Tookie – Response to Joe

letter-447577_1280

Joe –

You came closer than anyone to denting my argument. (UCLA Law has done well by you. You are hereby entitled to an extra piece of kugel next time you come for Shabbos.)

Close, but not close enough.

Let’s say, arguendo [Note to real people out there: legal beagles like to throw Latin around. Inter alia. You know], that Tookie was guilty of the exact crime he was executed for. Justice is served; the law behaved exactly as it was designed. So what? Essentially, I was making two points. Firstly, the law may have worked, but it is a bad law according to HaKadosh Baruch Hu’s voiced directives on how a non-Jewish court should operate. Egregious violators of the law should not have a voice in the court, period. You asked me what standard I would employ – you’ve got it. That’s what halacha says, to the best of my knowledge. Tookie’s accusers may never have been shown to be liars, but that is beside the point. Evildoers don’t belong on the witness stand. They will be unreliable in other cases. This is enough to ban them in all. Using them cheapens the conduct of the court, and the way it is perceived by the people. (Again, I am not arguing that the court may decide to use an extralegal standard for the protection of society. I presented Rabbi Bleich’s hesitations about even that, and admitted to Rav Moshe’s seeming acceptance. But this doesn’t tell us which standards should be relaxed. Professor Broyde suggested that some kinds of circumstantial evidence be admitted when they would rise to the level of acceptability of proof in monetary matters in halacha. The ballistics test on Tookie’s gun would never do. Who said he fired it? Neither would placing him at the scene. That was not the issue. Who fired the gun was. Compare this to Sanhedrin 37B, and the mother of all umdena demuchach (overwhelming circumstantial evidence) cases. There, the perpetrator chased the victim into a closed room, and was found over the body, with the bloody knife in hand.)

Secondly, and perhaps more importantly, I was trying to show that many people react to complex social issues with incomplete knowledge or consideration of Torah sources. I may very well be shown to be wrong about the license given to non-Jewish courts. But so many of our readers did not know that there is a sugya about this issue in the Gemara, and in the Rishonim. (Anyone with access to a copy of Chemdas Yisrael by Rav Meir Don Plotzki – one of the most complete lengthy commentaries to Rambam Hilchos Melachim – may shed some light on this.)

At this point, it is probably time to bid farewell to Tookie, wherever he may be. On to other topics.

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4 Responses

  1. Miriam Levinson says:

    I do not see how a Noahide can obey the requirement to establish a court. Almost every Noahide law is unconstitutional – idolatry is a protected American right; blasphemy is protected by the right to free speech; sodomy is, in some states, part and parcel of a State-sanctioned marriage!; adultery almost defies definition because Jewish women divorced without a get are (legally) free to remarry – to marry a Jew or gentile; how would murder be defined in a land which shudders at the thought of restricting any form of abortion, partial-birth or otherwise? a land with a Supreme Court which just approved assisted suicide? I would like to see the ever min ha’chai legislation before congress, but I wouldn’t be optimistic. OK, so parts of the law prohibiting theft could be implemented, but that’s about it. Therefoe, by what process could a US citizen set up a court to enforce the other six laws? Next subject: juries. Where in Torah law is there any suggestion of a jury, people off the street with all their personal biases, being employed to in the role of judges? I admire, but don’t envy a ben Noach. It’s easier to be a Jew. Shalom, Miriam

  2. Yitzchok Adlerstein says:

    Toby –

    The standards I am talking about only apply to executions. The innocent that you talk about can be protected by sentencing people to long jail terms. I don’t thik that there is anything in the sugya that precludes courts from incarcerating people on whatever standard of evidence they choose.

    To the best of my knowledge, the lattitude that Bnei Noach courts have in setting up their system only applies to monetary matters. Even there, the Rama and others disagree, although they are in the minority. I know of no such concensus regarding dinei nefashos. I’d like to hear about it if it exists, and see if whoever thinks it exists can get Rabbi Bleich to change his mind.

  3. ja says:

    “But so many of our readers did not know that there is a sugya about this issue in the Gemara,”

    What sugya in gemara are you referring to? Where does the gemara discuss what standards of evidence b’nei noach have to use in dinin?

  4. Toby Katz says:

    “Firstly, the law may have worked, but it is a bad law according to HaKadosh Baruch Hu’s voiced directives on how a non-Jewish court should operate. Egregious violators of the law should not have a voice in the court, period.”

    Not allowing criminals to testify against someone else in court would rapidly empty the jails. It would also reduce our cities — ESPECIALLY the inner cities where the poor and minorities live — to jungles.

    It is the poor and minorities (overlapping categories, I know) who suffer most at the hands of the brutal and lawless among them. They have a right to be protected by police and the judicial system and not to be abandoned to the law of the jungle.

    As a Torah Jew, a conservative, and a nineteenth century classical liberal, I believe the first duty of government is to protect the innocent. Disallowing testimony from bad guys would be a huge step in the direction of massive injustice, with the most defenseless citizens becoming the first victims. The rich can build walls and hire security guards. The poor depend on the government to protect them.

    The consensus of opinion that I am aware of (my husband used to teach Noahide classes in Tennessee) is that Noahides have broad latitude to use the standards of evidence they find appropriate. The seventh Noahide law is that they have to establish courts of justice. They do not have to abide by the same laws of evidence that Jews have to apply in a halachic court.