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Defensive Force as an Act of Rescue

Published online by Cambridge University Press:  13 January 2009

George P. Fletcher
George P. Fletcher
Affiliation:
Law, Columbia University
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Extract

Jewish law takes an approach to self-defense that differs dramatically from the conventional assumptions of Western secular legal systems. The central theme of Talmudic jurisprudence is that self-defense rests on a duty not to stand idly by while one's neighbor suffers. “Do not stand on the blood of one's neighbor,” as the point is cryptically put in Leviticus 19:16. This way of thinking about self-defense departs in two significant ways from common Western assumptions. First, it stresses that the roots of self-defense are a duty rather than a right to act; second, it treats the case of third-party defense (defense of others) as logically prior to the first-party case of self-defense.

Type
Research Article
Information
Social Philosophy and Policy , Volume 7 , Issue 2 , Spring 1990 , pp. 170 - 179
Copyright
Copyright © Social Philosophy and Policy Foundation 1990

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References

1 A brief sketch of the literary history of Jewish law follows. For an expanded summary of this history, see Finkelman, Marilyn, “Self-Defense and the Defense of Others in Jewish Law: The Rodef Defense,” Wayne Law Review, vol. 33 (1987), pp. 1257–59, n. 2.Google Scholar

Jewish law (halakhah) embodies only a portion of the wider corpus of Jewish source material, or Torah. The most authoritative halakhah is to be found in the first five books of the Hebrew Bible [sometimes also called Torah]. Legal writing located outside of these five books is viewed primarily as interpretive commentary that has lesser obligatory force.

Alongside the Hebrew Bible an oral tradition developed which supplemented and interpreted the written text. The first written version of the oral tradition was assembled by Rabbi Judah the Prince (d. 219 C.E.); it was called the Mishnah (“study” in Hebrew). The four centuries of discussion that followed the Mishnah comprise the Gemara (“study” in Aramaic). Together, the Mishnah and the Gemara form the Talmud. Two parallel schools each produced a Talmud: one in Palestine, the other in Babylon. It is the Babylonian Talmud that has had the greater impact on the development of Jewish law.

The Geonim, or heads of various Babylonian academies, produced their own responsa (commentary on the Talmud with application to specific contemporary concerns) until the year 1000. Following them, with the shift of Jewish scholarship from Babylon to northern Africa and southern Europe, the writings of the Rishonim (“first ones”) attempted to clarify problematic or inaccessible material. Primary within this group was Rabbi Solomon ben Isaac (1040–1105), who was known by his acronym, Rashi. Rashi's line-by-line commentary on the Talmud is printed in virtually every modern version. Rashi's studies drew the commentary of succeeding generations; their work is included as the final component of the modern versions of Talmud, and is known as the Tosafot (“additions”).

Rabbi Moses ben Maimon (Maimonides, or Rambam as he is referred to in Jewish texts; 1135–1204) was perhaps the most prolific of the Rishonim. He wrote on such diverse topics as medicine, philosophy, and Jewish law. His magnum opus Mishneh Torah (repetition of Torah) systematically codified all of Jewish law.

One of the final works of the Rishonim came at the end of the fifteenth century. The Schulchan Arukh, written by Rabbi Joseph Caro of Spain (1488–1575) and supplemented by Rabbi Moses Isserles of Poland (a contemporary of Caro), consolidated Caro's conclusion, themselves drawn from a compendium which he produced of all the writings of the previous centuries.

Commentary on the Talmud continued over the next five centuries. Today, in the form of modern responsa, it reflects the variety of living conditions and contemporary issues related to halakhah.

2 This is a literal translation of the Hebrew: Lo taamod al dam reekha. The Jerusalem Bible translates the passage as “Neither shalt thou stand aside as when mischief befalls they neighbour.” The new French translation in La Sainte Bible (Paris: Editions du Cerf, 1972)Google Scholar is intriguingly misleading: et tu ne mettras pas en cause le sang de ton prochain. Luther rendered this passage as Du sollst auch nicht auftreten gegen deines Nächsten Leben. Perhaps the French and the German accurately capture the active force of the Hebrew injunction lo taamod, but they miss the sense of the passage captured in the English phrase “Do not stand idly by.” The point of the passage is that one must intervene to save one's neighbor, rather than let him die.

3 Blackstone, William, Commentaries on the Law of England (1765–1769; Chicago: University of Chicago Press, 1979), vol. 4, p. 181.Google Scholar

4 Exodus 22:1. For elaboration of the Talmudic discussion of this aspect of self-defense, see my paper “Punishment and Self-Defense,” to be published in Law and Philosophy, vol. 8, (1989), pp. 201–15.

5 See the discussion of the second Mishnah, eighth chapter, tractate Sandhedrin, discussed in my “Punishment and Self-Defense.”

6 It is generally assumed that purpose must be to rape; see Finkelman, “Self-Defense.” So far as I can tell, however, the sources are ambiguous on this point. It is significant that there is a right to intervene to prevent the seduction (or rape) of a betrothed woman. This implies that the violent aspect is secondary. See also Carmichael, Calum M., Law and Narrative in the Bible (Carlisle: Edinburgh University Press, 1985), p. 217.Google Scholar

7 See the discussion in note 2.

8 The second party in these interactions would be the aggressor.

9 Significantly, if the rationale for the defense is the third theory, based on the balancing of competing interests, the third-party case might be easier to justify. The legal system might be properly skeptical of the individual's ability to balance competing interests where the benefits of the act accrue to himself and the costs to a stranger. See Dan-Cohen, Meir, “Decision Rules and Conduct Rules: On Acoustic Separation in Criminal Law,” Harvard Law Review, vol. 97 (1984), p. 625.CrossRefGoogle Scholar If both the benefits and costs affect other persons, then the balancing is likely to be skewed by subjective, self-interested considerations.

10 Babylonian Talmud, Avodah Zarah 26a, 26b.

11 Babylonian Talmud, Sanhedrin (the last Mishnah in chapter 4). One basis for this view, discussed in the same Mishnah, is that each person carries within himself the seed of all his descendants, and thus if the descendants of each person are extrapolated into the future, there is a sense in which a “whole world” is at stake in saving the life of each human being.

12 In Hebrew: chaicha kodmim Ichai chaverach. See Babylonian Talmud, Baba Meziah 62a.

13 Expressed in Hebrew, the maxim is overpowering in poetic simplicity. Im lo ani li, mi li? Im ani raq li, tnah ani?

14 See the treatment of this case in Kant, Immanuel, Metaphysical Elements of Justice, tr. John, Ladd, (Indianapolis: Bobbs-Merrill, 1965), pp. 41–42.Google Scholar

15 For a discussion of this as well as two other cases of “permissible action” in the Talmudic framework, see Finkelman, , “Self-Defense,” pp. 1284–86.Google Scholar

16 Thomson, Judith Jarvis, “Some Ruminations on Rights,” in Rights, Restitution, and Risk, (Cambridge: Harvard University Press, 1986), pp. 49, 51–55.Google Scholar