CHAPTER 41

The commandments comprised in the sixth class are concerned with punishments; and their utility, speaking generally, is well known, and we have already mentioned it. Hear then the particulars concerning this and a judgment concerning every strange case figuring in them.

The punishment meted out to anyone who has done wrong to somebody else consists in general in his being given exactly the same treatment that he has given to somebody else. If he has injured the latter’s body, he shall be injured in his body, and if he has injured him in his property, he shall be injured in his property. The owner of the property may be indulgent and forgive. To a murderer alone, however, because of the greatness of his wrongdoing, no indulgence shall be shown at all and no blood money shall be accepted from him: And the land cannot be cleansed of the blood that is shed therein, but by the blood of him that shed it.¹ Hence even if the victim² remains alive for an hour or for several days, speaks, and is in full possession of his mind and says: Let him who murdered me be dismissed; I have forgiven and pardoned him — this cannot be accepted from him. For necessarily there must be a soul for a soul — the young and the old, the slaves and the free, the men of knowledge and the ignorant, being considered as equal. For among the crimes of man there is none greater than this.

And he who has deprived someone of a member, shall be deprived of a similar member: As he hath maimed a man, so shall it be rendered unto him.³ You should not engage in cogitation concerning the fact that in such a case we punish by imposing a fine. For at present my purpose is to give reasons for the [biblical] texts and not for the pronouncements of the legal science.⁴ Withal I have an opinion concerning this provision of legal science, which should only be expressed by word of mouth. A fine was imposed in the case of wounds in requital of which exactly similar wounds could not be inflicted: Only he shall pay for the loss of his time, and shall cause him to be throughly healed.5

He who has caused damage to property shall have inflicted upon him damage to his property up to exactly the same amount: Whom [89a] the judges shall condemn, he shall pay double unto his neighbor⁶ — that is, the thing taken by him and an equal amount taken from the property of the thief.

Know that the more frequent the kind of crime is and the easier it is to commit, the greater the penalty for it must be, so that one should refrain from it. On the other hand, the penalty for a thing that happens seldom is lighter. Therefore the fine imposed on him who steals sheep is double the fine imposed for the theft of other transportable objects, I refer to fourfold reparation,⁷ the condition being that he has let them go out of his possession by selling them or has slaughtered them. For they have always been stolen in the majority of cases because they were in the fields where they cannot be watched over the way it is possible to watch over things that are in towns. And therefore those who steal them generally make haste to sell them so that they should not be recognized while being in their possession, or to slaughter them so that they should disappear. Hence the penalty for such cases of theft as are in the majority is greater. The fine imposed for the theft of an ox is even greater by the value of the thing stolen,⁸ for it is easier to steal them. For sheep graze together, so that the shepherd can see all of them, and in most cases it is only by night that they can be stolen. Oxen, on the other hand, graze far apart from one another, as is mentioned in the “Agriculture,” so that the shepherd cannot watch over them, and accordingly they are more often stolen.

Similarly the law concerning false witnesses⁹ is that the thing that they wished to be done unto another shall be done unto them: if they wished the one they bore witness against to be killed, they shall be killed; if they wished him to be flogged, they shall be flogged: and if they wished him to be fined, they shall have a similar fine imposed on them. In all this the intention is to make the penalty equal to the crime, and this too is a meaning of the expression: righteous judgments.¹⁰

The fact that a robber does not have to pay something additional as a fine — for the fifth part is merely paid in expiation of a false oath11 — is due to the rare occurrence [89b] of robbery. For the calamity of stealing is more frequent than robbery; for a theft is possible in all places, whereas robbery in towns can only be carried out with difficulty. Furthermore, both things that are in the open and those that have been hidden away and safeguarded with care can be stolen, whereas only things that are in the open and exposed to being perceived can be robbed; so that a man can safeguard himself and take precautions against a robber, making preparations against him, but cannot do this with regard to a thief. Moreover the robber is known, so that he can be summoned and so that one can try to make him give back that which he has taken, whereas the thief is not known. For all these reasons the thief, but not the robber, is sentenced to pay a fine.

