Blackstone, Meet Maimonides

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A colleague at Loyola Law School, who happens to be the President of the Board of the Southern California ACLU, was surprised when I told him that Jewish Law had Blackstone beat by hundreds of years.

One of the pillars of Western criminal procedure is William Blackstone’s maxim “Better that ten guilty persons escape than that one suffer.” It has long served to insure many safeguards within the law to protect against even a remote possibility of convicting inappropriately. It has become a bit of a lightning rod for criticism of a legal system that some people perceive as overly protecting the criminal at the expense of the victim.

Blackstone gets too much credit. The Rambam had it first. And he is even more extreme in protecting the criminal, because he opts to set a thousand guilty criminals free in place of Blackstone’s ten. It’s right there in Sefer HaMitzvos, Transgressions, #290. (Don’t look for it in one of the standard printings of the first volume of the Yad, which often includes Sefer HaMitzvos. You won’t find it. If you check the more accurate versions of Sefer HaMitzvos, e.g. Rav Chaim Heller’s, you will find the phrase.

For the purist, Alexander Volokh, brother of the ever-whimsical and ever-brilliant Eugene Volokh (of the Volokh Conspiracy) published an extremely irreverent law review article on the matter that you can find at http://www1.law.ucla.edu/~volokh/guilty.htm#6. He finds an even earlier source in Aristotle, but I think he missed the point. Aristotle’s version is much wimpier. The venerable Greek wrote “every one of us would rather acquit a guilty man as than condemn an man as guilty… for when there is any doubt one should choose the lesser of two errors.” What Aristotle’s version lacks is the point that is front-and-center today – that the law must lean heavily to the side of acquittal, even when mistakes will be made in the proportion of a thousand to one. The Ramban uses his maxim to explain why Jewish law banishes all circumstantial evidence from criminal proceedings, no matter how compelling. We simply cannot take any chances that by opening the door to judgment calls, one day we will convict the wrong person through faulty judgment.

I wonder if it will get the Rambam a posthumous award by the ACLU.

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