The precepts of the sixth class comprise the different ways of punishing the sinner. Their general usefulness is known and has also been mentioned by us. I will here describe them one by one and point out their nature in detail.
The punishment of him who sins against his neighbour consists in the general rule that there shall be done unto him exactly as he has done: if he injured any one personally, he must suffer personally; if he damaged the property of his neighbour, he shall be punished by loss of property. But the person whose property has been damaged should be ready to resign his claim totally or partly. Only to the murderer we must not be lenient because of the greatness of his crime; and no ransom must be accepted of him. “And the land cannot be cleansed of the blood that is shed therein but by the blood of him that shed it” (Num. xxxi. 33). Hence even if the murdered person continued to live after the attack for an hour or for days, was able to speak and possessed complete consciousness, and if he himself said, “Pardon my murderer, I have pardoned and forgiven him,” he must not be obeyed. We must take life for life, and estimate equally the life of a child and that of a grown-up person, of a slave and of a freeman, of a wise man and of a fool. For there is no greater sin than this. And he who mutilated a limb of his neighbour, must himself lose a limb. “As he hath caused a blemish in a man, so shall it be done to him again” (Lev. xxiv. 20). You must not raise an objection from our practice of imposing a fine in such cases. For we have proposed to ourselves to give here the reason for the precepts mentioned in the Law, and not for that which is stated in the Talmud. I have, however, an explanation for the interpretation given in the Talmud, but it will be communicated vivâ voce. Injuries that cannot be reproduced exactly in another person, are compensated for by payment; “only he shall pay for the loss of his time, and shall cause him to be thoroughly healed” (Exod. xxi. 19). If any one damaged the property of another, he must lose exactly as much of his own property: “whom the judges shall condemn he shall pay double unto his neighbour” (Exod. xxii. 8); namely, he restores that which he has taken, and adds just as much [to it] of his own property. It is right that the more frequent transgressions and sins are, and the greater the probability of their being committed, the more severe must their punishment be, in order to deter people from committing them; but sins which are of rare occurrence require a less severe punishment. For this reason one who stole a sheep had to pay twice as much as for other goods, i.e., four times the value of the stolen object; but this is only the case when he has disposed of it by sale or slaughter (Exod. xxi. 37). As a rule, the sheep remained always in the fields, and could therefore not be watched so carefully as things kept in town. The thief of a sheep used therefore to sell it quickly before the theft became known, or to slaughter it and thereby change its appearance. As such theft happened frequently, the punishment was severe. The compensation for a stolen ox is still greater by one-fourth, because the theft is easily carried out. The sheep keep together when they feed, and can be watched by the shepherd, so that theft when it is committed can only take place by night. But oxen when feeding are very widely scattered, [[345]]as is also mentioned in the Nabatean Agriculture, and a shepherd cannot watch them properly; theft of oxen is therefore a more frequent occurrence.
The law concerning false witnesses (Deut. xix. 19) prescribes that they shall suffer exactly the same loss which they intended to inflict upon another. If they intended to bring a sentence of death against a person, they are killed; if they aimed at the punishment of stripes, they receive stripes; and if they desire to make a person pay money, they are sentenced to pay exactly the same sum. The object of all these laws is to make the punishment equal to the crime; and it is also on this account that the judgments are “righteous” (Deut. iv. 8). A robber with violence is not ordered to pay anything as fine (Lev. v. 24); the additional fifth part [of the value of the robbed goods] is only an atonement-offering for his perjury. The reason of this rule is to be found in the rare occurrence of robbery; theft is committed more frequently than robbery, for theft can be committed everywhere; robbery is not possible in towns, except with difficulty; besides, the thief takes things exposed as well as things hidden away; robbery applies only to things exposed; against robbery we can guard and defend ourselves; we cannot do so against theft; again, the robber is known, can be sought, and forced to return that which he has robbed, whilst the thief is not known. On account of all these circumstances the law fines the thief and not the robber.
Preliminary Remark.—Whether the punishment is great or small, the pain inflicted intense or less intense, depends on the following four conditions.
1. The greatness of the sin. Actions that cause great harm are punished severely, whilst actions that cause little harm are punished less severely.
2. The frequency of the crime. A crime that is frequently committed must be put down by severe punishment; crimes of rare occurrence may be suppressed by a lenient punishment considering that they are rarely committed.
3. The amount of temptation. Only fear of a severe punishment remains us from actions for which there exists a great temptation, either because we have a great desire for these actions, or are accustomed to them, or feel unhappy without them.
4. The facility of doing the thing secretly, and unseen and unnoticed. From such acts we are deterred only by the fear of a great and terrible punishment.
After this preliminary remark, I say that the precepts of the Law may be divided into the following four classes with respect to the punishment for their transgression:—(1) Precepts whose transgression is followed by sentence of death pronounced by a court of law. (2) Precepts whose transgression is punished with excision, such transgression being held to be a very great sin. (3) In some cases the transgression is punished by stripes administered with a strap (such transgression not being considered a grievous sin, as it concerns only a simple prohibition); or by “death by Heaven.” (4) Precepts the transgression of which is not punished [even] by stripes. Prohibitions of this kind are all those that involve no act. But there are the following exceptions: [First], Swearing falsely, because it is gross neglect of man’s duty, who ought to bear constantly in mind the greatness [[346]]of God. [Secondly], Changing an animal devoted to the sanctuary for another (Lev. xxvii. 10), because this change leads to contemning sacrifices devoted to the name of God. [Thirdly], Cursing a person by the name of God (ibid. xix. 14); because many dread the effect of a curse more than bodily harm. The transgression of other negative commandments that involve no act causes little harm, and cannot always be avoided, as it consists in mere words; moreover, man’s back would be inflicted with stripes all the year round if he were to be punished with stripes for each transgression of this kind. Besides, previous warning is impossible in this case. There is also wisdom in the number of stripes; for although the number of their maximum is given, there is no fixed number how many are to be applied to each person; each man receives only as many stripes as he can bear, but not more than forty (Deut. xxv. 3), even if he be strong enough for a hundred.
The “death by the court of law” is not inflicted for the transgression of any of the dietary laws; because in such a case no great harm is done, and the temptation of man to transgress these laws is not so great as the temptation to the enjoyment of sexual intercourse. In some of the dietary laws the punishment is excision. This is the case with the prohibition of eating blood (Lev. xvii. 26). For in ancient days people were very eager and anxious to eat blood as a kind of idolatrous ceremony, as is explained in the book Tomtom, and therefore the prohibition of eating blood is made very stringent. Excision is also the punishment for eating fat; because people enjoy it, and because it was distinguished and sanctified by its use in the offerings. The eating of leavened bread on Passover (Exod. xii. 15), and breaking the fast on the Day of Atonement (Lev. xxiii. 29), are likewise punished with excision: [first] on account of the great discomfort which the obedience to the law causes in these cases; [secondly] on account of the principles of faith which the laws of Passover and of the Day of Atonement inculcate: they confirm fundamental principles of the Law, viz., the belief in the wonderful departure [of Israel] from Egypt, and in the effect of repentance, according to the words, “For on this day will he forgive you” (Lev. xvi. 31). Just as in the case of eating fat, so is excision also announced as a punishment when a person eats that which is left [of a sacrifice beyond its limited time], or partakes of a sacrifice which has been made abominable; or when an unclean person eats of holy things (ibid. vii. 16–21). The object of this severity is to increase the estimation of the offering in the eyes of the people, as has been shown.