TWO SYSTEMS OF JUSTICE
We all know that, according to Jewish Law, one can only be convicted of a crime through the testimony of two eye witnesses1 and only after acknowledging a proper warning from these witnesseses.2 Such parameters, though, would seem to make a conviction very unlikely if not impossible. How often do you think someone is convicted in Canada or the United States only upon the clear testimony of two eye witnesses and only after they warn the perpetrator that the action that he/she is about to undertake is against the law and he/.she responds that he/she knows so but does not care? How often do you think a perpetrator, who knows that his/her actions are being witnessed by two individuals and knows that if he/she simply does not acknowledge any warning there can be no conviction, will just simply keep quiet in order to avoid conviction? The problem is very simple: how can there be law and order in a society that demands such standards in order to enforce justice? The simple answer would seem to be that there can’t.
Rambam, Mishneh Torah, Hilchot Rotze’ach U’Shmirat Nefesh 2:4,5, as such, introduces us to two other court systems within the confines of Halacha that operated specifically for this very purpose of protecting law and order. One was the beit din hamelech, the king’s court, which functioned under the authority of the monarchy to do whatever was necessary to maintain law and order within the society.3 The second was an emergency power that rested in the regular court system that could be activated for the purpose of protecting society.4 Rambam, Mishneh Torah, Hilchot Rotze’ach U’Shmirat Nefesh 4:9 states emphatically that this emergency power was specifically for the purpose of protecting society. Even one who practiced idolatry but could not be convicted due to the technicalities of the formal Torah court system was to be freed if found not guilty. Only one whose actions would damage the law and order within the society would be subject to the workings of this emergency power. Or Same’ach, Hilchot Melachim 3:10 extends this same principle to the beit din hamelech, limiting its scope also only to matters of law and order, although he does clearly also state that, while these general sources specifically consider the crime of murder, these two court systems would also function in cases of theft and other criminal activities that would harm society.5 Law and order was not to suffer due to the almost impossible strictures of prosecuting a criminal only with the testimony of two eye witnesses amongst the many other challenging procedural rules of the Jewish court system. Why, though, if it was inherently ineffectual, did the Torah construct such a system in the first place?
In T.B. Makkot 7a, we find the famous words that a Jewish court that executes more than once in seventy years is deemed to be a destructive tribunal, what we would consider a hanging judge.6 The mishna then states that Rabbi Tarfon and Rabbi Akiva both declared that if they ever served on a Sanhedrin, they would never had executed anyone, ever.7 To this Rabbi Shimon ben Gamliel responded, in disagreement with such a proposed practice, that such behaviour would actually have the effect of increasing the number of murderers within Israel. This dialogue is most interesting. If our concern is law and order, why would Rabbi Shimon ben Gamliel not be similarly concerned about a beit din that only executes once in seventy years? Furthermore, what if there was a need due to the reality of crime within the society to execute more often?8 In any event, if the concern was law and order, would not the emergency powers of the Jewish court to protect society not be activated. Are Rabbi Tarfon and Rabbi Akiva referring also to this emergency power and that they would not execute anyone even within these parameters? It would seem not but then what is Rabbi Shimon ben Gamliel’s concern for, what would seem to be, law and order.
Sanhedrin 41a informs us that
forty years before the destruction of the
goal of justice is societal, to preserve
law and order within the society.
Another goal of justice, though, focuses
on the individual. It is just for a
transgressor of the law to pay a penalty,
to justly face the consequences of
his/her act. It is only God, though, who
can correctly determine this measure.
The Torah still, however, instructs us in
regard to this standard of justice
and directs us to attempt to apply it.
This is the formal level of the Jewish
court system and it is on this level that,
I believe, Rabbis Tarfon and Akiva are
expressing their reluctance to ever
execute someone. Justice based on reasons
of law and order is another matter and, on
this level, the emergency powers of
the court enable the court to act as
necessary. But to actually judge the evil
an individual and execute a person based
on this, Rabbis Akiva and Tarfon are
hesitant. It is in this regard that Rabbi
Shimon ben Gamliel states that such
an undertaking will still have negative
consequences for this level of justice
will not, thereby, be demonstrated within
the society. Yet it still must be
demonstrated with caution.
1 See, for example, Devarim 17:6 and 19:15.
2 See, for example, T.B Sanhedrin 8b.
3 See, also, Rambam, Mishneh Torah, Hilchot Melachim 3:1.
4 See, also, Rambam, Mishneh Torah, Hilchot Rotze’ach U’Shmirat Nefesh 4:8.
5 It may be of interest to note that the Or Same’ach actually also sees a parallel, specifically in regard to procedural rules, between these court systems and the court system which is to be established under the Noachide Code. The latter, for example, allows for the acceptance of one witness while the formal Jewish court system demands two.
6 It, perhaps, should be noted that the first view presented actually applies this term to a court that executes more than once in seven years.
7 Rashi explains that they would have been so meticulous in their examination of the witnesses that no testimony would ever stand and thus no one would be convicted and thus executed. This is specifically significant in that Rambam clearly states that the emergency power of the court, to which we refer in this Insight, was actually activated in such circumstances.
8 See, interestingly, Maharal, Chidushei Aggadot, Makkot 7a.© Nishma 2010
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