Death by the court of law is decreed in important cases: when faith is undermined, or a great crime is committed, viz., idolatry, incest, murder, or actions that lead to these crimes. It is further decreed for breaking the Sabbath (Exod. xxxi. 15); because the keeping of Sabbath is a confirmation of our belief in the Creation; a false prophet and a rebellious elder are put to death on account of the mischief which they cause; he who strikes his father or his mother is killed on account of his great audacity, and because he undermines the constitution of the family, which is the foundation of the state. A rebellious and disobedient son is put to death (Deut. xxi. 18 seq.) on account of what he might become, because he will likely be a murderer; he who steals a human being is killed, because he is also prepared to kill him [[347]]whom he steals (Exod. xxi. 16). Likewise he who is found breaking into a house is prepared for murder (ibid. xxii. 1), as our Sages stated. These three, the rebellious and disobedient son, he who steals and sells a human being, and he who breaks into a house, become murderers in the course of time, as is well known. Capital punishment is only decreed for these serious crimes, and in no other case. Not all forbidden sexual intercourse is visited with the penalty of death, but only in those cases in which the criminal act can easily be done, is of frequent occurrence, is base and disgraceful, and of a tempting character; otherwise excision is the punishment. Likewise not all kinds of idolatry are capital crimes, but only the principal acts of idolatry, such as praying to an idol, prophesying in its name, passing a child through the fire, consulting with familiar spirits, and acting as a wizard or witch.
As punishments and judgments are evidently indispensable, it was necessary to appoint judges throughout the country in every town; witnesses must be heard; and a king is required whom all fear and respect, who is able to restrain the people by various means, and who can strengthen and support the authority of the judges. Although I have shown the reason of all the laws contained in “the Section of Judges” (Sefer Shofetim), I find it necessary, in accordance with the object of this treatise, to explain a few of these laws, e.g., the laws concerning a rebellious elder.
God knew that the judgments of the Law will always require an extension in some cases and curtailment in others, according to the variety of places, events, and circumstances. He therefore cautioned against such increase and diminution, and commanded, “Thou shalt not add thereto nor diminish from it” (Deut. xiii. 1); for constant changes would tend to disturb the whole system of the Law, and would lead people to believe that the Law is not of Divine origin. But permission is at the same time given to the wise men, i.e., the great court (Synhedrion) of every generation to make fences round the judgments of the Law for their protection, and to introduce bye-laws (fences) in order to ensure the keeping of the Law. Such fences once erected remain in force for ever. The Mishnah therefore teaches: “And make a fence round the Law” (Abot i. 1). In the same manner they have the power temporarily to dispense with some religious act prescribed in the Law, or to allow that which is forbidden, if exceptional circumstances and events require it; but none of the laws can be abrogated permanently, as has been explained by us in the Introduction to the Commentary on the Mishnah in treating of temporary legislation. By this method the Law will remain perpetually the same, and will yet admit at all times and under all circumstances such temporary modifications as are indispensable. If every scholar had the power to make such modifications, the multitude of disputes and differences of opinion would have produced an injurious effect. Therefore it was commanded that of the Sages only the great Synhedrion, and none else, should have this power; and whoever would oppose their decision should be killed. For if any critic were allowed to dispute the decision of the Synhedrion, the object of this law would not be attained; it would be useless.
