Crime and Punishment

And Hashem spoke to Moshe and Aharon saying: This is the statute of the Torah that Hashem commanded saying, “Speak to the Children of Israel and they should take for you a red cow [that is] perfect, in which there is no blemish, upon which has not been placed a yoke. (Sefer BeMidbar 19:1-2)

I. An odd offering

These passages introduce the discussion of Parah Adumah – the red heifer. This is a very unusual offering. The cow was slaughtered outside the precincts of the Mishcan – the Tabernacle. No portion of the cow was offered on the altar. The Torah notes only a single similarity between this offering and a typical sacrifice. Its blood was sprinkled in the direction of the Mishcan

The Torah explains that the cow is completely burned along with cedarwood, hyssop, and a dyed-blue thread. The ashes are collected. These ashes are combined with water. The mixture is used to restore the purity of a person who was defiled through contact or association with a dead body. The process of cleansing away the defilement includes sprinkling this mixture on the defiled person.

The commentators acknowledge the many bizarre elements of the process described by the Torah. The cow is offered outside of the Mishcan. This is otherwise prohibited. The ashes are used to purify one defiled by contact with the dead. But the Kohanim – the priests – who participate in producing the ashes are defiled by the process. The ashes that defile those who produce them cleanse one who is defiled. 

II. Chok and Mishpat

Rashi notes a comment of the Sages that addresses the paradox of the Parah Adumah. They note that in the above passages Hashem introduces the Parah Adumah with the statement, “This is the statute of the Torah.” The Hebrew term used in the passage for statute is chukat – a derivative of the term chok. “Statute” does not communicate the full meaning of the term chok. Rashi explains that a chok is a commandment for which there is no obvious reason. 

Rashi is introducing a basic framework for categorizing the mitzvot. They can be divided into chok and mishpat. A mishpat is a mitzvah whose reason is self-evident. Most societies have laws similar to these mishpat commandments. They include the prohibitions against stealing, murder, bearing false witness, oppressing the weak, and deceptive business practices. 

Chok mitzvot are far less common to and arguably absent from most societies. These are mitzvot whose reason and necessity are not self-evident. Their objective is not to order or govern social and commercial interactions. Their goal is the spiritual improvement of the people. Sometimes, the Torah reveals to us the reason for a chok. Often, it is not revealed. When it is not revealed, we may speculate on the reason for the mitzvah. Generally, these speculations yield various possibilities but do not result in a definite explanation. Parah Adumah is so paradoxical that it is difficult to even speculate on its reason and rationale. 

III. Paradoxical mishpat laws

Rav Eliezer Yehudah Rabinovitz[1] explains that the difference between chok and mishpat is not absolute. Many of the Torah’s mishpat mitzvot also include odd or absurd elements. An example is the Torah’s treatment of theft. The Torah prohibits theft and establishes penalties for one who steals. If the thief is caught, then he is fined. He must restore to the owner the stolen property or its value. He must also pay to the owner a fine equal to the value of the stolen property. If he stole property of $100, he must restore the property or its value. Also, he must pay the owner a fine of an additional $100. This fine is only imposed by the court if there are witnesses to the crime. Circumstantial evidence is not adequate. Also, even if the crime is witnessed and the witnesses are prepared to provide the court with their testimony, the thief can avoid the fine by confessing before the witnesses testify. 

Presumably, the fine is intended as a deterrent. However, it is not very likely to be effective. Imagine the calculations of the would-be thief. “I’ll make sure there are no witnesses. If I discover that there are witnesses, I will race to the court and confess my crime. If the witnesses testify against me and I am found guilty, I’ll pay the fine. In other words, it’s worth the risk.”

Rav Rabinovitz concludes that even mishpat laws are not completely self-evident and include disturbing or inexplicable elements. 

IV. Preventing crime

This does not mean we cannot understand these mishpat laws – only that their rationale is not self-evident. How can this example be explained? He notes that most societies impose far more severe consequences for stealing. These often include incarceration. Rav Rabinovitch lived in the Czarist Russian Empire which during his lifetime was succeeded by the Communist regime. Both imposed incarceration in harsh, bleak prisons and exile to remote barely habitable environments. Yet, crime flourished. He concluded, that the Torah’s deterrents are weak but even extreme consequences do not extinguish or reduce crime. He concluded that consequences are not effective crime deterrents. 

