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Extra-Legal Punishments in Medieval Jewish Courts Zev Farber

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Extra-Legal Punishments in Medieval Jewish Courts Zev Farber Extra-Legal Punishments in Medieval Jewish Courts Zev Farber Extra-Legal Punishments in Medieval Jewish Courts Zev Farber CHASUBLE: “Dear Mr. Worthing, I trust this garb of woe does not betoken some terrible calamity?” JACK: “My brother.” MISS PRISM: “More shameful debts and extravagance?” CHASUBLE: “Still leading his life of pleasure?” JACK [Shaking his head.]: “Dead!” CHASUBLE: “Your brother Ernest dead?” JACK: “Quite dead.” MISS PRISM: “What a lesson for him! I trust he will profit by it.” – Oscar Wilde; The Importance of Being Earnest, 1895 Introduction Laws are created to govern law-abiding citizens in law-abiding societies, and to protect these citizens from the few who try to take advantage of them. Unfortunately, not in all times or all places is society law-abiding. For this reason, governments over the generations have explored the possibility of using extra-legal or emergency measures to deal with situations that either disturb the society by their shocking nature, or that may begin a cycle of law-breaking that could threaten the society's social fabric. These extra-legal methods are often officially sanctioned by governments and even legislated as exceptions to standard rules. Some contemporary examples might be the execution of Adolf Eichman in Modern Israel – a country where there is no death penalty with the exception of captured Nazis; the execution of serious opium dealers in the Peoples Republic of China in the first half of the twentieth century; and the suspension of habeas corpus by Presidents Clinton (2001) and Bush (2006) for people suspected of being terrorists or enemy combatants. This same trend is found explicitly in Rabbinic literature and can be divided into two conceptual categories: A. Applying standard punishments in cases where they don‟t technically apply. B. Creating new punishments that are not found on the books for any crime. We will begin by looking carefully at these two different categories as they are described in Rabbinic literature. Afterwards we will look at examples from the medieval period and how these methods were weighed and implemented. Part I – Standard punishments in non-standard situations A. Fines In Bavli, Tractate Baba Kamma (96b) we read the following account: 1 Extra-Legal Punishments in Medieval Jewish Courts Zev Farber A certain man stole a yoke of oxen from his friend. He went and plowed with it and planted with it. Afterwards, he returned it to its owner. They came before Rav Nahman. He said to them (the bailiffs): “Go and estimate how much the value appreciated.” Ravah said to him: “Did the oxen cause the appreciation and not the land?” [Rav Nahman] said: “Did I say we must estimate the total appreciation? I said half.” [Ravah] said to him: “In the end, it was a robbery, and he returned the items intact, as we were taught: „All thieves pay the value at the time of the theft‟!” [Rav Nahman] said to him: “Have I not told you that when I am sitting in judgment you should not say a word? For my friend Huna said about me that I and King Shabur are brothers in justice! That man is a renowned crook, and he needs to be penalized!” In this case, Ravah, the student, is correct from a technical standpoint. The halakha is that if a thief returns the stolen object intact before he is taken to court and found guilty, there is no further penalty. This law was constructed by the Rabbis to encourage thieves to admit their crimes and repent, saving the courts time, money and hassle. However, it seems that in this case, the thief was playing the law to his advantage. One might presume that this man often used the property of others without their permission, instead of incurring his own expenses, and immediately returned the “borrowed” goods before the offended party had the opportunity to pursue the criminal in court. Rav Nahman teaches Ravah in this story that he is considered the fairest of judges, equal to the famous King Shabur, not just because he knows the law, but that he is willing to enforce justice extra-legally if necessary. Although there is no legal way to stop this person from continuing to plague his neighbors by “borrowing” their possessions, Rav Nahman penalizes the thief by charging him one-half of the appreciation of his field since the plowing. Rav Nahman‟s hope is that this fine will cause the thief to stop his illegal activities; as Rav Nahman says: “The man is a renowned crook, and he needs to be penalized!” B. Lashes Insofar as the punishment of lashes is concerned, it seems that the