Deterrence, Economic Theory, and Freedom Bava Metzia 72-74

72

Deterrence Theory

Our Gemara on Amud Aleph discusses what penalties are incurred should someone flout the prohibition of usury, and draw up a contract, and actually lent the money:

תָּנוּ רַבָּנַן: שְׁטָר שֶׁכָּתוּב בּוֹ רִבִּית – קוֹנְסִין אוֹתוֹ, וְאֵינוֹ גּוֹבֶה לֹא אֶת הַקֶּרֶן וְלֹא אֶת הָרִבִּית, דִּבְרֵי רַבִּי מֵאִיר. וַחֲכָמִים אוֹמְרִים: גּוֹבֶה אֶת הַקֶּרֶן וְאֵינוֹ גּוֹבֶה אֶת הָרִבִּית. בְּמַאי קָמִיפַּלְגִי? רַבִּי מֵאִיר סָבַר: קָנְסִינַן הֶתֵּירָא מִשּׁוּם אִיסּוּרָא, וְרַבָּנַן סָבְרִי: לָא קָנְסִינַן הֶתֵּירָא מִשּׁוּם אִיסּוּרָא.

The Sages taught: In the case of a promissory note in which the details of a loan with interest were written, we penalize the lender, and therefore he may not collect the principal and may not collect the interest; this is the statement of Rabbi Meir. And the Rabbis say: He may collect the principal but he may not collect the interest. The Gemara asks: With regard to what principle do they disagree? The Gemara explains: Rabbi Meir holds: We penalize him with regard to that which is permitted due to that which is prohibited, and the Rabbis hold: We do not penalize him with regard to that which is permitted due to that which is prohibited.

This is an interesting psychological and moral idea about punishment and deterrence.  This is unlike other Talmudic discussions, such as whether we penalize an unwitting offender due to an intentional offender (Eiruvin 100a).  In that case, the issue is a concern that people might be lax or try to claim that their offenses were unintentional. Here, this has nothing to do with intention per se, but to what degree there is a need to deter.  Must we simply subvert the profit motive, or must we also add a penalty effect.  

In secular law and social psychology there are also various theories regarding the degree of pain required to successfully deter would-be wrong-doers.  We will discuss some key elements and thinking in this regard, because it is both relevant as institutional leaders or parents, and can help shed light on possible elements of Chazal’s thinking in this regard.

According to researchers Polinsky & Shavell (Mitchell Polinsky & Steven Shavell, Punitive Damages: An Economic Analysis, 111 HARv. L. REV. 869 (1998).There is a question about what form punishment should take as an effective deterrent. Should punitive damages aim to deter up to the appropriate level by internalizing costs, that is making the person pay for all the damage he caused, or should they aim to eliminate the offender’s expectation of gain?

Sometimes the profit is far in excess to the loss, and other times the loss is far more than the profit. For example, if a thief fences a gold heirloom and pawns it at 20% of the value, he makes a quick $2,000 to buy his next hit, but the victim loses $10,000.  On the other hand, taking interest might offer more gain to the lender than loss to the borrower. After all, the borrower needs the money, and in some way, may not mind paying a little interest for it.  This may help explain why the question comes up here in our Gemara, as the deterrence cannot merely focus on repaying the loss to the borrower or even society, and the ill-gotten profit is mostly separate and much less than the damages. This might be compared to the crime of insider trading. While society does suffer from market instability and trader’s lack of confidence, the bigger issue is the insane amount of profit. Thus, a deterrence must focus on the expectation of gain. 

OK then, what is the rationale for the other side. Why shouldn’t Chazal go for the maximum pain and deterrence and cancel the loan completely, and not just the interest?  For this we need to turn to the 1764 work of Cesare Beccaria’s, “On Crimes and Punishments”. Beccaria held that penalties should eliminate the gain to the offender, but not much more, because harsh penalties tend to encourage retaliation and cruel behavior in the long run. He wrote:

In proportion as torments become more cruel, the spirits of men, which are like fluids that always rise to the level of surrounding objects, become callous, and the ever lively force of the passions brings it to pass that after a hundred years of cruel torments the wheel inspires no greater fear than imprisonment once did. The severity of punishment itself emboldens men to commit the very wrongs it is supposed to prevent; they are driven to commit additional crimes to avoid the punishment for a single one.

Whether Beccaria is right is a matter of opinion, but it is important to appreciate the nuance and thought that social systems involve, of which Chazal were cognizant.

73

Work for Your Freedom

Our Gemara on Amud Beis discusses an interesting, ethical law, that is not utilized in modern times:

The Gemara relates: Rav Se’oram, the brother of Rava, would forcefully seize people who were not acting properly and have them carry Rava’s palanquin. Rava said to him: You acted correctly, as we learn: If you see a Jew who does not behave properly, from where is it derived that you are permitted to have him work as a slave? The verse states: “Of them you may take your slaves forever; and over your brothers” (Leviticus 25:46). It is derived from the conjunctive “and” linking the two clauses of the verse that there are circumstances where it is permitted to treat a fellow Jew as if he were a slave. One might have thought that this is the halacha even if a Jew acts properly. To counter this, the verse states in the continuation: “And over your brothers the children of Israel you shall not rule, one over another, with rigor.”

