Feb 17, 2020, The Times of Israel
Whenever someone dares advocate for a Halachic Jewish State in “polite company,” he will almost immediately be met with jeers over the seemingly primitive laws of corporal punishment: “Oh, so you want to bring back public flogging? You want to stone homosexuals and people who don’t keep Shabbos?”
Retorts like that are supposed to shame the Torah-observant Jew into a feeble reply, followed by silence. Alternatively, he may double down and then face accusations that his sort are crazy extremists no better than the Nazis (slight differences, but still). He can then slink off to his dark little Beit Midrash with its dusty old tomes and let normal, enlightened people run the world.
However, if we actually take the time to compare the Torah’s version of corporal punishment with the normal, enlightened version, those making the snarky comments might be the ones slinking off in search of an echo chamber to support them. At the very least, the intellectually honest among them – which I like to believe still exist – would be forced to acknowledge that maybe they too should dust off those old tomes. The Torah has what to teach even them.
Corporal punishment exists in various forms all over the world, from the greatest bastions of liberal enlightenment to the most barbaric totalitarian regimes – yet there is nothing like the Torah’s system. Let’s contrast the key aspects of the Halachic system with what those who oppose it have become comfortable with.
Let’s start with flogging. This is one of the preferred examples of the Torah’s supposed primitiveness. Yet, none other than the British, those supposed paragons of genteel manners, routinely flogged Jews a mere 75 years ago, before the declaration of modern Israel. This practice was discontinued only when heroic underground fighters gave the British soldiers occupying our land and terrorizing our people a taste of their own medicine.
Singapore, widely viewed as a model country and one often associated with fanciful notions of a future Gaza, is notorious for caning criminals and even children to discipline them. This is an excruciating form of corporal punishment, one that has been used tens of thousands of times this century alone. This practice was also introduced by the refined, enlightened British people in modern times.
Similar and worse forms of corporal punishment exist in the majority of the world, and the attitude of most liberals is to simply blame the criminal for having committed the crime. They should have known better and respected the law, and they deserve what they got – no mercy whatsoever. Yet these same people become apoplectic at the mention of a Halachic state that includes some form of corporal punishment.
One can only assume that it is not the notion of corporal punishment that really roils them, but the notion of serving God instead of a human government, no matter how tyrannical. One can hide from and manipulate a human government, after all, which seems to be part of the fun of having one. With God there are no games.
Now let’s compare to the Torah’s system. According to the Torah, one who transgresses a standard negative commandment intentionally, after having been warned by two valid witnesses, receives up to 39 lashes, subject to his physical condition. A Torah scholar, who is presumed to know the Halacha, does not require the warning.
Consider the following:
1) The Torah’s system of corporal punishment, unlike all others in the world, will not claim a victim unless it is unmistakable that he knew the law and the punishment that awaited him, then willfully committed the crime in the presence of witnesses immediately thereafter. What person in his right mind would do that? Only one who is openly rebellious, with total disregard for the law and society, will find himself receiving lashes. And most likely for very good reason.
2) No other system in the world considers ignorance of the law a reason not to punish a lawbreaker. The United States, the world’s shining example of democracy, freedom, and human rights, has such an extensive labyrinth of laws that every citizen could be made into a criminal for one thing or another and have the book thrown at them.
In fact, prison rates in the US are higher than anywhere else in the world, with nearly one percent of the population in prison! It is all too easy for innocent people or low-level criminals to spend decades in prison, while being treated with contempt by cruel prison staff. Those who avoid long prison sentences often don’t fare much better. Once someone winds up “in the system”, even for a relatively minor crime, he can quickly find himself destitute, alone, and unable to ever get back on his feet.
At the same time, it is a common refrain in the United States that ignorance of the law is no excuse for breaking it, even though it is impossible for anyone to keep up with all the laws that can trip them up at any time. In other words, in the most free country on earth, one can have his life completely destroyed at any time for a violation of some arcane law that he had no reason to know ever existed, if the authorities decided to go after him. Tough luck.
In a Halachic state, this would never happen. The Torah sets up a system that seeks to avoid harshly punishing all but the most degenerate violators of Jewish law. Instead, the system aims to educate people. Only in rare cases are people incarcerated, which throughout the world does little to rehabilitate lawbreakers, and only destroys their lives and their families. Corporal punishment is necessary in some cases simply to preserve justice and deter wanton criminal behavior, but the Torah’s system is in fact the most merciful and enlightened system ever devised.
3) In all human legal systems, the law is selectively enforced. This naturally comes to the detriment of those most vulnerable: the poor, the stranger, those without connections to the ruling class.
In a Halachic state, those most likely to receive corporal punishment are Torah scholars – the very royalty of the Halachic state! As noted above, a Torah scholar is presumed to know the law, and therefore he does not require a warning from witnesses to receive lashes. Rather than indicating a witch-hunt for secular Jews to beat up, a Halachic state gives them every opportunity to avoid punishment while Torah scholars must toe the line without the benefit of warnings.
