Lesson 12: Category 5 — The Fourteenth Root

From the book Roots Outstretched by Rabbi Michael Avraham. Translated from Hebrew using gpt-5.4 (reasoning_effort=high, batch API).

---

With God’s help

The Fourteenth Root

How the imposition of sanctions should be counted among the positive commandments.

Punishments and Their Meaning

Our present essay deals with the fourteenth root, whose subject is the way punishments—that is, sanctions—appear in the enumeration of the commandments. At first glance this seems to be a purely technical issue: for every transgression it is clear what the punishment is and who is charged with carrying it out, and that is not what this root is about. The question over which the medieval authorities disagree is only the form in which punishments should appear in the count of the commandments. Even so, as we shall see, the various approaches to the appearance of punishments in the enumeration of the commandments contain within them different conceptions of punishment in halakha (Jewish law).

As we shall explain below, it is not clear whether this root belongs to the fourth category of roots, which contains rules about the nature of commandments as commands, or rather to the fifth category, which deals with rules of classification and categorization of the commandments. This ambiguity will become clear as we proceed, and we will see that different medieval authorities most likely understood punishment in the Torah in different ways, and that this is reflected in the question of how punishments are counted in the enumeration of the commandments.

We will see that beneath the different counting methods lie different conceptions of punishment. This essay will therefore also deal with the theory of punishment in halakha, the various approaches to it, and the meaning, aims, and character of punishment in Jewish law.

We should note that when we come to discuss Root 12 we will see a parallel between what is said here and the various approaches of the medieval authorities there, including that of Maimonides.

A. Maimonides and the Medieval Authorities on Counting Punishments

Introduction

Maimonides’ discussion in this root is rather lengthy, so we will present it without full quotation and try to focus the discussion on the points most important for understanding the halakhic theory of punishment.

The Opening: The Appearance of Punishment in the Torah

Maimonides opens by stating that there are two types of legal verses in the Torah: commandments—positive commandments and prohibitions—and punishments. The commandments, positive and negative, divide at the most basic level into those for which the Torah states only the command and warning, and those for which the Torah also states a punishment and a legal sanction:

Know that all positive and negative commandments divide, for the purposes of this gate, into two parts. One part is where Scripture explained no punishment at all, but only command and warning; it imposed no legal sanction on the transgressor and assigned no specific punishment for violating that commandment or the prohibition implied in it. The other part is where the punishment and the law were explained.

Does the absence of a punishment in the Torah mean that there is no punishment at all for that offense, or only that there is a punishment but it is not explicit—and therefore it is not counted, since without an explicit verse there is no separately countable commandment?

We know that, as a matter of halakha, one may not derive an obligation of punishment by pure inference. As we already saw in our essay on the second root, most medieval authorities interpret the phrase “by inference” as referring to an a fortiori inference, but Maimonides interprets it as applying to all the hermeneutical rules of exposition; see his introduction to Sefer HaMitzvot, immediately after the end of the fourteenth root. There we explained this as a consequence of the rule that one does not punish unless there is a prior warning, meaning that the Torah’s explicit formulation functions as a sort of warning to the transgressor that he stands liable to punishment; according to Maimonides, if the warning is learned through one of the hermeneutical rules, it is not regarded as explicitly written in the Torah.

That is said with respect to the warning that serves as the basis of punishment. But must the punishment itself also appear explicitly in the Torah? The Sages assume that we do not punish offenders without some appearance—explicit or indirect—of the punishment in the Torah. If a punishment is imposed, it must have a source in the Torah, for otherwise how could we punish a person without a directive from the Torah?

If so, the rule “one does not derive punishments by inference” is applied in two ways:

1. Where offense A carries punishment X, and we want to infer by an a fortiori argument that offense B is also prohibited because of offense A. Here one may indeed infer the prohibition, but one may not impose punishment X upon offense B on the basis of that a fortiori reasoning.¹
2. Where both offenses are explicitly written in the Torah, but punishment X is written explicitly only for offense A. May we impose the same punishment for offense B? The answer is no, because punishments are not derived by inference. Thus the working assumption of the Sages is that the punishment itself must be written explicitly in the Torah.

Still, it remains possible that there is a source for a punishment that is not explicit in the Torah but is learned through the hermeneutical rules or a similar interpretive argument, and then punishment may indeed be imposed, though at most it would not be included in the enumeration of the commandments.² It is therefore not entirely clear what Maimonides intends in this division: whether he means that when there is no explicit punishment we do not punish at all, or only that we do not include it in the enumeration of the commandments.

By the way, in the case of lashes the situation is indeed that there is punishment even without an explicit directive in the Torah. With lashes, the rule is that anyone who violates a prohibition—under the required conditions, with witnesses and prior warning, and so forth—becomes liable to lashes, even if the Torah did not specify this in that particular case. The punishment of lashes appears only in one place—Deuteronomy 25:2, “the judge shall cause him to lie down and be struck”—and from there it is learned for all other prohibitions; see the Sifrei, the commentators there, and the opening chapters of Rabbi Yerucham Fishel Perla’s introduction to volume 3 of Saadia Gaon’s Sefer HaMitzvot. There are, however, several exceptions: a prohibition accompanied by a positive commandment that repairs it, or one linked to court-imposed death or to monetary payment, as well as a prohibition that involves no physical act, and other such prohibitions for which lashes are not administered.

Types of Punishments in Halakha

Maimonides now proceeds to list all the types of punishments one by one. This list can teach us quite a bit, so we shall cite it and briefly comment on the punitive dimension present in each type:

As for the class in which the law was explained: among those commandments are some regarding which the Exalted One commanded us to stone with stones anyone who transgresses them. Among them are some regarding which He commanded us to burn the transgressor. Among them are some regarding which He commanded us to strike the transgressor’s neck with a sword, as the received interpretation explains. Among them are some regarding which He commanded us to execute the transgressor by strangulation, as explicitly stated there. And among them are some regarding which He commanded us to flog the transgressor with lashes.

So far five bodily punishments have been counted: the four court-imposed death penalties and lashes. Maimonides then continues the list:

Among them are some for which the Exalted One designated karet. This means that if the transgressor dies still holding fast to his sin, he has no share in the World to Come, as we explained in the chapter Helek of the Mishnah.³ Among them are some for which He designated only death, meaning that God will put him to death for his sin and his death will atone for him. We already explained at the beginning of Makkot that any prohibition whose transgressor is liable only to karet or to death at the hands of Heaven, if it is established that he transgressed with witnesses and prior warning, receives lashes, even though the principal judgment is committed to Heaven.⁴

These are punishments entrusted to Heaven, and they are two: karet (spiritual excision) and death at the hands of Heaven. Karet means that he is denied a share in the World to Come,³ and death at the hands of Heaven is a death not administered by the rabbinical court.⁴

Within this passage Maimonides cites what he also explains at the beginning of chapter 3 of Makkot: every prohibition punishable by karet or by death at the hands of Heaven, when accompanied by witnesses and prior warning, carries lashes even though its principal judgment is entrusted to Heaven. As explained there, once the offender has been flogged he is released from his karet; that is, atonement has been achieved.

We should note here that the controversy over renewing ordination in the sixteenth century centered largely on the possibility of achieving atonement through lashes. The chief motivation of those who supported the renewal of ordination—Rabbi Yaakov Berav and his students and colleagues—was that the existence of a properly ordained court would enable offenders to obtain atonement for their liabilities of karet and death at the hands of Heaven by receiving lashes from the court, something denied to us ever since courts of classical ordination ceased to exist.⁵ This reflects a view of punishment as a right of the offender, since punishment serves as atonement,⁶ and we will return to this point below.

Maimonides continues with monetary punishments:

Among them are some regarding which the Exalted One commanded us to punish the transgressor only through his property and not his body, as in the surcharge of an added fifth imposed on the robber, and the double payment imposed on the thief.

Monetary punishments divide into fines—like the examples cited here by Maimonides—and ordinary monetary liability, such as the obligation of a damager, robber, or thief to pay. But it seems that Maimonides mentions here only fines.

A monetary punishment that does not equal the damage itself⁷ is not compensation but a fine. A fine is a punishment like any other, except that it is imposed on the offender’s property rather than his body. Monetary compensation, by contrast—such as damages paid by an assailant or tortfeasor, the principal paid by a thief, or the return of stolen property by a robber—is not punishment in the ordinary sense, but an obligation to make good someone else’s loss caused by the offender; we will return to this below. It is therefore clear why Maimonides mentions here only fines and not compensation: he is dealing only with punishments.⁸

It should be noted, however, that this picture is not quite so simple. Even fines can be seen as containing a compensatory dimension in addition to their punitive one,⁹ and ordinary monetary liability can also contain a punitive dimension in addition to compensation. With respect to fines, at least according to some views, a victim may seize the fine even today, despite the fact that our courts do not have authority to impose it. At first glance this principle seems to show that a fine includes an element of compensation to the victim and is not only punishment of the offender—for if not, why may one seize the fine before a court imposes it? Like any punishment, so long as it has not been imposed, it should not yet exist. We will return to this below.

Conversely, several Talmudic discussions suggest that even ordinary monetary liability contains a punitive element. For example, we apply the principle of kim lei be-derabba minei—that when a person incurs two punishments, only the more severe is imposed—even to monetary compensation; see Babylonian Talmud, Bava Kamma 70b, regarding “Pick a fig from my figs,” and the Mishnah in Babylonian Talmud, Sanhedrin 72a, regarding a burglar who broke a barrel, and the parallel passages. On the face of it, this principle applies only to punishments, so the fact that it is applied to monetary compensation indicates that such compensation is also a kind of punishment. Another indication comes from the rule that punishments are not derived by inference, which some tannaitic sources also apply to monetary compensation; see the Mekhilta cited in Tosafot to Babylonian Talmud, Bava Kamma 2a, s.v. “ve-lo zeh ve-zeh,” and Maharsha, second edition, on the parallel passage in 49b, among others. Here too the principle is one relevant only to punishments, and if it is applied to compensatory liability, it seems that this liability has a punitive dimension.¹⁰ Indeed, see Tosafot to Babylonian Talmud, Bekhorot 48a, s.v. “milveh ha-ketuvah ba-Torah,” who writes that we would not have required the damager to pay had the Torah not explicitly obligated it.

Maimonides concludes the list of punishments by writing:

Among them are some regarding which the Exalted One commanded that the transgressor bring an offering for his sin, and he will be atoned.

Most sacrifices are imposed for inadvertent transgressions. Still, see our essay on the Torah portion Lekh Lekha, 5767—discussed in greater detail in the appendix to the fourth volume of the quartet Two Wagons and a Hot-Air Balloon, which was, God willing, to appear that year—where we analyzed the unique nature of the guilt-offering that comes for deliberate sin. In any event, there is here more than a hint that sacrifice too has a punitive dimension; it is not only a mechanism of atonement, as people usually relate to it. Otherwise Maimonides should not have included it here as part of a list of punishments.

Maimonides’ Method for Counting Punishments

After listing the various punishments, Maimonides states the basic principle of the present root:

The implementation of all these sanctions is a positive commandment, for we were commanded to kill this one, to flog that one, to stone this one, and to bring the required offering for what one became liable for by transgressing it.

He introduces here two innovations:

1. Punishments must be included in the enumeration of the commandments.
2. They are positive commandments.

As we shall see below, neither of these innovations is accepted by the other medieval authorities.

The argument offered here for both claims is that the imposition of a punishment is simply a command that the Torah places upon the rabbinical court—or upon the community, of which the court is the representative—to impose these punishments for these transgressions. That structure is precisely the structure of a positive commandment, because it imposes an active obligation upon the court. Hence this proves both points: that there is a commandment to count here, and that it is a positive commandment rather than a prohibition. Below we will see how those who disagree respond to this claim.

Immediately afterward Maimonides turns to the question of how punishments are to be counted, and here too he presents a disputed innovation:

The method of counting them is that we count the four court-imposed deaths as four positive commandments… And just as we do not count every individual liable to lashes, but only the kind of punishment itself, namely lashes, so too we do not count those liable to the four deaths individually. Rather, we count only the kinds of punishment: stoning, burning, execution by sword, and strangulation. Likewise, we do not count every person liable to an offering individually, such that we would say the sin-offering for inadvertent desecration of Shabbat is a commandment and the sin-offering for inadvertent idolatry is a commandment, but rather we count only the kind of offering, just as we count only the kind of death.

Maimonides argues that each type of punishment is to be counted as a distinct commandment: each type of execution, each type of offering, lashes, and the various fines. Punishments administered by Heaven are of course not counted as commandments, because commandments, by their very nature, are imposed on us, whereas those punishments are imposed by the Holy One, blessed be He, not by us.

There is a third innovation here, directed against two alternative possibilities that will arise below. On the one hand, Maimonides refuses to accept a position that sees the punishment for each individual transgression as a separate commandment. On the other hand, he also rejects a position that sees all punishments as one commandment, or perhaps maintains that punishments are not commandments at all.

Explaining the Method: Another Appearance of the Principle of “Uniformity of the Halakhic Cause”

Maimonides argues against Halakhot Gedolot (Behag) that it is incorrect to count every particular punishment separately—that is, the stoning of the Sabbath desecrator, the stoning of one who consults spirits, the stoning of the idolater, and so forth—for the count of commandments would then rise into the many hundreds. Therefore each type of punishment is counted as a separate positive commandment, without further specification.

It may be that here too we encounter Maimonides’ general approach, which we have called the principle of “uniformity of the halakhic cause.” According to this principle, every legal result has only one cause. It follows that if we see the same legal phenomenon in several different legal contexts, there must be some common element in all of them—a shared denominator—that gives rise to that legal result.

Here too, with respect to punishments, the reasoning is this: if every offense in a certain group carries the punishment of stoning, then there must be something common to the whole group of offenses, and the punishment of stoning is given on account of that common element.¹¹ The same applies to offerings and lashes. The enumeration of the commandments therefore reflects that common foundation: when we count the punishment of stoning, we are in effect saying that there is a positive commandment to punish that very common factor for which stoning is given. The same holds for the other punishments.

Maimonides’ Understanding of Behag’s Position

In the course of his discussion Maimonides raises several objections to Behag. But first we must ask: how did he understand Behag’s position? We can infer this from the objections he raises. At the end of his discussion he writes:

Others have become confused in this root with a confusion that requires no reply; nor is it easy to answer because of the strength of the confusion of the issues. One is amazed that a person would count all those liable to the court’s death penalties individually, and those liable to karet and those liable to death at the hands of Heaven, among the negative commandments, and then also count the very acts prohibited, for which those deaths are incurred, likewise among the negative commandments—as the author of Halakhot Gedolot counts the desecrator of the Sabbath among those liable to stoning and afterward counts “You shall do no work.”

It seems clear that Maimonides understood Behag as counting all punishments, for every single offense, as separate commandments, and not only the kinds of punishments, as Maimonides himself does. This is in addition to the offenses themselves, which are also counted separately. He illustrates this from the Sabbath commandments, which in Behag appear as a pair: the punishment and the prohibition. Moreover, says Maimonides, Behag counts the punishments as negative commandments, not as positive ones, and this too stands opposed to Maimonides’ own view.

First Objection: Redundancy

Maimonides then draws the conclusion and continues the attack:

It can only remain that they surely regard the implementation of sanctions as negative commandments in the first place; but then how can one count both the punishment and the act for which that punishment is incurred?

Maimonides argues that if Behag understands punishments as prohibitions, it is unclear how he can separate them from the offenses for which they are given.

Why is this connected specifically to classifying punishments as prohibitions? Even if Behag had treated punishments as positive commandments, one could still ask why he does not include them within the commandments for which they are imposed. Moreover, Maimonides himself counts punishments as commandments, albeit in a different way. Why does this objection not apply to him? How would Maimonides explain the fact that punishments are not included within the offenses for which they are imposed?