Introduction. Know that whether a penalty is great and most grievous or small and easy to bear depends on four things being taken into consideration. The first is the greatness of the crime: for actions from which great harm results entail a heavy penalty, whereas actions from which only small and slight harm results entail but a light penalty. The second is the frequency of the occurrence of the crime: for a crime that occurs rather often ought to be prevented by means of a heavy penalty, whereas a slight penalty suffices to prevent one that is rare in view of its rarity. The third is the strength of incitement: for a man can be made to give up a thing toward which he is incited — either because desire draws him strongly toward it or because of the strength of habit or because of his feeling great hardship when refraining from it — only by fear of a heavy penalty. The fourth is the ease with which the action can be committed in secret and concealment, so that the others are unaware of it: for the deterrent for this can only be the fear of a great and heavy penalty.

After this [90a] introduction has been made, you should know that classification of punishments, according to the text of the Torah, comprises four degrees: [1] that which entails death by order of a court of law; [2] that which entails being cut off — that is, being whipped, the crime being believed withal to be a great one; [3] that which entails being whipped, but the crime is not believed to be a great one, but a mere transgression, or entails death at the hands of God;¹² [4] that in which there is only a prohibition the transgression of which does not even entail flogging. To this degree belong all transgressions in which there is no action¹³ — except vain oaths, because of the belief one ought to hold as to glorifying Him, may He be exalted; the substitution of an animal for one previously chosen for sacrifice, in order that this should not result in sacrifices consecrated to Him, may He be exalted, being held in light esteem; and cursing one’s fellow man in the name [of God], for in the opinion of the multitude the injury resulting from curses is greater than that which may befall the body. All transgressions14 other than these in which there is no action can only result in little damage, and it is also impossible to take care not to commit them, for they consist in words only. If their perpetrators were punished, people would have their backs flogged all the time. Moreover a warning with regard to them cannot be conceived.

There is also wisdom in the number of the strokes, for it is determinate with regard to the maximum and indeterminate with regard to the individuals. For an individual may receive only such flogging as he can bear, but the maximum number of strokes is forty, even if he can bear one hundred.

You will find there is no obligation for a [sentence of] death [to be pronounced] by a court of law with reference to prohibited foods, for in this there is no great harm, and people are not strongly attracted to them as they are by the pleasure of sexual intercourse. The penalty of being cut off is entailed by the eating of certain foods, blood¹⁵ for instance, for they had a great desire at that time to eat of it because of a certain kind of idolatrous cult, as is explained in the book of Tumtum. Much stress is therefore laid upon this. [90b] The penalty of being cut off is also entailed by the eating of fat¹⁶ because people take pleasure in it; also it is especially used for sacrifice in order to glorify it, as shall be explained. Similarly the penalty of being cut off is entailed by the partaking of leavened bread during Passover and of food on the day of fasting¹⁷ because of the hardship imposed by this kind of abstention and because of the belief to which these actions lead. For these are actions that fortify opinions that are foundations of the Law, I mean the exodus from Egypt and its miracles and the belief in repentance: For on this day shall atonement be made, and so on.¹⁸ The penalty of being cut off is also entailed by the eating of the remainder [of a sacrifice] or of a profaned [sacrifice] or of something holy while one was unclean,¹⁹ just as it is entailed by the eating of fat; the purpose being the glorification of the sacrifice, as will be explained later on.

