Who will pay the price? - Haaretz

Subscribe to Print Edition

Thu., January 10, 2008 Shvat 3, 5768

Israel Time: 17:41 (EST+7)

web haaretz.com

Back to Homepage

Rosner's Domain

Diplomacy

Defense

Jewish World

Opinion

National

Print Edition

Advertising

Books

Arts & Leisure

Business

Real Estate

Easy Start

Travel

Week's End

Anglo File

Last update - 17:38 10/01/2008

Who will pay the price?

By Jacob Weinroth

Tags: Jewish Law, Punishment

Ikarim Bemishpat Haplili Ha'ivri (Fundamentals in Jewish Criminal Law) by Arnold Enker Bar-Ilan University Press ("Hebrew"), 475 pages, NIS 190

Every creative effort reflects the personality of its creator, sometimes outright, sometimes implicitly. This book - an exceptionally fine work on a subject that has not previously been thoroughly studied, apart from in an isolated article here or there - is the work of one of the last of a generation of giants who are slowly becoming extinct.

Arnold N. Enker is a man who studied at the finest Lithuanian yeshivas, but also at the leading universities of the West. As he writes in his introduction: "I have been privileged to live in two worlds: the world of Torah and the world of science. I learned Torah in my youth with the scholars of Lublin, and later the scholars of Telz, Slobodka and Brisk. I studied law with Fuller and Freund, Hart and Sacks,

	Advertisement

Baker and Brown." Sadly, few can begin their books this way or make similar claims.
In the interests of proper disclosure, I confess that I know the author well. Enker is a creative genius and legal prodigy, who integrates theories from various fields using an interdisciplinary approach. He moved to Israel from the United States, and founded Bar-Ilan University's faculty of law, where he served as dean from 1970 to 1976, leaving an imprint that remains until today.

In this book, Enker explores mishpat ivri ("Jewish jurisprudence") from a dual perspective - from inside, through the eyes of a Jewish scholar, and from without, with the perspective of a contemporary jurist. The author has focused on selected issues, each of which could fill several books, and we can only be thankful that he has, considering how vital, yet how rare it is, that Jewish law be viewed in a broader perspective.

The first issue in the book is perhaps the most important: the enigma of Jewish criminal law. This aspect of Jewish jurisprudence is mysteriously vague, and the question is why. In fact, one finds very few social misdemeanors ("that is, crimes committed by humans against other humans") identified in Jewish law, and attempts to penalize offenders on the basis of evidence are systematically blocked by the impossibility of satisfying the requirements. ("Murder, for example, must have been observed by two witnesses, both of whom have to have seen the crime in the process of being committed, and both of whom are required to have warned the suspect of the gravity of his actions, among other things.") This phenomenon cannot be characterized as a lacuna. A legal lacuna is created by the limitations of human thought, by the failure of lawmakers, as brilliant as they may be, to imagine every possible scenario.

As Plato says in his dialogue The Statesman: "... the law does not perfectly comprehend what is noblest and most just for all and therefore cannot enforce what is best. The differences of men and actions, and the endless irregular movements of human things, do not admit of any universal and simple rule. And no art whatsoever can lay down a rule which will last for all time."

But in the case of mishpat ivri, it is not a matter of oversight. Societies establish codes of criminal law before they address other branches of jurisprudence: Criminal law is first and foremost a product of fear of social deviants and the need to create a defense against them. It is illogical to assume that this omission is inadvertent. Enker's approach to this problem is based on the kind of multi-level analysis that is familiar from halakha ("Jewish religious or ritual law"). Different strata include the "law of the sovereign," or the king, as one possible concretization of sovereignty, and the power of a court to impose punishment that is not cited in the Torah.

Settling the score
Enker believes that at its most basic level, the goal of Jewish criminal law is not social reform but something entirely different - settling the score with the religious rebellion inherent in the breaking of the law. Social reform is dealt with on a different stratum. In his analysis of these strata, Enker also explores the jus gentium ("the universal version") of mishpat ivri, known as the Noahide laws, and the scope of authority of the sovereign.

Enker does a brilliant job of honing the issues, but I disagree with his conclusion. In my opinion, the complex structure of Jewish criminal law acts as a warning sign to the observant Jew to beware of the intuitions employed by society when it sentences a criminal offender. Prejudices born of fear are so strong that up until recently, monstrous punishments were meted out even in Western countries on the basis of "evidence" concocted as a cover-up for society's need to find some guilty party, take revenge, and rid itself of the fear and hatred percolating inside.

