EXTRAORDINARY REMEDIES


Extrajudicial Remedies

As in other ancient civilizations, the earliest method of vindicating violated rights under biblical law was self-redress. A burglar at night may be killed on the spot (Ex. 22:1), life may be taken for life (see *Blood-Avenger) and limb for limb (see *Talion). Even when another man's rights were violated, one was exhorted not to stand idly by, but to interfere actively to vindicate them (Lev. 19:16; and cf. Ex. 23:4–5; Deut. 22:1–4). Again, as in other systems of law, self-redress was largely superseded by judicial redress – firstly because of unavoidable excesses on the part of avengers, secondly because the effectiveness of self-redress always depended upon the injured party being stronger than the wrongdoer and the weak victim was in, the danger of being left without a remedy, and thirdly because an injured party ought not to be the judge in his own cause. The right to self-help survived in the criminal law mainly in the form of self-defense or the defense of others; but in civil law self-redress is in talmudic law much more in evidence than in most other systems, and was a well-established legal remedy.

The biblical license to kill the nocturnal burglar (Ex.) is retained in talmudic law for the reason that such a burglar presumably knows beforehand that, if caught, he might be killed by the irate landlord and is therefore presumed to come with the intention to kill the landlord first, and: "whoever comes to kill you, better forestall him and kill him first" (Yoma 85b; Maim. Yad, Genevah, 9:7–9). There is no restriction in law as to the mode of killing such a burglar: "you may kill him in whatever way you can" (Sanh. 72b). But if the thief is caught alive, no harm may be done to him; nor may the landlord lay hands on him if he knows that the thief comes for money only and has no murderous designs, or where there are people around who would hinder him (ibid.; Maim. ibid., 10–12). Similarly, the biblical allusion to the duty of saving the girl in danger (Deut. 22:27) led to the rule that a man was allowed to kill the persecutor in order to save the persecuted girl from death or rape (Maim. Yad, Roẓe'ah u-Shemirat Nefesh, 1:10). While efforts must be made to avert the danger by means other than killing, a man is not to be charged with culpable homicide if he did kill even though the danger could have been averted by other means (ibid., 13). A person is under a duty to save another from death or rape even by killing the offender, and his failure to do so, while not a punishable offense (ibid., 15–16), is considered a grave sin (Lev. 19:16; Deut. 25:12).

The general right of self-redress in civil cases has been stated by Maimonides as follows: "A man may take the law into his own hands, if he had the power to do so, since he acts in conformity with the law and he is not obliged to take the trouble and go to court, even though he would lose nothing by the delay involved in court proceedings; and where his adversary complained and brought him to court, and the court found that he had acted lawfully and had judged for himself truthfully according to law, his act cannot be challenged" (Yad., Sanhedrin, 2:12). This final rule was preceded by a dispute between talmudic jurists, some of whom held that a man may take the law into his own hands only where otherwise, i.e., by going to court, he would suffer monetary damage (BK 27b). This view was rejected because there could be nothing wrong in doing what the law had laid down as right in the first place (Piskei ha-Rosh 3:3). The party taking the law into his own hands only took the risk that the court might, on the complaint of the other party, overrule him; so that in cases of any doubt it was always safer to go to court at the outset.

There were, however, cases of doubt as to what the law actually was, and as to where the respective rights of the parties lay – in which instance the court would uphold the title of that party who had already taken the law into his own hands and put the court, so to speak, before a fait accompli (kol deallim gaver: BB 34b). The reason for this rule – "a very startling phenomenon indeed" (Herzog) – is stated by Asheri to be that it would be unreasonable to leave the parties quarreling all the time – one trying to outwit the other – so it was laid down that once one of them had possessed himself of the chose in action, he was to prevail; the presumption being that the better and truer one's right is, the better and more unrelenting effort one will make to vindicate it, while a man with a doubtful right will not go to the trouble of vindicating it at the risk of being again deprived of it in court (Piskei ha-Rosh 3:22). This reasoning appears to be both legally and psychologically unsatisfactory; a better explanation might be that where the other party did not establish any better title to the chose in action, he could not succeed as against the party in possession, such possession being for this purpose recognized as accompanied by a claim of right (see *Evidence).

