DIVINE PUNISHMENT

In a system of law based on divine revelation all punishment originally and ultimately derives from God. Even though human agencies may be entrusted with authority to inflict punishments in certain prescribed cases, God's own overriding punishing power remains unaffected, and the ways and means of divine punishment are as numerous and varied as they are of catastrophic unpredictability (cf. the punishments threatened for "rejecting God's laws and spurning His rules" in Lev. 26:14–43 and Deut. 28:15–68). God punishes whole peoples (the Flood: Gen. 6; Sodom and Gomorrah: Gen. 18; Egypt: Ex. 14:27–28; et al.) as well as individuals (Cain: Gen. 4:10–15; Aaron's sons: Lev. 10:1–2; Miriam: Num. 12:6–10; Korah and his company: Num. 16:28–35; et al.); and visits "the guilt of the fathers upon the children, upon the third and upon the fourth generations of those who reject" Him (Ex. 20:5; Deut. 5:9). The fear of God is inculcated in those tending to be cruel or callous (Ex. 22:26; Lev. 19:14, 32), and specific retaliatory punishments will be inflicted by God for mistreating widows and orphans (Ex. 22:21–23).

Originally, divine punishment was independent of and additional to judicial punishment; there are several biblical instances in which *capital punishment is prescribed for a particular offense and yet the threat of divine punishment is superadded (e.g., Ex 31:14). In one instance, the law explicitly states that where the prescribed capital punishment is not carried out, God will himself set His face "against that man and his kin and will cut off from among their people both him and all who follow him in going astray after Molech" (Lev. 20:2–5). This juxtaposition of divine and judicial punishments appears conclusively to disprove the view that karet ("cutting off") was not a divine punishment of death, but rather a judicial punishment of excommunication. While, in the nature of things, all judicial punishment is uncertain, depending on the offender being caught, evidence against him being available, and the "people of the land not hiding their eyes" from him (Lev. 20:4), divine punishment is certain and inescapable, and thus a much more effective deterrent; the omniscient God will not suffer His laws to be disobeyed with impunity (cf. Deut. 32:41). The fundamental injustice underlying the ideas of inherited guilt and deferred punishment and unbounded wrath is, from the point of view of penal policy, a lesser evil than God's failure to mete out deserved punishment.

For a good many offenses, the divine karet is the only punishment prescribed. It has been suggested that they are such offenses as are committed in private, for which eyewitnesses will not usually be available, such as, for instance, the eating of fat or blood (Lev. 7:25–27; 17:10, 14), or various sexual offenses (Lev. 20:17–18; 18:29), or the nonobservance of the Day of Atonement (Lev. 23:29–30) or of Passover (Ex. 12:15, 19). Others maintain that these offenses are mostly of a religious or sacerdotal character, such as failure to circumcise (Gen. 17:14) or to bring certain sacrifices (Num. 9:13), as well as the nonobservance of the religious festivals already mentioned; and that for such religious sins any judicial punishment was thought inappropriate (cf. Sifra 1:19). There are, however, some offenses, punishable by karet only, that do not fit into either of these categories as, for instance, public blasphemy (Num. 15:30–31). This fact – together with the gravity of some of the sexual offenses so punishable – led some scholars to assume that karet, even though a threat of divine punishment, was at the same time an authorization of judicial capital punishment (cf. Ibn Ezra, Lev. 18:29). This theory is strengthened by the fact that some of the offenses punishable with karet are stated to be also judicially punishable (Ex. 31:14; Lev. 20:6).

Apart from karet, divine punishment is expressed in terms of simple death (e.g., Num. 18:7) as well as of "bearing one's iniquity" or guilt (e.g., Lev. 5:1; 7:18; 17:16; 20:19; 24:15; Num. 5:31). Sometimes "he shall bear his guilt" is followed by "and he shall die" (Ex. 28:43; Num. 18:32); sometimes it is combined with the threat of karet (Lev. 19:8; 7:20), and sometimes joined with the threat of childlessness (Lev. 20:20). It has therefore been suggested that where the "bearing of guilt" stands alone, it is meant only as imposing the duty to bring a sacrifice to God (Tosef., Shevu. 3:1).