To understand this, we must preface that punishments are imposed only for negative commandments, apart from karet, and those are not included in the enumeration of the commandments anyway. We can now understand that Maimonides’ point is that if punishment itself is, according to Behag, a negative commandment, then it should have been counted as a detail within the negative commandment for which it is imposed. By contrast, if punishment is understood as a positive commandment, as in Maimonides’ own view, then Root 6 implies that it should be counted in addition to the negative commandment on which it is imposed, because there Maimonides established that a positive commandment and a prohibition are not considered redundant for purposes of the count.

Two Possible Understandings of the Principle in This Root

Maimonides’ remarks imply that the reason punishments are not counted is that they are included within the commandments for which they are imposed. If our analysis is correct, this root belongs to the fifth category—the category of classification and categorization. Punishments are indeed commandments, but they are already included in other commandments and therefore should not be counted separately. The root would not belong to the fourth category, that is, verses that are not counted because they command nothing at all; that claim applied only to karet and death at the hands of Heaven.

This is supported by the fact that Maimonides himself also counts punishments, though in a less detailed way than Behag, apparently because of the principle of uniformity of the halakhic cause. If punishments were not counted because they were not commandments at all, there would be no room for Maimonides’ own method either; the enumeration of the commandments would simply exclude punishments altogether. Still, it is not clear why Maimonides counts the types of punishments. Are these not also included within the offenses themselves? And besides, in Maimonides’ view punishments are positive commandments, not prohibitions, and positive commandments are not considered duplicates of the offenses for which punishments are imposed. Maimonides’ method is therefore difficult both if we see this root as part of the fifth category and if we see it as part of the fourth.

Two lines of explanation may be suggested:

1. One could suggest the following: Maimonides does not regard punishments as commandments at all. They are a consequence of criminality, not a commandment. The verse would then be descriptive rather than prescriptive, and this root would belong to the fourth category. We shall see such a view below.

Yet as we have already noted more than once, Maimonides holds that some commandments are merely clarificatory clauses, such as positive commandments 95 and 96. That is, there are cases where an explanation of a term that appears in several commandments—such as one who is impure through contact with a corpse, or annulment of a vow, and the like—even if it contains no obligation or norm, is nevertheless counted by Maimonides as a commandment.

On this basis, it may be that the term “stoning punishment” or “lashes,” which appears within the various offenses, receives its explanation in these commandments, and Maimonides in fact does not see them as verses imposing an obligation. This also explains why he counts only the types, since the term to be explained is common to all the offenses punished by stoning, burning, and so on. The entire point of a clarificatory clause is the efficiency of giving a general explanation for a term shared by many commandments.

This explanation is nevertheless not plausible for Maimonides, because at the beginning of his discussion he emphasizes that these are positive commandments and not prohibitions, and as we saw he explains this on the basis that the court is obligated to punish, and that obligation is a positive commandment. So he regards punishments as commandments imposing an obligation on the court, not merely as clarificatory clauses.

Moreover, Maimonides’ language suggests some difference between the commandments of punishment and the commandments of sacrifices, which will be discussed in Root 12. Regarding sacrifices Maimonides writes, “It is the commandment by which we were commanded that the act of the burnt-offering/sin-offering/guilt-offering/peace-offering be as described.” By contrast, regarding the various executions he writes, “It is the commandment by which we were commanded to strangle/stone/burn those who violate some commandments.”¹² In our own root as well, Maimonides brings proof from the language of the Sages that there is a “commandment” to stone, kill, or burn offenders.

In light of the difference in formulation, it seems that with sacrifices these are indeed clarificatory clauses, and the warnings they explicate are the warnings on the offenses themselves; but with punishments, Maimonides appears truly to hold that there is a commandment to kill.

2. It therefore seems that Maimonides does indeed regard punishments as commandments imposed upon the court. Yet he sees them as positive commandments, and so there is no redundancy with the offenses themselves—especially since the commandment is imposed on the court, whereas the offense is that of the citizen. Why then does he count only the types? Most likely because of the principle of uniformity of the halakhic cause.

Punishments of Heaven

Later in his discussion Maimonides continues his attack on Behag for counting punishments of Heaven:

Even harder than this is his counting among the negative commandments those liable to karet and those liable to death at the hands of Heaven. They think that the liability of karet, and that which incurs karet, and its punishment—this itself is the commandment counted, to the point that the author of the Sefer HaMitzvot said of it, in the first gate when informing us what that gate contains, in these words: “And among them are thirty-two matters concerning which the Blessed and Exalted One informed us that He will deal with them, not we; He stands guarantor over all of them”—that is, twenty-three cases of karet and nine cases liable to death at the hands of Heaven. When he says “and among them,” he means among the subject matter included under that gate; and the thirty-two matters are the twenty-three liable to karet alone and the nine liable to death at the hands of Heaven, as he counted them. By “He stands guarantor over all of them” he means that the Blessed One guarantees that He Himself will excise this one and kill that one. There is no doubt that this person does not think that all 613 commandments are obligations upon us; rather, some are obligations upon us to fulfill, while some are obligations upon Him, may He be exalted, to fulfill—as he himself says and explains, that He will deal with them, not we.

Maimonides mocks Behag for including in his enumeration commandments whose fulfillment is incumbent upon the Holy One, blessed be He. Moreover, he points out that Behag himself explicitly says this: in these matters, it is God and not we who acts.

He concludes his opinion of Behag’s position in the following words:

This, God knows, is in my eyes complete intellectual confusion, unworthy of discussion in any way, for these are statements whose error is manifest. The mistake enters into all of them because they count punishments among the commandments and then become perplexed by them: sometimes they count them separately, sometimes they count the punishment together with the act for which one is punished, and they place all of this among the negative commandments without any careful thought.

In general, Maimonides argues that Behag has no consistent policy on this subject. Sometimes he counts only the punishments, sometimes the thing prohibited as well, and sometimes only the offenses without the punishments, all without any discernible principle.

Behag’s Own Method: Nahmanides’ Explanation

If one looks at Behag’s enumeration in the version available to us, it seems at first glance that his intention is to count only the warnings, not the punishments. Behag lists all the commandments, including the prohibitions, and simply classifies them by the punishments attached to them: those for which one is stoned, burned, executed, or strangled; those punishable by karet; those punishable by death at the hands of Heaven; prohibitions, which generally lead to lashes; and positive commandments. Maimonides understood Behag as counting the punishments themselves as commandments, not merely using them as a classificatory device, but that is not the picture that emerges from the version before us.

It seems that Maimonides had before him a completely different text of Behag, in which at least some warnings—such as the Sabbath—were counted twice: once as warning and once as punishment.

In his glosses on this root, Nahmanides states that Behag does not count punishments at all, neither as prohibitions nor as positive commandments, because the total of the commandments includes only acts desired by God and acts forbidden by Him, whereas rewards and punishments do not belong to that category, whether they are punishments of Heaven or punishments carried out by human beings. We may add that this is also Behag’s position regarding sacrifices, as Maimonides accused him in Root 12 and as we will discuss in our essay there. As for the alleged duplication regarding the Sabbath, Nahmanides understood Behag to have counted “stoning on the Sabbath” not as the punishment but as the command concerning those labors that incur stoning, whereas the prohibition “You shall do no work” concerns labors that do not incur stoning, such as making one’s animal work.¹³ In his view, then, even regarding the Sabbath there is no duplication in Behag between warning and punishment.

This yields an extreme and opposite position: not only is there no duplication, contrary to Maimonides’ charge, but in Behag’s view punishments are not counted in the enumeration of the commandments at all. Only the warnings are included, and the punishments serve merely as the system of classification for the various offenses. This also explains why Behag counts punishments of Heaven—karet and death at the hands of Heaven—for these too are only categories under which different commandments are grouped, not punishments counted in themselves as commandments.

Nahmanides’ Own View

Nahmanides himself, on this point, actually agrees with Maimonides that rewards and punishments are indeed part of the commandments; Maimonides, as noted, counted the types of punishment as independent commandments. Nahmanides adduces several proofs. The most basic proof is the rabbinic statement that judicial killing—execution by the court—overrides the Sabbath under the rule that a positive commandment overrides a prohibition; see Babylonian Talmud, Sanhedrin 35b and Babylonian Talmud, Yevamot 6b-7a. This implies that there is a positive commandment to stone the desecrator of the Sabbath.¹⁴

Nahmanides continues, however, and argues that if one accepts Maimonides’ view that punishments are to be counted in the enumeration of the commandments, then apparently every individual who is liable to each type of death should have to be counted separately, one by one. The common feature of all cases of stoning, for example, is only that they are all carried out by throwing stones—but why should that be a reason to count them as one commandment? By the same logic, all cessation of labor on the festivals should also be counted as one commandment, since it too is performed in the same way—and Maimonides himself counts them separately. So too the cessation from agricultural labor in the sabbatical year and the jubilee, or the sounding of the shofar on Rosh HaShanah and in the jubilee year: according to Maimonides’ logic these too should seemingly be counted as one commandment, since they are carried out in the same way. Nahmanides therefore concludes that similarity of performance does not show that there is only one commandment.¹⁵

With lashes, argues Nahmanides, the situation is different. We were not separately commanded in every individual offense to flog the person who violates it. Rather, there is one general commandment to administer lashes for every prohibition analogous to the prohibition of muzzling an ox while it treads grain.¹⁶ Nahmanides adds that with respect to lashes the only additional commandment appearing in Scripture is not to strike beyond the assessed number. In other words, the commandment of lashes is spelled out in two parts: “He shall strike him forty times”—a positive commandment—and “He shall not exceed”—a prohibition.

In practice, Nahmanides presents two options regarding the counting of punishments: either all punishments should be counted one by one, as he objected against Maimonides, or they should all be counted as a single commandment, on the basis of the verse “You shall eliminate the evil from your midst.” He decides in favor of the second option, because all those executed certainly are not counted as a separate commandment for each type, as Maimonides counts them. Clearly they must be counted as one commandment, for, as is well known—see Babylonian Talmud, Bava Metzia 31b—if one cannot execute them by one kind of death, one executes them by whatever death one can.¹⁷ Nahmanides therefore concludes in favor of the second possibility.¹⁸ Below we will examine the basis of the dispute and the reason Nahmanides decides precisely in that direction.

Rabbi Yerucham Fishel Perla’s Explanation of Saadia Gaon’s and Behag’s Positions

In his introduction to volume 3 of Saadia Gaon’s Sefer HaMitzvot, Rabbi Yerucham Fishel Perla devotes a very long discussion to punishments and their appearance in the enumeration of the commandments. His conclusion is that Maimonides’ understanding of Behag is actually correct, and not Nahmanides’ understanding. This claim is based on the fact that Behag—as also Saadia Gaon and other early enumerators of the commandments who preceded Maimonides—includes in the list of punishments also Passover sacrifice and circumcision, which are positive commandments. In those cases it is clear that the punishment cannot be serving merely as a classificatory axis for offenses, since these are positive commandments and are counted in their own right. Furthermore, Behag also lists, in the context of “You shall not murder,” “You shall not commit adultery,” and “You shall not steal,” both the warning and the punishment for each one.

Note that in these cases Behag counts both the punishment and the warning, contrary to Nahmanides’ explanation of his method. On the other hand, as Perla notes, Behag’s enumeration is not consistent. There are commandments for which he counts both the punishment and the warning, and others for which he counts only the punishment or only the warning. Perla concludes that Behag follows the method of Saadia Gaon, to be discussed below, and counts both warnings and punishments; the inconsistency is the result of the serious textual corruptions known to have affected the text of Behag.

In the third volume of his count, Saadia Gaon counts the seventy-one punishments of death as independent commandments. From the wording of Saadia Gaon’s introduction to this part it is already clear that he does not mean the warnings relating to the offenses, as Nahmanides explained Behag, but the punishments themselves. The same emerges from the arrangement of the commandments in Behag as the text now stands. Thus Saadia Gaon counts, for each commandment, the warning and the punishment as two separate commandments. As noted, Perla argues that this is also the method of Behag, as well as of other early enumerators of the commandments.

We saw above Maimonides’ objection to Behag: why count as commandments punishments that are in the hands of Heaven? Clearly, if punishments serve only as a system of classification for warnings, this objection disappears. But against Saadia Gaon’s method—which, according to Perla, was also the original method of Behag, and apparently this is how Maimonides understood him as well—the objection is indeed very strong.

It seems that one can answer it in two opposite ways:

1. From the wording of the Sefer HaMitzvot quoted by Maimonides here, one may perhaps infer a possible explanation:

And among them are thirty-two matters concerning which the Blessed and Exalted One informed us that He will deal with them, not we; He stands guarantor over all of them.

Maimonides adds his explanation there:

When he says “and among them,” he means among the subject matter included under that gate; and the thirty-two matters are the twenty-three liable to karet alone and the nine liable to death at the hands of Heaven, as he counted them. By “He stands guarantor over all of them” he means that the Blessed One guarantees that He Himself will excise this one and kill that one.

From this wording one may perhaps infer that the Torah commands the court not to intervene in these matters, and that the Holy One alone is guarantor over them—that is, He Himself will deal with them. Generally, the court is charged with handling all offenders, and so one might naturally think it must punish violators of these offenses as well. To negate that assumption, the Torah commands the court to refrain from intervening in these cases, and that is the meaning of the commandments concerning death at the hands of Heaven and karet. For this reason it is also clear that at least these punishments are not positive commandments but prohibitions, forbidding the court to intervene in such cases.

Yet from this description it emerges that the other punishments are in fact positive commandments, and only against the background of those positive commandments do we understand the prohibition that forbids the court to intervene in offenses subject to punishments of Heaven.¹⁹ This picture does not fit Behag’s method, which sees all punishments as prohibitions; but with respect to Saadia Gaon there may be room for discussion, since the seventy-one punishments form a category of their own. See Perla’s introduction, where he argues from the counts of 248 and 365 that these are indeed prohibitions.

2. Earlier we suggested that these commandments forbid the court from intervening. Perla, however, explains that there is precisely a commandment for the court to intervene—namely, to administer lashes to violators of these commandments in order to exempt them from punishments of Heaven. If so, even punishments of Heaven do have a practical halakhic implication for human beings, and therefore there is room to count them.

Summary of the Medieval Positions in This Chapter

The positions of the medieval authorities can be classified according to three questions: whether they count punishments at all, whether they count the types of punishment or the punishment attached to each commandment separately, and whether punishments are positive commandments or prohibitions. The possibility that the warnings are not counted at all—as might seem to follow from Maimonides’ understanding of Behag—has been rejected, and we therefore do not treat it as an actual position. The various views, as we have seen them above, are these:

1. Maimonides’ position: Maimonides counts the warnings, and in addition counts the types of punishment in themselves, as six positive commandments—one commandment for each type of humanly imposed punishment.
2. Saadia Gaon’s position—and, according to Perla, Behag’s as well, and perhaps also according to Maimonides’ understanding of him: Saadia Gaon counts the warnings separately and, in addition, counts the punishments attached to each individual commandment separately. Unlike Maimonides, however, he treats punishments as prohibitions.²⁰
3. Behag as we have it before us, and as Nahmanides understood him: Behag counts only the warnings. He does not count punishments at all, not even the kinds of punishment.
4. Nahmanides’ position: Nahmanides holds that, in addition to counting the warnings, one must count all punishments together as one positive commandment: “You shall eliminate the evil from your midst.”

Is the Dispute Merely Technical?

At first glance this seems to be a purely technical dispute, concerning only the enumeration of the commandments and nothing more. Clearly there is no disagreement here about what punishment should be imposed for what offense, and not even about the existence of an obligation to impose these punishments. Yet, as we shall see below, the various methods most likely rest on principled foundations grounded in different conceptions of halakhic punishment. In other words, this technical dispute reflects a principled dispute—meta-halakhic at its root, but with halakhic consequences as well. That is what we will examine in the following chapters.

B. A Theory of Halakhic Punishment

The theory of punishment in halakha will be our subject in this section.²¹

Introduction

The theory of punishment is a branch of legal theory that deals with the aims of punishment, its forms, and the philosophical and moral justifications that can be proposed for it. In the halakhic world, these questions receive relatively little direct attention, and even when they do appear, it is usually only incidentally.

In what follows we will try to sketch the contours of a halakhic theory of punishment and to draw from it several conclusions, some of which bear on the manner in which punishments appear in the enumeration of the commandments.