The rule applied not only to land but also to movables and money. Although courts are no longer competent to award *fines, where a person entitled in law to a fine has taken it from the wrongdoer, tefisah, he may retain it (BK 15b; Sh. Ar., HM 1:5); and where he had taken more than was due to him, the wrongdoer may sue only for the return of the balance (Tur and Rema, ibid.). A wife who had succeeded in collecting her ketubbah from her husband is allowed to retain it notwithstanding the husband's contention that only half of it is due to her (Ket. 16b). The holder of a bill which was unenforceable because of formal defects may retain the amount of the bill if he succeeded in collecting it (the numerous and rather complicated rules of tefisah were compiled by Jacob Lissa and are appended to ch. 25 of the standard editions of Sh. Ar., ḤM). But there is a notable exception to this rule; namely, no creditor may enter the debtor's house against his will, for it is written, "Thou shalt stand without" (Deut. 24:11); nor may the debtor's property be attached or sold in satisfaction of a debt otherwise than by process of the court (BM 9:13). Even where the debtor had agreed, by contract in writing, that the creditor may satisfy himself by seizing the debtor's property in case of default, the creditor was not allowed to do so except where no court was available to award him a legal judgment (Sh. Ar., ḤM 61,6; see *Execution; *Pledge).

Two instances of extrajudicial authority in inflicting punishments for crime may be mentioned. One is the prerogative of the king to kill any person disobeying or slandering him (Maim. Yad., Melakhim, 3:8) – not only is the king not bound by the rules of law and procedure, but he may lawfully execute murderers acquitted for lack of evidence or other formal grounds if he considers it necessary for the public good (ibid., 10). The other is the right of zealots (kanna'im) to kill thieves of Temple utensils, idolatrous blasphemers, and men cohabiting with idolatresses, without legal process, if they are caught inflagrante delicto (Sanh. 9:6): this rule derives its justification from the praise God heaped on Phinehas for his impassioned act in stabbing the man whom he found cohabiting with the Midianite woman (Num. 25:6–13).

Extralegal Remedies

Instances are already reported in the Bible of punishments being inflicted, mostly drastic and wholesale, and sometimes at the express command of God, but outside the framework of the law and without legal process (e.g., Gen. 34:25–29; Ex. 32:27–28; Judg. 20:13). With the elaboration of talmudic criminal law and procedure and rules of evidence, and the consequential complication of the criminal process, the necessity soon arose for extraordinary procedures in cases of emergency (Hora'at Sha'ah): it was in such an emergency that Simeon b. Shetaḥ is reported to have sentenced and executed 80 witches in Ashkelon on one day (Sanh. 6:4). Extralegal punishments such as these were stated to be justified or even mandatory whenever the court considered their infliction necessary for upholding the authority and enforcing the observance of the law (Yev. 90b; TJ, Hag. 2:2,78a). With the lapse of capital jurisdiction (see *bet din) – but not previously, as some scholars wrongly hold – this emergency power was called in aid to enable courts to administer the criminal law and uphold law and order generally, the very lapsing of the jurisdiction creating the "emergency" which necessitated the recourse to such emergency powers. Thus, courts were empowered to inflict corporal and even capital punishment on offenders who were not, under the law, liable to be so punished (Maim. Yad, Sanhedrin, 24:4); and there are instances already in talmudic times of illegal punishments being administered – such as cutting off the hand of a recidivist offender (Sanh. 58b), or burning an adulteress alive (Sanh. 52b; the Talmud (ibid.), however, adds: "That was done because the bet din at that time was not learned in the law."), or piercing the eyes of a murderer (Sanh. 27a). In post-talmudic times, new forms of *capital punishment were advisedly introduced, not only for penological reasons but also to demonstrate that these courts were not administering the regular law. Justification for such innovations was found in the biblical reference to "the judges that shall be in those days" (Deut. 17:9), the nature and content of the Hora'at Sha'ah, as the term indicates, depending on the circumstances and requirements of the time (Bet ha-Beḥirah Sanh. 52b; Resp. Rashba vol. 5, no. 238). The same considerations led to a general dispensation with formal requirements of the law of evidence and *procedure (Resp. Rashba vol. 4, no. 311). Conversely, prior deviations from such law, as, e.g., executions on the strength of *confessions only, were retrospectively explained as exceptional emergencies (Maim., loc. cit. 18:6).

