Why is there no effective criminal law in Halacha?

Hello.
I read it quickly, and the things are interesting. I have a few notes in the summary of the story.
1. I am not a professor.
2. Even in civil law, there are things that are really ineffective (like the Gramma exemption).
3. In the dispute in the Sopka Damchut between the R.G. R.A. and the R.T., it seems to me that the difference is in the role that projects on the approach. As is known, the R.A. was not in the Sanhedrin (Ben Grimm. That is why he says “If only we were in the Sanhedrin”), and therefore he is a theorist. The R.G. is the president of the Sanhedrin, with the role responsible for establishing order. Therefore, the theorists explain what is truly true (theoretical truth) and the R.G. makes practical (effective) considerations.
4. It was not explained why the Torah leaves effective criminal law to the sages. Even if we accept the division that retribution by definition is not effective, why does the Torah focus specifically on retribution and not on the rest.
5. I really wondered in the past whether the Supreme Court can also exempt someone from punishment that is not lawful, as well as punish someone that is not lawful. That is, the Supreme Court can prevent punishment when it is not effective (such as adapting the punishment to the needs). From the explanation, it seems that it is, but I don’t remember anyone talking about the Supreme Court exempting someone who is liable to death or flogging.
6. It seems to me that the authority of the sages to punish unjustly is based on the law of the king. This began when the king was responsible for the political arrangement and therefore was not subject to the laws of the Torah. And the Torah took for itself the true, pure law (and not necessarily effective). After the monarchy was abolished, this authority passed to the Rabbis (therefore Hillel, Raghav, Rabbi and their lineage were from the seed of the House of David). In other words, the fundamental division is between the Torah and the king and not between the Torah and the rabbis. The transfer of authority to the sages is a historical accident (a result of the loss of the monarchy). One expression of this is that the conduct of the communities and the methods of decision-making entered the Shulchan Aruch. Their place is not there, but nowadays the Shulchan Aruch is also responsible for the king’s part.
7. The fact is that civil law is subject to regulations, changes, conditions, and state custom and royal law more than criminal law. If it is effective, that is, suitable for practical application in any situation, then it should actually be less subject to changes and more rigid. Criminal law is specifically written in the article that it depends on circumstances and situations because it is about retribution, but there the halakha seems more rigid.
8. In my opinion, the distinction there is correct, but it is general. All Torah law, criminal and civil, speaks of truth (see 4:11 and 4:11) and not of practice, and does not attempt to be effective. The sages or the king are supposed to adapt it to circumstances and needs, that is, to make it effective. In the attached article ( On Duties and Rights), I discussed this point, among other things. And similarly in the articles and book of Shai A. Wesner, that halakhic law (at least in Yeshivastic thinking) does not seek to achieve results but rather reflects theoretical truth. See also another article on ownership .
All the best and much success,

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A:

