Seminar paper with the assistance of Rabbi Michael Abraham

Table of Contents

Introduction………….…………………………………………………………………..…………………2

Chapter 1: Different approaches to the purpose of punishment….……….……………………………..………4

Chapter 2: Maimonides’ conception of punishment in the ‘Mishneh Torah’….………….………………………13

Chapter 3: The conception of punishment in the ‘Guide of the Perplexed’: comparison to the halakhic sources………..27

Conclusion………………………………………………………………………………………………32

Bibliography………………………………………………………………………………………34

Introduction

Any legal system that imposes obligations on the members of a given community must include within it a system of sanctions against offenders; otherwise the system of laws loses its value and significance. It is therefore not surprising that Jewish law, like any legal system, has a ramified and detailed penal structure.

Jewish law contains several different ways of punishing offenders. One who violates an ordinary prohibition receives forty lashes. Some offenses incur one of the four death penalties administered by a religious court. Some offenses incur various monetary penalties (fines). There are punishments administered by Heaven, such as death at the hand of Heaven, excision, and so forth. There are also other punishments specific to particular offenses, such as conspiring witnesses, whom we are commanded to punish as they intended to do to the person on whom they sought to pin the charge, and more.

Haim Cohen, in his book ‘The Law,’ writes the following ([1], p. 680):

Since every punishment is an evil, as stated, it requires justification (or self-justification). Only God need not justify Himself: His wrath and burning anger suffice. Except in totalitarian states, it is not sufficient justification that the ruler has the physical power to turn penal threats into reality; in a state under 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 Jewish law in particular, there are different conceptions of punishment. Some maintain that punishment is meant to prevent harm to society, while others hold that its purpose is to deter the offender, educate him, and the like. Of course, there is not necessarily any contradiction among the different conceptions, and one may adopt several of them simultaneously. It is entirely possible that in one legal-halakhic system several different conceptions of punishment will all play a role, depending on the character of the offense and of the offender, and depending on the aims of punishment in each particular case.

Admittedly, in light of Haim Cohen’s foregoing remarks, it would seem that a religious system is exempt from presenting reasons for the punishments and sanctions it imposes, and can suffice with ‘the wrath of God.’ Yet, as we shall see, this is not the case in Jewish law. There, a conception of punishment appears in various forms, and the different punishments are rationalized, at least those that are imposed by human beings (generally by a religious court).[1]

The most comprehensive code of Jewish law is found in the writings of Maimonides, and especially in his principal halakhic work, the ‘Mishneh Torah.’ Therefore, anyone who attempts to develop an overall Jewish-Torah conception of punishment cannot avoid engaging Maimonides’ doctrine and his discussions of this subject. Maimonides also wrote Torah literature that is not halakhic (the letters, introductions, the Guide of the Perplexed, and so forth), and it is therefore appropriate to examine his treatment of punishment in his non-halakhic writings as well, and to compare them with his halakhic discussions.

The aim of this paper is to try to analyze Maimonides’ halakhic conception of punishment, and to compare it to the conceptions presented in his non-halakhic writings, all in light of the conceptions of punishment found among the Sages in the Talmud.

The structure of this paper is as follows: Chapter 1 will deal briefly with the theory of punishment in general, and will present the accepted approaches to understanding judicial punishment. Beyond that, I will also discuss briefly the possibility that a religious legal system, precisely as such, may develop a conception of punishment different from that found in a civil legal system. Chapter 2 attempts to examine which of the approaches presented in the previous chapter is found in Maimonides’ halakhic system. Chapter 3 will deal with the conception of punishment in Maimonides’ non-halakhic writings, and will compare the findings to those presented in Chapter 2.

A. Different Approaches to the Purposes of Punishment

The philosophy of law deals intensively with different theories of punishment, each of which offers a different understanding of the essence and purposes of punishment. From each such approach practical conclusions follow regarding the proper and desirable punishment in the legal system under discussion. As noted above, there is not necessarily any contradiction among the different conceptions, and it is entirely possible that in one legal system several penal aims operate together. In this chapter I will briefly present the prevalent approaches to the nature and function of punishment, and will, where possible, bring examples from Jewish law that reflect each of these approaches. The outline of the discussion in this chapter relies on the description found in Haim Cohen ([1], chapter 8, p. 680 onward).

1. Threat. Every penal law is, first and foremost, a threat directed at offenders: if they do what the law defines as forbidden, they will be punished. Some understand penal law as a threat with an educational purpose, that is, reward and punishment function as a kind of ‘carrot and stick’ intended to educate a person not to do certain acts and to do others.

In fact, one may argue that according to the educational interpretation, the purpose of stipulating punishment in the law is to shape the personality of the citizen, and not merely to prevent him externally from doing certain acts. Beyond that, it seems that according to this approach the essence of penal law lies in its very existence in the statute book. Carrying out the punishment is only to attain the educational goal that the punishment seeks to achieve. In other words, according to this approach, the punishment is the law that stipulates the punishment, not its actual execution. The actual execution results from the necessity that, without punishments being carried out, the laws would have no educational effect.

An example would be an examination on material studied in some educational system. Ordinarily we would not regard the examination as a punishment, and in fact the holding of the examination has no necessary purpose in itself. The point of the examination lies in the announcement that it will take place, not in the actual holding of it. That announcement is meant to influence the student to study, and perhaps also to educate him that study is an important value. Actually administering the examination is a necessity intended to force students to take the announcement seriously. Of course, an examination for the purpose of giving the teacher feedback on his teaching has a completely different significance (a surprise test, for example), and that is not our concern here.

In light of the foregoing, the approach underlying the theory of threat is that the very appearance of punishment in the legal system makes the act to which the punishment is attached appear forbidden and reprehensible in the eyes of society.

As is well known, in Jewish law it is accepted that for every offense, in order to punish one who violates it, there must be in the Torah both verses of punishment and verses of warning. The author of Sefer HaChinukh, in commandment 69, explains this as follows:

For mentioning the punishment in a commandment without a warning would not suffice for us. This is what our Sages of blessed memory always say: ‘A punishment we have heard of—but from where do we know the warning?’ The matter is that if no divine prohibition had come to us in the matter, and it were only said, ‘Whoever does such-and-such shall be punished in such-and-such a way,’ it would imply that anyone who wished could accept the punishment and not care about the pain involved, and transgress the commandment without thereby acting against the will and command of God, blessed be He. The commandment would then become something like a sale or purchase: whoever wishes to do a certain act may pay such-and-such and do it, or submit himself to suffer such-and-such and do it.

And that is not the intent of the commandments. Rather, God, for our good, has restrained us from certain things, and regarding some of them informed us of the punishment that will come upon us immediately, aside from the transgression of His will, which is harder than everything.

This is what they say of blessed memory everywhere: ‘He does not punish unless He first warned,’ meaning that God does not inform us of the punishment that will come upon us for transgressing a commandment unless He first informs us that His will is that we not do the thing for which the punishment comes.

From the words of the author of Sefer HaChinukh we learn that every punishment has an educational purpose. Punishment is never a merely formal act, that is, merely setting a price on a given act. Every punishment in Jewish law expresses the fact that there is here a violation of the will of the Holy One, blessed be He. It is worth noting that, despite the foregoing, the Torah does not take this for granted. If the Torah had in fact presented such an approach as self-evident, then it would have been enough for the Torah to write verses of punishment, and we would automatically have inferred that there is also a violation of the will of God here. From the very fact that the Torah everywhere needs to write a punishment and then add a warning as well, it would seem that although this is indeed the approach, it is not so simple, and it must be restated each time.[2]

If so, the punishments in the Torah generally express an educational approach, and not merely a technical desire to deter externally from doing certain acts. Admittedly, deterrence too is part of the conception of threat inherent in punishment, and that is the next discussion.

2. Deterrence. This is a conception parallel to the conception of threat, except that here the purpose of punishment is indeed understood as an attempt to prevent the commission of the forbidden act, and not to educate the citizen himself.

This conception already appears in Scripture: And all Israel shall hear and fear, and they shall no longer continue to do this evil thing in your midst (Deuteronomy 13:12; see also 19:20 and 14:13). Some explain on this basis the public character of punishment in Jewish law as well (the place of stoning was two stories high, and the hand of all the people participated in putting him to death, and so forth).

3. Vengeance. Punishment as vengeance is, at first glance, the giving of release to an instinctive impulse in man that he ought to overcome. Nevertheless, there are thinkers who have seen vengeance as one of the explanations for legal punishment. Society, or the injured party, takes vengeance on the offender through the law. There are thus two dimensions to the concept of vengeance in a legal system: (a) granting legal legitimacy to the injured party to avenge himself without incurring punishment; (b) clearly there is also here a dimension of regulating the aforesaid instinct. Without giving legal legitimacy to vengeance and setting clear boundaries for it, a person may come to commit acts that should not be committed in the course of venting his vengeful impulse. The purpose of punishment is to set the limits of vengeance.

Clearly, if vengeance can be carried out as such only by the injured party, then in this case punishment is directed not at the person punished but at the punisher. That is, the law gives the right to punish only to the one who was harmed. Another person may not punish a criminal out of vengeance for his acts. Of course, one may also view punishment by a religious court as vengeance, in which the court, as the agent of the public as a whole, avenges itself on the criminal.

In the Torah and in Jewish law there are references in both directions. There are verses that describe God as a jealous and avenging God or as the God of vengeance. Indeed, even in the punishments of the Torah one can see a dimension of vengeance, and the most prominent is an eye for an eye (Leviticus 24:19-20). Admittedly, the Sages determined that the punishment would be monetary, and this is precisely the aspect of restraining vengeance mentioned above, yet from the very formulation of the Torah it is clear that there is here a dimension of vengeance as well.[3]

Another prominent example is the law of the blood-avenger. With respect to one who kills unintentionally, the Torah provides that he must flee to a city of refuge, and so long as he has not gone there, the blood-avenger (a relative of the victim) may kill him without punishment. The Torah does, however, limit vengeance and provides that once the killer enters the city of refuge, the blood-avenger may no longer kill him.[4]

Thus far we have addressed the dimension of vengeance in punishment, which concerns primarily the injured party, or society as a whole. There is, however, a dimension similar to vengeance that relates to the offender himself, and that is the dimension of retribution.

4. Retribution. Punishment constitutes fitting retribution for the acts of the offender. Here there is a conception of rectification that answers the demands of justice, beyond the reasonable venting of the vengeance impulse of the injured party or his relatives that characterized the previous approach.

It is very difficult to understand the approach that sees punishment as sheer retribution, disconnected from vengeance in the foregoing senses. This can be seen from the definition of punishment as retribution, described by Haim Cohen as follows ([1], p. 684):

Advocates of the theory of retribution 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 if the order had been violated by the crime, and the scales must be balanced by means of punishment.

Some of them saw punishment not only as the duty of the state (to restore order to its place), but also as the right of the criminal, who, if he chose to offend, chose to be punished, and his choice is his right (Hegel). I fear we shall not find a criminal who would not gladly waive this right, but the emphasis is always on the duty of the state to punish…

No considerations are legitimate for mitigating punishments; indeed, the early criminologists held that all scales of punishment must be fixed and standing, graded in law according to the possible gravity of each and every offense, and no discretion should be given to the judge, lest he be tempted to partiality.

The theory of retribution is, in practice, a theory of punishment for its own sake: punishment is a sacred goal in its own right, and there is no point in seeking other goals. Not only that, but one must not mix or dilute this sacred goal with any other.

There is here a metaphysical conception of punishment, as though it were an end in itself. Some disorder exists in the world, its order having been disrupted by the crime, and the punishment restores it. Clearly that is also what Hegel, mentioned ironically in the foregoing passage, means to say. Since the punishment is derived from the very commission of the offense and not from additional considerations, the offender has, de facto, chosen to accept the punishment (although he would certainly prefer to waive it).

The great difficulty with such a legal approach, as can also be seen from Haim Cohen’s discussion there, is that from a rational perspective it is not clear where that disorder resides, and in what sense it indeed exists ‘in the world’ (and not merely in the soul of the injured party, which is what the approach of vengeance addresses). There are here metaphysical assumptions about spiritual dimensions in the world that are not in equilibrium, and this is difficult to understand in the context of a secular, modern civil theory of law.

Here, however, a central distinction can indeed emerge between a religious theory of punishment and a legal one. In a religious world there is certainly room for conceiving of sin as creating disorder in the world in spiritual senses, and consequently for conceiving of punishment as repairing and balancing that disequilibrium.

In the Torah and in Jewish law there is certainly a conception of retribution. Scripture says: for blood pollutes the land, and the land can have no expiation for the blood that is shed in it except by the blood of the one who shed it (Numbers 35:33). One sees clearly a conception of spiritual destruction and corruption that befalls the ‘land’ as a result of murder. The expiation that repairs the destruction and restores the order is the punishment. It is worth noting that the text continues: And you shall take no ransom for the life of a murderer who is guilty of death, for he must surely be put to death (Numbers 35:31). That is, from the very fact that the death penalty for murder is viewed as retribution, it follows that the judge may not grant leniencies in this matter, as described in the Haim Cohen passage cited above. More generally, one may say that in Jewish law there is generally no judicial discretion as to the severity of the punishment. The judge may only decide guilt or innocence, but the punishment is fixed in Jewish law and not left to his discretion. This fact itself points to a dimension of retribution in the halakhic conception of punishment. Compare in this regard Haim Cohen’s statement ([1], p. 693): ‘A major principle in criminal law is that the legislator sets only maximum punishments.’ In Jewish law this plainly is not the case.

