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Penal Law

PENAL LAW

Principles of Legality

Under talmudic law, no act is a criminal offense and punishable as such unless laid down in express terms in the Bible (the Written Law). For this purpose, it is not sufficient that there should be a provision imposing a specified penalty in respect of any given act (onesh) – e.g., the murderer shall be killed (Num. 35:16–21), or the adulterers shall be killed (Lev. 20:10) – so long as the commission of the act has not first distinctly been prohibited (azharah) – e.g., you shall not murder (Ex. 20:13; Deut. 5:17), or you shall not commit adultery (ibid.). Where such prohibition is lacking, even the availability of a penal provision will not warrant the imposition of the penalty provided (Zev. 106a–b, et al.); the penal provision is a nuda lex, which may be interpreted as a threat of *divine punishment, in respect of which no prior prohibition is required (Mak. 13b).

All biblical injunctions are either positive (mitzvot aseh) or negative (mitzvot lo ta'aseh), i.e., either to do or to abstain from doing a certain thing. Any negative injunction qualifies as prohibition for the purposes of penal legislation (Maim. Comm. to Mishnah, Mak. 3:1). But no prohibition may he inferred, e contrario, from any positive injunction (Tem. 4a). The prohibitory provision is required not only for capital offenses (Sanh. 54a–b), but also for offenses punishable by *flogging (Mak. 4b; Ket. 46a), and even for offenses punishable by *fines (Sifra, Kedoshim, 2, 1). A prohibition may not be inferred, either by analogy or by any other form of logical deduction; from the prohibition on intercourse, for instance, with the daughter of one's father or of one's mother (Lev. 18:9), the prohibition on intercourse with one's full sister could not be inferred, but had to be stated expressly (Lev. 18:11).

Similarly, the penal provision must be explicit as applying to an offense constituted of certain factual elements, and may not be extended to cover other offenses, whether by way of analogy or by way of other logical deductions. Thus, for instance, malicious witnesses who commit *perjury by testifying that an innocent man has committed a capital offense are to be executed only if the accused has not yet been executed himself: for it is written, "you shall do to him as he schemed to do to his fellow" (Deut. 19:19), and not as has been done already to his fellow, and the latter may not be inferred, a fortiori, from the former (Mak. 5b). The reason underlying this seemingly hairsplitting precaution has been said to be that, if the punishment laid down by law were the right and proper one for the lesser crime or the lesser evil, it could not be the right and proper punishment for the graver one (Maharsha to Sanh. 64b), and the Divine Legislator having seen fit to penalize the lesser offense, no human legislator should presume to improve on or rectify His action, least of all by human logic (Korban Aharon, Middot Aharon, 2:13). This strict legality already gave rise to practical difficulties in talmudic times. "Not in order to contravene the law, but in order to make fences around the law" (Sanh. 46a; Yev. 90b; Yad, Sanh. 24:4), were the courts empowered to impose punishments even where the principle of legality could not be observed (see *Extraordinary Remedies). Such extralegal sanctions were imposed not only at the discretion of the courts, but also by virtue of express penal legislation (see *Takkanot).

Parties to Offenses

As a general rule, only the actual perpetrator of an offense is criminally responsible in Jewish law. Thus no responsibility attaches to procurers, counselors, inciters, and other such offenders who cause the offense to be committed by some other person (except, of course, where the incitement as such constitutes the offense, as, e.g., incitement to idolatry: Deut. 13:7–11).

