Rabbi Simcha Feuerman, DHL, LCSW-R
It seems to be a staple of modern and ancient law, and even aspects of halacha to enact fines upon perpetrators. Our Gemara on Amud Aleph (see Rashi as well) notes that the institution of fines represent an extra-judicial response that is not about compensation per se, but some form of punishment. According to the Klein Dictionary, the etymology of the word Kenas is Greek. It is related to the word census, which is to count. That is, a fixed numerical financial fine is levied upon the person. The question is, are fines effective deterrents within organizational or pedagogical systems? Do they stop anyone from committing crimes? Of course, common sense says it should, as people want to avoid suffering and consequences of poor choices, despite the immediate gratification. But if people always behaved in that fashion, no one would overeat or smoke. So, what does the research show?
According to researchers Uri Gneezy and Aldo Rustichini (“A Fine is a Price”, Journal of Legal Studies, vol. XXIX (January 2000) fines do not always work out as planned. Gneezy and Rustichini tested out the deterrent hypothesis via a field study at a daycare in Israel. Being parents of K”H large families, and being Jewish about timeliness, it must surely lead to frustration on the part of daycare staff who wait for parents to show up and pick up their kids. In the study, for the first four weeks, parents who came late were simply recorded. For the next twelve weeks, parents were given a financial fine. Incredibly, subsequent to the imposition of a fine, the number of tardy parents INCREASED. Furthermore, when they tried to dial back and eliminate the fine, the numbers remained constant at the increased level.
How do we explain such a phenomenon, aside from shrugging and saying, “We Jews are a stiff-Necked people”? Researchers Tim Kurz, William Edward Thomas and Miguel A. Fonseca may have found the answer. (“A fine is a more effective financial deterrent when framed retributively and extracted publicly.” September 2014, Journal of Experimental Social Psychology 54)
According to their research, two factors seem to make the difference between an effective fine and a non-effective one. If the fine is framed as a punishment and it is public, it conveys moral and social disapproval, and thus acts as a deterrent. If it is framed merely as a form of financial restitution, then it is less effective. When a person gets a parking ticket, they hate it, but do not usually feel it is a moral criticism about their moral responsibility as a citizen. Think of the parents in the daycare center. Because they were paying a fine for their tardiness, they might have rationalized that the staff was getting paid extra for the time anyhow. If they were told this is rude and they are being fined for their rudeness, perhaps coupled with the frowns of the teachers and administration, our theory holds they would be less likely to rationalize.
This distinction allows us to understand a dispute between Abaye and Rava on Daf 39b. The Gemara is trying to derive a source for how we know that the perpetrator who raped a Na’arah (girl aged twelve) cannot choose to marry her without the father’s approval. Abaye says, otherwise “the sinner will profit from his misdeed.” That is to say, if he raped her, which was obviously without her father’s permission, he should not then be allowed to marry her without his permission. But Rava says it is a kal v’chomer: If the verse explicitly proscribes the seducer from marrying the girl without the father’s permission, surely the Torah would forbid the rapist from doing so.
The Gemara then wonders why Rava would object to the simple logic of Abaye, that the Torah would not want to reward the sinner. The Gemara says that Rava holds since the rapist must pay a fine, he will not consider his behavior as rewarded. Ah, but what about Abaye? Perhaps we can say that Abaye was psychologically aware of the idea that came out from Kurz et al’s research. For a fine to be effective, it must be framed as retribution and convey moral disapproval. Thus, Abaye reasoned that the fine in this case will be experienced as a payoff and restitution but not so much as moral rebuke. (Rava might disagree, or feel that the fine can still be framed as a sanction.)
We see from here practical applications to educators and organizational leaders in how to properly use fines as deterrents.
Translations Courtesy of Sefaria, except when, sometimes, I disagree with the translation
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