The Penology of the Talmud

Abstract

Penology, or the science of punishment, has three different aspects: the technique of punishment, or the character of the various punitive measures and the means by which they are enforced and implemented; the psychology of punishment, probing into the function of punitive action, both in so far as the victim, that is the person punished, is affected, and in so far as such action is calculated to satisfy the needs or purposes of the punishing authority; and the sociology of punishment allocating to penal activity its place (as part of the legal institutional framework) in the social, economic and political life of the community. All these aspects are interconnected, and the view generally advocated (though hardly proven as yet) is that they are also interdependent: the psychological effect as well as the sociological impact of any given penalty depends, it is held, on the nature of the penalty concerned and the manner in which it is implemented. The fact cannot, however, sufficiently be stressed that any such interdependence is not, as a rule, preconceived or planned in advance. It is for the historian of penal law or penology to establish on the statistical or other data what has, in fact, been the effect or the impact of any particular punishment in any given period or community. But the penologist is not necessarily either historian or statistician. While, like the lawyer, he builds on institutions which have come down from the past, neither his theorization nor his planning is bound by precedent or past experience, and he may well dismiss the past as one great error which exists only to be rectified or eliminated. This being so, for a penology to develop it is not necessary that there should be any practical experience with the effect and impact of punishments actually imposed. It is true that in the absence of such practical experience, penology will remain an exercise in theorization and planning, not unlike the exercises in “utopian” and idealistic legislation which have occupied so many geniuses in the past; but that does not derogate from the validity of, and the scientific attention due to, the reasons and considerations underlying the theories propounded.