DANIEL SCHIFF

many witnesses would be required? Who would determine whether a case of adultery was proved? Would this not create a“witch-hunt” atmosphere akin to that that sometimes existed in bygone generations? How could an equal application of such rulings be ensured?

Such questions could well be answered in the same spirit as that shown by the rabbis in their approach to capital punishment. Just as the extensive talmudic discussion of capital punishment for adultery was“meant by the rabbis to be and remain a theoretical teaching, but was not favored as a practical penal guide,” so contemporary rabbinic authorities might be well served by pro­claiming modern penalties, even without intending to use them as practical penal measures. Although they may, very occasionally, be forced, in the name of kavod ha-tzibbur, to take action in those cases of classic adultery that are flagrant and where the facts are undisputed by any of the parties involved, such cases are never the subject of controversy over questions of witnesses, witch-hunts, or judicial wisdom. Under normal circumstances, however, appropri­ate adultery sanctions could be openly and firmly stated, without any need to pursue adulterers or zealously to ensure that justice is seen to be done.

But if the sanctions are not enforced and adulterers are not carefully tracked, then why have penalties at all? The reason, quite simply, is that any good legal system not only has the function of regulating behavior through the efficient employment of punitive disincentives, but also has a vitally important educational function. This is especially true of halakhah. Time and again the Torah , in both its written and oral forms, threatens dire punishments that it never intends to be carried out.” The aim, rather, is to convey an

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