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Published online by Cambridge University Press: 24 April 2015
Although Biblical law ordains the death penalty for some thirty-six offenses, and whipping is the punishment prescribed for many more, it would be rare in fact for such Biblical punishments to be inflicted under Jewish law. Strict procedural and substantive requirements limit these mandatory Biblical penalties to cases of the most willful and deliberate rebellion against God's rule in the universe. Thus, for example, one prerequisite of these Biblical punishments is that the offender be warned in advance—immediately before he commits the offense - that the act he is about to perform is a violation of God's law and that it will be punished by death or by whipping, as the case may be. Further, for the death penalty to be applied, it is not enough that the offender be warned or even acknowledge that he has heard the warning. Rather, he must also affirm his awareness that God has forbidden the intended conduct and has ordained the specified punishment and he must declare expressly that he will commit the offense nevertheless, thereby “surrendering himself unto death.”
1. See the list in Maimonides, , Torah, Mishneh, The Book of Judges, Laws Concerning the Sanhedrin 15:10–13 (3 Yale Judaica Series, The Code of Maimonides (1949)Google Scholar) (hereinafter: “Maimonides, Sanhedrin”).
2. Maimonides counts a total of 207. Id 19:1-4.
3. See Enker, Arnold N., Aspects of Interaction Between the Torah Law, the King's Law, and the Noahide Law in Jewish Criminal Law, 12 Card L Rev 1137, 1144 (1991)Google Scholar. I have developed this theme in much greater detail in my Hebrew article, Foundations of Jewish Criminal Law, 24 Mishpatim 177 (1994)Google Scholar.
4. Maimonides, Sanhedrin 12:1-2 (death penalty); id 16:4 (whipping) (cited in note 1).
5. Id 12:2.
6. For example, Silving, Helen, Constituent Elements of Crime 361 (Thomas, 1967)Google Scholar; Ryu, Paul & Silving, Helen, Error Juris: A Comparative Study, 24 U Chic L Rev 421, 424–25 (1957)Google Scholar; “Penal Law,” in 13 Encyclopedia Judaica 222, 226–27 (1972)Google Scholar, reprinted in Elon, Menachem, ed, Principles of Jewish Law 469, at 473–74 (Encyclopedia Judaica 1975)Google Scholar. For a more comprehensive statement of the law by the author of the preceding reference, see Cohn, Haim H., Human Rights in Jewish Law 229 (KTAV Publishing House, 1964)Google Scholar.
7. Cohn, Haim H., On the Dichotomy of Divinity and Humanity in Jewish Law, in Carmi, A., ed, 2 Euthanasia, Medicolegal Library 59 (1984)Google Scholar. See also Cohn, Haim H., The “Defense of Legality” in Talmudic Law, 8 Heb Union Coll Ann 251, 255 (1987)Google Scholar.
8. See Maimonides, Mishneh Torah, The Book of Knowledge, Laws Concerning the Foundations of the Torah 5:10 (1 Touger, Maimonides, Mishneh Torah 226 (1989)); Maimonides, The Guide for the Perplexed, Book 3, chapter 41. See also Rosh on B. Mo'ed Katan, para 59, quoting Rabbi Meir ben Baruch of Rotenburg.
9. See, for example, section 2.09(9) of the Model Penal Code and the brief comment thereon in Tent. Draft #4, at 130-31 (1955). On rare occasions, the secular law is also concerned with the deliberate defiance of authority, as in the case of criminal contempt for disobeying a court order. To be held in such contempt, the offender must ordinarily know that the court has issued the order. Otherwise, his failure to comply is not contumacious. Moskovitz, Joseph, Contempt of Injunction, Civil and Criminal, 43 Colum L Rev 780, 793–95 (1943)CrossRefGoogle Scholar; Comment, The Intent Element in Contempt of Injunctions, Decrees and Court Orders, 48 Mich L Rev 860 (1950)CrossRefGoogle Scholar.