Rabbis went far towards legislating or at least allowing broad discretion in administering this punishment in cases where it did not technically apply. The earliest mention of extra-legal lashes is found in the Mishna, Tractate Nazir (4:3): A woman who took a nazirite vow and would [nevertheless] drink wine and make herself impure from contact with the dead – should bear the forty [lashes]. If her husband overrode her vow, but she did not know that her husband had overridden it, and she would drink wine and make herself impure from contact with the dead, she should not bear the forty lashes. Rabbi Judah says: “If she doesn‟t bear the forty lashes, she should [at least] bear the rebel‟s lashes.” In this case, Rabbi Judah suggests that a woman be punished for her actions because she believes she is desecrating her nazirite vow, even though due to a technicality she is not legally bound to the vow and therefore cannot desecrate it. Her actions are abhorrent though not technically sinful. The punishment he suggests is a 2 Extra-Legal Punishments in Medieval Jewish Courts Zev Farber version of the punishment she would have received for the actual crime: lashes. This is referred to in halakha as the rebel‟s lashes. In Bavli, Tractate Yevamot (52a), the concept is developed significantly: A text: Rav Huna said: “The mitzvah for levirate husbands is to marry before intercourse, but if he had intercourse as the ma‟amar (levirate marriage) ritual – she becomes his wife.” Obviously she becomes his wife! He is using intercourse as the method of marriage! Rather, say that [Rav Huna really said] that if they had intercourse without intention for it to be a ma‟amar – she becomes his wife. But does it not say that in such a case he should be whipped?! [That refers to] the rebel‟s lashes, which are Rabbinic. For example, Rav used to strike: A. Anyone who used intercourse as his method of marriage, B. Anyone who got married in the public square, C. Anyone who married without first getting engaged, D. Anyone who canceled his writ of divorce, E. Anyone who sent a disclaimer along with the writ of divorce, F. Anyone who disrespected an officer of the court, G. Anyone who was under the ban for refusing to swear an oath in court for thirty days without coming to court to challenge the verdict, or H. A prospective son-in-law living in his in-law‟s house. [Does this mean that] living there is the problem, but visiting is permissible? But did not Rav Sheshet strike someone who only visited at his prospective in-law‟s house? That person was suspected of having an affair with his mother-in-law. In Nehardea they said that Rav didn‟t actually strike people for any of these offenses except marrying through intercourse without an engagement. There are those who say that even with an engagement [Rav would strike someone who married through intercourse], as it is lewdness. Above are two Babylonian Amoraim, Rav and Rav Sheshet, who struck people when it was not warranted halakhically. Rav seems to have gone further, apparently using rebel‟s blows as carte blanche punishment for certain offences. Although Rav‟s position stands out as rather extreme, we can see the position of Rav Sheshet seconded in the Bavli, Tractate Ketuvot (10a) by Rav Nahman: A certain man came before Rav Nahman and said that [he could tell from intercourse with his wife on their wedding night that] she had no hymen. Rav Nahman responded: “Beat him with palm switches! Have all [the women] of Mebarakhta knelt before him?”1 But didn‟t Rav Nahman say that [a man who testifies about such matters] is believed? He is believed and beaten with palm switches. Rav Ahai taught: In one case [Rav Nahman] was referring to single men, in the other case, married men. It is unclear whether Rav Nahman beat the man because he thought he was a liar, or because he thought he was promiscuous. Nevertheless, it is clear that this was an extra- legal punishment and not an official conviction and execution of a standard punishment.2 In Midrash Tanna’im (Deuteronomy 25:3), there is even an attempt to both attach the rules of the rebel‟s lashes to a verse, as well as to legislate the exact difference between regular, court sanctioned lashes and rebel‟s lashes: 1 This is a play on the name of the town the man was from, as the name Mebarakhta is reminiscent of the Hebrew word “birkayim,” meaning knees. 2 This is, of course, of a pattern with his fining of the well-known thief mentioned above. 3 Extra-Legal Punishments in Medieval Jewish Courts Zev Farber “[He should strike him forty times, no more,] lest he strike him more than these” – he cannot strike him more than “these,” but he can strike him more for rebel‟s lashes.
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