Proposition: [Here is an example illustrating the need for an Oral Torah:] "Thou shalt not kill" (or, more properly translated, murder) seems pretty unambiguous. But does it apply to war? Can one bomb a military base knowing that civilians nearby will be killed? Is it murder to kill someone who is torturing you, but will not kill you? Is it murder to take a breathing tube from someone whose brain wave is flat but whose heart is still beating? How certain does one have to be to impose capital punishment without it being considered murder? These questions are not clearly answered by text alone.
Response: 1. But does it apply to war? Murder, by definition, is the unlawful taking of human life. It is always unlawful to do that which is unlawful to do. It is permitted to kill in war, but only within the bounds of the Law.
2. Can one bomb a military base knowing that civilians nearby will be killed? Torah contains a number of laws that regulate warfare. There is, for example, Deuteronomy 20:10-18:
When you approach a town to attack it, you shall offer it terms of peace. If it responds peaceably and lets you in, all the people present there shall serve you at forced labor. If it does not surrender to you, but would join battle with you, you shall lay siege to it; and when YHWH your God delivers it into your hand, you shall put all its males to the sword. You may, however, take as your booty the women, the children, the livestock, and everything in the town -- all its spoil -- and enjoy the use of the spoil of your enemy, which YHWH your God gives you.Thus you shall deal with all towns that lie very far from you, towns that do not belong to nations hereabout. In the towns of the latter peoples, however, which YHWH your God is giving you as a heritage, you shall not let a soul remain alive. No, you must proscribe them -- the Hittites and the Amorites, the Canaanites and the Perizzites, the Hivites and the Jebusites -- as YHWH your God has commanded you, lest they lead you into doing all the abhorrent things that they have done for their gods and you stand guilty before YHWH your God.
The passage discusses a town that is about to be attacked by a Jewish army. Before the attack, the Jewish army must give the town the option to surrender. If it agrees to surrender, none of its inhabitants are killed. However, if the town refuses to surrender, once it is taken, all of its adult men are killed, and, in some cases, all of its population is killed. Since this is the law, this killing is not murder, that is, it is not unlawful killing.
Note that no explicit distinction is made between civilians and soldiers. It is true that in ancient times, all (or most) adult males could be considered to be soldiers. But note that all soldiers are killed after the town is already taken. A modern moralist might call it "murder", but it is not murder by Torah's standard. As for civilians (women and children), it does not say anything about avoiding harming them during the attack. In fact, such a thing would have been impossible, as there were no "smart bombs" at the time.
This passage applies in a straightforward manner to the question being asked. If Jews are attacking a military base, they must offer it terms first. If it refuses to surrender, they may attack, without any reservations.
By the way, for the past 57 years of the Arab-Israeli conflict, Israel has been doing its best to protect as many lives of the enemy, and of the civilians associated with the enemy, as possible. And what of it? Israel is surrounded by genocidal dictatorships, yet the eyes and the accusations of the world are fixed on the Jewish State. The "morality" of saving as many lives as possible, especially enemy lives at the expense of one's own, is unrealistic, untenable, and unsustainable. It is promoted as a natural morality by those who are far from war, who style themselves more civilized, but who do not understand the realities of the world; that is, mainly by Europeans and liberals in America and elsewhere in the Western world. It is a hypocritical morality since none of the countries that promote it actually abide by it once the push comes to shove. It is a morality that is being shoved on Israel, and which Israel, and no other country, is expected to follow. Unfortunately, it seems many Israelis feel that they have to follow this foreign "morality". ("What will the world think?") But the more they try to abide by it, the worse the situation becomes. The war continues, and the more they bend over, the more they are being accused of wrongdoing.
3. Is it murder to kill someone who is torturing you, but will not kill you? How do you know that the torturer will not kill you? Torture is likely to lead to death. Does the torturer say that he will not kill? And a torturer is trustworthy because? Also, even if he means it, since it is, after all, torture, he might "accidentally" go too far and kill anyway. All in all, the tortured person has every reason to see the torture as a threat to his life and to act accordingly.
4. Is it murder to take a breathing tube from someone whose brain wave is flat but whose heart is still beating? The proper question here is, Is such a person alive or dead? If he is alive and this action will make him dead, then it is murder; if he is already dead, then it is not murder.
The criteria for determining whether a person is alive or dead is set experts in the field, that is, medical doctors, not by Rabbis. That criteria has evolved over time. But that's OK: as long as we act according to the best information available at the time, what more can be asked for? According to the current best definition, a person is dead if brain death has occurred. Thus, if "brain wave is flat" means brain death, then, according to the best information available to us, the person is already dead, and removing the breathing tube is not murder.
5. How certain does one have to be to impose capital punishment without it being considered murder? I am surprised that Wolpe says "These questions are not clearly answered by text alone," since this question is specifically addressed by the Tanakh.