Tzidkas Hatzaddik (237) explains the moral root of this.  Subsequent to Adam’s curse, one has to work for his food. The work is an opportunity to experience a cleansing that prepares for divine flow and sustenance.  The hard work gives perspective and appreciation that allows for humility to avoid sin, and ways to find God.  Man works six days a week and then can appreciate the fruits of these labors on the seventh day, shabbos. The Jewish slave must work for six years to free himself from the bondage of his lusts and poor character, in order to finally become free to serve God in this world or the next (Shemos 21:2).

Perhaps Freedom is a right that no one may take away from you, but if you abuse it, freedom must be earned.

74

The Seal of Disapproval 

Our Gemara on amud aleph describes a marketplace custom and procedure that confers enough intent so that acquisitions are binding, as if a kinyan or contract was made:

אָמַר רַב פַּפִּי מִשְּׁמֵיהּ דְּרָבָא: הַאי סִיטוּמְתָּא – קָנְיָא. לְמַאי הִלְכְתָא? רַב חֲבִיבָא אֲמַר: לְמִקְנֵיא מַמָּשׁ.

Rav Pappi said in the name of Rava: In this case of labeling an item with a marker [situmta], which was commonly used to indicate that specific merchandise had been sold, even though the buyer had not yet paid and the item was still located in the seller’s warehouse, the labeling effects acquisition of the merchandise for the buyer. The Gemara asks: With regard to what halakha was this said? What is the significance of this acquisition? Rav Ḥaviva said: It means to actually effect acquisition, in other words, that the merchandise belongs to the buyer for all intents and purposes

What does this word, “Situmta“ mean? Rashi tells us that it was a kind of seal that merchants would put on merchandise such as barrels of wine in order to identify the company, for shipping so to speak. This is why the placing of the Situmta on the barrel of wine indicates a finality of sale.

What is the etymology of this word? Menachem Ben Saruk in his Midrash Sechel Tov (Bereishis 74:21) relates it to the Hebrew word “satum”, which means closed or sealed. He also related it to the verb (Vayistom) that described Esav’s state of mind in regard to his brother Yaakov, who just recently stole his rights to the first born (Bereishis 27:41). Similarly, the brothers feared Yoseph’s reprisal after their father died, and they said ״lu yistemenu”, perhaps he will bear a grudge (ibid 50:15). The seal or “situm” means to guard and hold enmity sealed up inside the heart. We find in Hebrew synonyms for bearing a grudge that also involves keeping, or guarding something. Bearing a grudge is Netira in Hebrew, and in Aramaic it means to watch.

There is one other area in Rabbinic literature where we find the word Situmta. The Targum Yonasan (Bereishis 38:25) describes the signet ring that Yehuda gave as a security deposit to the person he believed was prostitute, as a Situmta. We are familiar with the story: Tamar, was yearning to be the matriarch of the tribe of Yehuda, via performing Yibum with Yehuda. But Yehuda was stalling and avoiding her. She therefore masqueraded as a prostitute, soliciting Yehuda after his wife died. 

When the clan discovers that Tamar was pregnant it was evidently considered an adulterous act.  Due to their interpretation of marriage bonds in their times, a woman awaiting consummation in a Levirate status, was still considered married. She was liable for the death penalty but refused to divulge Yehuda’s identity, which would’ve exonerated her because he was a legitimate relative to perform the levirate rite at that time. She gives Yehuda the option to confess by showing him the objects of Security that he gave her, including the ring, Situmta. Prior to this, Yehuda was unaware that the prostitute was none other than his daughter-in-law.

Yehuda was facing extreme embarrassment where he would have to publicly admit that he had some kind of sexual liaison outside of marriage in order to walk back these adulterous allegations against his daughter-in-law and mother of his future children. According to the Targum Yonason, Yehuda reasoned as follows: 

It is better for me to be ashamed in this world that passeth away, than be ashamed in the faces of my righteous fathers in the world to come. 

The odd part about this is, why is Yehuda preoccupied with fear of being ashamed of his father, grandfather, and great grandfather in the world to come? Should not Yehuda be ashamed of God himself right now? The Gemara (Bava Kama, 79b) tells us that the Gazlan thief is punished less severely than the cat burglar because it is especially disrespectful that the burglar attempted to hide his behavior from people, but was not shamed in front of God.

I believe the answer to this question is simple. Yehuda was not trying to hide from God, he knew that God was all knowing. On the other hand, his father, grandfather, and great grandfather were unaware of his trespasses and indiscretions. If he committed this cover-up at the expense of another person’s life, he would not be able to face his ancestors in the world to come. If you should ask, considering that his grandfather and great grandfather were in the world to come, wouldn’t they be aware and know about his sins right now? The answer is, no.  The Gemara Berachos (18b) discusses a number of incidents with various sagely and pious persons, the dead and the living.

In one case, a man receives messages from a deceased person regarding the future growing season. In another, the location of buried treasure is revealed. And in yet another scenario, the sons of the deceased Rabbi Chiyya wonder if he knows of their plight. For each scenario, a qualifying distinction is made. Tosafos Sotah (34b, “Avosay”) understands that the conclusion of the discussion in Gemara Berachos is that ordinarily the dead do not have knowledge of the goings on in this world.

This Targum Yonasan supports the conclusion of Tosafos, and therefore Abraham and Isaac would not be aware of Yehuda’s sinful coverup until he would come to the next world.