Governmental and Judicial Ethics in the Bible & Rabbinic Literature
CHAPTER II – THE GOVERNMENTAL LEGAL SYSTEM IN JUDAISM
Subjects reviewed in Chapter II
Introduction: Significance of Halākhāh, Development of Halākhāh, Sources of Halākhāh, Summary – Legal Ethics In Judaism: Ethical Legislation, Unethical/Illegal vs. Ethical/Legal Matters, Legal-Religious Matters, “Minor” Crime vis-à-vis Major Crime, Emphasis on “Judgment of Heaven”, Rabbis’ Commendation or Displeasure, Beyond the Letter of the Law, Social Conditions and Law, Social Conditions and Law, Concern About Attitudes, Judicial Procedure, Ethical Lapse: Rabbinic, Controversy, Conclusion – Ethics of Judaism in Penal Legislation: The Principle of “Thou Shalt Not”, Specific Prohibition Required, Exceptions, The Benefit of Doubt, Performance Before Guilt, Exceptions, Ethical Trends, “Satisfaction” without Due Process, Taking Matters into One’s Own Hands, Conclusion
Introduction
The governmental legal system characteristic of Judaism is a case history in the implementing of ethical government. This system had a broad base and a long period of historical development. Chapter I dealt extensively with the concept of law in the Bible and Talmud. Chapter II enlarges on this concept of law to show that the ethical issues of the governmental legal system in Judaism stand out as central themes in the source materials.
Significance of Halākhāh
The centrality of ethics in the legal aspects of government in Judaism is seen at the outset in the very word that connotes the legal side of Judaism-halākhāh = “practice” or “traditional law.” This noun is from the verb hālakh = “to go” or “to walk,” and is very often used in the Bible to indicate the way of the righteous.1 For example: “And Enoch walked (vayithalakh) with God; and he was not, for God took him” (Gen. 5:24). Therefore, the noun halākhāh, which eventually became a term that included the entire legal system in Judaism, implied, among other things, moral, ethical, and religious ideas. To be precise, it indicated the way one should go, i.e., the right way; but what constituted the right way could be a dogmatic rule as well as ethical principles. “Halakah itself is a product of the value-concepts’ drive toward concretization, and without doubt the most important product. Lacking Halakah, the value-concepts, with their need for steady concretization in actual life, might not have functioned at all.”2
These moral, ethical, and religious ideas, or “value-concepts,” were “concretized” in the life of the nation to the degree that it lived in submission to the word of God.3 For, according to talmudic teaching, the halākhāh was indeed the “word of the Lord.” “And it is said, ‘And they shall wander from sea to sea, and from the north even to the east; they shall run to and fro to seek the word of the Lord, and shall not find it’ (Amos 8:11 f.). ‘The word of the Lord’ means halachah . . .”4
Development of Halākhāh
In the perspective of the Sages, this halākhāh, or “word of the Lord,” was delivered to Moses at Sinai in both written and oral form. “Among the several predominant themes and central images within the text of the Talmud the two which stand out as most important are: ‘the importance of Talmud-study. The second is belief in the divine origin of the substance of Talmudic teaching, that is, in the ‘Oral Torah,’ which, along with the Hebrew Scriptures, was alleged to have been revealed at Sinai.”5
The subsequent development, elaboration, and adaptation, plus the application of this original revelation, provides a rich and varied historical saga. A study of the history of this development uncovers three interesting aspects: (1) the Sinaitic laws were given priority; (2) laws developed by the Rabbis were thought to be authoritative elaborations, clarifications, and developments of both the Written and Oral Law; (3) ethical considerations carried heavy weight for the Rabbis as they continued to develop a governmental legal system within Judaism with which to regulate society with equity.
Sources of Halākhāh.
A retrospective analysis of this vast body of biblical and rabbinical material shows five different types of sources which served to provide the totality of halākhāh.
1. The Written Law was revealed by God to Moses at Sinai and was eventually viewed as a list of positive and negative commandments totaling 613. More will be said about this codification in Chapter III.
2. The Tradition found in the Prophets and Writings as commandments or admonitions was viewed as having authority from Sinai; e.g., “Witnesses sign a Geţ to prevent abuses. [Is this rule only] to prevent abuses? (n. And so of Rabbinical sanction only.) It derives from Scripture, does it not, since it is written, ‘And subscribe the deeds and seal them?’” (Jer. 32:44).6
3. The Oral Law, involving (a) the interpretation of the Written Law, (b) the early halakhot which had little, if any, scriptural basis, as in the following: “May we say that our Mishnah teaches here the same as our Rabbis taught: ‘That phylacteries should be square is a law set down by Moses at Sinai,’ and Raba explained [this to mean] in their seam and in their diagonal?”7 (c) logical deduction where a given teaching is so obvious as to need no scriptural basis.