Another clear example of such a conception is found in the law of conspiring witnesses. The Torah provides concerning them: you shall do to him as he plotted to do to his brother (Deuteronomy 19:19), that is, there is here exact retribution for their actions: as they sought to do, so shall be done to them.[5] The entire idea of measure-for-measure punishment, which appears in many additional contexts (for example: You wept a gratuitous weeping, and I will make it for you a weeping for generations, as punishment for the sin of the spies, which occurred on the Ninth of Av), points to an approach of retribution (and perhaps it also accords with the educational approach, as we shall see below in section 6).

In conclusion, I note that the discussion here shows that although the Torah and Jewish law do contain a conception of retribution, and indeed the severity of punishments in Jewish law is not subject to judicial discretion, one can nevertheless find additional approaches regarding the purposes of punishment. In other words, it is not correct that according to the theory of retribution there is no room for additional approaches, as Haim Cohen writes at the end of the foregoing passage.

5. Prevention. There is an approach that sees punishment as preventing the offender from returning to his sin. We note that what is at issue is prevention whose function is to help the offender, and 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 very clear examples. Haim Cohen discusses there imprisonment for a fixed term, which does not constitute prevention for the period after imprisonment. True prevention, apparently, would be achieved only by life imprisonment. One could, however, theoretically understand prison as educational, in which case the assumption is that after imprisonment the offender will not return to his former ways (see the next section). If that is indeed the case, then we certainly have effective prevention here. But, as Haim Cohen notes there, usually the offender does return to his prior behavior, and often even deteriorates during his stay in prison. That is, the process of prevention is not achieved through imprisonment, nor is the educational process. At most there is deterrence here (see section 2), and perhaps even threat (section 1).

Perhaps one can suggest here an important distinction that will contribute to understanding the idea of fixed-term imprisonment even according to those who advocate the theory of prevention.

Any punishment imposed for the sake of society requires justification in its own right as well. If the benefit of punishment were only societal, we could not justify harming one individual in order to benefit society (certainly not serious harm, and certainly where the benefit is unclear). That is, justifying punishment as crime prevention and protection of society is not sufficient. One must add that the defendant indeed deserves punishment in his own right. Only in such a situation may we harm him, since he deserves it, in order to benefit society.

It is therefore clear that imprisonment cannot be measured solely by the question whether it can prevent crime in the future and benefit society. We must also consider whether the offender deserves such a punishment. When society sentences an offender to imprisonment for a fixed term, there is a balancing of two considerations: the offender deserves imprisonment for a fixed term, but there is no justification for permanently depriving him of his liberty. Therefore, the consideration of prevention cannot by itself justify permanent imprisonment. We protect society only so long as we are entitled to harm the offender. Beyond that, we cannot harm him, even in order to benefit society. A brief discussion of this matter will be conducted at the end of the chapter.

Haim Cohen raises these difficulties in relation to punishment as prevention because he separates prevention from the approach of social defense (see below in section 7). He presents the latter approach as a position according to which society has no right to punish the offender, but only to protect itself. Here, by contrast, an approach is presented according to which society prevents the offender from sinning for the offender’s own sake and not for society’s sake. In order to understand this approach, we will unify these two conceptions into one, and for our purposes prevention and social utility are one and the same.

It is important to note that in a religious context there is no doubt that these are two different approaches. In a religious context there are many sins that do not harm anyone (offenses between man and God rather than between man and his fellow). Punishment for such sins does not stem from protecting society, but at most from an attempt to prevent bad influence upon it (so that other members will not be drawn to sin in the same way under the influence of the offender). In such a case there is clearly room to adopt an approach of punishment as prevention with respect to the offender himself. In the civil context, it seems to me, there is no room for such an approach, at least not exclusively.

Thus, in a religious context in which punishment appears as preventing the offender from future sin without relation to society, it is indeed hard to understand punishments of imprisonment. And indeed Jewish law has no such punishment. In Jewish law, prevention is always terminal.

In the Torah context one can see punishment as prevention only in the context of capital punishment. A clear case of prevention is the punishment of the rebellious and disobedient son, who is stoned. The Sages ask regarding the rebellious and disobedient son (Sifrei Deuteronomy, Ki Tetze, parashah 35):

Rabbi Yosei said: Is this one stoned merely because he ate a large portion of meat and drank half a log of wine? Rather, the Torah foresaw this one’s ultimate end and said: Let him die innocent rather than die guilty, for the death of the wicked is good for them and good for the world, while it is bad for the righteous, bad for them and bad for the world.

And Rashi (Deuteronomy 21:18) explained the words of R. Yosei as follows:

A rebellious and disobedient son is executed on account of his end. The Torah has penetrated to the end of his thinking: in the end he will finish his father’s money, seek what he has become accustomed to, not find it, stand at the crossroads and rob people. The Torah said: Let him die innocent rather than die guilty.

That is, the rebellious and disobedient son is killed ‘on account of his end,’ in order to achieve prevention of wrongdoing. It is not clear whether the protection here is of him or of society. From the language of R. Yosei it seems that the consideration is protection of him, and if so we have the theory of prevention. From Rashi it seems that the protection is of other people (that he not rob them), and if so we have the theory of social defense (see section 7).

6. Education and rehabilitation. This approach points to punishment as benefiting the prisoner, not only by preventing him from sinning in the future but also by re-educating him. One must distinguish this approach from the approach of threat, which is also educational (its element of deterrence was presented in section 2 and is not relevant here). Threat educates by its very existence in the law, whereas the educational punishment educates through its execution. For example, educational work in prison is educational punishment in this sense.

In the Jewish context, one can view the punishment of servitude as this type of punishment. A Hebrew slave who stole and has no means to pay back the theft is sold by the court as a slave, and with the money received for him the value of the theft is repaid to its owner. The sale causes him to live in a normative household and to accustom himself to a life of value without criminality. Therefore the master is commanded to treat his slave well, at times in an exceptional way (if he has only one pillow, he gives it to him). The purpose is to accustom him to regard himself and others as persons of value; that is, this is an educational punishment.

As I noted, the phenomenon of measure-for-measure punishment certainly also points to an educational tendency. To be sure, that seems more in the direction of threat, that is, the type and character of the punishment educate, rather than the actual carrying out of it. In the case of the Hebrew slave, the execution of the punishment is what educates, and therefore this is a clear example of such an approach.

7. Social defense. Here there is a conception of prevention, but only in order to protect society and not in order to prevent the offender himself from sinning. That is, this is punishment whose benefit is to society and not to the offender. One implication of this approach is the demand to confine a mentally ill person who is liable to harm society, even if we have no claim against him at all, that is, even if there is no dimension of guilt in his acts. Punishment for the sake of protecting society does not require guilt in order to be carried out.

Haim Cohen points to thinkers who argued that society has no right at all to punish the offender unless there is a social benefit here (society has a right to defend itself, not to punish). That is, there is an exclusive conception of punishment as protection of society.

Here too, it seems that there is a difference between a civil approach and a religious one. There is no doubt that the Holy One, as Creator of the world, has the right not only to protect society but also to punish the offender. Therefore, in a world of religious law it is unlikely that such an argument would arise. Nevertheless, despite these differences, social defense can certainly be one of the considerations of the religious court when it comes to punish, even in a halakhic world.

For example, Jewish law contains the rule that a religious court may flog and punish not in accordance with the strict law (see Maimonides, Hilkhot Sanhedrin, chapter 24, laws 4-10), that is, it can punish even where it lacks formal authority to do so, or with a punishment that does not exist in the basic halakhic framework. It seems that the primary reason for this power granted to the court is the need to protect society where the basic law does not do so.

Another halakhic example of this approach, as we saw above (in section 5), is that the rebellious and disobedient son is punished ‘on account of his end,’ that is, for the sake of social protection (at least according to Rashi).

8. There is another kind of approach to punishment as intended to restore what was disrupted to its proper state, that is, to repair the wrong. For example, one who caused damage must pay, or one who stole must return the stolen object to its owner.

This type of rationale does not appear in legal philosophy (see, for example, Haim Cohen [1] there). The reason is that this category ostensibly does not belong to criminal law at all, for what we have here is the restoration of property to its owner, or compensation, and not the punishment of the offender.

However, within the framework of Jewish law one can find in several places reference to acts of this kind as punishment. For example, at the beginning of tractate Bava Kamma in the Babylonian Talmud there is a discussion of the liability of one who causes damage to pay the injured party for what he damaged. The medieval authorities there (2a; see, for example, Tosafot there, s.v. ‘Ve-lo’) discuss whether one can derive such a punishment by logical inference, that is, on the basis of an a fortiori argument. The very raising of the question indicates that making good the injured party’s loss has the significance of punishment, for otherwise why connect it to the topic of deriving punishments by logical inference. Beyond that, in several places in the Talmud the rule of kim lei be-rabba minei (exemption from the lesser of two punishments to which an offender is liable) appears even with respect to restoration of theft or robbery, or compensation for damages (see, for example, Babylonian Talmud, Bava Kamma 70a, and many others). Again one can discern here a treatment of compensation or restoring property to its owner as a type of punishment.

In this context one should also note the law of the pursuer, which in Jewish law is sometimes treated as punishment (this seems to emerge also from Maimonides’ words in chapter 1 of Hilkhot Rotzeach). Again, one may say that there is here no dimension of punishment at all, but only prevention of harm or social disorder, for punishment always comes after the act.

Here too, as with monetary penalties, one can understand the halakhic treatment of the law of the pursuer as part of the penal laws on the same background as the treatment of damages compensation as part of them. If the purpose of the entire penal system is concern for social order, it is not surprising that these two categories also enter the general framework of penal law.

Thus far we have seen 8 approaches to the purpose of punishment. Some deal with benefit to society and to the offender himself, and some with preventing harm or with retribution. It should be noted that some of the aims of punishment understand punishment as addressed to the defendant (retribution, education), whereas some understand it as addressed to the public. The question is by what right we punish the defendant merely in order to benefit the public. As we saw in the discussion of imprisonment in section 5, it appears that all the arguments that understand punishment as addressed to the public and for its benefit assume that there is also a fitting justification for punishing the offender, for otherwise we could not harm one person for the benefit of others. This must be qualified by noting that one can sometimes harm an individual, even if he is not guilty, for the benefit of the public, but only where the benefit is immediate, proven, and necessary. Without these conditions, one may not harm the individual for the sake of the collective. The death penalty, for example, is very difficult to understand solely against the background of some kind of public benefit. In any event, it appears that there is a limit to the level of suffering we are prepared to cause an individual in order to benefit the public.[6]

It is worth noting that approach 7 apparently assumes the exact opposite: society has only the right to defend itself and not to punish offenders. Here we assumed that even the right of self-defense cannot stand unless there is also guilt in the offender. It seems, however, that there is no contradiction at all between the two approaches. Even the social-defense view, which assumes that there is no right to punish offenders except for the sake of protection, does not necessarily maintain that society may defend itself at any price, even by harming the innocent. Even according to that approach, it may be that some dimension of guilt must exist, but that guilt in itself still does not permit us to act ‘in the place of God’ and punish one who deserves it. Yet if the two reasons join together, guilt and the need for social defense, then punishment is certainly possible.

In several contexts throughout the chapter, differences emerged between the conception of punishment in civil law and a possible conception of punishment in the halakhic-religious system.

In our discussion of the theory of retribution (see section 4), striking differences arose between a religious theory of punishment and a secular-civil one. We saw there that in the halakhic world punishment is precise and fixed, and not a maximum punishment as in civil punishment theory. The theory of retribution in itself is not a reasonable theory in a civil world, but it is quite natural in a religious-halakhic world.

Another difference we saw concerns punishment for the sake of prevention that is not for the benefit of society but for the benefit of the offender (see section 5). In secular civil law the tendency is not to include in the statute book provisions that concern the citizen’s private sphere. Laws deal only with his rights and duties toward society and other people. By contrast, in a religious world there are many commands and prohibitions that do not concern other people at all, and therefore the punishment is directed not toward others but toward the offender himself. In laws of this type, it seems that the conception of punishment as prevention is for the sake of the offender and not for the sake of society (subject to the qualifications noted there, such as preventing others from sinning in the same way).

A further difference we saw between religious and civil theories of punishment concerns the right to punish beyond the need for self-defense against the offender (see section 7). In civil law there are approaches that deny society any right to punish at all and allow it only to defend itself. As I noted, in a religious-halakhic world it is unlikely that such an argument would arise. Clearly the Holy One has the right to determine a punishment for the offender, even if it has no social benefit. It should be noted that this argument is only against the exclusivity of social defense, but it is entirely reasonable that even in a religious world there would be such a component in the conception of punishment, as we saw in the examples (the rebellious and disobedient son and punishment not in accordance with the strict law).

In addition, we saw that in Jewish law restoring property to its owner, or compensating the injured party, as well as the law of the pursuer, are considered part of penal law (section 8), unlike the prevalent approach in civil law.

At the conclusion of the present chapter I would like to point to two additional differences between religious and civil theories of punishment, which will lead us to an additional theory of punishment unique to religious legal systems.

