THE LONG ROAD TO AN UNDERSTANDING OF PUNISHMENTS

Chapter 41 is Rambam’s explanation of the laws incorporated in the Book of Judges. So far, Rambam has elucidated the notion of punishment being middah ke-neged midah, exactly fitting the crime. In addition to that, Rambam has noted the relevance of deterrence in determining punishment. Those crimes that are easier to commit, more seductive, and/or more harmful in their consequences need to have more severe punishments to help prevent people from falling into those crimes. The two notions of retribution and deterrence led Rambam to a discussion of the actual punishments—death, karet, flogging, or crimes that don’t get an actual punishment by the court.

From there, Rambam moves into a discussion of the ways in which people can sin (or commit crimes; the line between the two is unclear and unimportant to Rambam, as we will see in his treatment of idolatry as a crime). He notes that people can sin by being compelled to do so, inadvertently, deliberately, or high-handedly. Each type is worth pondering for a moment.

COMPELLED TRANSGRESSIONS

This is really the easiest type, in that no punishment accrues to the person compelled. I would note that the source text for this rule was in last week’s Torah reading, where the Torah absolves a betrothed (meaning partially married) woman who was found to have engaged in sexual relations with someone other than her husband outside of a city. Since it was a secluded area, we assume that she unsuccessfully resisted the man, but found no one to help her when she cried out. That verse is taken as a general principle, that if someone is forced to commit a crime (or sin), they are free of all responsibility. Of course, the definition of compulsion is important here, and might differ for different types of sins (is economic compulsion sufficient to allow a person to sin, and so on)—but those are technical questions that Rambam does not address.

INADVERTENT TRANSGRESSIONS

It is interesting/remarkable/coincidental that Prof. Pines (Rambam’s translator) chose the word inadvertent for shegagah, the Hebrew term for a sin that was committed by virtue of some kind of lack of knowledge, because of an incident that happened to me this past weekend. My wife Elizabeth had relatives in for Shabbat and one of them works for a hospital, typing up doctors’ recorded notes of their procedures. She was telling us that the word doctors use for mistakes that they make, even egregious ones that would probably incur a large malpractice suit were the family to know about it, is "inadvertent." It is interesting to me, therefore, that that precise word is used here to describe a sin which does not incur the same liability as if it had been performed deliberately, but which is also not blame-free.

There are two main ways that one can sin inadvertently, by not knowing the nature of the act that you are committing (you eat prohibited fat thinking that it is from a different, permitted, part of the body) or by not knowing the law about that situation (you know that this piece of flesh comes from that part of the body, but not that it is prohibited). That is Rambam’s example; an easier example to grasp might be the question of turning on lights on Shabbat. A person might not realize that the switch they are switching turns on a light (one of my favorite Steven Wright lines: "I have a switch in my house that doesn’t do anything, so every so often I flick it on and off. About a month ago, I got a letter from a woman in Germany; she said cut it out."). Alternatively, a person can not know that the act of turning lights on violates Shabbat. (In the case of Shabbat, there is a third level, in that the person might not know of the whole notion of Shabbat, but that’s not our issue).

THE ROLE OF SACRIFICE

In both kinds of inadvertent transgression, for many kinds of sins, atonement is needed, but not punishment. Rambam does not explain the distinction, but presumably atonement is an act that the sinner takes in order to rectify his/her relationship with God. While in some cases courts might be willing to force the bringing of the sacrifice, primarily the sacrifice is an avenue to greater religious fidelity rather than a punishment for past crimes. Other court actions—death, flogging, etc.—might have an atoning element to them, but are primarily a means of punishing the person who committed the crime.

In mentioning sacrifices for inadvertent crimes, Rambam notes that the Torah distinguishes between a private individual, a High Priest, a king, and a person competent to decide points of Law. He then says that if such an individual rules (wrongly, although inadvertently) on issues of law, he is considered a deliberate transgressor. Only if he functions as part of the Sanhedrin (and the majority rules wrongly, inadvertently) can he join in a special type of sacrifice, the inadvertent sacrifice brought by the High Court for these kinds of situations.

THE REBELLIOUS ELDER, AGAIN

I note that detail in Rambam’s presentation, because it leads him to mention again the zaqen mamre, the rebellious elder. While the Court can rule on issues of doctrine (the exact definition of the scope of issues we are discussing is not made explicit here), an individual cannot. It is in that light that Rambam explains the words of Avot IV;13, she-shigegat Talmud oleh zadon, which literally means "mistakes in Talmud count as deliberate."