Can you imagine a society where the ruling class is held to the highest standards, and is punished most stringently for breaking the law, while those who are less knowledgeable and privileged are protected? Wouldn’t you like to live in such a society?
4) Despite what they claim, justice systems typically have little regard for the welfare of the criminal. They might euphemistically refer to prisons as “correctional facilities” or “re-education camps”, but these places are often hell on earth. Once in the hands of the authorities, a prisoner can easily be stripped of all his rights, and only the strongest people can retain their dignity and sanity under such circumstances.
Most of the laws of corporal punishment can be found in Makkos and Sanhedrin. If you study these laws you will find that the Torah is vitally concerned with the dignity and rehabilitation of lawbreakers, more so than any human system. In a Halachic state, the dignity of the criminal is paramount.
Even one who receives lashes, in spite of everything, is absolved if he soils himself during the lashing. The Torah states that the purpose of the lashing is “to shame your brother before you”. One who soils himself in public has already been sufficiently shamed, and he must again be treated like your brother.
What justice system in the world views a criminal as truly your own brother, and demands that those administering punishment view him as their brother, whose dignity must be preserved? Only a Halachic state.
5) Even in Israel, which never ceases to declare itself “the only democracy in the Middle East”, any citizen can have the Shin Bet burst through his door in the middle of the night and take him away – without being charged with a crime or given access to legal counsel. This “administrative detention” is another gift from the British occupation that the Israeli system has retained because it is far too useful for those in power to abolish. A citizen that is deemed a threat to national security can easily be imprisoned indefinitely with no legal recourse.
In principle, this is supposed to enable authorities to prevent a “ticking time bomb” from committing a terrorist act without being constrained by time-consuming legal formalities. In practice, it is inevitable that any human government given such broad power will at some point abuse it. Who gets to define what exactly is a “threat to national security”? Not you, that’s for sure. Vague terms like this and “incitement” exist specifically for the ruling class to interpret to their convenience and apply selectively whenever it suits them. It simply begs to be abused.
No such thing exists in a Halachic state. Halacha by definition is meant to be clearly explained and understood. Nothing is left to the whims of a ruling class to interpret and apply however they desire. Halacha exists to guide the people and restrain authority figures from abusing their power. Those who wish to abuse the system can still find a way, but a Halachic state seeks to prevent the abuses, while human systems create them.
6) In recent times administrative detention has become a political weapon against right-wing activists who are nuisances to the ruling class. Innocent people and even minors are routinely rounded up and find themselves in dungeons, undergoing “enhanced interrogations” (a sanitized term for torture) to break them and induce confessions to unsolved crimes, or to otherwise intimidate them. Even when administrative detention is used against those preparing to commit violent crimes, Arab and Jew alike, it is hard to justify torture of any kind in a society that considers itself civilized and enlightened.
Indeed, a Halachic state would have no such thing. While Israel’s enemies would be ruthlessly fought and truly defeated, without fear of “world opinion”, we would retain our morality and humanity like no others on earth. One cannot torture another human being without descending into sadism and losing his soul. No rationalization can justify it. Because a Halachic state is predicated on God’s direction, we trust that whatever information or other benefits we seek to attain through torture will not be lost to us if we follow His will.
As noted earlier, one who receives lashes is prescribed a specific number according to his ability to bear them. If the one administering the lashes strikes the criminal even one additional time, he himself is liable for lashes for violating the Torah’s commandment not to strike a fellow Jew. Whatever punishment the sinner is to receive must be carefully observed; to go even slightly overboard is entirely prohibited and met with the full consequences of Halacha. Punishments are exact and fit the crime; they are not arbitrary and subject to the whims of people in charge. Authority figures exist to serve society and rehabilitate criminals, not to dominate anyone.
Where else in the world will you find such concern for the dignity, protection, and benefit of all citizens, even the lowest criminals? Where else will you find the ruling class given broad powers, yet at the same time constrained by the highest expectations of Godliness, love for all people, and true morality?
Not in any human system, from the most free to the most authoritarian, from the most liberal to the most conservative, from the most religious to the most secular.
Only in a Halachic state.
I urge all of Israeli society – religious and secular alike – to leave aside the rhetoric, politics, and baseless hatred, and explore what a Halachic state would really mean. I believe if such an honest discussion could be had, many of those who oppose the idea on libertarian and even anti-religious grounds would be forced to admit that all of man’s attempts to create something better have failed miserably.
A Halachic state should not be imposed upon us, but eagerly embraced. I believe if we understood what it really means, those who value freedom, goodness, and Godliness would do just that.
Israel continues to mature as a country and a Jewish state. It’s time we have this discussion.