Divine Guidance Chapter 3 Part 3
Criminal Actions Harmful to Others

Introduction - we now come to the mitzvot related to matters that today we would study under the rubric of criminal law. Our law differs in several respects with these principles, but it is remarkable to see how much they inform and guide our thinking about justice in our own time.

Let’s use some of the essential notions we learned in “love of neighbor” to guide us in our study and discussion. Let’s consider what the mutual consensus of view about actions in question would be if we, our neighbor, and God were deliberating on the matter. This deliberation could take the form of God, as the Ultimate Lawgiver, the Protector, and Judge; our self as the interpreter of God’s guidance and partner in its implementation; and three “neighbors” - the victim, the alleged criminal, and, in general, the members of the community and their interests. Let’s see where the mitzvot take us in our understanding God’s expectations of how we resolve these interests of all these neighbors in a just and loving way.

1. Read Exodus 22: 1-4 

Exodus 22: 1 When someone steals an ox or a sheep and then slaughters or sells it, the thief must pay back five oxen for the one ox or four sheep for the one sheep. 2. If a thief is caught breaking in and is beaten and dies, the one who killed him won’t be guilty of bloodshed.  3. However, if this happens in broad daylight, then the one who killed him is guilty of bloodshed. For his part, the thief must make good on what he stole. If he has nothing, he must be sold to pay for his theft.  4. If an animal (whether ox, donkey, or sheep) is found alive in the thief’s possession, he must pay back double.

Q1. What do we learn here about theft, and what principles underlie the differentiated consequences for these acts?

1. Theft of an animal requires twofold restitution if the animal is found alive.

2. If it’s a sheep (an animal that does not perform labor), it’s fourfold restitution, if it’s been slaughtered.

3. If it’s an ox (an animal that does perform labor), it’s fivefold restitution, if it’s slaughtered.

4. A thief may be killed if caught breaking in, and a thief, if a bondman, may be sold to make restitution.)

B. OK, as strange as some of this language seems to us, what principles do we derive from it?

1.      The victim must be made whole, and the perpetrator must be discouraged from stealing and punished.

2.      While the formula may be off in our thinking, the principle seems right: a punishment for loss of an animal that’s been retrieved should reflect the loss of value and production for a period of time, anxiety associated with the loss, and a loss of dignity in being victimized. Further, it should punish the perpetrator. Perhaps this is why it’s a double-the-actual-loss penalty.

3. The penalty for an animal that has been killed should be more severe      because the loss is greater. Further, the total loss of a working animal would be greater than one that is not, thus, the fivefold penalty for the former and the fourfold for the latter.

4. Restitution is key here. It has not always been so in our criminal law, though it has become more so in recent times. The wisdom here seems profound. What good is it to the victim if the perpetrator is punished but the victim is not made whole? We don’t have bondmen who are sold today, but people who are found guilty of theft do often have to pay back or risk prison.

5. As to killing the thief who breaks in, one could debate the matter. It seems harsh. On the other hand, it might implicitly suggest that the victim has a fear of the intrusion that goes beyond the potential loss of property but also includes the need for self-defense. Indeed in much commentary this intruder is characterized as a thief who “tunnels” in with the clear purpose of doing harm.

All and all, these principles, taken as a whole, seem sensible and effective in meeting the goals of deterring crime, making whole the victim, punishing the perpetrator, and restoring overall peace and harmony in the community.

2. (Read Two Readings) 

Leviticus 19:11 You must not steal nor deceive nor lie to each other.

Deuteronomy 19:14 Now in the land the Lord your God is giving you, in your allotted property that you will receive there, you must not tamper with your neighbor’s property line, which has been previously established.

Q2. What are some of the special concerns we have about stealing from each other? How and in what ways could we steal from God?

A. The second mitzvah here seeks to illustrate such an offense. Why is this one featured, do you think?

One possibility is that altering land boundaries is a particularly surreptitious, hard-to-detect, and thus more dangerous form of stealing. The Text sometimes focuses on such concerns, as if to say we must be on guard in all ways, but on special guard with those offenses that may more easily go unnoticed, and perhaps that God notices even if we don’t.