The first halakhic phenomenon is collective punishment. The Holy One visits the iniquity of fathers upon sons, and exacts communal responsibility from the collective for the individual. Beyond that, even in punishments imposed by a religious court we see that in the idolatrous city the court punishes even those who did not sin (women and children), at least according to some opinions. In the sugya of the idolatrous city there is a dispute precisely over the issue of collective punishment. In the world of civil law, it is very difficult to justify collective punishment of those who did not sin (except in extreme cases of necessary self-defense in the face of certain danger). In the halakhic world we see that collective punishment is at least a possibility.

The other difference lies in a strange halakhic phenomenon that appears in the words of Rabbi Judah the Pious, author of Sefer Hasidim, namely the disproportionality between the sin and the punishment (see Michael Abraham’s article [2], devoted entirely to this issue). In two places in Sefer Hasidim there is a claim that the severity of the punishment is not necessarily proportional to the severity of the offense. Such an approach seems illogical according to all the approaches presented above, and therefore it appears that there is here a different theory of punishment. This is not the place to elaborate on that subject, and therefore I will summarize only the main points relevant to our discussion.

The main claim is that the severity of the punishment is not proportional to the severity of the offense in terms of the suffering the punishment causes the offender, but some other relation between the punishment and the offense must exist. It appears necessarily that punishment is intended for the metaphysical repair of the offense. The nature of the punishment is derived from the way this spiritual repair operates, and therefore it is not necessarily expressed in the degree of suffering caused to the offender. It should be noted that this is indeed a variation on the approach of retribution, but it operates on spiritual planes. According to the approach of retribution, the severity of the punishment is clearly the parameter that repairs the imbalance in the world. In a religious world there is room for detailed structures of spiritual worlds, from which the character of the punishment for each offense is derived. The way the offense damages those spiritual worlds determines the response.

In practice, this is a sharp expression of the principle of measure for measure, though not in the sense of the severity of the punishment but in the sense of the character of the punishment. Usually the expression ‘measure for measure’ is used in this sense and not in the sense of severity or the degree of suffering (for example, in the expression ‘weeping for generations’ as against ‘gratuitous weeping’).

According to this approach one can also understand collective punishment, in which even those who did not sin are punished. According to these views, the entire city bears the punishment of the idolatrous city because there is here atonement and repair of the defect created by the very existence of a city all of whose inhabitants worship idols. An approach of metaphysical repair, as opposed to an approach of retribution, also makes it possible to understand this type of punishment.[7]

Another phenomenon that can be understood according to this approach is punishments of the type you shall remove the evil from your midst. There is here a dimension of retribution, but even more so one of metaphysical repair of the world. This can be seen especially in places where this principle serves to establish a duty to punish even animals that caused damage. In such cases there is no guilt at all, and therefore there is no room for the conception of retribution in the sense discussed in section 4. We are therefore compelled to explain this in terms of a theory of punishment that understands punishment as metaphysical repair.[8]

Thus, we find an additional theory of punishment, and we shall add it to the list presented in this chapter:

9. Metaphysical repair. An additional purpose of punishment that we have found, characterizing mainly religious-halakhic legal systems, is that punishment aims at repairing the world, or spiritual worlds. The fundamental difference from the approach of retribution (described in section 4 above) is that there is not necessarily any dimension of guilt here. Collective punishment, or punishment of entities that cannot bear legal guilt (animals), are two clear examples of this approach.

One can understand the surprising treatment we saw above, whereby compensating the injured party or restoring property to its owner is considered in Jewish law a type of punishment, within this framework. If indeed all punishment aims to restore the world to its order and repair the damages created by the offense, then it is not surprising that restoring the financial situation to its proper state can also be seen within that same framework as part of penal law, and so too with respect to the law of the pursuer, as explained above.

10. Punishment, especially in religious contexts, also has a dimension of atonement. A person who is punished gains atonement through his punishment. An atonement-oriented perspective is not necessarily connected with repairing the sin, and therefore it is not a legal aspect of punishment but rather an accompanying religious aspect. It is the ‘erasure’ of the sin from the sinner’s ‘account.’

At the beginning of Hilkhot Teshuvah, Maimonides states that all those liable to death penalties and lashes do not gain atonement until they repent and confess. In chapter 13 of Hilkhot Sanhedrin, Maimonides brings the duty of confession for one found liable to death, for it is the practice of all those put to death to confess (end of law 1 there). And in chapter 17, law 7 there: anyone who sinned and was flogged is restored to good standing.

This dimension of punishment appears to be merely an appendage to it, and is not presented, at least in Maimonides’ writings, as the very essence of punishment. From the expression in chapter 13 it appears that confession is merely ‘the practice of those put to death,’ and not a full-fledged obligation, and certainly not the essence of the punishment. The formulation in chapter 17 likewise indicates that one who is flogged also gains atonement, but this is not the essence of the punishment of lashes.

For this reason, I will ignore the dimension of atonement in punishment in the course of the discussion. This is certainly justified in light of Maimonides’ view as we have seen here, and as will also be presented below. The topic of atonement requires a broad discussion in its own right, and this is not the place for it.

B. Maimonides’ Conception of Punishment in the ‘Mishneh Torah’

In the previous chapter we saw a collection of purposes that can be proposed as explanations of punishment in general, and of particular punishments in particular. We also saw differences that may arise between punishment in a civil-secular framework and punishment within a religious legal system. We shall now try to examine Maimonides’ position in his halakhic writings on these issues.

In the course of the previous chapter we also saw concrete halakhic examples that point to certain conceptions of punishment in Jewish law. Naturally, Maimonides presents these punishments consistently in the wake of the Talmud, and therefore the general conclusions drawn in the previous chapter are valid with respect to Maimonides’ approach as well. A more detailed examination of his treatment of these examples will be conducted below. Here I will begin by trying to examine Maimonides’ direct discussions of the issues of punishment, even though these are generally relatively rare. Afterwards we will attempt to examine his views in specific contexts as well.

Principled discussions of the issue of punishment are found in Maimonides’ words in the introduction to his Sefer HaMitzvot, in root fourteen, where he determines how the establishment of barriers [= punishments] ought to be counted among the positive commandments. It seems that from his words there one can discern a consistent theory of punishment, and therefore I will begin the discussion with his remarks there.

In that root, Maimonides determines how punishments are to be counted within the enumeration of the commandments. After listing the types of punishments, Maimonides states that maintaining the ‘barriers,’ that is, the punishments, is a positive commandment. Indeed, these commandments are counted in his enumeration of the commandments among the positive commandments as follows: the four death penalties of a religious court are counted as positive commandments 226-229, and lashes as positive commandment 224. Punishments at the hand of Heaven are not counted as a commandment, because they are not imposed upon us. Maimonides also stresses that one should not count as a separate commandment each punishment for each offense individually, for if one did so, the number of commandments in our possession would rise to many hundreds beyond the accepted total of 613.

It is worthwhile examining Maimonides’ positions in light of parallel positions of other enumerators of the commandments on these issues. In the course of his discussion, Maimonides argues against the position of the author of Halakhot Gedolot, whom Maimonides understood as counting heavenly punishments within the enumeration of the commandments, and counting punishments as prohibitions, and so forth.

With respect to the view of Halakhot Gedolot, it is not clear whether that is indeed what he intended, and some have suggested that Maimonides had before him a different version of that work. From the text in our possession it would appear that Halakhot Gedolot counts only the warnings, that is, the prohibitions themselves, and not the punishments for them. The classification of the commandments is made according to the punishments attached to them, but what is counted are the commandments and not the punishments. Nachmanides too, in his glosses to this root, states that this is the position of Halakhot Gedolot.[9]

It is interesting to note that Nachmanides himself holds a different view on this subject. In his opinion all punishments should be counted within one positive commandment: you shall remove the evil from your midst. One of the proofs he brings for this position is that Jewish law determines that if one cannot execute someone with the mode of death to which he is liable, one executes him with any other death that is possible (see Babylonian Talmud, Bava Metzia 31b, and Maimonides, Mishneh Torah, Hilkhot Sanhedrin 14:8).

R. Saadia Gaon has a completely different position on this subject. He counts the punishment for each capital offense as a separate commandment in his enumeration of the commandments, in addition to counting the prohibitions for which one is punished as separate commandments.

Let us now try to understand the conception underlying Maimonides’ position on punishment, as it emerges from examining his words in root fourteen and from comparing them to the other methods of enumeration mentioned above.

First, it is interesting to note the terminology Maimonides uses for Torah punishments: ‘barriers.’ The very terminology suggests a conception of punishments as meant to be barriers safeguarding observance of the commandments. The term ‘barrier’ parallels the term ‘fence’ that Maimonides uses at the beginning of Hilkhot Mamrim to indicate one of the roles of the Great Court: preventing wrongdoing by instituting prohibitions that serve as a fence. A fence is a barrier before one who attempts to cross it and enter forbidden territory.

The punishments, at least according to the terminology chosen by Maimonides, constitute a barrier before offenders. There is here a conception that sees punishment as serving the role of preventing criminality. This is not atonement, nor metaphysical repair, nor education, nor the other approaches we saw above.

It is very plausible to understand these words of Maimonides as issuing from a position that advocates punishment as deterrence, whether directed toward the individual offender or toward society (or both). That is, one may propose as an interim conclusion from our discussion thus far that Maimonides advocates approach 2, in the terms of the previous chapter.

There is also room to understand Maimonides’ terminology as representing a conception of social defense (approach 7), or prevention (approach 5). In any case, it seems quite clear that we have here a position belonging to the family of deterrence approaches. The purpose of punishment is to prevent criminality, whether for the benefit of the offender (in the present or in the future) or for the benefit of society.

Perhaps against this background one can understand the puzzling position of Halakhot Gedolot, which also counts heavenly punishments in its enumeration of the commandments. At first glance, Maimonides is right to wonder about him: what place is there to view such matters as commandments? Commandments are supposed to be imposed on human beings, either to command them to perform certain acts or to refrain from others. In light of what we have said here, perhaps one can understand the position of Halakhot Gedolot by reflecting on the quotation from his words that Maimonides cites there:

And from it there are thirty-two matters concerning which He, may He be exalted and glorified, informed us that He Himself will deal with them, not we; He stands guarantor over them all.

Maimonides there adds the following explanation of these words:

By his words ‘and from it’ he means from the subject included under that heading; and the thirty-two matters are the twenty-three cases liable only to excision, and the nine cases liable to death at the hand of Heaven, as he listed. And by his words ‘He stands guarantor over them all’ he means that He, may He be exalted, guarantees that He will cut off this one and put that one to death.

Halakhot Gedolot apparently understands that the religious court has a basic obligation to intervene whenever an offense is committed, since it is its duty to prevent it. In those cases where the Torah assigns punishments at the hand of Heaven, one can understand the command to the court as requiring it to refrain from intervening and not to punish the offender. The Torah informs us that in these cases the Holy One is the guarantor, that is, the one responsible for preventing the wrongdoing. This is perhaps the reason Halakhot Gedolot found it appropriate to count punishments at the hand of Heaven in the enumeration of the commandments.[10] Maimonides, to be sure, does not accept this approach, for he holds that no practical command is imposed on the court here, but in light of our discussion one can certainly understand the position of Halakhot Gedolot as well.

For comparison, let us take the position of Nachmanides, who counts all punishments as one positive commandment: you shall remove the evil from your midst (Deuteronomy 17:7). Here we have a position that advances a different theory of punishment: the purpose of punishment is to eradicate evil.[11] One could, to be sure, understand this similarly to Maimonides, namely that punishment will prevent the sin and thereby eradicate the evil (Let sins cease, not sinners—see Babylonian Talmud, Berakhot 10a). But from the totality of Nachmanides’ words it seems that this is not so. He counts the punishment of lashes as a separate commandment, and only the death penalties are all gathered by him under one commandment. It therefore seems that his intention is literal: to eradicate evil by killing the offender. Lashes, which prevent wrongdoing, are counted as a different and separate commandment, because they represent a different theory of punishment: here one may understand the punishment as deterrence.

Against this background one may perhaps understand Nachmanides’ words in his commentary to the portion of Noah (Genesis 9:4, and compare his commentary to Genesis 8:1), where he speaks of the obligation to eradicate even animals that sinned from the world. Here clearly there is no dimension at all of punishment in its usual sense, for animals are not subjects of judgment, whether legal or moral. There is here a metaphysical conception of repairing spiritual damage, called ‘evil’ in Nachmanides’ terminology.[12]

One should comment regarding Maimonides’ position, which understands even the death penalties as deterrent punishments, that the death penalty in particular is harder to understand in those terms. Once the offender is put to death, there is, apparently, no one left to deter. To be sure, there is here an element of deterrence prior to the commission of the act (whose actual execution is necessary only in order to make the deterrence effective, as we saw in the previous chapter in the discussion of the threat approach), or a deterrent effect toward the rest of the public, against potential offenders in the future. As we saw in that discussion, the death penalty in general is very difficult to understand as sheer deterrence, for it is an irreversible step taken against one member of society, the benefit of which is to society and not to him himself. In Maimonides, however, we see that this can nevertheless be done in order to deter. It may be that his position is that society’s right to defend itself, or to deter potential criminality, overrides the right of the individual, even his right to live.

