Shiur #24: Punishment for Sins
The Written Torah and the Oral Torah
In his explanation of the reasons for mitzvot, the Rambam also discusses the various punishments set forth in the Torah. This is covered in chapter forty-one of Book III of the Guide, which is introduced with a general rule concerning the system of punishments in the Torah:
The punishment of him who sins against his neighbor consists in the general rule that there shall be done unto him exactly as he has done: if he injured any one personally, he must suffer personally; if he damaged the property of his neighbor, he shall be punished by loss of property.
The Rambam then brings an example to illustrate this rule:
One who mutilates a limb of his neighbor must himself lose a limb. "As he has caused a blemish in a man, so shall it be done to him too" (Vayikra 24:20).
At this, the reader is no doubt incredulous: What about Chazal's interpretation of the verse from Vayikra as referring to proportional monetary compensation, even if the damage entailed physical harm? Surely we do not apply the literal interpretation of "an eye for an eye,” but rather "monetary compensation for an eye"?
The Rambam himself immediately answers the question:
You must not raise an objection from our practice of imposing a fine in such cases. For we have proposed to ourselves to give here the reason for the precepts mentioned in the [written] Torah, and not for that which is stated in the Talmud. I have, however, an explanation for the interpretation given in the Talmud, but it will be communicated verbally.
Why did the Rambam offer an explanation for the literal meaning of the biblical text, rather than for the actual halakha as set down by Chazal in the Oral Law? This question becomes even more puzzling if we consider the Rambam's own words in his Introduction to the Mishna:
[None of] the explanations which were known to have originated with Moshe were ever contested. Ever since Moshe, until the present, we have never found a dispute arising among the sages of any time or era – from the days of Moshe to the time of Rav Ashi – in which there would be a single sage who would say that one who takes out the eye of his follow has his own eye removed as an observance of the verse, "Eye replaces eye" (Devarim 19:21), and that it would be only another sage who would state that the verse merely means he is obligated to monetarily compensate for the loss.
The Rambam agrees that no one ever dreamed of suggesting that the "eye for an eye" principle be followed literally. It was always clear, to every generation of Jewish sages, that the law was "monetary compensation for an eye." The interpretation taught by Chazal has been the accepted interpretation of the Written Law since the time of Moshe. But if this is the case, why does the Rambam, in the Guide, offer the reasoning for the literal sense of the biblical law, rather than the accepted interpretation of Chazal?
It would seem that the Rambam's intention here is to teach us something about the philosophy of hermeneutics of the Torah. The Oral Torah is what determines our actual practice. However, its directives do not nullify the plain meaning of the Written Torah. The punishment that is actually meted out, in a situation of bodily damage, is monetary compensation: "money for an eye." So why does the Written Torah say, "an eye for an eye"? Apparently, it conveys an educational, value-oriented message: strictly speaking, the perpetrator actually deserves to have his own eye put out. There are other considerations – weighty and serious ones – which lead the Oral Law to conclude that this is not to be his punishment: we do not wish to create a cruel society; we do not wish to increase the ranks of the mutilated and handicapped amongst us; it is more productive for the victim to receive compensation that can help towards his rehabilitation; etc. Nevertheless, the Torah states "an eye for an eye" in order to tell us that, from the point of view of strict, absolute justice, this is what the perpetrator deserves. Perhaps this is what the Rambam means: even though we follow the directives of the Oral Law, the reasoning that arises from a literal reading of the Written Law nevertheless possesses absolute moral value.
C. The Purpose of Punishment
At the beginning of chapter forty-one, the Rambam states, with reference to the different types of punishment, that "[t]heir general usefulness is known and has also been mentioned by us." He would seem to be referring to his statement in chapter thirty-five:
Their benefit is clearly apparent; for if sinners and robbers were not punished, injury would not be prevented at all: and persons scheming evil would not become rarer. Some people mistakenly suppose that it would be an act of mercy to abandon the laws of compensation for injuries; on the contrary, it would be perfect cruelty and injury to the social state of the country.
The philosophy of law deals with several possible aims of punishment. The Rambam mentions one of them: deterrence. In chapter forty-one he seems to repeat the same message:
As punishments and judgments are evidently indispensable, it was necessary to appoint judges throughout the country in every town; witnesses must be heard; and a king is required whom all fear and respect, who is able to restrain the people by various means, and who can strengthen and support the authority of the judges.
This leads us to an interesting conclusion. We have seen that the Rambam highlights the plain reading of the biblical text, which speaks of punishment which is "measure for measure." It is therefore somewhat surprising that it is deterrence that he defines as the goal of the punishment, since the idea of "measure for measure" is usually understood as an expression of a different goal: justice. Kant addresses the difference between these two goals in his Philosophy of Law:
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...
