Active vs. Passive Killing

I attended a private Jewish high school, and two classes each day were designated for Talmudic study. The Talmud, as Wikipedia describes it, "is considered an authoritative record of rabbinic discussions on Jewish laws, ethics, customs, legends and stories." Although Talmudic law diverges greatly in many respects from contemporary U.S. law, familiarity with its underlying logic and method can be a useful preparation for the study and practice of American law. For example, Alan Dershowitz, who was raised as an Orthodox Jew (as was I) and studied Talmud in a Yeshiva before attending law school, often peppers his writings with esoteric references to Talmudic arguments.

Amanda Butler notices one of these references in Dershowitz?s Why Terrorism Works: Understanding the Threat, Responding to the Challenge:

The ancient Jewish system of jurisprudence came up with yet another solution to the conundrum of convicting the guilty and preventing harms to the community in the face of difficult evidentiary barriers. Jewish law required two witnesses and a specific advance warning before a guilty person could be convicted. Because confessions were disfavored, torture was not an available option. Instead, the defendant whose guilt was obvious from the circumstantial evidence was formally acquitted, but then he was taken to a secure location and fed a concoction of barley and water until his stomach burst and he died. Moreover, Jewish law permitted more flexible forms of self-help against those who were believed to endanger the community.[fn. 38] p. 157

Two of the Talmudic tractates we studied in high school were Makkot ("lashes" or "hits") and Sanhedrin (the name of the Rabbinical Supreme Court), presumably because these topics are of interest to teenage boys, as they deal with crime and punishment, burdens of proof, and various other related issues. The barley and water punishment is discussed in Sanhedrin.

Amanda interprets Dershowitz?s description of the punishment as if the intent was torture, but that is not the case.

I emailed Amanda the following and she included it in an update to the original post:

If I recall correctly, the reason why the Rabbinic courts used the barley and water punishment was not because they wanted to inflict suffering (although this may have been a secondary concern insofar as a strong deterrent was desirable), but because they were divinely prohibited from actively executing a criminal unless they could establish the extremely high burden of proof. Feeding someone raw barley and water was considered a passive form of killing, and thus permitted, because it was only through the reaction of the two ingredients, and the voluntary nature of the feeding (the prisoner was not force-fed, but actively chose to eat the barley and water because nothing else was available), that the desired result would take place. Perhaps this distinction between active and passive killing is not quite as distinct under modern theories of justice.

Will Baude responds with the claim that a similar distinction between active and passive killing is still with us today. Will claims that death penalty opponents "are unwilling to lock somebody in jail for 5-15 years and then eventually execute them, but perfectly willing to lock them in jail until they die."

While I agree with the general point Will is trying to make here, which is that capital punishment is not morally "different than all of the other terrible things we do to people convicted of crimes," I think Will's interpretation of this difference as a distinction between active and passive is mistaken, for the reasons Amanda later mentions. Locking someone in jail for life is not passively killing them, unless we use some non-literal (perhaps Randian?) definition of the term "killing," which might be something along the lines of "depriving someone of freedom is tantamount to killing them." Perhaps one could say that locking someone in jail reduces their life expectancy, but this is a strained argument - the purpose of jailing is not to shorten the prisoner's lifespan, whereas the purpose of feeding a prisoner raw barley and water was to bring about their untimely death.

On a somewhat related note, Amanda makes an excellent observation - one which I was thinking of, but did not mention, when I said that "perhaps this distinction between active and passive killing is not quite as distinct under modern theories of justice." With regard to assisted suicide, current U.S. law (at least in most states) makes a very similar distinction between active and passive killing. Under certain circumstances, doctors are legally permitted to withhold treatment - life support, food, oxygen, etc. - which results in the patient's death. However, doctors cannot - under current law - actively end a patient's life by injecting a toxic substance into his or her body. [Amy Phillips has a persuasive post on why this should not be the case.]

This distinction between active and passive is extremely important for libertarian moral theory. Libertarians tend to advocate negative, or passive rights - rights which can be respected simply by not acting. On the other hand, non-libertarians tend to advocate positive, or active rights - rights which require some amount of action on the part of others. For example, a libertarian conception of the right to life implies that others may not take your life from you against you will, whereas a non-libertarian conception of the right to life implies that all of us have a moral obligation to sustain the lives of our fellow human beings.

Update: Will Baude writes:

Okay, Micha and Amanda are right that this isn't actually the active/passive killing distinction. But it is, I think, a very similar artificial moral construct. Am I being too arrogant in suggesting some future society will think us silly for making such a comparatively big fuss about death and little about imprisonment?

As I said previously in this post, I agree with Will on this point; I don't see any moral problems with capital punishment. However, I still think there are strong libertarian objections to the death penalty, such as cost efficiency and skepticism of the state's ability to administer justice effectively. Further, even if these two problems could be overcome, there is a strong economic argument against capital punishment. Executions are basically a dead-weight loss for society; the only good that might come from them is possibly deterrence, although there is not much empirical evidence supporting this claim. Rather than execute a criminal, which negates any possibility for restitution if he is later found to be innocent, why not put him to work (perhaps even extremely undesireable work) that could benefit society and compensate his victims?

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"the defendant whose guilt

"the defendant whose guilt was obvious from the circumstantial evidence"

Obvious to whom?

My reaction to this is the same as to the (probably) hundreds of rednecks I've heard, over a lifetime, say that when the cops "know" somebody's guilty of a heinous crime, they should just kill him on sight. Why would anyone trust the state's claim to "know" somebody's guilty if they don't have enough evidence to meet standards of due process and convince a jury beyond a reasonable doubt.

Kevin, The burden of proof


The burden of proof under rabbinic law is extremely high - so high, in fact, that a court which convicted more than one person in 70 years to death was considered "bloody," and some rabbis claimed that if they had been on the court, there would not have been even one death penalty case under their tenure.

Conviction in a death penalty case required two witnesses, both of whom were standing together when they witnessed the act, and neither could be related to the other in any way. More importantly, the two witnesses were required to warn the perpetrator immediately before he was about to commit the crime of the potential penalty. The murderer must verbally answer that he chooses to proceed anyway. I could go on with all of the various requirements, but it should be obvious why it was so difficult to ever convict anyone.

However, in order to have a functioning society, they couldn't simply let murderers go free. And yet they couldn't execute them either, because of the religious requirements. So, in cases where there was only one witness, or the witnesses were separated from each other, or there was no warning, etc., then the court would use this passive form of execution, which didn't require the high religious burden of proof.

I see the conflict. And if

I see the conflict. And if my own values were put into practice, formal conviction might be equally difficult--I've got an extremely low threshold of "reasonable doubt," and as a juror I'd be a prosecutor's worst nightmare.

But the solution to this difficulty should occur at the front end, with armed citizens bearing the primary responsibility for self-defense and prevention. Most decidedly not after the fact, with a wink and a nudge, when the state can't meet the formal burden of proof. Unless that old saying "Better ten guilty men should go free...." is just a saying.