[Avodah] Incarceration in Mesorah

Micha Berger micha at aishdas.org
Mon Aug 19 08:35:41 PDT 2019

Much has been made of the fact that halakhah doesn't mandate incarceration
as a punishment. R' Avi Shafran did just a couple of days ago, so I was
finally motivated to pull out sources.

Honestly, though, to me it just seemed obvious. We know they had kippot,
that these are used as jails for holding people before trial, and as a
means of back-handed execution of murders and a subset of repeat offenders
where halakhah had no solution in terms of mandatory oneshim. So how
likely was it that they just released the criminal in the majority of
cases involving someone you can't let lose in society but had no onesh
-- or a ganef with a long record who didn't have to sell themveles
into avdus?

We have little question that halakhah neither requires of prohibits it.
So the question would be whether beis din did indeed commonly use prison
as punishment. Thus my "in mesorah" rather than "in halakhah" in the
subject line.

Yad, Hilkhos Rozeiach 2:5. The context is set up in halakhah 4, we're
talking about a murderer who wasn't subject to onesh, and whom the king
didn't punish, and at a time when BD didn't need to reinforce observance
in the general community. Halakhah 5 says they are to be lashed to near
death and then le'ASRAM BEMASOR UVMATZOQ SHANIM RABOS (emphasis mine,
of course).

Also, see Bamidbar 11:28 and Rashi's davar acheir ad loc. Eldad and
Meidad are speaking nevu'ah in the encampment, and Yehoshua says to
Moshe, "Kela'eim."

Rashi's first shitah is that the word is the same as "kileim" (without
the alef) -- "finish them!"
Davar acheir the shoresh is kela (kaf-lamed-alef) -- "imprison them!"

The Bartenura ad loc favors the latter peshat, and says the superfluous
alef was why Rashi was looking for something better.

The davar acheir implies that they had a prison (or at least a jail)
in the midbar.

And the very existence of the possibility implies that Rashi was
comfortable with the idea of imprisonment as a punishment. It wasn't
some newfangled idea that the Torah has an ideological or tactical
problem with.

The Ramban ad loc also talks about a beis hakela, like one would lock
up a crazy person. Exactly what I took for granted -- prison as a means
of protecting potential victims.

(Especially given the Rambam.)

Tir'u baTov!

Micha Berger                 With the "Echad" of the Shema, the Jew crowns
http://www.aishdas.org/asp   G-d as King of the entire cosmos and all four
Author: Widen Your Tent      corners of the world, but sometimes he forgets
- https://amzn.to/2JRxnDF    to include himself.     - Rav Yisrael Salanter

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