“He Requites the Wicked with Evil According to His Wickedness” — Really?

Alon Shevut – Graduates – 1995

Studies in the Meaning of Punishments

 In this article I would like to discuss several issues that touch upon the Torah conception of punishment, both that administered by human beings and that administered by Heaven. What are its meaning and purposes, what is the connection between punishment and transgression, and by what method the severity of the punishment is determined. Of course, these remarks cannot exhaust this great and central topic, and I have come only to awaken the hearts of those who study it.

 

A. The connection between the severity of the punishment and the severity of the transgression.

 

In Sefer HaMitzvot of Saadia Gaon (in the edition of Rabbi Yeruham Perla) in the fiftieth punishment Saadia Gaon writes: according to the honor of the Sabbath are those who desecrate it punished, and so too those who violate a cherished betrothed maiden. Rabbi Yeruham Perla in his commentary there writes as follows: It seems that his intention is to say that in accordance with the importance of the commandment of resting on the Sabbath, which is among the greatest commandments in the Torah, so too in that measure is the punishment of those who desecrate it—the most severe punishment among all the punishments in the Torah, for we maintain that stoning is more severe than all the other court-imposed deaths. So too with a betrothed maiden: in proportion to the gravity of the transgression is the gravity of the punishment. And thus our master the Gaon, of blessed memory, also wrote in his Emunot Ve-De’ot (Fifth Treatise): And how do we know that they are not severe? Because their punishment was not made great in this world, etc. But the intentional sinner is one who violates the grave prohibitions, namely those that incur karet, etc., and the four court-imposed deaths. By this we know that they are grave, etc. End quote; see there. And this is not like the opinion of Rabbi Judah the Pious, of blessed memory, who wrote in Sefer Hasidim HaShalem, no. 157: Know that you cannot infer the commandments, their punishments, and their rewards from the severity of the afflictions. For Sabbath desecration is punished by stoning, while some sexual prohibitions are punished by strangulation and karet. Yet desecrating the Sabbath is permitted for the sake of saving life, whereas one cannot do so with sexual prohibitions or murder, though they are not punished by stoning. Therefore do not say that this commandment is more precious and beloved than that one. End quote; see there. And he wrote again later (there, no. 1046) that the value of the commandments should not be assessed according to the punishment of one who violates them. He brought proof from this, for the sin of a false oath and erasing the Divine Name is only a prohibition, whereas the sin of a married woman is punished by strangulation. And nevertheless, when she had relations in adultery many times, 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 see there in his words.

Further on there Rabbi Yeruham Perla brings that Maimonides’ view in his Commentary on the Mishnah (Avot 2:1; see also Meiri and Rashbatz in his Magen Avot there) is that from the punishment of one who violates a commandment we know the reward of one who fulfills it, and that is the same as Saadia Gaon’s view above. Afterward Rabbi Yeruham Perla expands at length in argument and proofs for the view of Saadia Gaon and those who agree with him, and concludes there as follows: The words of Rabbi Judah the Pious are astonishing to me. The words of our master the Gaon and of Maimonides, of blessed memory, are simple and clear, for the Holy One, blessed be He, does not execute judgment without justice, and the ways of the Lord are upright, etc.

We thus learn that the connection between the severity of the punishment and the severity of the transgression is disputed among the medieval authorities. According to Saadia Gaon, the severity of the punishment corresponds to the severity of the transgression, whereas according to Rabbi Judah the Pious no such necessary connection exists. Indeed, the question—one might even say the outcry—of Rabbi Yeruham Perla at the end of his remarks requires clarification, and at first glance the words of Rabbi Judah the Pious seem baffling indeed.  

 

B. What is severity?

 

The first point that must arise in such a discussion is whether the severity of punishments is sufficiently clear to us, so that from it we may infer (according to Saadia Gaon and his camp) the severity of the transgression. Rabbi Yeruham Perla, in the passage cited above, states that stoning is the most severe death penalty, and therefore whoever is punished by stoning has certainly committed the gravest transgression. But here one must ask, is the determination that stoning is the most severe death, based on a realistic assessment of the pain or humiliation involved in it? Even if the pain involved in stoning is the greatest, that pain lasts only a moment, and it is puzzling to regard this punishment as the most severe on account of that pain.

