Parashat Vayechi (5760)

With God's help, on the eve of the holy Sabbath of Parashat Vayechi, 5760

The Meaning of Punishment

After the death of our forefather Jacob, the brothers fear that Joseph will mistreat them and avenge himself for all

that they did to him. They turn to Joseph, express their fear before him, and ask his forgiveness. Joseph

answers them, “Do not be afraid, for am I in God's place?” (Genesis 50:19), that is, I am not authorized to punish offenders;

that is God's task alone. He then adds: “You intended evil against me; God

intended it for good” (Genesis 50:20), that is, although your deeds were done with the intention of harming me, God directed

it for good: “to bring about what has now come to pass, to keep many people alive” (Genesis 50:20), that is, my descent to Egypt sustained

the entire world, you included, during the years of famine.

There are two arguments here. The first states that the brothers did indeed sin, but that he

is not the one authorized and suited to punish them for it. The second, by contrast, claims that what the brothers did did not

constitute a sin at all, since in the end everything turned out for the good. The second argument has two aspects:

one, that the morality of an act is measured by its consequences and not by the intention of the agent (see my comments

on Parashat Noach). The second aspect is that the evaluation of an act derives from a combination of the plane of concrete reality

and the metaphysical plane (see my comments on Parashat Bereshit).

Now I would like to focus somewhat on the first aspect and ask whether an intention to sin that does not in practice lead

to an actual sin, as was the case with Joseph's brothers, is problematic in itself. In previous essays we saw

that the moral evaluation of an act includes reference to the intentions of the agent; here I would like

to stress the converse as well: the results of an act are also a significant component in such an evaluation. The author

of the revered Or HaChayim, in our portion, cites from the Talmud that one who intended to eat pork

and ended up eating lamb must seek atonement. True, there is no actual transgression here,

yet it is a negative act. In Joseph's words we see the other side of that same coin: true,

there is a negative assessment, for there was evil intention here,

yet it does not amount to an actual transgression.

These matters require explanation. A person should be punished only for his actions, that is, for what lies within his control

within the overall complex of the transgressive act. A person who wished to eat pork, took the piece in his hand

and ate it, did everything within his power in order to commit a transgression. True, in the end it became clear that this piece

was lamb, perfectly kosher for consumption according to the strictest standards, but that is merely a matter of chance (or, more precisely,

divine providence). If so, why should the punishment of that offender be mitigated, when from

his standpoint he did everything within his power to commit the transgression.

The same question may be asked with respect to civil law. In the legal systems known to me, attempted

murder does not incur the same punishment as actual murder. One should note that the failure of such an attempt

usually does not stem from the murderer's righteousness, but perhaps from his bungling, and in any case

it is generally the result of circumstances beyond his control. Why, then, should the fact that the attempt

failed constitute a mitigating factor in determining the punishment imposed upon him? Why are the results too a component

in determining the punishment, and not only the act and the intention.[1]

In the philosophy of law there are various conceptions as to the nature of punishment. Punishment can be understood

as intended to deter potential offenders (including this offender himself), or alternatively

as meant to take vengeance on the offender, or, in the case of imprisonment, punishment serves to protect society by

isolating the offender. As for the approach that views punishment as vengeance on the offender, this is a kind of

metaphysical justice, which it is surprising to find in secular legal systems. One may ask

the proponents of these approaches Joseph's question: “Are you in God's place?” (cf. Genesis 50:19). Who appointed you to do

metaphysical justice? Your role is to protect society, and nothing more. In any event, all these conceptions do not

answer the question why attempted murder is less severe than murder.

It seems to me that the answer lies in understanding the meaning of the metaphysical justice achieved by punishment.

This is not merely an attempt to make the offender suffer for his evil deed, for if it were, as noted,

one would have reason to make a person suffer only for what he did, and not for what he succeeded in doing

(that is, for the results). In the Torah's conception, metaphysical justice is the repair of the wrong committed by the offender.

This repair is not exhausted by the offender's suffering, although it indeed involves such

suffering. When an offender is executed or flogged, that very act repairs the blemish that the transgression created in the

spiritual dimensions of reality. According to this approach it is clear that punishment, as a repair of the wrong, is required when

the result (=the wrong) actually occurs. When a person is murdered, repair is required. When there was merely an attempt at murder,

this is a different kind of wrong, a lesser one, namely disobedience to morality and the law. Here, as we saw

in the Or HaChayim, atonement is required for the offender, but there is no concrete wrong in the world that requires repair through punishment.[2]

Punishment that brings about such a repair can be determined only on the basis of divine revelation. There are sins

whose metaphysical repair is by lashes, and others whose repair is by fines, stoning, burning, death by the sword,

or strangulation.

If so, why is attempted murder less severe than murder even in civil legal systems? I do not

know.

Have a peaceful Sabbath

This may be deposited for respectful burial in any synagogue or Torah academy. Comments are welcome.

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[1] Note that here the results are contrasted with the act, not with the intention. There are three layers

in the moral evaluation of a sin: the act, the intention, and the results.

[2] Conspiring witnesses provide the opposite example, in which punishment is imposed specifically for an act without a result (when

the sentence was carried out on the basis of their testimony, they are not punished!!!). An illuminating explanation of this, which is also related to the discussion

here, is found in the book Michtav MeEliyahu by Rabbi Dessler.

Biton17.doc