Bar-Ilan University's Parashat Hashavua Study Center

Parashat Re’eh 5767/ August 11, 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

 

 

On Punishing Inanimate Objects

 

Nathanel Dagan

 

Student, Law and Criminology

                       

 

Ever since primordial Man sinned in the Garden of Eden and was punished by G-d, we find many descriptions in Scripture of people, nations and civilizations that were smitten because of their evil deeds.  In contrast, it is extremely rare that the law stipulates a punishment for inanimate objects.  He we shall review briefly several of the moral, theological, and historical implications of punishing inanimate things.  We shall see how commentators, philosophers, and modern penologists have perceived such punishment, and what justifications they have given for it.

The Subverted City

A prime example of this sort of punishment is found in this week’s reading, namely the punishment decreed on the spoil of a city which has been subverted away from worshipping the Lord.   The Torah commands:

 

Put the inhabitants of that town to the sword and put its cattle to the sword.  Doom it and all that is in it to destruction:   gather all its spoil into the open square, and burn the town and all its spoil as a holocaust to the Lord your G-d.  And it shall remain an everlasting ruin, never to be rebuilt     (Deut. 13:16-17).  

 

The law concerning a town that has gone over to idolatry raises many moral questions:  collective punishment, not making any distinction between young and old, [1] burning to death ignorant animals and totally destroying a town in Israel – all these are surely not matters of little consequence.

In this sketch we shall relate to one aspect of the procedure of punishing an idolatrous town:   punishment of the inanimate things in the town, which finds expression in burning the possessions that remain of the people who have been put to death by the sword.

The instruction to burn the inanimate objects in the town can cause the reader a sense of discomfort.   It appears like a response of blind vengeance, trying to find an indiscriminate emotional outlet, irrespective of whoever is to blame for the sin. [2]   The sense of inner anger at an entire town in Israel that has been subverted to worship another god and has thereby separated itself from the generality of the people – this sentiment seeks to find an outlet in also destroying the trees and stones that did not sin to anyone.  The punishment does not make the basic distinction between a person who decides of his own free will to sin, and an inanimate object that is altogether neutral towards the criminal action. 

The plain sense of the text further strengthens the impression of almost spontaneous war being declared on the inhabitants of the city.  Their sin is “political” because it was committed by an entire community, and is considered a rebellion against the covenant made between the people of Israel and G-d (as opposed to a religious sin committed by an individual). [3]   The emotional response to the sin, which brings in its wake collective punishment, seems to stem from this.   The same style of punishment is also found in Joshua bin Nun’s battles, when he destroyed the people of Canaan at the time of the conquest of the land of Israel, [4] and in Joshua’s treatment of Achan, who embezzled the spoils. [5]   It appears that there was good reason for the decree that the inhabitants of the town be put to death by the sword, of all possible death sentences a court could declare.   This is the most despicable way of death, [6] and it expresses vengeance in the fullest way. [7]

In Theory Only

The Sages appeared to have been troubled by the question of justifying the total punishment of the idolatrous town.   Some of them tried to limit as far as possible the possibility that such a town could have actually existed by stipulating, for example, that a town where there is even a single mezuzah cannot be declared an idolatrous town. [8]   Clearly the likelihood of such a town actually existing is extremely small.  The saying, “There never was and never will be any such things as an idolatrous town, and the law in its regard was written only so that we learn by our attempts to interpret it,” [9] summarizes this approach of limiting the possibility, both on the level practice, ruling out the possibility of there ever being found a town without a single mezuzah, and on the level of moral-normative theory. [10]

Others have explained and justified the severity of the punishment by claiming that it does not concern a specific sin by an isolated malefactor, rather an entire organic society (town) that knowingly agreed to corrupt and wrong behavior as their normative way of life. [11]   Lot’s city, Sodom, whose inhabitants also accepted improper behavior as the normative way, was also punished by total destruction of all living persons and animals, plants and inanimate objects. [12]

Other commentators have seen the burning of property as the imperative of natural intelligence for the future benefit of the majority.  They do not see it as an expression of vengeful feelings, the like of which they hold are not to be ascribed to the Creator who is unmoving and immutable; [13] rather, it is an almost technical matter of removing something which causes spiritual harm from the face of the earth.   Such an approach views the destruction of the town together with its spoil as an effective means of final removal of any vestige of the wayward city from the face of the earth.   For example, Maimonides asserts: [14]

Do not think it cruelty or desire for revenge; rather, it is a deed necessitated by human reason, that all who stray from the way of Truth be distanced and that all obstacles that prevent perfection – which is to comprehend the Supreme – be removed.

