Hostname: page-component-848d4c4894-4hhp2 Total loading time: 0 Render date: 2024-05-30T01:59:12.949Z Has data issue: false hasContentIssue false
  • English
  • Français

The Penology of the Talmud*

Published online by Cambridge University Press:  12 February 2016

Haim H. Cohn
Get access

Extract

Penology, or the science of punishment, has three different aspects: the technique of punishment, or the character of the various punitive measures and the means by which they are enforced and implemented; the psychology of punishment, probing into the function of punitive action, both in so far as the victim, that is the person punished, is affected, and in so far as such action is calculated to satisfy the needs or purposes of the punishing authority; and the sociology of punishment allocating to penal activity its place (as part of the legal institutional framework) in the social, economic and political life of the community. All these aspects are interconnected, and the view generally advocated (though hardly proven as yet) is that they are also interdependent: the psychological effect as well as the sociological impact of any given penalty depends, it is held, on the nature of the penalty concerned and the manner in which it is implemented. The fact cannot, however, sufficiently be stressed that any such interdependence is not, as a rule, preconceived or planned in advance. It is for the historian of penal law or penology to establish on the statistical or other data what has, in fact, been the effect or the impact of any particular punishment in any given period or community. But the penologist is not necessarily either historian or statistician. While, like the lawyer, he builds on institutions which have come down from the past, neither his theorization nor his planning is bound by precedent or past experience, and he may well dismiss the past as one great error which exists only to be rectified or eliminated. This being so, for a penology to develop it is not necessary that there should be any practical experience with the effect and impact of punishments actually imposed. It is true that in the absence of such practical experience, penology will remain an exercise in theorization and planning, not unlike the exercises in “utopian” and idealistic legislation which have occupied so many geniuses in the past; but that does not derogate from the validity of, and the scientific attention due to, the reasons and considerations underlying the theories propounded.

Type
Articles
Information
Israel Law Review , Volume 5 , Issue 1 , January 1970 , pp. 53 - 74
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1970

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 Maimonides, , Hilkhot Sanhedrin 14, 11–14.Google Scholar

2 e.g. Sanhedrin 52b.

3 Maimonides, , Commentary ad Mishnah Sanhedrin VI, 6.Google Scholar

4 Maimonides, , Hilkhot Sanhedrin 11, 4.Google Scholar

5 e.g. B Kiddushin 81a; J Sukkah V, 55.

6 e.g. B Ketubot 86a–b.

7 Cf. Maimonides, , Hilkhot Sanhedrin 16, 2–3.Google Scholar

8 e.g. Deut. 13, 18; Num. 25, 4.

9 e.g. Deut. 18, 12; 22, 5; 25, 16 and 27, 15.

10 e.g. Lev. 20, 2 and 24, 16; Num. 15, 35–36; Deut. 21, 21 and 22, 21.

11 Joshua 7, 24–25; 1 Kings 12, 18; 1 Kings 21, 13; 2 Chron. 24, 21.

12 Acts of Apostles 7, 58.

13 Josephus, Flavius, Antiquitates Judaicae xvi 10, 5 and 11, 7Google Scholar; Belli Judaicae I 27, 6.

14 The throwing down from the Tarpeian rock was a well-known Roman mode of execution: Si nunc quoque ut antea qui falsum testimonium dixisse convictus esset, e saxi Tarpeio deiceretur: Table viii 23. And see Gellius 20, 1, 53. De saxo deici is often mentioned also in non-legal sources: e.g. Livius, Ep. 59; Plinius, , Historia Naturalis 7, 44, 143Google Scholar; et al.

15 2 Chronicles 25, 12: The children of Judah brought their captives “unto the top of the rock, and cast them down from the top of the rock, that they all were broken in pieces”.

16 M Sanhedrin VI, 4.

17 e.g. B Sanhedrin 52b.