Transgressions may be divided into four classes, viz.—(1) involuntary transgressions, (2) sins committed in ignorance, (3) sins done knowingly, and (4) sins done spitefully. He who sins involuntarily is, according to the distinct declaration of the Law, exempt from punishment, and free from all [[348]]blame; comp. “Unto the damsel thou shalt do nothing; there is in the damsel no sin worthy of death” (Deut. xxii. 26). If a person sins in ignorance, he is blamable; for if he had been more considerate and careful, he would not have erred. Although he is not punished, his sin must be atoned for, and for this reason he brings a sin-offering. The Law distinguishes in this respect between a private person and a king, a high-priest or Teacher of Halakah. Hence we conclude that a person who acts wrongly, or who teaches wrongly, guided by his own reasoning—except in the case of the great Synhedrion or the high-priest—is treated as mezid (as one who sins knowingly), and does not belong to the category of shogegim (of those who sin by error). A rebellious elder is therefore put to death, although he acted and taught according to his view. But the great Synhedrion must teach according to its opinion, and if the opinion is wrong, the sin is considered as due to error. In reference to such a case the Law says, “And if the whole congregation of Israel err,” etc. (Lev. iv. 13). It is on this principle that our Sages say, “The error in learning amounts to intentional sin” (Abot iv. 13); he who has studied insufficiently, and teaches and acts according to his defective knowledge, is to be considered as if he sinned knowingly. For if a person eats of the fat of the kidneys in the belief that it is the fat of the rump, his error is not so grave as the error of him who, eating of the fat of the kidneys, knows that it is that fat, but is ignorant of the fact that it is prohibited. The latter brings a sin-offering although he is almost an intentional transgressor. But this is only the case as far as he acts according to his knowledge; but if he decides a religious question [wrongly], he is undoubtedly an intentional sinner. The Law admits the plea of error in a religious decision only in the case of the great Synhedrion.
He who has sinned knowingly must pay the penalty prescribed in the Law; he is put to death or receives stripes, or—for transgression of prohibitions not punishable by stripes—other corporal punishment, or pays a fine. There are some sins for which the punishment is the same, whether they have been committed knowingly or unknowingly; because they are frequent, and are easily done, consisting only in the utterance of words, and involving no action besides; e.g., false swearing by witnesses, or by trustees. Intercourse with a betrothed handmaid is likewise easy and frequent; she is exposed unprotected, being in reality neither handmaid nor a free person, nor a married woman, according to the traditional interpretation of this precept.
If a person sins presumptuously, so that in sinning he shows impudence and seeks publicity, if he does not sin only to satisfy his appetite, if he does what is prohibited by the Law, not only because of his evil inclinations, but in order to oppose and resist the Law, he “reproacheth the Lord” (Num. xv. 30), and must undoubtedly be put to death. None will act in such a manner but such as have conceived the idea to act contrary to the Law. According to the traditional interpretation, therefore, the above passage speaks of an idolater who opposes the fundamental principles of the Law; for no one worships a star unless he believes [—contrary to the teachings of Scripture—] that the star is eternal, as we have frequently stated in our work. I think that the same punishment [viz., sentence of death] applies to every sin which involves the rejection of the Law, or opposition to it. Even if an Israelite eats meat [boiled] in milk, or wears garments of wool and linen, or [[349]]rounds the corners of his head, out of spite against the Law, in order to show clearly that he does not believe in its truth, I apply to him the words, “he reproacheth the Lord,” and [I am of opinion] that he must suffer death as an unbeliever, though not for a punishment, but in the same manner as the inhabitants of a “city misled to idolatry” are slain for their unbelief, and not by way of punishment for crime; wherefore their property is destroyed by fire, and is not given to their heirs, as is the case with the property of other criminals condemned to death. According to my opinion, all the members of an Israelitish community which has insolently and presumptuously transgressed any of the divine precepts, must be put to death. This is proved by the history of “the sons of Reuben and the sons of Gad” (Josh. xxii.), against whom the whole congregation of Israel decided to make war. When warning was given to the supposed offenders, it was explained to them that they had relinquished their faith, because by agreeing to transgress one particular law they rejected the truth of the whole Law. For they were addressed as follows: “What trespass is this that ye have committed against the God of Israel, to turn away this day from following the Lord?” (Josh. xxii. 16); and they replied: “The Lord knoweth, etc., if it be in rebellion, or if in transgression against the Lord,” etc. (ibid. 22). Take well notice of these principles in respect to punishments.
