WELCOME BACK TO ANOTHER SEMESTER OF E-MAIL SHIURIM. IF YOU DID NOT WISH TO CONTINUE ON THIS LIST, JUST REPLY TO THIS E-MAIL WITH THE MESSAGE UNSUBSCRIBE, AND ACCEPT MY APOLOGIES FOR THE INCONVENIENCE. IF YOU ARE SUBSCRIBING, I HOPE THAT THIS YEAR WILL BE MORE INTERACTIVE THAN LAST. WHILE I RECOGNIZE THAT READERS SOMETIMES TAKE A FEW WEEKS TO GET TO THE MATERIALS, A SENSE OF INTERACTION (EVEN WITH QUESTIONS FROM PAST WEEKS—THEY COULD PROVIDE A HELPFUL REVIEW FOR ALL) WOULD HELP GENERATE THE KIND OF ATMOSPHERE I AM SEEKING.

To begin, lets remind ourselves where we are. Rambam, in the last section of the Guide (meaning the last half of the third part) determined to provide ta`amei mitsvot, reasons for all of the commandments in the Torah. We are currently up to chapter 41, the 6^th class of Rambam's 14, discussing punishments. The chapter is long, and we discussed part of it last year. I will quickly summarize what we had said in last year's shiurim, and then continue (but alas, not finish) the chapter this week.

RECAP OF THE BEGINNING OF CHAPTER 41

One basic rule of punishment in crimes against others, according to Rambam, is that the punishment must accord exactly with the crime. Someone who damaged someone else monetarily would be punished for exactly that amount. So, too, at least ideally someone who injured 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.

ASIDE: As I review that paragraph, it occurs to me that there is a questionable economic assumption here that is worth at least noting, although I cannot think of a practical way of applying the notion. In suggesting that economic punishments are reciprocal—you damage me $100, so I return to you $100, we ignore many other aspects of money and the objects that we evaluate. If I damage your prize car, that you spent hours working on, I can replace the monetary value of the car, but not the attachment that all that labor created. In addition, amounts of money mean different things to people of differing economic circumstances—a rich person would care differently about the $100 than a poor one. At least in theory, a truly reciprocal form of punishment might incorporate these elements as well. In some areas, halakhah sort of does, such as in the debate over whether the damages paid for injuring someone else are paid by the value of the injured person’s limb, or the limb of the injuring party. The notion of whether property has to be repaid with idit, benonit, or ziborit (3 levels of quality) is also contextualized according to the people involved.

BACK TO THE CHAPTER: In addition, the severity of the punishment will depend on the frequency and ease of its transgression. That rule explains 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 sheep or oxen led the Torah to increase the punishment. So, too, for the distinction between an armed robber (which is hard to commit and only applies to known assets) and a thief.

Rambam also listed four factors that increase the penalty the Torah will mandate in response to a crime: 1) The level of harm created, 2) The frequency of that crime 3) Its attraction to people (things that human beings are more drawn to will need a greater punishment). 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. We noted that in these factors, Rambam focused more on deterrence than on retribution. Probably, then, he sees punishments as a felicitous mix of response to the act and deterrence.

THE TYPES OF PUNISHMENT

Rambam, having "introduced" the concept, now moves to a discussion of the four classes of punishment-- death, karet, malqot (flogging), and prohibitions that do not incur actual punishment. He explains the last category first, noting that a good example of violations that do not incur flogging are those sins that have no action (lav she-'ein bo ma`aseh), such as most sins of speech (see p. 560-561for some such sins that do incur flogging). Since the sin happens by opening one’s mouth, it is less harmful than other sins and also harder to avoid doing. As Rambam says, if these sins incurred flogging, people would continually be being flogged, an interesting window into his opinion of how careless his contemporaries were in their speech.

Rambam sees the rules of malqot as wise in prescribing a maximum number, but leaving the actual amount to be determined according to the health of the person being punished. That is, no one will be lashed more than forty times (really 39, but he is discussing the Torah's prescriptions), but only so many times as they are capable of handling.

Rambam next discusses karet, but before we turn to that, let's notice that while he listed the punishments in descending order of severity, he is discussing them in the reverse order. Perhaps he thought that in presenting a list, it was worth starting from the top down, but to understand its structure required working from bottom up.