B. Are there other ways to steal from another in which one takes something other than material things? What, and how?

The sages talk about interacting with others in a deceptive or misleading manner, including doing business in an underhanded manner. Creating a false impression of friendliness or causing another to feel beholden when that feeling is unwarranted - these are examples, too. Earning gratitude or goodwill through devious and cunning tactics is another.

C. Are there ways in which we steal from God? Illustrate.

What about wasting the time we have? What about taking away from human potential, ours or others? What if we take of our material well being and serve idols with it instead of God? What if we steal from the good name of another by gossiping or tale-bearing?

3. Read Exodus 20:16

Exodus 20:16  You shall not bear false witness against your neighbor.

Q3. Why is this considered so important to justice?

(False witness steals another’s right to justice and steals from all by undermining the system created by the mitzvot to administer justice generally. This, thus, is one of the gravest sorts of sins and is seen as a sin against God, the Lawgiver, who gave us the gift of these mitzvot with the expectation that we live justly among ourselves.)

4. Read Leviticus 24: 18-19

Leviticus 24: 18-19   18 Someone injures a fellow citizen, they will suffer the same injury they inflicted: broken bone for broken bone, an eye for an eye, a tooth for a tooth. 19 The same injury the person inflicted on the other will be inflicted on them. 

Q4. What should the consequences be for injuring another person? What does “eye for an eye” really mean? 

We talked about these ideas, including this well-known and much misunderstood mitzvah when we journeyed through the Torah last year. Do you remember what it means?

(We are forbidden from assaulting and injuring a fellow human being, and if we maim another or cause them damage in any way, we must make them whole through compensation that is the equivalent of their loss, which includes not only the physical loss, but also the pain, healing, loss of time and income, and the indignity inflicted.

This idea once again of requiring the wrongdoer to compensate the victim for the loss shows how advanced in justice the mitzvot actually are. We have come to these ideas in our own system more and more in recent times. The goal must be making the victim whole, appropriately punishing the wrongdoer, deterring such wrongs, and improving the effectiveness and fairness of the justice system.)

5. Read Exodus 21:16

Exodus 21:16   Anyone who kidnaps a person, whether they have been sold or are still being held, should be put to death.

Q5. Why is the prescribed punishment for kidnapping in the Bible so severe? Is it possible that kidnapping was a different act in that world than ours?

We’re forbidden from kidnapping another person in this mitzvah. This stealing is considered to be of a person, while the stealing referred to elsewhere in Exodus and in Leviticus involves money and other property. But note the penalty generally is death for the kidnapper, even perhaps  without proof the victim is killed. Our laws today don’t typically go that far. Can an argument be made for the position in the mitzvah?

(Our view is that there ought to be every incentive to get the victim back alive and every disincentive to the kidnapper to refrain from harming or killing the victim. I think our legal position makes sense generally today.

But for then? I’m not sure. Perhaps rescue was highly or totally unlikely, with the victim being sold off or disposed of, never to return. Indeed sages often write that the death penalty would not obtain unless the stealing was “complete” in such a way. Kidnapping certainly renders the victim powerless, enslaved, and at great peril. Perhaps it was once tantamount to demise. In any event, kidnapping was seen as one of the very gravest sins.)

6. (Read Four Readings)

Exodus 20:13  You shall not murder.

Exodus 20:16  You shall not bear false witness against your neighbor.

Exodus 23:7 Stay away from making a false charge. Don’t put an innocent person who is in the right to death, because I will not consider innocent those who do such evil.

Exodus 23:2 You shall not follow a majority in wrongdoing; when you bear witness in a lawsuit, you shall not side with the majority so as to pervert justice;

Q6. Murder may be the most severe and wrong action we can commit against another. How do we learn that from the text? Yet, what are the rules in the text relating to convicting a person for murder? What do we learn from them? What’s the balance here?