As for death by order of a court of law, you will find that this sentence is only brought on in grave cases: that is, either in the case of the corruption of belief or in that of a very great crime. I refer to idolatry, adulterous or incestuous sexual intercourse, and the shedding of blood and all that leads to these crimes as well as in the cases of the profanation of the Sabbath,20 as the latter fortifies the belief in the creation of the world; of a false claim of prophecy; of a rebellious elder,²¹ because of the great harm that results in these cases; of him that smiteth his father and his mother and curseth his father and his mother,²² because of the great impudence of the thing and its destroying the good order of the household, which is the first part of the city. As for a stubborn and rebellious son,²³ he must be put to death because of what he will become, for necessarily he will murder later on. He that stealeth a man²⁴ must likewise be punished in this manner, for he exposes him to death. Also he that comes breaking in,²⁵ for he too is prepared to kill, as [the Sages], may their memory be blessed, have explained.²⁶ These three, I mean a stubborn and rebellious son, he that stealeth a man and selleth him, and he that comes breaking in, will become shedders of blood. You will not find that death by order of a court of law is prescribed except in the case of these great crimes. Not all incestuous and adulterous sexual intercourse is punished by death by order of a court of law; only such as is easy to engage in or is most shameful or has the strongest attraction. [91a] That which is not of this kind is merely punished by cutting off. Nor are all species of idolatry punished by death by order of a court of law, but only the fundamental ones, such as calling the people to worship idols, prophesying in their name, making [children] to pass through fire, [consulting] familiar spirits, and being a wizard and a sorcerer.

It is clear that as there must be punishments, it is indispensable to have judges distributed in every town. There must be testimony of witnesses, and a ruler who is feared and held in awe and who uses all sorts of deterrents and fortifies the authority of the judges and in his turn draws strength from them. Thus the reasons for all the commandments that we have enumerated in the Book of Judges have been explained. It behooves us now, in conformity with the purpose of this Treatise, to call attention to some that figure there, among them to those concerning a rebellious elder. I shall say: Inasmuch as God, may He be exalted, knew that the commandments of this Law will need in every time and place — as far as some of them are concerned — to be added to or subtracted from according to the diversity of places, happenings, and conjunctures of circumstances, He forbade adding to them or subtracting from them, saying: Thou shalt not add thereto, nor diminish from it.27 For this might have led to the corruption of the rules of the Law and to the belief that the latter did not come from God. Withal He permitted the men of knowledge of every period, I refer to the Great Court of Law, to take precautions with a view to consolidating the ordinances of the Law by means of regulations in which they innovate with a view to repairing fissures, and to perpetuate these precautionary measures according to what has been said by [the Sages]: Build a hedge for the Torah.²⁸ Similarly they were permitted in certain circumstances or with a view to certain events to abolish certain actions prescribed by the Law or to permit some of the things forbidden by it; but these measures may not be perpetuated, as we have explained in the Introduction to the Commentary on the Mishnah in speaking of temporary decisions. Through this kind of governance [91b] the Law remains one, and one is governed in every time and with a view to every happening in accordance with that happening. If, however, every man of knowledge had been permitted to engage in this speculation concerning particulars, the people would have perished because of the multiplicity of the differences of opinion and the subdivisions of doctrines. Consequently He, may He be exalted, has forbidden all the men of knowledge with the single exception of the Great Court of Law to undertake this, and has those who disagree with [this Court] killed. For if it could be opposed by everyone who engages in speculation, the intended purpose would be annulled and the usefulness of these regulations abolished.

Know that with regard to the perpetration of things forbidden by the Law there are four categories: the first being that of the compelled transgressor; the second that of the inadvertent transgressor; the third that of the deliberate transgressor; the fourth that of him who transgresses in a highhanded manner.²⁹

As for the compelled transgressor, it is stated textually that he should not be punished and that no sin whatever lies upon him. For He, may He be exalted, says: But unto the damsel thou shalt do nothing; there is in the damsel no sin worthy of death.³⁰