4. Sayings of the Scribes, as an explanation of a principle from the Torah8 or as a decree originating with the Scribes. In such a case, the saying would need reinforcement, as the following example indicates: “New Moon is ordained by the Written Law, and the ordinances of the Written Law do not require reinforcement . . . whereas the others are laid down by the Scribes, and the word of the Scribes require reinforcement.”9
5. Custom. This source of halākhāh is very comprehensive. It is also pertinent to the ethical theme in the governmental legal system in Judaism. In this area of corporate Jewish life one finds that, in effect, the law was often “of the people, for the people, and by the people.” For example: “Where it is the custom to do work on the eve of Passover until midday one may do [work]; where it is the custom not to do [work], one may not do [work]. He who goes from a place where they work to a place where they do not work, we lay upon him the restrictions of the place whence he departed and the restrictions of the place whither he has gone: and a man must not act differently [from local custom] on account of the quarrels [which would ensue].”10
And, in addition, it is noticeable that the customs which developed until they carried the force of law were often the very practices which were expressions of sensitive ethical awareness. Custom usually developed where specific teaching was lacking and was expressed as follows: “What is the law? . . . Go forth and see how the public are accustomed to act.”11
A custom originating from the social, religious, or legal activities of a specific responsible group in a given locality could very well become the source of new teachings which would be as authoritative as if the early Sages had taught it. This procedure, so common in the development of the halākhāh, is a prime example of the sensitive nature of the governmental legal system in Judaism. It shows that the voice of pious, responsible people was a contributing element in the formation of laws which were articulated by the Rabbis and implemented within the framework of the established courts; e.g., “One who engages laborers and demands that they commence early or work late-where local usage is not to commence early or work late he may not compel them. Where it is the practice to supply food [to one's laborers], he must supply them therewith; to provide a relish, he must provide it. Everything depends on local custom.”12
Summary
These introductory remarks show that the governmental legal system in Judaism was one which was shaped by a complex variety of sources including the Written Law, the Oral Law, traditions handed down in the form of commandments or requirements found in the Prophets and Writings, the teachings of the Sages, and custom.13 This great body of literature was appropriately called halākhāh because, in its composite form, it prescribed a way of life in which the people were “to go” that encompassed the social, religious, and civil expressions of the Jewish nation.14 The inherent ethical quality pervading the governmental legal system in Judaism has already surfaced by way of implication.15 It is now time to consider specifically the legal ethics of this governmental system.
Legal Ethics in Judaism
The legal ethics in talmudic Judaism stand out in bold relief when one examines the source materials mentioned in the introduction. There was a sustained effort on the part of the Sages to preserve the intimate relationship between legal mandates and ethical behavior. Although it was recognized that ethical behavior could not always be required by law, a great thrust of much of the legislation was actually for the purpose of getting people to act ethically in any given situation. “The significance, from an ethical point of view, of a symmetrical development and exact statement of the law in all its ramifications is obvious. Private and social life is so profoundly affected by the provisions of the law of property and contracts, of marriage and inheritance, the penal law and the law of procedure, with all their premises and consequences, that their authoritative definition is necessarily antecedent to the foundation of ethical conduct.”16
Ethical Legislation
The determination of the Rabbis to retain in legal form appropriate expressions of ethical behavior is seen in the way they incorporated within terms of law many activities which had a distinctively ethical emphasis. This was one way of building strong assurances that the legal system in Judaism would continue to maintain high ethical standards.
Unethical / Illegal vs. Ethical / Legal Behavior
One of the techniques utilized by the Sages to accomplish this strong ethical emphasis was to place in the same context, by way of comparison, unethical and illegal behavior on the one hand, and ethical and legal behavior on the other. This close juxtaposition of the unethical and illegal, or ethical and legal, although not precisely identical, often accomplished the same purpose as if they were identical. This is seen in the rabbinical rules regulating remarriage where a minor was involved. “R. Eliezer b. Jacob ruled: In the case of any hindrance [in remarrying] (n. Lit. ‘retention [in the house of her husband].’) that was due to the husband, [the minor] is deemed to have been (n. Lit., ‘as if she was’) his wife; but in the case of any hindrance [in remarrying] that was not due to the husband she is not deemed to have been his wife.”17
The reason for such a rabbinical ruling lies in a combination of ethical and legal considerations. An attempt was made to assure equity for the parties involved according to the varying circumstances of the case, and not merely upon the basis of strict legalities. Thus, under one set of conditions the minor would be considered “as if she was” a wife; under other circumstances she would not be so considered. With such flexibility, a blending of legal and ethical principles could be brought to bear to insure a better application of humane justice.