principals and agents

Even when a person hires another to commit a crime, criminal responsibility attaches only to the agent who actually commits it, and not to the principal who made him commit it (Kid. 42b–43a; bk 51a, 79a; bm 8a, 10b; et al.). Where the commission of the offense entails some enjoyment, as the consumption of prohibited food or consummation of prohibited intercourse, it is clear that he who has the enjoyment pays the penalty (Kid. 43a); but even where the agent derives no enjoyment at all from the commission of the offense, it is he who is responsible, because as a person endowed with free will he has to obey God rather than men (Kid. 42b). There are several exceptions to this rule: first, where the agent is not capable of criminal responsibility, whether because he is a minor, or insane, or otherwise exempt from responsibility, his principal is responsible (bm 10b; Rema, Ḥm 182:1, 348:8); or, where the actual perpetrator is an innocent agent, that is, ignorant of the fact that it is an offense he commits (Tos. to Kid. 42b s.v.amai; Tos. to bk 79a s.v.natnu; Mordekhai, bm 1, 237; and cf. Redak, ii Sam. 12:9). Further exceptions apply to particular offenses and are derived from biblical exegesis, such as stealing trust money (Ex. 22:6), slaughtering and stealing oxen or sheep (Ex. 21:37), or trespass on sacred things (Lev. 5:15) – for all of which the principal and not the agent is criminally responsible (Kid. 42b–43a). However, the blameworthiness of the procurer did not escape the talmudic jurists: everybody agrees that he is liable to some punishment, lesser (dina zuta) or greater (dina rabba; Kid. 43a), and the view generally taken is that he will be visited with divine punishment (Kid. 43a; Yad, Roẓe'aḥ 2:2–3). The matter is very distinctly put apropos the biblical injunction that, where a woman committed bestiality, both she and the beast should be killed (Lev. 20:16): "The woman has sinned, but what sin did the beast commit? But because it caused mischief, it must be stoned–and if a beast which does not know any difference between good and evil is stoned because of the mischief it caused, a fortiori must a man who caused another to commit a capital offense be taken by God from this world" (Sifra, Kedoshim, 10:5). Maimonides goes even further, allowing not only for divine punishment but also for human capital punishment, whether by the king by virtue of his royal prerogative (see *Extraordinary Remedies), or by the court in exercise of its emergency powers, wherever circumstances of time and place so require (Yad, Roẓe'aḥ 2:4); and indeed capital punishment was actually imposed on a father who had ordered his son to commit homicide (Ribash, Resp. no. 251). But short of capital punishment, courts are at any rate admonished to administer "very hard floggings" and impose severe imprisonment for long periods, so as to deter and threaten potential criminals that they may not think they can commit with impunity their crimes by the hands of others (Yad, Roẓe'aḥ 5). See also *Agency, Law of.

joint offenders

As a general rule, a criminal offense is committed by a single person acting alone, and not by two or more acting together (Sifra, Va-Yikra, 7; Shab. 92b). Thus, where an offense is committed by joint offenders, all are liable only if the offense could not have been committed otherwise than by all of them together; if the offense could have been committed by any one (or more) of them, they are all entitled to the benefit of the doubt that none of them did actually complete the offense (Yad, Shab. 1:15–16). Where, therefore, a man is beaten to death by several people, none of them would be criminally liable (Sanh. 78a); but where the death was clearly caused by the last stroke, the man who struck last would be guilty of murder (Yad, Roẓe'aḥ 4:6–7). It might be otherwise where death could not have ensued unless by the combined action of all attackers together: in such a case they would all be liable (Rashba, Nov., bk 53b). Like accessories before and at the offense, so are accessories after the fact free from responsibility for the offense–except, again, in the case of incitement to idolatry, where the protection of the offender is made an offense (Deut. 13:9).

Attempts and Inchoate Offenses

From the foregoing it is already apparent that, as a rule, no offense is committed unless it is completed: he who completes the offense is guilty; he who commits only part of the offense, or does not achieve the criminal result, is not guilty (Sifra, Va-Yikra, 7, 9; Shab. 92b–93a). No criminal intent, however far-reaching, suffices to render any act punishable which is not the completed offense defined by law (Kid. 39b; Ḥċýǒ 142a). In exceptional cases, however, the attempt as such constitutes the completed offenses, e.g., malicious perjury (Deut. 19:16), where the false witnesses are liable only if the result intended by them had not yet been achieved (Mak. 1:6). But, again, the potential turpitude of the attempt to commit an offense has not escaped juridical notice: he who raises a hand against another, even without striking him, is not only wicked, but should (according at least to one great scholar) have his hand cut off, if he is prone to strike frequently (Sanh. 58b and Rashi). Extralegal punishments have indeed been inflicted time and again on attempts, especially of murder (e.g., Maharam of Rothenburg, Resp., ed. Prague, no. 383; and cf. Darkhei Moshe, Ḥm 421, n.7).

Criminal Responsibility

No person is criminally responsible for any act unless he did that act willfully (Av. Zar. 54a; bk 28b; Yad, Yesodei ha-Torah 5:4; Sanh. 20:2). Willfulness is excluded by duress (*ones), a concept much wider in Jewish than in other systems of law. For the purpose of penal law, it can be roughly divided into five categories:

(1) coercion;

(2) threats of death, including governmental decrees threatening criminal prosecution;

(3) torture;

(4) force majeure, including sickness and other happenings beyond one's control; and

(5) mistakes of fact and unconsciousness.

