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.
T.B.
Sanhedrin 41a informs us that
forty years before the destruction of the
One
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
of
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. Footnotes 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.
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