As an alternative, one might propose the view that the determination that stoning is the most severe death, is a determination that concerns the spiritual meaning of the punishment. It is even possible to suggest a conception exactly opposite to that of Rabbi Yeruham Perla, namely that the severity of stoning is derived precisely from the fact that it is given as punishment for the most severe transgressions. According to this view, of course, there is no meaning to measuring the severity of the transgression by means of the severity of the punishment, for this would be a circular process. 

Let us go on and say, that if Torah punishment indeed has a spiritual dimension parallel to the physical punishment, and it is this that determines the punishment’s severity, then there is room to discuss whether the difference between spiritual punishments is a difference of degree or a difference of kind. It is very plausible that the spiritual punishment repairs the blemish in the soul (or in the world) that the transgression has caused, as a purging of sin, and the kind of purging corresponds to the kind of blemish. If that is indeed the case, then a grave transgression certainly requires a punishment suited to its purging. Such a punishment may involve less suffering than the punishment that purges another transgression lighter than it. An argument of this sort places Rabbi Judah the Pious’s approach, which disconnects the severity of punishment from the severity of transgression, in a somewhat more plausible light.

Of course, one might raise the consideration of a correspondence between the spiritual significance of the punishment and the intensity of suffering involved in it, such that the spiritual level of the blemish that must be repaired is “translated” in earthly terms into an intensity of suffering. If we accept this argument, then Saadia Gaon’s approach appears self-evident.

The same difficulty exists on the plane of transgressions as well. What is the meaning of saying that one transgression is more severe than another? It seems obvious that here the classification is purely spiritual. Unlike the case of punishment, here there is generally no distinct physical aspect.[1]

A transgression is classified as more severe if it damages a higher spiritual plane, or if the person who committed it is afflicted by a deeper spiritual blemish. Such a difference too, at first glance, is a difference of kind and not a difference of degree. For the same reason as before, one may challenge the approach that insists there must be a correspondence between the intensity of suffering in the punishment and the kind of blemish involved in the transgression.   

Let us summarize and say, both punishment and transgression have a spiritual side and a physical-earthly side. The transgression is an act forbidden by the Torah, but it is also an act that has consequences that blemish the soul or the world. The punishment too is an action decreed by the Torah upon the one who performed the forbidden act, and it generally causes him suffering, but it is also an act that, on the spiritual plane, purges the blemish created by the transgression. It is self-evident that the connection between the spiritual dimension of punishment and that of transgression is one-to-one, for the one purges the other. All other connections, such as the connection between the intensity of suffering involved in the punishment and the spiritual level of the blemish or of the repair, are not necessary. More than that, it is not clear whether there is at all a quantitative scale of severity that can characterize the various punishments and transgressions, or whether rather the punishments and transgressions differ from one another in kind and have no common measure.

   

It is stated in Ketubot 33. R. Ashi objected: From where do we know that one who was warned regarding the more severe matter is considered warned regarding the lighter one? Perhaps he is not. And if you should say that he is, from where 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 worshipped the idol. R. Sama, son of Rav Asi, said to R. Ashi: Do you not distinguish between a beating that has a fixed limit and a beating that has no fixed limit?  

In this Talmudic passage it seems that the question of which punishment is more severe is itself open for discussion and is not self-evident. On the other hand, from the Talmud’s answer it appears that the criterion for the severity of a punishment is indeed the pain involved in it. According to the Talmud’s conclusion, it seems that the conception remains that the severity of the punishment is determined by the suffering involved in it, and therefore the order is (from the most severe to the least severe) a beating without limit, death, a beating with a fixed limit.  

The Ritva ad loc., s.v. ‘sham lav milta,’ explains the Talmud’s reasoning as follows And from where do we know that one warned regarding the severe matter is considered warned regarding the lighter matter? Perhaps not. That is, it is a scriptural decree that he must receive warning for the very punishment on account of which he is punished. And if you say that he is, from where do we know that death is more severe? That is, even though according to the Torah’s laws it is obvious that death is more severe, so we ask: from where do we know that, for people, the warning of death is more severe? Perhaps the warning of lashes is more severe for them, for people do not fear death, since one may say, “Let my soul die with the Philistines.” But lashes are not acceptable to them, for they do not wish to be killed; rather, it is lashes that trouble them, since their own lashes are worse than another man’s blows.[2]

The Ritva’s view is that according to the opinion that one warned regarding the more severe matter is not considered warned regarding the lighter one, this is a scriptural decree and not because human beings evaluate the severity of the punishment differently from the Torah’s evaluation. Rather, according to the view that one warned regarding the more severe matter is indeed considered warned regarding the lighter one, the Talmud asks whether, in human perception, death is really more severe than lashes.