In any event, from Maimonides’ position, which understands the death penalties as deterrence, one may infer that he does not mean to prevent future repetition of the act by that same offender. That is, we may rule out approach 5 (prevention for the benefit of the offender himself). In understanding Maimonides’ position, what remains possible are approaches 2 and 7.

It should be noted that the command you shall remove the evil from your midst does appear in Maimonides as well, but unlike in Nachmanides it does not represent a general theory of punishment, and therefore it does not concern us here.

Another point that can be clarified in light of Nachmanides’ position is that the duty to punish is imposed upon the religious court. Clearly, the duty to eradicate the offender from the world is not imposed upon the offender himself. If we compare this with the approach of Halakhot Gedolot, which does not count punishments as commandments at all, we see clearly that this is the opposite pole. Halakhot Gedolot does not understand punishment as a duty incumbent upon the court, but as part of the prohibitory command itself (the warning). A certain detail within the specific commandment is the punishment given for failing to observe it. There is no general duty on the court to prevent criminality, nor a duty to eradicate evil. It is very plausible that Halakhot Gedolot understands punishment as one detail within the commandment, a position that accords well with a theory of punishment derived from the approach of metaphysical or social repair. In such an approach one can go so far as to say that the fundamental duty to be punished for the offense falls upon the offender himself. He is the one who must repair the consequences of his act. Clearly, in practice the punishment is imposed and carried out by the court, but in that case it functions as his agent.

At the opposite extreme we find R. Saadia Gaon, who, as stated, counts all the warnings and all the punishments in parallel. Here there is a clear expression of the disconnection between the offense and the punishment, and it seems that the punishment is understood as something separate, and probably as a duty incumbent upon the court.

One can formulate this dispute as follows: Halakhot Gedolot understands that the court carries out the punishment, whereas Nachmanides holds that the court creates the obligation of punishment. One implication of this dispute could concern the conception of punishment in our own time. As is well known, in our time there are no ordained judges, and therefore judges lack authority to punish. According to Nachmanides it would seem that the modern offender is not liable to punishment at all, whereas according to Halakhot Gedolot it is certainly possible that he is liable to punishment but there is no one to carry it out. With monetary penalties (fines), a halakhic implication may arise in the question whether the injured party may seize the offender’s money (which would have been paid to him had there been expert judges).

This point may perhaps hint to us at an additional point that arises in the discussion of root fourteen. We saw that Maimonides insists that punishments are positive commandments, and duties imposed upon the religious court would naturally be formulated as positive commandments. This is a commandment directing the court to take active action. To this, as stated, Nachmanides also agrees, and indeed he too counts punishment as a positive commandment. By contrast, if we understand punishment as the offender’s atonement, there is room to conceive of it as a prohibition, since one may understand that an offender who has not atoned for his act violates a prohibition. This is not a necessary conception, but it is certainly possible. We saw that with respect to Halakhot Gedolot the commentators disputed whether punishments are not counted at all, or whether they are prohibitions (as Maimonides understood him). With respect to R. Saadia Gaon as well, R. Yerucham Fishel Perla states there that punishments are prohibitions. In addition, R. Saadia also details the punishments and counts separately each punishment for each offense (at least with respect to death penalties). It seems that R. Saadia understood, like Halakhot Gedolot, that punishment atones or repairs the offense, and therefore each offense has a different kind of repair and must be counted separately.[13] The separation of the punishment from the warning in R. Saadia’s enumeration may perhaps indicate that he understands punishment as the duty of the court, that is, the court’s role is also to help the offender achieve atonement. In this sense (that the duty is on the court), R. Saadia agrees with Maimonides, but his theory of punishment is different (repair and not deterrence, at least with regard to death penalties).

Thus, there is here a hint that Maimonides understands punishment as a duty incumbent on the court, and therefore he conceives of it as positive commandments. This fits well with a theory of punishment as deterrence, as we saw above in Maimonides’ view, and with the terminology of ‘barriers’ that Maimonides uses to describe punishments.

2.

Another basic source for examining Maimonides’ position on punishment is found in his commentary to the Mishnah in tractate Avot, chapter 2, mishnah 1.[14] The mishnah there states: ‘Be as careful with a light commandment as with a weighty one, for you do not know the reward given for commandments.’ Maimonides writes there (and R. Yonah explained similarly):

As for the prohibitions, Scripture explained the punishment for each of them, apart from a few, and for some of them it prescribed death penalties, for some excision and death at the hand of Heaven, and for some lashes. From the punishments of all the prohibitions we know which of them are more severe and which are less so, and they are eight grades… From these grades we know the gravity and lightness of the sin.

But with the positive commandments, the reward for each one before God was not explained—and all this so that we should not know which commandment must be guarded especially carefully, and which commandment is of lesser rank than it…

From Maimonides’ words it is clear that punishments constitute a good measure of the gravity of the offense, that is, that the severity of the punishment is proportional to the severity of the offense.

By contrast, the author of Sefer Hasidim points in two places to a disproportionality between the severity of the punishment and the severity of the offense, that is, he holds that even regarding prohibitions there is the same obscurity that exists regarding positive commandments.

Maimonides’ approach, which resembles the prevalent approach in the Talmud and its commentators, points to proportionality between the gravity of the offense and the severity of the punishment. This position accords well with the theory of deterrence that we found above in Maimonides’ words in root fourteen. The degree of deterrence is in proportion to the gravity of the offense. To be sure, according to other theories of punishment as well one could understand why such proportionality should be required. It is specifically the position of Rabbi Judah the Pious that demands explanation. It is not clear how a theory of punishment that does not yield proportionality between the gravity of the punishment and the gravity of the offense is possible.

Michael Abraham ([2]) discusses this point at length, and explains that Rabbi Judah the Pious’ approach is one that advances a religious theory of punishment, that is, a conception of punishment as metaphysical repair. Maimonides, by contrast, advocates a more rationalistic approach and understands punishment as deterrence. Therefore it is clear that according to his view there must be proportionality between the severity of the punishment and the gravity of the offense. On this subject see also the previous chapter (in the paragraph preceding approach 9).

3.

In Hilkhot Sanhedrin, chapter 2, law 12, Maimonides writes as follows:

A person may administer the law to himself if he has the power to do so. Since he is acting lawfully and according to Jewish law, he is not required to trouble himself to bring the matter to court, even if there would have been no loss to his property had he delayed and come to court. Therefore, if his opponent brought him to court and they examined the matter and found that he had acted according to Jewish law and had judged truly on his own behalf, they do not overturn his ruling.

From Maimonides here we see that if there is a case between two people involving a monetary issue, then either of them may administer the law to himself, and there is no need to come to the religious court.

It seems from here that the court’s role is not to settle disputes between people, unless they cannot manage by themselves. In the terminology of the previous chapter, one could say that punishment whose goal is to restore the situation to what it was before the offense is not the direct role of the court. That is an obligation incumbent upon anyone who can do so. The court must punish in order to deter, and that is the sole meaning of punishment according to Maimonides, and that is the role of the court. Restoring a social, monetary, or other situation to its proper state is not conceived as punishment, but as a basic obligation deriving from the very definition of the act as an offense.

If so, it seems that we can rule out conception 8 from the previous chapter, namely understanding punishment as restoring social order to its place. There is, to be sure, conception 4, which likewise speaks of restoring order to its place, except that there the order is metaphysical-spiritual. That cannot be learned from Maimonides’ words here, for in the case of murder (done intentionally), where one must ‘atone for the land’ (as we saw there), no one has authority to do so except the court. By contrast, where the matter is monetary between two people, one may administer the law to himself and take from the other what is due to him, provided he has acted lawfully.

The question that arises here concerns fines. Does Maimonides mean to say that even in laws classified as fines a person may administer the law to himself? What defines a fine is that it is a monetary payment imposed on a person not as compensation for damage he caused, but as punishment for his act (and even if the money goes to the injured party, this does not make it compensation). Unlike the previous case, this is a monetary punishment. The Netziv wrote in Ha’amek She’elah, She’ilta 2, sec. 1 (cited in Sefer HaMafte’ach to the Frankel edition of Maimonides on this law), that Maimonides did not mean fines here, but only ordinary monetary law.

This seems to reinforce the foregoing claim in Maimonides’ words. Here Maimonides speaks only of restoring order to its proper state, and in this sense the court has no unique role. In every sense of punishment, the exclusive authority is entrusted to the court, and no one has permission to administer such law to himself.

4.

In Hilkhot Sanhedrin, chapter 24, law 4 and onward, Maimonides discusses the issue of ‘a religious court may flog and punish not in accordance with the strict law.’ There he uses principled expressions concerning punishment, and therefore we must examine what emerges from his words there. In law 4, which opens the discussion, Maimonides writes as follows:

A religious court has authority to flog one who is not liable to lashes and to execute one who is not liable to death—not in order to transgress the words of the Torah, but to make a fence for the Torah. And whenever the court sees that the people have broken through in a matter, it has authority to make a barrier and strengthen the matter as it sees fit. All this is an emergency measure; it is not to be established as law for all generations.

Maimonides continues with many examples—concerning excommunication, quarrelling, confiscation of property, and the like—which the court must do even where the strict law does not require it. At the end of his remarks Maimonides adds that acts of this kind are problematic, not only because there is no formal obligation to do them, but because there is also an aspect of prohibition in doing them. Thus he writes in law 10:

All these matters depend on what the judge sees as appropriate for that person and as required by the exigencies of the time. In all these matters, his acts must be for the sake of Heaven, and human dignity must not be light in his eyes, for he is overriding a rabbinic prohibition; all the more so with regard to the dignity of the descendants of Abraham, Isaac, and Jacob who uphold the true faith. He must be careful not to destroy their dignity except for the sole purpose of increasing the honor of God. For whoever disgraces the Torah is himself disgraced in the eyes of people, and whoever honors the Torah is himself honored by people; and the honor of the Torah consists only in acting according to its statutes and judgments.

In carrying out punitive acts not according to the strict law, one can see contempt for human dignity, contempt for the Torah (since one is not acting according to it), and contempt for Judaism. Despite all this, Maimonides rules here (following the Talmud) that the judges are obligated to fence breaches in religion and to make a fence for the Torah even by these problematic means.

This punishment is clearly for the purpose of fencing breaches, in keeping with what we saw above—that Maimonides’ conception of punishment is primarily for deterrence and the preservation of social order. It is worth noting that Maimonides limits the permission (and duty) to punish not according to the strict law to cases where ‘the people have broken through in this matter,’ meaning that the offenses in question are not merely the possession of isolated individuals but a public problem.

It should be emphasized that the social character is significant both in the realm of offenses between man and God and in the realm of offenses between man and his fellow. Maimonides brings examples of both types here: on the one hand, riding a horse on the Sabbath (law 4), and on the other, dealing with a violent person by means of a monetary penalty (law 6).[15]

It seems from here that punishment, or at least the type of punishment under discussion here, has a role that is primarily social: protecting the character and image of society. It should be noted that in the Talmudic sources for these laws it is difficult to see any hint of this approach (see, for example, Babylonian Talmud, Yevamot 90b). It seems that this is an interpretive addition of Maimonides.

In light of this, one must examine the nature of punishment carried out under the laws of the Torah. In ordinary circumstances, apparently, there should never have arisen a situation in which we would require punishment not according to the strict law. If the ordinary punishments were sufficiently deterrent, no situation would arise that required us to innovate additional punishments. At first glance, this seems to present an approach contrary to the theory of deterrence that emerged from other places in Maimonides.

It seems, however, that this problem is only apparent. Most punishment ‘not according to the strict law’ addresses problems of lack of authority and lack of sufficient evidence. There are situations in which, because of secondary halakhic constraints, there are no judges with penal authority, or the rules of evidence do not allow punishment, and therefore emergency situations of this kind arise that require exceptional punishment. These very exceptions testify to the rule. The regular punishments of the Torah serve deterrent purposes, and where they are insufficient we are commanded to reinforce them by exceptional means. These laws specifically confirm the claim that Maimonides’ theory of punishment is based on deterrence and social defense.

It is important to note, however, as I already remarked, that what stands out here is more the social dimension of deterrence, and less the private deterrent dimension (that which is for the benefit of the offender himself, as the deterrence approach was defined in the previous chapter).

There is here a combination of social defense and deterrence. Usually social defense is intended to protect certain individuals in society from other individuals who threaten to harm them. Here we see that the protection is directed mainly against the influence of criminal individuals upon normative individuals. The concern is not that certain people will be harmed, but that they too will become offenders. Therefore, when a criminal phenomenon becomes normative in society, we employ punitive measures ‘not according to the strict law.’

Punishment not according to the strict law deters the offender, but the deterrence is aimed neither at his own benefit, nor at preventing harm to other individuals in society, but at preserving the character of society. It is still not clear whether Maimonides thinks this is the purpose of all Torah punishments, or whether this is a special emphasis regarding punishment not according to the strict law.