10. As has been pointed out extensively in the recent literature, the requirement of advance warning - together with several other formal requirements of Jewish criminal law - applies only in the sphere of Biblical punishment with its special religious concerns. This sphere is supplemented in Jewish law by other more flexible systems of criminal law enforcement whose goals concern the protection of society. See Enker, , 12 Card L Rev 1137, 1144 (1991)Google Scholar; 24 Mishpatim 177 (1994) (cited in note 3)Google Scholar; Kirschenbaum, Aaron, The Role of Punishment in Jewish Criminal Law; A Chapter in Rabbinic Penological Thought, 12 Tel Aviv U L Rev 253 (1987) (in Hebrew)Google Scholar. It is these other systems that are the true Jewish parallel to our secular criminal law. Since the formal Biblical rules, including those concerning forewarning about the law, do not generally apply in these systems of social defense, it might be thought that there is little to be learned from comparing modern secular systems with the Biblical law. As this article, hopefully, will demonstrate, such a comparison does in fact offer interesting lessons.
11. American Law Institute, Model Penal Code, sec. 2.04(1)(a); Williams, Glanville, Criminal Law, The General Part 293–94 (Stevens & Sons, Ltd., 2d ed. 1961)Google Scholar.
12. American Law Institute, Model Penal Code, sec. 2.04(3); Fletcher, George, Rethinking Criminal Law 755–58 (Little Brown & Co, 1978)Google Scholar. For comparison of the common law approach to error juris with that of continental systems, see id at 736-55; 2 Silving, Helen, Criminal Justice 785–811 (W. S. Hein, 1971)Google Scholar.
13. See Professor Fletcher's comparison of the Common Law's “flat” approach to various legal issues with the Civil Law's “structured” approach. Fletcher, George, The Right and the Reasonable, 98 Harv L Rev 949 (1985)CrossRefGoogle Scholar.
14. The primary sources are reviewed and summarized in Enker, Arnold, Necessity and Duress in the Criminal Law 155–58 (1977) (in Hebrew)Google Scholar. In the context of unintentional homicide, see the summary in Maimonides, Mishneh Torah, The Book of Torts, Laws Concerning Murder and the Preservation of Life 6:1-4 (9 Yale Judaica Series, The Code of Maimonides (1954)) (hereinafter: “Maimonides, Murder”).
15. The similarity to negligence is obvious. Still, I hesitate to equate the two. There is no concept in Jewish law precisely equivalent to the common law's “reasonable man.” The standard in Jewish law seems to me to be somewhat stricter than “reasonableness,” which involves a balancing of interests. What is at stake in Jewish law is compliance with God's command, whose ultimate consequences may reach beyond human comprehension. In this setting, balancing the material interests involved may miss much of the point.
16. Maimonides, Mishneh Torah, The Book of Offerings, Laws Concerning Transgressions Through Error 1:1 (4 Yale Judaica Series, The Code of Maimonides (1950)) (hereinafter: “Maimonides, Transgressions Through Error”). These are offenses which are punished by excision (“karet”), or more severely, when done knowingly. Excision is divine punishment, either premature death or the cutting off of progeny.
17. Id 2:6. One of the standard commentaries on Maimonides' Code, Mishneh LeMelech (Rabbi Yehuda Roznis, 17th-18th century Turkey), summarizes the rules as follows:
… [T]here are two classes of shogeg. One is with regard to the facts …. [T]he other is that he was shogeg regarding the law …. [I]n both classes of shogeg, the Torah required a sin offering.
Mishneh LeMelech on id 2:2. See also Lechem Mishneh on Maimonides, Sanhedrin 12:2, suggesting a reason why a scholar must be warned even though he can be assumed to know the law. While the scholar would not make a mistake of law, he might err concerning the facts, in which regard the scholar is the same as everyone else. I refer to this source only for its recognition of the distinction between the two types of mistake. Its application of the distinction to the matter of warning a scholar is questionable, to my mind.
