ESSAY: Crime and Punishment
The case of the criminal who was too guilty to be punished
Summer's end brings a shift in the atmosphere of the soul
A TELLING STORY: Faith
History will repeat itself, said Rabbi DovBer of Mezeritch,
but with one significant difference
Crime and Punishment
Judges and law-enforcers you shall appoint for you at
all your city gates
and they shall judge the people
with righteous judgment
One of the interesting features of the Torah's criminal justice
system involves the manner in which the "Minor Sanhedrin"a
tribunal of 23 judges authorized to try capital offensesoperated.
After hearing the evidence presented by the witnesses, the
23 judges would split up into two groups, one group serving
as the "prosecution" and the other as the "defense."
Each judge would take a position based on his first impression
of the evidence, and then seek to convince the others. After
hearing their colleagues' arguments and consolidating their
final opinions, the judges would vote. A majority of one was
sufficient to exonerate, while a majority of two was needed
in order to convict.
[Hence the requirement for 23 judges: the Torah desires that
there exist the possibility for a full "community"ten
individualsof "exoneraters" among the judges
even when the defendant is found guilty.
This requires a minimum of 22 judges10 votes of "innocent"
and 12 votes (a majority of two) of "guilty." The
23rd judge is to satisfy the requirement that a
court of law must always consist of an odd number of judges.]
Any number of the 23 may choose to align themselves with
the "defense team," and any number with the group
of judges arguing for conviction. However, the law states
If a Sanhedrin trying a capital case all begin with an
opinion of guilty, the defendant is exonerated.
Only when there are merit-leaning judges who argue in his
favor, following which a majority finds him guiltyonly
then is he executed.
On the face of it, this seems a strange, even bizarre law:
why should a criminal whose crime is so heinous, and against
whom the evidence is so compelling, that not a single judge
can find anything to say his favor, escape punishment precisely
because of the gravity of his crime and the decisive nature
of the evidence?
But upon closer examination, this law is fully in keeping
with the philosophy behind the Torah's penal code and its
concept of "guilt" and "punishment."
To understand how the Torah regards the person who stands
accused and/or convicted of having violated one of its laws,
let us first look at another interesting twist of Torah law,
this from laws of divorce:
According to Torah law, a divorce is valid only when granted
willingly. However, If the law mandates that a person
grant his wife a divorce and he refuses, a Jewish court, in
any time or place, may beat him until he says I am willing
and writes the writ of divorce.
Why is such a divorce not deemed coerced
and invalid? asks Maimonides, the great 12th-century
codifier of Torah law. Because, answers Maimonides,
an act is not considered to be coerced unless
the person has been forced to do something which is not obligated
by the Torah: for example, if a person was beaten until he
agreed to sell or sign away his property. But one who has
been overpowered by his evil inclination to negate a mitzvah
or to commit a transgression, and is forced to do what is
right, is not considered coercedon the contrary,
it is his evil character which has coerced him, against his
true will, in the first place.
In truth, concludes Maimonides, this individual
wishes to be of Israel and wishes to observe all of the commandments
and to avoid all of the transgressions of the Torah; only
his evil inclination has overpowered him. So if he is beaten
so that his evil inclination is weakened, and he says I
am willing, he has divorced willingly.
We can now understand why the Torah is convinced that there
is a defense to be argued for every individual who stands
trial, regardless of the gravity of the crime and the persuasiveness
of the evidence.
Man was created in the image of G-d;
the essence of man is good and perfect, mirroring the goodness
and perfection of his Creator. So the basic premise of Torah
law is that every evil deed is committed against its perpetrators
intrinsic will; every crime is a result of external forces
that have overwhelmed the criminals true self.
In other words, every criminal is innocent in the ultimate
sense of the word: his true self was never willingly involved
in the deed, rather his evil character has coerced him,
against his true will. Nevertheless, A judge must
judge only by what his eyes see.
The Sanhedrin must decide the willfulness of the criminals
deed based on the evidence presented before them, not their
knowledge of the essence of humanity. (Indeed, it is not enough
that we know that the reluctant divorcer wishes deep
down to do the right thing: unless he mouths the words I
am willing, the divorce is regarded as coerced
and invalid. It is only after he expresses his willingness
that we accept it, knowing that it stems not only from his
desire to avoid a beating but also from his quintessential
It is for this reason that a Sanhedrin in which not a single
judge chooses to argue in the defendant's favor cannot judge
him at all. Conceivably, the evidence and arguments presented
by the "prosecutors" might be so compelling that
all 23 judges will, at the end of their deliberations, cast
a "guilty" vote. But though the judges must reach
their verdict solely on the basis of "what their eyes
can see," they must also be aware of of the essential
goodness of the person standing accused before them, and look
for signs and expressions of this goodness in his actual behavior
(even if these signs and expressions do not suffice, in the
final weighting of the evidence, to prevent a verdict of "guilty").
