Four and Five; The Purpose of Punishments
INTRODUCTION TO PARASHAT
HASHAVUA
PARASHAT
MISHPATIM
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In memory of Yakov
Yehuda ben Pinchas Wallach
and Miriam Wallach bat Tzvi
Donner
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FOUR AND FIVE;
THE PURPOSE OF PUNISHMENTS
By Rabbi Yaakov
Beasley
A.
INTRODUCTION
Throughout
human history, no society survived without enacting some strictures against
theft. According to the Ramban, the
category of "denim" among the seven mitzvot Benei Noach
"did not only refer to the appointing of judges in every district; it also
commanded them to observe the laws against theft, fraud, oppression, withholding
of wages, damages, etc."[1] According to Chazal, the sin that
sealed the fate of the generation of the Flood was
robbery:
R' Yochanan
stated: Come and see the severity
of the crime of robbery. The
generation of the Flood transgressed every commandment, and yet their fate was
not sealed until they stretched their hands forward to steal, as it states: "And
the world was filled with robbery, and I will destroy them and the earth"
(Bereishit 6:13).
(Sanhedrin 108a)[2]
The Torah makes
no distinction between rich and poor, nobility and peasant regarding the penalty
for theft.[3] There are three penalties imposed on
different types of theft. A
kidnapper receives capital punishment, a regular thief pays double indemnity,
and if the thief stole an ox or sheep, a fourfold or fivefold payment is
demanded:
If a man steals
an ox or sheep and slaughters or sells it, five oxen shall he pay for the ox,
and four sheep for the sheep.
(Shemot21:37)
The Akeidat
Yitzchak explains the difference between a person who stole an object from
another, who generally pays double, and one who damaged an item belonging to
someone else, who only has to pay either half or the whole value of the item
damaged:
The thief is
treated differently from the one who causes damage. The latter, who caused damage through
his ox or pit, did not intend to deprive his fellow of anything. He is therefore only required to make
half or total restitution. The
thief, who deliberately sets out to inflict loss on his fellow, deserves to have
a taste of his own medicine to lose the same amount that he deprived his
fellow of. This can only be
achieved through double restitution.[4]
What, however,
is the logic behind requiring a fourfold or fivefold payment for slaughtering a
stolen animal? In addition,
why does the Torah differentiate between the theft of an ox and that of a sheep?
This question bothered the commentators, and the answers that they suggest
provide a fascinating basis for understanding Jewish social
ethics.
B. A
PUNISHMENT OR A DETERRENT
Rabbi Yitzchak
Arama, in his Akeidat Yitzchak, explains that the heavier punishment for
slaughtering livestock is appropriate because of the fact that the thief
committed several transgressions:
His theft
involved several criminal acts
So long as the ox remained intact, he could
restore it to the owner and pay only double. But when he had tied it and prepared it
for slaughter, he committed a second act of robbery; when he threw it over a
third; and in slaughtering it, a fourth act. Every action counts. The same applies to selling. Seeking a purchaser constituted one act,
agreement over the price a second, handing over to the purchaser a third. Three-and-twofold makes
fivefold.
The penalty was
admittedly only fourfold for sheep stealing since it is much easier in this case
to find a purchaser. The bartering and handing over would therefore only count
as one act. Slaughtering, too,
would similarly only involve two acts hoisting and throwing it over counting
as one and slaughter a second. The
above demonstration, in my view, admirably demonstrates the justice of God
fitting the crime perfectly.
While the
general approach of why the disposal of the livestock receives a stiffer penalty
is logical, the Akeidat Yitzchak's explanation of the discrepancy between
the slaughter and sale of ox versus that of sheep is, for most readers,
unconvincing. The Ibn Ezra (on
21:37) and the Chizkuni make the following suggestion to explain the discrepancy
between the fourfold and fivefold payments:
Rabbi Yeshuah
stated: Hashem gave a more
severe punishment to the one who stole an ox because the thief cannot hide it as
easily as a sheep. Only an expert
thief can execute such an operation.
However, the
Rambam in the Guide to the Perplexed understands the rationale
differently:
The more
prevalent a transgression occurs, the more serious the penalty required to act
as a deterrent. Conversely, the
less frequent the act, the lighter the penalty. For this reason, theft of a sheep
carries a penalty twice as heavy as that meted out for the theft of other
objects four instead of twofold if he disposed of them. This was usual since it was difficult
for the thief to conceal them. For
theft of an ox, the Lawgiver increased the penalty by one to fivefold because
the offense was easier to commit.
