INSIGHT 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. Return to top |
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