Consider this scenario: Shimon’s ox gets loose, runs into Reuben’s fields, and destroys his crop. Or this: Shimon and Reuben accuse Levi of theft, but it becomes clear they have colluded in their testimony and conspired to have Levi found guilty. What happens next?
Many will recognize the protagonists of these stories as the stand-in figures used in some rabbinic writing to discuss issues that, in the United States, would fall under the purview of criminal law. In America, the next step might be to call the police. But what does Jewish tradition have to say? Should the police be called in the cases of Shimon, Reuben, and Levy?
Upon first examination, it would seem so. In Deuteronomy 16:18, the Torah calls for the appointment of judges (shoftim) and officers (shotrim). The major Jewish authorities of medieval times — including Rashi, Maimonides and Joseph Karo — understood shotrim to refer to law enforcement. According to these sources, the role of shotrim (also the modern Hebrew word for police officers) was to enforce proper weights and measures, ensure fair pricing, and punish lewd behavior. “Whenever they see a transgression, they bring that person to the court where he can be judged according to his deed,” Maimonides writes in the Mishneh Torah.
On the other hand, the tradition doesn’t speak of “crime,” and the idea of crime per se is not found in the Bible. As for police, policing is nowhere mentioned in Menachem Elon’s magisterial four-volume study of Jewish law. This suggests that Judaism has a different perspective with respect to how laws are enforced.
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The position of the late Sephardic rabbi of Tel Aviv, Rabbi Hayim David HaLevi, may help elucidate that perspective. Like the medieval commentators, HaLevi understood modern police to be equivalent to the biblical shotrim. But in his reading of Deuteronomy, the shoftim and shotrim must be one and the same because of the potential conflict between law enforcement and individual liberty. “One who makes an arrest is dealing with a person who, according to the law, is still innocent — this is before the person has stood in judgements and before his guilt has been proven,” HaLevi wrote. “For this reason, the arrest is a violation of the freedom of a person, who is presumed innocent. But in order to allow for the interrogation of the suspect, and for bringing him to court, we have to permit his arrest.”
While recognizing the need for a judicial process, HaLevi was concerned with the lasting consequences of arrest, both materially and psychologically, particularly if the detained person is later found to have done no wrong. He writes, “For this reason, halakha [Jewish law] assures us that no person will be arrested without cause, whether for a serious crime or a minor one such as those related to prices and measures and such things, and those who are charged with making arrests are in the realm of judges.”
HaLevi’s particular concern for the potentially adverse effects of wrongful arrests is reflected in the broader Jewish concern for the health of the community in matters of criminal justice. The objective of the judicial process is restoration of financial loss plus recompense if physical, psychological or financial harm has been caused. The focus is always on what the person who inflicts the damage owes to their victim — not on their character.
This orientation can be seen in the very name of the order of the Mishnah concerned with crime: Nezikin (Damages). As the name suggests, the emphasis here is on civil law and compensation, not criminalization. The first mishnah in Nezikin describes four categories of damages and the ways in which compensation for them should be calculated, depending on the nature and severity of the damage. When the appropriate compensation is paid, the matter is resolved.
This orientation toward restitution rather than punishment also leads Jewish tradition to emphasize that the kinship of the parties to a suit remains paramount. Rabbi Chanina ben Gamla’s explanation of a law related in Deuteronomy illustrates this emphasis. The passage concerns the practice of flogging:
When there is a dispute between men and they go to law, and a decision is rendered declaring the one in the right and the other in the wrong (rashah: literally ”wicked one”) — if the guilty [wicked] one is to be flogged, the magistrate shall have him lie down and be given lashes in his presence, by count, as his guilt warrants. He may be given up to forty lashes, but not more, lest being flogged further, to excess, your brother be degraded before your eyes.
In the Midrash, Rabbi Chanina notes the two different ways the person undergoing punishment is identified. Prior to the punishment, the verse calls him “wicked.” Afterwards, he is called “your brother.” Once someone has paid for their crime, their humanity is restored — they are once again “your brother.”
Other sources in Jewish tradition further support this emphasis on the community’s well-being. Repeatedly Leviticus and Deuteronomy explain that the purpose of punishment is to “remove guilt” or “sweep away evil from your midst.” The wellness — the wholeness — of the community is the overriding concern.
It is perhaps for this reason that Hillel, in Pirkei Avot, names Aaron as the exemplary guardian of the community. In the Bible, it is Pinchas, Aaron’s grandson, who is granted God’s “covenant of peace.” (Numbers 25:10-12) Pinchas is best-known for his zealous defense of Israelite purity, driving a spear through the belly of an Israelite who had cohabited with a Midianite woman. But Hillel holds up Aaron as the figure worthy of emulation: “Be a disciple of Aaron, loving peace, pursuing peace, loving mankind and drawing them closer to Torah” (Avot, 1:12). It is not the ardent enforcer of punishment, but the loving upholder of peace, that Hillel urges us to follow.
A rethinking of policing in Jewish terms might suggest a greater interest in communal well-being than in punishment, a greater emphasis on restoration than on arrest and confinement. A Jewish perspective on law enforcement invites us to think in terms of healing and wholeness in place of confrontation.