18 B Sanhedrin 42b, 45a.

19 Commentary ad Mishnah Sanhedrin VI, 4.

20 See Makarewicz, , Philosophie des Strafrechts (Stuttgart 1906) 214 ff.Google Scholar

21 B Sanhedrin 42 b.

22 See my Al Onesh Hassekilah (Bar-Ilan University, 1962), passim.

23 M Sanhedrin VI, 1.

24 Rashi ad B Sanhedrin 45 a, q.v. Minval.

25 B Sanhedrin 45 b & 52 a; B Ketubot 35 b; B Pessahim 75 a; et al.

26 e.g. Judges 12, 1 and 14, 15.

27 M Sanhedrin VII, 2.

28 B Sanhedrin 52 b.

29 M Sanhedrin VII, 2.

30 M Sanhedrin VII, 3.

31 Rabbi Yehudah (2nd century), who therefore held that no strangulation should take place, but the burning wick be forcibly introduced into the mouth: M Sanhedrin VII, 2. For a similarly rigorous approach of Rabbi Yehudah, see text at nn. 87 and 88, infra.

32 B Sanhedrin 52 a.

33 Sifra ad Leviticus 10, 2.

34 In later Roman law, we find that nurses who aided their virgin wards in immoral conduct, were to be punished by having their mouths and throats closed “by pouring in molten lead”: Codex Theodosius 9, 24, 1. But it is doubtful whether this is capital punishment at all, and anyhow no fire or flame is involved. And cf. Zach. 5, 7–8. The same applies to what used to be a sanction for breaches of contract in Alalakh (in present-day Turkey, near the Syrian border) to pour hot lead down the defaulter's throat. See Studies in the Aramaic Legal Papyri from Elephantine by Yochanan Muffs (1969). I am indebted to Professor Yaron for this reference.

Death by suffocation in fire smoke was known in ancient Germanic law: see Wilda, , Strafrecht der Germanen (1842, Reprint 1960) 504, 940.Google Scholar

35 One such instance of burning to death by way of execution is reported in the Talmud: B Sanhedrin 52 b, but was sharply criticised as unlawful. In post-talmudic times, executions by burning in the Middle Ages, especially at the hands of the Inquisition, may have been influenced by such references to “burning fiery furnaces” as are to be found in the Bible: cf. Daniel 3, 15, 20, 21, 22, 23, 26; et al. Everlasting fire is the punishment for sinners threatened in the New Testament: see Matthew 25, 41; and the furnace of fire is mentioned there, too: see Matthew 13, 42.

In contradistinction to the talmudic concept of burning while keeping the body intact, the burning of the Inquisition had for its avowed purpose the complete destruction of the body. In the words of a 14th-century inquisitor, Bernard de Gui: “The object of the Inquisition is the destruction of heresy. Heresy cannot be destroyed unless heretics are destroyed, and heretics are destroyed when they are corporally burned.”: Lea, , The Inquisition of the Middle Ages (Nicholson, ed., New York, 1961) 251.Google Scholar

36 B Sanhedrin 52 b–53 a; Sifra Kedoshim 9, 11.

37 M Sanhedrin VII, 3.

38 Winter, Paul, On the Trial of Jesus (Berlin, 1961) 74.Google Scholar

39 B Sanhedrin 52 b; Mekhilta of Shimon bar Yohai ad Exodus 21, 14; B Ketubot 30 a.

40 M Sanhedrin VI, 4.

41 Maimonides and Obadiah of Bartenura, ad loc.

42 M Sanhedrin VI, 4; B Sanhedrin 45 b.

43 Nahmanides (1194–1270) ad Deut. 21, 23.

44 Ezra 6, 11: “whosoever shall alter this word [that is, violate this law], let a beam be pulled out from his house, and, being set up, let him be hanged thereon; and let his house be made a dunghill for this.”