Legal-Religious Matters
This same procedure was also utilized by the Rabbis in legal matters of a religious nature. Prominent in the religious activity of the Israelites until the destruction of the Second Temple in 70 C.E. was the sacrificial system of worship. Under this system the people were required to present burnt offerings, meal offerings, peace offerings, and sin offerings on a regular basis (Lev. 1-5). If these offerings were faithfully performed, the sins of the people were atoned for and they received blessings. With this background of teaching from the Torah in mind, it is significant to note its ethical extension by R. Isaac, who said, “Why is the meal-offering distinguished in that the express ‘soul’ is used therewith? Because the Holy One, blessed be He, said, ‘Who is it that usually brings a meal-offering? It is the poor man. I account it as though he had offered his own life to me.’”18
The equating of one who is a poor man with one who is obedient is not exactly a legal equation; it is, rather, an ethical relationship. The one who is lowly is “as though” he were obedient.
“Minor” Crime vis-à-vis Major Crime
Also, as one would expect, the principle discussed above applied in criminal law, including capital cases. Often, the enormity of the crime under consideration was heightened by comparing it, in principle, with a more serious offense. This had the effect, not only of deterring the potential offender because of legal retribution, but also of calling him to consider the ethical implications of such a deed and thus causing him to desist on both legal and ethical grounds. A Mishnah concerning the capital offense of murder and warnings to witnesses gives a good example of this kind of legal-ethical concern: “For this reason was man created alone, to teach thee that whosoever destroys a single life (from Israel), scripture imputes [guilt] to him as though he had destroyed a complete world; and whosoever preserves a single life (from Israel), ascribes [merit] to him as though he had preserved a complete world.”19
The emergence of these kinds of rulings, whether in the domestic, religious, criminal, or other spheres of activity, clearly points up a deliberate endeavor on the part of the Rabbis to relate ethics and law in such a way as to strongly encourage ethical behavior.
Emphasis on “Judgment of Heaven”
Another type of ruling was developed by the Sages to urge an ethical motivation for action in cases where the legal sanction of the courts would not apply. This procedure emphasized the ethical responsibility for complying with the spirit of the law even though there were no legal sanctions which could be imposed.20 The pressure for proper ethical response came when the Rabbis pointed out in their rulings that the person in question was subject to divine retribution even though he could not be legally punished. In this way an individual who had not technically broken the law, but who was obviously under demand for a proper ethical response, would be led to consider the gravity of his refusal to respond properly to the Rabbis’ ruling. One’s dealing with incompetents and minors is discussed under this principle as follows: “If a man sent out something burning through a deaf mute, an idiot, or a minor [and damage resulted] he would be exempt from the judgments of man, but liable in accordance with the judgments of heaven.”21
Rabbis’ Commendation or Displeasure
On the other hand, the Rabbis' encouragement of an enlightened response was often predicated upon their conviction that respect for them and their position would carry weight in leading people to choose the course which they, the Rabbis, preferred. Therefore, they often not only gave a ruling in a particular matter, but also expressed an ethical course of action, which, if followed, would receive their personal commendation. The following Mishnah with reference to the payment of debt is a clear example of this type of legal-ethical persuasion. “If one repays his debts in the seventh year the Sages are well pleased with him. If one borrows from a proselyte whose sons had become converted with him, the debt need not be repaid to his sons; (n. Children of a proselyte are regarded as newly born; accordingly, they are not the legal heirs of their pagan father, and, consequently, cannot claim debts due to him. Nevertheless, if his debt is returned to them, the Rabbis are pleased with the debtor.) but if he returns it the Sages are well pleased with him.”22
Conversely, the Sages expressed displeasure when unethical behavior was exhibited, especially when it caused hardship on others. Thus, they expressed themselves often in the following fashion. “If a person gives his estate, in writing, to strangers, and leaves out his children, his arrangements are legally valid, but the spirit of the Sages finds no delight in him.”23
Beyond the Letter of the Law
One of the most emphatic methods employed by the Rabbis in their attempts to sustain high ethical standards by associating them closely with legal categories was to urge, not only legal requirements, but action that carried beyond the letter of the law as an expression of the ethical spirit of the law. This procedure reminded the people that the law had its subtle demand, which could not be ignored with impunity. Ethical considerations were part and parcel of law to such an extent that often the highest legal intent could be realized only if one reacted ethically to the principle with which a particular ruling dealt. The emphasis of the philosophy behind this legal- ethical relationship is seen in R. Johanan’s statement: “Jerusalem was destroyed only because they gave judgments therein in accordance with the law of the Torah. Were they then to have judged in accordance with untrained arbitrators? – But say thus: because they based their judgments [strictly] upon the law of the Torah, and did not go beyond the requirements of the law.”24
