Makkot 3:4

By :  Daniel Nevins 91快活林 Alum (Rabbinical School), Former Pearl Resnick Dean of The Rabbinical School and the Division of Religious Leadership, Adjunct Assistant Professor Posted On Jan 1, 2008 | Mishnat Hashavua

Should a person be allowed to escape punishment by undoing his transgression?

讛谞讜讟诇 讗诐 注诇 讛讘谞讬诐, 专讘讬 讬讛讜讚讛 讗讜诪专: 诇讜拽讛 讜讗讬谞讜 诪砖诇讞. 讜讞讻诪讬诐 讗讜诪专讬诐: 诪砖诇讞 讜讗讬谞讜 诇讜拽讛. 讝讛 讛讻诇诇: 讻诇 诪爪讜转 诇讗 转注砖讛 砖讬砖 讘讛 拽讜诐 注砖讛 讗讬谉 讞讬讘讬谉 注诇讬讛.

If a person takes the mother [bird] together with the chicks [which is forbidden by the Torah]: Rabbi Yehudah says he shall be lashed [for violating a negative commandment] and need not set the mother bird free. But the Sages say that he should set [the mother bird] free and not be lashed. This is the general rule: Any negative commandment which may be undone, does not render a person liable [for lashes].

Comments

Deuteronomy 22:6-7 states that it is forbidden to take from a bird鈥檚 nest both the eggs (or chicks) and the mother bird. If, however, a person did take both mother and children, and the mother bird was still alive, then he could undo his violation by setting the bird free. The alternative was to suffer the punishment for violating a biblical commandment: thirty-nine lashes (see Mishnah 3:10). Our Mishnah allows a person to 鈥渦ndo鈥� the crime rather than suffer this severe beating.

Questions

  1. Even if this bird-snatcher releases his prey, he has still violated the Torah鈥檚 command. Why do the Sages relieve him of punishment?
  2. In contemporary law, do we ever allow a criminal to pay restitution rather than suffer punishment? What would be the costs and benefits of such a system?
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