As distinguished from duress for the purposes of civil law, generally no duress is recognized in criminal law which flows from any monetary cause, as, e.g., the necessity to save any property from perdition (Beit Yosef; Ḥm 388; Rema, Ḥm 388:2).

duress by coercion

The coercion by violence of a married woman to commit *adultery (nowadays known as rape) exempts her from any criminal responsibility (Deut. 22:26). No such coercion is recognized in regard to the male adulterer, because he cannot physiologically be raped (Yev. 53b). Where the woman is in an isolated spot ("in the open country": Deut. 22:25), or otherwise incapable of summoning help, she will be presumed to have been coerced against her will (Naḥmanides ad loc.; Sif. Deut. 243), even where she could have resisted by striking back, but failed to do so in the belief she was not allowed to, she is deemed to have been raped (Naḥmanides, ibid.). It is irrelevant that, after having been forced to submit, she eventually acquiesced: it is the duress of human urges and human nature that then compels her to surrender (Yad, Issurei Bi'ah 1:9).

duress by threats

There are three grave offenses of which it is said that a man must let himself be killed rather than commit any of them, namely, idolatry, adultery or *incest (gillui arayot), and *homicide (Sanh. 74a; Yad, Yesodei ha-Torah 5:2; Sh. Ar., yd 157:1). This rule has sometimes been wrongly interpreted as excluding the defense of duress by threats of death in the case of any of these offenses; as a matter of law, however, where the rule is disobeyed and any such offense is committed in order to escape death, the offender is not criminally responsible, however reprehensible he may be morally or religiously (Yad, ibid. 4). It is irrevocably presumed that where a man acts under threat of immediate death and in order to save his life, any criminal intent in respect of that act is excluded or superseded, and he cannot be criminally responsible for it.

In the Middle Ages, the threat of prosecution and death became a very effective inducement to denounce Judaism and outwardly embrace another religion. So long as a man did only what was really required to save his life, the transgression was recognized as being committed under duress; as soon as he did anything not so required, it was deemed to be done willfully, however strong the initial duress may have been (Rema, yd 124:9; Ribash, Resp. nos. 4, 11, 12).

duress by torture

Duress by torture is closely related to the two foregoing categories; on the one hand, it entails physical force, and the sheer force applied may be sufficient to deprive the victim of his free will; on the other hand, it entails threats of death, or of ever more torture to come until death may ensue, and hence any criminal intent will be replaced or superseded by the wish to have the torture terminated (cf. Ket. 33b for an instance of torture to compel to idolatry).

duress by force majeure

Duress by force majeure as an instance of duress is well illustrated by the case of a man who fell ill, and his doctors prescribed for his cure the consumption of prohibited food: while partaking of such food is a criminal offense, the patient will not be liable to punishment, as his intent was not criminal but medical (Yad, ibid. 6). It is, however, made clear that this defense would not hold good for all offenses: thus, a man cannot be heard to say that, for medical reasons and in order to save his life, he had to commit adultery (Yad, ibid. 9) or even a lesser indecency (Sanh. 75a). Other unforeseen circumstances which may make a man act unlawfully, contrary to his real intentions, are, e.g., attacks by wild beasts (cf. bm 7:9), or accidents such as fire (bm 47b, 49b) and other like dangers: the defense of duress in these cases is closely related to that of self-defense or self-help (see below). It is noteworthy that in English and Israeli law, the commission of an offense in order to avoid grievous harm or injury which could not otherwise be avoided is excused by reason of "necessity" (Sec. 18, Criminal Code Ordinance, 1936).

duress by mistake or unconsciousness

A lesser form of duress is the "duress of sleep" (cf. Ber. 4b): a man who has fallen asleep is not criminally (as distinguished from civilly; bk 2:6) responsible for anything he did while asleep, for the reason that he acted without any criminal (or other) intent. The same applies to acts of automatism or anything done in a state of unconsciousness, however induced. Jewish law–again, as distinguished from other systems of law–includes within this category, as a species of duress, also the common mistake of fact: it is regarded as the "duress of the heart" (Shev. 26a) if a man acts under a misapprehension of relevant facts, and any criminal intent may be excluded by such other intent as is warranted by the facts mistakenly believed to exist. If a man acts under such factual misapprehension, it is as if he acted outside the physical world as it really exists, hence the analogy with sleep and unconsciousness. Similarly, the forgetfulness of old age may constitute duress (Ber. 8b).