This kind of emphasis in the talmudic discussions gives a clue to the viability of the legal ethics in Judaism. It gave one a legal framework within which one could achieve the ethical results most desirable in any given case. Thus, by acting beyond the strict requirements of the law one could actually behave within the “margin of the judgment” by surrendering his legal rights to benefit another human being. The high motivation for this principle has been stated as follows: “. . . Rabbinical ethics . . . looked with approval on a man who did not insist on his strict legal rights . . . and the reason why his action in so doing was approved was that in this way brotherly love was promoted between those who were at variance with each other.”25
This ethical stimulus to do the "right thing" in a legal matter, even if it meant going beyond the “letter of the law,” was a bulwark which helped preserve and perpetuate the entire governmental legal system in Judaism. Indeed, the history of legal development in Judaism shows that what often had been urged on the grounds of ethical considerations was later incorporated into the corpus of legal literature as law; e.g., “There was a certain man who sold a plot of land to R. Papa because he was in need of money to buy some oxen, and, as eventually he did not need it, R. Papa actually returned the land to him! – [This is no proof] since R. Papa may have acted beyond the strict requirements of the law. (n., Lit. ‘line of the law,’ i.e., he surrendered his legal right for the sake of benefiting a fellow man.) . . . And the law is that if a man sold [a plot of land] and [on concluding the sale] was no longer in need of money the sale may be withdrawn.”26
Social Conditions and Law
This tendency to legislate ethical requirements was especially apparent in legal matters that were concerned with varying social conditions. The technique used by the Rabbis to accomplish this goal was twofold in nature: the incorporation of ethical principles into new law, as explained in the last paragraph, and by offering ethical explanations for laws which already existed. For example, a rare agreement was reached between the schools of Hillel and Shammai that a half- slave must be liberated by his owner. “One who is half a slave and half free works for his master and for himself alternate days. This was the ruling of Beth Hillel. Beth Shammai said: You have made matters right for the master but not for the slave. It is impossible for him to marry a female slave because he is already half free. (n. And so an Israelite.) It is impossible for him to marry a free woman because he is half a slave. (n. And so not an Israelite.) Shall he then remain unmarried? But was not the world only made to be populated, as it says, ‘He created it not as a waste, he formed it to be inhabited’? (Isa. 45:18) To prevent abuses, (n. Lit., ‘for the better ordering of the world.’) Therefore, his master is compelled to liberate him and he gives him a bond for half his purchase price. Beth Hillel thereupon retracted [their opinion] and ruled like Beth Shammai.”27
It is significant that the resolution of the injustice to the half-slave and the agreement between the two rabbinical schools were based on ethical considerations which became the rule.28
Concern About Attitudes
Sometimes a ruling of the Rabbis showed the intenseness with which they pursued ethical principles as regulating forces within society. Not only did they call for overt behavior governed by ethical demands, as mentioned above, they also pressed for the expression of proper attitudes by parties involved in legal problems or situations. Thus, the Mishnah which held that an object found by a man’s wife belonged to him is explained by the Gemara as being based on the reason “that he may entertain no ill feeling towards her.”29 The description of legal positions based on social ethical awareness in an attempt to minimize ill will between parties is of frequent occurrence in the Talmud. It is further evidence of the strong role of legal ethics in Judaism.
Judicial Procedure
Finally, in the realm of judicial procedure, the Sages also showed their concern for the ethical as well as the legal. Some of their rulings illustrating this concern were based on the Mosaic injunction, “And you shall do what is right and good in the sight of the Lord . . .” (Deut. 6:18a). The story is told of a man who deposited jewels with his neighbor. When he asked for them later he was told they could not be found. This was ruled to be negligence and the neighbor's house was confiscated. When the jewels were found they were returned to their owner, but in the interim they had appreciated. The law held that the amount of their appreciation was also returnable to the original owner by the one with whom he had deposited them on the grounds that “you shall do what is right and good . . .”30 Thus, ethical action was actually enforced on legal grounds. Another example, this time involving real estate, is that of a man who took possession of ground lying between the fields of two brothers. Rab Judah called him impudent but said he could not be removed. Eventually, however, the ruling came to be that he could be removed on the grounds of “you shall do what is right and good . . .”31 This recourse to a general biblical principle which is primarily ethical in nature to solve a legal dilemma again illustrates how the Rabbis blended the ethical and the legal together into a system designed to produce equity and justice for all. One final example, to show that the Rabbis were concerned with the ethical as well as the legal aspects of the law, is about “Some porters (who) [negligently] broke a barrel of wine belonging to Rabbah son of R. Huna. Thereupon he seized their garments; so they went and complained to Rab. ‘Return them their garments,’ he ordered. ‘Is that the law?’ he enquired. ‘Even so,’ he rejoined, ‘That thou mayest walk in the way of good men.’ (n. Prov. 2:20.) Their garments having been returned, they observed, ‘We are poor men, have worked all day, and are in need; are we to get nothing?’ ‘Go and pay them,’ he ordered. ‘Is that the law?’ he asked. ‘Even so.’ was his reply: ‘and keep the path of the righteous.’ (n. Actually they were responsible, but Rab told him that in such a case one should not insist on the letter of the law.)”32
It must be noted, however, that this was an infraction of the pentateuchal law that the poor must not be favored in a lawsuit on account of his poverty (cf. Ex. 23:3, Lev. 19:15). Conceivably, this was a special case, that of a prominent Rabbi, who was expected to behave with special consideration.