As for the inadvertent transgressor, he sins, for if he had made efforts to be firm and cautious there would have been no inadvertence on his part. But he is not to be punished in any way, though he needs atonement and hence must bring a sacrifice. In this case the Torah distinguishes between a private individual, a king, a High Priest,31 and a man qualified to give decisions on points of the Law. From this we learn that everyone who accomplishes an action or gives a decision on a point of the Law in accordance with a doctrine established by his own efforts, belongs, if he is not the Great Court of Law or the High Priest, to the class of deliberate transgressors and is not regarded as being among the inadvertent transgressors. Therefore a rebellious elder is killed even though he has acted and given decisions on points of the Law in accordance with a doctrine established by his own efforts. The Great Court of Law, however, have the right to establish a doctrine by their own effort. Accordingly if they are mistaken, they are held to have been so inadvertently; as He, may He be exalted, says: And if the whole congregation of Israel shall err, and so on.³² Because of this fundamental principle [the Sages], may their memory be blessed, say: An inadvertent mistake in doctrine is considered as a deliberate transgression,³³ meaning that one who, while being deficient in doctrine, gives decisions on points of the Law and acts in accordance with this deficiency is regarded as a deliberate transgressor. [92a] For the status of one who eats a piece of fat from the kidneys thinking that it is fat from the rump is not like the status of one who eats fat from the kidneys knowing what it is, but without knowing that it is one of the forbidden fats. For the latter, though he may offer an atoning sacrifice is close to being a deliberate transgressor; and he is this merely by acting in this manner. But one who gives decisions on points of the Law in accordance with his ignorance is indubitably a deliberate transgressor; for the text [of the Law] excuses a mistake in a decision on a point of the Law in the case of the Great Court of Law only.³⁴

As for the deliberate transgressor, he must undergo the punishment prescribed by the text, namely, either death by order of a court of law or a flogging or blows [in punishment] for insubordination in the case of transgressions not punishable by flogging or a fine. As for those transgressions in the case of which inadvertence and deliberation are considered to have an equal status, this is done because they occur often and with ease, being committed by means of words and not of deeds; I refer to the oath concerning testimony³⁵ and the oath concerning deposit.³⁶ Similarly sexual intercourse with a bondmaid that is betrothed to a man37 is regarded as a light matter because it occurs often, inasmuch as she abandons herself because of her being neither completely a slave nor completely free, nor does she belong completely to a husband — as tradition has it when explaining this commandment.³⁸

As for him who transgresses in a high-handed manner, he is a deliberate transgressor who acts with impudence and audacity and makes his transgression known in public. Accordingly such a one does not transgress merely because of desire or because, on account of his evil character, he wishes to obtain things that are forbidden by the Law, but in order to oppose and combat the Law. Therefore it says of him: He reviles the Lord.³⁹ He must indubitably be killed. Whoever acts in this manner does so only because of an opinion formed by him, in virtue of which he is opposed to the Law. Because of this the traditional interpretation⁴⁰ states: The Scripture speaks about idolatry;⁴¹ for the latter is the opinion opposed to the foundation of the Law. For [92b] a star cannot ever be worshipped except by one who believes that it is eternal a parte ante, as we have explained several times in our compilations. To my mind, the same applies in the case of every transgression in which the wish to ruin and oppose the Law manifests itself. To my mind, if an individual belonging to Israel would eat meat with milk or would wear [a garment of] mingled stuff or round the corners of his head because he holds these prescriptions in slight esteem in view of an opinion of his that makes it evident that he does not believe in the truth of this legislation, he would in my opinion revile the Lord and ought to be put to death as an infidel and not in order to punish him for his transgression — just as the inhabitants of a town led astray are put to death as infidels and not in order to punish them for their transgressions; therefore their property is burnt and does not belong to their heirs, as in the case of the others sentenced to death by a court of law. I shall say the same about every community of Israelites who decide unanimously to transgress any commandment whatever and act high-handedly — all of them shall be put to death. You may know this from the story of the sons of Reuben and the sons of Gad, about whom it is said: And the whole congregation decided to go up to war against them.⁴² Then it was made clear to them in the warning that they had committed an act of infidelity through agreeing unanimously to perpetrate this transgression and had thereby apostatized from religion as a whole. This is the meaning of what they43 said to them: To turn away this day from following the Lord.⁴⁴ They,⁴⁵ on the other hand, replied: If it be in rebellion, and so on.⁴⁶ Grasp these principles also with regard to penalties.