the deaf and dumb, lunatics, infants, and the blind

Apart from these forms of duress, which are applicable to all persons, there are special categories of persons who are wholly exempt from criminal responsibility for reason of the duress inherent in their infirmity or deficiency, namely, the deaf and dumb, the insane, and infants–all regarded in law as devoid of reason (Yev. 99b; Ḥag. 2b; Git. 23a; et al). Persons who are both deaf and dumb (Ter. 1:2) are equated with infants for all purposes of the law (cf. Tur, Ḥm 235:19), and the law exempting infants from criminal responsibility is derived from scriptural exegesis (Mekh. Mishpatim 4; Sanh. 52b, 54a, 68b). It is not quite settled at what age infancy ends for purposes of criminal law: there are dicta to the effect that divine punishment is not imposed for sins committed before the age of 20 (tj, Bik. 2:1, 64c: tj, Sanh. 11:7, 30b; Shab. 89b; Tanh. Koraḥ 6), and it is said that where Heaven exempts from punishment, men ought not to punish (cf. Sanh. 82b); on the other hand, with the age of 13 for the male and 12 for the female, the age of reason is reached (Nid. 45b; Yad, Ishut 2:1, 10), and there would no longer be any rational cause for exemption from responsibility. Some scholars hold that, while human beings are criminally responsible as from the age of 13 and 12, respectively, no capital punishment would be imposed until they reached the age of 20. However that may be, we find exhortations to punish infants by flogging, even below the age of reason, not because of their responsibility, but only in order to deter them from further crime (Yad, Genevah 1:10). As far as sexual crimes are concerned, an infant girl is deemed to be so easily tempted as to deprive her of any willfulness (Yev. 33b, 61b; tj, Sot. 1:2, 16c).

The insane is a person whose mind is permanently deranged (Yad, Edut 9:9). Monomaniacs who "go around alone at nights, stay overnight in cemeteries, tear their clothes, and lose everything they are given" (Ḥag. 3b; Tosef., Ter. 1:3), as well as idiots who are so retarded as to be unable to differentiate between contradictory matters (Yad, ibid. 10; Ḥm 35:10), are presumed to be insane. They are not criminally responsible for any of their acts (bk 87a; cf. Git. 22b), and it is–in contradistinction to modern systems of law–irrelevant whether any causal connection can be established between the disease and the offense: once insanity is shown, criminal responsibility is excluded. Persons who suffer from transient attacks of insanity, such as epileptics, are criminally responsible only for acts committed during lucid intervals (cf. Yad, ibid. 9; Ḥm 35:9). Apart from being devoid of reason, the insane are also devoid of will–hence any sexual offense committed by an insane woman is deemed to have been committed unwillfully (Mishneh la-Melekh, Ishut 11:8).

Opinions were divided among talmudic jurists in regard to the criminal responsibility of the blind (bk 86b; Tosef., Mak. 2:9), but the rule eventually evolved that blindness does not affect such responsibility any more than the obligation to obey all the laws; but a blind person who kills inadvertently is exempt from exile to a *city of refuge, because his act is near to duress (Yad, Roẓe'aḥ 6:14). The blind man differs from the deaf and dumb in that he freely expresses himself, while with the latter one never knows whether he is in possession of his mental and volitive faculties or not, and Jewish law does not recognize any presumption of sanity.

intoxication

Self-induced intoxication as such is not regarded as duress sufficient to exempt from criminal responsibility for acts committed while drunk (Tosef., Ter. 3:1), except where the intoxication amounts to the "drunkenness of Lot" (Gen. 19:33–35), that is to say, to virtual unconsciousness (Er. 65a).

ignorance of law

Talmudic law differs from most (if not all) other systems of law also in one further respect: namely, that ignorance of law is a good defense to any criminal charge. Not only is nobody punishable for an offense committed bona fide, i.e., in the mistaken belief that his act was lawful, but it is incumbent upon the prosecution to show that the accused was, immediately before the commission of the offense, expressly warned by two competent witnesses that it would be unlawful for him to commit it, and that if he committed it he would be liable to that specific penalty provided for it by law (Sanh. 8b; et al.; and see *Evidence, *Practice and Procedure). It is this antecedent warning that enables the court to distinguish between the intentional (mezid) and the unintentional (shogeg) offender (Yad, Sanhedrin 12:2 and Issurei Bi'ah 1:3), the latter category comprising not only those acting "with a claim of right" in ignorance of the law, but also those who by accident or misadventure achieved any criminal result without intending it (Yad, Roẓe'aḥ 6:1–9), or who achieved any result (however criminal) different from the criminal result they intended to achieve (ibid. 4:1). Within the category of unintentional offenders, a distinction is made between those nearer to duress and those nearer to criminality: the former acted without negligence, and their conduct was in no way blameworthy; the latter acted recklessly and in disregard of common standards of behavior (the most striking example is the man who maintained that it was perfectly lawful to kill). While neither is, as a matter of law, criminally responsible, the one nearer to criminality may not be entitled to resort to cities of refuge (Yad, ibid. 6:10) and is liable to be flogged and imprisoned for purposes of deterrence (Yad, ibid. 2:5 and Sanh. 24:4). Previous warning of illegality was held to be unnecessary where the nature of the offense or its planning rendered the warning impracticable, such as in cases of perjury (Ket. 32a) or burglary at night (Sanh. 72b), or where it was redundant, as in the case of the *rebellious elder (Sanh. 88b) or of recidivists (Sanh. 81b; and cf. Maim. Yad, Sanhedrin 18, 5). Some scholars held the warning unnecessary also where the offender was a man learned in the law (Sanh. 8b).

