Deut. 21:10 - 25:19
Précis: The parasha might be
subtitled “entering society” because it describes the creation of a just and
moral social network. It begins with the phrase “when you go forth” (ki
tetze) to battle. This parasha, according to Maimonides, contains 72
mitzvot (commandments). Although they seem unrelated, they all deal with the
morals and values that God wanted to be deeply implanted in the Israelites'
society. They cover a wide variety of topics, from family life, human kindness,
respect for property and animals, the safety of others, sexual relationships,
escaped slaves, financial loans and charging interest, keeping promises, and
remembering to blot out the name of one of Israel's greatest enemies. This
assortment of commands included requirements that there be sex-distinct
clothing; that mother birds not be separated from their eggs; that roof-tops
have parapets; that seeds not be mixed in a field, and that “tzitzit”
(fringes) be worn on garments.
Deut. 25:1–3“When
there is a dispute between persons and they go to law, and a decision is
rendered declaring the one in the right and the other in the wrong, if the
guilty one is to be flogged, the magistrate shall have the person lie down and
supervise the giving of the lashes, by count, as warranted by the offense. The
guilty one may be given up to forty lashes, but not more, lest being flogged
further, to excess, your brother be degraded before your eyes.”
In these
verses, we come face to face with corporal punishment, a practice which we
reject in modern society. It may be that this “institution” was adopted because
there were no prisons in ancient Israel, and some penalty short of death was
required for relatively “minor” offenses. Prison did exist in some other societies (as
we know by Joseph’s imprisonment in Egypt). Here, we find concern for the
criminal facing the lash. The lashes come only as a result of a sentence by a
properly constituted court; they are limited in number; the offender had to be
of sufficiently good health to survive the ordeal. Finally, the offender is referred
to as one’s “brother” to indicate his essential humanity.
In
practice, lashes never exceed 39, to avoid the possibility of transgressing the
numerical limit. Once punished, the offender returns to the community, in effect
having paid his “debt to society.”
In
recent years, we have debated the impact of punishments which seem to exceed
the limits of what the U.S. Constitution labels “cruel and unusual.” Those who
rely on so-called “original intent” see no issue, inasmuch as criminals in the
late 18th century were often hung or received corporal punishment. (Aside:
you might observe that this writer does not agree with the concept of “original
intent,” but that’s for another d’var.) Those with a broader interpretation of
our Constitution discuss the continuing validity of capital punishment; another
argument concerns the question of whether prolonged solitary confinement should
be barred.
From
a Jewish perspective, we should recall that the cited punishment was seen as a
kind of retribution, but, at the same time, the offender was always encouraged
to repent (“do t’shuvah). Jewish
tradition reminds us also that a court that sentences someone to the death
penalty more than once in 70 years is considered a “murderous court.”
In
our examination of criminal justice issues today, the ability of offenders to
repent and “do t’shuvah” should
certainly be part of the calculus in which we engage when we consider how our
criminal justice system operates.