We understand why murder is prohibited. This form of killing not only wrongly takes the life of the victim; it diminishes the Divine image. The murderer and indeed all society must not be able to feel as if life can go on in any normal way, unaffected by such a despicable act. The murder of a single soul should be seen as if a whole world was destroyed. The Biblical guidance provides that the murderer be removed from society and be subject, as we will see in greater detail later, to the death penalty.

A. But the question is: why is that guidance accompanied by the next three mitzvot? And where do you predict the sages and rabbis go from there?

(These rules serve to make it very difficult to convict a person of murder and  indeed seriously limit the imposition of the death penalty in such cases. The reason may be fundamentally that we fear if we execute a person wrongfully we may be committing a sinful killing ourselves.

As we will discuss later when we get generally to the mitzvot regarding punishment, we, in effect, are given “a garden” where the mitzvah of capital punishment lives, but the sages have created such a high hedge around it, it’s rarely to be used.)

B. Is this a case of the sages “making law,” or are they using other mitzvot reasonably to interpret and implement another? Consider each and all in your answer.

(1. The requirement for a trial is clear and needed as a key element of justice. We must be sure the accused committed the offense of which he/she is accused, and we must be sure the crime committed is the one charged.

2. The prohibition against convicting on the basis of circumstantial evidence is understandable but perhaps not clearly always right. Exodus 23:7 is interpreted as requiring eyewitnesses and putting significant burdens on their behavior and testimony (including their being joint witnesses and that they issue a warning to the perpetrator ahead of the commission of the wrong, if at all possible). It seems a stretch from the written words of the text. Why are the interpreters doing this? Argue it both ways.

(Discussion.)

3. How do we get from this language to the requirement of a super-majority to convict? Is this justified? Why might you think sages find a basis in this language to create even more procedural obstacles to conviction?

(Discuss the principle not to side with a majority to do wrong and the grave concern about wrongly convicting versus the inherent desire to avoid leaning in any way that discourages doing justly. The actual rule was that the decision to convict in a capital case must have two more judges for than against conviction. Since the court couldn’t have an equal number, this meant 23 judges.

Sages add even more procedural requirements to cause the process of conviction to err even more on the side of avoiding putting a person to death.)

7. Read Deuteronomy 21:1-4; 6-9 

Deuteronomy 21:1-4   1 If a corpse is found on the ground the Lord your God is giving you to possess, lying in a field, and the identity of the killer is unknown, 2 your elders and judges must come out and measure the distances to the cities nearest the body. 3 Once it is determined which city is closest to the dead body, its elders must take a young cow that hasn’t been used or yet pulled a plow, and those elders will take the cow down to a ravine with a flowing stream—one that has not been plowed or planted—and they will break the cow’s neck right there in the river valley.  

Deuteronomy 21:6-9  6 All the elders of the city closest to the corpse will wash their hands over the cow whose neck was broken in the river valley. 7 They will then solemnly state: “Our hands did not shed this blood. Our eyes did not see it happen. 8 Lord please forgive your people Israel, whom you saved. Don’t put the guilt of innocent bloodshed on your people Israel.”  Then the bloodguilt will be forgiven them. 9 But you must remove innocent bloodshed from your community; do only what is right in the Lord’s eyes.

Q7. These are some of the strangest verses in the Bible. But I think they contain a very powerful and important message? Do you agree? What do you see?

(Lots of possibilities. This guidance puts a lot of pressure on leaders in a community to search for, find, and bring the murderer to justice.

Just because the killer is unknown, that does not allow the matter to go unresolved. Indeed it adds to the pressure, as if the blood (and God) cry out for the truth and justice. The gathering of the elders for the sworn oath, the vivid death and loss of a valuable animal, and the loss of cultivation rights in the land - all of this drama says that members of a community cannot be at ease and go on with their lives as if normal if there’s been no justice as to a person who has been murdered. We must be fully devoted to seek and bring to justice whomever commits murder, or else we continue to be burdened with our failure to do so, and our land will be bitter with the victim’s blood and no longer fruitful for us.)

