[Avodah] halachic attitude to the convicted

[Zev Sero]

Daniel Eidensohn wrote:
> Zev Sero wrote:
>> Pesachim (91a): [...] if he is incarcerated in an Israelite prison,
>>
>> See Rashi, who clearly rejects the idea that this refers to imprisonment
>> as a punishment.   Does any rishon disagree with Rashi?

> Rashi does not necessarily reject the idea - he does give examples of 
> the use of imprisonment but does not say that these are the only uses.

I disagree.  If imprisonment were a legitimate punishment, then Rashi
wouldn't need to comment on this; there would be no question for him
to answer.  The reason he comments and gives these examples is precisely
because the talmid knows that there is *no* such penalty as imprisonment,
so he naturally wonders what someone would be doing in a Jewish prison.
So Rashi answers that he is not there to be punished, but for some other
purpose.  If Rashi thought the talmid might have a question but would be
mistaken, then he would comment as you have done, that a beis din can
punish someone with imprisonment.

 
> Look at Rambam(Hilchos Sanhedrin 24:9) where he simply says that 
> imprisonment is a legitimate tool of the courts. 

But Rashi disagrees with that Rambam, which is merely quoting the gemara
in Moed Katan that you brought in your previous post.  Now I know where
you got the translation you gave; from the Rambam.  But Rashi explicitly
translates it otherwise.


>>> Rambam (Hilchos Chovel u’Mazik 8:11): Similarly all those who 
>>> distress the community and harm it -- it is permitted to hand them 
>>> over to the non-Jewish government to be beaten, imprisoned and punished.

>> How does this support your claim that imprisonment is a legitimate
>> punishment?  Who says the the government has the right to act as it does?

> See Minchas Yitzchok (8:148) and Rav Wosner (2:58) - any society has a 
> right to protect itself - including the right to imprison and execute.

They are not the Rambam.  I'm not asking about modern rabbonim, I'm
asking how this Rambam supports your claim.


> Why would the Rambam say that you can turn a person over to the secular 
> authorities to punish a Jew if those authorities are not allowed to 
> punish in the ways that the Rambam specifies?

Because the person is a threat to everyone's safety.  We can masser on
him for the same reason that we can push him down a pit, or at least
not rescue him when he has fallen himself.  It makes no difference
whether the government will treat him justly or unjustly; all we care
about is that he is no longer roaming the streets endangering people.
Therefore this can't be used as a proof that the government has the
right to imprison people.

-- 
Zev Sero                      The trouble with socialism is that you
zev at sero.name                 eventually run out of other people’s money
                                                     - Margaret Thatcher