45 M Sanhedrin VII, 3; B Sanhedrin 52 b.

46 M Makkot I, 10.

47 B Makkot 7 a.

48 Commentary ad M Makkot I, 10.

49 For instance in ancient Greece, where the punishment for religious offences (Asebia) was at the discretion of the popular assembly which had the choice between capital punishments, exile, ostracism and fines in any amount: see Busolt, , Griechische Staatskunde (3rd ed.Muenchen, 1920) Vol. I, p. 525.Google Scholar

50 For the influence of the Code of Hammurabi on biblical law, see, among many others, Meek, , Hebrew Origins (Rev. Ed. New York, 1950) p. 68Google Scholar; Feuchtwang, , “Moses und Hammurabi” (1904) 12 Monatsschrift fuer Geschichte und Wissenschaft des Judentums 385 ff.Google Scholar; Jeremias, , Moses und Hammurabi (Leipzig, 1903), 21 ff.Google Scholar; Grimme, , The Law of Hammurabi and Moses (1907).Google ScholarDelitzsch, , Babel und Bibel (1902).Google ScholarDavies, , The Code of Hammurabi and Moses (1905).Google ScholarMüller, , Die Gesetze Hammurabis & die Mosaische Gesetzgebung (1903).Google ScholarJohns, , The Relationship between the Laws of Babylonia and the Laws of the Hebrew Peoples (1914).Google ScholarCook, , The Laws of Moses and the Code of Hammurabi (1903).Google Scholar And cf. Jackson, , “Evolution and Foreign Influence in Ancient Law”, (1968) 6 Am. Journ. of Comp. Law, 373 ff.Google Scholar It has been said that the talionic principle had already been rejected in such ancient systems as the Sumerian and Hittite: see Korosec, , “Keilschriftrecht”, Handbuch der Orientalistik, Ergänzungsband III: Orientalistisches Recht (Leyden, 1964) 205.Google Scholar

51 Ex. 21, 24–25; Lev. 24, 20; Deut. 19, 21.

52 Gen. 6, 5–7: “And the Lord saw the wickedness of man …And said, I will destroy man whom I have created from the face of the earth.…” The injustice of this kind of unbounded punishment is pleaded before God by Abraham in Gen. 18, 23–25, and by Nimurta in the 11th Table of the Gilgamesh Epos.

53 Gen. 18, 26–33.

54 Cf. Jer. 23, 19 and 30, 14–15; Ezek. 5, 7–13; Nahum 1, 2; et al. The jealous (literally: vindictive) God is found in Ex. 20, 5; Deut. 5, 9; Ex. 34, 14; Deut. 4, 24 and 6, 15; et al.

55 Megillat Ta'anit 4, 2; Jost, , Geschichte des Judenthums und seiner Sekten (Leipzig, 1857) Vol. I p. 221Google Scholar; Weyl, , Die Juedischen Strafgesetze bei Flavius Josephus (Berlin, 1900) 153 ff.Google Scholar

56 De Specialibus Legibus III, 181–82.

57 Michaelis, Johann David, Mosaisches Recht (Frankfurt, 1774) Vol. 5 pp. 64 ff.Google Scholar

58 Eliezer, Rabbi: Babba Kamma 83 b.Google Scholar

59 Shakespeare's source was presumably the similar discussion with the philosopher Favorinus, reported by Gellius in his Noctes Atticae 1, 20, 1.

60 B Babba Kamma 83 b–84 a.

61 Rav Sa'adia Gaon, quoted by Ibn Ezra ad Ex. 21, 22.

62 M Sanhedrin VII, 10; B Sanhedrin 33 b and 36 b. And see Maimonides, , Hilkhot Sanhedrin 11, 5.Google Scholar

63 The law of the Twelve Tables provided that the victim had the choice between talion and monetary compensation: si membrum rupsit, ni cum eo pacit, talio esto: Tabula VII 2. See Ihering, , Geist des roemischen Rechts (10th ed. Aalen, 1968) Vol. I pp. 133 ff.Google Scholar Later it was laid down that the victim would not be allowed to refuse monetary compensation, if the judge found the compensation offered adequate: si reus, qui depecisci noluerat, iudici talionem imperanti non parebat, aestimata lite iudex hominem pecuniae damnabat: Gellius 20, 1, 38.

