Bar-Ilan University's Parashat Hashavua Study Center

Parashat Bo 5767/ January 27, 2007

Lectures on the weekly Torah reading by the faculty of Bar-Ilan University in Ramat Gan, Israel. A project of the Faculty of Jewish Studies, Paul and Helene Shulman Basic Jewish Studies Center, and the Office of the Campus Rabbi. Published on the Internet under the sponsorship of Bar-Ilan University's International Center for Jewish Identity. Prepared for Internet Publication by the Computer Center Staff at Bar-Ilan University. Inquiries and comments to: Dr. Isaac Gottlieb, Department of Bible, gottlii@mail.biu.ac.il

 

 

Karet and Modern Theories of Punishment

 

Netanel Dagan

 

Student, Law School

 

One who eats hametz on Passover is subject to the punishment of karet, which literally means ‘being cut off from his people.’  The source for this appears in this week’s reading:  “For whoever eats what is leavened, that person shall be cut off from the community of Israel” (Ex. 12:19).

The essence of this punishment – in Hebrew termed karet – and its objectives have long been a subject of controversy. [1] To this day it remains unclear what purpose the punishment serves.   It is especially difficult to define the objectives in view of the fact that according to most early rabbinic authorities (Rishonim) the actual punishment is the early death of the transgressor, [2] which precludes the possibility of learning something from the punishment, both for the transgressor and for his surroundings.  In line with three commonly accepted contemporary approaches to punishment, we shall attempt to clarify the objectives of karet.  The goals of punishment in the modern world are:  retribution, deterrence, and rehabilitation, severally and jointly.

Retribution

The most ancient form of punishment known to us is revenge, or in its more institutionalized form, retribution. [3]   This approach to punishment aspires to achieve as close an equation as possible between the severity of the crime and the severity of the punishment.  Thus we find in the Torah, “Whoever sheds the blood of man, by man shall his blood be shed” (Gen. 9:6).  This principle in the bible is implemented against inanimate things and animals as well, as in the punishment of a “town that has been subverted” (Deut. 13), which is to be razed to the ground, burning all the living and non-living things in it.  Such punishment looks to the past and focuses on the subjective guilt of the transgressor.   Hence one could say that retributive punishment is the “purest” form because it focuses solely on the transgressor and is not interested in society or the victim.   This approach received renewed attention in the works of the German philosopher Emanuel Kant (1724-1804), who advocated that one not impose punishment with a view to furthering some future benefit or good.  Punishing the criminal is fulfilling a moral categorical imperative.   If society is negligent in obeying this imperative, it becomes a partner in crime, breaking the rules of natural justice.  According to this approach, punishment only pertains to actual harm that is caused as a result of the crime, not to potential harm, nor to original intent that was not realized.

Maimonides

The punishment of karet as a purely retributive measure fits in with the approach taken by Maimonides, who states: [4]

There is no greater revenge than that of a soul being cut off and being deprived of its life...   This is perdition – that which the prophets metaphorically call the “nethermost pit”...   Since it is annihilation from which there is no recovery, a loss which can never be restored.

In his view, karet is not early death but rather the soul being cut off from life in the World to Come. No one in the world can determine whether a person’s death was a punishment of karet, since this punishment occurs only after the death of the transgressor and therefore is a retributive punishment in the purest sense.   It can have no concomitant objectives of teaching society a lesson from the bitter end that befell the transgressor, since society is not aware of this punishment being enacted.   G-d is the ideal avenger – “to be My vengeance and recompense (li naqam ve-shillem)” (Deut. 32:35) – and therefore only He has the authority to execute this punishment; it is not within the authority of earthly human courts.

Deterrence

The underlying assumption of punishment as a deterrent is that when threatened by sanctions, people refrain from breaking the law.   The greater the anticipated punishment, the greater is its deterrent impact. According to the approaches taken by Rashi, R. Jonah, and Abarbanel, [5] the punishment of karet has a clearly deterrent nature, since it signifies dying by age fifty. [6]   Threatening to shorten a person’s life considerably is supposed to deter one from transgressing.  