With the development of jurisprudence, it was sought to purge divine punishment from apparent injustice (Jer. 31:28–29; Ezek. 18:2–29), and it was later relegated altogether to the realm of homiletics; people were warned that premature death (at the age of 50), or death without leaving issues, were signs of the divine karet (Sem. 3:8; mk 28a; Rashi and Tos., Shab. 25a–b), and that every undetected murderer would meet with "accidental" death at the hands of God (Mak. 10b). By talmudic law, karet, though interpreted as divine capital punishment, was absolved by the human judicial punishment of *flogging (Mak. 13a–b; Yad, Sanh. 19:1); having been flogged, the offender has expiated even his divine capital crime (Mak. 3:15). This substitution of flogging for divine capital punishment was in legal theory founded on the notion that God would forgive offenders who had repented, and in His mercy refrain from punishing them; undergoing the flogging was regarded as tantamount to repentance. By being flogged, the offender could avoid divine punishment since he cannot be punished twice for the same offense (Mak. 13b). The recidivist, who after having twice been flogged again committed the same offense, was given up – presumably because the supposed repentance could not have been genuine – and was imprisoned and kept on a diet of barley until his belly burst (Sanh. 81b; Yad, Sanh. 18:4).

Where a lesser penalty, such as a *fine, is merged in the larger penalty for the same offense and will not therefore be recoverable, it is sometimes held that in order to satisfy divine law (Dinei Shamayim) as well as human law and not be liable to future divine retribution, one should pay also the lesser penalty, especially where it is payable to the victim (cf. bm 91a; Tos. to bk 70b–7 la; Tos. to Ḥul. 130b).

[Haim Hermann Cohn]

Divine Punishment in Civil Law

In the framework of the laws of damages, in a number of cases in which the strict letter of the law does not allow the court to impose payment on the damager, it has been stated that the tortfeasor incurs divine punishment. Tosefta (Zuckermandel Edition; Shebu. 3:2–3), quoting Rabbi Yehoshua, enumerates four such types of damage, regarding which "according to the strict letter of the law, there is no obligation to pay, yet Heaven will not forgive the damager until he pays." Following are the cases, in the manner in which they were explained by the sages of the Babylonian Talmud (bk 55b–56a) and brought down as law (Maim., Yad, Edut, 17:7; Nizkei Mamon, 14:14; Sh. Ar., Ḥm, 28:1; 32:2; 418:11,17): (1) if someone knows testimony that can help his fellow yet does not provide it, either testimony in which one witness suffices, or in which two are required (see entry: *Witness); (2) if someone hires false witnesses to testify in favor of one's friend; (3) if someone trains his neighbor's field in the direction of a fire in such a way that an especially strong wind will make the field catch fire, or if he sees fires nearing his neighbor's field and he covers the field in such a manner that the one who lit the fire will be exempt from paying damages, and he thereby prevents the victim from receiving payment; (4) if someone breaches a rickety fence thereby enabling his neighbor's animal to leave, and it goes out and does damage.

The Babylonian Talmud (ibid.) enumerates other cases in which the damager is "exempt by human law but liable by divine law": (1) if someone does work with mei chatat [water earmarked for use with the Red Heifer in purifying people who had physical contact with the dead; such work disqualifies the water as a purifying agent (see *Red Heifer); (2) if someone sets poison before his neighbor's animal; (3) if someone leaves a burning ember in the charge of a deaf person, imbecile or minor; (4) if someone frightens his neighbor, without physical contact, and thereby causes him to become sick; (5) if someone's pitcher breaks in a public thoroughfare and he abandons the water and the broken shards, and someone else comes along and is injured by them (see Tosefta, [Zuckermandel edition], bk 6:16–17, where other cases are brought; see *Torts).