Ethical Lapse
Rabbinic Controversy
Although this system was designed, in principle, to produce equity and justice for all, it occasionally fell short of this goal. When individual laws were enacted which contained some basic inequity, the rabbinic discussions of those laws were usually controversial; e.g., “Where an ox belonging to an Israelite has gored an ox belonging to a Canaanite, there is no liability, whereas where an ox belonging to a Canaanite gores an ox belonging to an Israelite, whether while tam or mu'ad, the compensation is to be made in full.”33
The rabbinic discussions concerning this Mishnah illustrate “the horns of a dilemma” which were difficult to remove. Those who supported it generally held that the Israelite was exempt from payment of damages even though his ox had gored the ox of a Canaanite on the grounds that the non-Israelites were not guided by the universal principles of civilization. Since they did not generally recognize the laws of social justice, they could not claim benefits from a law they did not acknowledge. “In ancient Israel as in the modern state the legislation regulating the protection of life and property of the stranger was on the basis of reciprocity. Where such reciprocity was not recognized, the stranger could not claim to enjoy the same protection of the law as the citizen.”34
Since the Israelite was bound by the law, he was entitled to the benefits provided by the law- compensation in this case. The Rabbis who saw inequity in this Mishnah related the story of how two representatives from Rome were sent to Israel to learn the Torah. After having studied it carefully, they praised it generally, but said concerning the Mishnah about the goring ox, “In no case can this be right.”35 The inequity of the law reflects the religiouspolitical tensions of the time between Jews and Romans and Greeks. That the law was questioned by the Rabbis (even though they cited pagan students) shows that they were sensitive to the lack of fairness.
Conclusion
The above discussion of the legal ethics in Judaism leads one to conclude that the Rabbis thought in terms of legal-ethical relationships in society. These two areas were not distinct and separate categories. They were blended together by the various techniques which have been considered in this section. Because the Talmud does reflect so often this blending of the legal and the ethical in its legislative and judicial writings, it becomes valid to speak of the legislative ethics of Judaism. The next section takes up this topic with emphasis on the ethics of Judaism in penal legislation.
Ethics of Judaism in Penal Legislation
The ethics of Judaism loom very prominently in talmudic penal legislation. There was a concerned regard for the rights of both the accuser and the accused, and great pains were taken to see that there was no miscarriage of justice. The safeguards built into the penal system to maintain equity did, indeed, seem to favor the defendant in most cases.36 Perhaps this was due to the fact that he was on the defensive, and therefore his judges had to exercise special caution in determining guilt before the verdict was pronounced.37
The Principle of “Thou Shalt Not”
For penal purposes an act was criminal if it was a violation of a negative biblical command. For example, the fact that the Torah stated, “You shall not kill” (Ex. 20:13), made it valid to carry out the injunction, “the murderer shall be put to death” (Num. 35:16b).38 “It is a recognized principle that no transgression carries with it a [humanly inflicted] penalty unless the relevant prohibition, ‘thou shalt not,’ is explicitly stated in the Bible.”39 Under this principle, even a plain provision of punishment, such as “the adulterer and the adulteress shall be put to death” (Lev. 20:10b), could not have been carried out had it not been for the negative biblical command, “You shall not commit adultery” (Ex. 20:14, Deut. 5:18). This rabbinical requirement for both a biblical “thou shalt not” and a provision establishing a specific penalty for its violation served as a system of checks and balances in the administration of penal law.