self-defense and rescue

Another important cause of exemption from criminal responsibility is the right and duty of defense against unlawful attack and of protection from danger; where any person (including an infant) pursues another with the manifest intent to kill him, everybody is under a duty to rescue the victim, even by killing the pursuer (Sanh. 8: 7; Yad, Roẓe'aḥ 1:6). This general rule has been extended to cover the killing of an embryo endangering the life of the mother (Yad, ibid. 9; and see *Abortion) and the killing of a rapist caught before completion of his offense, if he could not otherwise be induced to desist (Yad, ibid. 10). It would be as unlawful to kill the pursuer where the victim could be rescued by some other means (though even then the killer would not be guilty of murder (Yad, ibid. 13)), as it would be unlawful not to kill the pursuer if the victim could not otherwise be rescued (Yad, ibid. 14–16). Thus the nature of this defense is not just duress; here the criminal intent is superseded by the intent to fulfill a legal duty, and hence the defense is one of justification.

justification

In the more technical sense of the term, justification exempts from criminal responsibility the following three categories of persons: officers of the court who kill or injure any person (or property) in the course of performing their official duties (cf. Mak. 3:14; Yad, Sanhedrin 16:12); any person lawfully engaged in the execution of convicts (Lev. 24:16; Deut. 13:10, 17:7, 21:21, 22:21, 24); and any person who acts upon the advice or instruction of the court as to what is the law (Sifra, Va-Yikra, 7, 1–2; Hor. 2b, 3b).

[Haim Hermann Cohn]

Forms of Punishment: Biblical Law; Extra-Legal Punishment; "The King's Law"

The strict laws of evidence in Jewish criminal law, which, in order to convict, inter alia require that the transgressor be admonished by two competent witnesses before committing the transgression, pose great difficulties for a system of criminal justice that is intended to prevent criminal behavior. For the purposes of maintaining public order and of dealing with criminal behavior, two additional tracks of judgment and punishment exist. The first track is "punishment not prescribed in the law"–the granting of broad discretionary authority to a court of law to prescribe punishment in accordance with the exigencies of the time (regarding the implementation of that authority in the post-Talmudic era, see entry *Capital Punishment). The second track is "the King's Law"–a legal system parallel to that of Torah Law, which complements biblical law with judgment and punishment in cases in which punishment and execution in accordance with biblical law are impossible.

These two tracks grant considerable discretionary authority to the courts, both with regard to prescribing punishment in specific instances and with regard to the enactment of general regulations in criminal law. One important distinction between these two systems and the criminal system in accordance with biblical law is that, when biblical law prescribes a specific punishment for a particular transgression, the courts are not permitted to deviate from the prescribed punishment (Yad, Sanh., 14:1–3). In the system of extra-legal punishment and in the King's law, on the other hand, the judges are not hampered by any such restriction. For a comprehensive discussion on the various systems of judgment and punishment, and on the punishment policy of Jewish law, see entry *Punishment.