Preliminary: The Relation Between Punishment and the Offense

As is well known, halakhic history divides into two periods:

1. An era in which there were judges with classical ordination, and the court adjudicated fines and punishments.
2. A period in which ordination had ceased—it is not entirely clear exactly when—and the courts act only as agents of the earlier ordained courts. In that second period the court no longer punishes offenders according to the strict law.

What is the legal situation when the court lacks authority to punish? In such a case, is the offender still under liability to punishment, with only no one able to impose it, or is there in fact no punitive liability at all? Above we noted this dilemma in relation to the controversy over ordination. According to the first conception, punishment is an entirely mechanical consequence of the offense, and therefore once the offense has been committed a punitive liability exists, even if the court has not ruled on it. According to the second conception, punishment is not a mechanical consequence of the offense but a novelty created by the court’s verdict, and without that verdict it does not exist at all.

The role of the court with respect to punitive liability thus depends on one’s conception of punishment in halakha: does the Sabbath desecrator become liable to stoning by virtue of his desecration itself, in which case the court merely carries it out? Or is liability to stoning not a mechanical consequence of Sabbath desecration, but rather an obligation upon the court to kill the one who desecrated the Sabbath—not that the offender “owes” death, but that the court is obligated to kill him in order to eliminate evil, and so forth?

How can we determine which of these two conceptions is correct? We will now look at two Talmudic discussions that bear on the role of the court in creating punitive liability, and from them learn something about the relation between punishment and offense.

Liability to Punishment Before the Verdict: Hazamah

Babylonian Talmud, Makkot 5a discusses the laws of hazamah—refutation of witnesses by proving they were elsewhere—and says:

Rava said: If two witnesses came and said, “On the first day of the week so-and-so killed a person,” and two others came and said, “You were with us on the first day of the week; rather, so-and-so killed on the second day of the week”—and not only this, but even if they said, “He killed on the eve of the Sabbath,” the first witnesses are executed, because at the time they testified, the man was not yet a person under sentence of death.

The Gemara is discussing the laws of hazamah. When the second group of witnesses appears, it is retroactively clarified that the first group lied, and they are therefore subject to the law of conspiring witnesses. But here the second group also testifies that the defendant really did murder. The first case deals with testimony that he murdered after the testimony of the first group, and then of course the first group is treated as conspiring witnesses in the ordinary way. The second case, however, concerns a situation in which the second pair testifies that he murdered two days before the testimony of the first, now-refuted, witnesses. If so, at the time the first pair testified the defendant was already a murderer. Even in such a case, the Gemara rules that the first witnesses are liable to death, because they schemed to kill a man who, at that moment, was not yet a condemned person.

Why, at the time of their testimony, was he not yet a person under sentence of death? He had murdered two days earlier. At first glance, this proves that one who has murdered is not yet under a liability of death so long as the court has not imposed it.

The Gemara then continues with another case:

What is Rava teaching us? We already learned: therefore, if one of the sets is found to be conspiring witnesses, both he and they are executed, while the second set is exempt. The novelty is needed for the latter clause, which differs in the case of a completed verdict: if two came and said, “On the first day of the week so-and-so’s verdict was completed,” and two others came and said, “On the first day of the week you were with us; rather, the verdict of so-and-so was completed on the eve of the Sabbath”—and not only this, but even if they said, “On the second day of the week his verdict was completed”—these witnesses are not executed, because at the time they testified, the man was already a person under sentence of death.

Here, in the latter clause, the two testify that the defendant’s death sentence—because of murder—had been finalized two days before the first witnesses testified. In such a case he is indeed considered a condemned person, and therefore the first witnesses are exempt from death, because they schemed to kill a condemned man. What differs from the first case is that here the testimony concerned the completed verdict, not merely the act itself. Once the death sentence has been finalized, he is a condemned man, for the punishment of death now rests upon him. But if all that is known is that he murdered, this alone does not yet make him a condemned man, because the verdict has not yet been completed.

At first glance, then, this is a clear proof that punitive liability is not a consequence of the offense itself but a legal status created by the court at the time it issues the verdict of death.

One could still object and say that this distinction does not show that the offender has no liability to death before the verdict, but only that he is not yet a “condemned person” for purposes of hazamah. In other words, one could still say that punitive liability is indeed a mechanical consequence of the offense, and therefore exists even before the court has ruled. But until the sentence has been issued, he is not yet considered as one already dead for this specific purpose—that is, such that whoever kills him is not a murderer, or whoever conspires to kill him is not a conspiring witness liable to death.

The passage there continues and says that the same rule applies to fines; the example is the fourfold and fivefold payment imposed on a thief who slaughtered or sold the stolen animal:

And so too with respect to payment of a fine: if two came and said, “On the first day of the week he stole, slaughtered, and sold,” and two others came and said, “On the first day of the week you were with us; rather, he stole, slaughtered, and sold on the second day of the week,” they pay. And not only this, but even if they said, “He stole, slaughtered, and sold on the eve of the Sabbath,” they pay, because at the time they testified, the man was not yet liable to payment. But if two came and said, “On the first day of the week he stole, slaughtered, sold, and his verdict was completed,” and two others came and said, “On the first day of the week you were with us; rather, on the eve of the Sabbath he stole, slaughtered, sold, and his verdict was completed”—and not only this, but even if they said, “On the first day of the week he stole, slaughtered, and sold, and on the second day of the week his verdict was completed”—they do not pay, because at the time they testified, the man was already liable to payment.

Thus the distinction between before and after the verdict is not unique to the death penalty. It holds for all kinds of punishment, even monetary fines. Here it is already harder to say that the person is not yet, technically, a “condemned man.” In the case of death, one might distinguish between theoretical liability to death and the status of a condemned man. But in monetary liability, if he is liable, then he is liable; and if not, then not. There it is harder to draw such a distinction.

It therefore seems that this passage really does prove the conception according to which punishments are not a mechanical consequence of criminal behavior, but an obligation imposed by the court, and so long as the court has not imposed it, it does not exist.

Yet Tosafot there consistently does not seem to understand the passage in that way. On Babylonian Talmud, Makkot 5a, s.v. “be-idna,” Tosafot explains the very distinction in capital cases and fines as follows:

“Because at the time the witnesses testified he was not yet liable to death”—Rashi explained this as because if he had confessed he would have been exempt. This does not seem right, for if so every person liable to a court-imposed death could confess and exempt himself. Rather, it seems better to explain: “he was not yet liable to death” means that before the verdict is completed, perhaps witnesses will not come; and even if they come, perhaps their testimony will not stand. Moreover, it is forbidden to kill him before the verdict is completed. But once the verdict has been completed, he is certainly under liability, since the witnesses have already come and their testimony has been accepted, and one who kills him is exempt.

Tosafot grounds the distinction in technical considerations. That is, on the face of it, Tosafot assumes that punitive liability does indeed arise from the criminal act itself, and there is only a difference between before and after the verdict for purposes of the status of a condemned man. Before the verdict he is not yet a condemned man because perhaps witnesses will not come, or their testimony will not be accepted. Tosafot does add that it is forbidden to kill him before the verdict, and perhaps there it is touching a more substantive point, but the wording does not suggest that.

What is the law regarding ordinary monetary liability—compensation rather than fines, as discussed above? It would seem that in ordinary monetary law there is no distinction at all between before and after the verdict. Monetary liability exists by virtue of the situation itself, independent of any judicial ruling. If a person borrowed money, he owes the lender even without a verdict. The same is true if he damaged another’s property or robbed him. According to the view that emerges from the straightforward sense of the passage, we would therefore not expect the distinction we saw above in hazamah when monetary liability is involved.

Indeed, Tosafot on Babylonian Talmud, Makkot 5a, s.v. “ve-khen,” reflects this same position—even with respect to the monetary dimension:

“And the same is true with respect to a fine”—but certainly not with respect to ordinary money, for if they testified that on the first day of the week he stole, and two others came and said that he stole on the eve of the Sabbath and that on the first day of the week you were with us, they certainly do not pay ordinary money, because at the time they testified the thief was already under liability. Even though in capital matters you do not treat him as liable so long as the verdict has not been completed, in monetary matters he is close to certainly liable, because it is likely that witnesses will come and testify. But in capital testimony, where we require searching examination and interrogation, we certainly say that before the verdict is completed he is not yet liable.

Again Tosafot explains the distinction between monetary obligations and punishments—fines and capital penalties—by technical distinctions: perhaps witnesses will not come, perhaps their testimony will not survive examination, and so on. Tosafot does not see a substantive difference between them, because in its view punishments too exist even before the verdict, just as monetary obligations do.

And indeed, Rabbi Akiva Eger, in his glosses to the Talmud there, comments on Tosafot as follows:

I wonder why Tosafot needed this. The simple explanation is that in ordinary money, even if there are no witnesses at all, if the person himself says, “It was not so; rather, I borrowed on the eve of the Sabbath,” there is still no law of hazamah, because they testified regarding someone already under liability. Even if without witnesses the court could not have compelled him, he himself, who knows the truth, is under liability and it is incumbent upon him to pay. By contrast, in a fine, in the full truth of the matter, he is not incumbent to pay at all, for so long as the court has not obligated him, he is not liable at all. See Tosafot, Babylonian Talmud, Ketubot 33b, s.v. “lav.”

The same is true in capital law: by virtue of his knowing the truth—that he killed—he is not yet a person under sentence of death, and there is no obligation upon him at all to kill himself. Liability exists only by force of the court’s verdict. This distinction seems correct and clear to me, with God’s help.

Rabbi Akiva Eger is astonished by Tosafot’s explanation, because there is an obvious distinction between fines and death penalties, on the one hand, and ordinary monetary liability, on the other. With punishments in the ordinary sense—death, fines, lashes, and so forth—the court creates the liability, and without a judicial ruling there is no liability at all. A person is not commanded to kill himself, flog himself, or fine himself so long as the court has not ruled these punishments upon him. By contrast, in ordinary monetary law the court does not create the liability but clarifies it. One who stole or borrowed must return the money even without a verdict; the court only clarifies the dispute between the parties and then compels each to carry out obligations that existed already beforehand, even without the court.

As Rabbi Akiva Eger himself notes, his position is proved by Tosafot in Babylonian Talmud, Ketubot 33b, s.v. “lav because of,” who writes:

…Only with respect to money did Rava say in Babylonian Talmud, Bava Metzia 91a that the Torah prohibited the wages of a prostitute even if he had relations with his mother, because he remains obligated when fulfilling his obligation before Heaven. But a fine is not an obligation except by force of the court, as it says, “whom the judges declare guilty”—excluding one who declares himself guilty…

This explicitly states that the court’s ruling constitutes the liability of a fine, in contrast to ordinary monetary liability. That appears to stand in tension with Tosafot’s approach in the passage in Makkot.

Fines in Our Time

Another Talmudic discussion that bears on the relation between punishment and offense is the question of fines nowadays. As noted above, in our time, when there are no classically ordained courts, courts lack authority to adjudicate fines. The question then arises whether there remains a liability of fine on one who committed a fine-bearing offense nowadays, but merely no one to enforce it, or whether, where there is no classically ordained court, there is no liability of fine at all.

In Babylonian Talmud, Bava Kamma 15a, the Amoraim dispute whether the liability of half-damages in all cases of damage by goring is a fine or ordinary money. The halakha is that it is a fine. On 15b the Gemara says:

Now that you have said that half-damages are a fine, if a dog ate lambs or a cat ate chickens—this is unusual behavior, and we do not collect in Babylonia. This applies to large ones, but with small ones it is their ordinary behavior. And if the injured party seized payment, we do not take it from him. And if he says, “Set a date for me, so that I may go up to the Land of Israel,” we set a date for him. And if he does not go, we place him under ban.

The Gemara says that even though, as a matter of law, half-damages are a fine, in Babylonia, where there are no ordained judges, such cases are not adjudicated. Even so, if the victim seized the money first, we do not take it from him. At first glance, this proves the position of Tosafot in Makkot: the liability of the fine exists even without a court ruling, and the requirement that the court be classically ordained applies only to its power to enforce that preexisting obligation, not to constitute it.

In the parallel passage in Babylonian Talmud, Ketubot 41b, the same law appears, and there Tosafot, s.v. “ve-i tafas,” writes:

“And if he seized…” Rabbenu Tam explained that this applies only if he seized the actual damager himself, but not other property. For with respect to the damager himself, the Sages were lenient and allowed him to seize him, because otherwise he might seize everything the offender owns and nothing could be taken away from him, since we do not adjudicate fines. And if we remove the excess and leave him only the amount of the damage, then we ourselves are adjudicating fines—which is difficult.

From Tosafot’s wording it emerges that this is a special enactment, not a right grounded in the strict law, and certainly not one that applies to all fines. Other medieval authorities and later decisors write similarly. This Tosafot therefore holds that without a court ruling there is no liability of fine, and in this it joins Tosafot in Ketubot 33b and Rabbi Akiva Eger on the passage in Makkot, in contrast to the view implied by Tosafot in Makkot.

Interim Summary

It seems that the differing views are divided precisely on this point: is the obligation to punish an obligation resting on the court, such that without a judicial ruling, and without a classically ordained court, there is no obligation of punishment at all and the person himself is entirely exempt from punishment? Or is the obligation of punishment imposed on the offender himself, so that even if there are no classically ordained courts, or no court ruling, the liability to punishment still rests on the offender?

Returning to the Dispute Among the Enumerators of the Commandments

The dispute we have described up to this point leads quite clearly to the disagreements among the various positions we encountered in the previous chapter.

Nahmanides is the clearest representative of the view that all punishments are simply an obligation imposed upon the court to eliminate evil from society and from the world. Death penalties eliminate the evil itself, but the other, nonterminal punishments also eliminate evil by deterring both this offender and other potential offenders. It is therefore no surprise that he derives this commandment from the verse, “You shall eliminate the evil from your midst.”

Such a conception is based on a position that sees the imposition of punishments as an obligation resting on the court. It is obviously senseless to tell a person to punish himself in order to deter himself, or others, from transgression. The obligation rests on the court, and therefore so long as the court has not imposed it upon the offender, he is not liable at all. Put differently, this is a public obligation, not a personal obligation upon the offender. From here we arrive at Nahmanides’ view, according to which all punishments express one underlying principle: the obligation to eliminate evil. That is why he counts all punishments as only one commandment.

Behag, as we have it before us and according to Nahmanides’ proposal, holds that punishments are not counted in the enumeration of the commandments at all. How are we to understand this view? At first glance Maimonides seems right that the Torah does command punishment—so why should that commandment not be counted?

One possibility is to understand this through the problem of redundancy. Punishments are not counted because they are a detail within the offense for which they are imposed. For example, the punishment of stoning would be one of the details of the prohibition of labor on the Sabbath. According to this, the sin-offering brought for inadvertent violation should likewise be such a detail, and Nahmanides indeed argues that in Root 12. On this proposal, the fourteenth root belongs to the fifth category—classification and categorization, as explained above—not the fourth.

Yet this proposal is hard to accept as an explanation of Behag, because with regard to sacrifices we see that the details of bringing the sin-offering are counted even by Behag. According to this proposal they too should have been included as details within the offenses themselves.

It therefore seems that the only way to understand this method is to view punishment as something that is not a commandment at all. The punishment verse is a descriptive verse stating that whoever commits a certain offense will receive such-and-such a punishment. There is no command here, only the disclosure of a fact—exactly as we saw regarding punishments of Heaven, karet and death at the hands of Heaven. But then how are we to understand the obligation resting on the court to impose the punishment? Why is that not a commandment?

