Tuesday, December 08, 2009

More Fun with Jewish Law

I've been reading Maimonides and came across two things that I found interesting.

Part I

Suppose you kill someone who is dying of a lethal disease. Maimonides concludes that that isn't really murder, since he would have died anyway—while pointing out that you have to be really sure he was dying of a lethal disease.

Now suppose someone who is dying of a lethal disease kills someone else. If, being a helpful sort, he commits the crime in the presence of the court, he has committed murder and can be convicted of doing so. If, however, he only commits the murder in the presence of witnesses, there is a problem.

Witnesses, in this case or others, might lie. In other cases, one thing discouraging them from perjury is that if it is discovered that their false testimony led to the execution of an innocent defendant, they will be found guilty of murder and themselves executed. But if their testimony leads to the execution of an innocent defendant who is himself dying of a lethal disease, they won't be executed, because killing someone who is dying of a lethal disease isn't murder.

Since the witnesses are not at risk of execution for perjury, they might commit it, so their testimony can not be trusted—cannot be taken as sufficient evidence to convict someone of murder. So if someone who is himself dying of a lethal disease commits murder, and doesn't do it in the presence of the court, he cannot be convicted.

There is a certain beautiful logic to this very screwy result.

Part II

In Maimonides' discussion of what we would call tort law, he considers a number of borderline cases—cases where it is not clear whether the tortfeasor owes the victim a damage payment equal to half the damage or a quarter of the damage done. His conclusion in such cases is that the court can only award the plaintiff quarter damages. If, however, the plaintiff has seized property of the defendant amounting to half damages, the court will not make him give it back.

Part of what is going on here seems to be a rule holding that the court will not transfer property unless it has good reason to do so. It can't award half damages, because it isn't sure that more than quarter damages are owed. But it can't make the plaintiff who has acted on his own to collect half damages give part of the money back, because it isn't sure that half damages aren't owed.

A different way of looking at this is that it represents a hybrid of a conventional legal system, with action by the state or analogous authorities, and a feud system, in which parties act on their own, within some set or explicit or implicit rules, to enforce their rights. I get the same impression looking at the legal rules applied to killing. Under some circumstances, a killer cannot be convicted and punished by the court. But the "avenger of blood," the kinsman of the victim who, in a feud system, would be expected to avenge the killing, can kill the killer with impunity. His right to do so is complicated by various rules, in particular the existence of cities of refuge; once the killer gets to one of those he is in theory safe.

I should probably add that Maimonides is writing at a time when there are no cities of refuge and have been none for a thousand years or so. Substantial parts of his legal code describe what the rules were back when the kingdom of Israel was a going concern and the Temple still standing. One possible explanation is that he believed that that situation was going to be reestablished in the not too distant future—so legal scholars ought to be prepared.


Jonathan said...

"Suppose you kill someone who is dying of a lethal disease. Maimonides concludes that that isn't really murder, since he would have died anyway ..."

We're all dying of a lethal disease, we're all going to die anyway. It takes decades for some, days for others, but I see no fundamental difference.

I realize that I'm going off at a tangent from the legal point that interests you, but I think this is worth mentioning.

PlanetaryJim said...

No, Jonathan, there is no empirical evidence for your death. You have rumors, and some evidence that others like you have died in the past. But there's no way to be sure that you'll ever die.

Technology improves all the time. New discoveries are frequently made. You might live forever.

iceberg said...

The first point that Maimonides brings down is found on page 78a in Tractate Sanhedrin of the Babylonian Talmud. As far as I can tell, he is in full agreement as to what is written there.

Just a few points- the person who has this lethal disease was judged by doctors to die within 12 months from his ailment. He is known as a terefah the same title used for an animal which is unfit for shekhita (ritual slaughter) and is therefore unkosher, and in Ashkenazic slang is treif.

The case of perjuring witnesses is known as Ed'eem Zomamim and is a chok-- one of the few laws given in the Mosiac code without an explicit reason (and supposedly ones to which humans cannot logically fathom in totality, and at best we can attain a mere 'taste' of.)

And as Rashi explains in his commentary in Sanhedrin, the reason why the witnesses are not believed is because it is unacceptable testimony since all testimony needs to be able to be applied to them in case of perjury. And since the fellow they wish to testify about is "considered dead", they couldn't be said to try to perjuriously "kill" him.

Jonathan said...

PlanetaryJim: thanks for the reassurance, but there's no more evidence that the man with the "lethal disease" is going to die. Such people have been known to recover and live as long as other people.

Roger Collins said...

Part II, 2nd para, reminds me of a common saying, possession is 9 10ths of the law.

Milhouse said...

Correction: he doesn't say "it isn't really murder". A court is not authorised to punish this degree of murder, but that doesn't make it "not really murder". On the contrary, he says that the murderer is "immune from human justice", implying that he is subject to a Higher Justice.

Jonathan said...

PlanetaryJim: Come to think of it, the score so far is countless billions of people known to have died, and not a single person known to have lived as long as 123 years. Granted, the situation may change fundamentally in the future; but, until that change comes, our chances of living forever look as close to zero as you can get.

Even if aging and all kinds of disease are vanquished, accidental death will get you sooner or later.

So eat, drink, and be merry, because... whoops, who is that skeletal figure?