A few years ago, the Moot Beit Din problem concerned a “ticking time bomb” situation. High school students from around the continent wrote their decisions about whether Halakhah should permit torturing a terrorist suspect to get information to defuse an attack on civilians. I was coach of the team from Frankel Jewish Academy, and my students had to research precedents in Halakhah for using torture.
Now torture has a respected place in many ancient legal systems, and in medieval law, and even in early modern law. Torture could be used to gain a confession: if the purpose of punishment is expiation, we need the guilty party to admit guilt for this act of repentance to take effect; so torture might get used on a guilty person who refuses to admit guilt. Or we need the confession to protect the image of the court: it might encourage rebellion if people see the guilty party maintain his innocence. Torture could be used to punish guilty parties, whose crime seems so great that we need a great punishment. Torture could express our relief at having caught the guilty party, or our revenge on him. In English common law, torture could even be used to get a reluctant witness to testify: the traditional method, called peine fort et dure, meant piling weights on the prospective witness until he either agreed to talk or died.
Well, my students looked through all the classical rabbinic literature they could find, and they asked all the scholars they could approach, and discovered . . .
Nothing. Not one example of a situation in which the Torah or the rabbis recommend torture.
American law has the Fifth Amendment, the right not to self-incriminate, which may discourage some forms of torture. A resolute defendant can refuse to talk to the court. Jewish law goes one better. The defendant cannot confess. If the defendant confesses, the court does not listen. “A person cannot declare himself evil” (Yevamot 25b). If he says, “I did it; punish me,” the court must not punish him. Prof. Aaron Kirschenbaum, the venerable scholar of Mishpat Ivri, in his classic work Self Incrimination in Jewish Law, explains that this exemption obviates torture in a rabbinic court. Even if we could force a confession out of someone, the court will not consider it; so there is no point in forcing a confession.
My students found no precedent for any form of torture in Jewish law.
After services, Ezra Drissman asked about the man who refuses to divorce his wife, under circumstances where the court has decided that he must divorce her. Rambam rules that we force him until he says “I am willing.” I think it a good question. It requires further research.
Well, my students looked through all the classical rabbinic literature they could find, and they asked all the scholars they could approach, and discovered . . .
Nothing. Not one example of a situation in which the Torah or the rabbis recommend torture.
American law has the Fifth Amendment, the right not to self-incriminate, which may discourage some forms of torture. A resolute defendant can refuse to talk to the court. Jewish law goes one better. The defendant cannot confess. If the defendant confesses, the court does not listen. “A person cannot declare himself evil” (Yevamot 25b). If he says, “I did it; punish me,” the court must not punish him. Prof. Aaron Kirschenbaum, the venerable scholar of Mishpat Ivri, in his classic work Self Incrimination in Jewish Law, explains that this exemption obviates torture in a rabbinic court. Even if we could force a confession out of someone, the court will not consider it; so there is no point in forcing a confession.
My students found no precedent for any form of torture in Jewish law.
After services, Ezra Drissman asked about the man who refuses to divorce his wife, under circumstances where the court has decided that he must divorce her. Rambam rules that we force him until he says “I am willing.” I think it a good question. It requires further research.
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