It is very plausible that ordinary punishment is directed to all types of deterrence and social protection—both for the benefit of the offender and for the benefit of others, and also for preserving the social character. Actions not in accordance with the ordinary law, which are the subject of the present discussion, are justified according to Maimonides only where the third criterion exists (preserving the character of society). This is especially true in light of the foregoing remark that the social criterion is not stated explicitly in the Talmudic sources and seems to be Maimonides’ own addition. It seems that this itself is what moved him to understand the matter in this way. There must be a good reason to permit going beyond the bounds of Jewish law, which otherwise allows punishment only according to the rules permitted by Jewish law. Not every situation in which there is a person who deserves punishment permits a departure from Jewish law; for if it did, then for every rabbinic prohibition we would have to stone the transgressor, as with the man who rode a horse on the Sabbath. In order to innovate an exceptional punishment, we must identify special circumstances beyond the ordinary circumstances of punishment. Those circumstances, according to Maimonides, are connected with preserving the social character.

Beyond these sources, in the Mishneh Torah I found only specific discussions by Maimonides of issues of punishment, that is, discussions of punishment for particular offenses, not of the theory of punishment in general (in the next chapter we will see principled discussions found in the Guide of the Perplexed). Most of these discussions are not direct statements about the nature of punishment, but from the way Maimonides rules in the various cases one can infer additional penal approaches present in his work.

We shall now turn to examine the specific discussions, especially those relating to the examples brought in the previous chapter (the blood-avenger, the rebellious and disobedient son, the idolatrous city, and so forth), which may indicate additional penal approaches that emerge in Maimonides’ halakhic doctrine, at least in those specific contexts.

5.

The next source we will discuss is the punishment of a murderer, both intentional and unintentional. In chapter 1 we saw that this law is naturally interpreted as punishment for the sake of vengeance. Vengeance, unlike retribution, was defined there as the legitimate release of the justified anger of the person injured by the offense, and in this case of his relative (the blood-avenger).

The law of the blood-avenger applies both to one who murders intentionally and to one who kills unintentionally. In the context of intentional murder, the role of the blood-avenger is more limited, as Maimonides defines it in Hilkhot Rotzeach, chapter 1, law 2:

It is a commandment upon the blood-avenger [to kill the murderer], as it is said: ‘The blood-avenger himself shall put the murderer to death’… If the blood-avenger does not wish to do so, or is unable to kill him, or if he has no blood-avenger, the court puts the murderer to death by the sword.

From Maimonides’ language it appears that this is not a legitimate release for the wrath of the blood-avenger (the victim’s relative), but that the Torah commands him to be the one who kills the murderer. Of course, in the case of intentional murder the murderer is put to death in any event, but ideally the blood-avenger is commanded to be the one who executes the punishment.

We do not see vengeance here, to be sure, but we certainly do see retribution, or metaphysical repair. Without a reason of that kind it is hard to see why specifically the blood-avenger should be commanded to kill the murderer, and not the court, as with any other punishment.

It is interesting to note that the Kesef Mishneh, ad loc., cites a source from the Talmud (Babylonian Talmud, Sanhedrin 45b) in which the court’s agent appointed to kill the murderer in place of the blood-avenger is described as an alternative blood-avenger. That is, the entire matter of punishment in such a case is ‘redemption of blood,’ a metaphysical-moral repair, whether the executor is the biological blood-avenger or an emissary of the court.

In law 1 Maimonides cites as the Torah source for killing the murderer by the sword the verse vengeance shall surely be taken, terminology that certainly points to a punishment of vengeance, repair, or retribution.[16]

This claim regarding Maimonides’ approach is strengthened by what Maimonides writes in law 4, where he brings the law that one may not take ransom for the life of the murderer and thereby exempt him from punishment:

The court is warned not to take ransom from the murderer, even if he gives all the money in the world, and even if the blood-avenger wishes to release him, for the life of the slain is not the property of the blood-avenger but the property of the Holy One, blessed be He, as it is said: ‘You shall not take ransom for the life of a murderer.’ There is nothing about which the Torah is more strict than bloodshed, as it is said: ‘You shall not pollute the land,’ for blood pollutes the land.

Again we see that this is not vengeance in the sense of the rights of the blood-avenger, but an obligation of metaphysical-moral vengeance, or retribution. The blood-avenger is not the owner of the slain person’s life, and therefore he is not authorized to waive the carrying out of the punishment.

Beyond that, we see that Maimonides emphasizes the spiritual-metaphysical damage caused by the act of murder, and the purpose of the punishment is to repair that damage. Again we see here an approach to punishment that is not only for the purpose of retribution upon the murderer, but also for the purpose of metaphysical repair of the ‘pollution of the land’ (see chapter 1, where this example was brought in order to illustrate the approach of retribution and metaphysical repair).

On this topic it is interesting to examine Maimonides’ words in chapter 4, law 9, where he rules that one who murdered his fellow and we have no formal way under the regular law to execute him is placed in a narrow cell and fed food that bursts his belly. Maimonides explains that this law applies only to a murderer, even though there are graver offenses, because this offense most damages the settlement of the world. Presumably he means that for this reason we must punish the murderer as vengeance and not only as deterrence or by virtue of the ordinary reasons for punishment; there is no need to elaborate here.

For comparison, unlike this position of Maimonides, the Mishneh LaMelekh there cites the view of Rashi, who holds that there is no commandment upon the blood-avenger, but only permission. If so, in this case it can certainly be interpreted as the legitimate venting of the blood-avenger’s anger, which in chapter 1 was called the approach of vengeance.

In Maimonides’ Hilkhot Rotzeach, the section dealing with one who kills unintentionally is also discussed. In that context, the role of the blood-avenger is much more significant, for only he himself has the right to kill the manslayer. If he does not kill him, or if the manslayer is in exile in the city of refuge, there is no death penalty upon him at all.

In light of these differences, an interpretation in terms of vengeance is more compelling here than in the case of intentional murder. The Torah allows the blood-avenger to kill the murderer of his relative as a legitimate release of his anger.

In chapter 5, law 9, Maimonides presents the law of one who kills unintentionally and writes as follows:

If a blood-avenger kills an unintentional killer outside the boundary of his city of refuge, he is exempt, as it is said: ‘He has no sentence of death.’

The entire structure of the laws in Maimonides suggests that exile to the city of refuge is a punishment for the unintentional killer, and not merely protection from the blood-avenger (see also chapter 5, law 1, and chapter 6, law 4). The law that the blood-avenger is forbidden to kill him inside the city of refuge is secondary. Maimonides formulates it inversely: if the blood-avenger killed him when he left the city of refuge, he is exempt from the death penalty. This implies that in Maimonides’ view there is here a mitigation of punishment, but the act in itself is not desirable.

By contrast, the aforementioned Mishneh LaMelekh cites that Rashi’s view is that it is a commandment for the blood-avenger to kill him (so long as he is not in the city of refuge). There are also views that see this as merely permitted. Maimonides, as we have seen, adopts the strictest possible interpretation of this passage, ruling that it is a forbidden act, but that the one who does it is exempt from punishment.

Here it seems clear that this is nothing more than a legitimate release for the blood-avenger’s anger, and the legitimacy is only partial (it merely exempts him from punishment). According to Rashi, by contrast, there is specifically a commandment for the blood-avenger to kill him, and this of course again prevents an interpretation in terms of vengeance and leads to an understanding of this punishment as retribution or metaphysical repair (as we saw in Maimonides with respect to intentional murder).

It should be noted that in the passage of the unintentional killer one might, at first glance, also see an additional dimension of punishment, namely the educational-rehabilitative dimension. At the beginning of chapter 7, Maimonides brings the law that if a student is exiled, his teacher is exiled with him. Yet from Maimonides’ formulation it emerges that the reason is that the lives of those who seek wisdom without study are considered like death; that is, we do not wish to kill him, but only exile him. This implies that we have here only protection of the rights of the exile and not an attempt to educate or rehabilitate him. One must remember that although Maimonides understands exile as atoning, in the end we are dealing here with an inadvertent offense, and therefore it is hard to see here an obligation of rehabilitation and education (perhaps education in caution, so as to avoid negligence). It may be that this is why Maimonides formulates that law as he does.

Throughout chapter 8, Maimonides speaks of the obligation to establish cities of refuge, as well as a series of obligations concerning making it easier for the unintentional killer to reach those cities. In law 6 there Maimonides rules that a court that was negligent in this matter is as though it had shed blood. Again we see that according to Maimonides the blood of the unintentional killer is not permitted, and in fact his killing is murder, except that if the ‘murderer’ is the blood-avenger he is exempt from punishment. This is another expression of the fact that we do not permit the blood-avenger to kill the murderer, but only mitigate his punishment if he does so. This is a clear indication of the approach of vengeance, or of reasonable emotion-release (relatively speaking) that we are willing retroactively to tolerate.

Against the background of all the foregoing, one should note Maimonides’ language in his discussion of Sabbath violation in order to save lives, in Hilkhot Shabbat, chapter 2, law 3: for the laws of the Torah are not vengeance in the world. To be sure, this is not a direct discussion of a theory of punishment, but it certainly expresses an attitude that recoils from the concept of vengeance, especially where bloodshed is involved (see further Lorberbaum [4], and below in chapter 3). See also Sefer HaMitzvot, prohibition 317 (not to curse a deaf person), where Maimonides writes that cursing brings the soul of the curser to vengeance and anger, which are improper traits. Regarding the Torah’s general attitude toward vengeance, see Haim Cohen [1] in his discussion of the approach of vengeance.

6.

Another source for the approach of vengeance in Jewish law is found in Maimonides at the beginning of Hilkhot Chovel uMazik. There Maimonides discusses one who injures his fellow, about whom the Torah states that the law is an eye for an eye. Although the Sages expounded that the intention is monetary payment in place of the injured eye, Maimonides takes pains to explain why the Torah adopted this language. In law 3 there he writes:

That which is said in the Torah, ‘As he has inflicted an injury on a person, so shall it be inflicted on him,’ does not mean that we injure this person as he injured his fellow, but that he deserves to lose a limb or be injured as he did; therefore he pays for the damage he caused. And it also says: ‘You shall not take ransom for the life of a murderer’—it is only for a murderer that no ransom is taken, but for the loss of limbs or bodily injuries ransom may be taken.

From Maimonides one sees that the money is a substitute for a bodily injury penalty upon the injurer himself.[17] There is here a measure-for-measure punishment, whose purpose can be vengeance, and perhaps also an educational purpose, or repair and retribution (as I mentioned in the discussion in the previous chapter regarding measure for measure).

7.

Another example discussed in the previous chapter is that of conspiring witnesses. The law of conspiring witnesses applies where false witnesses come and try to pin guilt on an innocent person. In such a situation the Torah provides you shall do to him as he intended to do to his brother, that is, they receive the same punishment they sought to have the court impose on the defendant.

Here again there is measure for measure in the strongest possible form, and therefore one can discern here vengeance, education, or retribution, just as in the case of an eye for an eye. Clearly there is also deterrence here, but the specific form of deterrence chosen for this case points to additional purposes of punishment in this context.

In the law of conspiring witnesses one sees further aspects of punishment. For example, Maimonides writes in chapter 18, law 7:

Conspiring witnesses require a public proclamation. What is their proclamation? We write and send to every city: So-and-so and so-and-so testified thus-and-such and were exposed as conspiring witnesses, and we executed them, or they were flogged before us, or we fined them such-and-such a number of dinars, as it is said: ‘And those who remain shall hear and fear.’

There is here a clear dimension of public deterrence, that is, the purpose of both the punishment and the public announcement is, among other things, to deter others from doing the same. In Sefer HaMafte’ach in the Frankel edition, a note is brought from several commentators who observed that Maimonides added to the Talmud on this issue, for from the Talmud there emerges an obligation of announcement only with respect to death, whereas in Maimonides this obligation appears in every case of conspiring witnesses who are punished.

It seems that the law of conspiring witnesses is unique in this sense, because the duty of public announcement in the context of punishments is rare (it exists also with the inciter, the rebellious and disobedient son, and the rebellious elder; see Maimonides, Hilkhot Mamrim, end of chapter 3). According to Maimonides, the duty of announcement stems from the very fact that they are conspiring witnesses, with no connection to the content of the false testimony (see my remark above). The reason is apparently the unique problematic nature of false testimony. The spread of the scourge of false testimony is a danger to the entire rule of law, and as such to the entire halakhic-legal system. Again we see that a social consideration determines special boundaries of punishment in Maimonides’ halakhic doctrine.

8.

Another example mentioned in the first chapter is the rebellious and disobedient son who is judged on account of his end. Here there is a clear case of protecting the public, for the boy himself is not liable to death, as we saw in the tannaitic midrash quoted in the previous chapter. The reason for killing him is that in the end he will ‘rob people.’

The case of the rebellious and disobedient son is also special in another respect. From the laws in chapter 7 of Hilkhot Mamrim it emerges that the possibility that such a son will actually be punished is purely theoretical. The constraints imposed on the court when it comes to rule that a youth is a rebellious and disobedient son are almost impossible. Not for nothing does one opinion in Babylonian Talmud, Sanhedrin, say that ‘there never was and never will be a rebellious and disobedient son.’

If so, this is a clear case of the type of ‘punishment’ that in chapter 1 we called ‘threat.’ The very existence of the punishment in the statute book is meant to educate us not to arrive at the state of a rebellious and disobedient son. The actual execution of the punishment, as we saw in that discussion, is only a necessity for the effectiveness of the threat, and is not a value in itself.

If we ignore the theoretical nature of the passage of the rebellious and disobedient son, we can understand his punishment also as preventing future criminality. The killing here comes both to protect the public and to prevent future offenses.

