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

Lecture #7b: PUNISHMENT (Part 2)

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.

Surely, we have learned in chapter "Hayu bodekin": Our Sages have taught us: "Do you recognize him? Did you warn him? Did he accept the warning? Did he surrender himself to death? Did he kill within as much time as is needed for an utterance?" All this is undoubtedly appropriate for true justice, for why should a person be put to death unless he was aware that he was entering upon something that carries the death penalty and nevertheless he committed the offense? For this it is necessary that he accept the warning, and all the rest of what is mentioned in that Baraita. This is true justice itself that is handed over to the judges. But if an offender could only be punished in this manner, the social order would be entirely destroyed. For murderers would multiply and they would not fear punishment. In order to promote civilized society, therefore, God commanded that a king be appointed … And the king can issue a judgment even if a warning had not been given, as he sees is necessary for the political society …
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: R. 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 we are concerned here about the spiritual welfare of the rebellious son himself, that he should die innocent and not guilty. The Baraita, however, teaches us 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 world, that it be spared confrontation with an ingrained criminal. 

Rambam presents us with another example of punishment aimed at prevention, that which is administered to an informer. Rambam understands that the law pertaining to an informer is similar to and parallels the law pertaining to a persuer (rodef):

An informer may be killed anywhere, even at the present time when we do not try cases involving capital punishment, and it is permissible to kill him before he has informed. As soon as one says that he is about to inform against So-and-So's person or property, even a trivial amount of property, he surrenders himself to death. He must be warned and told, "Do not inform," and then if he is impudent and replies, "Not so! I shall inform against So-and-So," it is a religious duty to kill him, and he who hastens to kill him acquires merit.
If the informer has carried out his intention and given information, it is my opinion that we are not allowed to kill him unless he is a confirmed informer, in which case he must be killed lest he inform against others. There are frequently cases in the cities of the Maghrib, where informers who are known to reveal people's money are killed or are handed over to the heathen authorities to be executed, beaten, or imprisoned, as befits their crime. (Rambam, Hilkhot Hovel u-Mazik 8:10-11)

According to Rambam, one is permitted to injure an informer only as long as he has not yet informed, in order to prevent him from so doing. Here we have a punishment that is clearly preventative.[2]

	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; but he that loves him chastens him early" (Mishlei 13:24). Ordinarily, if a man's friend says to him: "So-and-So hit your son," he is ready even to deprive him of his livelihood. Then why,"He that spares the rod hates his son"? To teach you that 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 Adoniyah 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, as it is said: "Correct your son and he will give you rest, etc." Mishlei 29:17); and it also says: "Chasten your son, for there is hope" (Mishlei 19:18). He will increase his son's love for him, for it is said: "But he that loves him chastens him early" – because he chastens him early, therefore he loves him. You will find that Avraham chastened Yitzchak his son, and taught him Torah and to walk in his ways … You must know that Yitzchak was thirty-seven years old when his father was about to sacrifice him, yet though it says: "And Avraham was old and advanced in years" (Bereishit 24:1), he bound him like a lamb and he did not object; therefore "And Avraham gave all that he had unto Yitzchak (ibid. 25:5) – a proof that "He loves him who chastens him early." Similarly, Yitzchak used to chasten Ya'akov early, for Yitzchak taught him Torah and rebuked him in the schoolhouse … Also Ya'akov Avinu chastened his children and taught them of his ways, so that no dross should be in them, for thus it is written: "Now, these are the names of the sons of Yisrael, who came into Egypt with Ya'akov" (Shemot 1:1), comparing them all to Ya'akov, because all of them were as righteous as he – a proof that "He that loves him chastens him early." (Shemot Rabba 1:1)

	In our time, a similar explanation was offered 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. This aim finds striking expression in the punishment administered to the inadvertent killer. Let us examine the Gemara's discussion regarding conspiring witnesses who falsely testified against a certain person that he had inadvertently killed another person. In such a case the witnesses are not sent to a city of refuge, and they are not administered the punishment they sought to inflict by their testimony on the defendant:

Mishna: In what manner do witnesses become zomemim (false conspiring witnesses)? [If they said,] "We testify about this man that he is the son of a divorced woman or the son of a chalutza," we do not say that he [the false witness] is relegated to the status of the son of a divorced woman or the son of a chalutza in his place. Rather, he suffers forty [lashes]. [If they said,] "We testify about this man that he is liable for exile," we do not say that [this false witness] should suffer exile in his place. Rather, he suffers forty [lashes].
Gemara: From where is this derived? Resh Lakish said: Because the verse says (Devarim 19:5): "He shall flee to one of these cities [of refuge]" – he, but not false conspiring witnesses. Rabbi Yohanan said: A kal vehomer argument – now if even [a murderer] who performs a deliberate act is not subjected to exile, then they [false witnesses] who do did not perform a deliberate act [but merely testified falsely], should certainly not be subject to exile. But this points [to the opposite conclusion]; he who performed a deliberate act does not suffer exile in order that it not serve as an atonement for him. But they who did not perform a deliberate act, let them also suffer exile. Therefore, the clearer source is the one put forth by Resh Lakish. (Makkot 2a-2b)

	The Gemara's discussion is based on the assumption that the offender's punishment is intended, among other things, to achieve atonement. For this reason, a severe punishment can actually be beneficial to the offender. The factor of atonement introduces metaphysics into punishment.

(Translated by Rav David Strauss)

FOOTNOTE:

[2] The law applying to the persuer himself is clearly a preventative measure, for simply understood, it does not involve punishment at all, but is merely an application of the principle, "If anyone comes to kill you, kill him first."