18. Maimonides, Transgressions Through Error 7:2-4 (cited in note 16).
19. Id 1:1, 4; id 7:2.
20. For discussion of the opinions of some that would distinguish between mistake and ignorance, see Isaacson, Andre D., Ignorance in Jewish Law, 5 Nat'l Jewish L Rev 1, 18–19 (1990–1991)Google Scholar. To the best of my knowledge, this is the only other modern article in English that deals with our topic. Two additional modern Hebrew studies are Drori, , The Concept of “Shgaga” in Jewish Law: Mistake of Law and Mistake of Fact, 1 Sh'naton HaMishpat HaIvri 72 (1974)Google Scholar, which deals with the offense of adultery, and Z. Warhaftig, The Plea of Ignorance of the Law in Criminal Cases, in id, Researches in Jewish Law (1985). All three authors stress the significance of the distinction between offenses between man and God and those between man and man. While relevant, I think this distinction is inadequate to the issues involved, as I will develop.
21. Maimonides states that “although there are worse crimes than bloodshed, none causes such destruction to civilized society as bloodshed.” Maimonides, Murder 4:9 (cited in note 14), (quoted more fully in note 26).
22. Exodus 21:12-14; Num. 35:16-21, 29-34.
23. 2 Fisher, S., Beit Yisnai 381–82 (1986) (in Hebrew)Google Scholar.
24. Maimonides, Murder 4:8 (cited in note 14).
25. The Biblical death penalty may be supplemented by other penalties if the killer's guilt is clear and severe, though one or another of the formal Biblical requirements is not met. See Maimonides, Murder 2:4-5 (cited in note 14); id 4:8; 1 Quint, Emanuel B. and Hecht, Neil S., Jewish Jurisprudence 139–213 (Harwood Academic Publishers, 1980)Google Scholar, also published separately as an article, Exigency Jurisdiction Under Jewish Law, 9 Dine Israel 27 (1980)Google Scholar.
26. Maimonides, Murder 4:9 (cited in note 14):
[A]lthough there are worse crimes than bloodshed, none causes such destruction to civilized society as bloodshed. Not even idolatry, nor immorality nor desecration of the Sabbath, is the equal of bloodshed. For these are crimes between man and God, while bloodshed is a crime between man and man.
27. Num. 35:9-34. In contrast to the ancient Greek law, killing by shogeg does not call for bringing a sacrifice in the temple, even though other Biblical capital offenses do require such an offering when committed by shogeg. Apparently, the Biblical sense of the matter is that bloodshed is too serious an offense to be atoned for by bringing a sacrifice in the temple. There is a profound unbridgeable gap between human life and animal life, so that it would be incommensurate to offer the life of an animal to expiate for taking a human life. See Greenberg, Moshe, The Biblical Conception of Asylum, 78 J Biblic Lit 125, 129–30 (1959)CrossRefGoogle Scholar.
28. A recent study advances the thesis that the Biblical law of exile was limited to protection of the inadvertent killer from the vengeance of the victim's family, while the view that exile serves also as punishment and penance is of later Rabbinic origin. Eliash, Ben Zion, Negligent Homicide in Jewish Criminal Law: Old Wine in a New Bottle, 3 Nat'l Jewish L Rev 65 (1988)Google Scholar. A careful examination of the Biblical texts does not support this interpretation.
The Deut. text, 19:1-13, does in fact speak only of protecting the victim from the blood avenger. But the parallel text in Numbers 35:9-34 addresses protection of the killer and penance and punishment. The Deut text deals with the situation immediately after the killing, before trial. Talk of punishment is therefore premature. This passage concerns the protection of the killer from immediate blood vengeance, from lynching, so that he may stand trial and be judged. See also Deut. 4:41-43. The passage in Num. deals with both stages of the event. Initially, in verses 9-15, it too deals with the immediate aftermath of the killing. Here, too, the stated goal is to protect the killer so that he may stand trial. But this text then moves on to the stage of trial and judgment. Verses 16-21 lay down the rules defining murder, certain evidentiary requirements and the prescribed death penalty if the verdict is guilty of murder. Verses 22 to the end deal with the consequences of a verdict that the killing was inadvertent, namely, exile to a city of refuge. Verse 28 admonishes the community to exile the inadvertent killer for a period that is to last until the death of the high priest, whose death serves as expiation for the nation's sins. Verse 32 forbids accepting ransom payment from the inadvertent killer in lieu of exile, just as verse 31 forbids accepting ransom payment from the willful killer to avoid the death penalty. Exile is to an inadvertent killing as death is to a willful killing; both are punishments, imposed by the community through its courts, without regard to the killer's wishes, pursuant to the law's command. Were Biblical exile only a matter of protecting the killer, he could decline the favor if he did not fear the blood avenger.
