Punishment theory – Mishpatim
Since Mishpatim deals with details of Jewish civil and criminal law, let us look at what the Jewish legal system says about punishment.
There are four conventional (but sometimes conflicting) theories:
1. Retribution – originally by the victim’s family, and later, by society.
2. Rehabilitation – improving the offender and preventing further offence.
3. Deterrence – harsh punishment to deter possible offenders.
4. Incapacitation – protecting society from the offender.
Jewish law adds a fifth theory:
5. Appeasement of God (administered by human agencies).
The approach to punishment oscillated. In the Biblical period we find:
1. Retribution –
a. “He who sheds man’s blood, by man shall his blood be shed” (Gen. 9:6);
b. but revenge is limited to the offender, not their family (Deut. 24:16);
c. it must be proportionate (Ex. 21:24-25; Lev. 24:19-20); and
d. there must be cities of refuge for inadvertent homicides (Num. 35:11 etc.).
2. Deterrence –
a. “Put away the evil from Israel” (Deut. 17:7, 12).
b. “All Israel shall hear and fear” (Deut. 12:12).
3. Appeasement of God –
a. impassioned championship of God (e.g. Pin’has: Num. 25:13);
b. bloodshed is said to pollute the land and the earth (Num. 25:31-33)
c. and diminishes the Divine image (Gen. 9:6).
In the Talmudic period there is less stress on retribution. As the Mishnah Sanhedrin and Makkot make clear, there is great reluctance to carry out the death penalty; procedural regulations make this penalty almost impossible; there is concern for the rights of the accused; and there are many who oppose capital punishment altogether.
There is continued emphasis on deterrence, incapacitation and appeasement: the sages say, “God is irate whilst the ungodly are in the world” (Sanh. 10:6).
In the Middle Ages, Jewish communities did not always have criminal jurisdiction, but we find Jewish courts exercising emergency measures, e.g. against informers; the growth of public shaming as a punishment; and increasing emphasis on punishment in the afterlife.
There is even a humorous side to the emergency measures: when Rabbi Jacob Levi Saphir visited Yemen in mid-19th century he heard that a rabbi had told the shochet to execute a woman who had committed adultery…
