A few days ago I wrote about the first session of a class applying talmudic reasoning to modern legal cases. The first class covered cases of unintended benefit: somebody, in the process of committing a crime, accidentally causes benefit to the victim -- does he deserve leniency? I noted that the class gives CLE credits and wondered in passing how that worked; why would the American Bar Association care about Jewish law, interesting as it is?

I've now had a chance to read an essay that was an appendix to the class materials, and that essay did a good job of drawing connections. I also learned a new term from it, "moral luck", which I gather is a term of art in some circles. (I'm not sure why "moral" exactly.) Example: a driver recklessly races down the road and hits a pedestrian. Another driver, equally reckless and speedy, almost hits a pedestrian but the pedestrian manages to jump out of the way. In both cases the drivers had the same intent and behavior; it's only that the second one got lucky and didn't hit anybody. But even though the drivers were the same, one will be punished much more severely than the other; the one who didn't hit anybody benefited from "moral luck".

We saw this in the case of the fisherman who saves a child from drowning. The sages in the talmud disagree about whether he is nonetheless liable for violating Shabbat (he didn't even know about the child so had no intent to save him); later the halacha is determined as I described in the previous post.

The essay then contrasts this with how US criminal courts operate. Courts deal in crimes, the author notes, and not primarily in outcomes (caveats to follow). It notes that in criminal law the interested party is the state; criminal law doesn't much care about victims per se. Because a criminal case is prosecuted on behalf of the whole community (bundled up into the state), a positive outcome for the victim isn't very important. Laws are about establishing the rules of society, in which smashing car windows to steal laptops from inside just isn't ok. (Smashing a car window because you saw the dog that was going to die from heatstroke is different, and not addressed.)

However, the essay goes on to note, prosecutors have discretion in whether to bring charges and which charges to bring. Further, there is wiggle room come sentencing time (assuming a conviction), and victim impact statements are often allowed.

While it appears that intent is secondary to action -- we prosecute for what people do, not what people want to do, and that's how the one reckless driver evades penalties -- the concept of punishing intention isn't absent from American law. We have laws about "hate crimes", which is purely a matter of judging intent. (I have, I think, written in the past about how I think these well-intentioned laws are nonetheless flawed. Thought-crime laws give me pause, and laws that seem to value different victims of the same crimes differently seem pretty iffy to me. But they're a thing, and they're a thing that's probably not going to go away.)

That's all about criminal law. The essay then turns to torts, which are between people (not the state) and involve the payment of damages. It uses the legal principle of "reasonable foreseeability" to argue that the thieves get no leniency for saving the dog because they didn't reasonably know about the dog, but then contrasts this analysis with the "eggshell skull" case, in which if you accidentally gravely injured/killed someone because of his unusual medical state (which you could not foresee) when you only meant to hurt him a little, you're held liable nonetheless. It appears that under American law you can't benefit but can be liable if consequences are not foreseeable.

The essay, written for the class and with many citations, is by Menachem Sandman, an attorney from New Haven, CT.

It's possible, perhaps probable, that the lawyers taking this class for CLE credits knew all that already, but a lot of it was new to this non-lawyer and I'm glad to have the additional context. It looks like each lesson has an accompanying essay of this sort -- cool!

I've taken a few classes put on by the Jewish Learning Institute (they teach concurrently in many locations worldwide) and am currently taking this one. The title is "The Dilemma", and they describe it as: modern dilemmas, talmudic debates, your solutions. Each class looks at a group of real incidents around some theme, after which we discuss what principles ought to apply before delving into relevant texts (talmud and later commentaries). It's a pretty neat class, though I keep identifying aspects of the problems that aren't the core point of the lesson and thus get set aside.

In the first class, the theme was cases where someone in the process of committing a crime does unexpected good -- should he be treated more leniently because of that? The cases were:

1. A terrorist attacks someone, stabbing him in the gut but not killing him. The victim is rushed to the ER, where doctors find a cancerous tumor that would have killed him within the year.

2. On a hot day, thieves smash a car window to steal the laptop sitting on the front seat, allowing a dog inside to escape the heat that would have killed him.

3. Civil law prohibits possession of alcohol, but someone nonetheless keeps a private stash. A disapproving neighbor smashes his kegs. Later that day, the civil authorities conduct a surprise inspection but find nothing with which to charge the person.

I noted that the three cases had different types of unintended benefits -- saving a human life, saving an animal's life, and saving money (the fine that wasn't paid). (On the transgression side, one is against a human life and the other two are against property. We were mostly focused on the benefit side, not this side.) I also noted that there were three types of culpability on the part of the victim -- the guy with the alcohol was knowingly violating local laws, the guy with the laptop recklessly endangered the dog, and the terror victim was an innocent bystander. I thought that both of these axes of variation would be relevant to the discussion, but that's not where the class went.

We then talked about some other cases, most significantly a passage from the talmud about a man who goes fishing on Shabbat and inadvertently catches in his net a child that had fallen into the water, thus saving the child from drowning. Fishing is not allowed on Shabbat, but saving a life takes priority over Shabbat laws. Does saving the child bring him any leniency for violating Shabbat? If he knew about the child there would be no question; pikuach nefesh trumps Shabbat. But in the case of an accident? The talmud rules that it's pikuach nefesh, saving a life, even if you didn't intend it, and so the fisherman is not guilty of violating Shabbat.

(Rabbi: "What do we learn from this?" Me: "If you're going to fish on Shabbat, have a child on hand to throw in." Rabbi: "..." What? It reminded me of always mount a scratch monkey. But I digress.)

From there we talked about applications, and learned that if the act itself causes the positive outcome then there is leniency -- for example, breaking the window to steal the laptop and freeing the dog -- but if the benefit comes only later, it doesn't. So the knife-wielding attacker doesn't get any leniency for the cancer discovery, and the person who destroyed his neighbor's alcohol stash owes him damages.

There was more, and also some material in the book that we didn't get to and that I haven't read yet. I don't claim to have learned all the answers, but it was an engaging class.

The second class was about taking the law into your own hands -- for example, you know that that guy right there is the one who just stole your iPhone and he's about to hop into a cab, so can you physically intervene? More on that later, I hope. (I had to miss the end of this class so I'm waiting for the recording, plus there are materials I need to read yet.)

This class gives CLE credits, which kind of mystifies me, so a lot of the students are lawyers. Apparently I fit in with them, dress aside. I'm not sure how talmudic studies help one be better at practicing Pennsylvania law, but if I were a lawyer I'd be tickled to be able to satisfy a professional requirement through torah study.

I was discussing this class in Mi Yodeya's chat room and somebody mentioned the book Veha'arev Na, which collects things like this -- real, modern question with Jewish-law interpretation. That sounds like something I would quite enjoy.

Followup post