Specific Prohibition Required
Additionally, a prohibition could not be inferred in any way. It had to be specifically stated. For example, sexual intercourse was prohibited as follows, “You shall not uncover the nakedness of your sister, the daughter of your father or the daughter of your mother . . .” (Lev. 18:9a). This, of course, involved relations with one’s half-sister. But immediately the text goes on to say, “You shall not uncover the nakedness of your father’s wife’s daughter, begotten by your father, since she is your sister” (Lev. 18:11). This would be one's full sister. Therefore, it seems clear that prohibition of marriage with one’s full sister could not be inferred from the prohibition of marriage with one’s half-sister. Otherwise, there would not have been two separate prohibitions.40
This close link between negative injunction and penal legislation was not restricted to capital cases. Although they serve as vivid examples, it was noted above that an act was criminal if it violated a negative biblical command. Thus, the whole range of criminal jurisprudence came under this principle.
Exceptions
The fact that the Rabbis observed and further developed this approach to penal legislation indicates their concern for properly administered justice in this area. As a matter of fact, there developed exceptions to the rule that an act was criminal only if it was a violation of a negative biblical command. However, even the exceptional rulings highlight the Rabbis’ determination to act ethically in this regard; e.g., with reference to the roasted flesh of the paschal lamb it was taught: “And ye shall let nothing of it remain until the morning; and that which remaineth of it until the morning ye shall burn with fire” (Ex. 12:10). Now Scripture came and provided here a [remedial] act to follow a [disregarded] prohibition; (n. Lit., “a prohibition translated into a positive action.”) this [provision] is to convey that no flogging is inflicted for the transgression. These are the words of R. Judah. R. Jacob says: [No!] this interpretation is not relevant, as it is rather an instance of a prohibition contravened without action, and any prohibition contravened without action entails no flogging. (n. I.e., the offence was passive, without any physical act, and therefore not punishable.)”41
Although these two explanations differed, it is significant that they both sought the same results; that is, elimination of a flogging for the violation of a prohibition if the violation was passive in nature.
The Benefit of Doubt
Another evidence of ethical awareness in penal legislation was the practice of the Sages to give to the accused the benefit of all reasonable doubt when he was under trial for alleged legal violations. This principle had several modes of expression. It was especially apparent in cases where more than one person could possibly have been guilty of liability. The one who proved beyond a reasonable doubt to be guilty was charged, while the other party was exempt. For example, in the case of damages “where there is a pit [in charge of] two partners, if the first one passes by and does not cover it, and the second one also [passes by and does] not cover it (n. And damage occurred later.), the second would be liable.”42
Thus, the one who undoubtedly, and without any mitigating circumstances, was negligent to the extent of causing damages, was assigned the guilt. This procedure showed a keen sensitivity for avoiding unjust penalties and also carried with it a reluctance to attach any great significance to circumstantial matters. On the other hand, if it came to light that a crime had been committed by someone through a second party, the one who instigated the crime was also called to account. This was articulated by Shammai the Elder in the following way: “Now, when it was taught: If he says to his agent, ‘Go forth and slay a soul,’ the latter is liable, and his sender is exempt. Shammai the Elder said on the authority of Haggai the Prophet: His sender is liable, for it is said, ‘Thou has slain him with the sword of the children of Ammon.’ (n. II Sam. 12:9; the reference is to David, who encompassed the death of Uriah the Hittite through the Ammonites, for which the prophet Nathan held him personally responsible.)”43
Performance Before Guilt
Ordinarily, the illegal act had to be actually performed before guilt accrued. It was generally held that mere intent to do evil did not, itself, make one culpable. “The Holy One, blessed be He, does not combine an evil thought with an [evil] act. (n. For punishment, – i.e., one is not punished for mere intention.)”44 Thus, the general principle was operative which held that a crime or offense had to be finalized to be a valid wrong. On the other hand, one was not considered criminally guilty even of a consummated act if it was proved that the act performed was not the one intended by the accused.45 According to this view, one would not be guilty unless he consummated the act according to his intention.46 This perspective on the part of the Rabbis illustrates their desire to avoid presumptive procedures which might possibly result in assigning punishment upon an innocent party.