It follows that according to the Ritva, the discussion in this Talmudic passage is not connected to the general question with which we are dealing in this article. It is a problem concerning human psychology, namely, what people fear more. On the other hand, in the Torah’s laws it is clear to the Ritva that death is the more severe punishment. Here, of course, the question arises, if the suffering involved in the punishment is not relevant to determining its severity, what criterion does determine that severity?  

Tosafot there, s.v. ‘mimai,’ brings, like the Ritva, the explanation that according to the view that one warned regarding the more severe matter is not considered warned regarding the lighter one, this is a scriptural decree and not some other assessment of human perception. Tosafot proves this from the Mishnah in the chapter HaNisrafin (Sanhedrin 79b) that teaches: those liable to different death penalties who became intermingled are judged by the lighter punishment; and the Talmud says there (80a): this shows that one warned regarding the more severe matter is considered warned regarding the lighter one. And there it is obvious that once he was warned about stoning and accepted it, all the more so, had he been warned about strangulation for that very act, he would have accepted it. Even so, one might have said that one warned regarding the more severe matter is not considered warned regarding the lighter one. Rather, it must be said that it is a scriptural decree that we require him to submit to that very death, whether lighter or more severe.
Tosafot clearly links the severity of the death penalty with the fear a person has of it, in that he assumes as self-evident that one who accepted upon himself the punishment of stoning would certainly accept upon himself the punishment of strangulation for the same transgression.[3] Therefore it appears that later in the passage, when the Talmud asks ‘From where do we know that death is more severe?’, its intention is to challenge the ordinary and accepted law that death is more severe, unlike the Ritva, who detached this objection from the general question. If so, according to Tosafot the severity of the punishment is determined by the degree of suffering (or fear) that a person experiences in relation to it.[4]

To summarize our discussion of the passage in Ketubot, according to the Ritva the criterion for the severity of the punishment is unrelated to the extent to which a person fears it, whereas according to Tosafot the degree of fear is itself the criterion of severity.[5]  

According to what we said above, one may say that if, as the Ritva holds, suffering (or fear) is not the criterion for the severity of the punishment, then one can maintain, like Rabbi Judah the Pious, that there is no reason to connect the severity of the transgression with the severity of the punishment. The severity of the punishment is then a spiritual measure, and the differences between punishments are differences of kind and not of degree, as explained above.

On the other hand, if, as Tosafot hold, suffering is indeed the criterion, then it is reasonable to assume that the conception is that punishment is a physical notion in its plain sense, and consequently a more severe transgression is punished by a more severe punishment. In this conception the differences between punishments are differences of degree.[6]

According to these remarks, the words of Tosafot s.v. ‘ve-dilma’ (there on 33b) brought in note 4 above fit very well,  for he connects the severity of the punishment to the severity of the transgression (like Saadia Gaon and Maimonides). Tosafot is consistent with his own view, for he maintains that the severity of the punishment is measured by the suffering involved in it, and as stated above, this is the basis of Saadia Gaon’s conception.

 

C. Various implications of the dispute between Rabbi Judah the Pious and Saadia Gaon

 

The Talmud in Sanhedrin 50, and elsewhere, discusses which death penalty is more severe than another by examining the gravity of the transgressions for which that death is given.  According to Rabbi Judah the Pious this is, at first glance, difficult, for what has the severity of the transgression to do with the severity of the punishment? Given the force of the difficulty, one might say that the concept of severity under discussion in those passages is a different one. In that passage in Sanhedrin one indeed sees that the conclusion regarding the severity of the punishment always emerges from an argument about the severity of the transgression. The severity of the transgression is inferred from various considerations specific to each transgression (the blasphemer—because he stretches out his hand against the very foundation, one who strikes his father and mother—because their honor is likened to the honor of God, etc.). A structure of argument like this suggests that what is being discussed in these passages is the severity of the transgressions for which the various death penalties are imposed, and not the severity of the death penalties themselves. In other words, one may say that the issue there is the spiritual depth of the blemish that that particular death penalty comes to repair. And as explained above, even Rabbi Judah the Pious agrees that the purging stands in direct proportion to the blemish in the spiritual dimension of the matter. Even so, the matter still requires further clarification.

