Criminal Justice in Exigent Circumstances

As noted in the comments to the previous post, which discussed capital punishment in Jewish law, there are some situations in which the usual laws of criminal procedure and punishment are disregarded due to necessity. This notion is also briefly discussed in the letter of Rabbi Moshe Feinstein, quoted in that post. Essentially, there are some times when Jewish courts exercise “extralegal” authority in dealing with criminals when “hasha’ah tzricha lekach” – when required by the moment. The term “extralegal” is used here to describe methods not mentioned in the Torah.

This concept is illustrated by the following statement of Rebbi Eliezer ben Yaakov (Yevamos 90b; Sanhedrin 46a; as explained by Rashi):

I heard from my teachers that courts may administer corporal and capital punishment, even though such punishment is not prescribed by the Torah. They cannot violate the Torah based on a whim, but they may act to protect the Torah if the situation requires. For example, a man once rode a horse on Shabbos during the period of persecution by the Greeks, when the observance of mitzvos was lax. Although he only violated a rabbinic prohibition, he was executed to enforce the observance of mitzvos. . . .

Besides for administering punishments not prescribed by the Torah, as described by Rebbi Eliezer ben Yaakov, batei din (Jewish courts) may also disregard various procedural protections generally afforded to criminal defendants.  An example of this is when Shimon ben Shetach executed 80 women in one day for practicing witchcraft. See Sanhedrin 45b. Generally, a beis din may execute no more than one person per day, to ensure that the judges spend ample time attempting to vindicate the accused. See Rashi, ad loc., s.v. Ein Danin.  However, since the practice of witchcraft was rampant at the time, Shimon ben Shetach understood that it was necessary to disregard this procedural safeguard in order to protect Torah observance. He therefore judged and executed all 80 women in one day, instead of prosecuting each one on a different day, so that no one would inappropriately attempt to save the accused from certain death. Id. Similarly, other procedural rules that would ordinarily protect a criminal defendant may also be disregarded in cases of exigency, such as the requirement that accused be warned by two witnesses and that confessions of the accused are inadmissible as evidence against him. Responsa Rivash § 234.

As for the rationale underlying this rule, the Rashba explains that if courts were restricted in all circumstances to the punishments and processes prescribed by the Torah, criminals would be undeterred, and society would not be able to function. Responsa Rashba, vol. 3, § 393. Although such lawlessness was historically uncommon in a Torah-based society, due to religious self-enforcement of the Torah’s laws, there were certain times when emergency action was required. Rabbi Moshe Feinstein, Igros Moshe, Chosen Mishpat, vol. 2, § 68.

In upcoming posts, I hope to address other examples of criminal justice in exigent circumstances, such as the kippa and the authority of a Jewish king to maintain societal order.

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Filed under Criminal Justice, Halacha / Jewish Law

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