8. (Read Two Verses) Numbers 35:22-25; Deuteronomy 19:3

Numbers 35:22-25   22 But if suddenly and without hostility someone hits another or throws any object at him without premeditation, 23 or accidentally drops any stone on him that could cause death and he dies—even though they weren’t enemies and no evil was intended 24 then the community must come to a verdict between the killer and the close relative in accordance with these case laws. 25 The community will protect the killer from the hand of the close relative and return him to the refuge city where he fled. He will live there until the death of the high priest who was anointed with holy oil.

Deuteronomy 19:3  3 Mark out the roads to them and divide the regions of the land the Lord your God is apportioning to you into three parts. These cities are the places to which a person who has killed can escape. 

Q8. We’ve talked about murder. But is there a lesser killing for which there should be a punishment? Is there wisdom we can deduce from the seemingly archaic description here of the punishment?

(This is for a killing involving a lesser degree of culpability than a conviction for murder. It typically is a wrongful (perhaps negligent) killing, but one without intent. The punishment is a sort of exile to one of the Levitical cities, particularly to one of the six designated cities of refuge. The purpose of the exile is to punish the wrongdoer and to keep society free of those who kill in any wrongful way but also to protect the perpetrator from revenge and perhaps to induce expiation on his part.)

B. Does this sort of penalty make more sense than prison and meet more of our objectives of justice in terms of consequences for wrongdoing? Or would anything like it be feasible today, even if it made sense?

(Discussion: we need not make life normal for the wrongdoer, but could we do better by society, the wrongdoer, and all affected parties if we devised  better responses to offenses than that of our current “correctional system?”)

9. Read Deuteronomy 25:1-3. 

Deuteronomy 25:1-3   1 Now two people have a disagreement and they enter into litigation and their case is decided, with the judges declaring one person legally right and the other legally liable.  2 If the guilty party is to be beaten, the presiding judge will have that person lie down and be punished in his presence—the number of blows in measure with the guilt determined.     3 Give no more than forty blows. If more than that is given, your fellow Israelite would be completely disgraced in your eyes.  

Q9. We don’t punish crimes anymore by whipping. Why do you think the ancients did, and is there some something akin to whipping, though not perhaps physical, we might consider as a proper sort of correction for misdeeds? What meaning do you take on the limits on lashes?

There are a variety of offenses for which rectification can’t be achieved by payment or compensation, and more serious punishment is unwarranted. Some offenses indeed wouldn’t be punishable in our society at all, such as failing to abide by religious standards. So, in our world, cursing neighbors, working on sacred days, preventing an animal from eating of the crop it’s working, infringing oaths, engaging in idolatrous behavior - all this and whatever they might represent are left totally aside, completely for private decision making.

Three questions: 1) are we wrong in the modern era to have delegated so much authority to the private or personal realm, 2) if so, what consequence would we place on such behaviors, and 3) if not, what means of self-regulation might be reasonable to be expected of individuals and in what manner?

Discussion

B. Whether we think the community has a role in any of this or we believe it must be “self-policing,” what could a modern form of whipping be?

(One possibility: we might first acknowledge that we’ve done wrong. Then there would be some jolt, perhaps verbal, or other, action to “whip” us out of the patterns of bad behavior that are out of step with the standards by which we should live. Maybe we would be open to this from a loved one or a spiritual leader or teacher. Or, at the least, we might be open to an expectation of a self-imposed correction.

The mitvzvot suggest some, but not excessive, pain in the punishment. The idea is that we ought to be mindful of the mitzvot, acknowledging our responsibility, and being open to being held accountable for our actions. If so, we might cure at least some of the sickness our wrongs have inflicted on us, shed the guilt for them, and believe and live as if justice were more fully expected of us in the world.)

