Jewish American Heritage Month

Posted By admin on January 30, 2022

In classical Western systems of criminal justice and crime control, under what is termed the retributive justice model, property theft is essentially defined as a crime against the state. (The victim and community at large are represented abstractly by the state). The criminal justice system focuses on establishing blame or guilt often through highly adversarial court proceedings described by some as tantamount to a ceremony involving the public social degradation of the criminal offender. Further, the victim is typically incidental to the proceedings.

The offender is usually seen as suffering from personal deficits (and is bad or disturbed) and accountability is defined in terms of the offender receiving punishment commensurate with the seriousness of the offence that has been committed.

Crime is seen as an individual act for which the offender is responsible. Because punishment (including incarceration) is assumed to be a deterrent and to offer some prospect of rehabilitation, it is believed by many to be an effective means of crime control.

This model of criminal justice stands in marked contrast to important elements of the justice system delineated in parashat Mishpatim, at least as far as the response to theft is concerned. And some of the elements of the justice system described in this weeks parashah anticipated by thousands of years something called restorative justice. Restorative justice is a set of principles that are currently driving important changes in criminal justice systems in many countries around the world. Examples of restorative justice approaches include victim-offender reconciliation programs and community accountability/family group conferencing in the juvenile justice system (and in some schools too).

The anticipation of modernity by thousands of years in the criminal justice realm is the central thrust of my comments on parashat Mishpatim. In particular, in this parasha the Torah anticipated the contemporary focus on: (1) the victim in criminal proceedings; (2) the requirement of the restorative justice approach to maintain the dignity (not degrade) the criminal; (3) the notion that crime control lies primarily in the community rather than through incapacitation, deterrence or behavioural change flowing from a period of incarceration.

Parashat Mishpatim spells out laws designed to govern the relationships bein adam lchavero between man and man. The first group of verses (verses 2-11) focus upon the Hebrew servant/slave/bondsman. Thus, the parashah begins with the words If you buy a Hebrew servant [from the court of law]. That is, the very first civil ordinance deals with the laws of servitude. Its focus is on securing the personal rights (release after a maximum of six years of service) of the lowliest on the social scale, the bondservant people who find themselves in circumstances in which their right to personal freedom is denied or limited.

There are two ways in which a Jew can become a bondsman: He can sell himself as a means of escaping from extreme poverty (as discussed in parashat Behar) or he may be a thief who is sold by the court to raise funds to repay his victims. The beginning of our parashah deals only with the latter case.

A male (only) thief who lacks the means to make restitution to the value of the items actually stolen (and not for any additional fine as specified later in the parashah) must be sold by the court in order to indemnify his victim. But this can only be done where the value of the stolen property is equal to or greater than the value of the thiefs working capacity. This is the only circumstance in which the Torah sanctions a loss of freedom.

Rabbi Samson Raphael Hirsch (who lived in Germany in the 19th century) observed that this loss of freedom should not be construed as a punishment because the sole purpose of the period of servitude is to make restitution to the victim to the value of the theft. This is the means of cancelling the effects of the crime or, in contemporary parlance, of repairing the harm to the victim that was caused by the offender. And victim restitution is an increasingly important aspect of contemporary criminal justice proceedings.

The Torah also underscores the importance of not degrading the criminal of not undermining his self-respect. Indeed, restorative justice processes seek to avoid the degradation of the criminal. They certainly seek to condemn the offenders behaviour, but not the offender himself.

And finally, as Hirsch points out, Jewish law requires that the offender be placed with a family in contrast to the traditional Western practice of socially excluding criminals through incarceration. Thus, here we see another anticipated element of restorative justice, namely, that crime control lies primarily in the community rather than with the criminal justice system.

In sum, then, and as Rabbi Lord Jonathan Sacks ztl noted in The Power of Ideas a book of his BBC Radio Thought For The Day broadcasts published last year restorative justice, although touted as a modern approach to crime and punishment, has very significant premodern roots.

Jerusalem-based Allan Borowski is Emeritus Professor of Social Work and Social Policy, La Trobe University, and adjunct professor, The Chinese University of Hong Kong and Ariel University, Israel.

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Criminal justice in Torah and western society - Australian Jewish News

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