Legal Advisor to Torah Mitzion
The Bach cites the Rambam’s ruling (Hil. Yesodei Ha-Torah 5:5) that a person who is liable for the death penalty may be extradited, like Sheva ben Bichri who rebelled against King David’s rule (see II Samuel 20). According to the Bach, this applies even where the non-Jewish authorities have grounds to kill him under their laws, but he is not deserving of death according to Jewish Law. In the case brought before the Bach, it was not certain that handing over the Jew would result in his death, because the authorities intended to conduct a trial, and the possibility existed that he would be proven innocent. Moreover, the sexton had received the bag allegedly containing the crucifix from another Jew in the presence of non-Jews who were present when the first Jew was taken away. In this manner, he had “brought it upon himself, by receiving the bag from the accused Jew in the presence of non-Jews, without considering the chance that they would accuse him as well,” and he himself was thus “the direct cause of his having to stand trial according to their laws.” Therefore, the Bach ruled “we may deliver him up to the authorities.”
In the Aloni judgment cited in our last column, Justice Menachem Elon deduces from this responsum, that the Bach was prepared to assume that the non-Jewish court of his time was capable of conducting an honest investigation and reaching a truthful verdict, and ruled that an accused could therefore be turned in to the authorities provided proof existed that he had committed the crime and there was at least a possibility that the sentence would not be death.
In his article published in vol. 8 of Techumin, cited in our last column, Rav Yisraeli disagrees. He avers that the opinion of the Bach does not involve any question of voluntarily handing over a Jew to non-Jewish justice, nor is there any discussion of the integrity and righteousness of that system of justice. It is understood, argues Rav Yisraeli, that the case was one of a libel, and the Jew is explicitly described in the responsum as having died “for the sanctification of God’s name.” The second Jew who is being sought by the authorities faces a similar fate to the first Jew despite being guilty of no more than foolishness in receiving the bag without considering the chance that he would be accused of complicity in the original “crime.”
Clearly, therefore, Rav Yisraeli argues, there would be no question of delivering the Jew were it not for the threat facing the leaders of the community that they would be punished in his place if he was not handed over. The question here is simply whether they must risk their lives for him when he, through his own actions, was the cause of the danger! Were it not for this danger, there would not have been the slightest reason to deliver him to the mercies of the corrupt system of his time. Rav Yisraeli states that he is “unable to understand what the relevance of the Bach’s case is to the case in question in the Aloni judgment, where no one faces any danger if the extradition will not be executed, and there is no duress to execute the extradition, and we have the ability to try him ourselves without endangering the Jewish community in Israel or elsewhere.” The logical conclusion, according to Rav Yisraeli, is obvious: “If there is no compulsion, there should be no extradition.”
Responsa of Rav Yair Bachrach and Rav Yaakov Emden
Justice Elon next cites the responsum of Rav Yair Bachrach (17th century Germany), “as being very pertinent to our topic, in regard to both the facts of the case and the author’s conclusions.”
Rav Bachrach (Shut Chavot Yair §146) was asked about a case involving a Jewish youth, a fugitive murderer, who was later caught by the authorities. Based on Rashi’s interpretation of the Talmudic passage about R. Tarfon (Niddah 61a, cited in Article 2 of the present series), he rules that it is forbidden to save the youth from the authorities, because of the duty to “eradicate all evil from your midst.” He then raises the possibility that, even though it is forbidden to save him, it may be permitted to give him advice on how to escape. In suggesting this possibility, Rav Bachrach relies on the words of R. Tarfon, who told those people who sought refuge with him that they should hide themselves – what may have amounted to advice on the part of R. Tarfon.
Justice Elon then quotes Rav Yaakov Emden (Resp. She’ilat Ya’avetz II 9) as rejecting this possibility out of hand, ruling that it was forbidden to give advice to a murderer on how to evade the judgment against him. In the case brought before him, one Jew who had murdered another Jew was arrested by the authorities and was given the possibility of acquitting himself by swearing a solemn oath that another person killed the victim and he was not the murderer. The local rabbi ruled that the murderer should save himself from death by swearing falsely. Rav Yaakov Emden vehemently rejected this advice and stated that “it is forbidden to save him from death through any means, even one not involving a transgression” and certainly not through making a false oath.
Based on the above-cited rulings of the Chavot Yair and Rav Yaakov Emden, which set forth a prohibition on shielding a criminal in cases of serious crimes, Justice Elon derives that, in a sovereign Jewish state, their rulings should be understood precisely as imposing a duty to extradite. According to Elon, in a small Jewish community the argument may be made that, while it is forbidden to conceal the offender from the authorities, there is no obligation to hand him over, and if the authorities so desire they can come and search for him. By contrast, in a sovereign state, it is impossible to simply turn a blind eye, because such is not the way of a Jewish state, which has a duty either to try the offender, if this is possible according to its laws, or to extradite him to a state which has the ability to try him, subject to the restrictions stipulated in the law. Therefore, when it is impossible to try the offender in Israel [as was the case in the Aloni affair], the State of Israel must extradite the offender in order to eliminate the evil from its midst.
Rav Yisraeli disagrees. The subject of the two above-cited rulings of the Chavot Yair and the Ya’avetz is not extradition or delivery, but rather whether we are obligated to save someone who has been arrested by the government authorities. A man accused of murder, who is subject to the death penalty under Jewish Law (which recognizes the appropriateness of the penalty), has already been arrested by the nonJewish authorities. According to Rav Yisraeli, these two great Halachic authorities view his situation as the imposition of the proper penalty through Divine intervention.