FOUR AND FIVE; THE PURPOSE OF PUNISHMENTS
INTRODUCTION TO PARASHAT HASHAVUA
In memory of Yakov
Yehuda ben Pinchas Wallach
and Miriam Wallach bat Tzvi Donner
FOUR AND FIVE; THE PURPOSE OF PUNISHMENTS
By Rabbi Yaakov Beasley
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." 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)
The Torah makes no distinction between rich and poor, nobility and peasant regarding the penalty for theft. 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.
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.
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.
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.
 Commentary to Bereishit 34:13.
 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.
 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.
 We will mention R. Hirsch's unique understanding of the double payment later in the shiur.
 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.