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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)
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Ah, I was sure you would come thru on this. It had been a while since I had even thought of this, so I was sure I was a bit rusty.
If you stand for Freedom, but you wont stand for war, then you dont stand for anything worth fighting for.
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JimB
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Likes it here |
Registered: December 2006
Messages: 349
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Long, perhaps. Boring, certainly not. Interesting, definately. Thank you for sharing your knowledge with us. Education is always worthwhile and can come in many guises.
JimB
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cossie
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On fire! |
Location: Exiled in North East Engl...
Registered: July 2003
Messages: 1699
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That was certainly very interesting and, to me, illuminating!
In many respects, I admire the collective skill of the Rabbinical establishment in re-interpreting the Law to take account of changing social conditions. On the other hand, I've always had difficulty with the underlying philosophical concept: if it's possible to re-interpret a principle to the extent that it effectively ceases to apply, why it it impossible to explicitly accept that the original principle was ill-founded?
But then again, there are some arguments wise men will carefully avoid!
For a' that an' a' that,
It's comin' yet for a' that,
That man tae man, the worrld o'er
Shall brithers be, for a' that.
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daffey44
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Getting started |
Location: USA
Registered: March 2004
Messages: 23
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The Law (Torah) is divinely inspired. Some say it was dictated by God, Moses being the recorder. ("From the mouth of God to the hand of Moses" is how the Torah is described in a prayer after a reading from it.) Thus, not one word can be changed. However, the rabbis acknowledge that there are inconsistencies in the Torah.
One of the most important commandments is in Deuteronomy 16:20: "Justice, justice shalt thou follow, that thou mayest live, and inherit the land which the Lord thy God giveth thee." When another commandment seems unjust, the rabbis tell us that we must try to reconcile it with the commandment for justice. If that is not possible, the commandment for justice must prevail. Similarly, when other inconsistencies are found, a commandment for the welfare of others must prevail over a harsh commandment.
This is not hypocrisy. This is acknowledging that God loves us all and wants us to deal humanely with each other.
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timmy
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Has no life at all |
Location: UK, in Devon
Registered: February 2003
Messages: 13800
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daffey44 wrote:
> This is not hypocrisy. This is acknowledging that God loves us all and wants us to deal humanely with each other.
Perhaps not "loves" per se. I suspect that a deity simply respects our decisions and gives us the opportunity to make them. If we were made by such a deity and given free will then we are given choices to make. Part of that is doubtless the creation of inconsistencies to see how we deal with them.
Alternatively one might say quite easily that a load of men at different times made a load of rules, and, like any bunch of people, they were not consistent and did not research prior decisions properly, or rescind them properly. This neither requires a deity nor denies the existence of one.
Author of Queer Me! Halfway Between Flying and Crying - the true story of life for a gay boy in the Swinging Sixties in a British all male Public School
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Re: Rabbinic Jurisprudence 
