We have undertaken a comprehensive study of halakhic penology throughout Jewish history. In the course of our studies we have been stymied by two major problems: the utter impracticality of the criminal law of the Torah as a means of maintaining law and order, and the strangeness of the kippah penalty.
He discusses these fully issues in his major work Jewish Penology Magnes press 2013
https://www.magnespress.co.il/en/book/Jewish_Penology-3533
We intend to point out that there was more than one system of Jewish penology. We will elaborate upon the existence of a classical system – retributory and expatiatory – related to a self-perfecting society. Only such a society would ordain a painless penalty for death for criminals guilty of the most serious crimes with malice and forethought and a painful punishment with immediate restoration to one's community for criminals guilty of lesser crimes. Criminal penalties for the purposes of deterrence (private or public) or of social rehabilitation are minor considerations.
In addition to and alongside the classical penological system, we will be detailing other systems of a more practical nature: one governed by the King's law and others emerging from rabbinical ad hoc urisdiction and communal legislation. These systems are less governed by the classical motivations of strict retribution and religious expiation (which continue to play a role – albeit a relatively minor one); deterrence and social rehabilitation, law and order, are their dominant considerations. Moreover the varying degrees of judicial autonomy granted to the Jewish community by the non-Jewish governments resulted invariations in penal practices among the various communities themselves.
Not so shocking. The halakhic system as detailed in the Gemara is completely impractical. A man could commit mass murder and get away with it either by ensuring there were no kosher witnesses or just refusing to acknowledge the warning. Even if he set it up to ensure a conviction he'd still likely get off because only a shoteh would go through the whole procedure in the first place.
ReplyDeleteThat's why the King's Law and the whole "Rabbis make it up as they go along" law were so important - they actually allowed law to function.