It has been shown in the articles Capital Punishment, Crime, Homicide, and Stripes that a court may inflict for the violation of one of the prohibitive laws a sentence of: (1) death in one of four different forms; (2) exile to one of the cities of refuge in the case of involuntary manslaughter; (3) stripes, not to exceed forty; in practise thirty-nine or less. In
A fine in the modern sense is unknown to Scripture, unless the guilt-offering discussed in Lev. v. can be considered in that light. The payment of one hundred shekels by a husband who has falsely accused his newly wedded wife, under the provision in Deuteronomy goes to the wife's father; the "bridal price" ("mohar") for seducing a virgin and the mulet of fifty shekels for ravishing one go to the girl's father.
So much for the repressive measures of the Mosaic law. But when the power to deal with crime in the regular way was slipping away from the Jewish courts, the sages contrived the lesser and the greater Excommunication, called by them "niddui" and "ḥerem," to maintain the control of the community over its backsliding or refractory members. They laid down also the dangerous doctrine that in an emergency steps may be taken to keep down excesses (, the German "Ausgelassenheit"), steps which are allowable only "for the hour" and can not be drawn into precedent. The doctrine was broached in a baraita by R. Eliezer ben Jacob (Sanh. 46a):Cases of Emergency.
"I have heard [i.e., I have the tradition from my teachers] that a court may whip or otherwise punish where this can not be done according to the Torah, not indeed to transgress the words of the Torah, but in order to make a fence around it. So it was done to one who at the time of the Greeks [i.e., during the war against Antiochus] was found riding on the Sabbath; they brought him before the court and [under its orders] stoned him to death—not because he was guilty of any capital offense, but because the hour made it necessary; and again there was a man who had cohabited with his wife under a fig-tree [i.e., in public and in open day] and was whipped [received forty stripes] for it."
It may be remarked that as early as the Mishnah (see Naz. iv. 3) a "beating for disobedience" ("mak kat mardut") was prescribed in a case in which no Biblical prohibition was actually violated, though there was an intent to commit such violation. The case is that of a woman who, not knowing that her husband has dissolved her Nazarite vow, but believing herself to be still bound by it, has drunk wine or touched the dead. The same phrase, "makkat mardut," is used in nearly the same sense and application in the Talmud (Ket. 45b et al.).
Reference is also made to the act of Simeon ben Sheṭaḥ, the head of the Pharisaic party, during the reign of Alexander Jannæus; he caused, by a sort of court martial, eighty women guilty of rioting at Ashkelon to be put to death in one day.
When the Jews came to live in exile, and, by the doctrine that only "ordained judges" can inflict Scriptural punishment, were prevented from enforcing, under regular legal forms, any discipline against lawbreakers even though the Gentile government might give them ample autonomy for the purpose, they had to resort to the principle that an emergency overrides and supplants the written law. This principle is expressed by Maimonides ("Yad," Sanhedrin, xxiv.), by Jacob ben Asher in his Arba' Ṭurim, and again in the Shulḥan 'Aruk, Ḥoshen Mishpaṭ, § 2, substantially in the words of the foregoing baraita; and the codifiers add the important clause that if the defendant be "defiant and powerful" ("allim") they may work out his punishment through the power of the Gentile authorities. This procedure is justified under the Mishnah (Giṭ. ix. 8); "A bill of divorcement, written under compulsion of Israel [a Jewish court], is valid; under compulsion of Gentiles, it is invalid; but if Gentiles use force, saying [to the husband), 'Do what the Israelites demand,' it is valid." The codifiers seek to mitigate these dangerous rules by declaring: "All these things must be for God's greater glory ["le-shem shamayim"], and must be directed by the foremost men of the age, or at least by the best men in the community." Maimonides, in his zeal to stem a flood of heresy and apostasy, goes further than Joseph Caro: he names among the measures of repression imprisonment in a very harsh form.Fines Instead of Stripes.
ReMA, in his gloss upon Ḥoshen Mishpaṭ, § 2, gives a practical hint: "It has become customary in many places that where a man has done a thing for which under the Mosaic law he ought to receive forty stripes, he is called upon to pay forty florins." Here is found at last a true fine and a penalty easy of enforcement. As there is no injured party to whom the forty florins ("zehubim") can be paid, they must needs go into the coffers of the community. See also Fines and Forfeiture.