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The measure of pain: Punishment and dignity in the Jewish tradition

David Novak ABC Religion and Ethics 1 May 2013
Unless the conviction that mutilation and torture should not be used as punishment is developed within normative traditions, it can be abandoned when popular opinion changes.



One could define compassion minimally as the alleviation of physical pain and the refusal to inflict physical pain on anybody else, even on somebody who himself or herself has inflicted pain on somebody else. But how does one measure pain, whether one's own pain or somebody else's pain? And how could we determine what is appropriate compensation for somebody upon whom pain had been inflicted by somebody else?

The Mishnah supplies a suggesting criterion for compensating a person upon whom pain has been inflicted. "As for pain, we estimate how much a person like this one would take [as compensation] to suffer similar pain." Maimonides interprets the phrase "a person like this one" to refer to the victim, since it is the amount of money he would be willing to take to suffer pain that determines how much he is to be paid by his assailant. In that way, the absurdity of assuming an equal pain threshold for both the victim and the assailant is avoided. Pain is thus recognized as being the most subjective and individualistic of experiences.

Nevertheless, in the Palestinian Talmud, the question of the criterion for determining payment for the pain inflicted on the victim of the assault is debated. There, one Rabbi suggests that the monetary criterion refers to how much such a person would take to suffer similar pain. This seems to be the preferred interpretation of the Mishnah. In the Babylonian Talmud, conversely, the preferred interpretation of the Mishnah is that payment for pain is determined by the amount of money one would pay to avoid being tortured.

Whether or not one is convinced by this novel reinterpretation of the Mishnah, it does show how Jewish thinkers could reject any suggestion torture as an acceptable form of punishment. It also shows their revulsion at the cruelty practiced by the non-Jewish regime under which they lived. That is, their criterion for determining compensation for suffering pain through an assault became what a person would do to avoid that pain as much as possible rather than complying with the cruelty that seems to be the motivation for torture as a form of legally instituted punishment. The imperial authorities certainly might be sadists, but the Jews are not supposed to be compliant masochists.

There is almost no society today in which Jews live - and no society at all in which Jews would want to live - whose law mandates torture, with or without mutilation, as punishment for a tort. That is why payment for the pain inflicted by one person on the body of another could only now be a stipulated fine, making it like payment for public humiliation always seems to have been. And, in fact, when torture was still a legally acceptable form of punishment, Jewish authorities had already ruled that payment for pain inflicted be a stipulated fine rather than anything suggesting an actual "going rate" paid by those who could afford to avoid officially mandated torture.

But while, in rabbinic interpretation, inflicting pain as legal compensation for inflicting pain by an illegal assault was abrogated, this was not the case with corporal punishment. The Rabbis interpreted the following biblical mandate literally: "It shall be that when the convicted person deserves to be beaten ... Forty lashes he may be given, but no more ... then shall your brother be dishonoured in your sight" (Deuteronomy 25:2-3).

Examining the whole penal institution of corporal punishment, one could ask whether the whole purpose of corporal punishment is to cause the offender bodily pain plus the emotional pain of being publicly humiliated, or is the emotional pain alone the real purpose of corporal punishment?

Of course, one could argue that emotional suffering is as severe as, if not more severe than, physical suffering. Moreover, emotional suffering is even harder to measure than is physical suffering, hence it is harder to eliminate because its very presence is even more subjective. Nevertheless, the emotional suffering involved in being publicly humiliated is surely involved in any kind of punishment publicly administered. Even today, when imprisonment is the usual form of punishing wilful offenses against others as "crimes against society," there is much emotional suffering involved in being designated a convicted felon and sentenced to a prison term for that offense, not to mention one's actual experience of being incarcerated.

As such, to eliminate the emotional suffering involved in any legal punishment would ipso facto make any kind of punishment impossible. Hence our compassionate desire not to cause human suffering, not to cause even felons to suffer, should not trump society's need to effect justice. And how can there be true social justice in a society that refuses to punish criminals altogether in the name of what many people consider misplaced compassion?

Indeed, many people today who see too many criminals go unpunished or too lightly punished think that the undeserved compassion shown criminals is itself a most uncompassionate neglect of the need of the victims of crime that society do justice on their behalf. So the desire to eliminate torture as a form of legally mandated punishment can only be fully satisfied, and can only be fully just, when the torture to be eliminated is physical torture.

Despite all of the discussion above, I know of no Jewish community to day where corporal punishment is practiced. And that is because corporal punishment is a matter of criminal law, and there is no Jewish community today that has the full power of adjudicating according to Jewish civil law, much less the power to adjudicate according to Jewish criminal law.