In a certain sense every death penalty is a punishment that prevents future offenses, but, as we saw in chapter 1, it is difficult to understand it as a punishment whose purpose is precisely that. There is no logic in understanding the death penalty as a punishment for the benefit of the punished person, for he will no longer exist after the punishment is carried out. Therefore it seems that death penalties, at least those in which the defendant’s acts do not truly warrant death, should be understood as protection of society.

9.

At the beginning of chapter 3 of Hilkhot Geneivah, Maimonides brings the rule of kim lei be-rabba minei with respect to a thief and with respect to one who damages another’s property. It therefore appears that he regards monetary penalties, even those that are not fines, as punishments, and not merely as compensation and restoration of the prior state.

As we saw in chapter 1, one can understand this approach (which is contrary to Haim Cohen’s claim that tort law does not belong to criminal law) if we understand that part of the aims of punishment is indeed restoring the previous state, that is, repairing the wrong or the damage, whether spiritual or physical.

10.

The subject of the idolatrous city is complex both halakhically and morally, and one can see in it different facets of theories of punishment as well. For a survey of Maimonides’ position on this issue, see Rakover [3].

In Hilkhot Avodah Zarah, chapter 4, law 6, Maimonides writes:

And they strike down every human soul in it by the sword, including children and women, if the entire city has been led astray.

Rakover discusses the problematic character of this ruling, especially in light of the biblical determination Fathers shall not be put to death for children, and opposite it visiting the iniquity of fathers upon children. One must also examine the relation of Maimonides’ ruling to the general halakhic law that one does not punish one who is in the category of a minor, and ‘children’ certainly fall within that category.

In any event, we have here a clear example of collective punishment (unless, following some commentators, one understands Maimonides as referring to minors who sinned themselves; see there).

Collective punishment almost entirely contradicts any legal and moral logic, especially punishment of those to whom the matter is not entrusted at all (minors).

In the aforementioned article, arguments of deterrence are raised, namely that a person is deterred by a punishment in which his children are killed, and accordingly Maimonides’ words are understood as stemming from a conception of punishment as deterrence. On the other hand, it is very difficult morally to accept that minors are punished in order to deter their fathers.

Maimonides writes in Hilkhot Teshuvah, chapter 6, law 1:

There are sins for which justice dictates that a person be punished in this world for his sin in his body, or his property, or his small children. For a person’s young children, who have no understanding and have not reached the age of commandments, are like his property, and it is written: ‘A man shall die for his own sin’—only once he becomes a man.

There is here a possible rationale for putting small children to death for their father’s sin, and Rakover there discusses what it means to say that they are ‘like his property.’

It seems to me, however, that this discussion has no relevance to our matter, for here the children die only when the city ‘has been entirely led astray.’ That is, this is not atonement for a particular sin, however grave, but eradication of a concentration of evil. In such a situation everything is eradicated, because everything is considered as though ‘infected’ by evil (similar to the command to blot out Amalek). This is explicit in Guide of the Perplexed, part I, chapter 54; see the next chapter.

It seems that we have here a conception of metaphysical repair, in which even minors are punished when the entire city has been led astray, as part of that concentration of evil. If we understand it thus, however, we must accept that the repair of evil is sometimes effected through the killing of those who did not sin. See Maimonides, Hilkhot Avodah Zarah, chapter 4, law 16, which also hints at an understanding that the punishment of the idolatrous city serves to appease divine wrath from Israel like a burnt offering.

11.

Following the discussion of the idolatrous city, we should discuss the law concerning heretics and idolaters in general.

The tone of eradicating evil naturally arises in this context as well. To be sure, in Hilkhot Avodah Zarah I did not find direct and explicit expressions of this principle, but the very law requiring eradication of idolatrous objects from the world (which occupies the second half of the laws) clearly points in that direction (and see below in chapter 3, where this issue arises in the Guide of the Perplexed in an especially sharp and explicit way).

With respect to the law concerning heretics, see Haim Cohen [5], especially toward the end of chapter 3 there. His principal claim is that the law concerning heretics is that their blood is permitted, not that there is an obligation to eradicate them. Yet he cites there expressions from Maimonides that specifically point to a duty to eradicate evil in this context as well. For example, in Hilkhot Mamrim, chapter 3, law 2: Whoever kills one of them performs a great commandment and removes a stumbling block. And see in Hilkhot Chovel uMazik, chapter 8, law 10, a similar expression regarding an informer: Whoever kills him first has acted meritoriously.

The expression ‘removed a stumbling block,’ however, may also suggest social defense, perhaps even more than eradication of evil. What we have here is removal of a factor that will exert a harmful influence on its surroundings, and not necessarily eradication of metaphysical-moral evil. If so, again we see here the approach of punishment as protection of society.

This is explicit in the commentary to the Mishnah on Hullin, chapter 1, mishnah 2, where Maimonides writes as follows:

Know that we have a tradition from our teachers, by accepted transmission on many matters from many authorities, that our present age, the age of exile, in which there are no capital cases, this applies only to a Jew who committed an offense punishable by death. But sectarians, Sadducees, and Boethusians, according to the extent of their various views, are punished so that they not corrupt Israel and destroy the faith.

And this has already been implemented in practice with many people throughout the lands of the West.

It appears from here that in these contexts punishment aims primarily at preventing a stumbling block and preventing harmful social influence. It may be that this is only the reason for exceptional punishment in our own time, and when there are qualified judges punishment rests on the ordinary reasons, but it is highly plausible that this dimension does not disappear even when we have full halakhic authority to punish. It may be that in such a situation the ordinary reasons for punishment are present as well.[18] For further discussion of this subject, see Haim Cohen [6].

It is interesting to note in this context that Maimonides continues and explains the proper mode of conduct with other offenders who are liable to death in our time, and rules:

It is also an accepted and well-known tradition, to be acted upon, that if a person commits an offense for which he is liable to death by a religious court, since today we cannot adjudicate capital cases, they would place him under permanent excommunication in the presence of Torah scrolls after flogging him, and would never release him.

Again, there is here punishment in the absence of authority in order to prevent harmful influence and to deter offenders in a situation where we have no ordinary halakhic way to do so (see above in the discussion of Maimonides’ words in root fourteen, where the subject of punishment in our time was discussed).

12.

One last point, which I will only mention here because of constraints of space, is the law of the king. Maimonides, in Hilkhot Melakhim 3:10 and Hilkhot Rotzeach 2:2-5 (as well as in Guide of the Perplexed I, chapter 50), explains that the king has authority to kill and repair the world as the exigencies of the time require, and of course he is not bound by the Torah’s evidentiary and procedural laws that bind the religious court (though they too may flog and kill ‘not according to the strict law,’ as we saw above). Here, punishment is clearly for the purpose of maintaining social order. On this topic see in detail Blidstein [9].

Let us now summarize what emerges from our discussion in this chapter:

From examining the halakhic sources in Maimonides’ writings, it emerges that his general approach to punishment, as reflected in his direct discussions of the subject, is an approach of deterrence and social defense. Beyond that, there are specific contexts in which one can discern additional penal approaches, beyond the dimension of deterrence that in most cases is also present. Already in chapter 1 I remarked that there is nothing surprising in this, since one need not adhere to one theory of punishment across the entire front. It is entirely possible that there are special contexts in which we require additional penal approaches, depending on the type of offense, the offender, and the circumstances in which the offense is committed.

We now turn to examine Maimonides’ treatment of the subject of punishment in his ‘Guide of the Perplexed,’ which is his principal philosophical work.

C. The Conception of Punishment in the ‘Guide of the Perplexed’: Comparison to the Halakhic Sources

In this chapter I will try briefly to discuss the theory of punishment reflected in the Guide of the Perplexed. It is well known that there are many differences, some of them principled and very important, between Maimonides’ approaches as they appear in his halakhic writings, especially in the ‘Mishneh Torah,’ and what emerges from his philosophical writings, especially the Guide of the Perplexed. We will try here briefly to consider whether in the theory of punishment as well we can discern such differences, both in the principled aspects of the general theory of punishment and with respect to several specific penal issues.

Since the principled discussion of theories of punishment, both the general one and the halakhic one, and especially Maimonides’, has already been conducted in the two preceding chapters, I will try here only to point briefly to the points at which one can see similarity or difference between the various approaches.

A principled discussion of the nature of punishment can be found in Maimonides’ words in part III of the Guide, chapter 35, where Maimonides divides the commandments according to their main aims into fourteen classes, three of which include judicial law. In the course of his remarks there he writes as follows (see Gulak [7], p. 390):

The sixth class includes the commandments that depend on monetary laws, such as the law of the thief and the robber and the law of conspiring witnesses, and most of what we counted in the Book of Judges.

The utility of all these is obvious: for if the sinner and the wrongdoer are not punished, the harm will in no way be removed, nor will one who plans to do evil desist, etc.

Here one sees clearly that the purpose of punishment is the removal of violence and sin, for the benefit of society. It is not clear from here, however, whether this is also the purpose of punishment in other parts of the halakhic code, such as punishment for idolatry or for Sabbath desecration and the like. As we shall see below, even in these contexts Maimonides in the Guide tries to ground punishment on a basis of social utility.

In light of this, it is worthwhile already here to introduce a brief preliminary remark that will focus the discussion that follows. Many have already noted that in the Guide of the Perplexed there is a systematic attempt to ground the laws of the Torah on a socio-historical basis and to explain them as having a social tendency, at times in contrast to his approach in his halakhic work. On this point see, for example, Twersky [8], from p. 322 onward and the references there. I quote here two of his sentences:

But the reader of the Guide cannot fail to be struck by the broad place given there to the reasons for the commandments in terms of political utility, or to the hypothesis that certain commandments have a social explanation. For as regards the Mishneh Torah, whenever we hear Maimonides’ personal voice in it, what is powerfully emphasized is the philosophical theme of personal perfection, moral and intellectual. In this sense the Maimonidean law code is not a document of pronounced social tendencies.

The situation in the Guide is different, where concern for the good of society and the effort to treat matters in terms of abstraction and rationalization are far greater.

See there throughout his discussion, where he brings many examples of contradictions that exist between the Guide and the Mishneh Torah on this background.

Blidstein too ([9], p. 93) notes this point, though in a more moderate formulation, and states:

There is no important contradiction between the philosophical and the halakhic presentations [of the character and aims of government], and although there are noticeable differences of emphasis, it appears that one description complements the other. The earthly-social side of government is emphasized more in the Guide of the Perplexed, though the possibility of spiritual contribution is not entirely absent. The formulation draws from universal human experience. In the Mishneh Torah, by contrast, both the earthly-social side and the spiritual-ideal side find expression…

Later there, Blidstein continues to describe these differences in greater detail.

In light of what has been said here, and of the general quotation cited above, I would expect to find in the Guide an emphasis on the social purposes of punishment. That is, even if Maimonides continues consistently in his approach that sees punishment primarily as a means of deterrence, with the exception of unusual cases in which other tendencies also exist, still in the Guide I would expect to find stronger emphasis on the social side of deterrence.

As we saw in the previous chapters, deterrence can be interpreted in three main directions: 1. the personal direction—preventing the sin by the offender and for his own good; 2. preventing the harm that the offense will cause society; 3. preventing the bad influence that criminality can have on other individuals, and through them on the character of society in general.

We saw that Maimonides’ words in the Mishneh Torah are generally interpretable in all three directions, and only in certain places is there an emphasis on social defense and social repair. In the Guide, however, we shall see a stronger emphasis on this direction, even in places and contexts where it did not appear so in the Mishneh Torah.

A striking example of this is found in Lorberbaum’s article [4]. His main claim, to which he devotes the first half of his article, is that Maimonides interprets the concept of the ‘image’ differently from the Sages of the Talmud. This interpretation leads to a different conception of the limitations placed upon imposing the death penalty on a person who has sinned.

Lorberbaum’s claim is that the restrictions placed upon a court that imposes the death penalty are based on a conception of for God made man in the image of God. The clearest example of this position is the statement of R. Akiva and R. Tarfon (Mishnah Makkot 1:11): Had we been on the Sanhedrin, no person would ever have been executed, where the detail of how they would have acted relies on the restrictions they deemed fit to impose regarding certainty in incriminating testimony and the like.

By contrast, Maimonides is unwilling to deviate from criminal law for such reasons. He sees them not as means of saving the defendant but as means of ensuring, beyond all reasonable doubt, his guilt, out of the understandable concern that no innocent person be executed. The image of the offender is not, in Maimonides’ eyes, a sufficient reason to save him where there is no criminal-legal justification for doing so.

The clearest expression of this in Maimonides is in his commentary to that mishnah, where he encourages a court that sees the need to kill and punish those liable to death not to hesitate to do so. So too in Hilkhot Sanhedrin, chapter 14, law 10, where Maimonides cites the aforementioned mishnah in Makkot, which states that ‘a court that executed once in seven years is called destructive,’ but he adds an ending that does not appear in the Talmudic sources: Nevertheless, if it happened that they needed to execute every single day, they would execute.

A similar conception also emerges from his words in Hilkhot Sanhedrin, chapter 12, law 2, concerning the nature of warning (see there in the Radbaz and Kesef Mishneh).

