Thursday, May 07, 2009

Dan LeKaf Zechut, and Circumstantial Evidence

Over at Wolfish Musings, he has a discussion with Tuvia and Freelance Kiruv Maniac as to whether a Jew being sentenced to prison for murder in America, where the courts (obviously) do not operate on halachic rules, is a miscarriage of justice; and whether one should not judge that the person is guilty until he or she has been convicted by a bet din.

Three excerpts:
This is exactly the problem: She is not being judged by the Torah standards which she is entitled to by halacha. Even the extra-legal ways of getting rid of people has its rules.
All what I wanted to say is that just because court had found then guilty does not make my opinion as a frum Jew to believe that they are guilty.
I know that such court does not exist today, and for that matter they are being judged by a goishe court, but their decision is nothing for me to the point when tomorrow they will go free because they will win the appeal I will have absolutely no problem to become Mechusonim with any one of them!
While there is a principle of being dan everyone lekaf zechut, there are particulars of this, involving the previous righteousness of the individual, and the probabilities involved. In American law, there is a legal definition of "guilty" vs. "not guilty," which people often confuse with guilt vs. innocence. I wonder whether traditionally such carries over to Jewish law as well.

It seems to me that the gemara in Sanhedrin 37b should be exceptionally relevant, because it deals with judging someone guilty, outside of court, on the basis of circumstantial evidence, and with how to theologically consider non-Jewish courts imposing sentences upon people. Thus:
Our Rabbis taught: What is meant by BASED ON CONJECTURE? — He [the judge] says to them: Perhaps ye saw him running after his fellow into a ruin, ye pursued him, and found him sword in hand with blood dripping from it, whilst the murdered man was writhing [in agony]: If this is what ye saw, ye saw nothing.

It has been taught: R. Simeon b. Shatah said: May I never see comfort if I did not see a man pursuing his fellow into a ruin, and when I ran after him and saw him, sword in hand with blood dripping from it, and the murdered man writhing, I exclaimed to him: Wicked man, who slew this man? It is either you or I! But what can I do, since thy blood [i.e., life] does not rest in my hands, for it is written in the Torah, At the mouth of two witnesses etc., shall he that is to die be put to death? May he who knows one's thoughts exact vengeance from him who slew his fellow! It is related that before they moved from the place a serpent came and bit him [the murderer] so that he died.

But should this man [have died] through a serpent? Did not R. Joseph say, and so too it was taught in the school of Hezekiah: From the day the Temple was destroyed, although the Sanhedrin was abolished, the four modes of execution were not abolished? They were not abolished, [you say,] but surely they were! — But the law of the four modes of execution was not abolished: He who is worthy of stoning either falls from the roof, or is trampled to death by a wild beast; he who merits burning either falls into the fire or is bitten by a serpent; he who is worthy of decapitation is either delivered to the [gentile] Government or brigands attack him; he who is worthy of strangulation is either drowned in a river or dies of suffocation? — I will tell you: that man was guilty of another crime, for a Master said: One who incurs two death penalties imposed by Beth din is executed by the severer.
Now, how could Shimon ben Shetach, a Tanna, accuse a fellow Jew of being a rasha and having killed the man. As he admitted, all there was was circumstantial evidence, of the type such that a bet din could not convict. How could he call him a rasha, absent the conviction of a court? Had he not heard of being dan lekaf zechut?!

Furthermore, we see from the latter statement that being delivered into the hands of the government and convicted for something can be taken Hashem meting out the appropriate punishment, just as in the case of the serpent who bit the murderer. Of course, it could also be punishment from Heaven for some other misdeed. If so, is it necessarily so that we must should properly anguish when we see someone who is almost certainly guilty convicted and sent to prison by the American government? Is it possible that feeling that Hashem is arranging the world to still punish the guilty, outside the bounds of a bet din, truly illegitimate? This gemara would appear to support this attitude as possible.

(The seventh perek of Bava Metzia is probably also a relevant source.)


michael said...

What are the provisions in halacha for dealing with murderers without edim vehatra'a?

Jeremy said...

ב"ד מכין ועונשין שלא מן הדין.

That's the answer to michael. They'll stick him in a cell and feed him grains until his stomach blows up.

As for the post, there's a famous drasha of the ran who talks about the torah legal system in exactly the opposite terms that this person claims. He says that the torah's rules are such that they cannot tell you the truth of what happened. Many guilty people will in fact go free under formal laws such as the need for two (non-pasul) witnesses.

Mississippi Fred MacDowell said...

>Rabbi Shimon ben Shetach

Great post, as usual, Josh. But please permit me to pedantically point out that Shimon ben Shetach was not a rabbi; gadol me-rabban shemo, he lived before the title came into use and is referred to as Shimon, not R_bbi Shimon (except for three or four anachronistic/ interpolated? instances), in rabbinic lit.

By the way, all 5 volumes of the original Shadal chumash are now available here. Always worth checking, as some of his sources are omitted in the Schlessinger edition; plus, you get his commentary via his Italian translation.

joshwaxman said...

thanks. and thanks for the correction, and for the link to Shadal. should prove useful.

btw, the gutnick edition turns out only to be for one chumash (shemos, IIRC) and for the haftarah.



Blog Widget by LinkWithin