Hello.
I read it quickly, and the things are interesting. I have a few notes in the summary of the story.
1. I am not a professor.
Consider this a wish.
2. Even in civil law, there are things that are really ineffective (like the Gramma exemption).
As is known, in the opinion of the Maimonides, anyone who causes harm is liable. In any case, this is not a law that undermines effectiveness. Incidentally, the argument is that Torah law deals with justice, but in the case of property, this is usually sufficient to be effective. This argument explains the few puzzling laws in property law, such as exemption from the Grammar according to the R.I.
3. In the dispute in the Sopka Damchut between the R.G. R.A. and the R.T., it seems to me that the difference is in the role that is dependent on the approach. As is known, the R.A. was not in the Sanhedrin (Ben Grimm. That is why he says “If we were in the Sanhedrin”), and therefore he is a theorist. The R.G. is the president of the Sanhedrin, with the role responsible for establishing order. Therefore, the theorists explain what is truly true (theoretical truth) and the R.G. makes practical (effective) considerations.
Very nice explanation. In any case, what was actually ruled in the Rambam, which is ineffective, was explained.
4. It was not explained why the Torah leaves effective criminal law to the sages. Even if we accept the division that retribution by definition is not effective, why does the Torah focus specifically on retribution and not on the rest.
I didn’t understand. It says exactly the opposite – the Torah deals with justice, and therefore criminal law also deals with justice. However, since this is a field that is essentially purposive in nature, the law is not effective.
5. I really wondered in the past whether the Supreme Court can also exempt someone from punishment that is not lawful, as well as punish someone that is not lawful. That is, the Supreme Court can prevent punishment when it is not effective (such as adapting the punishment to the needs). From the explanation, it seems that it is, but I don’t remember anyone talking about the Supreme Court exempting someone who is liable to death or flogging.
I found a source that the king can exempt – David’s decision regarding the Tekoite woman to save her son from death, see Ralbag and Malvim there who wrote that the king can exempt
6. It seems to me that the authority of the sages to punish unjustly is based on the law of the king. This began when the king was responsible for the political arrangement and therefore was not subject to the laws of the Torah. And the Torah took for itself the true, pure law (and not necessarily effective). After the monarchy was abolished, this authority passed to the Rabbis (therefore Hillel, Raghav, Rabbi and their lineage were from the seed of the House of David). In other words, the fundamental division is between the Torah and the king and not between the Torah and the rabbis. The transfer of authority to the sages is a historical accident (a result of the loss of the monarchy). One expression of this is that the conduct of the communities and the methods of decision-making entered the Shulchan Aruch. Their place is not there, but nowadays the Shulchan Aruch is also responsible for the king’s part.
This is what the Rabbi writes in his sermons. Incidentally, this is not an accident but a reaction to destruction that shows that the halakha allowed for “organizational” flexibility that increased the survival of the halakha.
As a matter of fact, I doubt whether the opinion of the Rabbi is the center of the halakhic field. there is There is something in this statement that seems foreign to the law.
You will surely agree with me that in the mitzvot that are between man and the place, regulations are made by the sages (such as the prohibition of a specific place), and if so, it is difficult to limit it only to this area.
7. The fact is that civil law is subject to regulations, changes, conditions, and state custom and royal law more than criminal law. If it is effective, that is, suitable for practical application in any situation, then it should actually be less subject to changes and more rigid. You wrote that criminal law depends on circumstances and situations because it involves retribution, but there the halakha seems more rigid.
State custom is part of the rule of law because it influences the intentions of the parties.
The laws and regulations of the Kingdom of God do not replace the law but rather supplement it.
In contrast, in criminal cases, the impression is that much more than reconciliation is needed, and therefore the law “retreats” to the world of retribution alone.
In other words, in the Manmohans the base is remuneration + regulations on the margins, so there is room for regulations.
In criminal law, there is a problem of effectiveness at the base, so they focus only on retribution.
8. In my opinion, the distinction there is correct, but it is general. All Torah law, criminal and civil, speaks of truth (see 4:11 and 4:11) and not of practice, and does not attempt to be effective. The sages or the king are supposed to adapt it to circumstances and needs, that is, to make it effective. In the attached article ( On Duties and Rights ), I discussed this point, among other things. And similarly in the articles and book of Shai A. Wesner, that halakhic law (at least in Yeshivastic thinking) does not seek to achieve results but rather reflects theoretical truth. See also another article on ownership .
I haven’t read what you attached yet, but I think I know your argument from your articles, which I have read.
I strongly object to these things.
Your distinction is between scholarship and justice. That is, you are essentially showing that the halakhic decision is contrary to moral intuition and you are subjecting it to rigid and unreasonable criteria. This claim contradicts what is stated in the Torah that all the nations of the world will say about the people of Israel that they have “righteous laws and judgments.” Also, from my experience, this is the situation on the ground – the decisions of the court are reasonable and understandable to any decent person. Moreover, I believe that a judge is supposed to examine the result he came up with from an intuitive angle and if it is unreasonable, he should examine himself again. I have a good example of one of the greats of the generation who wrote an article whose result was unreasonable, and further examination revealed that the ruling contradicted the words of the latter and the opinion.
I feel that the source of the claims is in yeshiva scholarship disconnected from jurisprudence, but if I am wrong, I apologize in advance.
Of course, the implication of your claim is that a world governed by Torah law would be immoral, and that is unacceptable to me.

All the best and much success,