If anyone [murders] a person, the manslayer may be executed only on the evidence of witnesses; the testimony of a single witness against a person shall not suffice for a sentence of death. (Numbers 35:30)[In case of idol worship] A person shall be put to death only on the testimony of two or more witnesses; he must not be put to death on the testimony of a single witness. (Deuteronomy 17:6)
A single witness may not validate against a person any guilt or blame for any offense that may be committed; a case can be valid only on the testimony of two witnesses or more. (Deuteronomy 19:15)
All three verses give the same standard. Deuteronomy 19:15 sets down a general rule that, for any crime, a person is found guilty only if there are two or more witnesses who testify to his crime. Numbers 35:30 reiterates this general rule in case of murder: the suspect is found guilty and capital punishment applies if there are two or more witnesses. Deuteronomy 17:6 reiterates the same general rule in case of another capital crime: idol worship. From this we see the straightforward Tanakhic standard: at least two different witnesses testifying that a person committed a crime are required for punishment, including capital punishment, to apply. These witnesses are testifying under threat of penalty for perjury (and therefore are less likely to lie if there was no such penalty):
If a man appears against another to testify maliciously and gives false testimony against him, the two parties to the dispute shall appear before YHWH, before the priests or magistrates in authority at the time, and the magistrates shall make a thorough investigation. If the man who testified is a false witness, if he has testified falsely against his fellow, you shall do to him as he schemed to do to his fellow. (Deut. 19:16-19)
In ancient times, the only possible evidence was a witness. Today, there are many different types of evidence. Each type of evidence has its own degree of reliability. Some types of evidence are less reliable than witnesses (who testify knowing the above penalty for perjury) and some are more reliable. Two separate witnesses, the minimum standard, have a certain reliability. In modern times, a person should be found guilty if the evidence against him has this much or more reliability. The amount of reliability in each type of evidence and in each combination of evidence should be determined by experts in the field, that is, by criminologists, not by Rabbis.
Posted by Ami at August 28, 2004 08:57 AM | TrackBackThe actual verse is Deuteronomy 19:19, and Ramban's commentary on that verse, on the word Zamam, referring to the false witnesses.
The argument of ramban (in parshat Shoftim and not ki tetze as i incorrectly wrote), is that the Judges will be given divine assistance on rooting out false witnesses. He argues that G-d would not allow the Judges to be duped by false witnesses, and their decision must therefore be always correct.
A) This is a special ase, rather than a general claim of infallibility, since the verse suggests that the judges will root out and punish the false witnesses.
b) I think that there is no scientific guarantee that Judges will always see thru every scheme, and the Torah even has sacrifices for erros made by the Sanhedrin, or the elders.
c) It is even recorded in the talmud that the sanhedrin once put to death a man (son of shimon ben shetach) based on false testimony by witnesses. This is a whole story, but apparently they learned that the witnesses were lying, but they decided to go ahead with the execution anyway, since the sanhedrin already reached their (phoney) verdict! This story refutes both the thesis of the Ramban, and the myth of the righteousness of the rabbis - who deliberately murdered somebody who they knew was innocent.
d) Infallibilty in general is a huge essay. In short, the Haredim believe their rabbis to be infallible, but speak in forked tongue language when talking about it. they base it on a sifre which is basically the mother of all cults and brainwashing, ie listen to the rabbis even when they talk absolute rubbish. this view was refuted by the Yerushalmi in Horiot, and also the Bavli implies that decisions contrary to the Torah made by any sanhedrin are worthless.
In sum,even the Oral Law does not espouse nfallibility. The charedim , howover, select the sifre, and ignore the Yerushalmi and Bavli, in order to brainwash their followeres to accept everything the rabbis say blindly.
eddie,
Could you provide a reference and a quote from Nachmanides? Has this commentary been codified into Orthodox law? (And if so, where?) If this can be shown, it would bolster the case against Oral Torah even more.
Posted by: Ami at September 3, 2004 12:43 AMJust a brief follow-up to what I'd just said below...
That encyclopedia article was titled "infallibility", and I for this figure on what the Christian equivalent of a Beith Din has done to the world over the last 1500 years or so:
"For teaching faith contrary to the teaching of the Church of Rome, history records the martyrdom of **more than 100 million people.**" (Brief Bible Readings p. 16)
"Power corrupts, and absolute power corrupts absolutely." (H.G. Wells, The Invisible Man)
-Ya'aqov
Posted by: Ya'aqov at August 29, 2004 05:07 PM**According to Nachmanides, the otherwise great commentator, a rabbinic Bet Din is infallible , since they have divine guidance (based on Talmudical legend). **
Hmm... now, where have I heard this language before... oh yeah!
"That an ecumenical [Church] council... is an organ of infallibility will not be denied by anyone who admits that the Church is endowed with infallible doctrinal authority.
...the infallibility claimed for the pope is the same in its nature, scope, and extent as that which the Church as a whole possesses"
--Excerpted from the 1917 Catholic Encylcopedia
Interesting, these ideas of "infallibility" given to a body of relgious elite NOT derived from Scripture, but from 'Sacred Tradition' evolved at the same time (300-500 CE) in both Rabbinic Judaism and Christianity.
And we ALL know what happened when the "Infallibile Church" made a decision regarding those heretics who disagreed with them...
We are always to use discernment, even with the leadership, as we know that even Mosheh and Aharon exercised poor judgment at times...
Mizmor (Psalm) 146:3 "Put not your trust in princes, nor in a son of man, in whom there is no help."
Shavu'a tov,
Ya'aqov (James Walker, II)
There is also a counter argument against such claims by the rabbanites. That, the Oral Law actually prevents us from carrying out the True meaning of the Torah law.
There are plenty of examples, as i have mentioned before.
Look at Ki tetze for example, in the discussion of impeaching false witnesses. According to Nachmanides, the otherwise great commentator, a rabbinic Bet Din is infallible , since they have divine guidance (based on Talmudical legend). Hence, they can NEVER mistakenly put anyone to death by accepting false testimony. This whole assumption of Infallibility is counter to all that the Torah teaches. In parshat Shoftim, we are told how gifts and bribes can pervert the judgements of the wise. We are also warned by the Torah, not ot follow the majority to do evil.
These great concepts of the Torah, are destroyed by rabbinic self-importance. The entire legal system is perverted by the false assumption that judges are infallible.
Posted by: eddie at August 29, 2004 01:18 AM