The legal responsibility of physicians is a special case. According to Tosefta (Zuckermandel, bk 6:17), "A licensed physician who, with the authority of bet din treated a patient [and committed an error], is exempt by human law but is subject to divine law." Nahmanides, himself a physician, explains that a physician who inadvertently commits injury will be liable by divine law only where he finds out that he has erred and knows what his error was. If, however, he never becomes aware of his error, he is not liable by divine law. Rabbi Simeon ben Zemah *Duran (Algiers, 14^th century; Responsa Tashbeẓ, 3:82) distinguishes between an inadvertent error during an operation, in which case he will be liable by divine law, and an error in prescribing medication, where not even liability by divine law is incurred. (See also *Assault.)

As far as the meaning of this incurrence within divine law, the posekim determined that a bet din has to inform the guilty party that, while the court cannot, in fact, sentence him to pay, he still incurs an obligation vis-à-vis divine law (Rabbi Shlomo Luria, Yam Shel Shlomo, bk 6:6). Some held that he is disqualified from bearing witness until he pays, because he is holding stolen money in his possession (Me'iri, Sofer Edition, bk 56a).

In the Kitan ruling (ca 350/77 Kitan v. Weisspd 33(2) 785), the Israeli Supreme Court reversed a lower court's award of compensation for damages in a claim submitted by the relatives of a man murdered by a worker in a factory. The worker killed the man with a gun given him by the factory for work purposes. The respondents argued that, due to the worker's problematic mental state, the factory should have foreseen that his possession of a weapon was fraught with danger. Hence, they argued, the factory should be required to compensate the victim's family. The appeal was rejected because the causal connection between the appellant's (i.e., the factory's) negligence and the killing of the deceased was too weak. Judge Elon suggested in his ruling that the court should recommend to the factory to go beyond the letter of the law. In making this suggestion, Judge Elon relied on the principle of a divine punishment being incurred where, due to the lack of the causal connection required for a torts conviction, there is no possibility of sentencing by a human court. In the opinion of many Sages, under certain circumstances a human court can even force payment, going beyond the letter of the law, upon the defendant (Baḥ on Tur, Ḥm 12:4). Even so, civil courts, in accordance with Israeli law, lack the authority to do this. Hence Judge Elon suggested to the defendants to follow this practice (ibid., pages 809–810). (See also ca 842/79 Ness v. Golda, pd 36(1) 204, page 220.)

In 1992, the Knesset adopted basic laws whose stated purpose was "to entrench within a Basic Law the values of the State of Israel as a Jewish and Democratic state." In accordance with these laws, a prominent role is accorded to Jewish law within the values of the State of Israel as a Jewish state. Today, all of this having occurred, the position of Jewish law should be given priority. It would appropriate for the courts to adopt this approach of making such recommendations to litigants, and under suitable conditions even of compelling them to go beyond the letter of the law.

For a detailed discussion of this, see *Damages; *Law and Morality.

[Menachem Elon (2^nd ed.)]

bibliography:

Rothschild, in: mgwj, 25 (1876), 89–91; J. Lipkin, in: Ha-Mishpat, 3 (1928), 9–16; A. Buechler, Studies in Sin and Atonement … (1928); et, 7 (1956), 392–5; em, 4 (1962), 330–2; B. Cohen, Jewish and Roman Law, 2 (1966), 740–4, 801. add. bibliography: M. Elon, Ha-Mishpat Ha-Ivri (1988), 1:129f, 496; idem, Jewish Law (1994), 1:145f; 2:604; idem, Jewish Law (Cases and Materials) (1999), 50–52; M. Elon and B. Lifshitz, Mafte'ah ha-She'elot ve-ha-Teshuvot shel Ḥakhmei Sefarad u-Ẓefon Afrikah (1986), 1:142–143; B. Lifshitz and E. Shohetman, Mafte'aḥ ha-She-elot ve-ha-Teshuvot shel Ḥahmei Ashkenaz, Zarefat ve-Italyah (1997), 94.