29. Maimonides, Murder chapter 6 (cited in note 14). True to form, Maimonides subsumes the various cases discussed in the Talmud under these general categories, based on the degree of the actor's fault in not taking precautions against the risk of death. Some commentators treat these cases casuistically.
30. Id 6:4.
31. Id 6:1-4. Again, this is Maimonides' reworking of the Talmudic cases. See note 29.
32. On possible differences between the Talmudic law and contemporary negligence, see note 15.
33. B. Makkot 7b, compare id 9b.
34. Abbaye lived in Babylonia early in the fourth century.
35. Interestingly, neither Abbaye nor Rava - nor apparently anyone else, so far as the Talmud records - thought that an intentional killing done in ignorance of the law is ordinary shogeg and is subject to exile. I surmise that there existed an undisputed tradition that such a killer is not exiled, perhaps because the act of killing is not inadvertent. See the discussion of Nachmanides' opinion in the text at notes 43-45. Since both variant forms of shogeg, that which is close to willful and that which approximates o'ness, are not subject to the law of exile, the debate between Abbaye and Rava was limited to the reason for this undisputed rule, i.e., which variant category of shogeg covers this killer. Abbaye thought he is not exiled because his guilt is less than that in an inadvertent shogeg killing and approximates o'ness. Rava thought it worse, close to willful. I will suggest later that the degree of this ignorant killer's guilt should not be fixed in the abstract, but must take other factors into account as well. The dispute between Abbaye and Rava may turn out to be less extreme than appears at first glance.
36. Murder 6:10 (cited in note 14).
37. Id 6:4-5.
38. See id 2:4.
39. Ginzberg, J.M., Mishpatim LeYisrael 334 n 33 (1956) (in Hebrew)Google Scholar.
40. Maimonides, Murder 2:4 (cited in note 14): id The Book of Judges, Laws Concerning Kings and Their Wars, 3:10 (3 Yale Judaica Series (1949)) (hereinafter: “Maimonides, Kings”).
41. In the common law system, such legal mistakes could relate to the duty to retreat and its particular applications, to the scope of the requirement that the danger or the need to act be immediate, to the right to act in defense of third parties in some jurisdictions and to the requirement of proportionality, among other issues. Some of these issues, and others, could be relevant in the Jewish law of self defense.
42. B. Makkot 7b, beginning with the words “elah p'rat.” Similarly, Tosafot to B. Sanhedrin 62a, beginning with the words “v'Rava amar,” and Tosafot to B. Shabbat 72b, beginning with the words “b'omer mutar.” The Tosafists, founded by Rashi's grandchildren, thrived in Germany and France primarily during the 12th through 14th centuries.
43. Commentary to B. Makkot 7b. Nachmanides (Moses ben Nachman, 1194-1270) lived in Gerona, Catalonia, and was the chief rabbi of Catalonia until he emigrated to the Land of Israel. He authored numerous works, including commentaries on the Bible and the Talmud.
44. Num 15:27, The Torah, The Five Books of Moses 276 (Jew Pub Soc trans 1962).
45. Num 35:11, The Torah, The Five Books of Moses at 318 (cited in note 44).
46. Commentary to B. Makkot 7b. Ritva (acronym for Rabbi Yom Tov Avraham Ishbili, 1250-1330) lived in Seville and was the spiritual leader of Spanish Jewry.