Exceptions
Although, generally speaking, an illegal act had to be actually performed before guilt accrued, there was a considerable number of exceptions to this principle. Some of them, perhaps because they were exceptions, highlight all the more the ethical motivations of penal legislation in Judaism. Brief mention of three exceptions will corroborate this point. In some cases the mere attempt to involve people in certain activities, the doing of which would involve grave consequences, was itself considered a criminal offense; e.g., an attempt to entice others to idolatry, even though unsuccessful, was an offense the penalty for which was stoning (Deut. 13:6-10). In other words, the incitement itself constituted a criminal act. Since the departure into idolatry was such a serious matter, the Rabbis let stand the injunction of the Torah in this instance without further expansion or alteration. Again, an exception to the general principle of no guilt without an illegal deed is seen in the Rabbis' call for the lex talionis upon him who would disturb the domestic tranquility by planning to smite his fellow, viz., “He who lifts his hand against his neighbour, even if he did not smite him, is called a wicked man, as it is written, ‘And he said unto the wicked man, Wherefore wouldst thou smite thy fellow?’ (Prov. 22:25) ‘Wherefore has thou smitten’ is not said, but ‘wherefore wouldst thou smite,’ shewing that
though he had not smitten him yet, he was termed a wicked man. . . . R. Huna said: His hand should be cut off, as it is written, ‘Let the uplifted arm be broken.’ (Job 38:15) R. Huna had the hand cut off [of one who was accustomed to strike other people].”47
This indicates that a peaceful society was a prime consideration in the social-legal ethics of Judaism. This subject will be explored at length in Chapter VI.
Again, the untold havoc that false witnesses could bring into the judicial system of Judaism caused the Rabbis to retain without elaboration the biblical requirement of “measure for measure” upon the witness who testified maliciously against his fellow man. Although what he testified against his brother was false, and proven to be so by the judges’ examination, the mere attempt to discredit his fellow man was turned upon him, so that what he had tried to establish against his brother was actually applied against him (Deut. 19:16-19).48 In another connection, this principle is expanded in Chapter V.
These three exceptions to the general penal legislative rule show that where unusually grave circumstances existed which would result in serious consequences with regard to man’s relationship with God, his fellows, and the law, the Rabbis viewed intent to do wrong as synonymous with actual wrongdoing, and ruled accordingly.49 This flexibility of penal legislation to fit the nature of the offense illustrates an ethical strain running through the concept of law in Judaism because it shows, in effect, that the law was to be suited to man’s needs, and not the other way around.
An extension of this “accommodation” of law to man is seen in R. Judah’s affirmation that any act done inadvertently did not carry liability. The following Mishnah illustrates this point. “If his pitcher broke on public ground and someone slipped in the water or was injured by the potsherd he is liable [to compensate]. R. Judah says: if it was done intentionally he is liable, but if unintentionally he is exempt.”50
The above-mentioned instances clearly indicate that the flexibility of penal legislation worked in two directions: if intent to act illegally involved cases of severe repercussions, that intent made one as culpable as if he had committed the act; on the other hand, if an act was actually committed which, for example, caused damages, but was done unintentionally, the person who committed the act was not deemed culpable at all.51 Furthermore, the illegal act not only had to be committed intentionally for one to be guilty, but it had to be done with willing consent. This meant that the accused would not be found guilty if it was proved that he committed the act contrary to his will. Utilizing Deuteronomy 22:25-26,52 R. Zera stated, “. . . the All-merciful absolves anyone who acts under pressure, as it is written, ‘But unto the damsel thou shalt do nothing!’ (n. Deut. 22:26, when a betrothed girl was violated in a field).”53
It was also recognized that under certain conditions an individual might act contrary to the law and still be exempt because of certain extenuating circumstances. For instance, if one made a false oath, he was exempt from guilt if it was established that he swore falsely in ignorance. “Our Rabbis taught: [‘Whatsoever it be that] a man [shall utter clearly] with an oath’ (n. Lev. 5:4) at the time of the oath he must be a man, i.e., have all his faculties, but if he swears falsely by accident (thinking it is the truth), he is exempt.”54
Ethical Trends
In addition to the varied situations described above, which would free one from guilt even though the letter of the law had been violated, the Rabbis also recognized a much wider range of conditions which would free one from culpability. A few of these are enumerated below in order to emphasize the ethical trend in the penal system of Judaism that continued to value the person as the beneficiary of law instead of its victim.
If one were forced to act illegally because of torture he was exempt.55 “A deaf-mute, an idiot and a minor are awkward to deal with, as he who injures them is liable [to pay], whereas if they injure others they are exempt.”56 Failure to give warning beforehand to one who committed a capital offense became judicial grounds for staying the execution.57 The taking of human life in defense of another person was to act without guilt in the matter, according to rabbinical teaching.58
All of these enumerations point to the same thing. The law remained the standard by which conduct was measured. However, the flexibility of application of the law- was designed to take into account the many different circumstances which arose, and the varying conditions of the people involved. Thus, by retaining ethical principles within the categories of legal expressions, the goal of justice in Jewish penal legislation remained a practical one, not merely theoretical.