 

According to Rabbi Judah the Pious’s approach, the halakhic principle that punishments are not derived by logical inference is at first glance explained quite simply. That is: one cannot derive by an a fortiori argument from the punishment of one transgression to that of another.[7] According to Rabbi Judah the Pious’s conception it is clear why punishments cannot be derived in this way, for the fact that transgression A is more severe than transgression B cannot teach us that its punishment must correspondingly be more severe. Rabbi Judah the Pious holds that punishments differ from one another in kind and not in intensity, and therefore, even if transgression A is more severe than transgression B, it may require a spiritual purging of a different type.

Saadia Gaon and his camp can adopt the explanation that punishments are not derived by logical inference because there is concern that the a fortiori argument may be subject to refutation (see Middot Aharon, chapter 2, no. 13), or the explanation that since the source case is lighter than the target case, atonement through such a punishment would not suffice for the target (see Maharsha on Sanhedrin 64b).[8] Another possibility would be along the lines of the Ra’em on Parashat Shemini, who explains that this is a scriptural decree from the verse ‘his sister.’ We are not concerned here with a detailed discussion of the rule that punishments are not derived by logical inference, but we should note that the first two explanations are extremely difficult in a number of places,[9] whereas the most plausible understanding of the third explanation is precisely that of Rabbi Judah the Pious himself. From the verse ‘his sister’ we learn exactly this point, that the severity of the punishment is not necessarily proportional to the severity of the transgression, and therefore punishments are not derived by logical inference.

 

In Tosafot s.v. ‘a non-priest who ate terumah’ in Ketubot 30b there is a discussion of exemption from punishment by means of the rule of kim lei be-derabba minei. Tosafot writes there that a person cannot be exempted from atonement by means of a more severe punishment; see there. At the plain level it seems that his intention is that death and lashes are not punishments that atone, for in regard to them we certainly do invoke kim lei be-derabba minei. If so, what kind of punishments are these according to Tosafot?[10]

Indeed, this whole rule of kim lei be-derabba minei requires consideration according to Rabbi Judah the Pious: how can one be exempted from one kind of purging by means of another kind of purging? As for Tosafot here, one may say that he holds that the essence of death and lashes is physical suffering, and in that respect the exemption of kim lei be-derabba minei applies well. This again is consistent with Tosafot’s own view, namely that punishment is conceived as physical suffering,

whereas according to Rabbi Judah the Pious the matter remains difficult.[11]

Another issue worthy of discussion is the Mishnah in Sanhedrin 79b concerning those liable to different death penalties who became intermingled and are judged by the lighter penalty. At the plain level this seems to imply that even for those liable to the more severe death there is significance in judging them by the lighter one, although according to Rabbi Judah the Pious, as we explained, it is a different kind altogether.

From this passage it appears that even Rabbi Judah the Pious must concede that punishment also includes an element of physical suffering, except that his claim is that it also has an aspect of spiritual purging that is not necessarily correlated in a one-to-one way with the intensity of suffering involved in the punishment. Therefore, when persons liable to different death penalties became intermingled, one may say that they are punished by the lighter one in order to actualize at least that aspect of the punishment, even though the purging is of a different kind.

One may continue and say that the physical severity of the punishment is important for the education of the public, whereas the purging has to do with the offender himself. If this is indeed the correct picture, then a new understanding of the nature of the dispute above emerges here: for Saadia Gaon the purpose of the punishment is general-educational, whereas for Rabbi Judah the Pious its purpose is metaphysical and its significance concerns the offender himself. According to what we are saying here, even Rabbi Judah the Pious admits the existence of the second aspect, and therefore those liable to different death penalties who became intermingled are judged by the lighter one, as explained above, but he denies the exclusivity of that aspect.[12]

 This question, and others like it in the Sanhedrin passages there, require detailed discussion, but this is not the place.                   