In Kant's view, there is no moral justification for punishment solely as a deterrent measure. It is not moral to punish A for stealing, in order that B will not steal from C – for in what way is A responsible for B's criminal intentions? To this one might answer that A did indeed steal, and therefore he deserves the punishment. But this is exactly what Kant is saying: the purpose of the punishment is not deterrence, but rather justice. Even where the issue of deterrence has no relevant application – such as in the imaginary situation of a society that is about to dismantle and disperse itself – there is still an obligation to punish criminals, in order to mete out their just deserts.
Opponents of this view argue that this "justice" is simply revenge with no positive purpose. Plato presents this argument in his Protagoras:
No one punishes the evil-doer with his mind on the crime that he committed, and because of that crime – except someone who is simply exacting irrational revenge, in the manner of a beast. One who desires to inflict rational punishment does not retaliate for a past wrong which cannot be undone; rather, he looks to the future, with the intention that the criminal will not perform his crime again, nor will any person, who observes him being punished. He punishes for the sake of prevention, thereby clearly implying that virtue is capable of being taught. (Protagoras I)
According to Plato, the only legitimate justification for punishment is deterrence. Punishment for the sake of "justice" is, in his eyes, "irrational revenge."
The perception of punishment as deterrence is emphasized by David Hume:
When any man, even in political society, renders himself by his crimes, obnoxious to the public, the law punishes him in property and in person. In other words, the [ordinary] rules of justice are, with regard to him, temporarily suspended, and it becomes proper, for the benefit of society, to inflict on him suffering which, in other circumstances, would be considered an injustice or violation of his rights. (David Hume, An Enquiry Concerning the Principles of Morals)
This line of thinking, with its emphasis on the deterrent function of punishment, is to be found among many Jewish philosophers, too. These include Rav Sa'adia Gaon (Emunot Ve-de'ot, 4:2); Chavvot Yair Responsa (141); and Rav Kook (Iggerot Ha-RAY"H, I:89). As noted, the Rambam, too, states explicitly that in his view, the main purpose of punishment is deterring others from committing the same crime. He goes on to propose that this view is also reflected in the degree of severity of the punishment:
Whether the punishment is great or small, the pain inflicted intense or less intense, depends on the following four conditions.
The first is the gravity of the sin. Actions that cause great harm are punished severely, whilst actions that cause little harm are punished less severely.
The second is the frequency of the crime. A crime that is frequently committed must be put down by severe punishment; crimes of rare occurrence may be suppressed by a lenient punishment considering that they are rarely committed.
The third condition is the degree of temptation. Only fear of a severe punishment restrains us from actions for which there exists a great temptation, either because we have a great desire for these actions, or are accustomed to them, or feel unhappy without them.
The fourth is the facility of doing the thing secretly, unseen and unnoticed. From such acts we are deterred only by the fear of a great and terrible punishment.
Of these four conditions, the last three, at least, are explicitly related to deterrence. The Rambam maintains that the motivation behind the punishment (in his view – deterrence) influences its degree of severity, and that this principle works in both directions. Sometimes we might punish a grave sin leniently, because it occurs infrequently; at other times we might impose a more severe punishment for a relatively slight transgression, because it is very frequently committed (and therefore more serious measures are required in order to effect a change in the public perception of its "acceptability").
Let us consider an example of the sort of considerations that the Rambam enumerates in relation to the severity of punishment. With regard to forbidden foods, he writes:
We find no death penalty at the hands of the Beit Din as punishment for [consuming] any of the forbidden foods, because [their consumption] does not represent a great corruption, and people are not tempted by them as strongly as they are by sexual relations. For some foods the punishment is karet (extirpation): for eating blood – because at that time blood was frequently and deliberately eaten, as one of the forms of idolatry… likewise there is karet as a punishment for eating the forbidden fats, because of the pleasure that people take in them.
Here we see the considerations relevant to establishing the severity of the punishment: there is the degree of harm ("this does not represent a great corruption"); the degree of temptation to sin ("people are not tempted by them as strongly"); and the frequency of the sin ("at that time blood was frequently and deliberately eaten"). For these reasons, the Torah's punishment comes to balance the situation, so as to serve as a necessary deterrent.
The Rambam develops this line of thinking further. Concerning the ideal leader, he writes:
A political leader, if he is a prophet, should conform to these attributes. Acts [of punishment] must be performed by him moderately and in accordance with justice, not merely as an outlet of his passion. He must not let loose his anger, nor allow his passion to overcome him… He must be able to condemn a person to death by fire without anger, passion, or loathing against him, and must exclusively be guided by what he perceives of the guilt of the person, and by a sense of the great benefit which a large number will derive from such a sentence. (Guide, I:54)
The consideration that should guide the political leader in setting down punishment is the social benefit – i.e., deterrence.