So in the case that the defendant is faced with a court in
which not a single one of its members even sees grounds
for his innocence, we know that he is being misjudged. We
know that his true self is so completely hidden from the eyes
and souls of his judges that they see not even the slightest
glimmer of in his exterior self. A court with so shallow a
knowledge of the human being standing trial before it cannot
sit in judgment of him.
On the Essence of Punishment
But there is also another, deeper rationale behind the law
of the "too-guilty" criminala reason which
goes to heart of the Torah's concept of punishment.
Why is a criminal punished by a human court? The ultimate
function of the penalties which the Torah instructs and empowers
a Sanhedrin to impose is not to exact vengeance, nor is it
to serve as a deterrent for other would-be criminals (although
the Torah mentions this as a secondary aim), but the rehabilitation
of the criminal. In the case that a death sentence
is passed (G-d forbid), this indicates a crime so severe that
it can be atoned for only with this most terrible penalty.
But the punishment always comes to effect the purification
of the criminals soul, to cleanse it of the stain inflicted
upon it by the evil of his deed.
In light of this, the arguments put forth by the defense
contingent of the Sanhedrin during its deliberations
can be understood not only as an attempt to exonerate the
defendant, but also as part of the process of his rehabilitation.
Also in the case that the majority (or even the entire tribunal)
ultimately find him guilty, these arguments serve as the first
step in the courts exorcism of the taint of his crime
from his soul. These arguments accentuate his intrinsic innocencean
innocence that exists even in the most technically guilty
criminal. At times, they may indeed succeed in bringing the
defendants innocence to light on a level perceivable
to the judge who must judge only by what his eyes see,
and the defendant will be declared innocent in the earthly
courtroom. In other instances, the defendants intrinsic
innocence will not be found to have sufficiently asserted
itself in his actual behavior, and his guilt and a sentence
would be decreed. In such a case, the punishment will complement
and complete what the arguments in his defense have begun:
the obliteration of his external guilt and the reassertion
of his underlying goodness and perfection.
Thus, a verdict and punishment which are not preceded by
the courts elucidation of the defendants quintessential
blamelessness lack the very basis upon which a punishment
is executed. Having failed to discern even the faintest glimmer
of his innocence, the court has invalidated itself for the
task of exorcising his guilt.
Based on an address by the Rebbe, Adar 14, 5745 (March
Though summer still lingered and the day was bright
and sunny, there was a change in the air. One smelled already
the Elul-scent; a teshuvah-wind was blowing. Everyone
grew more serious, more thoughtful
. All awaited the
call of the shofar, the first blast that would announce
the opening of the gates of the month of mercy. So describes
the previous Lubavitcher Rebbe, Rabbi Yosef Yitzchak Schneersohn,
the onset of the month of Elul in the shtetl of Lubavitch.
As the last month of the Jewish year, Elul is a time for
sober review of the achievements and failings of the closing
year; a month of trepidation on account of the approaching
Days of Awe of Rosh HaShanah and Yom Kippur, when
"all inhabitants of earth pass before the Divine Judge
as a flock of sheep." But Elul is also a gentle month, softened by
the reconciliatory prophecies of the Seven of Consolation and the vibes of divine compassion that linger
from the time that Moses spent the whole of Elul on the summit
of Mount Sinai procuring G-ds wholehearted forgiveness
for Israels first sin. In a word, Elul is a time of
teshuvah: a time of regret, forgiveness and reconciliation;
a time of return to pristine beginnings to rediscover one's
true self and the spark of G-dliness at the core of one's
The First Resource
To keep body and soul together, the human being needs air,
water, food, clothing, shelterin that order. Without
air, G-d forbid, a person would expire in a matter of minutes.
He may survive a few days without water, a few weeks without
food. The need for clothing and shelter are less immediately
apparent, but without them man would ultimately succumb to
an environment often hostile to his life and health.
Not incidentally, this order also describes the relative
accessibility of these resources. Shelter is the most toilsome
and expensive of human needs to acquire. Clothing less so,
food yet less so, water even cheaper and more available. Finally,
air, the most crucial resource of them all, is the most bountiful
and the most effortless to attain.
Thus, the idioms a change in the air, Elul-scent,
and teshuvah-wind in the above quote from
Rabbi Yosef Yitzchak are not mere poetic figures of speech,
but also express a truth about the month of Elul and the spirit
of teshuvah that pervades it. The effort to cut through
lifes accumulated debris of failings and inequities
and touch base with the untarnished purity at the core of
ones soul, is a round-the-year endeavor. But in the
month of Elul, we enter into an atmosphere of teshuvah.
