INSIGHT
5769 - #18

Mishpatim / Shekalim

THE PURPOSE OF PUNISHMENT

            A common question found within the Talmud is: azhara minayan, from where do we learn the warning, the actual statement of prohibition? It is not enough for the Torah to assert that one who does a certain act should be punished in a certain way; there always must be a direct declaration of prohibition. For example, Shemot 21:15 states that one who hits his/her mother or father should be executed.1 T.J. Sanhedrin 11:1, though, asks: azhara minayan, from where do we know the prohibition? What is the verse that states the prohibition directly, i.e. do not hit? The gemara answers that the direct statement of prohibition, as with all cases of prohibited striking of another,2 is learned from Devarim 25:3, do not add to the forty lashes you are to apply as punishment.3 This is understood as a direct warning – do not hit another. The verse in Shemot then informs us, not of the prohibition per se4 but, of the specific consequences when one hits a parent, as distinct from anyone else. Other verses then describe the punishment in other cases. The question may still be asked: why present the law and its consequences in this manner, separating, sometimes to a large extent, the azhara from its statement of punishment?

            This is more than an issue style. If one peruses, for example, the Canadian Criminal Code, one will find that the laws are not presented in the form of do’s and don’ts but rather as statements of consequences, i.e. punishments, in response to certain behaviours It does not state – do not steal; rather it presents the punishment for an act of theft. The Torah principle encased in the question of azhara minayan is that, in the realm of Halacha, this form of presentation of the law alone is unacceptable; there must always be a do or a don’t. This stresses the absolute forbidden nature of the Torah prohibitions. A law presented as a statement of consequences can lead to the possibility of one deciding to do the act at the cost of the punishment. One, for example, could decide to speed at the cost of paying the ticket. If the Torah, similarly, only presented statements of consequences, one could possibly think that one could eat pork at the cost of receiving lashes. The existence of an azhara clearly challenges this perception. The act is inherently defined as wrong. Acceptance of the punishment does not mean, in any way, that it is allowed to do this act. This is not to say that, within such systems as the Canadian legal one, an act becomes theoretically permitted if one is willing to accept the cost of the consequence, the punishment. It does, though, still introduce the perception of a transaction, a potential for one to consider cost-benefit analysis. One’s thoughts in considering to speed, for example (recognizing the limitations of this comparison), are generally not on the correctness of the action but rather whether the cost of the consequence is worth the benefit derived from the action. An azhara challenges the possibility of this perception. It is a clear declaration of prohibition by God. This is not a matter for cost-benefit analysis. Why then do we find presentations of statements of consequence so separated from the azhara? I can understand the need to present the punishment for violation of the law but, with such extensive separations between the azhara and the statement of consequence, the latter could seem to stand alone and thereby also introduce the idea of cost-benefit analysis. It would seem that while the Torah wishes to present the important value and lesson inherent in every law being framed in the form of an azhara, it also felt that there was also a benefit in the presentation of free-standing statements of consequence.

            The real issue focuses on the very value of these statements of punishment. As is well known, T.B. Makkot 7a clearly states that executions were extremely rare. Rabbi Akiva further states that if he ever served on a court, he would have never executed anyone. Such was the powerful restrictive and excruciating process of Torah procedural law; it was close to impossible to convict. If this is so, though, what was the whole purpose of the Torah outlining the various punishments that would be meted out for the violation of specific commands? Seridei Eish, Chiddushim al haShas, Makkot, Simun  51, furthermore, quotes a statement of the Rosh that the difficulty of conviction further indicates that a punishment of execution was really not because of the inherent negative value of the act but rather because of the defiant nature of such an action, performed with a lack of concern for transgressing the word of God in spite of being warned. These statements of consequences were not necessary in order to outline the directive from God; the azhara connected to the mitzvah would accomplish this same goal, in fact more efficiently. They were also not truly necessary to practically outline the consequences of a prohibited action. It would seem that the only function of such statements would be in their transmission of the inherent value structure to be found in the act. Through these statements of consequence, we are not to consider the cost of doing this transgression in order to weigh a benefit against a cost. Yet, through these statements, we are to still understand the severity of a transgression and from that, the measure of the specific subsequent value inherent in abiding by the law. .

            Avot 2:1 calls upon us to constantly consider the cost-benefit of observing the Torah law versus the opposite. This cannot be a call to consider the cost of facing a punishment versus the benefit derived from the prohibited act for such an analysis in its own right raises other issues. We are to follow the Halacha because it is the Will of God – further evidenced by the value inherent in the articulation of each and every azhara – not because it meets the challenge of a cost-benefit analysis. Yet, through a consideration similar to that of a cost-benefit analysis, we can begin to understand His reasoning and the structure of values that explain the halachic conclusion. While this same mishna declares that we still cannot solely consider the severity of a mitzvah as indicated by its punishment, this general standard still gives us insight into the value structure and foundation of the Divine commands. While one who hit his/her parent may never be executed, through the Torah statement of punishment, we are still taught the value structure upon which the Torah is based. The Torah statements of consequence and punishment provide us with necessary and valuable information regarding the moral consciousness at the root of Torah.

            Rabbi Benjamin Hecht

 


Footnotes

1 Further as to details of this mitzvah, see Shulchan Aruch, Yoreh De’ah c.241.

2 See, also, T.B. Ketubot 33a.

3 If one involved in a commanded act of hitting is warned not to add an additional strike and exceed the permitted number, another not commanded to hit obviously is prohibited from striking someone else.

4 This should not be construed as indicating that everything included in the azhara of lo yosif, do not add, are grouped together as one mitzvah in the count of the 613 mitzvot. This is not the case and, for example, the prohibition of not striking a parent is clearly counted as a separate mitzvah in Rambam, Sefer HaMitzvot, Lo Ta’aseh 319.

 (c) Nishma, 2009


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