Crime and Punishment and Punishment and Punishment

Literary critic Adam Kirsch is reading a page of Talmud a day, along with Jews around the world.

In writing about my Daf Yomi reading, I have often referred to the Talmud in shorthand as a law code. But the truth is that the Talmud is very different from most codes of law—whether it’s the one Hammurabi used to govern Babylon or the one Moses laid down for the Israelites in Deuteronomy. This is especially clear when it comes to the Talmudic understanding of why we should follow the laws in the first place. For most legal systems, the incentive to follow the law is simple and straightforward: If you don’t, you will be punished. This is obviously true in the Torah, where Moses lays down specific punishments for a wide variety of crimes—financial penalties for crimes against property, all the way up to stoning for moral and sexual infractions. The same is true for modern American law, with its stringent sentencing guidelines ordering a certain term of imprisonment for any given crime.

But in the Talmud, punishment is an elusive subject. Most of the time, the rabbis redefine the death penalty in terms of karet, the “cutting off” of the sinner from the world to come, thus turning a this-worldly punishment into a supernatural one. Often, when the Bible specifies a punishment that the rabbis seem to regard as excessive or barbarous, they will find a way to interpret the law so that it cannot be carried out. (One famous example concerns the biblical prescription for stoning a rebellious son.) We do hear about courts imposing fines and monetary settlements in civil cases. But in general, the question of punishment simply fails to arise in the Talmud: The same rabbis who spent many pages figuring out exactly what a law means have no interest in figuring out what to do with Jews who defy it.

The same rabbis who spent many pages figuring out exactly what a law means have no interest in figuring out what to do with Jews who defy it.

I’ve often wondered about this aspect of the Talmud, and this week’s Daf Yomi reading, which covered the end of chapter 1 of Tractate Kiddushin, helped to clarify the subject for me. The issue, I think, is that the laws of halakhah are not simply laws, in the way we usually use that word. They are not rules for the ordering of society, drawn up by a king or government with the power to enforce them. Rather, Jewish laws are mitzvot, a word whose meaning hovers somewhere between “commandments” and “praiseworthy actions.” They are rules commanded by God, not by human beings, and so following them is not just a matter of avoiding punishment, but of gaining spiritual merit and reward. To a faithful Jew, the mitzvot are their own justification. You don’t need to threaten to kill a pious person if they perform labor on Shabbat, since such a person already knows how important Shabbat is. What they want to know is how to follow God’s commandment, not why to follow it.

This theocratic model of law leaves reward and punishment up to God; it is up to God to inflict karet or grant eternal life. But this means that Jewish law depends on faith that God really will deal justly with individuals. And notoriously, this justice is not always evident on earth. That is the subject of Psalm 73:

For I was envious at the foolish, when I saw the prosperity of the wicked.
For there are no bands in their death: but their strength is firm.
They are not in trouble as other men; neither are they plagued like other men.
Therefore pride compasseth them about as a chain; violence covereth them as a garment.
Their eyes stand out with fatness: They have more than heart could wish.
They are corrupt and speak wickedly concerning oppression: They speak loftily.
They set their mouth against the heavens, and their tongue walketh through the earth.
Therefore his people return hither, and waters of a full cup are wrung out to them.
And they say, How doth God know? and is there knowledge in the most High?

Such questions of theodicy—Why does God allow evil to exist? Why do the righteous suffer and the wicked prosper?—were directly confronted in this week’s Daf Yomi reading. The mishna in Kiddushin 39b insists on God’s justice: “Anyone who performs one mitzvah has goodness bestowed upon him, his life is lengthened, and he inherits the land. And anyone who does not perform one mitzvah does not have goodness bestowed upon him, his life is not lengthened, and he does not inherit the land.” If this were true, it would resolve the problem of motivation nicely. The reason to follow the law is that if you do you will live long and happily, while if you don’t you will suffer and die.

The problem, as the Gemara immediately points out, is that this is not true. The rabbis tell the story of a boy whose father ordered him to climb to the roof of a building to fetch chicks. When he got there, the boy made sure to send away the mother bird from the nest, thus fulfilling a biblical commandment. And of course by doing his father’s bidding he was performing a second mitzvah, that of honoring his father. Yet despite these two mitzvot, “on his return he fell and died. Where is the goodness of the days of this one, and where is the length of days of this one?” the Gemara demands. Isn’t life full of examples of good people who suffer and die young? How can the mishna complacently insist otherwise?

The only way around this dilemma is the traditional religious one: postponing reward and punishment from this world to the next. Despite what might sound like the mishna’s plain sense, Rabbi Ya’akov says, “there is no reward for a mitzvah in this world”; rather, such rewards “are dependent on the resurrection of the dead.” It is only after death that God judges us and gives us either suffering or happiness. Conveniently, this is a process that no living being can ever observe, and so it is impossible to refute.

Still, the rabbis are not satisfied. One principle that the Talmud has mentioned many times is that God protects anyone who is in the process of performing a mitzvah. That is why scholars liked to study Torah as they journeyed, so that no harm would befall them on the road. Yet didn’t the boy on the roof die in the performance of two mitzvot? The rabbis struggle to find a way out of this contradiction. First, they simply deny that the story is true: “Perhaps this never occurred.” But Rabbi Ya’akov insists that he saw it happen. Then the rabbis suggest that perhaps the boy deserved to die for some evil thought that wasn’t apparent on the surface. But this would violate the principle that “the Holy One does not link a bad thought to an action”: that is, Jews are only punished for what they do, not what they think. This marks a central difference between Rabbinic Judaism and Christianity; for Jesus made the definition of sin internal, saying that adultery in the heart was as bad as adultery in the flesh.

The only explanation for the death of the climbing boy that satisfies the rabbis has to do with yet another principle—the one that states that “one may not rely on a miracle.” One might think that God is capable of anything, but the rabbis recognized that He does not change the world for our benefit. Providence has to work with real-world conditions, and if these are dangerous, it’s foolish to expect God to overcome them. In this case, the rabbis suggest, the boy used a rickety ladder to climb down from the roof, thus exposing himself to danger; this makes his death his own fault, not God’s. By the same token, there is no guarantee that a good person will not be killed in a battle or will survive a fire or shipwreck. This is the rabbis’ concession to the reality that God’s power often seems to be missing in our lives. Jewish life, like Jewish law, requires faith in the invisible to balance out injustice, which remains all too easy to see.

***

To read Tablet’s complete archive of Daf Yomi Talmud study, click here.