YESHIVAT HAR ETZION
ISRAEL KOSCHITZKY VIRTUAL BEIT MIDRASH (VBM)
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PHILOSOPHY OF HALAKHA
By Rav Chaim Navon

Lecture #7a: PUNISHMENT (Part 1)

Why does Halakha include punishments? What is the purpose of punishment? In this lecture, we shall examine several answers to this fundamental question.

RECOMPENSE AND JUSTICE

Punishment is founded, first and foremost, on the principle of recompense. By right, a person who committed a sin must be punished, the primary reason being the very fact that he sinned and that he 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 sign of punishment that manifests true justice and fitting 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.

Radak embraces this idea as well:

God also commanded that a man's blood be shed when he sins, as He [later] commanded 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] first corrupted his image when he transgressed God's commandment. (Radak, Bereishit 9:6)

According to Radak, punishment is just and fitting recompense for the corruption of the divine image in which man was created.

In the non-Jewish tradition, it was the eminent philosopher Immanuel Kant who emphasized this point:

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. (Kant, Philosophy of Law)[1]

Kant resolutely rejects other outlooks that justify punishment on the basis of the benefit it affords to society. According to Kant, the purpose of punishment is the execution of justice. Kant adds that a punishment imposed for the benefit of society is morally flawed: who authorized us to use a particular individual for the benefit of others?

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. The "psychologizing" of crime, which diminishes the criminal's guilt by arguing that man lacks free will (and the criminal committed his crime because "he was abused as a child," "he grew up in a difficult neighborhood," "he suffered from temporary insanity," etc.), gives an additional push in this direction of thought. It is therefore important to emphasize that, according to the Torah, punishment includes a dimension of just 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, these four people are primarily punished 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 summarized 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)

Truth be said, Rambam views deterrence as the general purpose of and fundamental reason for punishment in general:

Know that whether a penalty is great and most grievous or small and easy to bear depends on four things being taken into consideration. The first is the greatness of the crime: for actions from which great harm results entail a heavy penalty, whereas actions from which only small and slight harm results entail but a light penalty. The second is the frequency of the occurrence of the crime: for a crime that occurs rather often ought to be prevented by means of a heavy penalty, whereas a slight penalty suffices to prevent one that is rare in view of its rarity. The third is the strength of incitement: for a man can be made to give up a thing toward which he is incited – either because desire draws him strongly toward it or because of the strength of habit or because of his feeling great hardship when refraining from it – only by way of a heavy penalty. The fourth is the ease with which the action can be committed in secret and concealment, so that the others are unaware of it: for the deterrent for this can only be the fear of a great and heavy penalty. (Guide of the Perplexed III:41)

The last three factors (out of four) 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, so that there is no need for special measures of deterrence. At other times we may rule stringently regarding a light offense on account of its frequency. The emphasis upon deterrence also results in punishment that gives great consideration to the practical result, but has little regard for intent and thought. 

Rambam further developed this direction of thought.  This is what Rambam wrote about the ideal leader:

It behooves the governor of a city, if he is a prophet, to acquire similarity to these attributes, so that these actions may proceed from him according to a determined measure and according to the deserts of the people who are affected by them and not merely because of his following a passion. He should not let loose the reins of anger … so he may order an individual to be burned without being angry and incensed with him and without hating him, because he perceives the deserts of that individual and considers the great benefit that many people will derive from the accomplishment of the action in question. (Guide I:54)

Rabbenu Sa'adya Gaon also stressed 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 maintained 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 though the sinner himself may suffer spiritual damage as a result. In other words, deterrence is preferable to rehabilitation:

As for the question you raised, regarding a certain person who conducted himself irreverently with respect to Gentile wine, and the community sought to punish him with a monetary fine and proclaim a ban upon him, and the local rabbinic authority objected, arguing that we should be concerned that he will act even more irreverently (= punishment will bring him to sin more), and eat forbidden foods, and leave the religion, and the collar of his sin will hang on the community that brought him to it … 
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 a concern that the corrupt person who sinned will be further corrupted. (Chavvot Ya'ir, no. 141) 

Rav Kook also argued that the chief purpose of punishment is deterrence. Rav Kook connects his argument with a moral assertion. In opposition to Kant, who said that punishment for the purpose of deterrence is immoral, Rav Kook argues that punishment for the purpose of deterrence has greater moral value than punishment administered as recompense:

Regarding "He shall not be punished, for he is his money" (Shemot 21:21) – 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 man's way to care for his 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. (Rav Avraham Yitzchak Kook, Ta'amei ha-Mitzvot, Nitzanei Eretz XII, pp. 12-13)

Rav Kook explains why a slave master who killed his slave is not punished if the slave did not die immediately. According to Rav Kook, the whole purpose of punishment is deterrence. Since it is rare for a person to kill his own slave, there is no need to deter him from doing so.

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)

	We shall explore other approaches next week.

(Translated by Rav David Strauss)

FOOTNOTE:

[1] Cited by Ya'akov Bazak, "Ha-Anisha ha-Pelilit," p. 57.