47. See Isaacson, , Ignorance in Jewish Law at 18–19 (cited in note 20)Google Scholar.
48. Of course, a claim of mistake might be more reasonable than a claim of ignorance, which could bear on a court's evaluation of its credibility and of the actor's good faith. But this is not unique to the distinction between ignorance and mistake. Some claims of mistake could be more reasonable than others. And some particular claims of ignorance could be more credible than some other claims of mistake. In any event, this is a matter of evidence rather than the substantive law. It should also be recalled that the issue in cases of Sabbath violation and eating forbidden suet concerns the sinner's obligation to bring a sacrifice to the temple, which ordinarily will be resolved in the privacy of his own conscience rather than at a judicial proceeding where evidence will be heard and evaluated.
49. Complete ignorance can be o'ness, faultless, in some situations. Consider, for example, the case of a Jewish child who is raised as a nonJew and has never had the opportunity to study the law. See Isaacson, , Ignorance in Jewish Law at 18–19 (cited in note 20)Google Scholar.
50. But see Z. Warhaftig, The Plea of Ignorance (cited in note 20), who seeks to explain many of the sources as based on differing evaluations of credibility.
51. The requirement that the law give expression to its protection of this interest by declaring the act an offense is part of the requirement of legality, not mens rea.
52. Cain was punished for killing Abel although God did not warn him in advance that murder is forbidden. But God warned Adam that he may not eat the fruit of the tree and that he would be punished if he did. This is readily explained by the obvious differences between the two offenses. See Enker, , Aspects of Interaction at 1146–47 (cited in note 3)Google Scholar.
53. The point will be developed more fully in connection with the offense of adultery.
54. See text accompanying notes 46-48.
55. B. Makkot 7b, beginning with the word “b'omer.” The translation is mine. The Hebrew reads as follows: “savur she'mutar la'harog et yisrael v'zeh maizid she'lo.” Rashi, Rabbi Solomon Yitzchaki (Solomon ben Yitzchak) lived in France in the years 1040-1105. His is the classic commentary on the Talmud. Compare Rabbi Joseph Karo's commentary on Maimonides' Code, Kesseff Mishneh, Kings 10:1, to the effect that the rule that a Noahide who kills in ignorance of the law is guilty of capital murder applies “when he thought that homicide was not at all [literally, had never been - A.E.] forbidden, and Rava considers this case close to deliberate.” Again, the translation is mine.
56. Kings 10:1. The Yale Judaica translation of Maimonides' Code translates the parallel passage in the Laws Concerning Murder 6:10, where Maimonides records the law as concerns Jews, as follows: the killer “believes that the slaying is permissible.” (Emphasis added.) This translation might be taken to suggest that the rule that error juris is close to willful applies when the killer's mistake concerns the application of the law to the particular case. But Maimonides' original Hebrew text does not seem to me to support this translation. It reads: “she'ala al da'ato she'mutar la'harog,” which I would translate literally as, “it appeared to his mind that it is permitted to kill.” The original Hebrew text of the passage in Kings reads: “v'hoo lo yada she'assur la'harog.” I see no difference of substance between the two passages. Different scholars translated these two books and the difference in translation appears to be attributable to them rather than to Maimonides.
57. This interpretation of Maimonides' text is the same as that offered by Rabbi Joseph Karo, quoted in footnote 56. See also the discussion of this selection from Maimonides in connection with adultery, adjacent to notes 102-04.
58. Shulchan Aruch, Choshen Mishpat sec 425.
59. Aruch HaShulchan on Shulchan Aruch, Choshen Mishpat sec 425, para 46 (Emphasis added.) The translation is mine. The Hebrew original reads: “she'haya savur b'da'ato ha'meshubeshet she'mutar l'hargo.”
60. The word “l'hargo”, to kill him, suggests that the rule applies to mistake concerning the application of the law in a specific case. It may be a misprint for “l'harog,” to kill. In any event, the critical point is to avoid making a formal rigid distinction between ignorance and mistake. Epstein seems to avoid this pitfall.
