Governmental and Judicial Ethics in the Bible & Rabbinic Literature
EXCURSUS II
Subject reviewed in Excursus II
Judicial and Governmental Ethics in the Bible and the Talmud: A Comparative Evaluation from Selected Illustrations
Introduction
The preceding study has dealt with numerous facets of the judicial and governmental ethics reflected in the Hebrew Scriptures and rabbinic literature. The many varying contexts within which the subject has been analyzed have tended to spread the inquiry over a wide variety of literature and a vast expanse of history. This procedure did not allow for a systematic comparison and evaluation of the judicial and governmental ethics adduced from the two primary sources – the Bible and the Talmud. Therefore, this excursus aims to bring these matters into sharp focus by the use of selected illustrations.
Attempts to Eliminate the Death Penalty
The Scriptures are replete with calls for the death penalty for a number of offenses.1 The Rabbis did not reject the principle of capital punishment – indeed, they could not abolish it outright since this would have contradicted the divinely instituted laws of the Torah. However, in many ways, they tried to hedge it round with restrictions which rendered it virtually inapplicable. One way was to utilize complicated judicial procedures.2 Another was to establish judicial rules which favored the defendant during trial.3 Thus, circumstantial evidence was not accepted. Two reliable witnesses had to testify not only that they had seen the crime in question, but that they had repeatedly warned the accused before he committed his act. There is also abundant evidence that most Rabbis had a strong aversion to the death penalty,4 some going so far as to declare that, had they been members of the Sanhedrin, no person would ever have been put to death.5
Application of the Death Penalty
According to the Torah, the death penalty was to be applied by burning or stoning.6 Since hanging was done after execution,7 and burning was restricted to only two offenses,8 that meant stoning was the common biblical mode of execution for capital crimes. Very little is said about the method of carrying out this punishment.
The Rabbis attempted to make the application of the death penalty as humane as circumstances would permit. They advocated a method which involved as little suffering and humiliation for the criminal as possible.9 They tried to devise procedures of execution which would cause a minimum of mutilation to the body.10 They restricted the role of the general public in the execution and also regulated the activity of the witnesses,11 all in an attempt to make it as easy on the condemned person as possible. Some Rabbis maintained that a woman was not hung after stoning.12 Others held that hanging, in any case, was merely for a moment.13 Strangulation was utilized as the method of execution in cases where the Torah did not specify the mode of death.14 This, too, was done because it was thought to be a less stringent death than the other methods.15
In most of these cases there were differences of opinion among the Rabbis. At times it was even acknowledged that decapitation was a valid mode of legal execution.16 However, the general trend was toward reducing the death sentence to an absolute minimum, and, where capital punishment was to be applied, to mitigating the harshness of death as much as possible. This points toward a humane attitude on criminals – a basic approach that is lacking in the Torah.
Conditions for the Establishment of Guilt
The Scriptures speak of applying the death sentence to those who were only obliquely involved in some kind of serious violation, e.g., the stoning of the entire household of Achan,17 and the slaying of all the inhabitants of an idolatrous city.18
In contrast, most Rabbis taught not only that there never had been a case of a condemned city, but that it would never happen.19
They also laid down conditions which had to be satisfied before guilt could be established. Some of these conditions were: (1) intention was necessary before one was guilty of a crime,20 although mere intention was not, with some exceptions, enough to make one culpable;21 (2) the illegal act performed had to be intentional beyond reasonable doubt before the accused could be held to have been criminally guilty.22 Again, although these conditions were not always unanimously agreed upon, the general trend was to safeguard the rights of individuals when they were charged with major crimes.
Lex Talionis
The Hebrew Scriptures show the lex talionis being applied in an enlightened way when compared to its use generally in the ancient Near East; i.e., with equal justice for all without regard to social status or economic level. With but few possible exceptions,23 however, there could be no substitution of punishment for one upon whom the “measure for measure” verdict was pronounced.24
The Rabbis, generally speaking, were more lenient in their interpretative rulings on this matter. In the first place, the impracticability of exactly applying the law was stressed.25 In the second place, punishment was often commuted to a monetary fine,26 and compensation for damages became the general rule.27 Also, if one was found guilty of injury to another, he could not have both a “civil” and a “criminal” sentence (such as flogging and payment of compensation) applied against him.28 All of this indicates a distinct shift toward leniency by the majority of the Rabbis in their rulings concerning the “measure for measure” principle.
