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Why certain rules can have a harsh punishment?

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PostPosted: Thu Nov 03, 2016 11:16 am    Post subject: Why certain rules can have a harsh punishment? Reply with quote

Q. Salam brother, I have a question. In both hadith and halaka, why certain rules on seemingly irrelevant things can have a harsh punishment, hadith for dress code, picking up sticks on the sabbath/burning a fire for halaka. Why are some of these punishments so harsh? What is the jewish perspective on this, or even the islamic?

A. Wa aleikum salaam wa rahmatullah. IMHO The key to understanding this concept is to understand difference between the Roman (Western) concept of law and the Oriental (Eastern) concept of law. In Roman civil law and its derivatives, a law only has meaning insofar as it can be (or is) enforced by the sovereign. A modern example would be if the police say they will only give tickets for going 10km over the speed limit. This effectively makes a posted speed limit of 90kmh to be 100kmh.

In the Oriental (Eastern) concept of law, God is the sovereign. While technically this is a theocracy, the word theocracy has been given a bad name because it is confused with Western style enforcement. There are visions of minions of religious police monitoring compliance with "God's law". However this is mistaken, since neither the Torah nor the Qur'an spend anything more than a few words discussing enforcement of law. The Oriental (Eastern) concept of law is guidance. Ideally it is a rich reservoir of information from which to draw on to decide how to act appropriately in any given situation. Enforcement is done by God who sees all and knows men's hearts. However in a real word, there are unbelievers, hypocrites and criminals who would take advantage of this situation. So the earthly sovereign is empowered to enforce a small *subset* of these laws, being limited to those laws which allow the proper functioning of society.

Take for example the Torah strict punishment for picking up sticks on the sabbath. While all carrying in public places and lighting fires on the Sabbath is prohibited, because it negates the commandment of the Sabbath which is one of the distinguishing characteristics and part of the identity of the Children of Israel. However, the Torah only records one person who was stone for picking up sticks for a fire, even though this probably happened countless times. God alone knows the heart of man, if someone did this on purpose or by mistake, or what their motive was. In the case cited by the Torah, the person was warned beforehand and did his actions publicly in direct defiance to the commandment of Moses (pbuh). It this limited case, where rebellion would begin to degrade social order did Moses (pbuh) require that the rebel be physically punished with capital punishment instead waiting for some spiritual accounting at a later time.

The same is true with the punishment for adultery. It is absolutely true that sin of adultery is extremely severe, and detracts from the family unit and causes imeasurable spiritual damage to the individual and society. It is also absolutely true that God is just, and will punish sins. However it is never suggested in the Torah or the Qur'an to set up cameras, informants, or police to seek out adultery, or inquisition to obtain confessions. Instead the temporal sovereign is empowered to enforce a physical version of the spiritual capital punishment, when it becomes a threat to civil society. In the Talmud, adultery the guidelines are set forth that it should be punished physically with capital punishment when the person was warned beforehand, understood what they were doing, and performed the act publicly with witnesses. Unlike Western Law, this does not mean any unpunished act is permitted, it will surely be punished, but not necessarily by the temporal court. And even if not convicted, there may be enough evidence to be grounds for immediate divorce, affecting alimony, child support, and visitation rights depending on what is needed for civil society.

There is much more that needs to be written on this, but here I have shared the way I understand the issue.
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