It would seem that in this context the court must be viewed as an agent of Heaven and not as our agent. Nahmanides sees the obligation to punish as an obligation resting on the community, with the court serving as its representative. Behag, however, apparently views the court as an agent of the Holy One, blessed be He, and not as the representative of society. Punishment is not a commandment imposed upon the community but an execution of the divine will with respect to the offender. The court serves here as God’s agent, but God is the punisher. In that respect all punishments resemble punishments of Heaven. This is analogous to the well-known dispute about the priests: are they agents of Heaven or our agents?²²

Nahmanides in fact writes this explicitly at the conclusion of his glosses on this root:

I will return to complete the intention of the author of Halakhot Gedolot regarding the punishments attached to prohibitions. In his view, punishments should not be counted at all, neither among the negative commandments nor among the positive commandments, for this total of 613 includes only the fundamental acts desired by Him, may He be blessed, and the acts forbidden by Him, may He be blessed. Rewards and punishments are not included among the acts desired, whether they are punishments from Him, may He be exalted, such as karet and death at the hands of Heaven, or whether He commanded us to requite the wicked person according to his wickedness with lashes and the four deaths, whether for atonement or for vengeance, or whether He commanded the sinner to bring atonement for himself by a sacrifice. None of this enters into that count. Therefore he counted no commandment at all regarding sacrifices, but only their details—libations and mixtures in the daily offering and meal-offering, slaughterings, pinchings, and so on—which the Rabbi accused him of counting.

It seems that here the direction we suggested is stated explicitly: court-imposed punishments are exactly like punishments of Heaven, and so are sacrificial obligations. These are the recompenses of one who transgresses, but they are not obligations imposed on any person. We are forced to conclude that even the court does not act here as an entity itself obligated in commandments, but as an instrument of providence.

If so, Behag and Nahmanides both agree that punishments are an obligation resting on the court. Their disagreement is over whether this is as agents of Heaven—that is Behag—or as our agents, that is, agents of society—that is Nahmanides. Both of these directions fit the position of Rabbi Akiva Eger and those who agree with him, as we saw above, according to whom punishment is a legal novelty created by the court’s sentence and does not exist beforehand.

According to this conception there is obviously no room to include punishments within the offenses for which they are imposed. Punishments are an obligation laid on the court, whereas those offenses address the ordinary citizen.

How can we understand the position of Saadia Gaon and Behag according to Perla’s explanation? As we recalled, they count each specific punishment as a separate commandment. It is clear that in their view we are not dealing with a general obligation to remove or eliminate evil, nor with representation of God—because if that were so there would be no room to count these at all. According to this method, punishment is simply a consequence produced mechanically by the transgressive act itself. Whoever commits the offense automatically becomes liable to punishment. This may be a detail of the offense itself—that whoever violates it becomes liable to punishment—but it is clear that there is a commandment here, and equally clear that each such punishment is an independent commandment. Hence it is not enough to count only the kinds of punishments.

Still, on this explanation it is not clear why such a punishment is not simply included as a detail within the offense for which it is imposed. Perhaps we should therefore entertain another possibility: even on this method, punishment is an obligation laid on the court. It is now clear why the punishment should not be seen as a detail within the offense, since the offense is addressed to the citizen whereas the obligation to punish is addressed to the court. Why is each individual punishment a distinct commandment? Perhaps because they do not view punishment as only a general obligation to eliminate evil, but rather as a collection of specific obligations. One sign of this is that different offenses receive different punishments, and the Torah dictates which punishment is to be given for which offense. Below we will see that the author of Avnei Nezer already wrote that if punishment were only a matter of eliminating evil, one uniform punishment would have sufficed. We will deal with this issue in the next chapter.

Maimonides’ Position

Maimonides, as noted, represents an intermediate position. He does count punishments, but he neither details all of them, as Saadia Gaon does, nor is he satisfied with one commandment, as Nahmanides is. On the one hand, it is quite clear that he does not see the court as an agent of Heaven, for otherwise there would be no room to count punishments as commandments. He explicitly distinguishes between punishments of Heaven and punishments of the court, and according to the conception of the court as agent of Heaven that distinction disappears.

We have already noted the resemblance between the disputes and positions in the present root and what we encounter in Root 12. We saw that Maimonides, at the beginning of his discussion here, included sacrifices in the list of punishments, and we noted that he seems to understand them as punishments. The degree of detail Maimonides adopts in Root 12 is also similar to what we find here—one commandment for each kind of offering. Behag does not count the commandment to bring sacrifices at all, only the details of the sacrificial service; Saadia Gaon counts each person liable to an offering separately; and Nahmanides sees the whole complex of bringing offerings as one inclusive commandment. This exactly parallels the picture we encountered here regarding punishments.

In our essay there we will suggest that, according to Maimonides, the commandments of sacrifices are clarificatory clauses rather than obligations to bring offerings; those obligations are included within the offenses for which the offerings are brought. But, as we noted above, with regard to punishments it seems quite clear from Maimonides’ language in several places that there is a commandment upon us—and upon the court as our representative—to punish.

According to our proposal, the decision to count only the types of punishments—something Nahmanides said is completely unreasonable—derives from Maimonides’ conception of punishment as a response to the common element present in all the offenses punished by that type, as required by the principle of uniformity of the halakhic cause. As we shall see below, this itself hints at Maimonides’ conception of punishment. In the next chapter we will examine the theories of punishment of Maimonides, Saadia Gaon, and the other medieval authorities from additional angles and sources.

C. The Theory of Punishment in Halakha and in General

Introduction

In this chapter we will discuss the aims of punishment. The framework of the discussion is based on the book of Haim Cohen, which deals with punishment in law in general,²³ and along the way we will note the possibility of applying the views discussed there to halakha.

The Justification of Punishment

Any legal system that imposes obligations on the members of a given community must also include a system of sanctions against offenders; otherwise the legal system loses its value and its meaning. We should therefore not be surprised that halakha, like every legal system, contains a detailed and elaborate system of punishment. In legal thought, a number of reasons and justifications are offered for judicial punishment.

Haim Cohen writes as follows:

Since every punishment is an evil, as has been said, it requires justification—or self-justification. Only God does not need to justify Himself: His wrath and burning anger suffice. Except in totalitarian states, it is not a sufficient justification that the ruler possesses the physical power to translate threats of punishment into reality. In a state governed by law, the justification must be objective and substantive; and it can be objective and substantive only when it derives not from the arbitrary will of legislators or judges, but from the nature and purpose of punishments themselves.

In legal theory in general, and in halakha in particular, there are various conceptions of punishment. Some maintain that punishment is meant to prevent harm to society; others think its purpose is to deter the offender, educate him, and so on. Of course, these approaches are not necessarily contradictory, and one person may adopt several of them together. A single legal-halakhic system may contain several different conceptions of punishment at once, depending on the nature of the offense and the offender, and depending on the aims of punishment in each case.

In light of Haim Cohen’s words above—bitter words, in keeping with his well-known approach—it might seem that a religious system is exempt from offering reasons for the punishments and sanctions it imposes, and can simply appeal to “the wrath of God.” But that is not the case in Jewish law. There too we find conceptions of punishment that appear in various forms, as well as rationalizations for the different punishments, at least for those administered by human beings, usually by a rabbinical court.²⁴

We will therefore briefly describe the various conceptions that arise in general legal theory and from them learn something about the Torah’s and halakha’s approach.

1. Punishment as Threat

Every penal law is first of all a threat to offenders: if they perform the act the law defines as forbidden, they will be punished. Some understand penal law as a threat with an educational aim. Reward—which ordinarily does not exist in a regular legal system—and punishment are then a kind of “carrot and stick” meant to train a person not to do certain acts and to do other acts.

Indeed, according to this educational interpretation, one may say that the point of fixing a punishment in law is to shape the character of the citizen, not merely to prevent him externally from performing certain acts. More than that, according to this approach the main force of penal law lies in its very existence in the lawbook. The actual execution of the punishment is only a means of achieving the educational aim at which the punishment is directed; if it appears in the code but is never enforced, it loses its educational effectiveness. Thus, according to this approach, the punishment is really the legal rule that sets the punishment, not the actual performance of it.

An example would be an exam in an educational system. Usually we do not think of the exam as a punishment, and in fact the holding of the exam has no independent aim in itself. The point of the exam lies in the announcement that there will be an exam, not in the exam’s actual administration. That announcement is meant to influence the student to study, and perhaps also to educate him that study is something important. The actual administration of the test is merely a practical necessity, intended to make students take the announcement seriously.

As is well known, halakha assumes that in order to punish the transgressor for any offense, the Torah must contain both punishment verses and warning verses.²⁵ The author of Sefer HaHinukh, commandment 69, discusses why warning verses are required and punishment verses alone do not suffice. He explains as follows:²⁶

The mention of punishment in a commandment without a warning would not suffice for us. This is why our Sages always say: “We have heard the punishment; from where do we know the warning?” The point is that if we received no divine prevention in the matter, but were told only that whoever does a certain act will be punished in such-and-such a way, this would imply that anyone who wishes may accept the punishment and need not care about the suffering, and still violate the commandment, without thereby acting against the will of the Blessed God and His command. The commandment would then become like a commercial exchange: whoever wants to do a certain act may pay such-and-such and do it, or accept such-and-such suffering and do it.

But that is not the intention of the commandments. Rather, for our good God has restrained us from certain things, and in some of them He informed us of the punishment that immediately befalls us, apart from the violation of His will, which is the most severe thing of all.

This is what our Sages mean when they say everywhere: “He does not punish unless He first warned.” That is, God does not inform us of the punishment that comes upon us for transgressing a commandment unless He first tells us that His will is that we not do the act for which the punishment comes.

From the words of Sefer HaHinukh we learn that every punishment has an educational aim. Punishment is never a merely formal act, meaning the fixing of a price for a certain act. Every punishment in halakha expresses the fact that the act violates the will of the Holy One, blessed be He. It is worth noting that, despite what was said above, the Torah does not take this for granted. If the Torah did regard it as obvious, it would have sufficed to write punishment verses, and we would have inferred on our own that there was also a violation of the divine will. The very fact that the Torah repeatedly writes both the punishment and an explicit warning shows that, although this is indeed the approach, it is not so simple and must be stated anew each time.

Moreover, if the purpose of punishment were deterrence alone, it would have been enough for the punishment to be written, and that would deter the person from doing the act. Why is it important to know in addition that there is a violation of the divine will? The necessary conclusion is that the punishments of the Torah do not settle for deterrence alone; the offender must also understand the divine will. In other words, punishments express an educational approach, not just a technical desire to deter certain acts. Still, as we will immediately see, punishment also contains a deterrent component.

What follows from this is that from the Torah’s perspective—and so too in any legal system that sees punishment as a threat with educational aims—it would not have been enough to write the punishment in the code. To achieve the educational aim, one must also write the warning, that is, the statement that the act is forbidden or improper.²⁶

2. Punishment as Deterrence

The common conception of punishment is that its main purpose is deterrence. This view is parallel in some measure to the conception of punishment as threat, except that here punishment is quite clearly seen as an attempt to prevent the forbidden act from being carried out, not only to educate the citizen to obey the law.

This conception appears already in Scripture: “And all Israel shall hear and fear, and shall no more do any such evil thing in your midst” (Deuteronomy 13:12; see also 19:20 and 21:21). Some explain in this way the public nature of punishment in halakha: the place of stoning was two stories high, and the hand of all the people was involved in putting him to death, and so forth.

As we saw above, deterrence certainly exists as one component in the halakhic theory of punishment, but it cannot explain the whole picture, and certainly not the detail and variety of the punishments and the elaborate procedures that accompany them.

3. Punishment as Vengeance

To understand punishment as vengeance is, at first glance, to give expression to an instinctual urge in human beings, one that people ought to overcome. Even so, some thinkers have seen vengeance as one of the explanations for judicial punishment. Society, or the victim, takes vengeance upon the offender in accordance with the law. There are thus two dimensions to vengeance in a legal system:

1. Legal authorization for the victim to avenge himself without thereby becoming liable to punishment.
2. A clear element of regulation and supervision over that instinct. Without legal authorization for vengeance and without clear limits, a person may reach excesses in venting his desire for revenge. One purpose of punishment is, among other things, to set the bounds of vengeance.²⁷

The most basic form of vengeance should be carried out only by the victim, and in this conception punishment is addressed not to the person punished but to the punisher. Another person cannot punish an offender as vengeance for what he did. Of course vengeance requires supervision, and so there is certainly room for the court to play a role, at least as an external regulator. More than that, one may see punishment by a court as an act of vengeance in which the court serves as the victim’s agent. All this applies to offenses between one person and another. In offenses between a person and God there is no human victim, and the court then fills both roles at once: regulator and punisher, as representative of the offended party.

In the Torah and halakha there are references to both directions. Some verses describe God as “a jealous and avenging God” or “God of vengeance.” But one can also detect a dimension of vengeance in the punishments of the Torah, most notably the verse “an eye for an eye” (Leviticus 24:19-20).²⁸ The Sages ruled that the punishment is monetary, and that is precisely the restraining aspect of vengeance mentioned above, but the very wording of the Torah clearly indicates that there is here a dimension of vengeance.²⁹

Another striking example is the law of the avenger of blood. Regarding one who kills unintentionally, the Torah rules that he must flee to a city of refuge, and so long as he has not fled there the avenger of blood—a relative of the slain person—may kill him without punishment. The Torah, however, limits vengeance and provides that once the killer has entered the city of refuge, the avenger of blood may no longer kill him.³⁰

At first glance, according to this conception the victim should be able to waive the punishment, since it is intended for him. In the conception common in Judaism and in other legal systems, including halakha—see Maimonides, Laws of Murder 1:4—the victim cannot waive the punishment, because the prosecutor is society and not the victim himself.³¹ Still, this conception may play some role in our theories of punishment, insofar as the punishment may be viewed as society’s vengeance as the party wronged.

Up to this point we have discussed vengeance as a dimension of punishment, one that relates chiefly to the victim or to society as a whole. There is, however, a similar dimension directed instead toward the offender himself, namely retribution.

4. Punishment as Retribution

Punishment is the fitting recompense for the offender’s act. Here the idea is not merely a regulated venting of the victim’s desire for vengeance, but a correction meant to answer the demands of justice.

It is very difficult to understand a conception that sees punishment as pure retribution, disconnected from vengeance in the broader senses just mentioned. This can be seen from Haim Cohen’s description of the theory of punishment as retribution:

The adherents of retributive theory say that there is no order, no peace, and no equilibrium in the world so long as the criminal has not received the punishment he deserves—as though the crime has disturbed the order, and the balance must be rebalanced by punishment.

Some of them saw in punishment not only the duty of the state—to restore order—but also the right of the criminal, for if he chose to commit the crime, he chose to be punished, and his choice is his right. That was Hegel’s view. I fear that no criminal would fail gladly to waive this right, but the emphasis is always on the state’s duty to punish…

No considerations are legitimate for softening punishments; the first criminologists even held that all scales of punishment must be fixed and graded in the law according to the possible degrees of every offense, and that no discretion whatsoever should be given to the judge, lest he be tempted by favoritism.

The retributive theory is, in effect, a theory of punishment for its own sake: punishment is a sacred end in itself, and there is no point in seeking any other ends. Not only that: one may not dilute or mix this sacred end with any other end.

There is a metaphysical conception here, as though punishment were an end in itself. Some disorder has been introduced into the world by the crime, and punishment restores order. It is clear that Hegel’s point, mentioned ironically in the passage above, is similar. Because the punishment follows from the offense itself and not from additional considerations, the offender has, de facto, chosen to undergo the punishment, even though he would gladly do without it.

The great difficulty with such a legal approach is that on a rational view it is not clear where that disorder is located, or in what sense it exists “in the world” rather than only in the psyche of the victim, which is what the theory of vengeance addresses. It rests on metaphysical assumptions about spiritual dimensions of the world that are out of balance—assumptions difficult to understand within a modern secular theory of civil law.

At this point, however, a central difference between a religious theory of punishment and a general legal theory may emerge. In a religious world there is certainly room for the conception that an offense creates disorder in the world in spiritual terms, and consequently that punishment repairs and rebalances that disorder.