Safeguards Against Killing Out of Vengeance
The Torah made provision for the role of the blood-avenger.29 There were also some provisions in the law to curtail his unwarranted or hasty action when life had been taken, e.g., the cities of refuge,30 the demand that it be premeditated murder,31 and the requirement of a trial in cases where there was a question of involuntary manslaughter or murder.32 All of this biblical provision, while set in the context of the “blood feud” mentality of the ancient Near East, did show a concern for ethical principles where the blood-avenger was involved.
The Rabbis went further. They denied the right of the avenger of blood to take the law into his own hands, and the culprit could be put to death only if there were two witnesses who saw the murder, and only if the court duly sentenced him.33 The rabbinic position in effect eliminated the action of the blood-avenger separate and apart from the courts. Additionally, according to Rabbi Isaac's interpretation of Deuteronomy 4:42, the cities of refuge were to provide a livelihood for the manslayer,34 and, if he was a scholar, he should have access to a school.35 These rulings are a perfect example of the refinement of biblical law by the Rabbis.
Witnesses: Legal Safeguards
The Talmud elaborates on the role of witnesses in capital cases, and, in most cases, shows a concern for their welfare. For example, a false witness ordinarily received a severe sentence according to both the Bible and the Talmud.36 However, according to rabbinic interpretation, he was acquitted if the false testimony was given in ignorance.37 There was also a rabbinic rule which prevented relatives from testifying against each other, or a witness from testifying regarding himself.38 All this was designed to guard against possible self-incrimination.
Again, although the Bible is consistent in its requirement of “two or three witnesses,”39 the Rabbis allowed one witness to suffice in certain cases where hardship would accrue if the biblical rule was strictly adhered to;40 and there appears to have been a time when three witnesses was the rule for capital cases instead of the biblical “two or three.”41 This care for witnesses and defendants (with the exception of premeditated false witnesses) shows an enlightened concern for each individual in the judicial process that goes well beyond the biblical record.
Divorce
Deuteronomy describes the circumstances under which a man could give his wife a bill of divorce and send her away.42 To be sure, there was much controversy in the rabbinic schools as to what constituted proper biblical grounds for the giving of the bill of divorcement. However, one fact is clear. In later times the Rabbis were enacting legislation to prevent abuse of this law. For example, it became the rule that witnesses had to sign the writ.43
Again, the practice which had developed of merely calling together a local Beth Din in order to cancel a bill of divorce was stopped by a ruling of Rabban Gamaliel the Elder in order to prevent the abuses latent in such a practice.44 These rabbinic rulings reflect an ethical concern for the rights of the parties to a divorce, especially the woman’s rights, which is not apparent in the deuteronomic law.
Surrender of Legal Rights
The Hebrew Scriptures placed great stress on the keeping of the law.45 It was not permitted to add to or take from the law, according to Deuteronomy 4:2.
However, according to rabbinic teaching, it was this very strict adherence to the letter of the law in the legal process that had caused Jerusalem to be destroyed.46 They held that one could act within the “margin of the judgment” by surrendering one's legal rights on behalf of another. This ethical thrust was based on consideration of others and was often reflected in legal enactments.47 Thus, in Scripture the emphasis with respect to the various laws of the Torah was, “Hear therefore, O Israel, and be careful to do them . . .” (Deut. 6:3a); the Rabbis, on the other hand, taught that doing the “right thing” included going beyond the letter of the law, or not insisting on the letter of the law if such action would benefit others.48
Checks and Balances
The legal enactments of the Pentateuch fall into two classes of law, the apodictic and the casuistic. The apodictic laws are direct commands or prohibitions of Yahweh.49 The casuistic laws have a conditional clause in them,50 and deal with specific situations or conditions under which the law is operative. This served as a control in the application of the law in that the conditions had to be taken into account.
