|
|
|
|
Roger asked for a clarification of the duties of the witness in ancient Jewish jurisprudence (with a hint that I should be the one to give it).
What Roger wrote is correct, but it would be very misleading indeed to apply this to the situation that was being discussed in the original thread.
Rabbinic jurisprudence knows of two kinds of action at law and they are determined by the result prescribed if the accused is found guilty. There is one process if the accused may pay with his life and there is a different process if all that will happen is that he will have to cough up some money. (There was no incarceration as we know it, except in one case which will be mentioned below.)
The bible is very 'liberal' with the death penalty, handing it out right, left and centre. The rabbis found this very worrying. They could not change the law, but they could interpret it almost out of existence. In rabbinic jurisprudence the witnesses are, in fact, the prosecution: if there are no witnesses no charge can be brought. The bible requires two witnesses to a capital crime, one never being held to be sufficient. The evidence offered by these two witnesses must be substantially identical under cross examination (by a panel of 23 judges), and Roger is quire right that they must actually have witnessed the crime being perpetrated. However, it is not sufficient for them to have witnessed the crime; they must also be able to testify that they warned the accused in advance that he (or she) was about to commit a capital crime and that the accused acknowledged this fact. (This was in order to establish the accused's awareness of what he was doing.)
Obviously, these conditions could never be met under normal circumstances and so no one could ever be convicted of a capital crime and so there could be no executions - but biblical law was left intact. When a capital charge was brought and the judges thought that the circumstantial evidence was compelling the accused was imprisoned for life.
However, none of these rigourous rules of evidence applied when the expected punishment was a fine (and the fine was always paid to the plaintiff, never to the State). Thus according to Jewish law it would have been enough for the owners of the store referred to in the parent thread to charge the lad with theft. If the three judges found the evidence to be compelling the lad would be required to pay the store a fine equivalent to 200% of the value of what was stolen, in this case, a paltry sum surely. (Incidentally, if it should later be discovered that the judges were in error they must make retribution from their own pockets, because the plaintiff got the money legally and may well have used it up!)
Roger is wrong that witnesses were advised to remain silent. However, in the case discussed in the parent thread there were no witnesses, because the store (the plaintiff) had not apprehended the thief. Since the evidence that Timmy would have been able to offer was of the flimsiest nature it would never have convinced a court to condemn even if the lad had been apprehended.
Rabbinic jurisprudence in connection with capital crimes has been in abeyance for 2000 years! In order to avoid misunderstandings: the law of the State of Israel today is derived mainly from British law, unless the Knesset has legislated otherwise. The main change that has been legislated is that there is no jury system: the judges are there to judge both fact and law.
Apologies for a long and boring post, but it was requested.
(Oooops: forgot to sign it.)
J F R
[Updated on: Sun, 13 May 2007 07:40]
The paradox has often been noted that the United States, founded in secularism, is now the most religiose country in Christendom, while England, with an established church headed by its constitutional monarch, is among the least. (Richard Dawkins, 2006)
|
|
|
|
|
[  ] |
A Place of Safety
Search
Help
Register
Login
Home