However, one could ask hypothetically: Were Jewish law to become the official law of the State of Israel in all areas of human life and action, would that involve the reinstitution of corporal punishment? Yet, even were that to happen (which is quite unlikely at present), it is possible that the Rabbis of that reestablished Jewish theocracy would make so many preconditions for the administration of corporal punishment that its actual practice would become most improbable practically, even if possible theoretically because no human authority can abrogate in principle what has been mandated in the divinely revealed law of the Torah.

So what about capital punishment? In many western countries (such as Canada), capital punishment has been eliminated. In the United States, there is ongoing debate as to whether capital punishment violates the Bill of Rights prohibition of "cruel and unusual punishment."

In the Mishnah there is a debate about capital punishment. Here again, no one in the rabbinic tradition could argue that capital punishment is essentially unjust inasmuch as the divinely revealed Torah mandates it in a number of cases. The most that opponents of capital punishment can do is to make the criteria of evidence to convict anyone of a capital crime to be so improbable that, de facto, capital punishment would be almost impossible to effect.

And this seems to be based on respect for human life as the image of God, even the human life of a person sentenced to death, as a matter of justice rather than compassion. For, isn't compassion for those who have committed the heinous crimes, for which the Torah mandates capital punishment, misplaced and inappropriate?

Nevertheless, that justice be done here does not mean that the execution must also involve a torturous death for the convicted criminal. Hence, in a rather amazing interpretation of "you shall love your neighbour as yourself" (Leviticus 19:18), the Talmud says this (among other things) means "you shall provide the criminal with a quick death" - that is, a painless death. Along these lines, there is a report in the Talmud that criminals about to be executed were provided with a potion that rendered them unconscious, thus making them incapable of experiencing pain during their own execution.

As in corporal punishment, the purpose of capital punishment seems to be atonement as reconciliation with God rather than humiliation (let alone torture) in the form of the criminal's estrangement from his or her fellow human beings.

One could conclude that all of the above is beside the point today, since there seems to be virtually unanimous consensus in the West that mutilation and physical torture are themselves crimes and should not, therefore, ever be employed as forms of punishment for similar (or dissimilar) crimes. However, unless such opinions are developed within overall normative traditions that govern human life and activity, such opinions have no real foundation. As such, they can just as easily be abandoned when popular opinion changes. When this happens, those who are not anchored in normative traditions that claim transcendent warrants have no basis upon which to approve or disapprove social changes. Their own particular, mutable social milieu is all they have.

This becomes especially evident when one observes western reactions to Muslim regimes that practice mutilation and torture as forms of punishment. Most westerners simply presume cultural superiority and look down on the "primitive" practices of such unenlightened Muslims. (The irony, of course, is that many westerners are also cultural relativists who reject any absolute moral claims made by their own religious or normative traditions, which they think they have surpassed.) Yet these Muslims themselves would claim that these practices are mandated by their own tradition, and consequently have a transcendental warrant. They would then accuse their western critics of having no such tradition upon which to base their disapproval other than their subjective tastes.

But my point here is that Jews and Christians, rooted in their respective traditions, have good reasons to oppose mutilation and torture, since their traditions have developed to the point where they can judge these cruel practices to be contrary to the protection of human dignity. And, furthermore, Jews and Christians are able sympathetically to encourage Muslims to find similar developments in their own tradition, which is a tradition that has many times seen itself to have much in common theologically and morally with Judaism and Christianity.

I therefore believe it is the moral duty of Jewish and Christian ethicists to understand these developments within our own traditions, to preserve them, and to engage in serious dialogue with Muslims (and members of other non-Judaeo-Christian traditions) who are struggling with the same moral problems we are.

David Novak holds the J. Richard and Dorothy Shiff Chair of Jewish Studies as Professor of the Study of Religion and Professor of Philosophy at the University of Toronto. His most recent books include The Sanctity of Human Life, Tradition in the Public Square and In Defense of Religious Liberty.

Comments (2)

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  • Philip :

    05 May 2013 12:06:40pm

    It is a little disingenuous to believe that all who suffer conviction of a felony and then incarceration feel any opprobrium. For some it is a way of life and often, among certain sections of society, a badge of honour. If we really want to humiliate and cause convicted criminals to feel mental anguish but not physical anguish we should bring back he stocks, complete with details of name and crime. Though It may seem a wrong reason for punishment to some jurists, we do have to deter others and the fear humiliation is, for the majority of us, a deterrent. For some crimes that might be a bit harsh but penalties could be framed, as they are today, so as not to unduly punish the perpetrators of minor infringements.

  • Astonished :

    02 May 2013 12:39:57am

    Perhaps the point of justice is not to do equal harm to the perpetrators of crime, but to redress the injury done to the wronged (most fairly done where possible by the one who did the wrong) and ensure that the one who did wrong, having restored the balance as much as possible, wrongs nobody else.

    In this context, imprisonment is not punishment, it is keeping the untrustworthy from harming others until they can be trusted with freedom again. Sometimes this might be forever.

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