However, this explanation of the punishment of karet easily lends itself to criticism, especially in view of society’s total lack of knowledge regarding the reason for the death of the transgressor. Was the person’s death a punishment for wrongs done, or did he live out his days naturally, like all mortals?  This doubt deals a severe blow to the principle of deterrency, especially in the environment of the transgressor.  Returning to Maimonides, a difficulty presented by explaining karet as a deterrrent is the metaphysical nature of the punishment; it is not easy to deter a person by an abstract idea, “death” of the soul in the World to Come, which cannot be pointed out to the potential transgressor, normally creating a sort of “balance of fear.”

Correction and rehabilitation

The approaches of correction and rehabilitation are prevalent principally with respect to juvenile delinquency, drug and other substance abuse, and addictions.  These approaches originated and were further developed in American prisons towards the end of the nineteenth and beginning of the twentieth century.   The laws of the Torah provide a classic example of correction and rehabilitation in the law pertaining to a Hebrew servant sold into servitude in the wake of having committed a theft. [7]   If we consider the punishment of karet according to the approaches taken by Rashi, Maimonides and Rabbi Jonah Gerondi, it is difficult if not impossible to find any element of rehabilitation, due to the absolute nature of the punishment (death in childhood or one’s soul being cut off).  According to these approaches, as we have said, the explanation for the punishment of karet lies along the axis of retribution and deterrence.

According to Abarbanel’s approach, in contrast, the punishment of karet contains elements of correction and rehabilitation.  Abarbanel (1437-1508) did not view the punishment of karet as meaning absolute severance of the soul, rather as a sort of “process of amelioration” in which the soul becomes purified of sin and worthy of receiving the spiritual delight of the World to Come.  According to Abarbanel, this punishment is actually a “gift” to the transgressor, for it gives him a chance to mend his soul which became flawed due to sins.   As Abarbanel put it in his commentary on Parashat Shelah (Num. 15:30):

After receiving the punishment, the soul will again receive pleasure and delight…  Nor are all punishments of karet equal in their punishment of the soul; rather, they are always changing with regard to the length of punishment, from greater to lesser, according to the gravity or lightness of the sin.

If follows from Abarbanel’s language that every punishment of karet involves shortening the person’s days in this world and a metaphysical punishment in the World to Come, the severity of the punishment depending on the severity of the transgression for which the punishment was given.  It is important to note that according to his approach this punishment does not involve total perdition of the soul, and after the term of punishment is fully served the soul does enjoy life in the World to Come.

Correction in the World to Come

Of course it is preferable for the transgressor to mend his ways of his own free will while still in this world, without any outside coercion and with the utmost support from the society around him.   Such repentance would be proof of a substantive change having taken place in the character of the offender and would show not only that the offense has serious consequences, but also that the offending behavior itself is unacceptable. [8]   The approach taken by Abarbanel confers renewed significance to the saying, “Great is repentance that reaches up to the Throne of Glory” (Babylonian Talmud, Yoma 26a), in its literal sense.  Even in a totally spiritual existence correction and rehabilitation are still possible, and even after a person’s death there is still a process of refinement, one of the means for this being, contrary to our expectations, the punishment of karet.

 



[1] See Y. Zikhel, “Karet, Ariri u-Mitah bi-Yedei Shamayim – Gidreihem,” Magal Hiddushei Torah u-Ma’amarim, 11.

[2] So according to Rashi’s understanding, Gen. 17:14; Maimonides, Mishneh Torah, Hilkhot Teshuvah 8.1; Rabbi Jonah Gerondi, Sha’arei Teshuvah, Sha’ar Shelishi 107-125.

[3] G. Shoham and S. Shavit, Crimes and Punishments: An Introduction to Penology (Hebrew), Tel Aviv: 1990.

[4]Hilkhot Teshuvah 8.5.

[5] In his commentary on this verse.

[6] There are still substantial differences between these approaches.   Cf. the article by Zikhel, cited above.

[7] Ex. 21:1-6.   Also cf. M. Frischtick, Punishment and Rehabilitation in Judaism (Hebrew), Jerusalem: 1988.

[8] A. Timor, “Repentance as a Means of Rehabilitating Criminals” (Hebrew), Doctoral Dissertation in Law, Hebrew University, Jerusalem 1988.