The Torah and halakha definitely contain a retributive conception. For example, Scripture says: “Blood pollutes the land, and the land cannot be atoned for the blood shed in it except by the blood of him who shed it” (Numbers 35:33). One sees clearly here a conception of spiritual destruction and corruption that happens to “the land” as a result of murder. The atonement that repairs that destruction and restores things to their proper state is punishment. It is worth noting that a few verses later Scripture adds: “You shall take no ransom for the life of a murderer who is wicked and deserves death; he shall surely be put to death” (Numbers 35:31). In other words, once the death penalty for murder is understood as retribution, it indeed follows that the judge may not mitigate the law in such a case. More generally, one may say that in halakha judges have no discretion regarding the severity of punishment. They may decide only guilt or innocence, while the punishment is fixed by halakha and not left to their discretion. This itself points to a retributive dimension in the halakhic conception of punishment.

Another clear example is the law of conspiring witnesses. The Torah rules concerning them: “You shall do to him as he schemed to do to his brother” (Deuteronomy 19:19). Here punishment is exactly retributive: as they wanted to do, so is done to them.³² The whole principle of measure for measure in punishment, which appears in many other contexts as well, points to a retributive approach, and perhaps also accords with the educational approach, as we will see below in section 6.

To conclude, we note that despite the clear retributive element in Torah and halakha, and despite the fact that the severity of punishment in halakha is not left to judicial discretion, one can still discern additional approaches to the aims of punishment. It is therefore incorrect to say that a theory of retribution excludes all other conceptions.

5. Punishment as Prevention

Another approach sees punishment as a tool for preventing the offender from returning to his sin. We should note that the prevention here is for the sake of the offender himself, not society; prevention for the benefit of society will be discussed below in section 7. Here punishments such as imprisonment, and certainly the death penalty, are especially clear examples. Imprisonment for a limited term does not prevent wrongdoing after release. At first glance, real prevention would be achieved only by life imprisonment. One might, however, theoretically understand prison as educational, in which case the assumption is that after imprisonment the offender will not return to his wrongdoing. If so, then there is indeed effective prevention here. Yet in practice the offender usually does return to wrongdoing, and often deteriorates precisely during imprisonment. That is, neither prevention nor educational reform is usually achieved by incarceration. At most there is deterrence here, and perhaps threat.

It may be helpful to suggest here an important distinction that can clarify the idea of limited imprisonment even for proponents of prevention theory. Any punishment inflicted for the sake of society needs its own justification. If the only benefit of punishing were the benefit to society, it would be impossible to justify harming one individual in order to benefit others in society—certainly not severe harm, and certainly not where the benefit is unclear. In other words, justifying punishment as prevention of crime and protection of society is not enough. One must add that the accused himself truly deserves punishment. Only then may we harm him, because it is due to him, in order to benefit society.³³

If so, it is clear that imprisonment cannot be assessed solely by asking whether it will prevent future crime and benefit society. We must also ask whether the offender deserves such a punishment. When society sentences an offender to imprisonment for a limited term, it is balancing two considerations: the offender deserves a limited term of imprisonment, but there is no justification for depriving him permanently of his liberty. A consideration of prevention alone therefore cannot justify life imprisonment. We protect society only so long as we are entitled to harm the offender. Beyond that we may not harm him, not even for society’s benefit.³⁴

It is important to note that in a religious context these are undoubtedly two different approaches. In a religious system there are many sins that harm no human being at all—offenses between a person and God rather than between one person and another. Punishment for such sins cannot stem from protecting society, but at most from preventing their bad influence upon society, lest others be drawn into the same sin under the offender’s influence. In such a case there is clearly room for a conception of punishment as prevention with respect to the offender himself. In an ordinary civil context, it seems that there is little room for such a conception, at least not as an exclusive account.

Within the Torah context, punishment as prevention can perhaps be seen only with respect to death penalties. A clear case is the law of the stubborn and rebellious son, who is stoned. The Sages ask in Sifrei on Deuteronomy:

Rabbi Yose said: Because this boy ate a tartemar of meat and drank half a log of wine, is he stoned? Rather, the Torah reached the end of what would become of him and said: let him die innocent, and not die guilty; the death of the wicked is good for them and good for the world, while bad for the righteous, bad for them and bad for the world.

Rashi explains:

The stubborn and rebellious son is killed on account of his end. The Torah penetrated to the end of his mind: he will ultimately consume his father’s wealth, seek what he has become accustomed to, not find it, and stand at the crossroads and rob people. The Torah therefore said: let him die innocent, and not die guilty.

The stubborn and rebellious son, then, is executed “on account of his end” in order to achieve crime prevention. It is not clear whether the concern here is for him or for society. Rabbi Yose’s wording suggests concern for him, in which case this is a theory of prevention. Rashi’s wording suggests concern for others, so that he will not rob them, in which case this is a theory of social defense.³⁵

6. Punishment as Education and Rehabilitation

This approach sees punishment as benefiting the offender, not only by preventing future wrongdoing but also by reeducating him. This must be distinguished from punishment as threat, which also educates. Threat educates by the mere existence of the punishment in the lawbook, whereas educational punishment educates through the actual carrying out of the punishment. For example, educational programs in prison would count as educational punishment in this sense.

In the Jewish context, the punishment of servitude can perhaps be seen this way. A Jew who stole and has nothing with which to repay his theft is sold by the court as a Hebrew slave. With the money paid for him, the value of the theft is returned to its owner. The sale causes him to live in a normative household and to become accustomed to a meaningful, law-abiding life. This is why the master is commanded to treat his slave well, sometimes in an extreme way: if he has only one pillow, he must give it to the slave. The aim is to accustom the slave to see himself and others as people of value; in that sense it is an educational punishment.

7. Punishment as Protection of Society

Here too punishment is preventive, but only in order to protect society and not in order to keep the offender himself from sinning. That is, the benefit of the punishment is to society and not to the offender. One consequence of this approach is the demand to confine a mentally ill person who may endanger society, even if we have no complaint against him at all—in other words, even if his acts contain no element of guilt. Punishment for the sake of social protection does not need guilt in order to be carried out.

Some thinkers argued that society has no right at all to punish the offender unless some social benefit results from it. Society has a right to defend itself, but not to punish. That is, theirs is an exclusive conception of punishment as social defense.³⁶

Here again, there seems to be a difference between a civil and a religious approach. There is no doubt that the Holy One, blessed be He, as Creator of the world, has the right to punish the offender and not only to protect society. In a world of religious law, this sort of argument is therefore less likely to arise. Even so, social protection can certainly be one of the considerations of the court—and of the Holy One, blessed be He—when deciding to punish, even within halakha.

For example, halakha recognizes the rule that the court may strike and punish even outside the formal law. That is, the court may punish even when it lacks formal authority to do so, or with a punishment not found in the basic law. It seems that the main reason this power was given to the court is the need to protect society where the basic law does not.

At the end of tractate Makkot there is a statement by Rabbi Akiva and Rabbi Tarfon that had they been on the Sanhedrin, no person would ever have been executed, because they would have made conviction impossible by demanding witness testimony about minute details of the act. Rabban Gamliel replies that they would thereby multiply murderers in Israel. That is, punishment would fail to achieve the goal of protecting society, which is a different angle on deterrence.

Another halakhic example of this approach was mentioned above: the stubborn and rebellious son is punished “on account of his end,” that is, for the sake of social protection, at least according to Rashi.

8. Punishment as Restoration of the Previous State

There is another type of account that sees punishment as intended to restore what was disturbed—to repair the wrong. For example, someone who caused damage must pay, and a robber must return the stolen property to its owner.

This kind of explanation does not usually appear in general legal theory. As we already noted, the reason is that this category does not, at first glance, belong to criminal law at all, since it involves returning money to its owner or compensating him, not punishing the offender.

Yet, as we have already observed, within halakha one can find several places where acts of this kind are treated as punishment. To understand this we must describe two more conceptions of punishment.

9. Punishment as Elimination of Evil and Metaphysical Repair

Another phenomenon that can be understood in these terms is punishment of the type referred to by the verse “You shall eliminate the evil from your midst.” There is here a dimension of retribution, but even more a dimension of metaphysical repair of the world. This can be seen especially in places where this principle is used to establish an obligation to punish even animals that have caused harm. In such cases there is no guilt at all, and therefore no room for the notion of retribution described above. We are forced instead to explain the punishment in terms of a theory that sees it as metaphysical repair.³⁷

Such a conception is of course especially characteristic of religious-legal systems: punishment is intended to repair the world, or spiritual worlds. The fundamental difference from the retributive approach is that there is not necessarily any element of guilt here. Collective punishment, about which more below, or the punishment of entities incapable of legal guilt—such as animals—are two clear examples.

According to this conception it is admittedly hard to understand the difference between the various forms of execution. At first glance, one would think we could kill the offender in whatever way we find fit. The different methods suggest that punishment has additional dimensions as well.

In any event, from this angle it is easier to understand the surprising point we saw above: that compensating the injured party or returning money to its owner may in halakha be treated as a kind of punishment. If the whole point of punishment is to restore the world to order and repair the disruptions created by the offense, then it is not surprising that restoring the monetary situation to its prior state would be seen within that same framework as part of the law of punishment.

10. Punishment as Atonement

Punishment—especially in religious contexts—also has a dimension of atonement. A person who is punished achieves atonement through the punishment. Atonement does not necessarily concern the repair of the sin itself, and therefore it is not a legal aspect of punishment so much as an accompanying religious aspect. It is a sort of “erasure” of the sin from the offender’s account. Some will understand this too as metaphysical repair of the consequences of the act, but here the emphasis is on the repair of the sinner’s soul rather than on the world.

At the beginning of Laws of Repentance, Maimonides writes that all those liable to death or to lashes receive no atonement until they repent and confess. In chapter 13 of Laws of Sanhedrin he presents the obligation of confession for one found liable to death—”for it is the way of all those executed to confess.” And in chapter 17, halakha 7 there: “Anyone who sinned and received lashes returns to his prior fitness.”

Returning to the Positions of the Medieval Authorities in Our Root

In the previous chapters we saw various positions among the medieval authorities regarding the appearance of punishments in the enumeration of the commandments. According to Nahmanides, punishment is a commandment imposed upon the court, and we saw that in his view the court acts as the agent of society. It seems that punishment, in his approach, is about deterrence and social order, or about retribution, vengeance, or threat. By contrast, according to Saadia Gaon, punishment seems to be the cleansing of the offense itself, and therefore every offense has its own separate commandment of punishment.

According to Nahmanides’ explanation of Behag, we saw two possibilities:

1. Punishments are recompense from the Holy One, blessed be He, and the court is His agent. This seems to reflect a conception of threat, retribution, and atonement.
2. Punishments are simply a detail within the offense for which they are imposed. This seems closer to a conception of repairing the wrong caused by the offense.

As for Maimonides, we hesitated above whether he sees punishment as a commandment imposed on the court or as a consequence of the criminal act itself—that is, recompense. In any case, his view seems to be that punishment is not for atonement but rather for retribution or deterrence and social repair. As we shall later see, Guide of the Perplexed 3:41 states explicitly that punishment is for deterrence. We also saw here that Saadia Gaon as well follows Maimonides on this point. It seems that in his view punishment repairs the offense, but the repair of the offense is achieved by means of retribution measured by the degree of suffering, and therefore the severity of punishment is proportional to the severity of the offense.

It is easy to see that it is difficult to construct a complete and fully consistent picture of the conception of punishment held by each of the medieval authorities. Our purpose here is mainly to point toward the principal directions, not to make overly precise claims about every single position.

D. The Severity of Punishment and Its Relation to the Severity of the Offense

Introduction

Many people take it as self-evident that the severity of a punishment is derived from, and therefore indicates, the severity of the offense.³⁸³⁹ In this chapter we will see that the picture is not so simple. We will present a dispute among medieval authorities about the relation between the severity of an offense and the severity of the punishment attached to it, and we will try to see in that dispute an expression of different theories of punishment in halakha, in light of what we saw in the previous chapter.

The Relation Between Severity of Punishment and Severity of Offense: The Dispute Between Saadia Gaon and Rabbi Yehudah the Hasid

In Saadia Gaon’s Sefer HaMitzvot punishment number 40 reads:

In accordance with the honor of the Sabbath are its desecrators, and those who violate the cherished betrothed maiden.

Perla explains this as follows:

It seems that his intention is to say that in proportion to the importance of the commandment of Sabbath rest, which is among the greatest commandments in the Torah, so too in that same proportion is the punishment of its desecrators—the most severe punishment among all the punishments of the Torah, for we rule that stoning is more severe than all the other court-imposed deaths. So too, with a betrothed maiden, in proportion to the severity of the offense is the severity of the punishment. So too wrote our master the Gaon in his Book of Beliefs and Opinions, discourse 5: “And in what way shall we know that some are less severe? Because their punishment in this world was not made more severe… But the deliberate sinner violates the more severe ones, namely those that carry karet … and the four court-imposed deaths. By this we know that they are severe,” and so on.

Perla reads Saadia Gaon as holding that the severity of the punishment teaches us the severity of the offense. The assumption is that there is proportionality between the two.

By contrast, the author of Sefer Hasidim holds otherwise:

This is not in accordance with the view of our master Rabbi Yehudah the Hasid, who wrote in Sefer Hasidim 157: “Know that you cannot infer from the severity of the punishment the value of the commandments, their punishment, or their reward. For Sabbath desecration is punished by stoning, while some sexual prohibitions are punished by strangulation or karet. Even so, one may desecrate the Sabbath to save a life, but may not do so in the case of sexual prohibitions or murder, though these are not punished by stoning. Therefore do not say that one commandment is more precious or beloved than another.” So too he writes later, in section 646, that one must not assess the value of commandments by the punishment for transgressing them. He proves this from the fact that false swearing and erasing the divine name are only prohibitions, whereas adultery with a married woman is punishable by strangulation. Even so, when a woman had relations many times in adultery, her thigh did not collapse and her belly did not swell; but when the priest adjured her and she drank the bitter waters, her thigh collapsed and her belly swelled.

Thus Rabbi Yehudah the Hasid’s view is that there is no necessary connection between the severity of the offense and the severity of the punishment, in contrast to Saadia Gaon’s view.

Mishnah Avot: Between the Reward of a Commandment and the Loss of a Sin

The Mishnah in Avot 2:1 states:

Be as careful with a minor commandment as with a major one, for you do not know the reward of the commandments. And calculate the loss of a commandment against its reward, and the reward of a sin against its loss.

At first glance, it seems to follow that we cannot know the reward of commandments, and presumably not the punishment of offenses either. Why not? Apparently because there is no direct connection between the severity of the punishment and the severity of the offense, as Rabbi Yehudah the Hasid held.

But Maimonides, in his Commentary on the Mishnah there, writes:

He then said that one ought to be careful with a commandment that one thinks light, such as festival rejoicing and the learning of the holy tongue, and with a commandment whose severity is well known, such as circumcision, fringes, and the slaughter of the Passover offering. The reason for this is that you do not know their reward. The explanation is as follows: the Torah consists of positive commandments and negative commandments. As for the negative commandments, Scripture explained the punishment for each of them, except for a few, and for some it obligated death, for some karet, for some death at the hands of Heaven, and for some lashes. From the punishments we know, with respect to all the negative commandments, which prohibitions are severe and which are less so. There are eight levels: the first, and most severe, are those punishable by stoning; below that, those punishable by burning; third, those punishable by execution by sword; fourth, those punishable by strangulation; fifth, those punishable by karet; sixth, those punishable by death at the hands of Heaven; seventh, those punishable by lashes; eighth, prohibitions for which lashes are not administered. From these levels we know the greatness and smallness of the sin. But with positive commandments the reward of each is not made clear to us by God, so that we could know which is more important and which less. Rather, He commanded us to do this act and that act, but we do not know which one has the greater reward with God, and therefore one should strive in all of them. Because of this principle they said, “One who is engaged in one commandment is exempt from another,” without distinguishing between the commandment in which he is engaged and the other one that passes by him. And for the same reason they also said, “One does not pass over commandments,” meaning that if a commandment presents itself to you, do not pass it by and leave it in order to perform another commandment.

Maimonides draws from this Mishnah the exact opposite conclusion: the severity of offenses is known, because it can be learned from the punishments attached to them, and he even details the hierarchy in eight levels. But with positive commandments there is no court-imposed punishment or reward, and the reward in Heaven is not accessible to us. Therefore we have no way of knowing the relative importance of positive commandments.