D. Accidental vs. Deliberate Sin
It is commonly thought that philosophical approaches that point to deterrence as the aim of punishment would place greater emphasis on the actual result of the act, rather than the thinking and intention behind it. If a person tried to assassinate some well-known oligarch, but the bullet missed the target, then while pure justice may stipulate a most severe punishment, from the perspective of society this person and his attempted act will soon be forgotten, and therefore there is no point in applying a severe punishment. A deterrent punishment is necessary where the crime – the actual crime, with its actual results – is high-profile, visible to all. On the other hand, if you accidentally caused someone a mortal injury, justice would suggest a lighter punishment, whereas in terms of deterrence it is important that the punishment be severe. However, as we shall see, although the Rambam regards deterrence as the purpose of punishment, he does not usually take these differences into consideration. This anomaly requires further study.
The Rambam does note that the degree of intention behind the misdeed is important:
Transgressions may be divided into four classes, and they are: (1) involuntary transgressions, (2) sins committed in ignorance, (3) sins done knowingly, and (4) sins committed flagrantly.
One who sins involuntarily is completely exempt from punishment, and this makes sense, since he is in no ways responsible for his deed. However,
If a person sins in ignorance, he is held to blame: for if he had been more considerate and careful, he would not have erred.
Nevertheless, the Rambam argues that a person who sins in ignorance is not usually punished: "Although he is not punished, his sin must be atoned for, and for this reason he brings a sin-offering." The Rambam regards the sin-offering as atonement, not as a punishment. One might have thought, as noted above, that owing to the emphasis on deterrence, the Rambam would judge the person who sins out of ignorance more strictly, but – in accordance with the rules set down by Chazal – he does not.
Nevertheless, the Rambam's indulgence towards wrongdoers has its limits. Within the category of "sins committed knowingly" he includes a person who errs in his Torah study. A practical accident is not punishable, but an improper understanding or reasoning of the law, which can lead to a transgression, is a sin that was committed knowingly, insofar as it could have been avoided:
A person who acts wrongly, or who teaches wrongly, guided by his own reasoning – except in the case of the great Sanhedrin, or the Kohen Gadol – is treated as mezid (one who sins knowingly), and does not belong to the category of shogegim (those who sin by error).
The logic here is clear: the average individual lacks the ability or authority to make halakhic rulings for himself; he is therefore guilty for not having consulted with the sages, who possess the requisite knowledge. The Rambam bases this on Chazal's teaching: "A mistake in study is counted as a knowing sin" (Avot, 4:13). However, it also sits well with his general approach, for two reasons. First, it echoes his statements elsewhere concerning the necessity of relying on the sages, and the demand that a person who is not a learned scholar should not rely on his own reasoning (see, for example, Guide, I:36). Second, the Rambam often shows a tendency and aspiration towards centralization; here, as in other places, he seeks to concentrate the authority to issue rulings in the hands of a single, central institution.
Let us now go back to the categorization that the Rambam proposes for intention. The most severe level, in this context, is one who "acts flagrantly":
This is the impudent, presumptuous individual who commits his sin in public. In sinning, he is transgressing not only to satisfy his appetite, and not only because of his evil character, with a view to attaining something that the Torah withholds from him, but in order to oppose and resist the Torah and to demonstrate his hostility towards it. Therefore it is said of him that he "blasphemes God" (Bemidbar 15:30), and must undoubtedly be put to death.
Chazal understand this verse as a reference to the idolater. The Rambam explains – and his interpretation is quite innovative – that the sin involved need not be actual idolatrous practice, but rather any flagrant act that reflects the same thinking:
I think that the same punishment [i.e., the death sentence] applies to every sin which involves the rejection of the Torah, or opposition to it. Even if a Jew eats meat [boiled] in milk, or wears garments of wool and linen, or rounds the corners of his head, out of spite against the Torah, in order to show clearly that he does not believe in its truth, I apply to him the words, "he blasphemes God," and he must be put to death – not as punishment, but rather in the manner of a heretic.
In other words, anyone who commits a transgression in a demonstrative way – not out of weakness, but rather as a challenge – is deserving of death. In this case, the death penalty is not a punishment for his specific sin, but rather for his brazen rejection of God, as expressed in his commission of the transgression in an open, flagrant manner. This is the "apostate who eats the meat of carcasses in order to anger God,” and indeed the Rambam rules that he is to be put to death (“Laws of the Murderer,” 4:7; the same idea is conveyed by the Gemara in Avoda Zara 26b).
Translated by Kaeren Fish
 The Rambam's son surrounds this opaque statement with even more mystery: "My father and teacher, of blessed memory, hints in the Guide that he conveyed his interpretation verbally, with a wonderful distinction between Kabbalah and the plain meaning of the biblical text. But it cannot be written, because [my father], of blessed memory, concealed the matter" (Commentary of R. Avraham, son of the Rambam, on Shemot 21:24).
 Rambam's Introduction to the Mishna, translated by Zvi Lampel.