61. Murder 1:13 (cited in note 14).
62. Tur Shulchan Aruch, Choshen Mishpat sec 425.
63. For example, Mishneh LeMelech on Maimonides, The Book of Torts, Laws Concerning Wounding and Damaging 8:10. Recall the oft-quoted remark of Justice Holmes in Brown v United States, 256 US 335, 343 (1921): “Detached reflection cannot be demanded in the presence of an uplifted knife.”
64. This might also help explain the basis for Abbaye's opinion that error juris in homicide is close to o'ness, which sounds somewhat strange at first. Perhaps, in the final analysis, Abbaye and Rava were not in fundamental disagreement but dealt with different mistakes of law concerning murder, in different settings, and their real point of disagreement concerned only certain borderline cases. Talmudic disputes often appear on the surface to be more extreme than they really are. It is an accepted technique of Talmudic interpretation to resolve what initially appear to be broad disputes by the art of distinction, or at least to narrow them considerably.
65. Section 65, at 333-34. (Emphasis added.)
66. Id at 333 nn 247-49; see also id at 321, Comments.
67. See 2 Elon, Menachem, Jewish Law, History, Sources, Principles 515–19 (The Jewish Publication Society, 1994)Google Scholar.
68. If the woman is not married, the act is fornication, which is not as serious an offense as adultery.
69. Exodus 20:14; Num. 22:22-24; Maimonides, Sanhedrin 15:13 (cited in note 14).
70. Maimonides, Sanhedrin 12:1-2 (cited in note 1); Murder 4:8-9 (cited in note 14).
71. Mishna Sotah 5:1; Maimonides, Mishneh Torah, The Book of Women, Laws Concerning the Wayward Woman 2:12 (19 Yale Judaica Series, The Code of Maimonides (1972)) (hereinafter: “Maimonides, Laws Concerning the Wayward Woman”).
72. Id, Laws Concerning Marriage 24:19.
73. Mishna Yebamot 3:10; B. Yebamot 33b; B. Sotah 28a; Maimonides.
74. Responsa Maharik # 167, at 183. Compare Mishna Yebamot 10:2; Maimonides, Transgressions Through Error 14:3 (cited in note 16).
75. Mishna Yebamot 3:10. See also Rashi's commentary on B. Sotah 28a, beginning with the words “sotah lo assa bah.”
76. Compare R v Collins, [1972] 3 WLR 243 (Ct App).
77. The law requires that the couples separate for three months in order to facilitate the determination of paternity in the event of pregnancy. Mishna Yebamot 3:10. But this is not any form of punishment. At the end of the three months, both couples are free to reestablish their married lives.
78. Responsa Maharik #167, at 182-83.
79. Num. 5:12.
80. Responsa Rashba, part 1, #1189, at 390-91. Compare id #10 at 6-7.
81. Jewish law recognizes three stages in marriage. The first is the agreement between the parties to stipulated conditions of marriage. This stage creates personal obligations between the parties, as in contract, but does not create any marital or other status between the couple. The second stage is called kiddushin, sanctification, and is accomplished ceremonially by giving the bride something of value as a consideration, usually a ring, in the presence of witnesses. At this point, a status relationship is established between the couple. The bride is sanctified unto her husband and is thereafter forbidden to others. But they do not yet live together as husband and wife. In the final stage, the husband brings his bride into his home where they live together. Today, stages two and three occur together, one immediately after the other. The groom gives the ring to the bride as they stand together under the chupa, the wedding canopy, which symbolizes the marital home.
In the case that came before Rashba, it appears that stage one had already been done when the groom visited his prospective in-laws at their home and requested that the bride join them at the table. Apparently, this was considered premature, considering that the couple had no personal status relationship as yet. Clearly, the giving of the ring constituted stage two, so that the woman was now forbidden to marry and have sexual relations with any other man, without first obtaining a divorce. It is difficult to give credence to the woman's claim that she did not understand that she was married. We shall see that this was also Rashba's view of the matter.