A peculiar instance of an extra-legal remedy is the rule that where a litigant has a dangerously violent man for his adversary, he may be allowed to sue him in non-Jewish courts under non-Jewish law (Maim. ibid., 26:7; Resp. Rosh 6:27; Tur, ḤM 2; see *Judicial Autonomy; *Mishpat Ivri). In civil cases, courts are vested with proprietary powers so as to be able to do justice and grant remedies even contrary to the letter of the law (Maim. loc. cit., 24:6; and see *Confiscation and Expropriation; *Takkanot).

[Haim Hermann Cohn]

The fundamental provision referred to above allowed the Bet Din to deviate from original Biblical and Talmudic law in matters of evidence, procedure and penal policy, guided by the needs of the time and the place. Based on this provision, both the courts and the communal leaders utilized their authority to enact communal regulations (see entry: *Takkanot ha-Kahal) with detailed legislation concerning penal policy. Formally, such regulations are defined as "emergency provisions" (hora'at sha'ah), but they were in fact incorporated into substantive Jewish law. Indeed, Jewish courts throughout the Jewish Diaspora occasionally exercised their extra-legal punitive powers to adjudicate capital cases, and even to impose death sentences, without requiring a court of 23, and without being bound by the stringent rules of evidence imposed by the original Jewish law.

The Israeli Supreme Court discussed this issue at length in the Nagar case (Cr.A 543/79 Nagar v. State of Israel 35 (1) PD 113. Based on this principle, Justice Elon ruled that suspects could be convicted for the commission of murder even where the Court had no direct evidence of their commission of the crime, and even where the dead body had not been found.

For a broad discussion of this topic, see entries: *Capital Punishment; *Evidence.

[Menachem Elon (2nd ed.)]

BIBLIOGRAPHY:

Vogelstein, in: MGWJ, 48 (1904), 513–53; H. Cohen, in: Jeschurun, 9 (1922), 272–99; S. Assaf, Ha-Onshin Aḥarei Ḥatimat ha-Talmud (1922), passim; Gulak, Yesodei, 1 (1922), 171; 2 (1922), 17, 18; A. Gulak, Toledot ha-Mishpat be-Yisrael, 1 (1939), Ha-Ḥiyyuv ve-Shi'budav, 112 n. 41, 113–6; Herzog, Instit, 1 (1936), 226–8, 264f., 272f.; B. Cohen, Jewish and Roman Law, 2 (1966), 624–50, addenda 793–6; ET, 2 (1949), 11–13, 7 (1956), 385f.; 8 (1957), 512–27; Z. Wahrhaftig, Ha-Ḥazakah ba-Mishpat ha-Ivri (1964), 51–77. ADD. BIBLIOGRAPHY: M. Elon, Ha-Mishpat ha-Ivri (1988), 1:15f, 49ff., 421ff., 436ff., 1324ff.; idem, Jewish Law (1994), 1:15ff, 55ff.; 2:515ff., 533ff.; 4:1582; idem, Jewish Law (Cases and Materials) (1999), 200ff.; M. Elon and B. Lifshitz, Mafte'aḥ ha-She-elot ve-ha-Teshuvot shel Ḥakhmei Sefarad u-Ẓefon Afrikah (1986), 2:332, 337, 343; B. Lifshitz and E. Shohetman, Mafte'aḥ ha-She'elot ve-ha-Teshuvot shel Ḥakhmei Ashkenaz, Ẓarefat ve-Italyah (1997), 230.


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