Posts Tagged ‘court’
The end does not justify the means (1) – Anti-terrorism
- With much political attention being paid to anti-terrorist measures, two thoughts arising out of last week’s parashah (I wanted to send this issue out last Friday but encountered technical problems) indicate the Jewish attitude on particular aspects of the issue.
- Hashem creates people to rule over the natural world (Bereishis 1:26). Rashi points out that the word for to rule has an alternative possible root, the verb to go down. If humans are worthy, they will control the natural world. If not, they will descend beneath the level of the natural world and become controlled by it. We can use our intellect to use the natural resources of the world to perfect it for all. Or we can use our intellect to pursue individual self-gratification at the expense of others and become wholly controlled by the animal instincts inside us.
- It is tempting to apply torture to terrorist prisoners (perhaps helpfully re-labelled as moderate forms of coercive punishment) in order to elicit information capable of saving innocent life. But to do so – or to allow other States in effect to do so on our behalf – is to lower ourselves to the level of the terrorist, allowing the end to justify the means. I have no right to depart from the path of rational, sensitive and humane treatment of prisoners, even in order to protect my own life or the lives of others. The Torah confers a right and duty to kill an attacker before he can kill me or someone else, but not to torture him or otherwise to indulge in behaviour which when we describe it as bestial we wrong the animal kingdom in ascribing to it what is in fact a purely human form of cruelty.
- But there will be times when in order to protect innocent life I am obliged to do things which, while not inherently wrong or falling short of the standards required of humans created in the Divine image, nevertheless have undesirable consequences. The rabbis famously describe Adam as having committed the first sin for the sake of heaven. What is meant is that the first sin is not to be understood in the same way as later sins. We sin by using the free-will gained when Adam ate from the tree of knowledge of good and evil in order to choose to gratify our animal selfishness rather than to serve Hashem by keeping His laws. Adam sinned by doing that which God had already predicted that Adam would do (as is clear from a careful reading of Bereishis 2:16 & 17) with the primary purpose of acquiring free-will which can be used to demonstrate love of the Divine attributes and thereby to serve Hashem as he has commanded, but which had the inevitable consequence that the same freedom would sometimes be abused, causing pain and suffering for the innocent victims throughout the world and throughout the centuries.
- In Jewish thought, the end does not justify the means in the sense of enabling them to be disregarded or in the sense of making undesirable means inherently desirable. But we are required to be realistic, and to recognise that undesirable consequences will frequently flow from actions which are necessary in order to secure their primary purpose. When a terrorist is imprisoned, his or her family will suffer. When a terrorist is deported, he or she may suffer in the destination country (despite our compliance with our international obligations). These sufferings are not unimportant, nor are they to be in any sense welcomed as a form of deserved punishment: but they are to be accepted, with sensitivity, as the necessary and unavoidable consequences of taking reasonable and humane action to preserve the safety of the citizens for whom this country is responsible.
Innocent or mostly innocent?
- In a recent criminal trial in America attracting considerable media interest, the defendant was acquitted; but his acquittal was accompanied by some public speculation that he may have been guilty of offences despite the fact that the prosecution had failed to prove its case in respect of the charges preferred.
- The Jewish approach to a situation like this is clear.
- The secular rule against double jeopardy, a person being tried more than once for the same crime, is found, but with variations, in Jewish law. In particular, while we will always reopen a criminal matter to turn a guilty verdict into an acquittal, we will not reopen an acquittal.
- Once a person’s acquittal is recorded, he must be allowed to function, in the same way as any other person, without aspersions being cast against him extra-judicially and in a manner which carries neither accountability or responsibility. So a former juror, or any other person, who accuses an acquitted defendant of wrong-doing is exposed to the same potential liability in Jewish law for defamation, and has to abide by the same laws of permitted speech, as apply in relation to anyone else.
- However, it can of course in theory happen that a defendant is acquitted for technical reasons, while the court is satisfied beyond doubt that he was guilty of a crime. In secular law, for example, there can be technical reasons for the inadmissibility of evidence whose veracity nobody doubts. And in Jewish law there may, for example, be a family relationship between the only two available witnesses which prevents the evidence of both being admitted; or there may have been a deficiency in the terms in which the requisite warning was administered.
- In such a case Jewish law allows the court to impose whatever measures – including imprisonment – it considers necessary for the protection of society. Anyone who believes that the verdict may leave unanswered questions of public safety is therefore able to apply to the courts for relief: but not to indulge in private extra-judicial accusations.
- In this way the Torah gives unlimited powers to the judicial institutions to preserve the rule of law and to protect the public, while at the same time ensuring that individuals have their liberty and reputation protected from interference otherwise than in accordance with due judicial process.
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