Hasson & Tennenbaum on Punishment in Jewish Criminal Law

Jonathan Hasson and Abraham Tennenbaum (University of Oxford - Faculty of Law, Centre for Criminology and affiliation not provided to SSRN) have posted Punishment in Jewish Criminal Law: Its Conflicting Objectives and (in) Consistencies on SSRN. Here is the abstract:

 

The inability of Jewish Law to deal effectively with criminality has been widely debated. Its stringent evidentiary and procedural restrictions prevented it from convicting the guilty, which led scholars to conclude that Jewish Penal Law was different from modern systems. While modern criminal codes, scholars argue, focus on crimes against persons, classical Jewish Law concentrates on crimes against God. To maintain social order, Jewish Law established two flexible and pragmatic complementary legal systems — the “King’s Court” and “Courts that punish and beat without regard to the Torah.” This reliance on a complementary system resulted in scholars concluding that Jewish Law has no bearing on contemporary punishment debates. By contrast, we argue that Jewish Criminal Law was a practical system of enforcement characterized by the same objectives as modern law. Utilizing a historical analytical lens, we show that the historical record does not support complementary systems theory. The provisions of Jewish Law that reduced its efficacy were not inherent to the system, but modifications introduced in response to changing historical circumstances and societal needs. Jewish Law’s uniqueness was only that it operated for millennia in many nations and within the constraints of other governing systems. Thus, to relegate this ancient system of law to the margins, rather than use it to develop laws in today's legal systems, is a waste of a valuable resource.