The Sages recognized, of course, these two types of law in the Torah, and were cognizant of the type of control inherent in casuistic law. However, they evolved a system of checks and balances which had even wider application. In rabbinic thought, the violation of a negative biblical command was a criminal act. If such a violation occurred, the biblical injunction against that act could be carried out. Thus, the rabbinic requirement for both a biblical negative command and a penalty provision for its violation worked as checks and balances in the penal law.51
Prosbul
The deuteronomic law established a Sabbatical year of release,52 which included an annulment of all monetary obligations, thus legally debarring creditors from collecting debts. This was obviously a humane law with the ethical motive of relieving hardship on the poor. As if in anticipation of the difficulty of maintaining this law, the warning was given that one must not harden one’s heart against the poor man and refuse to lend him money simply because the year of release was drawing near.53
However, in later times the law became oppressive, since in a more urbanized and commercialized society, nonpayment of loans on a large scale was economically disastrous, and did the poor more harm than good, since it deprived them of all credit. Therefore, to prevent suffering to the poor Hillel enacted the Prosbul.
This was a legal instrument executed and attested in court by which the lender retained the right to collect a debt at any time he chose. Thus, the lender was not tempted to refuse a loan simply because the year of release was near.54 This is a classical example of Hillel, who undoubtedly believed in the divine origin of the Torah, effectively circumventing the biblical law with a takkanah in the spirit of the law, designed as it was to help the poor secure loans.
Summary Actions
The Torah and the Talmud emphasize law. Judicial procedures are provided for. There was to be an accounting for those who violated the law. However, both in Torah and Talmud allowance was made for summary action, based on ethical and moral considerations, which caused justice to swiftly prevail, e.g., the action of Phinehas in spontaneously slaying an Israelite man and a Midianite woman for gross immorality,55 and the rabbinic ruling which acknowledged this same principle by allowing the zealots to kill one caught in the act of cohabiting with a heathen.56 In each case the law provided judicial procedures for such violations; yet, at the same time, allowance was made for summary action separate from legal procedure. Thus, one notes in both Torah and Talmud a recognition that the exigencies of the moment must be considered in the attempt to maintain high moral, ethical, and legal standards.
Taking Life for Protection of Life and Property
Both the Hebrew Scriptures and the rabbinic literature recognized the sanctity of individual human life. However, there was also another principle at work that called for each individual to live his life in harmony with others and with God. When this principle was violated in utter disregard for the dignity and property of others, as in the case of breaking in and stealing, the Bible allowed the owner of the property to take the life of the thief without incurring guilt.57 A rabbinic ruling went further and permitted anyone to kill the burglar in defense of the owner of the property being burglarized, on the grounds that the thief was a potential murderer.58 The rabbinic extension of this biblical law illustrates the talmudic concern for human rights as basically ethical in nature, showing desire for justice for the victim of a crime.
The Perspective of Kingship
The Bible, generally speaking, presents a pragmatic historical view of kingship in Israel. With the exception of the idealization of Solomon's reign, the Scriptures are rather straightforward with reference to the kings, their rule, qualities, power, etc. There is an attempt by Samuel to “write in” some safeguards to prevent the king’s abuse of power,59 and Deuteronomy is concerned with the duties and conduct of the king.60 The king’s power is, at least in theory, restricted.
By contrast, rabbinic law, written at a time when anarchy was considered the worst possible danger,61 tends to increase the authority and power of the king.62 This trend is even more pronounced in Maimonides.63
The Stranger and the Proselyte
In one respect there may have been a regression in talmudic law; viz., with regard to the legal safeguards for the resident alien. In biblical law, the alien is treated on terms of complete equality.64 The Rabbis, as well as the Aramaic, take the biblical ger to mean proselyte.65 While it may not have been the intention of the Rabbis, the effect of this misinterpretation was to restrict the legal safeguards provided in the Torah for the stranger to proselytes, who were, of course, Jews, not Gentile aliens residing in the land of Israel.