Ignorance of the Law

We explained above that the purpose of admonition is to inform the transgressor of the law, hence the conclusion that ignorance of the law may serve as a defense in Jewish law. In light of the distinction cited above between biblical law and the alternative punitive systems, some scholars explained the requirement of admonition in biblical law, in which the purpose of punishment is not necessarily the betterment of society, not as a vehicle for informing the transgressor of the law, but rather as part of the requirement that the transgression, as a religious transgression, must constitute an act of contempt and defiance of God's commandments. On the other hand, in the framework of punishment by virtue of the King's law, which is a Jewish law system of punishment designed for the betterment of society, as practiced de facto in Jewish communities at various times, no admonition was required. Moreover, in relation to various offenses, we find that ignorance of the law does not render a criminal act unintentional for all intents and purposes. For example, a murderer who did not know that murder is forbidden does not flee to a city of refuge; rather, his offense is considered "close to intentional" (Yad, Roẓe'aḥ 6:10). A woman who commits the sin of adultery becomes forbidden to her husband, even if she did not know that her actions were against the law (Resp. Maharik, no. 137). Against this background, there were those who differentiated between ignorance of the law with regard to commandments between God and man, which are considered as unintentional for all intents and purposes, and ignorance of the law when there is also a component of transgression against other individuals, in which ignorance of the law does not transform the offense into a normal unintentional transgression.

Factual Errors–Reasonable Error and Unreasonable Error

In addition to the above distinction within the category of ignorance of the law between an offense that is "close to intentional" and one that is "close to coerced," we should note a similar distinction within the category of ignorance of the facts. Jewish law distinguishes between factual errors that are considered reasonable, in which the individual ignorant of the facts is considered to be "coerced," and factual errors containing a component of negligence. In other words, had the individual checked his facts before committing the act, he would have discovered the true situation, and the error would have been avoided. In such a case, the individual committing the error is considered an unintentional transgressor (shogeg) and is therefore required to bring a sin-offering (Yad, Shegagot 5:6). With regard to murder, when the fatal act was committed as the result of a reasonable error regarding the facts, i.e., in a case in which we cannot hold the killer responsible in any way for his ignorance of the facts, he is considered as one who was coerced (anus), and will not even be required to flee to a city of refuge (see *City of Refuge). Conversely, when the unintentional act is the result of negligence, the perpetrator is required to flee to a city of refuge (Tosef., Makkot, 2:2). Regarding murder, even in cases of ignorance of the facts, there exists an additional category termed "an unintentional act close to an intentional one" (shogeg karov le-mezid), in which the killer was indeed ignorant of the facts, but he committed a dangerous act that was obviously potentially lethal, in which case he may not flee to a city of refuge (Mak. 8a; tj, Mak. 2, d; Meiri, Nov., Mak. 7b).

The Theoretical Justification for Killing a "Pursuer" (rodef) in Self-Defense

Amongst the authorities in Jewish law, we find a diversity of justifications for the lack of criminal responsibility of an individual who killed in self-defense, or in defense of another individual. One approach sees the fundamental justification in the very act of saving the intended victim, on the basis that the rescuer was commanded to save the victim, as all Jews are commanded to rescue others (Yad, Roẓe'aḥ 1:6). According to another approach, while the assailant's intention to do harm is indeed a necessary condition to justify killing him, the essential justification is in fact that the would-be murderer intends to commit a capital offense, and killing him before he commits the offense prevents him from actually committing it (Rashi, to Sanh. 73a). The difference between the two approaches is liable to manifest itself in a situation in which, for example, the pursuer himself is in mortal danger, e.g., if a building collapsed on him on the Sabbath. According to the first approach, the offender is no longer a threat to others, and we are therefore obligated to violate the Sabbath in order to save his life, as we would save the life of any individual. According to the second approach, on the other hand, the would-be attacker, in attempting to murder another human being, falls within the category of one whose life is not to be saved, and we may therefore not violate the Sabbath in order to save him (Rashi, Sanhedrin 72b). Another case in which an operative distinction between the two approaches could possibly arise is when the attacker is not punishable by law, e.g., if he is a minor or was himself coerced into attacking his fellow under threat of death. If the justification for killing the pursuer is to save the victim, the fact that the pursuer is not punishable is irrelevant; on the other hand, if the justification is that we wish to prevent the wrongdoer from committing an offense, it would not, apparently, be permissible to kill a pursuer who is not punishable by law (regarding this point, some legal authorities have differentiated between the prohibition, which applies equally to every human being, and the punishment, which apparently does not apply to every individual in every case; therefore, any pursuer, even if he is not punishable, intends to violate the prohibition, and he may therefore be killed). It seems that we must justify the permission to kill a potential pursuer by a combination of both principles: the need to save the victim, and the fact that the act of pursuit involves an offense punishable by death, as certain halakhic authorities have indeed maintained (Meiri, Bet ha-Beḥirah, Sanhedrin (Sofer edition), p. 266).