Rambam defines karet as whipping (since, according to the Talmud, courts will whip people liable for karet, as a way to absolve that sin without actually being cut off from the nation), but also as a great sin. He explains that sins of eating will generally not incur an actual death penalty, since eating neither causes great harm (presumably to society as a whole), nor are people particularly attracted to such sins (focusing on deterrence rather than retribution).

Some foods do incur karet, since various factors might heighten the severity of the transgression. Blood is such a food, because its being part of an idol- worshipping cult made it more attractive to people. Rambam's reasoning here is surprising, since blood is also offered on the altar, the reason Rambam gives for why eating fat incurs the karet punishment. For fat, however, Rambam also suggests that it tasted good. The notion of God's wish to glorify sacrifice by putting boundaries around it also explains karet for eating notar, part of a sacrifice that had been left over until after its time and eating sacrifices while ritually impure. Eating hamets on Pesah or any eating on Yom Kippur incurs karet because of the difficulty in adhering to these strictures, and because each teaches a vital truth of the Law, with hamets reminding us of the Exodus and Yom Kippur of teshuvah.

When it comes to the death penalty, Rambam sees it as limited to crimes that corrupt belief or are very great crimes. Idolatry, incestous or adulterous sexual intercourse, and murder are prime examples, but also violating Shabbat, which fortifies belief in the Creation of the World. We have in earlier shiurim discussed the question of whether the world was eternal, created from some original matter, or created from nothing. We noted that the question goes back at least to Plato, and Rambam’s position is still debated by modern academics, despite his explicit assertions that he believes in Creation ex nihilo, yesh me`ayin, from absolute nothingness. This casual reference supports that claim as well.

Other capital crimes include: 1) False prophecy and the zaqen mamre, the rebellious elder, because of the (unspecified by Rambam) great harm they cause. 2) The ben sorer u-more, the stubborn and rebellious son, the kidnapper, and the robber who breaks and enters a house—all three of these are seen as indubitably leading to murder in the future, so their lives are forfeit already.

Within improper sexual intercourse, Rambam notes, only those that are either the easiest to engage in, the most harmful (undefined), or most attractive (again, undefined), are punished by death; the rest by karet. So, too, only the most serious idolatry gets actual death. While the definitions of these last two categories are debatable, Rambam’s general view of punishment is clear—death is for the most serious, accessible, and harmful crimes, with the lesser punishments for lesser versions of those crimes, or for crimes that are inherently less serious.

To close off this section of the chapter (and this week’s presentation), Rambam returns to the rebellious elder. In the previous paragraph (on p. 562), he had only said that a rebellious elder causes great harm. Now he points out that part of having a system of punishments is having judges, witnesses, and so on. As part of such a judicial system, there will be the temptation to tamper with the Law, to help it accord better with the particular times in which it is being applied. God prohibited that with the rules of bal tosif and bal tigra, the prohibitions of adding to, or taking away from, Biblical Law.

At the same time, the Sanhedrin was vested with the power to promulgate such ordinances as were necessary for the protection of the Law, as long as they made clear that it was their enactment, not the Torah, which they were imposing on the nation. If this power were to be allowed to every advanced scholar, however, the Law would become many, and God wanted it to remain one. The rebellious scholar, then, is endangering the unity of the Law, and it is for that crime that he is punished.

Note that Rambam’s explanation indicates that a zaqen mamre would only be punished for rejecting the Rabbis’ ordinances, since he focuses on that as essential to the Sages’ function. However, in the Mishneh Torah, at least in the third chapter of Hilkhot Mamrim, Rambam seems to include any dispute with the Sages as possibly leading to the notion of a zaqen mamre. Perhaps he believed that the most likely place for such disputes would be in the case of ordinances, since he thought the traditions were never lost or debated (see Mamrim 1;3), although there is still the category of rules derived through the use of the 13 hermeneutical principles. In any case, he uses the need for unity as the fundamental explanation of the severity of the zaqen mamre’s crime. We will, be"H, finish this chapter next week. Shabbat Shalom.