10. Read Numbers 35:31-32. 

Numbers 35:31-32   31 You may not accept a ransom for the life of a killer, who is guilty of a capital crime, for he must definitely be put to death.  32 You may not accept a ransom for someone who has fled to his refuge city so that he can return and live in the land before the priest’s death.  

Q10. In thinking about appropriate punishments for crime, especially killing, what principles do we derive from these mitzvot? 

What’s the fundamental principle of justice here, and what do you suppose was the departure from ancient ways it represented?

(Wrongdoers in this system were often permitted, and sometimes required to, compensate the victim or the victim’s family for injury done. But payment was not permitted in the case of murder or in the case of a killing that required exile to a city of refuge, as it may have been in other ancient settings.  The soul of the victim belongs to God, not the family. Further, if we permitted the rich or others to kill at will and get away with mere payment as a penalty; killing would be far more common, people would be far more at war, and a healthy society would be severely endangered.)

11. Read (two verses) Exodus 21:12; Deuteronomy 21:22-23 

Exodus 21:12    Anyone who hits and kills someone should be put to death.

Deuteronomy 21:22-23   22 Now if a man is guilty of a capital offense, and is put to death, and you impale him on a stake, 23 you must not let the corpse remain on the stake overnight, but must bury him the same day. For an impaled body is an affront to God. You shall not defile the land that the Lord your God is giving you to possess.

Q11. We’ve talked about the severe crime of murder, along with the requirements that extreme care must be taken in convicting and punishing a person for murder. Given our discussion about constraints on the use of the death penalty, what's left of the meaning of its prescription? And what is this odd prohibition at the end all about?

A.      We’ve discussed the issues involved in the Biblical sanction of the death penalty before, specifically as to procedural requirements that severely limit the imposition of this penalty. So, the sanction is there, but the rabbis have substantially limited its imposition. What do you think about this balancing and the result it yields? Specifically, do you think the rabbis have gone too far in the procedural high bars they establish?

Discussion

B. Let’s talk now about the imposition of the death penalty for sacrilege and blasphemy, acts for which we generally have no penalty at all in our society today. Is there any level of meaning in these mitzvot that makes sense to us today?

The idea of a physical death penalty for these offenses is not one many would seriously consider today. But should we or our community seek at least to consider, say, the idea of seeking the “death” of the idolatrous self?

If so, “stoning” might be some sort of community or personal revulsion that casts, in effect, the stones of our spirit upon the idolatrous self of the wrongdoer. “Extinction” might involve a sort of separation of the idolater from the community for a range of time depending upon the severity of the offense and the time and effort it takes for the idolatrous habits to die.

If we’re unwilling to impose any sanctions on this behavior, how seriously do we really take these Biblical ideas? Do we truly expect ourselves to live up to Divine standards and hold ourselves accountable for doing so, with consequences? If not, what strength is there in our commitment to this way of life with God? And how enduring is it for our children and our future? How likely is it to slip away, if not die out altogether?

Discussion

C. As odd as it seems to our modern eyes, what do we make of the prohibition of leaving a person punished by hanging on the gallows overnight?

It could be to avoid treating the body in a cruel fashion, as if by “over-punishing.” This excess has the feel of abuse, or showing hatred or excessive power with respect to our duty. The rabbis look at this language as further support for the practice of burying the dead as quickly as possible. The dead deserve dignity in the treatment of the body. All persons are created in the image of God.

While punishment should have a deterrent effect, is it possible that leaving the body could actually evoke sympathy for the wrongdoer? Perhaps once the idolatrous self is made extinct, we must put it away quickly and forever. Reveling in, or dwelling too much on, the untransformed heathen self may invite the thought or even the reality of the sacrilege upon ourselves. Further, the sight of all this could be deemed an affront to God in that the life and death of the idolatrous self is evidence of the failure of at least a piece of God’s creation.

Chapter 3 Part 3 - Divine Guidance Regarding Criminal Harmful Actions

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