Sheep are easier to guard, since they keep together. Large cattle, however, are widely
scattered in the pasture, and it is impossible for the shepherd to keep his eyes
on them all the time. Therefore,
stealing is more prevalent.
(Guide to the Perplexed 3:41)
Two issues
distinguish the Ibn Ezra from the Rambam the question of which animal is
easier to steal and the rationale behind the differing punishments. The Rambam believes that it is easier to
steal oxen, for they are widely scattered in the field, while the Ibn Ezra holds
that sheep stealing is an easier task, and only a "professional" would attempt
to steal a large ox. The
substantive disagreement, however, focuses on the purposes of the
penalties. According to the Ibn
Ezra, the penalty is retributive, and the more difficult action requires the
commensurately stiffer fine.
However, the Rambam understands the role of punishments as deterrents;
therefore, the more prevalent action (ox stealing) receives the heavier
penalty.
C. THE
IMPORTANCE OF LIVESTOCK
Two
nineteenth-century commentators deal with a question that was not asked by their
predecessors: Why does the Torah
limit the fourfold and fivefold penalties for the disposal and slaughter of oxen
and sheep and not apply it to the theft and disposal of other objects? Rabbi Baruch Epstein, in his Torah
Temima, discusses the issue based on the centrality of these livestock to
the agrarian society:
Sheep and
cattle are the mainstay of the farmer's economy. Theft of them means much more to him
than the theft of anything else. So
long as they have not been slaughtered or sold and they are restored intact, the
owner suffers nothing more than temporary hardship, for which the thief pays the
penalty of a double indemnity.
Rabbi Epstein
finds support for this approach in the Mekhilta. Discussing the peoples' complaint, "Why
then did you bring us up out of
Rabbi Shimshon
Rafael Hirsch, however, views the severity of the theft not in the hardship that
it caused the victim, but in the potential breakdown of societal mores. Items that a person keeps in his home
are easier to guard; a person who steals from a private residence only violates
the trust of an individual.
However, since livestock cannot be kept in one's home, they are left
outside, at the mercy of the community.
A person who steals livestock therefore violates the trust of all
society, and potentially causes the severing of all communal bonds. A person who steals from the community,
as it were, receives the greater punishment.[5]
D. THE
DIGNITY OF WORK
The Ibn Ezra,
in the name of Rav Sa'adia Ga'on, brings an additional reason for the
discrepancy between the penalties for stealing the ox and the
sheep:
The damage
caused to the owner of the ox is more, because he plows with
it.
This approach,
which views the penalty as reflecting the Torah's respect and value of honest
labor, is echoed in Rabbinic literature:
Rabbi Meir
stated: Come and see how highly
valued is labor by the One-Who-spoke-and-the-world-came-into-being: The ox, which contributes labor,
involves a fivefold indemnity, while the sheep, which contributes no labor,
involves a fourfold indemnity. (TB Baba Kamma 79b)
Similarly, the
Sefer Ha-Zikaron, a super-commentary on Rashi,
comments:
Physical labor
is essential to society. If someone
works with his hands, let him always work diligently and never view himself with
scorn, for the Torah itself insisted upon the importance of physical labor. When a man steals another's ox, the
Torah requires him to compensate its owner for time lost due to the ox's
absence. This teaches that work is
considered as important as money.
Underlying this
approach is the understanding that the rationale behind the punishment is not
solely to provide restitution or serve as a deterrent, as discussed earlier.
By preventing honest labor, the
thief has endangered one of the dearest spiritual values of the world. Man was placed on this earth "to labor
[for] it and to guard it." Through
his actions, the thief has prevented a fellow human being from reaching his
highest potential, fulfilling the responsibility entrusted to him by the
One-who-spoke-and-the-world-came-into-being.
[1] Commentary to
Bereishit 34:13.
[2] The Abrabanel on
Sefer Yona, Chapter 3, notes that Hashem only engages in "general
supervision," but will not intervene to overthrow a society until it engages in
robbery.
[3] This is as
opposed to other law codes of the time.
The Hammurabi Code, for example, imposed penalties for theft based on a
sliding scale that depended upon the status of the victim, and the penalty
ranged from a tenfold punishment to death if the thief was unable to pay.
[4] We will mention
R. Hirsch's unique understanding of the double payment later in the
shiur.
[5] This approach is
consistent with Rabbi Hirsch's general approach to the purpose of the penalties
for robbery. In his view, the thief
has committed two offenses: against the individual's ownership over his
possessions and against the general public order. However, as Professor Nechama Leibowitz
points out, the individual, not the community, is the recipient of the
payment.
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