 

D. The mechanistic conception

 

An even more extreme conception than that of Rabbi Judah the Pious is proposed by the Minhat Hinukh, commandment 516. The discussion concerns one who suppresses his prophecy, thereby neglecting a positive commandment, whose punishment is that he is flogged until his soul departs. The Minhat Hinukh argues that although we have learned a punishment for neglecting this positive commandment, we do not find an explicit command.[13] If so, the question arises: how can we punish him? True, the Minhat Hinukh writes there, we do not find that a warning is required for positive commandments, only for prohibitions. But according to what Sefer HaHinukh itself writes in commandment 69 (concerning one who curses judges) that in the case of prohibitions, had there been only a punishment without a warning, we would have thought that if a person wished to transgress and accept the punishment, that would be permissible and would not count as acting against the will of the Holy One, blessed be He, etc.; therefore the Torah issued a warning in order to inform us that God does not desire this, etc.; see there. If so, on this understanding, we must say that positive commandments too require some command beyond the punishment in order to inform us that God does not desire such an act. Therefore, the Minhat Hinukh continues and argues, that perhaps in the case of one who suppresses his prophecy, for whom we do not find such a command, this is indeed a mechanistic punishment and not punishment in the accepted sense, that is, not a response to violating the will of the Holy One, blessed be He. With this the Minhat Hinukh there explains the fact that Jonah suppressed his prophecy despite the prohibition involved; see there. In conclusion, the Minhat Hinukh writes that this does not seem correct and offers another explanation for Jonah’s actions; see there.

That is, there exists a conception according to which punishment is a kind of natural mechanical reaction to transgression, like a person who puts his hand into fire, where the burn is not a punishment but a natural physical reaction, and not punishment for violating the will of the Holy One, blessed be He, in the accepted sense. This is a more extreme conception than that of Rabbi Judah the Pious, for according to this conception not only is there no connection between the severity of the punishment and the severity of the transgression, but there may even be punishment without any transgression at all (an act of transgression is of course required, but not a transgression in the negative sense of the term). Such a conception completely uproots the notion of punishment from its ordinary meaning and from the negative connotation in which it is generally understood.

I recall having once seen a short article by Rabbi Dov Lando (head of the Slobodka yeshiva) in a memorial volume whose name I no longer remember, in which it was argued that such a conception is also found in the words of Rabbeinu Gershom on Temurah 3b regarding lashes for those who take oaths. The Talmud there says ‘… we conclude that this explicit utterance entails lashes. Shall we say it applies even to a truthful oath? It is explicitly written: “the Lord’s oath shall be between them.” Shall we say that those words apply only to placate his fellow, but that he should nevertheless receive lashes? You cannot say so, for it is written: “and by His name shall you swear,” etc.’ See there; throughout that passage there are several points relevant to our discussion here.

And from Rashi there it appears that in the initial assumption, his being flogged for a truthful oath is because he brought himself into a situation of swearing. Rabbeinu Gershom there explains as follows: And say that it would be preferable for him to satisfy his fellow with money and not with an oath; and if he did not want money but only an oath (the intention, plainly, is that the owner did not agree), then he should swear to him in order to satisfy him, but he would still be flogged for a truthful oath, etc. And it emerges from Rabbeinu Gershom’s words that there really was an understanding that the watchman should take the oath, as the Torah requires him to do, in order to satisfy the owner, and nevertheless he would be flogged.

 

A conception similar to this is common in various books with regard to punishments at the hands of Heaven (as opposed to punishments imposed by a religious court, which were the subject of this article until now). For example, in the book Sichot Musar by Rabbi Chaim Shmuelevitz (5731, discourse 24 on the subject of remembering the deed of Miriam) he brought the story of Rav Rehumi (Ketubot 62b) who delayed returning home on the eve of Yom Kippur and caused his wife distress. As punishment, Rav Rehumi was killed by the collapse of a roof. Rabbi Chaim asks: after all, the pain caused to his wife by his death was incomparably greater than the pain caused by his delay, so what logic can there be in such a punishment? He explains there that punishments for transgressions between one person and another are like putting one’s hand into fire, which burns regardless of the person’s guilt.

In my humble opinion, such a conception is something that simply cannot be said. It amounts to denying the entire notion of particular providence, one of whose basic characteristics is that no event (certainly no punishment) happens to a person without a decision that follows higher deliberation.[14]

The case of Rav Rehumi can, of course, also be explained in the standard way, namely by assuming that his wife too deserved punishment for some reason, and therefore the killing of her husband—which was a fitting punishment for what he had done—was not withheld because of her.[15]

