Crime and Punishment in Jewish Law: Essays and Responsa

By Walter Jacob; Moshe Zemer | Go to book overview

of dubious financial transactions, rebellion against the existing religious or governmental authorities both Jewish and gentile, or any person whose deeds seriously threatened the community. On other occasions the herem or nidui was used as a way of punishing an offender and forcing that individual to repent and return to the community. Maimonides listed the twenty-four possible causes for imposing various forms of the ban; they were casually mentioned in the Talmud ( Ber19a; Yad Hil. Talmud Torah 4.14; Shulhan Arukh Yoreh Deah 334.43). We should also note that in the last century the herem was used in unsuccessful attempts to quell liberal tendencies in various European communities. In other words, this was part of the struggle between Orthodoxy and Reform.

The various forms of exclusion, nidui and herem, were imposed for limited periods and seldom permanently. Furthermore, the bans remained in force only as long as the individual did not change his/her ways. The bans meant social and religious ostracism so no one could associate with the individual on a social basis or in business relationships. The individual could not be counted as part of the minyan or as part of mezuman, and his children were not circumcised or married ( Shulhan Arukh Yoreh Deah 334.10 and Isserles). For most purposes he was treated as a non-Jew ( Shaarei Tzedeq 4.5). He or she was also excluded from all congregational honors and privileges. As the punishment was so severe, some rabbis abstained from using it while others sought to limit its range ( Solomon ben Aderet Responsa V #238, etc.). The herem did not necessarily preclude attendance at services or worshiping with the congregation although it often did. The authorities always hoped that the individual under the ban would repent, and this was considered as possible to the very end of life. Even convicted unrepentant murderers, who were executed, were buried in the Jewish cemetery albeit in a separate corner; they were considered a part of the community. Burial itself was considered an act of possible repentance; it was mandated in order to show proper respect for the human body ( Semahot II; San47a; Yat Hil. Avel 1.10; Tur Yoreh Deah 334; Shulhan Arukh Yoreh Deah 333.3). Apostates, who were frequently a thorn in the side of the Jewish community, were also still considered part of the community; they were permitted to be buried in Jewish cemeteries for two reasons: a) In order to spare the feelings of the surviving Jewish family mem

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