The Section on Judges includes also the commandment to blot out the memory of Amalek (Deut. xxv. 17–19). In the same way as one individual person is punished, so must also a whole family or a whole nation be punished, in order that other families shall hear it and be afraid, and not accustom themselves to practise mischief. For they will say, we may suffer in the same way as those people have suffered; and if there be found among them a wicked, mischievous man, who cares neither for the evil he brings upon himself nor for that which he causes to others, he will not find in his family any one ready to help him in his evil designs. As Amalek was the first to attack Israel with the sword (Exod. xvii. 8–16), it was commanded to blot out his name by means of the sword; whilst Ammon and Moab, who have not been friendly simply from meanness, and have caused them injury by cunning, were only punished by exclusion from intermarriage with the Israelites, and from their friendship. All these things which God has commanded as a punishment are not excessive nor inadequate, but, as is distinctly stated, “according to the fault” (Deut. xxv. 2).
This section contains also the law concerning preparing “a place without the camp,” and “having a paddle upon the weapon” (Deut. xxiii. 12, 13). As I have told you, it is one of the objects of the Law to train Israel to cleanliness; that they should keep free from dirt and filth, and that men should not be degraded to the condition of cattle. Another object of this law is to confirm by these preparations the belief of the warriors that God dwells in their midst. The reason of the law is therefore stated thus: “For the Lord thy God walketh in the midst of the camp” (ibid. ver. 14). The mention of this reason gave occasion to add another lesson: “That he see no unclean thing in thee and turn away from thee” (ibid.). These words warn and caution us against the usual inclination of soldiers to fornication, when they are away from their homes a long time. God therefore commanded us to do certain things which remind us that He is in our midst; we will thereby [[350]]be saved from those evil practices; as it is said, “and thy camp shall be holy, that he see no unclean thing in thee” (ibid.). Even those who are unclean by pollution were compelled to stop outside the camp till the evening, and “then he shall come into the camp again.” It will thus be confirmed in the heart of every one of the Israelites that their camp must be like a sanctuary of the Lord, and it must not be like the camps of the heathen, whose sole object is corruption and sin; who only seek to cause injury to others and to take their property; whilst our object is to lead mankind to the service of God, and to a good social order. I have told you already that I only propose to give here such reasons as are apparent from the text of the Law.
To the same class belongs also the law concerning “the marriage of a captive woman” (Deut. xxi. 10 seq.). There is a well-known saying of our Sages: “This law is only a concession to human weakness.” This law contains, nevertheless, even for the nobler class of people, some moral lessons to which I will call your attention. For although the soldier may be overcome by his desire which he is unable to suppress or to restrain, he must take the object of his lust to a private place, “into the inner of his house” (Deut. xxi. 12), and he is not permitted to force her in the camp. Similarly our Sages say, that he may not cohabit with her a second time before she leaves off her mourning, and is at ease about her troubles. She must not be prevented from mourning and crying, and she must be permitted to abstain from bathing, in accordance with the words, “and she shall weep for her father and for her mother” (ibid.); for mourners find comfort in crying and in excitement till the body has not sufficient strength to bear the inner emotions; in the same manner as happy persons find rest in various kinds of play. Thus the Lord is merciful to her and gives her permission to continue her mourning and weeping till she is worn out. You know certainly that he married her as a heathen, and that during the thirty days she openly keeps her religion and even continues her idolatrous practices; no interference with her faith was allowed during that time; and after all that she could not be sold, nor treated as a handmaid, if she could not be induced to accept the statutes of the Law. Thus the Law does not ignore the cohabitation of the Israelite with the captive woman, although it involved disobedience to God to some extent, having taken place when she was still a heathen. The Law prescribes: “Thou shalt not make merchandise of her, because thou hast humbled her” (ibid. 14). We have thus shown the moral lessons contained in these laws, and we have explained the reason of every precept of this section.