Another example of an anti-mechanistic conception of punishments from Heaven may be found in the passage in Gittin 35a. There the Talmud tells of a widow with whom a dinar had been deposited, and she placed it inside a jar of flour. Later she baked the flour and mistakenly gave the bread, with the dinar inside it, to a poor person. When the depositor came to ask for his dinar, the widow swore: ‘May the poison of death benefit one of that woman’s children’ (that is, herself) ‘if I derived any benefit from this dinar’. A few days later one of her sons died. The Talmud learns from here how severe the punishment of one who swears falsely is, for if this is what happens to one who swore truthfully, then one who swears falsely all the more so; see there. The Behag, as quoted by the Rashba ad loc., asks: what oath is there here? He answers that this follows Rabbi Abbahu in Shevuot 36, who holds that an imprecation counts as an oath. Several later authorities asked, that according to this, what proof is there that the punishment of false swearing is severe, for here the reason her son died was because she cursed him, not as punishment for her oath.  The answer seems to be that even an imprecation does not operate mechanically, but rather its activation occurs only after deliberation, and this allows it to be carried out only if the one at whom the imprecation was directed indeed deserves to receive it.[16]

Similar approaches may be found regarding the ‘dulling of the heart’ (or soul) that results from acts of transgression performed with permission. For example, the Rema, Yoreh De’ah 81:7, writes as follows: Nevertheless, one should not have an infant nurse from an Egyptian woman if a Jewish woman is available, for the milk of an idolater dulls the heart and produces an evil disposition in him. Likewise, the nursing woman herself, even if she is Jewish, should not eat forbidden foods, nor should the infant himself, for all of this harms him in his old age. The dulling that results from gentile milk stems from her eating forbidden foods, foods that for her are entirely permitted. More than that, according to the explanation of the Shakh, sec. 25, even a Jewish nursing mother who is ill and must heal herself by means of forbidden foods should send her child to nurse from another woman, even though she eats them with full permission (indeed it is even a commandment, for ‘and live by them’ is written). And finally, the infant himself, although we rule that we are not commanded to separate him if he eats carcasses on his own, is nevertheless here to be separated because of the harm that will come to him in the future.

Against this conception the Ben Ish Hai comes out sharply in his responsa Rav Pe’alim, part 3, at whose end several responsa on esoteric matters were printed under the title ‘Sod Yesharim’. In responsum 6 there the Ben Ish Hai writes as follows: An impure creature, as well as carrion and non-kosher meat, do not of themselves defile a person’s soul; and although Scripture says concerning them “you shall be defiled by them,” the intention is not to say that their physical substance defiles the soul. Rather, every forbidden and impure thing has resting upon it a spiritual force of impurity, and when a person eats it, that force of impurity rests upon the person, enters him, and defiles him. However, if he is under complete compulsion and does not at all know of the prohibition and impurity, nor is there any basis to attribute any causation to him, in that he brought this inadvertence upon himself, then if he ate that forbidden and impure thing, that force of impurity will not rest upon him; the force of impurity has no permission to enter him or even to touch him. See there further in his remarks, which are illuminating indeed.

 

An earlier source that discusses this problem is the Ran’s Derashot, in the eleventh homily, ‘Judges and Officers’. The Ran there explains that the commandments are not an expression of an arbitrary divine will, but rather there is benefit in fulfilling them and harm in transgressions, even though we may not know the cause. On this basis the Ran there asks as follows: According to this reasoning, then, if the sages agree regarding something impure that it is pure (by mistake), what will follow? Surely that thing will harm us and produce what its nature causes it to produce, even though the sages agreed that it is pure. If physicians agreed regarding a certain medicine that it is neutral, whereas in fact, for example, it is hot in the fourth degree, there is no doubt that the effect of the medicine in the body would not follow what the physicians said about it, but its own nature. So too regarding a thing that the Torah prohibited because it is harmful to the soul: how can the nature of that thing change because the sages agreed that it is permitted? That is impossible except by miracle.  The Ran asks how the Torah can command us to obey the decision of the sages even in a case where we know they are mistaken, for would this not cause spiritual harm to our souls? And in his question, the Ran also compares such harm to the operation of physical harm.[17]

The Ran answers there that the Torah established a mode of conduct that will be optimal in most cases. Generally, the sages’ ruling will be closer to the truth than that of an ordinary person, and therefore this is the optimal way to minimize harm. True, in certain cases even sages may err, and then we all pay the price in spiritual harm, similar to the harm caused by a doctor’s mistaken decision. Later in his remarks the Ran wishes to claim even more than this, namely that the benefit involved in obeying the voice of the sages will erase the harm that might have been caused by the mistake itself.[18]

From the Ran’s conception it follows that the spiritual harm (the dulling of the heart) is indeed mechanistic, depending on the act itself and not on the fact that the act is a violation of God’s will. According to the Ran’s first answer, it is clear that this conception remains in place. His later remarks (a second answer?) can be interpreted in two ways: either the harm is indeed mechanistic, but the countervailing benefit produced by obeying the sages (which is also a commandment) offsets it. Or one may also explain that because the obedience is a commandment, there is no harm at all from the transgression. This would be because the harm is caused by violating God’s will and not by the act itself, contrary to his assumption at the stage of the question.

