: then shall his father and his mother lay hold of him, and bring him out to the elders of the city, and to the gate of his place; and they shall say to the elders of his city, This our son is stubborn and rebellious, he will not obey our voice; he is a glutton, and a drunkard. And all the men of his city shall stone him with stones, that he die: so shall you put evil away from among you; and all Israel shall hear, and fear. (Devarim 21:18-21)

Chazal explain that we are not dealing here with a punishment aimed at deterrence, but with a punishment whose goal is prevention, that is, preventing the offender himself from causing additional offense in the future:

Mishna: A stubborn and rebellious son is tried on account of his ultimate destiny: Let him die innocent and let him not die guilty …

Gemara: It has been taught: Rabbi Yose the Galilean said: Did the Torah decree that the rebellious son shall be brought before a court and stoned merely because he ate a tartemar of meat and drank a log of Italian wine? But the Torah foresaw his ultimate destiny. For at the end, after dissipating his father's wealth, he would [still] seek to satisfy his accustomed [gluttonous] wants, but being unable to do so, he would go forth at the cross roads and rob. Therefore the Torah said, "Let him die while yet innocent, and let him not die guilty." For the death of the wicked benefits themselves and the world; [and the death] of the righteous injures themselves and the world. (Sanhedrin 71a-71b)

At first glance one might understand that our concern here is with the spiritual welfare of the rebellious son himself, that he should die innocent and not guilty. The Baraita, however, teaches that his death is "beneficial to him and beneficial to the world." That is to say, we relate here also to the welfare of the community, that it should be spared confrontation with an ingrained criminal.

In modern society, not only capital punishment, but also incarceration has a preventative effect: removing the offender from society for an extended period of time, so that he is unable to cause additional damage.

Rehabilitation and Improvement

Many sources relate to punishment as a rehabilitative process that may help to refine the offender's personality. This principle appears repeatedly in the book of Mishlei:

He that spares the rod hates his son; but he that loves him chastises him early. (Mishlei 13:24)

When the scorner is punished, the simple man is made wise. (Mishlei 21:11)

You shall beat him with the rod, and shall deliver his soul from She'ol. (Mishlei 23:14)

The Sages of the Midrash emphasize this point:

"He that spares the rod hates his son; he that loves him chastens him early" (Mishlei 13:24)… Anyone who refrains from chastising his son causes him to fall into evil ways and thus comes to hate him. This is what we find in the case of Yishmael who behaved wickedly before Avraham his father, but he did not chastise him, with the result that he fell into evil ways, so that he despised him and cast him forth empty-handed from his house … What became of him in the end? After he had driven him out, he sat at the crossroads, and robbed and molested passers-by, as it is said: "And he shall be a wild ass of a man; his hand shall be against every man" (Bereishit 16:12). Another example: "Now Yitzchak loved Esav" (ibid. 25:28). Hence, because he did not chastise him, he became depraved … Similarly, because David did not rebuke or chastise his son Avshalom, he fell into evils ways, seeking to slay his father, sleeping with his concubines, and becoming the cause of his wandering bare-footed and weeping, and of the slaughter of many thousands and tens of thousands of Israelites, as well as of other sorrows without end … David treated Adoniya in a similar fashion, neither rebuking nor punishing him, and therefore he became depraved …

But a father who chastises his son causes the son to have additional love for him and he honors him… (Shemot Rabba 1:1)

A similar explanation has been offered in our generation regarding the punishment of a thief who is sold into slavery when he does not have the means to make restitution. Life in the house of his master, the mitzva to care for his needs and watch over him, will contribute to the thief's social and moral rehabilitation.

Atonement

In a religious framework, punishment has one additional objective: atonement. Atonement is somewhat similar to recompense and justice. Here, however, the objective is not to repay the sinner in kind, but to wipe out his sin and make atonement before God, so that he should not suffer punishment at the hand of God. This aim finds striking expression in the punishment administered to the inadvertent killer. The talmudic discussion in Makkot (2a-2b) implies that atonement is for the sinner's benefit. For this reason, a serious offender is sometimes denied the punishment of exile, so that he not achieve atonement.

FOOTNOTES

[1] See C.S. Lewis, The Problem of Pain, Glasgow, 1981, pp. 81-82.

(Translated by David Strauss)