64 B Babba Kamma 83 b. And see Rashbam ad Num. 35, 31.

65 Rabbi Yitzhak: Mekhilta ad Ex. 21, 24.

For a full treatment of the talion in biblical and talmudical law, see Goitein, , Das Vergeltungsprinzip im biblischen und talmudischen Strafrecht (Frankfurt, 1893) 43 ff.Google Scholar

66 B Ketubot 32 b; B Sanhedrin 85 a; B Makkot 9 a.

67 B. Makkot 13 b; B Ketubot 37 a; et al.

68 For further equivalent punishments in the Bible see Ex. 32,20; Judges 1, 7; 2 Samuel 4, 12; 2 Kings 9, 26; Daniel 6, 25.

69 B Sotah 8 b–9 a.

70 B Sanhedrin 58b; B Niddah 13b (cutting off hands).

71 Responso Asheri 17, 8 and 18, 17; Responsa of Yehudah, son of Asheri, 58; Halakhot Pessukot 84; Yeruham, , Sefer Meisharim II 51.Google Scholar And see Assaf, op. cit. 21.

72 For instance, the confiscation, by way of (mostly additional) punishment, of vehicles employed in the commission of the offence, of firearms and other instruments by which the offence was committed, or of smuggled goods; or the suspension of licences to carry on trades or professions in the course of which the offence was committed, or of driving licences of careless drivers; etc.

73 For the distinction between identical and equivalent punishments, see Wundt, , Voelkerpsychologie, Vol. IX Das Recht (Leipzig, 1918) 447 ff.Google Scholar

74 Nemoy, , Karaite Anthology (New Haven, 1952) pp. 13–14.Google Scholar

75 M Sotah I, 7; T Sotah III, 1 (Punishments) and IV, 1 (Rewards).

76 B Shabbat 31 a.

77 As to which see my “Prolegomena to the Theory and History of Jewish Law”, Essays in Jurisprudence in Honor of Roscoe Pound (Indianapolis, 1962) 68 ff.; and Newman, Ralph, “The Hidden Equity” (1967) 19 Hastings L.J. 154Google Scholar, and “The Principles of Equity as a Source of World Law” (1966) 1 Is. L.R. 616 ff.

78 Translation by the Jewish Publication Society of America (Philadelphia, 1962) p. 369.

79 Obadiah of Bartenura ad M Makkot III, 11.

80 Hilkhot Sanhedrin 17, 1; and, to the same effect, in his Commentary ad Mishnah Keritot II, 4.

81 M Makkot III, 10.

82 B Makkot 22 b.

83 Hillel's great reform, the Prosbol, was decried by one of the outstanding scholars of the day as an impertinence which, had he but the power, he would instantly revoke: B Gittin 36 b–37 a.

84 M Makkot III, 11; B Makkot 22 b.

85 B Makkot 23 a.

86 B Makkot 22 b–23 a. And see Maimonides, Hilkhot Sanhedrin, Chap. 17.

87 B Makkot 23 a.

88 For further minority views of Rabbi Yehudah in aggravation of punishments, see M Sanhedrin VII, 2–3. And cf. n. 31, supra.

89 M Makkot III, 15.

90 Cf. my “Prolegomena to the Theory and History of Jewish Law”, loc. cit. 81.

91 Translation of the Jewish Publication Society of America, ibid.

92 M Makkot III, 15.

93 Maimonides, , Hilkhot Sanhedrin 17, 7.Google Scholar

94 Commentary ad Mishnah Makkot III, 1.

95 See n. 67 supra.

96 B Megilla 7 b; B Makkot 22 b. And see my “Courts as Expropriators” (in Hebrew, with English abstract), Papers to the Fourth World Congress of Jewish Studies (Jerusalem, 1967) Vol. 1 at p. 188.

97 B Yoma 86 a.

98 Mekhilta Yitro 7; J Yoma VIII, 7: J Shevuot I, 7.

99 B Shevuot 21 a: B Temurah 3 a–b.