Stealing, Punishment and the Jewish Way
By Avi Lazerson
It is interesting to compare the Jewish method of dealing with thieves to the non-Jewish method. It is interesting because it sheds light not only on the differences between the two systems of law and order, but also on the understanding of what is a Jew.
Let us give an example: If a thief were to steal a man's money, say five thousand dollars and then spend it before he was caught, what would be the outcome? Well, we could reasonably assume that in today's criminal court system, the man would be sent to prison for a few years.
But the Jewish view, based on the teachings of the Torah, is very different. Besides the fact that the Torah ignores the concept of a prison system for "criminals", the Torah has in its place a system of bonded service. If you have read the Torah, you may be familiar with the concept of a Hebrew bonded servant. The Torah stipulates that the Jewish thief must repay the money or object that he stole. If he has money or properties, then the money or properties are used for restitution to pay back the amount that was stolen. This restitution would thereby end the court's dealing with the thief.
If the thief does not have any money, as in our case, he spent the money and he has no property of his own to make restitution. He is still obligated to pay back the victim his loss. He will be sold into "slavery", meaning that he must work until he earns enough money to make proper restitution. His master is not his master forever, but only until he earns the money to pay his debt, then he goes free, unless, of course the sabbatical year comes first, in which case his debt is cancelled and he goes free.
Now as we examine the concept in the secular court system, we see a striking contradiction. In the secular system of justice, the man committed a "crime" and therefore he must be punished. If he still has the victim's money or property, then it is returned. But this is still a side point. Secular justice is concerned for the welfare of society and therefore, the perpetrator of a crime must be punished for two reasons: One reason is to teach him a lesson, that stealing, etc, is a crime and that he will learn the hard way not to repeat his folly. The second reason is to teach others that if they think about stealing, they should be aware that the punishment if and when they are caught would far out weight the benefit that they may derive from illegal actions.
Yet if, as in our case, the money is gone, then the victim must suffer the loss. The prison sentence is not related to restitution of the stolen property or money. Prison is to punish to protect society and teach other would-be criminals that "crime does not pay."
If we were to further elaborate on this, we might well ask, well, is not the Torah concerned with the society's welfare? What is there to prevent a thief who is caught (and either pays back his debt with his own funds or works in a forced work environment until he pays it back) that will convince him not to steal again?
Perhaps we must look a bit deeper at the Torah's understanding. Perhaps the most important difference in the Torah law itself is a shocking difference. According to the Torah a Jew who steals must pay it back, as we described above. However, what we did not mention, is that a gentile who steals (whether from a gentile or a Jew) is judged by the death penalty. Now that is pretty heavy!
Perhaps in understanding this apparent inequality in the Torah's viewpoint, will explain something even deeper in our present understanding of the human being.
Number one, the Jew who steals, not only is under an obligation to provide restitution, but he has committed a sin! Granted, a gentile, who steals also commits a sin, so why is the punishment different?
To answer this we must revert to the mystical teachings of the cabalists and Chassidic masters. They teach us that there is a fundamental difference in the soul of a Jew as compared to the soul of a gentile just as there is a fundamental difference in the purpose of a Jew in this world compared to the purpose of a gentile.
The essential purpose of a Jew is to bring the revelation of G-dliness into the world through his performance of the holy mitzvot. What separates the Jew from the gentile is the quality of his soul in terms of being a source of G-dly radiation. According to our mystical masters, the soul which each person possesses has a screen surrounding it to prevent the inherent G-dliness from being revealed which would cause the person to no longer have free choice. As long as the soul's G-dly radiance is reduced by a covering, then the person can choose between good and evil.
The Jew, being the chosen people of G-d, the people selected for analyzing and understanding the intricate laws of the Torah were given this special soul which allows him to understand much deeper the laws of the Torah. A gentile whose task in this world is to work and develop the lands was not given such a sensitive soul.
When a Jew sins, his soul which longs only for G-d and his mitzvot, gives the man great pain. This is a punishment for his sin, (in addition to the above mentioned restitution). When a gentile sins, he has voided his purpose in being and therefore liable to the death penalty.
But perhaps this was true when we Jews lived in our land and merited to having the Holy Temple. Perhaps in those times our souls were purer. Unfortunately, we find thievery amongst all types of Jews, and little remorse, but rather justification.
May we merit the rebuilding of the Holy Temple and the purification of our Holy Souls so that we may once again serve G-d with the holiness that we were intended to.
from the September 2003 Edition of the Jewish Magazine