82. The leading critic is Rabbi Yehuda Ayish (18th century North Africa) in Lechem Yehuda ch 24, at 228-30. Rabbi Chaim Azulai (18th Century Eretz Israel) replied to this critique, point by point, in his Responsa Chaim Sha'al part 1, ch 48.
83. See Drori, The Concept of “Shgaga” at 92–96 (cited in note 20)Google Scholar; Isaacson, , Ignorance in Jewish Law at 25–27 (cited in note 20)Google Scholar.
84. Compare the remarks of Rabbi Moses Sofer (Germany and Hungary, late 18th and early 19th centuries) in a closely related context:
[E]ven if we say generally that error juris is close to willful, it would not be correct to charge him where the injury is not apparent … since he thought he was not injuring him and he did not intend to cause him to suffer.
Responsa Chatam Sofer, Choshen Mishpat #22, at 14a, beginning with the words “uv'Menachot 49a.” The translation is mine.
85. The punishments in both cases express the Torah standard of “mida k'negged mida,” measure for measure, which I have suggested elsewhere is more than equality in measured amount, but a sense of aptness, of perceived connection between the penalty and the wrong in the offending behavior. Enker, Arnold, Aptness As a Criterion of Just Punishment, 25 Isr L Rev 620 (1991)CrossRefGoogle Scholar.
86. For example, Williams, Glanville, Criminal Law, The General Part 321-27, 333-35, 341–44 (Stevens & Sons, Ltd., 2d ed 1961)Google Scholar; Cr App 291/64, Weinberg v Attorney General, 19(1) PD 150 (Sup Ct Isr). See also Fletcher, George, Rethinking Criminal Law 739–41 (Little Brown & Co, 1978)Google Scholar.
87. For example, R v Tolson, (1889) 23 Q.B.D. 168 (CCR) (death); R v Gould, [1968] 2 WLR 643 (divorce), overruling R v Wheat, [1921] 2 KB 119. Some American courts have held that bigamy is an absolute liability offense, in which case the issue we are considering is irrelevant because even mistake of fact does not excuse. For example, State v Hendrickson, 67 Utah 15, 245 Pac 375 (1926).
88. R v Gould, [1968] 2 WLR 643; Thomas v R, [1937] 59 CLR (Australia).
89. See Cr App 291/64, Weinberg v Attorney General, 19(1) PD 150 (Sup Ct Isr).
90. R v King, [1963] 3 All ER 561 (Ct Crim App); Smith, John Cyril & Hogan, Brian, Criminal Law 83–84 (Butterworth's, 6th ed, 1988)Google Scholar. Whether treated as a special case of the rule concerning mistake of law or as part of the concept of mens rea, the result should be the same. Indeed, it seems to me that the two approaches are really two aspects of a single problem. See, for example, the Model Penal Code's Commentary to section 2.02(9), in Tent Draft #4, at 131 (1955), in which both themes are interwoven:
So, for example, it is immaterial in theft, when claim of right is adduced in defense, that the claim involves a legal judgment as to the right to property. It is a defense because knowledge that the property belongs to someone else is a material element of the crime and such knowledge may involve a matter of law as well as fact. But in so far as this point is involved there is no need to state a special principle; the legal element involved is simply an aspect of the attendant circumstances, with respect to which knowledge, recklessness or negligence, as the case may be, is required for culpability …. The law involved is not the law defining the offense; it is some other legal rule that characterizes the attendant circumstances that are material to the offense.
91. The other recent writers on error juris in Jewish law have dealt with this issue differently. Drori, , The Concept of “Shgaga” at 72, 86, 90–97 (cited in note 20)Google Scholar does not consider the possibility of using this distinction as a tool to understand the Jewish law. His article contains no reference to the distinction even though it is well known in Israeli law. Isaacson, too, does not refer to the distinction, perhaps because American law makes little use of it. American law follows the lead of the Model Penal Code and treats mistake, of fact and of law, as subordinate issues of mens rea. Warhaftig rejects the distinction outright, because of difficulties in its application in general, without considering if it might be a useful tool in these cases. Id at 231-32, 249-55.
