Judaism and American Law - Part 7

Tort law is similar in some respects to criminal law. In criminal law we have the public redress of offenses. In tort law the means are provided for the private redress of wrongs committed against either persons or property. For example, in criminal law, the offense of murder is prosecuted by the state on behalf of the people. The same murderous act may also provide the basis for a tort claim of wrongful death against the alleged killer by the surviving members of the victim’s family. The prosecution of criminal acts upholds the order of society. The litigation of tort claims arise out of the breach of duties that are owed to another as recognized and imposed by the law.

Our third passage under consideration provides one of the oldest formulations of a duty of care in tort law. Nearly every law student will recall a tort case read during their first year of studies that provides the legal maxim: “Every dog is entitled to one bite.” This rule, however, has its roots in Exodus, chapter 21, where we read, beginning in verse 28:

When an ox gores a man or a woman to death, the ox shall be stoned and its flesh shall not be eaten, but the owner of the ox is not to be punished. If, however, that ox has been in the habit of goring, and its owner, though warned, has failed to guard it, and it kills a man or a woman – the ox shall be stoned and its owner, too, shall be put to death. If ransom is laid upon him, he must pay whatever is laid upon him to redeem his life.

Though not as deferential to the life of the animal, the rule in Torah provides that the owner of the ox is preserved from greater liability upon the occasion of the first gore. The owner’s liability for injury to the victim is substantially increased, however, if the ox has been in the habit of goring. In modern tort law, the issue is whether the owner of the dog knew or should have known of the dog’s propensity to bite. If the answer to that question is yes, then the owner’s duty of care is heightened and his potential liability for injury caused by the dog bite is increased.

Judaism and American Law -- Part 6

Let's turn our consideration now to some specific passages in Torah where we will find that this foundational notion of justice is imbedded. I will suggest that it is exemplified by at least five provisions that have direct relationship to the administration of justice that has developed in our American Legal System. The first is procedural and the remaining four address substantive law. The first passage provides an approach to conflict resolution. In the four substantive areas, we will examine passages from Torah that articulate underlying aspects of justice and the function of law that have emerged as foundational within each of those substantive areas: in criminal law the idea of “order”; in tort law, the concept of “duty”; in contract, the notion of “promise” and in property law, the idea of “rights”.

The first passage is found in Exodus 18 and provides foundational guidance for the administration of justice through dispute resolution – for what is called in the American legal system, subject matter jurisdiction. In Exodus 18, Moses faced a dilemma. He alone was serving as the arbitrator of disputes. When his wise father-in-law observed how taxing the task was that Moses was then performing, he proposed a solution that has been followed even to our day in the establishing of courts of inferior and superior jurisdiction. The passage begins at verse 13:

"Next day, Moses sat as magistrate among the people, while the people stood about Moses from morning until evening. But when Moses’ father-in-law saw how much he had to do for the people, he said, “What is this thing that you are doing to the people? Why do you act alone, while all the people stand about you from morning until evening?” Moses replied to his father-in-law, “It is because the people come to me to inquire of God. When they have a dispute, it comes before me, and I decide between one person and another, and I make known the law and teachings of God.”

"But Moses’ father-in-law said to him, “The thing you are doing is not right; you will surely wear your self out, and these people as well. For the task is too heavy for you; you cannot do it alone. Now listen to me. I will give you counsel, and God be with you! You represent the people before God: you bring the disputes before God, and enjoin upon them the laws and the teachings, and make known to them the way they are to go and the practices they are to follow.

You shall also seek out from among all the people capable men who fear God, trustworthy men who spurn ill-gotten gain. Set these over them as chiefs of thousands, hundreds, fifties, and tens, and let them judge the people at all times. Have them bring every major dispute to you, but let them decide every minor dispute themselves. Make it easier for yourself by letting them share the burden with you. If you do this – and God so commands you – you will be able to bear up; and all these people too will go home unwearied.”

Moses followed his father-in-law’s counsel and appointed others who would hear the more minor matters – the small claims. The more difficult disputes were reserved for Moses’ immediate jurisdiction. This passage is one of the particular examples to which Dimont referred when he outlined the procedural dimensions of justice found in Torah. Others that also address procedural matters – what in American law is known as procedural due process – could be explored in greater detail, but we will turn our attention now to substantive areas of law.

In the second passage under consideration, we are presented with a foundational idea in criminal law – the requirement that every crime for which a punishment is prescribed be proven by a showing of not only the performance of a prohibited act but also that the act has been taken by the offender in a particular mental state. We readily recognize this requirement in modern criminal law when we speak of the difference between first degree murder which involved a premeditated act and second degree murder or manslaughter which involve un-premeditated acts or acts taken with reckless disregard for the life and well-being of the victim.

Exodus 21:12-14 provides a foundation for this requirement in criminal law of both actus reus, the prohibited act, and mens rea the requisite mental indent. It is this second element of the crime, the mens rea, that is deemed the substantial indicator of the level of punishment to be imposed upon the perpetrator of the offense. Note how this is expressed in Exodus 21:

He who fatally strikes a man shall be put to death. If he did not do it by design, but it came about by an act of God, I will assign you a place to which he can flee. When a man schemes against another and kills him treacherously, you shall take him from My very altar to be put to death.

This passage indicates that a person who has committed an un-premeditated killing is not subject to capital punishment, but may flee to a designated place of refuge. These “cities of refuge” are later expressly provided for in Torah, in Numbers 35:11ff:

You shall provide yourselves with places to serve you as cities of refuge to which a manslayer who has killed a person unintentionally may flee. The cities shall serve you as a refuge from the avenger, so that the manslayer may not die unless he has stood trial before the assembly.

Thus, Torah provides the foundation for the idea that proof of an objective outward act alone is not sufficient to properly administer justice in a criminal matter. Rather, the one called upon to administer justice must also determine the mental state of the actor who has committed the offense so that an unintentional act is not justly punished in the same way and with the same severity as an intentional criminal act. This distinction is one of the foundational elements that enables the punishment of the guilty through a system of criminal justice with the purpose of maintaining order in human society.