You shall prepare for yourselves cities to be cities of refuge, so that a killer -- someone who has taken a life unintentionally -- may flee there. These cities will be a safe haven for the killer from the relatives of the victim.

(Bamidbar 35:11-12)

If a person deliberately commits an act of murder, he of course incurs capital punishment. But this is only if the perpetrator was given a full, clear warning ("Hatra'ah") of the consequences of his act immediately prior to the crime. If, on the other hand, a man has committed intentional murder without first receiving a proper warning, he is not executed. One would think, however, that at the very least the punishment prescribed by the Torah for unintentional manslaughter -- exile -- should be enforced in this case. After all, deliberate murder is certainly a more serious crime than unintentional murder, and it ought to be punished at least as severely. The surprise is that this is not the case. The Mishnah (Makkot 9b) tells us that an unintentional murderer who is acquitted on technical grounds (such as the lack of a prior warning) is not sent into exile. Rather, he goes unpunished. The intentional murderer is thus better off than the unintentional murderer! What is the logic behind such a ruling?

The Gemara provides us with the answer to this question (Makkot 2b). The reason an intentional killer is not punished with Galut is in order that he should not receive atonement for his sin and he should not be exempted from future punishment. That is, once the killer enters a city of refuge, he is protected from the clutches of his victim's next-of-kin, who is allowed to avenge his relative's blood. The killer's forced exile atones for his sin and therfore protects him from harm. In the case of intentional murder, the Gemara tells us, the crime committed is too severe to merit salvation from the next-of-kin through Galut. It is thus a *stringency* (lack of opportunity to escape from the next-of-kin) that we impose upon the murderer by not punishing him with Galut, and not a leniency. (See also Rambam, Hil. Rotze'ach 6:4-5.)

A food product that grows from the land in Israel may not be eaten until certain tithes and offerings have first been removed from it. The first of these offerings is called Terumah, and it is given to a Kohen. No non-Kohen may eat Terumah. If a non-Kohen eats Terumah unintentionally, he must repay the Kohen who owned the Terumah its full value, and to add a 25% "fine" on top of that. Surprisingly, however, if a non-Kohen eats Terumah *intentionally*, he does not have to pay the 25% fine! What is the logic behind punishing an unintentional offender more than a deliberate one?

The Rambam (beginning of Ch. 7 of Mishnayot Terumot) explains this anomaly by invoking the principle presented above. The 25% fine is considered to be an means of *atonement* for the sin committed. In fact, the Kohen to whom the fine is paid may not waive the fine. It is not his personal money to pass on, but rather a means of granting forgiveness to the one who is paying the fine. The Torah only prescribes this atonement for the sin of eating Terumah *without* intent. Eating Terumah knowingly is obviously a more serious sin, and the Torah does not wish to offer the sinner a means of acquiring atonement in this case.

This actually carries our principle one step further than in the previous example. In the case of the intentional murderer, where the killer is excused from Galut, by the same token the killer loses his opportunity to be sheltered from the dead man's relative, who may continue to hunt him down with impunity. In the case of Terumah, however, the intentional offender is fully acquitted from any punishment at the hand of man. Nevertheless, this is considered appropriate for he will suffer a greater punishment for his misdeed at the hands of Hashem (i.e. Mitta Biyedei Shamayim).

Some commentators take this principle even further. In cases of perjury, according to Torah law, the punishment that the false witnesses attempted to administer to their victim is meted out to them in his place. If the perjury took place in the context of a trial for a capital offense, the false witnesses are themselves executed. However, the Gemara tells us that this punishment is only carried out if the perjury was detected *before* the victim was actually punished for his supposed crime. If, however, the witnesses misled the court until the defendant was killed for his supposed crime, the witnesses are *not* killed for their perjury (see Parasha Page, Shoftim 5755). What could be the logic behind this strange law? Certainly it is a more grievous crime to *succeed* at framing someone than to *fail* in the attempt to do so!

The Me'iri (Makkot 2b) and the Kesef Mishneh (to Hil. Edut 20:2) invoke the above-mentioned principle to explain this law. Whenever a Jewish court administers the death penalty for a particular sin, and the criminal willingly accepts the Divinely prescribed punishment, he is absolved for his crime. (See Mishnah, Sanhedrin 43b. The same applies to other forms of punishment in court, see Makkot 23a.) The more serious offenders, who killed their victim, are not entitled to be given an opportunity for atonement through being killed by the court.

Applying the "no-atonement" principle to this case is actually taking the principle yet another step further. The penalties of Galut and the 25% fine for eating Terumah are clearly to be regarded as forms of atonement. They were not meant as preventative measures to deter others from following the example of the sinner -- after all, they are administered in cases where the offender committed his sin unintentionally. The punishment for perjury, however, could very well be intended as a deterrent: if witnesses know that they will be held to the same level of severity as their testimony involves, they will certainly think twice before becoming entangled in any such schemes. (Although it is true that execution by a Jewish court of law *also* effects expiation for one's crime, this is seemingly only a secondary, peripheral effect of the punishment's implementation, and not its main goal.) It would seem appropriate to punish the sinner even when the punishment will not atone for his sins, simply in order to prevent others from following in the sinner's ways. Apparently, though, this is not a viable option. A punishment is only considered to be just, if its execution fully absolves the sinner from his crime (should he willingly accept his punishment out of true repentance).