Jewish criminal law also comes to show us that unlike other branches of law, by which we judge the act and investigate an isolated but concrete incident that has taken place within the fault lines of physical space, in criminal law we are judging a human being, which goes beyond the confines of the corporeal world. In criminal law, actus reus ("the wrongful deed") is not enough. We explore both the guilt of the offender and his mens rea, that is, his mental state and intentions.

This world of the "inner man" is by definition closed and impenetrable, and cannot be subjected to conceptual reduction. The existence of a stratum of law that "resets" the punishment option, alongside strata that surrender to the need for social reform, creates a balance that we must always keep before our eyes in the sphere of criminal justice. In this way, criminal law becomes a kind of "stop sign" that keeps us from blindly following our instincts about what is natural and right. Criminal law is a tragic imperative and doomed to failure. By nature, it is imperfect and biased, and yet we cannot do without it.

Other chapters in Enker's book explore the defenses recognized by mishpat ivri. Here again, Enker plunges into the depths of Jewish law armed with the categories of general jurisprudence - "mistake of fact," on the one hand, and "mistake of law" on the other. Each helps to clarify the other. Through this interdisciplinary comparison, Enker achieves insights into the rationale of legal defenses that have never been noted before.

In contrast to the absence of social misdemeanors, mishpat ivri contains an unusually rich array of material in the sphere of legal defenses and tragic cases where one is forced to choose the life of one person over that of another. In this realm, mishpat ivri is amazingly expansive and profound. One would be hard pressed to find another code of law addressing such hypothetical situations as the Hazon Ish's "case of the arrow." A hand grenade is thrown at a group of people, and someone is able to deflect it one way or another. What should that person do? To what side should he deflect it? Are there any criteria? Might it be better to do nothing at all?

Where else is there a legal system that has given thought to cases like the "baby in the bunker"? The cries of a baby are liable to give away the hiding place of Jews hiding from the Nazis. Should the baby be smothered? Must the baby be smothered? Or should they all die rather than kill the baby? It would be hard to find a legal system that deals in such depth with even a ?simple? case of two travelers left with one canteen of water. Is it better for one to drink and watch his friend die, or for both of them to die?

So, in effect, this brings us full circle. The enormous richness of Jewish law in other realms is proof that the almost total absence of social crimes in the first and most basic stratum of Jewish criminal law is deliberate. Enker has written a book accessible to all educated readers, even those who are not experts in mishpat ivri. It is clear and intelligible, but also painful. It reminds us of a neglected and forgotten culture, and of what has been lost along the way in the renaissance of the Jewish people.

Dr. Jacob Weinroth is an attorney.

Bookmark to del.icio.us


	'Bush go home'
	Israeli Arab parties join leftist protests against the Bush visit.


	Peace overture
	Syria says it isn't seeking a military solution with Israel.

Today Online


	Bush: I believe we will reach peace deal by the end of 2008
	Responses: 180


	Libya thwarts Security Council censure of Shlomi missile strike
	Responses: 69


	Shavit: If they want a state, Palestinians must undergo ideology change
	Responses: 100


	W. Bank Palestinians brace for visit by 'that criminal' Bush
	Responses: 47

Rosner's Domain

What does "change" mean for Israel?

How many states between the Mediterranean and the Euphrates? (WTR)

New poll: Who is the candidate that will have better policies for Israel?

Rosner's Guest: Israel at present is not a light unto the nations

Rosner's Mailbox: Anti-Semites within Ron Paul's camp

More Headlines
17:25 Bush appoints U.S. General to monitor road map peace plan


13:56 ANALYSIS: Palestinians believe Bush won't pressure Israel


16:18 Israeli envoy to U.S.: All options are on the table regarding Iran


15:53 Manchester United invited to play during Israel's 60th anniversary celebrations


14:26 British magazine names Israeli model Bar Refaeli 'Body of 2008'


15:24 Montenegro air base that played role in Israel's birth under threat


14:13 Ministers to present PM list of Palestinians to free for Shalit


15:55 From Amsterdam to Tel Aviv: Israel's 2nd city promotes bicycling


16:15 Bnei Brak man accused of assaulting six minors he seduced online