This attempt to blend the ethical, legal, judicial, and practical into a workable system is one reason why there are so many different points of view among the Rabbis expressed in the Talmud. In general it can be said, however, that the majority ruling in penal legislation was usually a sensitive attempt to guard carefully the rights of the accused.59 In the words of one historian, “In the deliberations of the judges considerations tending to acquittal were given precedence.”60 At the same time, however, the principles of justice with respect to the law were not neglected. It has been well said, “Nowhere is the endeavor to develop the highest principles of the Law in ordinances and regulations more conspicuous than in the sphere of judicial procedure.”61
“Satisfaction”' Without Due Process
It is valid to state that “the principles of justice with respect to the law” were not neglected even though the law was tolerant enough in many situations to allow “satisfaction” without due process. However, what may seem like a lapse of legality on superficial examination, often turns out to be an example of ethical and moral considerations being overriding factors in shaping the attitude of law so that justice could speedily prevail. Most of these occasions were well grounded in ancient Torah precedents believed to be required by the exigencies of the times in which they occurred. Many instances of summary punishment separate from legal procedure are recorded in the Torah and the Talmud, e.g., the actions of Simeon and Levi against the house of Hamor after discovering that their sister, Dinalt, had been defiled (Gen. 34:25-27).62 Indeed, on certain occasions, this type of action was viewed as a response to the specific command of God (Ex. 32:27-28). With such precedents before them, the Rabbis felt justified in acting in summary fashion under certain conditions in order to maintain high ethical standards and proper regard for the law.63
The rulings of the Sages also gave leeway for various other individuals, under certain conditions, to act outside the normal process of law in order that the intent of the law be maintained. For example, based upon the honor given to Phinehas for his spontaneous action in slaying an Israelite man and a Midianite woman for their gross immorality (Num. 25:6-13), the following Mishnah was taught: “If one steals the kiswah (sacred vessel), or curses by enchantments, or cohabits with a heathen [lit., Syrian] woman, he is punished by zealots. (n. I.e., pious men, zealous for the honour of Judaism, may punish him if they apprehend him in the act; but if they did not, they cannot subsequently charge him therewith at the Beth Din.)”64
This kind of teaching was in harmony with the conviction of the Sages that they could circumvent a pentateuchal law “in accordance with the need of the hour!”65
Taking Matters into One’s Own Hands
Another interpretative ruling by the Rabbis allowed individuals, under prescribed conditions, to “take matters into their own hands” and take human life. The basis for this ruling was the biblical statement, “If a thief is caught while breaking in, and is struck so that he dies, there will be no bloodguiltiness on his account.”66 The rabbinical interpretation of this passage not only gave the owner the right to kill the burglar,67 but, on the grounds that the burglar should be regarded as a potential murderer, granted permission to anyone catching him in the act of breaking in to kill him in defense of the owner, as indicated by the following ruling: “Our Rabbis taught: [‘If a thief be found breaking up,] and be smitten, – by any man; that he die,’ by any death wherewith you can slay him. Now, [the exegesis] ‘And be smitten, by any man’ is rightly necessary: for I might think that only the owner may be assumed not to remain passive, whilst his money is being stolen, but not a stranger: it is therefore taught that he is regarded as a potential murderer, whom even a stranger may kill [in defense of the owner]. But what need of ‘that he die – by any death wherewith you can slay him’: can this not be deduced from a murderer? For it has been taught: ‘He that smote him shall surely be put to death; for he is a murderer.’ (Num. 35:21).”68
Rulings of this kind help bolster the contention that the supreme motive of talmudic law was basically ethical in nature because they show an overwhelming concern for justice for the victim of a crime. “There is a very strong emphasis on justice in the Jewish tradition. The evidence is so powerful that it seems unnecessary to present it in any detail. What are the great codes of law, from the Pentateuch to the Mishnah to Maimonides and the Shulhan Arukh, if not a great celebration of the demands of justice in human affairs?”69
This concern for justice was so intense that the Sages could circumvent the letter of the law with their interpretive rulings in order to “build a fence around the Torah” and maintain the spirit of the law with its full integrity.
Conclusion
This kind of basic approach to law in Judaism was a daring experiment in the administration of justice. Although it was characterized by rabbinic controversy, frequent conflicting rulings, and occasional ethical lapses, the legal system of talmudic Judaism was one marked by strenuous ethical and moral ideals grounded in integrity and religious convictions. As developed, expanded, and perpetuated by the Rabbis, its success depended on two basic elements: (1) the continued acceptance by the people of Torah, the teachings of the Rabbis, and rabbinical authority; (2) an unhampered legislative and judicial apparatus by which the law could be articulated and applied.
This section has been devoted to an examination of the legal system of Judaism. It has stressed the ethical ingredients of that system, especially as they are discerned in its legislative and judicial aspects. The area of penal legislation served as a rich resource for determining and analyzing the basic ethical nature of talmudic law, which always pointed to the high goal of justice.