Rabbi Ovadiah of Bertinoro writes similarly there:

“For you do not know the reward of the commandments”—the Torah did not specify the reward for fulfilling positive commandments, nor the punishment for neglecting them. But the punishments of the negative commandments are explicit: stoning, burning, execution by sword, and strangulation, karet, death at the hands of Heaven, and lashes. A light punishment for a lighter offense, and a severe punishment for a severe one.

Thus Maimonides and Bertinoro hold the exact opposite of what we first inferred from the Mishnah. In their view there is a direct relation between the severity of the offense and the severity of the punishment. Such a relation exists for positive commandments too, but we have no way to know the hierarchy there. According to Perla, this is also Saadia Gaon’s view.

Interim Summary and a Question

We thus learn that the relation between severity of punishment and severity of offense is itself disputed among our medieval authorities. According to Saadia Gaon and Maimonides, as well as Rashbatz, the severity of the punishment corresponds to the severity of the offense; according to Rabbi Yehudah the Hasid, no such necessary connection exists.

Perla then continues at length there with arguments and proofs on behalf of Saadia Gaon and those who agree with him, concluding as follows:

The words of Rabbi Yehudah the Hasid are astonishing to me. The words of our master the Gaon and of Maimonides are plain and clear: the Holy One, blessed be He, does not do justice without justice, and the ways of the Lord are upright.

Perla’s outcry demands clarification. How can Rabbi Yehudah the Hasid say that the severity of punishment is unrelated to the severity of the offense? What then determines the severity of the punishment? Yet the proofs he adduces do indeed seem to support him.

A Preliminary Distinction

When we examine these two positions, we see that the assumption that the severity of the punishment must be proportional to the severity of the offense presupposes that punishment is meant as threat, or as vengeance and retribution.⁴⁰ But if the purpose of punishment were something else—even deterrence—it may not be necessary at all for the severity of punishment to be set in proportion to the severity of the offense. It is therefore plausible that this dispute too is rooted in different theories of punishment.

For example, if Rabbi Yehudah the Hasid saw punishment as deterrence, there would certainly be room to conclude that there is no necessary connection between the severity of the offense and the severity of the punishment. If certain offenses require especially strong deterrence because desire powerfully pushes us toward them, or because there is some other reason likely to increase their frequency, we may impose a harsher punishment for them even if the offense itself is not so severe.

Perla’s wording against Rabbi Yehudah the Hasid is that the Holy One, blessed be He, “does not do justice without justice.” He assumes that punishment is a judgment upon the sinner, and therefore must stand in direct relation to the severity of the sin. It would not be plausible that God would impose on a person a punishment not corresponding to the gravity of his guilt. But that assumption itself is what is under dispute. Perla assumes that punishment is a kind of vengeance or retribution. Rabbi Yehudah the Hasid would respond that punishment is meant to deter, or to serve some other purpose, and therefore its severity does not always stand in direct relation to the severity of the offense.

We should note that Perla’s claim can also be understood, at least partly, within some of the other approaches, on the basis of an argument we made above. As we noted, even if there is an external justification for punishing the offender—for example, deterrence or protection of society—there must still be an internal justification: does he deserve it? If so, then even if deterrence requires a harsher punishment for a lighter offense, as Rabbi Yehudah the Hasid holds, Perla’s claim could still stand, for in the end there is no sufficient justification if the offender himself does not deserve so severe a punishment.

In the next subsection we will see that even the conception of punishment as atonement or as repair does not necessarily lead to proportionality between punishment and offense.

What Determines the Severity of Punishment?

When we say that one punishment is more severe than another, at first glance we mean that the punished person suffers more, or perhaps is more humiliated—as the Sages expound from “You shall love your fellow as yourself”: choose for him a humane death. Yet when one tries to apply this principle to concrete punishments, such as stoning and burning, it is hard to see why stoning hurts more than burning, and even in terms of humiliation the relation is hardly obvious. More than that: the main punishment is presumably the very act of execution. Even if there is some difference in the offender’s suffering in the moments before death, what significance can that brief difference have next to the fact that he is being put to death—a fact common to all four court-imposed deaths?

Can the differing severity of offenses really be reduced to the fact that one mode of death is slightly more painful, or that the corpse is slightly more humiliated? That seems highly problematic.

One possible alternative is to say that the determination that stoning is the most severe death is not about pain or humiliation at all, but about the spiritual meaning of the punishment. Metaphorically speaking, a punishment is more severe if it strikes a higher level of the person’s spiritual stature.

If punishment in the Torah really does have a spiritual dimension parallel to the physical punishment, and that is what determines its severity, then one may ask whether the difference between spiritual punishments is a difference of intensity or a difference of kind. It is quite plausible that the spiritual punishment repairs the flaw in the soul—or in the world—caused by the offense, functioning as a cleansing of the sin; and different kinds of flaws require different kinds of cleansing. If that is so, then a severe offense certainly requires a punishment suited to its cleansing. Such a punishment could involve less physical suffering than the punishment that cleanses another offense that is in itself less severe. This line of thought makes Rabbi Yehudah the Hasid’s dissociation of the severity of punishment from the severity of the offense more intelligible. Even if he sees punishment as atonement, punishment must cleanse the offense and not merely cause suffering to the offender. Cleansing depends not only on the degree of suffering but on its type, and therefore the connection between type of punishment and type of offense is a connection of kind, not necessarily of intensity. The type of flaw determines the type of cleansing required.

Of course one might still propose a correspondence between the spiritual meaning of the punishment and the intensity of the suffering it causes, so that the spiritual level of the flaw to be repaired is “translated” into this-worldly terms as a greater intensity of suffering. If we accept that claim, Saadia Gaon’s view becomes almost self-evident. But such a link is certainly not necessary, and therefore Rabbi Yehudah the Hasid’s position remains plausible.

We may add that the same difficulty exists with respect to offenses themselves, not only punishments. What does it mean to say that one offense is more severe than another? It seems obvious that here too the classification is spiritual only. Unlike the case of punishment, there is usually no clear physical dimension involved.⁴¹ Therefore an offense is plausibly classified as more severe if it damages a higher spiritual plane, or if the one who committed it is affected by a deeper spiritual flaw. At first glance, this too is a difference of kind and not of intensity. For that reason as well, the claim that there must be a correspondence between the intensity of suffering in the punishment and the type of flaw constituted by the offense may be challenged. If the severity of the offense is a matter of kind, then the severity of the punishment likewise need not necessarily be expressed in the level of suffering or humiliation.

In sum: both punishment and offense have a spiritual side and a physical-earthly side. The offense is an act forbidden by the Torah, but it is also an act whose consequences damage the soul or the world. Punishment too is an act decreed by the Torah upon the one who did the forbidden act, and it usually also causes him suffering, but it is also an act whose spiritual aspect cleanses the damage caused by the offense. It is obvious that the relation between the spiritual dimension of punishment and the spiritual dimension of offense is one-to-one, since one cleanses the other. But that relation is a relation of kind, not necessarily of intensity. All other relations—such as the relation between intensity of suffering and the spiritual height of the flaw or its repair—are not necessary. More than that, it is not clear that there even exists a quantitative scale of severity by which the different punishments and offenses can be measured. Perhaps punishments and offenses differ in kind and do not share a common measure at all.

If so, Maimonides and those who agree with him understand punishment as threat or retribution and therefore measure it in terms of physical severity. Rabbi Yehudah the Hasid, by contrast, sees punishment as cleansing spiritual blemishes, and therefore disconnects the severity of punishment from the severity of the offense. In that light Perla’s difficulty no longer seems so great.⁴² As we shall now see, this point is apparently disputed by the medieval authorities Tosafot and Ritva in their explanations of Babylonian Talmud, Ketubot 33b.

The Passage in Ketubot

Babylonian Talmud, Ketubot 33b states:

Rabbi Ashi objected: How do we know that if one was warned regarding the more severe matter, that warning counts for the less severe one as well? Perhaps it does not. And even if you say that it does, how do we know that death is more severe? Perhaps lashes are more severe, for Rav said: Had they flogged Hananiah, Mishael, and Azariah, they would have worshiped the image. Rabbi Sama son of Rav Assi said to Rabbi Ashi: Do you not distinguish between a beating that has a fixed limit and a beating that has no fixed limit?

The discussion there concerns whether someone who was warned about a more severe offense and then committed a lighter offense is considered to have been warned about the lighter offense as well. Immediately afterward the Gemara also raises the question of how one measures the severity of punishments themselves. Thus even if warning for the more severe counts as warning for the less severe, how do we know which is more severe and which is less? So in this passage the question of which punishment is more severe is itself under discussion, and already here it is clear that the answer is not self-evident.

The Gemara’s reason for suggesting that lashes are more severe is that they are more painful. Thus it seems here that the criterion for severity of punishment is in fact the pain involved.

According to the Gemara’s conclusion, however, lashes are not necessarily more severe than death, because lashes with a fixed number—thirty-nine—are not as painful as unlimited flogging. It therefore appears that the passage concludes with the conception according to which the severity of punishment is determined by the amount of suffering involved. The order of severity would then be, from greater to lesser: a beating with no fixed limit, death, and a beating with a fixed limit.

Yet the context of the discussion indicates that the severity of punishments is not necessarily being measured on some objective scale. The question of severity here serves to determine whether, when the offender accepted the lighter punishment—saying, “Even on that condition I do it”—this includes accepting the more severe punishment as well. If that is indeed the issue, then the severity must be measured as human beings perceive it, that is, by the pain involved. But this does not prove that pain is the objective halakhic scale for measuring the severity of punishments. According to Rabbi Yehudah the Hasid, that general question concerns kind rather than intensity of pain, and so it is not the question under discussion here.

Ritva there sensed this distinction and explains the Gemara’s argument as follows:

“How do we know that warning for the more severe counts as warning for the less severe? Perhaps it does not.” That is, it is a scriptural decree that the warning must be for the very punishment he is to receive. And if you say that it does count, “how do we know death is more severe?” Meaning: although according to the Torah’s own scale it is obvious that death is more severe, the Gemara is asking how we know that a warning of death is more severe in the eyes of human beings. Perhaps warning of lashes is more severe for people. They are not afraid of death, for they may say, “Let my soul die with the Philistines,”⁴³ but lashes they do not want, since for them lashes are worse than death.

Ritva’s conception is that the opinion that warning for the more severe does not count as warning for the less severe rests on a scriptural decree, not on a difference between human valuation and the Torah’s valuation of the severity of the punishment. Rather, the Gemara’s question—according to the view that warning for the more severe does count—is only whether, in human eyes, death is more severe than lashes.

So, according to Ritva, the discussion in this passage is not about the general question we are addressing. It concerns a problem in human psychology—what people fear more. But in the Torah’s own scale Ritva is certain that death is more severe. This raises an obvious question: why is there a difference between the halakhic measure of a punishment’s severity and the measure of its severity in human eyes? For human beings, what matters is suffering and humiliation. If so, halakha apparently uses some other measure. Ritva thus leads us toward Rabbi Yehudah the Hasid’s approach, which measures the severity of punishments on a spiritual scale rather than by the intensity of pain and humiliation.

By contrast, Tosafot on Ketubot 33a writes:

“How do we know that warning for the more severe counts as warning for the less severe? Perhaps it does not.” One cannot say that the reason is that he accepted warning only for killing, because he was willing to be killed in order to kill his enemy—saying, “Let me die with the Philistines”—but he was not willing to strike his fellow on condition that he be flogged. For on the Mishnah at the end of the chapter Ha-Nisrafin, which teaches that those liable to different death penalties who became intermingled are judged by the lighter penalty, the Gemara says: “This proves that warning for the more severe counts as warning for the less severe.” There it is obvious that once he accepted warning for stoning, all the more so, had they warned him of strangulation for that same act, he would have accepted it. Even so, the Gemara there entertained the possibility that warning for the more severe does not count as warning for the less severe. Therefore it must be that it is a scriptural decree requiring him to submit specifically to that death, whether lighter or more severe.

Tosafot links the discussion of warning to the discussion of severity of punishment. Its conclusion is that, specifically regarding warning for the more severe matter, the issue is not human suffering. But the severity of punishment itself is certainly determined by the measure of human suffering. Tosafot proves this from the passage in the chapter Ha-Nisrafin, which linked the person’s acceptance of the punishment to its level of severity.

According to this, it is clear that when the Gemara later asks “How do we know death is more severe and not lashes?” it means to challenge the ordinary and accepted rule that death is more severe—unlike Ritva, who detached that question from the general issue. Accordingly, when the Gemara concludes that severity is determined by the degree of pain, it says this not only about the special case of warning but also about the general halakhic measure of severity.⁴⁴

In summary, according to Ritva the criterion for severity of punishment is not the degree to which people fear it—that is, not the intensity of suffering it causes—whereas according to Tosafot, the degree of fear is the measure of severity.⁴⁵ This corresponds exactly to the dispute between Saadia Gaon and Rabbi Yehudah the Hasid that we saw above.⁴⁶

Maimonides in the Guide of the Perplexed

We again find that Maimonides, in Guide of the Perplexed 3:41, addresses explicitly the question of the severity of punishments, and there develops a more complex model:

Preliminary remark: Know that the greatness of the punishment, the intensity of its pain, its smallness, and the ease with which it may be borne are determined by four factors. The first is the gravity of the offense: acts that bring about great harm receive great punishment, and acts whose harm is slight receive slight punishment. The second is frequency: what occurs more often should be prevented by a stronger punishment, whereas for what occurs rarely, a lesser punishment, together with its infrequency, suffices to prevent it. The third is the degree of temptation involved: when a matter greatly entices a person—whether because desire strongly draws him to it, or because of habitual practice, or because abstaining from it involves great pain—it is known that he will not refrain from it except out of fear of a great and severe matter. The fourth is the ease with which the act can be done in secret and concealment, so that no one else notices it; preventing this is impossible except through fear of a strong and severe punishment.

From this it emerges that the severity of punishment is not directly derived from the severity of the offense, but is the product of the offense’s gravity together with additional parameters. This seems to stand in tension with Maimonides’ own words in his Commentary on the Mishnah cited above, because if we follow what he says here, we would seem to have no way of knowing the gravity of prohibitions from the punishments attached to them. A harsher punishment would not necessarily indicate a graver offense.⁴⁷ Perhaps he assumes that we can mentally neutralize the other parameters and thus isolate the gravity of the offense, but the matter requires further thought.

In any event, this clearly yields a conception of punishment as deterrence, and all these considerations show that for Maimonides the purpose of punishment is deterrence. This is exactly what we noted above: a deterrent conception of punishment leads to the conclusion that the severity of punishment need not be proportional to the severity of the offense.

How Can Punishment Be Counted as a Prohibition? Returning to the Dispute of the Medieval Authorities in This Root

We saw above that the medieval authorities disagree about whether punishments are positive commandments or prohibitions. According to Maimonides and Nahmanides, punishment is a positive commandment; according to Saadia Gaon and Behag, at least according to Perla’s understanding and Maimonides’ reading of Behag, they are prohibitions.

As we explained in our essay on Root 6, there are different approaches to the distinction between prohibitions and positive commandments. According to Maimonides—and apparently also Nahmanides and Behag—a positive commandment points to a desirable state, whereas a prohibition points to an undesirable state. We explained there that both can appear either as an obligation to act or as an obligation to refrain. According to Saadia Gaon, and also the author of Sefer Mitzvot Katan, positive and negative commandments have the same content, and therefore, unlike Maimonides, they do not count a positive and a negative commandment that express the same matter.

If so, Maimonides and Nahmanides, who count punishment in this root as a positive commandment, hold that punishment commands a desirable state or desirable action, not the prevention of an undesirable state or action. Nahmanides states explicitly that the desired action is the elimination of evil. In Maimonides the matter is less unequivocal, and one may connect punishment to several of the conceptions surveyed above, though we saw that Guide of the Perplexed points clearly to deterrence.