In Elul, teshuvah is not a factor of cataclysmic moments
of truth or something to be extracted from the depths
of the prayerbook. It is as plentiful and accessible as air:
we need only breathe deeply to draw it into our lungs and
send it coursing through our veins. And with Elul comes the
realization that, like air, teshuvah is our most crucial
resource, our very breath of spiritual life.
Based on an address by the Rebbe, Shabbat Mevarchim Elul,
5727 (September 2, 1967)
And you shall come to the Levite priests, and to the judge
who shall be in those days
. And you shall take heed
to do according to all that they instruct you. According to
the Torah that they shall teach you, and according to the
judgment which they shall say to you, so shall you do; you
shall not deviate from what they tell you, right or left
"Right or left"even when he tells you
that right is left and that left is right
Rashi, ibid. verse 11
Some twenty-seven hundred years ago, one of the most dramatic
events in Jewish history took place atop Mount Carmel in northern
The people of Israel were torn between their allegiance to
G-d and the dominating Baal culture espoused by King Ahab
and his queen, Jezebel. The prophet Elijah challenged Ahab
and the prophets of the pagan gods Baal and Asherah
to a contest before the entire nation. When all had assembled
on the summit of Mount Carmel,
Elijah approached the entire nation and said to them:
How long will you go on wavering between both sides?
If G-d is the L-rd, follow Him, and if Baal is, follow him.
And the people answered him not a word.
Said Elijah to the nation: I alone remain a prophet
of G-d, while the Baals prophets are four hundred and
fifty men. Let there be given us two bullocks; and let them
choose one bullock for themselves, and butcher it and place
it on the wood pile, and put no fire underneath. I will prepare
the other bullock, lay it on the wood pile, and put no fire
Call on your gods and I will call on G-d, and the
one who shall answer with fire, he is the true G-d.
And the entire nation responded: It is good [what you
... [The prophets of Baal] prepared their bullock. And they
called upon Baal from morning till noon, saying, Baal!
Answer us! But there was no voice, no response. And
they pranced about the altar they had made
. And Elijah
mocked them, saying, Cry aloud, to this god of yours.
Perhaps he is conversing, or meditating, or off on a trip;
perhaps he is asleep and must be awakened
Come evening, Elijah the Prophet approached [G-d] and
said: G-d, the L-rd of Abraham, Isaac, and Israel, let
it be known this day that You are G-d in Israel and I am Your
servant, and that I have done all these things at Your word.
Answer me, O G-d, answer me, so that this people may know
that You are G-d, for it is You who has caused their hearts
to turn away from You.
And the fire of G-d fell, and consumed the offering, the
wood, and the stones and earth [of the altar], and licked
up the water that was in the trench. The entire nation saw,
and fell upon their faces. And they said, G-d is the
L-rd! G-d is the L-rd!
The Return of the Two Bullocks
Said Rabbi DovBer, the Maggid of Mezeritch:
Just prior to the coming of Moshiach, the contest of the
Two Bullocks will again take place. Again, the
people of Israel will be polarized between faith in G-d and
the prevailing idols. Again, a lone prophet of G-d will challenge
the many and the powerful. Again, a nation will await a sign
from Above as to where to place their loyalty.
The showdown atop Mount Carmel will repeat itself, but with
one significant difference: this time, the fire will fall
on the side of the Baal.
This time, the prophet of G-d will be ignored, while a fire
from heaven will endorse the prophets of Baal. This time,
those who call upon the true G-d of Israel will be mocked
and derided, as their cries go unheeded and their prayers
Just prior to the coming of Moshiach, the Jewish people will
face the greatest test of faith in history. Those who will
persist with their faith in G-d and His prophets despite all,
will merit to bring the complete and ultimate Redemption.
Adapted from the teachings of the Rebbe by Yanki Tauber
 . To be distinguished from the "Major Sanhedrin"the
71-judge tribunal which sat in the courtyard of the Holy
Temple and served as the highest court of Torah law.
 . Probably the source of today's 23-member Grand
 . As per Numbers 35:24-25: "And the community
and the community shall save." A
"community" (eidah), as indicated by Numbers
14:27, is ten individuals.
 . Mishneh Torah, Laws of Sanhedrin 9:1.
. Mishneh Torah, Laws of Divorce 2:20.
. Talmud, Sanhedrin 6b.
. See Rashis commentary on Deuteronomy 25:3;
Talmud, Makkot 23b; Kessef Mishneh on Mishneh Torah, Laws
of Witnesses 20:2.
 . Likkutei Sichot, vol. XXIX, pp. 113-121.
 . From the Rosh HaShanah and Yom Kippur prayers.
 . See The Intimate Estrangement, WIR, vol.
IX, no. 42.
 . See The 120-Day Version of the Human Story,
WIR, vol. X, no. 1.
. Likkutei Sichot, vol. XIX, pp. 158-161.
 . Leader of the Chassidic movement in the years