Self-Defense from Injury

Among halakhic authorities post-dating Maimonides, we find a discussion of the permission to inflict injury upon an individual who attacks and strikes another, even when there is no mortal danger. From the biblical verse, "Then thou shalt cut off her hand, thine eye shall have no pity" (Deut. 25:12), the Sages understood that a person whose life is being threatened by a pursuer must be saved, even by mortally injuring the pursuer (Sifri, Deut. 293, Yad, Roẓe'aḥ 7–9). Rabbenu Asher extends this principle to any case in which one individual strikes another; even if there is no mortal danger, any other individual is permitted to strike the assailant, if there is no other way to stop him (Piske ha-Rosh on bk, 3:13; see also Maharshal, Yam shel Shelomo, on bk 3:9). Rabbenu Asher's justification for this is in order to prevent the offender from committing the sin of striking another person (for the various justifications, see above).

Regarding the extent of striking that is permitted, the authorities ruled that the injury to the assailant should be minimal, and if it is possible to physically distance the assailant from his victim without striking him, that is what should be done. Physical violence beyond the extent that is necessary would be grounds for a legal suit by the assailant against the rescuer (Mordekhai, bk, 38; Rabbenu Asher, ibid.; Terumatha-Deshen, Pesakim u-Khetavim, 208; Sh. Ar., Ḥm, 421:13). A discussion of this matter can be found in the decision of the Supreme Court of the State of Israel in the Afanjar case (ca 89/78 Afanjar v. State of Israel, pd 33(3)141). The Court was called upon to decide the question of whether the defense of necessity could be invoked by the appellant, who had acted violently towards plainclothes police officers who broke into his apartment in the middle of the night. The appellant claimed that he did not know that the intruders were police officers, and that he thought that he was protecting himself and others in the apartment with him from bodily harm and humiliation. After an extensive discussion of the sources cited above, the Court (per Justice Menachem Elon) acquitted the appellant, stating that the principle of self-defense entitled him to act as he did, since his purpose was to prevent harm or injury to his own person and those of his friends (ibid., 157–158; for an extensive discussion of the ruling, see *Assault).

Application of Jewish Criminal Law in the Israeli Legal System

Justice Elon's reliance on Jewish law as a source for the interpretation of Israeli criminal law sparked a debate in the Supreme Court. The then President of the Court, J. Sussmann, while agreeing with Justice Elon's conclusion, wrote that "we cannot draw on Jewish law to help solve this problem. To be sure, Jewish law is a valuable cultural asset of our people, from which the legislator and the courts can both draw much inspiration. However, we are dealing with a specific directive in the realm of criminal law, which arose from a different source and has nothing in common with Jewish sources. I would be so bold as to question whether the application of Jewish criminal law would really be acceptable to the Israeli public. For example, would the majority of the Israeli public be prepared, in the year 1979, to execute an adulterous woman by stoning her, in accordance with Jewish law, or to execute the daughter of a priest by burning?" (p. 160 of the Afanjar decision, see above).

The answer to Justice Sussmann's question is that Jewish criminal law, as set out in the Torah, prescribes many death penalties for transgressions that no one would dream of punishing by death today. However, we must point out that even in Jewish law, actual execution of a capital sentence was considered a rare and extraordinary occurrence, to the point that capital punishment was almost never carried out (for an extensive discussion, see entry *Capital Punishment). As stated above, over the years the system of punishment in Jewish criminal law developed and adapted for its own use various means of dealing with the phenomena of criminal behavior, within the framework of the judicial autonomy that was granted to various Jewish communities. This development will be a subject for study and discussion in the context of applying the principles of Jewish law to the criminal system of Israeli law.

In the Afanjar case, the Court said as follows:

As we have seen, the principle of protecting others involves concepts rooted in public policy and in a social and moral view of the duty to come to the aid of another person who is in danger of bodily injury … this is the view reflected in the sources of Jewish law, where the rule, "Do not stand idly by the blood of your fellow" constitutes a fundamental principle of Judaism. In my opinion, fundamental concepts founded on moral attitudes and cultural values should be interpreted in light of the moral and cultural heritage of Judaism…. In light of the Law and Administration Ordinance (Amendment) Law (no. 14), 1972, which abolished the interpretational subordination of the Criminal Code Ordinance to the laws of England, and in light of the Penal Law, 5737–1977, in which section 4 of the Criminal Code Ordinance, prescribing subordination, was repealed, we are certainly obliged to provide our own independent and original interpretation, in accordance with the specific circumstances of each and every case, of fundamental principles such as the one that is before us (p. 155).