Saadia Gaon treats punishments as prohibitions. This is further evidence for what we argued there: he too does not accept the performance criterion—whether the command is to act or to refrain—as the criterion distinguishing prohibitions from positive commandments. Rather, he too seems to locate the distinction in whether the command points to a desirable state or to an undesirable one. If so, on his view punishment points to an undesirable state. What state is that?

One possibility is to explain that the commandments of punishment are intended to prevent a situation in which there is criminality without punishment. Such a state might suggest the absence of reward and punishment for commandments and sins, or perhaps even the absence of providence. We already saw above that at least in Behag’s view the court that imposes punishment may be understood as God’s agent. The Torah therefore seeks to prevent that state through the commandments of punishment.

Alternatively, and perhaps more simply, we may say that punishment is meant to prevent the offense itself, not merely the state of criminality without punishment. In other words, punishment is not a commandment telling the court to do something, but a commandment telling it to prevent something. Punishment is merely a tool for preventing criminality. That is why, for him, every punishment attached to every offense is something different. Still, he treats it as a separate commandment and does not absorb the punishment into the offense, as Behag does. It therefore seems that the obligation to punish rests on the court, but its essence lies in preventing criminality rather than in the act of punishment itself—much like the prohibition “Do not place blood in your house,” which in practice requires us actively to build a parapet. This leads to a very particular conception of punishment in Saadia Gaon’s thought, and it certainly accords with his view that the severity of the offense must stand in proportion to the severity of the punishment.⁴⁸

Maimonides, however, who sees punishment as a positive commandment, apparently understands it as an obligation on the court to punish. That commandment points to a positive state, unlike Saadia Gaon. This is so even though, in the dispute with Rabbi Yehudah the Hasid, Maimonides sides with Saadia Gaon. The reason is that, for him, the obligation to act in order to eliminate criminality is itself the obligation resting on the court. For Maimonides this is a commandment of action—acting to eradicate criminality—and not a commandment of result, whereas for Saadia Gaon it is apparently a commandment of result—the eradication of criminality. According to Saadia Gaon, the point of the commandment of punishment is that there should not be criminality; according to Maimonides, the point is that we should engage in eradicating criminality. For that reason Maimonides does not treat each individual punishment as a separate commandment, but only each type of punishment. In his view these are different modes of the court’s activity, and one should not distinguish between one instance of stoning and another. Only according to Saadia Gaon, for whom punishment is meant to prevent the offense and the result is what matters, is there reason to treat the punishment for each separate offense as its own commandment.

E. The Theory of Punishment: Additional Angles and Implications

Introduction

In this chapter we will examine several additional angles touching the Torah’s conception of punishment. We will test the thesis that disconnects the severity of punishment from the severity of the offense in light of discussions in capital law. We will also present sources that suggest a mechanistic conception of punishment, one that views punishment as an automatic and mechanical consequence of the offense.

The Connection Between Severity of Punishment and Severity of Offense in Capital Cases

The Mishnah in Babylonian Talmud, Sanhedrin 49a lists the four kinds of court-imposed death:

Four death penalties were handed over to the court: stoning, burning, execution by sword, and strangulation. Rabbi Shimon says: burning, stoning, strangulation, and execution by sword. This is the law of those punished by stoning.

The Gemara there infers from the wording of the Mishnah that there is an ordered relation among the various deaths:

Rava said in the name of Rav Sehora in the name of Rav Huna: Wherever the Sages taught in numerical order, there is no earlier and later, except for the seven cleansing agents, as we learned: Seven cleansing agents remove a stain—tasteless saliva, bean-water, urine, natron, lye, kimolia, and ashleg. And the latter clause teaches: if one applied them out of order, or all seven at once, he has done nothing. Rav Pappa the Elder said in the name of Rav: The same applies to the four death penalties. Since Rabbi Shimon disputes the order, it follows that the order is exact. The other opinion holds that the principle was not said in a case of dispute.

In the end, according to all opinions there is an order and hierarchy among the death penalties in the Mishnah, and the main proof is simply the fact that the tannaim dispute the order. What is the axis along which the various deaths are arranged? Presumably it is severity. Indeed, the Gemara there understands the dispute between the anonymous first opinion and Rabbi Shimon as concerning whether burning is more severe than stoning or vice versa.

In the course of the discussion the Gemara tries to bring proofs for the different sides. The opening of the discussion is:

“Stoning, burning…” Stoning is more severe than burning, for it is assigned to the blasphemer and the idolater. What is their severity? They stretch out their hand against the root principle. On the contrary, burning is more severe, for it is assigned to the daughter of a priest who committed adultery. And what is her severity? She profanes her father.

We see that both sides justify their claim about the severity of the punishment by pointing to the severity of the offense for which it is imposed. The working assumption of the passage is therefore that the severity of the offense determines the severity of the punishment. How could Rabbi Yehudah the Hasid cope with such a simple and frontal proof?

The straightforward answer is that the Gemara is not dealing with severity of punishment in terms of physical pain and suffering, but with its spiritual meaning. In other words, the Gemara is asking how great or deep a spiritual defect these punishments repair. For that purpose it is indeed relevant to cite the offenses for which the punishment is given and the spiritual damage they create, as an indication of the punishment’s “severity” in that sense.

Note that the arguments offered in the Gemara do not concern the ordinary social severity of the offense. For example, the adultery of the daughter of a priest is serious first and foremost because she committed adultery while married. The fact that she is a priest’s daughter who desecrates the priesthood is only an added factor, yet the Gemara singles out precisely that aspect. Perhaps this is because the discussion concerns the depth of the spiritual damage caused by the offense, and not its social-moral aspects. So too with blasphemy and idolatry: the Gemara explains their severity by the fact that they “stretch their hand against the root principle,” meaning that they damage the highest spiritual plane.

Even so, the matter still requires much thought.

Punishment by Inference

As a matter of halakha, it is accepted that punishments are not derived by inference. The meaning of this rule is that one may not learn by an a fortiori argument from the punishment of one offense to another.⁴⁹ That is, if offense B is more severe than offense A, the fact that offense A carries punishment X does not allow us to infer that offense B also should receive punishment X.

The commentators offer several explanations of this principle. Some explain it by saying that there may be a refutation of the a fortiori argument, and therefore one cannot rely on such an argument as a basis for punishment. This is difficult for several reasons. There are many arguments far less certain than an a fortiori argument that we nonetheless rely on in many areas. Are verbal analogies or analogical constructions really more certain?[^\51] Moreover, with death penalties one can perhaps understand the extra caution. But why is monetary punishment so sensitive that an a fortiori argument is not enough to impose it? There are even opinions that in monetary law we follow the majority. If there is an a fortiori argument in favor of the claimant, is that not analogous to a majority in his favor, on whose basis money is extracted? Further, when the inference functions merely as a disclosure of meaning—an indication, linguistic or otherwise, from which the rule emerges—then one does derive law by inference. If there is concern for refutation, then even such “disclosure” should not suffice as a basis for punishment.

Another explanation offered by the commentators is that precisely the greater severity of offense B may be the reason punishment X does not suffice to atone for it. It is enough to atone for offense A, but perhaps not for B.⁵⁰ This too is problematic, because why not at least give him the lighter punishment? That is certainly closer than giving no punishment at all, which is what we actually do in cases learned only by an a fortiori argument. And especially since the rule is that if one cannot execute the offender by the death specified for him, one executes him by any death one can. Suppose offense A is punishable by strangulation, and offense B has no punishment specified. Why not at least impose strangulation? Even if a more severe punishment is required, it can only be one of the other court-imposed deaths, and when that cannot be done we still may kill him by strangulation. And if the a fortiori argument was in fact correct, then there is no problem at all.

A third explanation is also mentioned: the rule is itself a scriptural decree derived from the verse “and to his sister.” But that is only a source for the rule, not a true explanatory alternative. Even if the rule has a scriptural source, its logic still requires explanation. Why in fact may we not punish on the basis of an a fortiori argument? The problem therefore remains.

Let us now reconsider the first two explanations. The first claims that we are not certain we really grasp the relation between the severities of the offenses. The second claims that the very severity of the second offense may mean that the lighter punishment does not suffice. The common denominator of both is that they clearly assume that the severity of the offense determines the severity of the punishment. But the simple sense of the rule that punishments are not derived by inference points in exactly the opposite direction: the severity of the punishment is not necessarily related to the severity of the offense, and so one cannot infer from the lighter offense that at least the same punishment should be applied to the more severe offense. On this conception, the a fortiori argument is simply irrelevant to penal reasoning.

Rabbi Yehudah the Hasid’s conception thus gives a simple and plausible meaning to the rule that punishments are not derived by inference. In fact, absent the other attempted explanations, this is the obvious meaning of the rule: that there is no necessary connection between the severity of the offense and the severity of the punishment. That is what the “scriptural decree” derived from “and to his sister” means. It is quite possible that this is itself the source of Rabbi Yehudah the Hasid’s view. Saadia Gaon, Maimonides, and those who agree with them would presumably explain the rule by one of the other explanations.

And in light of Maimonides’ words in the Guide of the Perplexed cited above, a parallel explanation arises even within Maimonides’ own method. Even if the severity of punishment is related to the severity of the offense, there are additional considerations involved in setting the punishment—such as the danger of frequent commission of that offense, the ability to do it secretly, the degree of desire involved, and so on. If so, it is clear that even according to Maimonides one cannot derive the punishment for offense B from offense A by an a fortiori argument, because even if offense B is more severe, it may involve less temptation, and so forth.⁵¹

The Principle That the Greater Liability Subsumes the Lesser

We have already mentioned above the halakhic principle that the greater liability subsumes the lesser: when a person incurs two punishments, only the heavier one is imposed, not both. At first glance, if punishment were meant for atonement and not for deterrence or punishment in some other sense, this principle would make no sense at all. The atonement for each offense is different and therefore requires a different punishment. How then would the offender achieve atonement for the one offense by means of the punishment for the other? This would seem to imply that all punishments differ only along an axis of severity—pain and suffering—and that the difference between them is only the degree of suffering they cause. Hence the one can absorb the other, which is less severe.

And indeed, Tosafot on Babylonian Talmud, Ketubot 30b writes:

It may be answered that inadvertent eating of terumah is different, because its payment is atonement and not money. As we say in tractate Terumot, if the priest wishes to waive it he cannot waive it, for it is not money but atonement. Even if he ate his own terumah, so that he stole nothing, he pays atonement to himself and the added fifth to a priest. Therefore the principle that the greater liability subsumes the lesser does not apply to exempt him from atonement. But the principal and added fifth of sacred property are not atonement; rather, he pays money for what he stole from the sanctuary…

Tosafot writes that one who inadvertently ate terumah must pay because the payment functions as atonement, not as an ordinary monetary liability for the terumah, and therefore the priest cannot waive it. From this Tosafot concludes that a person cannot be exempted from payment for terumah by a more severe punishment through the principle that the greater liability subsumes the lesser. The principle applies to monetary liabilities, but not to liabilities of atonement.

What, then, of other punishments—lashes or death? We know that the principle is certainly applied to them. It follows that these punishments are not simply atonement.⁵²

Still, according to Rabbi Yehudah the Hasid it is truly difficult to understand how one kind of cleansing can exempt a person from another kind of cleansing. The principle seems to pose a strong challenge to his view, and the matter remains difficult.⁵³

In truth the rule is difficult in any case, for halakha applies it even when one of the offenses was committed unintentionally. That is, one who unintentionally commits an offense theoretically punishable by death, and together with it deliberately commits another offense punishable by lashes, is exempt from the lashes even though he is not actually executed. None of the explanations account well for this. It therefore seems, at first glance, that the exemption is not from the punishment but as though the lesser offense itself had not been committed. There is nothing to atone for, because the lighter offense is as though it never occurred. Consequently the defect created by it does not exist either, and there is nothing for which to impose punishment. This, to be sure, could also explain Rabbi Yehudah the Hasid’s view, but all this remains quite puzzling.

Execution by a Different Form of Death

We mentioned above two halakhot that express an obligation to kill the offender by any available form of death, even if it is not the specific one prescribed for him. The first case is where people liable to different court-imposed deaths became intermingled and we no longer know who is liable to which death. The halakhic solution is to execute them all by the lighter death. The second case is where someone fled, or for some other reason it is impossible to execute him by the prescribed method; then one executes him by any kind of death possible. In both cases a person is executed by a form of death for which he is not actually liable.

Now if the difference between types of death is not a difference of intensity but a difference of kind, these two halakhot are not clear. What is accomplished by killing a person in a way that does not atone for the particular defect he needs to repair? For most medieval authorities, who hold that the differences are differences of intensity and that the aim is deterrence or prevention of future crimes—that is, protection of society—the matter is understandable. But on Rabbi Yehudah the Hasid’s view it is difficult.

It would seem that at least with death penalties there are two aspects:

1. The very act of execution, as removal and elimination of evil.
2. The type of execution, as cleansing and repairing specific defects.

It would then follow that the first aspect is common to all. The second is responsible for deterrence, cleansing, and repair. As to cleansing and vengeance there may be a hierarchy of severity according to the amount of suffering or humiliation, but beyond that there is also a repair of the defect, and that is more a matter of kind. From that perspective there is no room for a single hierarchy among the punishments.

When those liable to different deaths became intermingled, they are all executed by the lighter death because at least we can thereby achieve the dimensions of deterrence and removal of evil, even if the specific cleansing may not be achieved. The same applies when it is impossible to execute a person by the death written for him and we kill him by another method: this too is done to achieve at least that partial benefit.

A similar picture emerges from Avnei Nezer, who writes concerning punishment on the Sabbath:⁵⁶

The matter may be clarified as follows. In those liable to death there are two aspects. One is to eliminate evil from the collective, as it is written: “You shall eliminate the evil from your midst.” This applies even when one does not carry out the prescribed death, as we rule in the chapter Shiluach HaKen, Babylonian Talmud, Hullin 140a, that even if one slaughtered the bird that had killed, the evil has nevertheless been eliminated. The second is to punish the sinner.

Thus, at least with death penalties, we receive a more complex picture: they have several aims, and the hierarchy applies only to certain aspects of the picture. The two aspects we identified in capital punishment can also be seen from the claim made above: death is so drastic and significant a punishment that the precise manner in which the offender is killed can hardly be of major importance. The difference between the various death penalties cannot primarily serve a deterrent purpose; it can only reflect different kinds of cleansing. Only the very removal of the person from the world can be interpreted as deterrence.

This suggests the possibility that the various deaths are different kinds of cleansing, even if lashes can be understood as deterrence. That distinction will now be developed further.

A Distinction Between the Death Penalty and Lashes

In the previous subsection we noted the difficulty that the halakha regarding death penalties creates for Rabbi Yehudah the Hasid’s conception. Yet regarding lashes, the passage in Ketubot may indeed fit his approach. This raises the possibility that death penalties should be understood differently from lashes. We already noted that not all punishments necessarily fit one and the same conceptual pattern. Some may be intended for one purpose, others for another.

And indeed, as we have already noted, lashes appear in the Torah differently from death penalties. Death penalties are stated explicitly in Scripture, and if there is no verse commanding execution, we do not impose death. With lashes the situation is the opposite: every prohibition carries lashes, unless there is some specific reason to exempt the offender.

As noted, the Torah mentions the punishment of lashes explicitly in only one place, and yet there is a general assumption that one who violates any prohibition receives lashes. More than that: because of this difference in how they appear in the Torah, even Saadia Gaon—who counts all punishments as separate commandments—includes all lashes within one commandment. This implies that even if death penalties are understood by him as differing in kind, all lashes have a single meaning.

The very nature of death penalties also suggests something different about them. Death is not merely the causing of suffering to the offender, but more than that: his removal from the world. As we saw, all death penalties contain such an aspect, even if not only that, which is why, in the absence of any choice, one may execute even by a different method.⁵⁴ For example, death is certainly not a punishment with an educational aim, because after it the one being “educated” no longer exists.

Our conclusion in the previous subsection was that death penalties are meant for cleansing and therefore differ from one another in kind. For that reason Saadia Gaon counts them one by one. Lashes, by contrast, are intended for deterrence, and therefore Saadia Gaon counts them all together.