The Yearning for Peace
Peace is a prominent theme in both the Hebrew Scriptures and rabbinic literature. In both bodies of literature it was viewed as a gift of God.66 Thus, it was seen by both biblical and talmudic writers not merely as the absence of war, but in a theological dimension.
It is not surprising, then, to find a biblical connection between peace and justice and truth,67 and a relationship between God, his covenant with Israel, and peace.68 Neither is it surprising to note that the Sages continued their quest for peace with many legislative rulings having peace as their motive.69 Thus, the subject of peace in the Scriptures was stressed with equal, if not more, force in rabbinic literature; and the people of both the biblical and talmudic ages were encouraged by the prophetic message that a new era of peace would one day be realized.70
Conclusion
These selected illustrations have shown the similarities and differences between Torah and Talmud, between the Hebrew Scriptures and rabbinic literature. Also, the judicial and governmental ethics of the two literatures have been compared and contrasted. It has been noted that, generally speaking, the halakhic work of the Sages reflects a more detailed concern with the ethical ramifications of judicial legislation and procedures than do the Hebrew Scriptures.
Footnotes:
1 Deut. 17:5, 21:22; 22:21; Lev. 20:10-16, etc.
2 M. San. V, 1-2; M. Ab. I, 9.
3 San. 37b; M. San. III, 3-4; IV, l; V, 5-VI, 1.
4 San. 8b, 17a.
5 M. Mak, I, 10.
6 Lev. 20:14, 24:16, etc.
7 Deut. 21:22-23.
8 Lev. 20:14, 21:9.
9 M. San. VI, 3; San. 45a.
10 M. San. VII, 2.
11 M. San. VI, 4.
12 Ibid.
13 San. 46b.
14 M. San. VII, 3.
15 San. 52b.
16 M. San. VII, 3.
17 Josh. 7:24-25.
18 Deut. 13:12-15.
19 San. 71a.
20 A.Z. 54a.
21 Kid. 39b.
22 M. B.K. V, 6.
23 Ex. 21:29 ff.
24 Ex. 21:22-25; Deut. 25:11-12.
25 B.K. 84a.
26 B.K. 28a.
27 M. B.K. VIII, 1.
28 Ket. 32b.
29 Num. 35:33, etc.
30 Deut. 19:4-6.
31 Num. 35:16-18.
32 Num. 35:24.
33 Cf. T.O. on Gen. 9:6.
34 Mak. 10a.
35 J. Mak. 6.
36 Deut. 19:18-19; M. San. XI, 1.
37 Shebu, 26a.
38 San. 9b.
39 Deut. 17:6, 19:15.
40 M. Ed. I, 12.
41 Damascus Document IX, 17-22; Josephus, Ant. VIII, xiii, 8.
42 Deut. 24:1 ff.
43 Git. 36a.
44 M. Git. IV, 2.
45 Deut. 5:1, 6:1-9, etc.
46 B.M. 30b.
47 Ket. 97a.
48 B.M. 83a.
49 Ex. 20:1-17, etc.
50 Ex. 22:1 ff.
51 Mak. 13b.
52 Deut. 15:1-2.
53 Deut. 15:7-11.
54 Sheb. X, 3-4.
55 Num. 25:6-13.
56 M. San. IX, 6.
57 Ex. 22:2 (Heb. 22:1).
58 San. 72b.
59 I Sam. 10:25.
60 Deut. 17:14-20.
61 M. Ab. III, 2.
62 M. San. II, 2-5; San. 20b.
63 Maimonides’ Code, bk. XIV, treatise V, chaps. iii, iv, v, vi, viii, ix.
64 Ex. 12:49; Lev. 24:16, 22, etc.
65 San. 56a.
66 Hag. 2:9; Git. 59b.
67 II Kings 20:19.
68 Is. 54:10.
69 Yeb. 14b-15a; M. Gil. V, 8.
70
Is. 2:1-4; Hos. 2:18-20, etc.