One may note that in the tannaitic dispute in the mishnah in Makkot there is reflected a distinction between the position of those who served on the Sanhedrin, which in this case is the judicial branch, and who see the need to preserve social order, and the position of R. Tarfon and R. Akiva, who do not serve on the Sanhedrin and whose position is thus moral-theoretical. Viewing the human image as a reason to rescue a person from punishment that he deserves is a way of seeing the private individual while ignoring the needs of the collective and the obligation to protect them. Maimonides rules like those tanna’im who served on the Sanhedrin and regards the obligation to punish as a supreme obligation.

To be sure, in his commentary to the Mishnah and in the laws quoted above there is no clear discussion of why he adds such additions and thereby emphasizes an approach somewhat different from what emerges from the Talmudic sugyot. Here there is still room to understand that the duty to punish grounded in Torah law does not allow us to escape it by formal means. The basis of the duty to punish is not necessarily social repair; it may be repair of the world, vengeance, deterrence, and so forth.

By contrast, in the Guide Maimonides justifies the legitimacy of the death penalty in relation to the concept of the image on two levels. First, he stresses that the sinner is not an ‘adam’ in the full sense of the term, but is somewhat like an animal, for the divine image within him has been impaired by his guilt (see Guide III, chapter 18). Lorberbaum, who describes this at length, explains that Maimonides sees the ‘image’ as a divine presence that man creates in himself, not as something present in him simply by virtue of his creation. A person who sins, by his deeds does not allow full divine presence in his soul, and is therefore in certain respects similar to an animal. This is why the moral problem involved in killing him is not so severe. Of course, one cannot infer from this that his life is ownerless (see above in the discussion of heretics according to Haim Cohen); a positive reason is still needed to indicate the necessity of killing that offender.

According to Maimonides in the Guide, that reason lies in the danger he poses to society. For example, in part II, chapter 40, and especially in part III, chapter 41, Maimonides elaborates in describing the political-social benefit of punishment in general. In Lorberbaum’s formulation, the foundation of Maimonides’ method in the Guide is:

According to Maimonides, the purpose of government is to ensure the harmonious and just functioning of society, and a condition for this is removing from it violent and criminal elements. For this purpose a strong, authoritative central government is required—in short, a king.

Its main instrument is preventive punishment (with respect to the offender himself) and deterrent punishment (with respect to others).

And in part III, chapter 41, Maimonides writes the following sentences:

And it is clear that, since punishments and legal judgments are indispensable, it is therefore necessary to appoint judges dispersed in every city, and witnesses are indispensable, and a king is indispensable, that people may fear and be in awe of him, and that he may provide many kinds of prevention.

That is, the foundation of Maimonides’ theory of punishment in the Guide is the social foundation—protection of society and its functioning, and preventing the spread of criminality.

Above we saw a quotation from Maimonides in part III, chapter 35, where he refers to punishment for property and bodily injury (offenses between man and his fellow) in terms of social defense. In part III, chapter 41, there is broad discussion of several different types of punishment in the Torah and in Jewish law, and in all of them social defense in its different senses is emphasized. Regarding commandments between man and God, it is clear that this protection must be interpreted in the sense of preventing criminality in broad social strata or preventing harm to the social character, and not in the sense of physical harm to individuals in society (which is the situation with offenses between man and his fellow).

This approach has additional implications that appear in that same chapter. For example, the severity of the punishment is not determined only by the gravity of the offense, but even more by its frequency in society. In Maimonides’ words there:

Know that the more frequent and common a given type of offense is, and the easier it is to commit, the more severe its punishment must be in order to prevent it. But a matter that occurs rarely receives a lighter punishment. Therefore, the payment for stealing sheep was made double that for other movable property—namely, a fourfold payment—and specifically when he removed them from his possession by selling them or slaughtering them, because their theft is common all the time, since they are in open fields and in a place where it is impossible to secure them the way one secures things inside cities. And therefore the way of thieves is to hurry to sell them so that they will not be recognized in their possession, or to slaughter them so that they will not be found intact. Therefore the punishment was made more severe for the more common matter…

In chapters 1 and 2, the proportionality between the gravity of the offense and the severity of the punishment was discussed. There we saw that Maimonides, in his commentary to the Mishnah in Avot, chapter 2, tends toward the view that this proportionality exists, whereas here he speaks of parameters such as the frequency of the offense as a factor in the severity of the punishment. According to this, it is somewhat difficult to understand how one can infer the gravity of the offense from the severity of the punishment.

However, if we understand that in the Guide the approach underlying punishment is social defense, the matter is entirely understandable, for for this purpose frequency is no less important than the degree of harm (gravity) present in the offense. If so, again we see a difference between Maimonides’ approach in the Guide and his approach in his halakhic writings.

It should be noted that later in chapter 41 of the Guide, Maimonides does also refer to the gravity of the offense as a relevant parameter, but even there the discussion concerns the degree of harm contained in the offense and not its theological-spiritual gravity. Clearly, even an approach of social defense will take the gravity of the offense into account in determining the severity of the punishment; it is just that frequency will occupy an equally important place in the calculation.

Another result of such a social approach is Maimonides’ explanation of the punishment of one who curses his fellow (see [8], p. 328, note 204). In Sefer HaMitzvot, and this also emerges from the implication of his words in the Mishneh Torah, Maimonides explains that although a curse does not cause any damage to the person cursed, it harms the curser himself and accustoms him to vengeance and anger (see Sefer HaMitzvot, prohibition 317).

By contrast, in the Guide Maimonides determines a punishment for one who curses because, in the opinion of the masses, the harm of a curse is graver than that of a bodily blow. That is, the punishment is not derived from actual harm or from any intrinsic gravity in the act, but from the very fact that the mistaken masses regard it as harmful. There is here an explicit social approach, and here it appears even contrary to Maimonides’ own true opinion (that a curse has no effect whatsoever).

It should be noted that Maimonides rules that cursing is a prohibition that involves no physical act, and therefore in principle one ought not administer lashes for it. Yet Maimonides understands that cursing, although it causes no actual damage, produces social discomfort and disorder, and therefore despite the foregoing it should also be punished, and offenders should be flogged.

Thus, once again we have a significant difference between the treatment of the offense in the Guide, where the approach is primarily social, and the halakhic texts, where the approach is essentialist. Here too we see that in the Guide Maimonides relates mainly to the social consequences, whereas in his halakhic works there is equally prominent treatment of the dimensions of personal criminality (and in that sense cursing stands at the bottom of the criminal scale, as a prohibition involving no act).

See in Twersky [8], near note 210, a more general discussion of the severity of prohibitions that involve no act, where he distinguishes between their ‘religious’ and ‘moral’ value, and also discusses the proportionality between the gravity of the sin and the severity of the punishment.

The strongest expression of this emphasis in the Guide is found in Maimonides’ direct words regarding the sin of idolatry and its punishment, also in part III, chapter 41. Maimonides states there as follows (see also Rakover [3], chapter 5):

And so, in my opinion, is the law regarding every offense from which there appears a destruction of the Torah and rebellion against it. Even if, in my opinion, a Jew were to eat meat cooked in milk… out of contempt and disdain rooted in an outlook from which it is understood that he does not believe in the truth of this Torah, he is, in my opinion, one who ‘blasphemes the Lord,’ and is killed as one killed for unbelief, not as one killed by way of punishment. Like the people of the idolatrous city, who are killed as an execution for unbelief—not an execution by way of punishment. Therefore their property is burned and does not pass to their heirs, unlike the property of other people executed by the court.

Maimonides distinguishes here between ordinary punishment and killing that is not in the category of punishment. He argues that one must kill anyone who denies the Torah, whether directly or indirectly, regardless of the gravity of the specific offense he committed, and without a clear source in the Torah and accepted Jewish law. He understands the killing here as preserving the social character, and therefore such people must be killed even without an explicit penal obligation in the Torah (see also Haim Cohen [5], and the discussion in the previous chapter of the punishment of heretics).

From Maimonides’ language here, however, it seems that an act of this sort specifically does not have the features of ordinary punishment, and one might have inferred from this that ordinary punishment has tendencies different from the tendency of social defense presented here. This is not necessary, for it may be that Maimonides only wants to clarify why he allows himself to innovate a punishment that does not appear in the Talmudic sources, while the philosophy of punishment itself is no different here than elsewhere.

It may be that Maimonides’ intention here is not to explain punishment on the basis of social defense, but precisely on the basis of the duty to eradicate evil. This conclusion supports the claim I raised above in the previous chapter regarding the killing of the children in the idolatrous city (see Rakover there, note 30, who cites this from Maharitz Chayes).

Accordingly, one can certainly understand that here this is not ordinary punishment, whose purpose is social defense, but rather the duty to eradicate evil. This explanation fits even better with my claim here regarding the characteristics of punishment in the Guide generally.

These points seem more plausible in light of Lorberbaum’s claim [4] that the offender, and especially the heretic who does not believe, is not at all in the category of one who bears the image of God, as Maimonides determines in several places. If so, it follows that the moral problem in killing him is also not so severe. This description can also serve as a basis for the duty to kill such a subhuman being. That is, an ordinary offender loses some of his human image, and therefore the moral problem in killing him is less than in killing an ordinary human being, whereas a heretic or an offender whose offense stems from unbelief is at such a low level of the image of God that an active duty devolves upon us to kill him (see Haim Cohen [5], who raises such a possibility).

Rakover [3] points to different emphases in the Guide and the Mishneh Torah also with respect to the offense of idolatry in general (see there, chapter 5). In the Guide the tendency is the removal of evil and of the social stumbling block, whereas in the Mishneh Torah there are no explicit expressions at all in that direction (although, as I remarked above, the laws themselves—for example, the duty to destroy objects that were worshiped—do point in such a direction).

Therefore Maimonides reconciles the contradiction between each man shall die for his own sin and visiting the iniquity of fathers upon children differently in the Guide and in the Mishneh Torah. In Hilkhot Teshuvah, chapter 6, law 1, Maimonides explains that the basis of the distinction lies in the age of the minors who are punished for their father’s sin. If they are sufficiently young, they do not have independent standing, and therefore they are punished for their father’s sin because they are like his property (see the discussion of the idolatrous city in the previous chapter, and Rakover [3], chapter 4). In the Guide, by contrast, the division is between the sin of idolatry and other sins: in idolatry the basis of the killing is the eradication of evil (see above), whereas in other sins it is social defense and deterrence (see there, chapter 5).

Conclusion

Let us now briefly summarize the principal conclusions that emerged throughout this study.

In chapter 1, the central approaches to punishment in the philosophy of law were presented. I noted that there is not necessarily any contradiction among the different approaches, since most of them do not claim exclusivity. If so, one may conceive of a legal system that contains aspects of several different theories of punishment, depending on the type of offense, the offender, and the circumstances in which it was committed. Toward the end of the chapter several theories of punishment were discussed that are likely to characterize a religious legal system more than civil legal systems (metaphysical repair, atonement, retribution, and so forth).

In chapter 2 we saw that in his general and direct discussions of the subject of punishment, Maimonides consistently adopts juridical rather than ‘religious’ approaches, that is, he adopts approaches of deterrence. Therefore he counts the various commandments of punishment as positive commandments imposed upon the religious court. We saw that, consistently with this position, he emphasizes the proportionality that must exist between the severity of the punishment and the gravity of the offense. To be sure, in his halakhic writings Maimonides does not distinguish between deterrence for the benefit of the offender as an individual and deterrence as protection of society or of its character.

Later in chapter 2 we saw that there are quite a few specific examples in which Maimonides uses additional theories of punishment beyond the theory of deterrence. We saw, for example, that in the context of administering the law to oneself, Maimonides allows a person to carry out the proper law in a way that restores the social-monetary order to its place. In its simple sense this is not a punitive act at all, and therefore any person can do it for himself, even though, as we saw above, punishment is a positive commandment imposed upon the religious court.

After that we saw that a religious court may flog and punish ‘not according to the strict law,’ and we linked this to circumstances of urgent social need. In such circumstances the court fulfills its duty to protect society (and not the individual, as in the ordinary cases of punishment), even at the price of overriding the ordinary laws of Torah and Jewish law.

With respect to the punishment of a murderer, we saw that regarding intentional murder there is a commandment upon the blood-avenger to kill the murderer, and this seems to be a matter of education, whereas regarding unintentional murder we saw that Maimonides’ approach indeed speaks of legitimate vengeance (or at least vengeance exempt from punishment) as the essence of the punishment. So too does his interpretation of the law of an eye for an eye appear, although there too deterrence is present.

In the law of conspiring witnesses, we saw measure for measure, and there too the punishment appears as vengeance, retribution, or perhaps education, though the dimension of deterrence is also not absent. The very punishment deters, its form is meant to educate, and perhaps also to avenge or requite the wicked according to his wickedness.

The rebellious and disobedient son is judged on account of his end, and here there appears a punishment that protects society from the evil of a potential offender who is destined to rob people. The special feature of this law is that the offender did not in fact do an act warranting the punishment, and yet he receives the gravest punishment. This fact strengthens the understanding that there is here an element of social defense. We saw that there is here a very strong aspect of the approach of threat, and the public declaration regarding him also arouses a sense of deterrence for the sake of preserving the social character.

In Hilkhot Geneivah we saw that Maimonides treats monetary punishments, such as compensating the injured party, as punishments in every respect (within the rule of kim lei be-rabba minei), and we explained this in terms of a general conception of punishment as preserving social order.

