From NISHMA UPDATE, March 1991

 

Something To Think About with Rabbi Benjamin Hecht

 

The Gulf War and the figure of Saddam Hussein prompts one to again consider the nature of evil. Students of psychopathology are classifying Saddam Hussein within the category of narcissistic personality disorders with megalomaniac elements. His actions are, as such, perceived as the necessary result of this constitution. Behaviour is determined; there is scientific cause and effect.

This view, however, causes difficulties in evaluating Saddam Hussein as evil. Evil cannot be the necessary outcome of a certain personality type. It is the product of choice. To be evil, the individual musthave been able to act differently and had the psychological potential to do so. Only then can an individual be responsible for his or her actions.

Herein lies the issue. Which view of Hussein is correct? By what means can we distinguish between the fully responsible evil individual and the psychopathological one, whose actions are just as abhorrent, but whom we cannot declare deserving of retributive punishment?

The matter is a subtle one. Abhorrent behaviour should elicit negative reactions and must not be tolerated. Whether the murderer is evil or deranged does not in any way change the inherent nature of the act of murder as criminal and offensive. The question is how we relate to the individual, the person behind the act. When is someone in control, responsible and to be identified fully with the act chosen? When is someone the unfortunate victim of internal forces beyond one's control and therefore to be distinguished from his or her actions? There are times when the person is evil; there are times when only the actions are evil.

Judaism emphatically believes in free choice and the subsequent responsibility of each one of us for our actions. See Rambam, Mishneh Torah, Hilchot Teshuva, chapter 5. There is, however, much within the Halachic literature that supports the contention that one may, unfortunately, because of a variety of factors, perform evil acts without being considered culpable. The strict rules of court that demand two witnesses and, especially, that a clear warning be enunciated by an onlooker before the crime, indicate that punishment, generally, is to be given only when we are absolutely sure that the individual is choosing to do evil. See Rambam, Mishneh Torah, Hilchot Eidot, chapter 4, halacha 1. The blanket exemption from culpability of the cheresh, the deaf-mute (see, for further insight, Contemporary Halachic Problems, Volume II, chapter 18 by Rabbi J. David Bleich) and the shotah, the psychotic, further supports this understanding. While free choice is basic, there are times we do separate an individual from his/her evil act.

It must be recognized that the act does continue to be unacceptable. One is still prohibited from assisting the cheresh and shotah in the performance of the unacceptable act. For example, one may not feed either of these individuals a piece of non-kosher meat. ( To the aside, do you see the eating of non-kosher food as an act of evil? ) There is also the recognition that there are situations when the evil act is so unacceptable that it must demand a response, where punishment is required simply to stop the evil behaviour. For example, there are mechanics within the Halacha for dealing with the murderer who stands innocent under the normal laws of evidence. A reprehensible act must, on occasion, be responded to independently of the degree of moral culpability of the individual. See Rambam, Mishneh Torah, Hilchot Rotzeach and Shmirat Nefesh, chapter 2, halacha 3,4 and 5. Another example may be the non-Jew who, under the Noachide Code, is punishable even without warning. See Rambam, Mishneh Torah, Hilchot Melachim, chapter 10, halacha 1. The Babylonian Talmud, Tractate Makkot 9b, states that the non-Jew is punished for he should have learned these laws - a idea that is similar to the common law maxim that "ignorance of the law is no excuse". One theory presented to explain this concept is that the Noachide Code is specifically intended to protect society. While we may not be able to prove the absolute evil of the individual, the focus must be on the unacceptability of the action and, thus, the negligence of his/her not knowing these basic rules of community becomes culpable. See Ohr Sameach on Hilchot Melachim, chapter 10, halacha 3, who connects the Noachide Code and the judicial power of Jewish kings whose mandate was the improvement of this world, tikkun olam. The act is continuously defined as criminal. The question is when is the individual also to be so defined.

We may find other theories regarding the culpability of the non-Jew of interest to our investigation as well. These theories declare that knowledge of right and wrong is inherent in man, a theory that is strongly supported by the story of the Eitz HaDa'at Tov v'Ra, the Tree of Knowledge of Good and Evil (the English terms do not fully and correctly express the Hebrew). See Otzar Mefarshei HaTalmud on Makkot 9b for examples of commentators that present this idea. Based on these authorities, must we conclude that it is only in the extreme cases, such as the shotah, that we can declare people lacking responsibility? People inherently know right from wrong; psychopathological explanations, therefore, appear not to apply. Why, though, does culpability for the Jew demand that a clear warning be given before the crime?

The topic is obviously complex. We must clearly define the exact nature of a psychopathological explanation of human behaviour. Is it that the individual, because of internal forces, is not able to perceive the proper behaviour and, therefore, to act accordingly? Is it, on the other hand, possible that the person recognizes good and evil but the psychological difficulty is found in not being able to control oneself?

There are cases in the Halacha that support the contention that the human being, in certain circumstances, may not be able to control himself/herself. The most well-known example is the case of the yefat to'ar, the captured woman. See Devarim, chapter21, verses 10-14. In certain other limited cases, uncontrollable passions are also considered to be duress, oness. See Tractate Ketuvot 51b. See also Rabbi Norman Lamm's "Judaism and the Modern Attitude to Homosexuality" in Encyclopedia Judaica Yearbook 1974. Presenting the concept of psychological oness, Rabbi Lamm states, in regard to homosexuality: "where one can attribute an act to mental illness, it is done out of simple humanitarian considerations." But, by contrast, would we want to define Saddam Hussein as pathological rather than evil? Is our view of pathology and evil, even in the world of chukim, coloured by our own inherent view of right and wrong? Perhaps Halacha gives courts clear, strict guidelines on how to respond to the evil act because only G-d has the ultimate insight into the evil of the person.


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2002 NISHMA