We should note that lashes appear in Behag in section 9, where the prohibition against administering more lashes than the assessed number is negative commandment 250.⁵⁵ Perla notes that some textual versions of Behag include the punishment of lashes and some do not. Here too there is room to ask whether this reflects different conceptions about the relation between death penalties and lashes.

Collective Punishment

Collective punishment exists in the Torah.⁵⁶ The Holy One visits the sin of fathers upon children and demands mutual responsibility from the collective for the individual. More than that, even in court-imposed punishments we see, in the case of the apostate city, that the court punishes even those who did not sin, at least according to some views.

In a civil legal framework, it is very difficult to justify collective punishment of those who did not sin, apart from extreme cases of necessary self-defense in the face of certain danger; and there that is not punishment but defense or prevention of harm. But according to Rabbi Yehudah the Hasid’s approach, even collective punishment—where people are punished who themselves did not sin—becomes more intelligible. If punishment is the cleansing of the blemish created by the offense, there are situations in which that blemish also clings to the surrounding environment and must be struck as well. A conception of metaphysical repair, unlike one of retribution, therefore allows us to understand this type of punishment too.⁵⁷

The Mechanistic Conception

Babylonian Talmud, Sanhedrin 89b discusses one who suppresses his prophecy—that is, a prophet who does not say what God placed in his mouth:

A tanna taught before Rav Hisda: One who suppresses his prophecy is flogged. He said to him: If someone eats dates out of a sieve, is he flogged? Who would warn him? Abaye said: His fellow prophets. How do they know? Abaye said: As it is written, “For the Lord God does nothing unless He reveals His secret to His servants the prophets.” But perhaps He later retracted? If He retracted, He would have informed all the prophets. But Jonah—He retracted and did not inform him! In Jonah’s case, from the outset He said only, “Nineveh shall be overturned”; Jonah did not know whether for good or for ill.

It emerges from the Gemara that there is a prohibition against a prophet who suppresses his prophecy, and he receives lashes for it. The ones who warn him are the other prophets. The example the Gemara gives of a prophet who suppressed his prophecy is Jonah, who did not go to Nineveh to prophesy against it.

This prohibition is not counted independently in the enumerations of Maimonides or Sefer HaHinukh, though Sefer HaHinukh mentions it in passing at the end of commandment 516 as one of the cases punished by death at the hands of Heaven. Minhat Hinukh argues that although we have learned a punishment for one who neglects this positive commandment, nowhere do we find an actual command.⁵⁸ According to the rule that punishment requires a prior warning, the question arises: how can lashes be administered here?[^\62]

Minhat Hinukh suggests an explanation in light of the words of Sefer HaHinukh itself in commandment 69, concerning cursing judges. Sefer HaHinukh explains there the principle that a warning is required and punishment alone is not enough by saying that without a warning we might think that punishment is no more than a mechanical reaction to the act of the offense. In other words, without an explicit warning we might think that if a person does a forbidden act he is not violating the divine will at all; rather, there is simply a kind of law of nature that whoever does such a thing receives a punishment. From this a person might conclude that he can commit the act and accept the punishment upon himself, and there would be nothing wrong with that, since he has not acted against the divine will. This possibility is excluded where there is an explicit warning, because that teaches us that the act is evil in the eyes of God. But in a case like suppressing one’s prophecy, where there is no explicit warning, such a conception still has room. By this Minhat Hinukh explains Jonah’s behavior in fleeing from God and refusing to prophesy. He suggests that Jonah accepted the punishment upon himself and suppressed his prophecy. There was not, in that act, a violation of God’s will—something difficult to imagine of a prophet like Jonah.

In the end, however, Minhat Hinukh rejects this possibility and says that it cannot be that there is any act whose punishment is merely mechanical. Punishment is always a sanction expressing divine disapproval of the act.

The conception that punishment is a kind of natural mechanical reaction to the offense—like someone who puts his hand in fire, where the burning is not punishment but a natural physical reaction—is even more radical than the view we saw in Rabbi Yehudah the Hasid. According to this conception, not only is there no relation between the severity of the punishment and the severity of the offense, but there may even be punishment without any offense in the normative sense at all. The act itself is of course required, but not an “offense” in the evaluative sense; such an act is an offense whose severity is zero. A conception like this entirely uproots the notion of punishment from its normal meaning and from the negative connotation it ordinarily carries.

There is a short essay by Rabbi Dov Lando arguing that such a conception is also found in Rabbi Gershom’s words on Babylonian Talmud, Temurah 3b, concerning lashes for oaths. The Gemara there says:

…This explicit utterance means lashes. Perhaps say even a true oath? It is explicitly written, “The oath of the Lord shall be between them.” Perhaps that is only to appease his fellow, but he should still receive lashes? You cannot say so, because it is written, “And by His name shall you swear”…

The Gemara discusses the situation in which one is flogged for an oath. It raises the possibility that lashes are imposed for a true oath sworn by a bailee to the depositor. From Rashi there it seems that the Gemara means he would be flogged for the true oath because he brought himself to the point of swearing—so there is still an element of blame. Rabbi Gershom there, however, explains differently:

And one might say: better that he appease his fellow with money than with an oath; but if the owner did not want money and wanted precisely an oath, then he should swear to him in order to appease him, but still receive lashes for the true oath, and so on.

It emerges from his words that the Gemara really entertained the possibility that the bailee would swear exactly as the Torah required him to do, in order to satisfy the owner, and still receive lashes. Here too, then, punishment is conceived as a mechanical consequence of the act, unrelated to guilt. Here not only does he swear willingly; the Torah actually obligates him to swear, and yet he would still be flogged. To be sure, in this passage too the idea arises only as the Gemara’s initial thought and is rejected in the conclusion.

A conception similar to this appears in various works with respect to punishments at the hands of Heaven, as opposed to court-imposed punishments. For example, in Sihot Musar by Rabbi Hayyim Shmuelevitz he cites the story of Rav Rehumi in Babylonian Talmud, Ketubot 62b, who delayed returning home on the eve of Yom Kippur and caused anguish to his wife. As punishment, Rav Rehumi was killed by the collapse of the roof. Rabbi Hayyim asks: the pain caused to his wife by his death was incomparably greater than the pain caused by his lateness. What sense is there, then, in such a punishment? He explains there that punishments for offenses between one person and another are like putting one’s hand into fire, which burns irrespective of the person’s blame. Someone who performs an act that harms another is punished mechanically, with no additional exercise of judgment. Here too we encounter a mechanistic conception of punishment.

Such a conception is implausible on its face. It is nearly a denial of the very idea of divine providence, one of whose basic features is that no event affecting a person—and certainly no punishment—occurs without a higher decision arrived at through judgment.⁵⁹

Another example of an anti-mechanistic view of heavenly punishments may be found in Babylonian Talmud, Gittin 35a, and in several parallel stories in rabbinic literature.⁶⁰ The Gemara tells there of a widow with whom someone had deposited a dinar. She put it in a jar of flour, later baked the flour, and by mistake gave the loaf, with the dinar in it, to a poor person. When the owner came to ask for his dinar, the widow swore: “May the poison of death benefit one of that woman’s sons”—that is, one of her own sons—”if I derived any benefit from this dinar.” Not many days passed before one of her sons died. The Gemara learns from this how severe the punishment is for one who swears falsely: if this happened to someone who swore truly, how much more so to one who swears falsely. Rashba there cites Behag, who asks: what oath is there here at all? He answers that this follows Rabbi Abbahu in Babylonian Talmud, Shevuot 36a, who holds that an adjuration counts as an oath. Several later authorities objected that on this basis there is no proof here that the punishment for a false oath is severe, since what caused the son’s death was the curse she uttered, not punishment for the oath itself. The answer seems to be that even an adjuration does not work mechanically; its realization follows an act of judgment, and that allows it to take effect only if the person against whom it is directed is in fact fit to receive it.⁶¹

Similar approaches appear in discussions of the “dulling of the heart” caused by forbidden acts that were committed permissibly. For example, Rema writes:

Even so, an infant should not nurse from a gentile woman if a Jewish wet nurse is available, because the milk of a gentile dulls the heart and produces a bad nature. Likewise, even a Jewish wet nurse should not eat forbidden foods, nor should the infant himself, for all this harms him in old age.

The dulling produced by gentile milk is said to stem from the nurse’s eating forbidden foods, even though for her those foods are entirely permitted. More than that, even if the Jewish wet nurse is ill and must eat forbidden foods for medical reasons, her baby should be nursed by someone else, although she is eating them with full permission—and indeed under the commandment “and he shall live by them.” Finally, the child himself: although the halakha is that we are not commanded to separate a child who on his own eats carrion, it is nevertheless recommended here to separate him because of the future damage that will result.

This conception is sharply opposed by the author of Ben Ish Hai, who writes:

The body of an impure creature, or the flesh of carrion and torn meat, does not itself defile the human soul. Even though Scripture says regarding them, “and you shall be defiled by them,” the meaning is not that their substance itself defiles the human soul. Rather, every forbidden and impure thing is accompanied by a spiritual force of impurity, and when a person eats it, that force of impurity rests upon the person, enters him, and defiles him. But if he is under complete compulsion and utterly unaware of the prohibition and the impurity, and there is no causal blame that can be ascribed to him, then if he ate that forbidden and impure thing, that force of impurity does not rest upon him; it has no permission to enter him or even touch him.

In that context he tells of an event that occurred in Baghdad while his father was the city’s rabbi. An emissary from Ashkenaz arrived and, upon seeing the tefillin worn by the city’s Jews, realized that they were not square as halakha requires. After investigation with the city rabbi, it became clear that a mistake had indeed been made for several generations, and the Jews of Baghdad had for many generations not been donning valid tefillin. He asks there whether they should be considered “a skull that never wore tefillin,” and concludes that since they were under compulsion they do not bear that status. This is an even greater novelty: not only were they not punished, and not only had they committed no offense, but in some sense they are regarded as having fulfilled the commandment—compulsion is like performance. Here too the conception is that punishment and legal status are not determined mechanically and arbitrarily; they always depend on human culpability, not merely on the objective state of affairs. Punishments and commandments are not laws of nature.

An earlier source that deals with this problem is Ran in his Derashot HaRan. There Ran explains that the commandments are not an expression of an arbitrary divine will; there is benefit in their observance and harm in offenses, even if we do not know the reason. On that basis Ran asks:

According to this view, if the sages agree concerning a certain impure thing that it is pure—by mistake—what then? Will not that thing harm us and produce what it naturally produces, even though the sages agreed that it is pure? If physicians agreed about a certain drug that it is neutral, while in fact it were, for example, hot in the fourth degree, there is no doubt that the drug would act on the body according to its own nature and not according to what the physicians agreed. So too, a thing the Torah forbade because it harms the soul—how can the nature of that thing change because the sages agreed that it is permitted? This seems impossible, except by way of miracle.⁶²

Ran asks: how can the Torah command us to obey the decision of the sages even where we know they are mistaken? The offense should produce spiritual harm in our souls. In raising the question, Ran also compares such harm to physical causation.⁶³

Ran answers there that the Torah established a mode of action that is optimal in the great majority of cases. Usually the sages’ ruling will be closer to the truth than that of the ordinary individual, and therefore this is the optimal path for minimizing harm. True, there can be cases in which the sages err, and then we all pay the price in spiritual damage, just as damage can result from a physician’s mistaken decision. Later in the same discussion Ran wants to say more than that: that the benefit generated by obeying the sages will counterbalance the damage that might otherwise have been caused by their mistake.

Ran’s view thus suggests that spiritual damage, the dulling of the heart, is indeed mechanistic and depends on the act itself rather than on whether the act was a violation of the divine will, or on the degree of the offender’s culpability—something like what we saw in the initial suggestion in the passage in Temurah.

According to Ran’s first answer, this conception clearly remains intact. The continuation of his discussion can be interpreted in two ways: either the harm is indeed mechanistic, but the countervailing benefit produced by obedience to the sages—which is also a positive commandment—balances it; or because obedience is itself a commandment, there is no harm from the prohibited act at all. On this second reading, harm results from violating the divine will and not from the act itself, contrary to the assumption underlying Ran’s question.

In all these sources, then, a mechanistic conception of punishment is under discussion. With respect to court-imposed punishments it is rejected, but with respect to punishments at the hands of Heaven there may perhaps be some room for it. A mechanistic conception is a more radical form of Rabbi Yehudah the Hasid’s approach, because it is not recompense aimed at any purpose but a mechanical consequence of the transgressive act. As we noted, here there is certainly no proportionality between the severity of the offense and the severity of the punishment, because the offense need not be severe at all: it may be done under compulsion and without intention, and in some cases perhaps even under a halakhic obligation.

Footnotes

One might answer that there is indeed a common cause in all the festivals generating the obligation of rest, but it appears in different ways and from different sources because of the different contents of the festivals, and therefore different commandments are counted. This is not the place to develop that point.

Beyond that, it is hard to see how punishments can be understood as prohibitions rather than positive commandments. It is not clear what exactly that prohibition forbids, or upon whom it is imposed.

Put differently: the content of the agency distinguishes the cases. In punishments, the agency is like a rod in God’s hand to bring about what He wants brought about in the world. Therefore God is the one considered to act. In the Temple service, by contrast, the priests require divine authorization, but they do our work, not God’s.

Some treat the death of Nadav and Avihu in the Torah portion Shemini as such an exceptional case. Yet even there Scripture indicates that it was punishment for a defined sin—”strange fire” or “their drawing near before the Lord”—though the biblical account does not make the precise nature of the sin entirely clear. In that case, the biblical commentators and the Sages discuss the possibility that their death stemmed from the divine will itself, without any clear rationale, because of the phrase “Through those who are near Me I will be sanctified.” Even there, however, opinions differ greatly, and this is not the place to elaborate. In any event, the dominant view seems to be that there must always be a justified reason, even for punishment imposed from above. This is grounded in divine justice. The notion that God imposes punishments without reason resembles the notion that He imposes obligations on us without reason—that commandments have no reasons. On that latter idea we have more than once cited Maimonides’ words in Guide of the Perplexed 3:31, where he calls those who hold it “the weak-minded.”

If a person damaged another’s property, he shall be damaged in his property, and the owner of the property may waive and lessen the matter. But the murderer, because of the gravity of his sin, is granted no leniency at all, nor may a ransom be taken from him. “The land shall not be atoned for the blood that is shed in it except by the blood of him who shed it.” Therefore, even if the murdered person lived for an hour or for days, while speaking and with clear mind, and said, “Leave my killer alone; I pardon and forgive him,” we do not heed him. Rather, life for life, necessarily.

Maimonides there states that although one may waive a monetary claim for compensation, in murder even the murdered person himself cannot waive the punishment of the murderer.

Another possible account appears in Babylonian Talmud, Sanhedrin 55b, regarding the obligation to kill an animal with which a human committed bestiality. Two possibilities are raised there: because of a stumbling block, and because of disgrace. “Disgrace” means concern for the human being, so that people not say, “This is the animal with which that person sinned,” which is a purpose for the human being’s sake and thus a kind of social protection. But the other opinion, that the animal is punished simply because through it a stumbling block occurred, clearly points toward a conception of punishment as metaphysical repair. Here, of course, one cannot explain the matter in terms of retribution, because an animal bears no moral or religious guilt that would require retribution.

One may also recall Nahmanides’ comment on the Torah portion of the Flood, where he explains that the animals were punished for violence and sexual corruption. See further M. Avraham, “On Liability to Pay for Damage Caused by One’s Property,” Mishpetei Yisrael 1, Petah Tikva, 2003.

From Perla’s own wording it appears that he understands punishment as retribution rather than as threat, because he relates the severity of punishment to what the offender deserves, not to the degree of education required.

We should recall, however, that according to Maimonides the rule “one does not derive punishments by inference” is not limited to the a fortiori argument but applies to all hermeneutical rules, and its basis is entirely different from that given by the other medieval authorities. According to Maimonides, a law derived by an a fortiori argument—or by any other interpretive rule—is not written explicitly in the Torah. Therefore the offender was never properly warned about it, and so he cannot be punished. This takes the rule out of the conceptual arena in which we placed it here.