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HOW THE TORAH CHOOSES A PUNISHMENT

Last week, we had just seen Rambam explain one basic rule of punishment, that it accord exactly with the crime. For Rambam, that meant that someone who damaged someone else physically should incur the same physical punishment (at least as far as the Torah was concerned). For property as well, the damage should be exactly reciprocal.

However, there are situations where the Torah mandates more than reciprocal punishment, and to fit these examples into his framework, Rambam enunciates another principle, that the severity of the punishment for a crime will depend on the frequency and ease of its transgression.

That explains for Rambam the odd standards of punishment the Torah sets up for the theft and slaughter/sale of a sheep or an ox. Presumably, theft is theft, so that we would have thought to punish them all the same way. However, Rambam says, the ease of stealing a sheep (he sees an ox as even more easy to steal, since they graze more widely and are thus not under the constantly watchful eye of the shepherd) makes the Torah double the punishment, so that we pay four times the value of the sheep as opposed to the ordinary double the value of the object stolen.

Rambam applies the same logic to the distinction between a robber (gazlan, someone who steals by force and in the open) and a thief (a ganav, who steals in secret). While the latter has to pay double, the former only has to pay back the object stolen, because the incidence of robbery is so much less than that of theft, for several reasons. First, theft can occur anywhere, but it is difficult to commit robbery in densely inhabited places. Second, robbery only steals assets that are out in the open; if the robber does not know that the assets exist, he will not ferret them out. Third, we know the identity of the robber, so that it is easier to bring him to justice. All these reasons restrict the frequency with which people will commit robbery, lessening the Torah’s reaction to a robber.

VALID REASONING?

While the principle Rambam is supporting is a worthwhile one, his examples are difficult for several reasons. To begin with the sheep and the ox, the sheep-thief does not pay double the fine of the ordinary thief, he pays triple—the original object plus three times its value as a fine, as opposed to an ordinary thief who pays the object plus one time its value as a fine. Further, his explanation of the extra payment for an ox—that it is easier to steal an ox because of its grazing habits—does not accord with the reasons that Hazal gave for that distinction (see Rashi on the verse). Finally, Rambam does not correlate the frequency of the crime to the adjustment in punishment. For his logic to really work, he would have to show that stealing sheep is generally three times (or twice, if we take his number) as frequent as ordinary theft. There is no reason to double the punishment for a kind of crime that is only 20% more common.

The distinction between robbery and theft is similarly problematic. First, Rambam assumes a small-town mentality, where everyone knows everyone. In a big city, however, robbery can take place al the time, without anyone noticing the crime or responding to it. Similarly, he assumes that robbers only steal well-known assets, but we can easily imagine a robber who forces his victims to reveal where they have hiddent their valuables. Lastly, Rambam assumes that a robber is someone whose face we see and know, and can therefore bring to justice at a later date. That would suggest that an armed robber who wore a good enough mask would be a thief in Rambam’s picture, a patently false claim.

Furthermore, Rambam points out that the additional payment of a fifth of the object’s value is only required of the robber who swears falsely. He cites this point to show how the punishment for the robber is less severe because of its infrequency, but it actually also shows that there is not really a punishment for the robber mandated by the Torah at all (it is a lav hanitak le-`aseh, a prohibition connected to a positive commandment to return the object stolen), which is not fully explained by the distinction in their frequency.

REINFORCING THE CORRELATIVE NATURE OF PUNISHMENT

Stuck in between those two discussions, Rambam mentions the law of edim zomemin, false witnesses (it is actually a more specialized category than that, but we do not need to enter into the intricacies of the issue) as an example of punishment that exactly fits the crime. In the case of edim zomemin, the Torah explicitly connects the two, saying "ve-`asitem lo ca’asher zamam la`asot le-ahiv, you shall do to him [the witnesses] as he intended to do to his fellow." (There again, I would note, the punishment doesn’t quite fit the crime, because we only punish the witnesses in that way if they did not succeed in their attempt. If the defendant was already put to death, for example, we would not punish the witnesses who were later proven to have testified falsely. Explaining that would also require too lengthy a digression from our topic to be worth our while, but it does show a difficulty in Rambam’s claims.) Why is this example of punishment fitting the crime stuck in between two examples of punishment that is based on the frequency and/or ease of transgression?

Rambam does not explain, but it seems possible that the flow of the paragraphs is simply to show the various ways in which punishments fit the crime—to emphasize that ease and frequency are really factors that affect the severity of the crime and therefore the appropriate response, Rambam puts them right in the middle of his discussion of middah ke-negged middah, of the attempt to correlate the punishment exactly with the crime.

I would also note that Rambam points to punishment as part of what qualifies the Torah’s laws as righteous statutes. We have previously seen Rambam’s contention that the Torah’s laws were meant to be explainable to non-Jews in a rational fashion, which would demonstrate to them (the non-Jews) its beauty. Here, he adds that the correlative nature of punishment is part of that characterization—we can show non-Jews that the Torah is a beautiful system, in that it is careful to administer punishment that fits the crime. The meaning of "fits the crime," however, is complicated, as we will see.

CATEGORIES OF CRIME

It is at this point in the chapter that Rambam writes the word "Introduction" (or the Arabic equivalent). Everything until now, apparently, has been laying the groundwork for the discussion to come. Rambam now lists four factors that will affect the kind of penalty the Torah will mandate for a crime: 1) The harm that results—a crime that leads to a great deal of harm (theological, communal, physical, etc.) will be punished more severely than a crime that does not. 2) The frequency of that crime—if a crime occurs often (as theft might in some societies) it has to be punished more severely, to provide a greater deterrent. An example in our society might be the mandatory sentences for drug laws, which were an attempt to make the consequences so great that people would not commit the crime. 3) The level of enticement in the crime (things that human beings are more drawn to will need a greater punishment to deter than less exciting inducements). 4)The ability to commit the crime in private, a factor that would pave the way to engaging in the crime with impunity, and therefore requires a greater deterrent to avoid it.

DETERRENCE OR PUNISHMENT?

Rambam then lists the main forms of punishment, death, karet (which human courts will punish by flogging), flogging (without the opprobrium of the notion of cutting off), and a transgression which will not be punished by the courts under Torah law. We will not have the time to go into those categories at this point, but I wanted to make explicit the framework under which Rambam is operating.

In these four factors, Rambam focuses much more on deterrence than on fairness. Before, he had stressed that the punishment matches the crime. Here, however, each of the factors that he lists show how great a deterrent a crime requires to be prevented--the harm that would ensue from a sin, the ease, enticement, and possibility of sin in secrecy all similarly affect the extent to which a greater deterrent is necessary. It may be in the nature of a deterrent that if it fails, the punishment has to be administered, but the reason we are administering it seems less connected to the crime committed than to upholding the punishment as a valid deterrent.

Probably, then, Rambam sees these punishments as a felicitous mix of fairness and deterrence. In determining a punishment that matches a crime, we need to take into account the exact nature of that crime. Crimes or sins that are more frequent, etc., are by those very facts more severe, and incur more severe punishment. An exact theology of punishment is also shown to be elusive, since the characterization of sins depends not only on the sins’ objective severity, but also on many human factors.