92. Part 1, #10, at 6-7.
93. See the description of the incident in 1 Samuel 18:17-29, 25:42-44; 2 id 2:14-16.
94. Based on B. Sanhedrin 19b. It matters not whether this explanation is historical. The Talmud and the later writers often examine Biblical events in the light of Jewish law.
95. For example, Darchei Moshe on Tur Shulchan Aruch, Even HaEzer sec 178(15); Yam Shel Shlomo on B. Yebamot, para 17, at 15. See also note 109.
96. For a different interpretation of Rashba on this point, which limits such leniency to persons who rely upon an express ruling by the court later found to be mistaken, see text at notes 105-08.
97. Yam Shel Shlomo on B. Yebamot, para 17 at 15.
98. Responsa Igrot Moshe on Shulchan Aruch, Even HaEzer part 1, #54 at 134. Rabbi Feinstein died in 1986.
99. The original marriage to the second husband never took effect because she was still married to the first man.
100. The translation is mine.
101. See Rakover, Nachum, Jewish Law and the Noahide Obligation to Preserve Public Order, 12 Card L Rev 1073 (1991)Google Scholar. Maimonides treats of these issues in his Code in Kings chapter 9. His statement of the rules concerning adultery by Jews does not shed any further light on these matters. Laws Concerning the Wayward Woman 2:12; Laws Concerning Marriage 24:19.
102. Kings 10:1 (cited in note 40).
103. It may also be inferred from this passage that Maimonides agrees with Rabbi Colon that a mistaken belief that adultery is not unlawful is akin to willful rather than shogeg.
104. Recall our reliance on this passage in support of the distinctions we thought proper in connection with homicide. See text at notes 56-57.
105. File #713/30, 8 PDR 184 (1970).
106. In Jewish law, divorce requires that the husband manually give the “get” to the woman, of his own free will, and that she accept it from him, of her own free will. The court's decree of divorce merely declares that the parties should be divorced. It has no constitutive effect.
107. For example, a responsum by Rabbi Chaim of Volozhin, the founder and head of the Volozhin Yeshiva in Lithuania and one of the leading rabbinic authorities in the late 18th and early 19th centuries. Chut HaMeshulash #13. The published responsum is incomplete.
108. File #713/30 at 187 (cited in note 105).
109. It is worth noting that Rabbi Uri Phoebus (17th Century Poland), who authored the Beit Shmuel, which is the leading commentary on that part of the Shulchan Aruch that deals with matters of family law, cites both Rashba's ruling and Rabbi Colon's reasoning in the same passage, without suggesting any possible conflict between them. Beit Shmuel on Shulchan Aruch, Even HaEzer sec 178(4).
110. In this context, it is worth noting an important difference between the cases of homicide and adultery. Difficult borderline questions concerning the legality of a killing will arise, generally in emergency settings which demand immediate action and leave no opportunity to seek religious guidance. There is almost always opportunity to turn to higher authority for guidance in matters of family law. This difference holds in secular legal settings as well.
111. Maimonides, The Book of Agriculture, Laws Concerning Terumot (Heave Offerings) 2:1, 14; 6:1; 7:1; 12:1 (21 Yale Judaica Series, The Code of Maimonides (1979)) (hereinafter: “Maimonides, Terumot”).
112. Mishna Terumot 2:2.
113. For example, the commentaries of Rabbi Shimshon of Sens and Rabbi Obadia Bertinoro on the Mishna, id; Rashi, B. Pesachim 33a, beginning with the words “ein tormin”; Rabbi David ben Zimra on Maimonides, Terumot 5:8.
114. Mishna Terumot 2:2.
115. Terumot 5:8 (cited in note 111). See also Maimonides' commentary on the Mishna Terumot 2:2.
116. B. Pesachim 33a, beginning with the word “b'shogeg.”