 

E. Summary

 

In this article I have tried to examine several aspects of the Torah’s conception of punishment. In the simple conception, the severity of the punishment is determined by the severity of the transgression (Saadia Gaon and Maimonides). I tried to explain the approach of Rabbi Judah the Pious, who holds that this is not so, by altering the criteria according to which a punishment is considered severe. After that, I raised the possibility that the dispute stems from a disagreement over the very essence of punishment, whether its purpose is educational or metaphysical.  According to these conceptions, the differences between punishments are also differences of kind for Rabbi Judah the Pious, and not only of degree as in the view of Saadia Gaon. The criteria for evaluating punishments were examined in light of the Talmudic passage in Ketubot 33, where the medieval authorities dispute whether the measure of suffering is the criterion for the severity of a punishment or whether the criterion is something else (apparently spiritual).

After that, the subject of ‘punishments are not derived by logical inference’ was discussed, and my main claim was that according to Rabbi Judah the Pious this principle is self-evident. For the opposing approaches, the matter still requires further clarification.

Later on, a mechanistic approach was presented in which punishment is conceived as an automatic consequence of the act of transgression, and not as a response to violating the will of the Holy One, blessed be He. Generally, such a conception is only an initial assumption that is rejected when court-imposed punishments are at issue. As for punishments at the hands of Heaven, at the end of our discussion several examples were presented that represent such a mechanistic conception even as a conclusion, although there are those who oppose it even on that level.  

The natural tendency, of course, is to see in every spiritual harm (the dulling of the heart) and certainly in every punishment, a response that stems from higher deliberation. The approach according to which there are laws of ‘spiritual mechanics’ that operate in a deterministic fashion appears at first glance to contradict the idea of providence and of reward and punishment. To be sure, one might say that what happens to the soul is likewise not irreversible, and that the whole account is settled in the World to Come according to the rules of justice (and not in an arbitrary-mechanical fashion). If that is the case, then it is not clear why such rules should be established when they are not always just.

The significance of such a question is, of course, limited, for such lack of understanding may also stem from human limitations. But where there are different approaches whose source does not appear to depend on exegesis of verses, but are rather the product of human reflection (on the part of sages), it nevertheless seems that there is an important place for such hesitation before adopting one of those approaches as a description of the manner in which the Creator of the world acts.

[1] The exception to this is transgressions between one person and another, where the act of transgression also has a clear earthly aspect in addition to the spiritual blemish that exists in them all. We are discussing here only general characteristics that apply to all kinds of transgressions.

[2] This is essentially the argument we raised above against the conception that death is more severe because of the suffering it causes, when we said that the suffering involved in death is momentary, and it is not plausible that this is what makes it more severe.

[3] Of course, it is possible that this is Tosafot’s assessment specifically regarding strangulation and stoning, that in this particular case even an ordinary person fears stoning more than strangulation. But that would not amount to a general rule that human suffering determines the severity of punishment. Such a claim seems forced to me, since as a matter of common sense it is not clear why a person should fear strangulation less than stoning.

[4] Let us further note that Tosafot, s.v. ‘ve-dilma,’ there on 33b brings proof of the severity of death from the fact that it is given to the people of an idolatrous city. This implies that the severe transgression is punished by the severe punishment, although the direction of the inference there is the reverse, from the severity of the transgression to the severity of the punishment. In the discussion above of the Talmudic passage in Ketubot I refer only to the question what the criterion is for a punishment’s being severe, and not to the question of the connection between the severity of the punishment and that of the transgression. In any case, this Tosafot is evidence for our claim that according to Tosafot the discussion in this passage is the general discussion of the severity of punishments, unlike the Ritva.

[5] It would be highly implausible to say that the fear is of the more severe punishment not because it is painful but because of the bare fact that it is severe. I do not think this is a correct assessment of human beings.

