Crime and Punishment

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Judges and law-enforcers you shall appoint for you at all your city gates… and they shall judge the people with righteous judgment

Deuteronomy 16:18

One of the interesting features of the Torah’s criminal justice system involves the manner in which the “Minor Sanhedrin”[1]—a tribunal of 23 judges[2] authorized to try capital offenses—operated. 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 individuals—of “exoneraters” among the judges even when the defendant is found guilty.[3] This requires a minimum of 22 judges—10 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.[4]]

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 that,

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 guilty—only then is he executed.[5]

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.”

Forcefully Willed

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.”[6]

“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 ‘coerced’—on 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.”[7]

Insufficient Knowledge

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;[8] 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 perpetrator’s intrinsic will; every crime is a result of external forces that have overwhelmed the criminal’s 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.”[9] The Sanhedrin must decide the willfulness of the criminal’s 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 will.)

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” criminal—a 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.[10] 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 criminal’s 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 court’s exorcism of the taint of his crime from his soul. These arguments accentuate his intrinsic innocence—an innocence that exists even in the most technically “guilty” criminal. At times, they may indeed succeed in bringing the defendant’s 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 defendant’s 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 court’s elucidation of the defendant’s 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 7, 1985)[11]

Adapted from the teachings of the Rebbe by Yanki Tauber


[1] . 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.

[2] . Probably the source of today’s 23-member Grand Jury.

[3] . As per Numbers 35:24-25: “And the community shall judge … and the community shall save.” A “community” (eidah), as indicated by Numbers 14:27, is ten individuals.

[4] . Sanhedrin 2a-b.

[5] . Mishneh Torah, Laws of Sanhedrin 9:1.

[6]. Mishneh Torah, Laws of Divorce 2:20.

[7]. Ibid.

[8] . Genesis 1:26.

[9]. Talmud, Sanhedrin 6b.

[10]. See Rashi’s commentary on Deuteronomy 25:3; Talmud, Makkot 23b; Kessef Mishneh on Mishneh Torah, Laws of Witnesses 20:2.

[11] . Likkutei Sichot, vol. XXIX, pp. 113-121.

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