Is there a way to address crime more effectively? Rav Rabinovitch explains that the Torah’s approach is to promote preventative measures rather than deterrents. The Torah’s preventative strategy is education. We are commanded to teach the Torah to our children and to transmit its laws and values to them. This is mandatory. It is one of the Torah’s mitzvot. Through investing in our children’s education, we raise responsible individuals who understand right and wrong, who have a moral and ethical code of conduct, and will not resort to crime.[2]

This does not explain the purpose of the punishments. If the fine for theft is not an effective deterrent, then why does the Torah impose it? There are various plausible explanations. The owner of the stolen property is entitled to recompense. The return of the object is not adequate. He has suffered the loss of the use of the object and anxiety over its return. The thief may not have the stolen property and the owner will have to sacrifice his time to replace it. The fine he receives in excess of the value of the property provides some compensation. Another possibility is that the consequences are an educational tool. They communicate the relative severity of the crime. Some crimes are punished with a fine, others with lashes, and some with death. The various consequences impress upon the student who studies the Torah the importance of its many commandments.    

Rav Rabonivitch’s message is that we must invest in nurturing children who understand the Torah’s expectations and ascribe to its values, morals, and ethics. As adults, they will be committed to contributing to the community. This is the most effective antidote to crime. 

V. The gambler’s testimony

Rav Aharon Lichtenstein applies this principle to explain another of the Torah’s strange mishpat laws. The Talmud explains that one who is a gambler is disqualified from testifying. It offers two explanations for this law. The first is that those who engage in gambling expect to win. Their wager is not made wholeheartedly – with full acceptance of the consequences of losing the bet. The money collected by the gambler who places a winning bet was not offered by the loser with complete sincerity. This dynamic taints gambling with an element of dishonesty. The second explanation is that the gambler is not engaged in the “development of the world.” 

The Talmud further explains that there is a practical distinction between these two views. If the gambler is disqualified because he engages in a tainted activity, then it makes no difference that a person is only an occasional gambler. If the activity is unethical, even occasional gambling is wrong. However, if the disqualification is because the prospective witness is not engaged in the development of the world, then only a professional gambler is disqualified. A person who is engaged in a productive enterprise and occasionally makes a wager is engaged in the development of the world.[3]

The first explanation for disqualifying the gambler is reasonable. We can understand that his engaging in a tainted activity might undermine a prospective witness’ reliability. It is more difficult to understand this second explanation. Why does not engaging in productive endeavor disqualify the professional gambler from testifying? 

VI. Investing in the community

Rav Lichtenstein applies a derivative of the principle developed above. He explains that one who engages in the development of the world – a productive endeavor – is invested in his community and society. He is a member of and contributor to his community. He cares about its welfare. It is assumed he can be trusted to testify truthfully. The professional gambler is not contributing to his community and is not investing in it. We cannot assume that he is concerned with its welfare. His testimony is not reliable.[4] 

VII. The Torah’s program

An important lesson emerges from this discussion. For a community or society to flourish, it must nurture its children. How is this accomplished? Education is an important component. The Torah requires that we provide our children with a value-rich education. Also, it expects school and home will participate in the program. Schools can teach values but only families demonstrate them. When school and family combine in the program of nurturing children, they are very powerful and effective.[5]   

[1] Rav Eliezer Yehudah Rabinovitz (1879-1941) studied in three of Eastern Europe’s premier yeshivot – Telz, Slobodka, and Volozhin. He served as rabbi of the community of Memel, Lithuania where he succeeded his father. He was a prolific contributor to the Torah journals of the period. He edited his father’s works and composed and published responsa. Rav Rabinovitz was murdered in the Holocaust.       

[2] Cited by Rav Shimon Vanunu, Torah M’Shulcan Rabanan, pp. 103-6. The specific source of Rav Rabinovitch’s comments is not noted. 

[3] Mesechet Sandehrin 25b.

[4] Rav Aharon Lichtenstein, By His Light, pp. 10-11.

[5] I am reminded of a conversation I had early in my career with an elder member of the Seattle community. He advised me to promote Northwest Yeshiva High School by speaking about its strengths. I should not focus on the failings of the public school system. His advice reflected the times. High school Torah education was relatively new to Seattle. Most Jewish families sent their children to public schools and supported that system. Of course, in the Orthodox community, there was enthusiasm for our school. However, in the larger community, an attack upon the public school system would be provocative. 

At the time, I did not understand these dynamics, but I followed the advice. I preferred to attract families who saw our school as a positive alternative over those families who reluctantly enrolled their students to escape public schools. 

Today, I might feel differently. It has become increasingly difficult for public schools to teach values. Only the most universal and vague values are uncontroversial and can be readily transmitted in a public school setting. As an educator, I am concerned for the students produced by that system. Have they developed any concrete values to guide them? On what basis will they distinguish between right and wrong? More importantly, to what degree have young people even considered moral and ethical issues?