The idolatrous city is a blunt example of collective punishment, renewed in Maimonides’ doctrine without a clear Talmudic source. We seem to have here a clear dimension of eradicating evil, leading us to punish even those who did not sin (women and children). We saw a similar dimension in the sugya of the punishment of heretics.

Finally, we saw that the law of the king more than anything expresses the conception of punishment as preserving social order and social character. This point brings us to the discussion in chapter 3 of Maimonides’ approach, as a thinker, to the issue of punishment.

In chapter 3, I discussed the determination of several scholars that there are principled differences between Maimonides’ approach in the Guide and his approach in his halakhic writings. One of them is that in the Guide Maimonides tends to explain halakhic principles in socio-historical terms, whereas in the Mishneh Torah the individual tendency finds greater expression.

In light of that distinction, we saw that Maimonides indeed continues in the Guide to explain punishment as deterrence, in accordance with his position in the Mishneh Torah, but he places strong emphasis there on social deterrence, that is, on the role of punishment as shaping and preserving social character and social order. We saw this both in general statements about the role of punishment and in Maimonides’ treatment of specific punishments. We also saw that there are differences between Maimonides’ treatment in the Guide and his treatment in the Mishneh Torah (for example, in the issue of cursing, and more), which arise precisely on this background.

Nothing is better for concluding these remarks than a quotation from Blidstein’s book ([9], p. 95), which points to a similar conclusion, of which this entire study is merely an elaboration:[19]

Maimonides frequently teaches that the ruler obligates and enforces desirable social arrangements. His authority is expressed, first and foremost, in the use of force and in the threat that he will use it (precisely this fact requires his moral perfection).

These qualities are required of the ruler especially in his confrontation with the violent and criminal elements within society, when his aim is to create a sphere of secure existence for the members of his people. This aim requires him to support the courts, which are likewise intended to suppress injustice by imposing punishments that deter evildoers. And deterrence is the guiding principle of Torah punishment in general. The four components enumerated by Maimonides (Guide III 41) to explain the calibration of the severity of punishment all derive from this principle, whose social meaning is clear.

Maimonides enters into the finest detail on this issue, and it also serves as a foundation for offenses between man and God, but this is not the place to discuss the foundations of Maimonides’ theory of punishment.

Bibliography

[1] Haim Cohen, ‘The Law,’ Bialik Institute, Jerusalem, 5752 (1991).

[2] Michael Abraham, ‘Giving the Wicked Evil According to His Wickedness’—Really?, Alon Shevut—Graduates, Yeshivat Har Etzion, Gush Etzion, vol. 9 (Iyyar-Sivan 5756), pp. 145-154.

[3] Nahum Rakover, ‘Fathers Shall Not Be Put to Death for Children,’ Dinei Yisrael 17, pp. 189-209, 5753-5754.

[4] Yair Lorberbaum, ‘Maimonides on the Image of God: Philosophy and Jewish Law—the Transgression of Murder, Criminal Law, and the Death Penalty,’ Tarbiz 65:4, Elul 5759, pp. 533-556.

[5] Haim Cohen, ‘The Law of Heretics,’ Selected Writings, edited by A. Barak and Ruth Gavison, Bursi, Tel Aviv, 5752 (1991), pp. 127-152.

[6] Haim Cohen, ‘Punishments for Heresy and Religious Persecutions,’ in the aforementioned Selected Writings, pp. 221-243.

[7] A. Gulak, ‘Legal Barriers in Maimonides’ Mishneh Torah,’ Tarbiz 6, 5695, pp. 383-395.

[8] Twersky, ‘Introduction to Maimonides’ Mishneh Torah,’ Magnes, Jerusalem, 5751.

[9] Jacob Blidstein, ‘Political Principles in Maimonides’ Doctrine,’ Ramat Gan, 5743.

[1] Even with respect to Haim Cohen’s claim regarding God’s own punishments, as distinct from punishments administered by the religious court, which are the main subject of this paper, there is room for doubt. To be sure, God’s anger flares against the people of Israel, or against particular sinners within it, but Scripture always presents that wrath against the background of some wrongdoing. Therefore it seems that even if God is indeed exempt from the duty to present the reasons and purposes of His punishments, He does not in fact make use of this exemption, and He generally takes pains to explain quite clearly why each person who is punished is punished, except for a few unusual cases.

Some regard the death of Nadav and Avihu, described in the portion of Shemini, as such an exceptional case. Yet even there it is stated that this is a punishment for a defined sin (strange fire, when they drew near before the Lord), though from the biblical treatment it is not entirely clear what that sin was. In this case there are discussions among the biblical commentators and the Sages regarding the possibility that their death was due simply to the will of the Holy One, without a substantive rationale, following the statement Through those near to Me I will be sanctified. Of course, even in this case opinions are many, and this is not the place to elaborate.

[2] On this matter see the words of the author of Minchat Chinukh on commandment 516, who tried to view the prohibition against suppressing one’s prophecy as a mechanical punishment, and rejected this out of hand. See also R. Gershom’s commentary to tractate Temurah 3b, who explains in this way a possibility raised in the Talmud to flog someone who is liable to take an oath by law and who swears a true oath. There too that possibility is rejected, and it is quite possible that this is precisely because this is not the Torah’s conception (as the author of Sefer HaChinukh states). See Michael Abraham [2], chapter 4.

[3] This has halakhic implications as well. In the Talmud they discuss whether one appraises the eye of the injurer or the eye of the injured party. If the payment were only compensation for the injured party, there would be no reason to appraise the injurer’s eye. Appraising the injurer’s eye as the measure of the payment hints at a conception that the punishment is the injurer’s eye in exchange for that of the injured party, except that the Sages fenced this vengeance and determined that it would be only by payment and not by actually gouging out an eye.

[4] Even with respect to an intentional murderer, Jewish law determines that the hand of the blood-avenger is the one that is to put him to death after the religious court has sentenced him to die.

[5] In the law of conspiring witnesses we find a puzzling rule: If they caused him to be executed, they themselves are not executed (Babylonian Talmud, Makkot 5b), that is, if the court has already carried out the punishment on the defendant, the conspiring witnesses do not receive their punishment of ‘as they plotted to do.’ The commentators offered several explanations for this puzzling law. In R. Dessler’s Michtav MeEliyahu the following explanation is brought: the judicial verdict rendered on the basis of false testimony created a destructive force in the world. If the court killed the defendant, that itself eliminated the destructive force. But if the court has not yet killed the defendant, and it has been ruled that he is innocent and does not deserve punishment, while on the other hand that destructive force may still damage the world, it must be repaired in another way. For this reason the conspiring witnesses who created it are killed, for the obligation to repair the spiritual damage rests upon them. Here we have a genuinely metaphysical conception of the theory of retribution, according to which punishment comes to repair the spiritual damage in the world and restore it.

[6] According to this argument one can understand an apparent contradiction in Rashi’s words. On the one hand, he treats coercion to observe commandments as a type of punishment (Hullin 110b), and on the other hand as an attempt to bring about observance of the commandment (as implied in Babylonian Talmud, Ketubot 86a). According to our discussion here, it seems that one can understand that coercion regarding commandments is intended to bring about observance of the commandment, but if there were no reason allowing us to harm one who does not wish to observe commandments, we could not harm him in order that he observe them.

[7] One can, however, understand collective punishment even in terms of ordinary theories of punishment, if we change our perspective regarding the human objects in the world. If we regard the fundamental entity in the world as the group, the city, the people, and so forth, rather than the individuals who compose it, then collective punishment can be understood even in terms of theories of retribution, and other theories as well.

[8] At first glance one could also understand this in terms of protecting society, but the expression you shall remove the evil from your midst, which is used in these contexts, does not naturally lend itself to that interpretation.

Another possibility for understanding punishment of this kind is found in Babylonian Talmud, Sanhedrin 55b, where the Talmud discusses the obligation to kill an animal with which a person had intercourse. Two possibilities arise there: because of the stumbling block, and because of disgrace. ‘Disgrace’ is concern for the person who had intercourse with it, lest people say, ‘This is the animal with which he had intercourse,’ and that aim is for the benefit of the human being—that is, a kind of social defense. By contrast, the other opinion in the sugya, according to which punishing the animal stems from the very fact that a stumbling block was caused through it, definitely points to an approach of punishment as metaphysical repair. Here, of course, it cannot be understood in terms of retribution, for an animal bears no moral or religious guilt that would demand retribution.

[9] It should be noted that R. Yerucham Fishel Perla, in his commentary to R. Saadia Gaon’s Sefer HaMitzvot (in the introduction to the third part), argues that Maimonides’ interpretation of Halakhot Gedolot is the correct one, and there he also discusses the correct text of Halakhot Gedolot.

[10] It should be noted that the court’s basic duty to intervene can also be interpreted on the basis of theories of punishment other than deterrence, and therefore the position of Halakhot Gedolot does not necessarily support the deterrence approach specifically.

[11] Haim Cohen (source [5], p. 138, near notes 77-80) tries to base the killing of heretics on the principle of you shall remove the evil from your midst, and his interpretation is that this is not punishment but permission to shed their blood; see there. In the course of his discussion he takes it as obvious that punishment according to Maimonides is nothing other than many expressions of this one principle: to eradicate evil.

According to our discussion here, it is clear that Maimonides did not conceive of the essence of punishment this way; rather, Nachmanides did.

[12] On this matter compare Maimonides’ words in his commentary to the Mishnah, Bava Kamma, chapter 4, mishnah 3, where he writes:

Do not let this matter be difficult in your eyes, and do not wonder at it, just as you do not wonder at the slaughter of animals even though they have done no wrong, because one in whom the human qualities have not been perfected is not truly a human being, and his purpose exists only for the sake of man; and a full discussion of this matter would require a separate book.

Maimonides explains the killing of harmful animals on the grounds that there is no moral problem in killing one who is not human. In many respects this is the exact opposite of Nachmanides’ explanation, according to which there is evil even in animals. The death penalty raises a moral problem as against the problem of eradicating evil or the duty to punish. Maimonides explains that with respect to animals there is no moral side to the problem, whereas Nachmanides explains that there is a legal-halakhic side to it.

It should be noted that Maimonides’ words here concern the principle according to which, in a dispute with a non-Jew, one may choose the legal system flexibly, according to what is good for us. See Hilkhot Melakhim 10:12 and Hilkhot Nizkei Mamon 8:5, where Maimonides explains differently the law of flexibility in the legal system chosen in a dispute with a non-Jew (see [4], notes 99-100).

[13] Eradicating evil from the world, in the view of Nachmanides, or deterring offenders, in the view of Maimonides, do not justify counting each punishment separately. After all, according to both Maimonides and Nachmanides, the matter of all punishments is one. Therefore my conclusion is that R. Saadia Gaon’s theory of punishment differs from those of Maimonides and Nachmanides.

The difference between Maimonides and Nachmanides as to whether to split the death penalties into four commandments or one commandment may perhaps also be understood on a similar background. Nachmanides understands that there is here a command to eradicate offenders from the world, and the different mode of death is only a detail within that commandment. Maimonides, who understands punishment as deterrence, thinks that there are apparently several forms of deterrence, and that in each situation we must employ a different form. That may be why he counts each death penalty of the court as a separate commandment.

[14] The question whether the commentary to the Mishnah on tractate Avot is a halakhic source or another kind of source is not simple. The commentary to the Mishnah in general is a halakhic source, but tractate Avot appears exceptional in this regard. Yet Maimonides himself, in his remarks on that mishnah, points to halakhic implications of his interpretation—namely, he explains on this basis the rule that one does not pass over commandments and the rule that one engaged in one commandment is exempt from another. It therefore seems that Maimonides regarded these remarks as having halakhic significance. For this reason I decided to treat this source in the present chapter and not in the next.

[15] An interesting and different example of preserving social character (see Guide III, end of chapter 41) is the obligation to install a peg in the camp. The reason for the commandment is preservation of purity and distancing from filth, which is preservation of the character of the camp—not in the sense of mutual injury, but in the sense of general character.

[16] The verse is formulated in the passive voice, which points to a conception according to which the essence of the punishment is to bring vengeance upon the murderer and not to let the blood-avenger vent his wrath. Perhaps that is Maimonides’ source for understanding, unlike Rashi as cited below, that there is here not vengeance but retribution (in the terms of chapter 1).

[17] On this matter see an interesting remark of Maimonides in Guide III, at the beginning of chapter 41, where he states explicitly that this is the meaning of the written Torah. He hints there that there was a change in the attitude of the Oral Torah, and perhaps his intention is as we explain here.

[18] More generally, one should discuss whether Maimonides here is speaking about punishment ‘not according to the strict law,’ or whether this is the ordinary punishment in contexts of heretics and idolaters, where the authority to carry it out remains intact. It may be that there is here no more than the simple law of the pursuer: one who pursues his fellow may be killed in order to save the pursued, and certainly if what is pursued is an entire society. More generally, it seems that the law of the pursuer underlies the theory of social defense and the removal of social stumbling blocks. This is not the place to elaborate.

[19] Note to the examiner: I came across these sentences only while writing the conclusion of the paper, so the conclusions are not ‘biased’ by them. I arrived independently at my conclusions, as can also be seen from the reasoning I gave in the course of presenting the discussion.