Journal of Criminal Law and Criminology Volume 31 Article 7 Issue 4 November-December Winter 1940 Jewish Criminal Law and Legal Procedure Max May Follow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclc Part of the Criminal Law Commons, Criminology Commons, and the Criminology and Criminal Justice Commons Recommended Citation Max May, Jewish Criminal Law and Legal Procedure, 31 Am. Inst. Crim. L. & Criminology 438 (1940-1941) This Article is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons. JEWISH CRIMINAL LAW AND LEGAL PROCEDURE Max May' Ancient Jewish law was not created during the long period in which this by Moses in its final form; law, being gigantic work came into being. part of a nation's culture, is the product The dominant idea in Biblical law of a slow process of growth and de- was the lex talionis. Since the first velopment. Moreover, Jewish law ab- century B. C., however, the Rabbis sorbed elements of other cultures and tried to modify this principle with the was particularly influenced by ancient result that the Pharisees almost abol- Babylonia. This study, however, does ished it. Their views became Jewish not intend to deal with the results of criminal law. The Sadducees, how- historical research or of comparative ever, insisted upon its application. jurisprudence; rather it aims to out- It would indeed be strange if the line the basic characteristics of Jewish idea of retaliation were missing from criminal law and its legal procedure. ancient Jewish law, for it was prevalent For it is proper to devote attention to in the very early beginnings of com- this subject even without considering munal existence. It was thus present the problems of history and compara- as well in Egyptian, Indian and Greek tive law, because of the intrinsic value jurisprudence and is preserved today. of Jewish legislation. For retaliation is still the first instinc- tive reaction to an injustice. Ethics and Law. The blood feud, which is the most It is significant for the close relation- primitive form of retaliation was rec- ship that exists between Jewish ethics ognized by Jewish law at first as a and Jewish law that both emerge from legal measure. Thus the closest rela- the same source: the religious code. tive of the killed person was expected Jewish law is sacred, Divine law. Its in very ancient times to avenge the basis is the Bible and Talmud. Though death of his kin upon the clan of the both are primary sources for the knowl- murderer. Moses, however, tried to edge of Jewish law, it must be borne limit the practice of such feuds through in mind that it was the task of the the institution of cities of refuge, where Talmud to interpret God's word as pro- the slayers might flee for safety.2 claimed in the Bible. The Talmud, on The belief that punishment serves as the other hand, not only interprets but a deterrent of crime was likewise wide- also extends the scope of the Biblical spread, as we can infer from the public teachings in accordance with the social administration of capital punishment and economic conditions that prevailed and flogging as well as from the verse: I Doctor of Law, formerly Judge and later a the Classification Division in a Penitentiary to Chief Prosecuting Attorney in Germany. Super- get acquainted visor of a German prison over a period of 10 with the American prison system. years. Author of articles on juvenile delinquency Address, 424 Forest Ave., Cincinnati, Ohio. and prison reform. Recently worked 5 months in 2 Num. 35.9; Deut. 19.1-13 and Josh. 20. [438] JEWISH CRIMINAL LAW "And all Israel shall hear, and fear, more than three millenia ago, is testi- and shall do no more any such wicked- mony to the high-minded nature of ness as this in the midst of thee."3 Jewish law, though at times it may The existence of the law, "An eye have been observed in the breach only. for an eye, a tooth for a tooth," might Ancient Israel, though practicing slav- lead us to regard Mosaic legislation as ery in line with the standards of the being unduly severe or even barbaric. times, did not exclude the slaves from Indeed such traits are not altogether the benefits of the law, as did other lacking. But on the whole, they are nations of antiquity. Among the latter, overshadowed by instances of leniency slaves possessed no rights whatsoever. and consideration. Jewish law bears Among the Romans, for instance, they the mark of its times but surprises the were subjected to the whims of their historian with concepts that go beyond masters and were entirely helpless in the limits of time and space. the face of their sadism and cruelty. Oriental despotism trampled on the Significantly enough, a liberal-minded dignity of man, denied the doctrine of lawyer like Cicero apologizes in his equality before the law owing to the writings for the fact that he was deeply existence of the caste system and knew moved by the death of one of his slaves. no legal procedure whereby all might In ancient Judaea, however, both the obtain equal justice. The Mosaic legis- body and life of the slave were pro- lation, on the other hand, proclaimed tected by law. The Israelite slave who the doctrine of equality before the law was compelled to sell himself into bond- and attached such conditions of legal age on account of poverty or inability procedure as would guarantee a just to pay his debts had to be freed in the 5 trial and sentence. Not a few of the seventh year. The non-Israelite slave Mosaic laws can be considered ex- could be kept for life but he was re- provision garded as a member of the family.' emplary even today. The 7 that all human beings were entitled to He was allowed to rest on the Sabbath the same benefits of legal protection and the holidays. It is interesting to thus distinguished Jewish law from the note that he could even become his other legal systems of the times. master's heir. Abraham sent his slave, Whereas even the legislation of the "the elder of his house that ruled over 8 Hindus, which otherwise reached a all that he had," to select a wife for high level of development, differenti- his son Isaac. The master could like- ated between those of noble birth and wise take a slave-girl as his concubine the lowborn, the Bible declared: "One or give her to his son as a wife, but law shall be to him that is homeborn, as such she had to be treated with 9 and unto the stranger that sojourneth special consideration. among you.' This legal maxim, when After the above general remarks con- considered in the light of its setting cerning some characteristics of Mosaic 3 Deut. 13.12. 7 Cf. Ex. 20.10. 4Ex. 12.48. sGen. 24.2. 5 Cf. Ex. 21.2. 9 Ex. 21.10 f. a Cf. Lev. 25.44-46. MAX MAY legislation, we would like to elaborate favor, coining the phrase: "The thought upon several specific regulations. First, is as the deed." The concept of causal- however, we ought to discuss the term ity. of the relationship between cause "offender." It is axiomatic for us today and effect, was limited in its scope. that only a person who can be held Thus if a person made a fire which was responsibile for his actions is regarded spread by the wind, he was not held as an offender. The people of anti- responsible for the damage. The wind quity, however, considered animals also was regarded as the cause. The same as being gifted with will and reason principle held true in the case of a and hence responsible for illegal acts. person inciting a serpent or a dog to Jewish law accordingly declared that harm some one else. The direct guilt the ox which kills a man should be sen- was attributed to the serpent or to tenced to death. A distinction was, the dog. In both cases we see that the however, drawn between the ox that immediate cause alone was considered was an habitual offender and the one in the ancient theory of guilt. that gored a human being on one or Penal System. two occasions only. The owner of the first type of offender had to pay dam- As to the penal system, we notice that ages in full.10 fines, corporal and capital punishment Incidentally, Jewish law proscribed were the penalties usually inflicted. In cruelty toward animals. The Talmud addition to this, the Rabbis developed threatened the offender with flogging. a particular form of punishment: the The Biblical injunction: "Thou shalt ban. It could be inflicted for different not muzzle the ox when he threadeth offenses and in different gradations. out the corn"" is likewise evidence of A person might be ordered not to leave this humanitarian attitude. his home, prohibited from cutting his In regard to the theory of guilt, we hair and beard or from wearing shoes find the following modern concepts: or sandals. The most stringent ban Intention, Negligence and Accident. If, consisted, however, of excommunica- for instance, a person who is chopping tion and was imposed in cases of heresy wood accidentally drops his axe and and the like.