Crime and Punishment in Jewish Law: Essays and Responsa

Crime and Punishment in Jewish Law: Essays and Responsa

Crime and Punishment in Jewish Law: Essays and Responsa

Crime and Punishment in Jewish Law: Essays and Responsa

Excerpt

"When the State of Israel has its share of thieves, prostitutes, and thugs, then it will be a normal state like all others" is a statement attributed to Ben Gurion; he wished to characterize Israel as a "normal" land among all other nations. Actually this should have been the least of his worries as we have always had such a criminal element in our midst.

Judaism has sought to move in the other direction and to minimize this criminal element. As a "chosen people," we would, hopefully, have a lower percentage of criminals in our midst. The aim is laudable, but the goal has never been attained. The legal systems that we have developed since Biblical days had to deal with crime and the criminal in an ethically effective way. The Bible presents only a small portion of the laws necessary for a state to function; undoubtedly criminal law developed separately as royal prerogative, although we know nothing about this. The later halakhah as we see it in the Mishnah and Talmud had to be creative even though the power of its courts both in Babylon and Palestine was limited. Whole tractates of the Talmud discuss a wide variety of legal issues both civil and criminal. Some elements of this material have been incorporated into modern Israeli law, but that is not the subject of this volume. We are concerned with the way in which the halakhic approach can shape our modern thinking in this area wherever we live, in the Diaspora or in Israel.

As we look at the halakhah, we must immediately distinguish between the practical and the purely theoretical. Although the jurisdiction of the bet din was limited in every land where we lived, the scholars felt that it was important to develop a system . . .

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