Thus, a Torah punishment must be perfectly molded to fit its crime. It cannot be too harsh, or it will over-punish, and it cannot be too lenient or it will offer the sinner an easy way to escape the retribution that he deserves.

The Gemara itself (in Makkot 5b) notes the puzzling nature of the rule that the punishment for perjury is only administered if the perjury is detected before the victim's sentence has been carried out. The Gemara cites in reference to this law a general principle, which states that one may not take a punishment prescribed by the Torah in one case and apply it to another case through logical deduction. Even if the second case is a more serious infraction than the first, it may be exempted from the punishment of the first. This principle is known in Hebrew as Ein Ohnshin min HaDin (lit., "we do not punish because of logic").

It is not difficult to see that the logic we have used to explain the laws of perjury may be extended to explain the general principle of Ein Ohnshin min HaDin: We can never apply the punishment for a lighter crime to a more serious crime because it is not appropriate to offer such "simple" atonement to the more serious criminal. This is, in fact, exactly what the Maharsha suggests (in Sanhedrin 64b).

As an example of the role that Divine considerations may play in jurisprudence, let us consider once again the case of perjurers. Earlier, we invoked the no-atonement theory to explain why the punishment for perjury is not applied after the victim has been executed. The Ramban suggests another possible explanation for this rule. If Hashem would have wanted to stop an innocent man from being killed, He could certainly have done so. Therefore, if Hashem did not intervene in some way to save the victim, obviously this man was deemed deserving of death by "due process" in the Heavenly court. (See Parasha Page, Ki Tetze, 5755, where we discussed this matter at length.) This is why witnesses are not punished if they succeed in executing their victim. Similarly, when it comes to administering any other punishment that is not explicitly prescribed by the Torah, Divine considerations which man cannot possibly postulate may be involved.

This explanation for not punishing based on logic is offered by "Halichot Olam" (Sha'ar 4, p. 25b -- see also Rashi, Sanhedrin 73a s.v. Hekesha; Zevachim 106b, s.v. Atia).

In regards to monetary law and monetary punishments, however, the rules are different. When money is involved, the court *is* expected to punish and grant monetary rights based on the dictates of logic (Tosafot Bava Kama 2b s.v. VeLo, 4b s.v. VeEdim, Mishnah ibid. 24b). What is the reason for this?

According to the first line of reasoning that we suggested (section II), the reason is obvious. When a thief pays for damages that he caused, it is not meant to bring him atonement but rather to simply set the record straight. The sinner caused another person a loss of money and his victim must be refunded. According to our latter suggestion, however (that only Hashem can specify punishments), what right does the court have to administer a monetary punishment based on human logic?

Human logic must be accepted when dealing with monetary law. It would not be practical for Hashem to directly pronounce who is right and who is wrong in every single dispute between two parties. There is no other choice but to leave the jurors with certain general guidelines which can be applied to each individual case in order to decide who wins each case. Since these rules are meant to see through the lies of the defendant, by their very nature these rules must be based on human logic. Hashem therefore gave the judges the right to use their own discretion in judging all monetary law based on simple, human logic.

In addition to the sins that carry the death penalty in court (murder, incest, adultery, etc.), the Torah mentions several sins which are punishable by death by the hand of Heaven or by the related punishment of "Karet" (excision). Does the principle of Ein Ohnshin min HaDin apply to these sins as well? According to Tosafot (Chullin 115b, s.v. Mah) and the Shittah Mekubetzet (Bava Kamma 2a s.v. HaTzad HaShaveh), heavenly punishments are also subject to this rule -- we cannot assume that a more serious case will necessarily have the same heavenly punishment as a less serious case. According to the Rosh (Tosfot HaRosh, Kiddushin 57b, s.v. Iy Mah), however, heavenly punishments are an exception to the rule, and we may use logic to extend a punishment from one case to another.

Perhaps this dispute may be explained in light of the two theories mentioned above. If the reasoning behind Ein Ohnshin min HaDin is that a punishment offers an opportunity for atonement, this rule should not apply to heavenly punishments. Punishments such as Karet, when administered by the heavenly court, are obviously the ultimate retribution for one's sins. They are not a means for acquiring atonement and *exempting* one's self from Divine retribution. Therefore, a worse sin ought to certainly carry a worse heavenly punishment.

If, however, the reasoning for the principle of Ein Ohnshin min HaDin involves our ignorance -- what seems to us to be a more corrupt act is actually a less corrupt one in the eyes of the Creator -- then the principle still holds true in regards to punishments administered by the heavenly court. We cannot fathom the wisdom of Hashem in order to predict what punishments the heavenly court will or will not mete out, unless the Torah specifically spells it out for us. This is why Tosafot and the Shittah Mekubetzet insist that we *cannot* assume that Hashem will punish a sinner in the heavenly court based on the dictates of our own logic!