Justice Menachem Elon (Principles of Jewish Law): The most common purpose of punishment, as found in the Bible, is "to put away the evil from the midst of thee" (Deut. 17:7, 12; 19:19; 21:21; 22:24; 24:7). While such "putting away" is applied in the Bible to capital punishment only (which indeed constitutes the only effective total elimination), the principle underlying the elimination of evil, as distinguishedfrom that of the evildoer (cf. Ps. 104:35 and Ber. 10a), provides a theory of punishment of universal validity and applicable to all criminal sanctions. It means that the act of punishment is not so much directed against the individual offender - who is, however, unavoidably its victim - as it is a demonstration of resentment and disapproval of that particular mode of conduct. By branding that conduct as worthy of, and necessitating, judicial punishment, it is outlawed and ostracized. Similarly, punishment is inflicted on the offender not so much for his own sake as for the deterrence of others: that all people should hear and be afraid (Deu 17: 13 - rebellious elder; 19:20 - perjury; 21 :21 - rebelious son). From the point of view of criminal law enforcement policies, the deterrent aspect of punishment in Jewish law is already the most important of all: people who hear and see a man heavily punished for his offense are supposed to be deterred from committing the offense and incurring the risk of such punishment (they "will do no more presumptuously" - Deut. 19:20). Hence the particular injunction to have the offender hanged on a stake after having been put to death (Deut. 21 :22), so as to publicize the execution as widely and impressively as possible; but note that the corpse must be taken off the gibbet before nightfall, "for he that is hanged is a reproach to God" and defiles the land (Deut. 21 :23) - and no concession made to policies of law enforcement can derogate from the affront to God involved in killing and hanging a human being.
It is not only the principle known in modern criminology as general prevention," the deterrence of the general public, but also that of "special prevention," the prevention of the individual offender from committing further crimes, that is reflected in Jewish law.It has been said that the imposition of capital punishment on such offenders as the rebellious son (Deut. 21: 18-21), the rebellious elder (Deu t. 17: 12), the abductor (Ex. 21: 16), and the burglar (Ex. 22: I) is justified on the ground that these are all potential murderers (cf. Maim., Guide 3 :41); and rather than let them take innocent human lives, they should themselves be eliminated. That the deterrent effect of punishment on the offender himself was a consideration which weighed heavily with the talmudical jurists is illustrated also by the rule that where punishment had proved to have had no beneficial deterrent effect on the offender and he has committed the same or some similar offenses over and over again, he would be liable to be imprisoned and "fed on barley until his belly bursts" (Sanh.9:5).
I might have mentioned this before, but a few years ago i was in a Yeshiva in Jerusalem, and I raised the case of a prominent London Rov who called a family who had reported as being moisers - mosrim.
ReplyDeleteThe rav who was giving my shiur agreed, and said we have no power to punish in this world, at least not until Moshiach comes. Thus any punishment must be in Olam haba.
Of course I didn't agree with it, but that seems to be the standard Haredi line until very recently.
Eddie,
ReplyDeleteNah! It is only the standard haredi line when people don't want to do anything or want to justify their own passivity.
When they want to do something they can virtually ex-communicate someone with public and private reproaches and insults and cutting them off from employment, shiduchim, yeshivas and even access to shuls. Sometimes they will put people into cherem.