If one digs a pit in the public domain and an ox or a donkey falls into it, he is liable to pay the damages.Whatever shape one digs, he is liable to pay for the damage his excavation causes. If so, why is specifically a pit mentioned in the Torah? Just as a standard pit has sufficient depth to cause death, being ten hand-breadths deep, one is liable for any obstacle that has sufficient depth to cause death.
One is not liable for the death of a donkey in a pit less than 10 hand-breadths but is liable for the injury.
Art: Peasant Children with Donkeys by Edgar Bundy
4 comments:
Suppose you were to do something else potentially damaging but not fatal in the public domain - leave a stone on a road, for example, that might cause damage to a vehicle. You're reasonable expectation would be at worst, you could be liable for damages. But in fact, someone hits it, loses control of the car, and dies. In this case, you're only liable for a small portion of the actual damage you caused by your negligence. So suppose the court doesn't just want to assess damages after this kind of incident, but deter it occurring. They could then institute a fine for leaving a stone on the road. Should the fine be tied to the possible cost of damages to the vehicle, or to the possible cost of a freak accident where someone dies because of that stone? Building a fence around public safety, you would assess the higher fine, because there's no good reason to leave a stone in the road, you're not inhibiting an activity that has some positive aspects to it.
I'm wondering why so many of these rules are about the assessed damages after the incident rather than OSHA type laws to regulate behavior beforehand. Is it a libertarian streak? Is it that the Jewish courts at the time could judge between Jews but couldn't control public laws?
Matt, first off, Jewish courts could control public laws – because many time the situation they dealt with was related to places where Jews were the only residents or the majority. So the reason that didn't go into OSHA-type laws is not this.
Rather, I would venture to say that preventing all damage was not their goal. Before we go into the reason why this might be so, let's ascertain that we agree to this thesis. The courts were obligated to judge according to the Torah law. If the judges had a choice, they should have chosen not to judge. As we will see in Sanhedrin, a judge should view himself as if a sharp sword is hanging between his feet ready to punish for any errors. In such a situation, better not judge at all, but the ideal judge does this just because he has to.
Additionally, the purpose of the Jewish court is to decide the law, almost with the only desire to teach it, not to promote justice or fairness by itself. Usually judgment and fairness would be closely aligned, since “all Torah's way are pleasant” but if one had to be strict, then “let the law cut through the mountain.”
So if the Torah dictated the limits of damage payments, the judges would need a weighty reason to upset this balance and to further redistribute possessions. Not that they never had preventive laws – they could penalize for wrong-doings by declaring the ill-gotten gain and possessions ownerless – but they also had other goals too: religious observance, justice, peace, and balance. They would often balance what the people would listen to against what they wouldn't. For example, if an ignoramus brought his sacrifices to the Temple and claimed that they were ritually pure – he would be believed, for otherwise he could have created his own Temple with his own laws.
Next, Torah is called “a hedge of roses.” Who would be stopped by a hedge of roses with their small thorns? Only a person who is gently and law-abiding in the first place. Overly-vicious individuals would might not have listened to the Jewish court anyway.
And finally, there is a rule that the Rabbinical decrees are promulgated only for normal and frequent situations. Excessive damagers are not normal, and the courts would withdraw, letting the people figure the situation out and take the law into their hands.
In American court, no case is decided before it comes up. After it does come up, there is a big leeway in how far the court can get involved. In the Talmudic court, many cases are decided before they actually happen, and even if they can rarely happen. Once they do happen, however, the courts would rarely venture beyond the guidelines already prepared for them. This is even more true today, because technically today's court are just messengers of Sanhedrin, authorized to decide only most common cases.
Interesting. To summarize and comment:
1. Primary purpose of judging is to teach. Really? Is that a settled judgment? In a sense, it's an argument against the state of Israel. It implies that all of our studying is just practice for later, when the Mashiach comes. At that time, these laws will become real laws, until then, we live in a broken world where the best we can do is study G-ds laws, and only intervene in worldly affairs when absolutely necessary.
2. Judges will avoid judging except under necessity, so they won’t promulgate laws because that’s tantamount to proactively judging in cases that aren’t necessary to decide. So to use my example, why take a risk and judge someone for leaving a stone in the road when no one has been hurt by it? This makes sense in light of the previous comment.
3. Judge's authority is derived from Talmudic authority, not from an ability to coerce. So they assume authority over people willing to accept that authority. This actually reminds me of a passage in Aristotle’s Ethics where he argues that ethics are for gentry – because people have to have a stake in the society and the leisure to learn ethics before they can be counted on to act ethically.
4. In extreme situations, “the courts would withdraw, letting the people figure the situation out and take the law into their own hands” That sounds like a slippery slope to me. I would assume that people get along without intervention of courts most of the time, so any situation that required legal intervention is to some extent “extreme.” – where do you draw the line?
Matt,
> Primary purpose of judging is to teach. Really? Is that a settled judgment?
I only said it to emphasize. But look at the conversation between Moses and Jethro. Jethro advises that “judges will judge small matters, and big matter will come to Moses.” That is logical, and American law sets limits on small and large matters, for federal jurisdiction, for example, it is $75,000. Moses however talks about “easy and hard.” Regardless of the amount, “easy” means a clear law, and “hard” means that higher courts need to be involved, because the answer is not clear.
> In a sense, it's an argument against the state of Israel.
There are many arguments for and against the State of Israel, but in the Talmud it is indeed a question, whether one should abide by its laws. The basic rule is that “the law of the state is the law,” but this only applies to non-Jewish states. For a Jewish state, it should be the Talmud law. What if it is not? The answer is open.
> It implies that all of our studying is just practice for later, when the Mashiach comes. At that time, these laws will become real laws, until then, we live in a broken world where the best we can do is study G-ds laws, and only intervene in worldly affairs when absolutely necessary.
Basically, this is indeed true. The person should set aside study only for a mitzvah, and only such as can't be done by others.
> Judges will avoid judging except under necessity, so they won’t promulgate laws because that’s tantamount to proactively judging in cases that aren’t necessary to decide. So to use my example, why take a risk and judge someone for leaving a stone in the road when no one has been hurt by it? This makes sense in light of the previous comment.
Absolutely true. A judge should avoid being a judge. But if in his place there is no one like him in the amount and depth of Torah knowledge, then he has a serious obligation to judge.
Judge's authority is derived from Talmudic authority, not from an ability to coerce. So they assume authority over people willing to accept that authority. This actually reminds me of a passage in Aristotle’s Ethics where he argues that ethics are for gentry – because people have to have a stake in the society and the leisure to learn ethics before they can be counted on to act ethically.
Today yes. But there were times when the judges had the authority. Even so, it was only partly based on force, and also on ethics and religion, which is a delicate balance.
> In extreme situations, “the courts would withdraw, letting the people figure the situation out and take the law into their own hands” That sounds like a slippery slope to me. I would assume that people get along without intervention of courts most of the time, so any situation that required legal intervention is to some extent “extreme.” – where do you draw the line?
It's not in the extreme situations, for here we were talking about extremely malicious damagers who are rare, but rather the rule is that in the unusual situations Rabbis don't establish guidelines. So we are not talking about actual cases here, but rather about 'fences for the Torah,” be it monetary or religious matters, which are established only for often occurring circumstances.
The rules when courts would withdraw are not the same. This didn't happen often and would only happen if there was no clear basis
...to try whose right,
Of thine or mine, is most in Helena.
(Shakespeare)
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