Thursday, March 11, 2010

Why isn't all punishment publicized as a deterrent?

One thing that I am puzzled by is the fact that the Torah lists four crimes whose death penalty is to be publicized so that the "people will hear and be afraid" and will learn a lesson not to commit a sin in the future. Why are these four crimes singled out? Why aren't all punishment publicized for its educational and social value?

Rambam(Hilchos Mamrim 3:8):How is a rebellious elder dealt with? …[once he is convicted] he is not to be executed by the beis din of his city or the Sanhedrin which is located outside of Jerusalem. Rather he is to be taken to the Sanhedrin in Jerusalem. There is to be imprisoned until one of the 3 pilgrimage festivals as it says that “all of the Jewish nation shall hear about it and be fearful. This implies that the execution required public announcement. In fact there are four executions which require public announcement – a rebellious elder, those who false testimony to try to cause e someone executed, a missionary, and a rebellious son (ben sorer u’morah) That is because the Torah says about all of them, “So that the people will hear and be afraid.

Ramban(Devarim 21:18): Concerning a ben sorer u’morah -…In general he is not executed because of a sin he has done but rather because of the sin he will do (Sanhedrin 71a). This is why the verse says “And all of Israel shall hear and fear” because he isn’t executed because of the greatness of his sin but rather to provide a lesson for the masses and so that he won’t be a stumbling block for others. And so it is the manner of the Torah verse when it warns about the death penalty that it is a deterrent to help others. Thus it is mentioned here regarding a rebellious elder (Devarim 17:13) since there is nothing deserving capital punishment in his teaching a minority view of halacha. His severe punishment is only to remove a dispute over the Torah as I explained in verse 11. This is also true concerning false witnesses (Devarim 19:20) who are given capital punishment only for trying to have another executed and not if they succeeded. This is also true of a missionary (Devarim 13:12) since he is executed only for saying things - even if those he spoke to did not actually worship idols or did not listen to him. In fact his execution is to provide a lesson for the rest of society. Thus it is with this mitzva that it is an innovation and a derivation of the basic mitzva of honoring (Shemos 20:12) and fearing parents (Vayikra 10:3).

7 comments :

  1. Regarding the Rambam on the rebellious elder, I believe it is a principle of Torah law that if someone is to be executed the sentence MUST be carried out forthwith (same day) once all appeals are exhausted. How does this principle fit into this Rambam?

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  2. BTW, Rambam seems to be ruling in accordance with R. Akiva - who says the sentance itself is not made by the local Sanhedrin, but rather the sentance is issued by the Jerusalem Sanhedrin. IOW, he isn't sentanced until Jerusalem. I wonder if Rambam is in accordance with this point -- although from the quote of Rambam in your post this isn't clear.

    R. Yehuda, however, disagrees and says the local Sanhedrin carries out the execution of the rebellious elder (zaken mamre).

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  3. There are criminals motivated by the evilness of the crime and there are criminals motivated by greed or pleasure (mumar le taayavon).

    There are real differences.

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  4. Don't see a problemMarch 11, 2010 at 9:52 PM

    DT,
    Maybe I'm missing the iqar of your question, but I'm not sure that this is such a strong qasha; we'll just make the simple diyyuq that punishments other than the aforementioned 4 are not meant as a deterrent. And why should they be? Just because you're trained in a social scientific framework, the Torah has to conform to one?
    If rather we posit that punishments are theological matters first, social matters second--which shtimms nicely with most who are chaiv misa being outside of human jurisdiction--then the proper purpose of punishment is redemption for the neshama, NOT as a warning to others. And that these 4 transgressions require punishment that is ALSO a warning is then a chiddush by them particularly.
    Please excuse me in case I may have missed the meat of the matter here.

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  5. 1) These four undermine the sources of authority in Judaism, (Hashem, Sanhedrin, courts, parents) by either complete disdain or disregard.

    2) These four can (or must) be administered for attempts, even if unsuccesful (Meisis, Edim Zomemin, Zakein Mamre - even if nobody lisetened) or Al Sheim Sofo (Ben Sorer Umoreh). They aren't punishments correlated to the result of the crime.

    These two reasons probably complement each other.

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  6. I'd love my religion much more if death wasn't meted out for certain things... Sigh...

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  7. Sanhedrin never labeled a Ben Sorah Or Moreh or meeted out an execution of a Ben Sorah U Moreh.

    Those who rush to judgment, giddy to watch and view public hangings by noose, pen or keyboard is a sick lot.

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