On specific criminal offenses in Jewish law, see, inter alia, *Homicide, *Rape, *Theft and Robbery, and *Bribery. On particular punishment, see, inter alia, *Capital Punishment, *Divine Punishment, *Flogging, *Fines, *Imprisonment, *Ḥerem.

[Menachem Elon (2nd ed.)]

bibliography:

et, 1 (1951), 162–72, 193–5, 303–5, 321–4; 11 (1965), 291–314; J.D. Michaelis, Mosaisches Recht, 6 vols. (1770–75); M. Duschak, Das mosaisch-talmudische Strafrecht (1869); H.B. Fassel, Ve-Shaftu ve-Hiẓẓilu: Das mosaisch-rabbinische Strafgesetz und strafrectliche Gerichts-Verfahren (1870); S. Mayer, Geschichte der Strafrechte (1876); B. Berger, Criminal Code of the Jews (1880); S. Mendelsohn, Criminal Jurisprudence of the Ancient Hebrews (1891; repr. 1968); G. Foerster, Das mosaische Strafrecht in seiner geschichtlichen Entwicklung (1900); H. Vogelstein, in: mgwj, 48 (1904), 513–33; J. Steinberg, in: Zeitschrift fuer vergleichende Rechtswissenschaft, 25 (1911), 140–97; I.S. Zuri, Mishpat ha-Talmud, 1 (1921); 6 (1921); S. Assaf, Ha-Onshin Aḥarei Ḥatimat ha-Talmud (1922); H. Cohen, in: Jeschurun, 9 (1922), 272–99; V. Aptowitzer, in: jqr, 15 (1924/25), 55–118; idem, in: huca, 3 (1926), 117–55; J. Manen, in: hhy, 10 (1926), 200–8; L. Kantor, Beitraege zur Lehre von der strafrechtlichen Schuld im Talmud (1926); M. Higger, Intention in Talmudic Law (1927); P. Dykan, Dinei Onshin, 1 (1938; 19552); 2 (1947; 19622); 3 (1953); idem, in: Sinai, 60 (1966), 51–62; H.E. Goldin, Hebrew Criminal Law and Procedure (1952); J. Ginzberg, Mishpatim le-Yisrael (1956); M. Minkowitz, Ha-Maḥashavah ha-Pelilit ba-Mishpat ha-Talmudi u-va-Mishpat ha-Mekubbal ha-Angli (1961); D. Daube, Collaboration with Tyranny in Rabbinic Law (1965); M. Elon, in: ilr, 3 (1968), 94–97; Elon, Mafte'aḥ s.v.Onshin, Dinei. add. bibliography: M. Elon, Ha-Mishpat ha-Ivri (1988), 1:65, 226, 297, 312, 421–25, 496, 815f; 2:992; 3:1464; idem, Jewish Law (1994), 1:73, 255, 353, 373; 2:515–19, 604, 998; 3:1200; 4:1739; idem, Jewish Law: Cases and Materials (1999), 213–62; M. Elon and B. Lifshitz, Mafte'aḥ ha-She'elot ve-ha-Teshuvot shel Ḥakhmei Sefarad u-Zefon Afrikah (Legal Digest) (1986), 2:329–45; B. Lifshitz and E. Shochetman, Mafte'ah ha-She'elot veha-Teshuvot shel Ḥakhmei Ashkenaz, Ẓarefat ve-Italyah (Legal Digest) (1997), 228–36; A. Dassberg, "Ha-Hatra'ah, Mekor ha-Din, ve-Taamo," in: Teḥumin, 12 (5751–1991), 307–26; A. Enker, Hekhre'aḥ ve-Ẓorekh be-Dinei Onshin (1977) 151–63; idem, "Yesodot be-Mishpat ha-Pelili ha-Ivri," in: Mishpatim, 24 (1994–1995), 177–206; idem, "Ta'anat i-Yedi'at ha-Din be-Mishpat ha-Pelili Ha-Ivri," in: Mishpatim, 25 (1995), 87–128; idem, "The Rationale of Self-Defense in Jewish Law," in: Pelilim, 2 (1991), 55–91; A. Kirschenbaum, "Mekomah shel ha-Anishah be-Mishpat ha-Pelili ha-Ivri," in: Iyyunei Mishpat, 12 (1988), 253–73; S. Albeck, Yesodot ha-Averah be-Dinei ha-Talmud (1997), 100–40; M. Drori, "The Concept of "Shegagah in Jewish Law: Mistake of Law and Mistake of Fact," in: Shenaton ha-Mishpat ha-Ivri, 1 (1974), 72–97.

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