[6] This is the place to note that I do not mean to say that according to this view punishment has no spiritual dimension, but only that punishment is defined by its physical side; the spiritual dimension is apparently correlated in a one-to-one way with differences in physical severity. Such a possibility was raised above.

[7] See Encyclopedia Talmudit, s.v. ‘Punishments Are Not Derived by Logical Inference.’

[8] Similarly, the Kesef Mishneh writes regarding conspiring witnesses, of whom it is said “as he plotted” and not “as he did,” and this is because once the judgment has been carried out, the punishment would need to be so severe that doing to them “as they plotted” would no longer suffice. And similarly regarding one who passes some of his offspring to Molekh, but not all of his offspring, as is explained in the Kesef Mishneh in a similar vein.

[9] The explanation of Korban Aharon is difficult because of the rule that a clarification of the matter can also be made by logical inference (see Encyclopedia Talmudit there), even though this too is, in practice, a derivation of punishment from an a fortiori argument. After all, if there is concern for error and we do not wish to punish where such concern exists, what difference is there between a clarification of the matter and a direct derivation of the punishment.

The second explanation is difficult because one could at any rate punish at least with the lighter punishment, in analogy to the Mishnah in Sanhedrin 79b concerning those liable to a lighter and a more severe death penalty who became intermingled and are punished with the lighter one; but this is not the place to elaborate. Precisely the fact that they are not punished at all again points to Rabbi Judah the Pious’s conception: if someone is liable to a severe punishment, he cannot be punished with another punishment, even if it is lighter, because the difference is one of kind and not of degree, as above. But this is contradicted by the Mishnah in Sanhedrin just mentioned, which rules that they are in fact punished with the lighter punishment; see below for the explanation offered for this.

[10] See there in Kovetz Shiurim by Rabbi Elchanan Wasserman, of blessed memory, no. 91, for what he wrote on this.

[11] And see below what is argued, namely that even according to Rabbi Judah the Pious punishment also has such an aspect, only it is not the only one. According to this, the difficulty can be somewhat resolved, though it still requires further clarification.

[12] It is possible that this is connected to the difference in outlook between these two schools. Saadia Gaon and Maimonides are, as is well known, from a rationalist school, and against that background their conception of the nature of punishment may be explained. Rabbi Judah the Pious, by contrast, belongs to the German Pietists, who also engaged in Kabbalah and therefore tended more toward metaphysical explanations.

[13] See the notes in the Jerusalem Institute edition of the Minhat Hinukh for what is written there on this point.

[14] One may ask a similar question about fire itself: why is a person who puts his hand into it burned if he does not deserve this as punishment? It seems that in an action of this sort a person knows that he must be careful, and therefore, for various reasons, providence allows a mechanistic mode of conduct on the physical plane. Not so on the spiritual plane of punishments for transgressions, where there is no room at all for such a mode of conduct.

[15] One may say that something like this is found in the words of Rabbi Akiva, who was asked by Turnus Rufus why the Holy One, blessed be He, did not make the poor rich if He desires their good. Rabbi Akiva answered that the Torah was given only in order to refine people through it. That is, a person is required to help the poor only in order to refine himself, and not in order to improve the poor person’s situation. According to this, Rav Rehumi was punished not because his wife suffered, but because he caused her suffering and thereby violated God’s will. Such a conception empties the commandments between one person and another of their moral content (compare note 1 above). However, see Sefer HaHinukh, commandment 66 (lending to the poor), where a careful reading suggests that the commandment of lending to the poor includes both aspects together: improving the situation of the poor person and refining the soul of the giver. See there, where he connects his remarks to the above story of Rabbi Akiva and Turnus Rufus.

[16] And see there in Tosafot s.v. ‘lo hayu,’ from whose words it appears that the oath was the oath of bailees; and this is also explicit in the words of Rabbi Crescas ad loc. This is strained, for we rule that every case of ‘I do not know’ is negligence (Bava Metzia 35a); see Hazon Ish for what he wrote on this. It is possible that what pushed Tosafot to this strained explanation was the opposite conception, namely that an imprecation is indeed a curse that operates mechanically. This still requires further thought.

[17] See Abravanel at the beginning of Shoftim, the fifth question and the eighth preliminary note.

[18] The Ran compares this situation here as well to physical influence, when he argues that even a person who eats harmful food while intending that it benefit him—if its harmful effect is not extreme—will indeed not be harmed by it.