The Book of Judges includes also the commandment to destroy the seed of ʿAmaleq, for one particular tribe or nation⁴⁷ ought to be punished, just as one particular individual is punished, so that all tribes should be deterred and should not co-operate in doing evil. For they will say: Lest be done to us what was done to the sons of such and such a man.⁴⁸ Thus even if there should grow up among them a wicked corrupt man who does not care about the wickedness of his soul and does not think of the wickedness of his action, he will not find [93a] a helper of his own tribe to help him in the wicked things whose realization he desires. Accordingly it was commanded that ʿAmaleq, who hastened to use the sword, should be exterminated by the sword. On the other hand, ʿAmmon and Moab, who acted in a vile manner and caused harm by means of a stratagem, were punished only by the prohibition against becoming related to them through marriage, by being considered worthless, and by their friendship being shunned. All these matters belong to the divine estimation of penalties, so that these should not be too great or too small, as He, may He be exalted, has made it clear: According to his wickedness.⁴⁹

This book⁵⁰ also includes the commandment to prepare a [secluded] place and a paddle.⁵¹ For one of the purposes of this Law consists, as I have made known to you, in cleanliness and avoidance of excrements and of dirt and in man’s not being like the beasts. And this commandment also fortifies, by means of the actions it enjoins, the certainty of the combatants that the Indwelling has descended among them — as is explained in the reason given for it: For the Lord thy God walketh in the midst of thy camp.⁵² It has also included another notion, saying: That He see no unclean thing in thee, and turn away from thee,⁵³ this being against that which, as is well known, is widespread among soldiers in a camp after they have stayed for a long time away from their homes. Accordingly He, may He be exalted, has commanded us to perform actions that make call to mind that the Indwelling has descended among us so that we should be preserved from those actions, and has said: Therefore shall thy camp be holy; that He see no unclean thing in thee, and so on.54 He has even commanded that a man who has polluted himself by night should go out of the camp until the sun sets; and afterward he may come into the camp.⁵⁵ Accordingly everyone should have in his mind that the camp is like a Sanctuary of the Lord and not like the camps of the Gentiles destined only to destroy and to do wrong and to harm the others and to rob them of their property. On the contrary, our purpose is to make people apt to obey God and to introduce order [93b] into their circumstances. I have already made it known to you that I shall give reasons for the [biblical] text according to its external meaning.

This book⁵⁶ also includes the law concerning the beautiful [captive] woman.⁵⁷ You know their dictum: [Here] the Torah only speaks in consideration of concupiscence.⁵⁸ Nevertheless this commandment includes an exhortation to noble moral qualities, which excellent men must acquire in a way I shall indicate. For though his concupiscence overcomes him and patience is impossible for him, he must obligatorily bring her to a hidden place; as it says: Home to thine house.⁵⁹ And as [the Sages] have explained, he is not permitted to do her violence during the war.⁶⁰ And he is not allowed sexual intercourse with her for the second time before her grief has calmed down and her sorrow has been quieted. And she should not be forbidden to grieve, to be disheveled, and to weep; as the text says: And she shall bewail her father and her mother, and so on.⁶¹ For those who grieve find solace in weeping and in arousing their sorrow until their bodily forces are too tired to bear this affection of the soul; just as those who rejoice find solace in all kinds of play. Therefore the Law has had pity on her⁶² and gave her the possibility to do so until she is weary of weeping and of grieving. You know that he can have sexual intercourse with her while she is still a Gentile. She may also, for thirty days in public, profess her religion, even in an idolatrous cult, and may not during that period be taken to task because of a belief. Withal if he does not succeed afterwards to convert her to the statutes of the Law, she may not be sold or treated as a slave. For the Law safeguards her inviolability on account of her having shown herself naked in sexual intercourse, even if this has happened through a certain act of disobedience — I refer to her having then been a Gentile — and says withal: Thou shalt not make merchandise of her, because thou hast humbled her.63 Accordingly it has become clear that this commandment contains encouragement to a noble moral quality. The reasons for all the commandments contained in this book⁶⁴ have accordingly become clear. [94a]