Elsewhere Maimonides compares, in terms of the gravity of the act, those who eat meat along with milk to the inhabitants of an idolatrous town.  This comparison indicates to us that law of an idolatrous town is not exceptionally grave matter.  In Maimonides’ view, killing the inhabitants of the town is not retributive punishment; its purpose is to remove undesirable elements that reject the Torah from the normative circle of those who obey the commandments.  In like manner he also explains the punishment given the property as erasing the last traces left by the sinner. [15]

Rehab for the People

An original interpretation of burning the possessions of the inhabitants of an idolatrous town is suggested by the author of Ha-amek Davar in his commentary on the Torah. In his view, destroying the spoils is not for punishing the criminal, rather, it is a step in rehabilitating the one who punishes.  Carrying out such an extreme punishment as destroying a town in Israel is feasible only when many people participate in executing the sentence. Such a situation of unbridled behavior in the sensitive matter of bloodshed requires especially strict efforts to avoid benefiting from the spoils of the town.   The cruelty that is required in killing the inhabitants of the town is morally balanced by refraining from pillaging the possessions.  This also explains what was said by Rabbi Simeon in the Mishnah (Sanhedrin 112a):   “The Holy One, blessed be He, said:   If you execute judgment against an idolatrous town, I view it as if you have given Me a burnt offering.”   Just as in sacrifices of burnt offerings the one who gives the sacrifice does not partake or benefit from it, so too, in destroying a town condemned for idolatry, that act should be done in a manner that does not bring monetary benefit. [16]

After the Biblical Period

Examples of punishment of inanimate objects can be found throughout history, in various places and civilizations.   For example, in ancient Athens, an axe that caused a person injury was punished by being exiled.   It was removed beyond the city limits in an impressive ceremony, attended by the elders of the city. [17]   In the 16th century a church bell that had fallen and killed the son of the Russian Czar was punished by being sent off to the frozen realm of Siberia.   In England, until the mid-nineteenth century, there was a law in practice stipulating that a cart that had run over a person be seized and sold for charitable purposes. [18]

Some modern penologists [19] hold that even today one can find traces of a similar approach in Israeli law codices. [20]   For example, article 18(a) of the law on firearms (1949) stipulates:  “When a person is found guilty of violating this law, the court may order that the firearm with which the crime was committed be confiscated for the good of the state.”  According to their perspective, confiscating the firearm was a punishment in its own right, executed against the object, in addition to the punishment of imprisonment given the criminal.  The purpose of confiscation was not to separate the criminal who had caused the harm from the object, since in any event he was to be incarcerated in prison. Rather it was to “punish” the confiscated object.

Whether or not we are satisfied by the rational justifications that have been proposed for this sort of punishment, we see from the above that punishing inanimate objects is a practice that still exists in our midst. This leaves room for further philosophical and penological investigation of the significance that attaches to such acts, both on the theoretical and the practical level.

                                                                                                                                           

 

 



[1] Further, see Rema’s surprise in this matter, Iggerot ha-Rema, Jerusalem 1968, p. 186.  Also M. Halbertal, Mahapehot Parshaniyot be-Hithavutan, Jerusalem 1997, p. 139.

[2] In addition, see the opinion of Justice Y. Englard in criminal appeal 3031/98, State of Israel vs. N. Dan Shabtai, court rulings 55(3) 877.

[3] Halbertal, loc. sit., p. 23, note 1.

[4] A. Shemesh, Onashim ve-Hataim min ha-Mikra le-Sifrut Hazal, Jerusalem 2003, p. 11.

[5] Joshua 7:24, Babylonian Talmud, Sanhedrin 44a.

[6] Jerusalem Talmud, Sanhedrin 7.3 (24b).

[7] It should be noted that according to the Sages the punishment is carried out by delegates of the court, after a trial before the High Court, sitting with 71 judges.  See Maimonides, Hilkhot Avodah Zarah 4.8 and 4.6, also Babylonian Talmud, Sanhedrin 2a.

[8] Sanhedrin 113a, and regarding a rebellious son, loc. sit. 71a.

[9] Sanhedrin 71a.

[10] Halbertal, loc.sit., p. 143.

[11] Sefer ha-Hinukh, Jerusalem 1986.

[12] Tosefta Sanhedrin 14.4 deduces from the case of Sodom the rule that the belongings of the righteous in an idolatrous town are to be destroyed as well.  Also Genesis Rabbah (Theodore-Albeck ed.), 49.6.

[13] In apposition to the approach take by the author of Or ha-Hayyim , which views the verse in Deuteronomy (13:18), “and show you compassion,” as restoring the balance in the wake of the feeling of vengeance that was translated into actual action in executing the sentence.

[14]Guide for the Perplexed, I, ch. 54. 

[15] Ibid., III, ch. 41.

[16] See commentary of Rabbi David Tzvi Hoffman, Deuteronomy 13:17.

[17] Howard Jones, Crime and the Penal System, London 1965.

[18] S. G. Shoham, S. Shavit, Crimes and Punishments—An Introduction to Penology (Heb.), Tel Aviv 1990, p. 132.

[19] Shoham and Shavit, ibid.

[20] See the law of Military Jurisdiction, 1955 (art. 523), and the Order for Prevention of Terror, 1948 (art. 5[a]).