In his Hilkhot Talmud Torah, Rambam had defined Talmud as the inferences and new ideas that rabbis elicit from tradition. Here, too, he sees the Mishnah as meaning that mistakes made in establishing the correct doctrines of Jewish law are seen as deliberate, unless they are made by the body vested with the power to make those decisions.

This is the third time in this chapter that Rambam mentioned the zaqen mamre; he had given him as an example of a crime that, by virtue of the detriment it causes, deserves death. He had then spent a long paragraph explaining the importance of a central body to oversee the judicial system, to explain the elder’s getting the death penalty. And, finally, here he notes that the elder will not bring a special sacrifice (despite his qualifications to rule on issues of Jewish law), because his mistaken ruling would be considered deliberate, since he had exceeded the bounds of his authority in issuing such an individual ruling.

Why is Rambam so interested in the zaqen mamre? I believe (I have no proof, except for what I know of Rambam) that Rambam’s philosophical focus, and his knowledge of Karaism as a continuing danger to traditional Judaism, gave particular importance to the question of who has authority to rule on the central matters of Jewish law and thought. His conclusion was that the system was set up in such a way that there would be a central authority, whose word had to be heeded, and whose decisions were final. Ironically, a Sanhedrin in Rambam’s times would likely have required him to bow to the majority view on many occasions, since his views, as creative and stimulating as they are, are often in the minority of rabbinic opinion.

DELIBERATE TRANSGRESSIONS

I hope obviously, those who transgress deliberately incur whatever punishment the Torah prescribed. Rambam here adds the notion of makkat mardut, flogging of insubordination, for those crimes not punishable by either regular flogging or a fine. While perhaps that was obvious, I was always taught that those kinds of lashes, which are administered until such time as the sinner agrees not to sin again, were generally given for the transgression of rabbinic commands. Rambam here seems to see these extrasystemic lashes as an appropriate response to any transgression that does not have a specific punishment.

Rambam then mentions three sins where even the deliberate transgression is treated as inadvertent. The exact examples--two kinds of false oath and a particular prohibited sexual union-- do not interest me particularly, but his explanation that these sins are so common or easy to transgress does. Earlier, Rambam had said that the ease of transgression would be a reason to impose a heavy punishment, in order to properly deter its commission; here, he sees the Torah's treating even deliberate acts lightly as a result of the ease of the transgression. Apparently, punishment has to tread a fine line in dealing with easy sins-- some need to be punished harshly, but with some, we just need to recognize human weaknesses and react appropriately.

HIGH-HANDED TRANSGRESSIONS

The final category of transgression that Rambam knows is a deliberate attempt to violate the Law. Most people, even those who deliberately sin, are doing so in response to a particular appetite or lust, or perhaps because their bad character has led them to wish to act in a certain way. The person who sins simply as a repudiaton of a law of the Torah, however, rebels against God in that very act, and therefore deserves death. Rambam notes that Hazal understood the verse in the Torah that expresses this idea-- et Hashem hu megadef--as referring to idolatry, since idol worship inherently involves a reviling of God.

Nevertheless, Rambam says, it is his opinion that any high-handed transgression that includes a rejection of God's Law should be punished the same way, with death. In his examples, if someone eats milk and meat together or gets a halakhically inappropriate haircut (cutting the sideburns off) only to show his rejection of that precept, the person should be put to death. So, too, if any community of Jews (remember the Karaites!) selects rules of the Torah to reject, they should be put to death.

He explains an incident in the end of Sefer Yehoshua along these lines-- the 91/2 tribes that took up residence west of the Jordan heard that the 2 1/2 tribes who stayed on the east side had built an altar. Assuming that the altar was for (prohibited) sacrifice, the 9 1/2 tribes threatened to attack and only desisted after being assured that the altar was not, in fact, a sign of their leaving Judaism for a different form of religion. Had the 21/2 tribes not explained, however, their brethren would have attacked them, to force them back into the fold.

So, too, Rambam envisions it as the responsibility of the bulk of Jews to put to death anyone who takes a heretical stand. Nowadays, of course, that view is a logistical and philosophical nightmare, but it is worth considering the structure of a theocracy (assuming one could be established) and the proper ways for it to handle dissent. Rambam, living in a sectarian time, had strong views, and it is those that conclude his discussion of the types of sin.