JUDAICA - Wisdom In Torah

extraordinary remedies
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. According to
the aforementioned arguments, when it is impossible to try
the offender in Israel, the State of Israel must extradite the offender
in order to eliminate the evil from its midst.
In the same judgment, Justice Elon ruled that, in the
event of a reasonable probability of danger to the life of the
accused were he to serve his sentence in a foreign country, he
should not be extradited. This was in contradistinction to the
majority of the Court, who ruled that extradition should only
be avoided in the event of a high probability of danger to his
life. Justice Elon also ruled that the execution of the extradition
be delayed until arrangements are put in place to ensure
that the accused’s wife will not find herself in a state of abandonment
(iggun). It should also be noted that, in this judgment,
Justice Elon recommended that the Extradition Law
be amended so as to allow a criminal sentenced by a foreign
court to serve his sentence in an Israeli jail; indeed, in 1999
the law was amended in this spirit.
The position adopted by Justice Elon aroused controversy.
Amongst his disputants was R. Shaul Yisraeli (see bibliography),
who emphasized the prohibition of litigating before
non-Jewish courts. According to R. Yisraeli, the possibility of
delivering a Jew to the authorities by virtue of the Law of the
King and “dina de-malkhuta dina” only exists where there is
no autonomous government in Israel and no possibility of
trying the criminal under Jewish law. In addition, he states
that the authority of government law, by virtue of the principle
of “dina de-malkhuta dina,” only applies to those citizens
who live within the borders of that state. It does not extend
to validate an extradition agreement between states, and it is
therefore forbidden for the State to enter into an extradition
treaty which, according to R. Yisraeli, has no validity from
the halakhic point of view even post factum. R. Yisraeli also
emphasizes the merits of the Land of Israel, by whose virtue
arguments (for his innocence) may be found in his favor
(Makkot 7a). The solution suggested by R. Yisraeli to ensure
that the State of Israel does not become a “sanctuary for criminals”
is for the State to enact a law according extra-territorial
status to Israeli criminal law, enabling all Jewish criminals to
be tried in Israel.
It should be noted that the Jerusalem Rabbinical Court,
in considering the issue dealt with by the aforesaid Supreme
Court judgment, determined that an extradition treaty made
by the State of Israel with another state has halakhic validity
by virtue of the principle of “dina de-malkhuta dina” because
“it is a matter of good governance that the State of Israel not
become a refuge for Israeli criminals and that we should be
able to punish criminals who are located in other countries
– in Israel” (File 8384/5747, pp. 27–28, given on 12 Tishrei
5748, 5/10/87).
ADD. Bibliography: M. Elon, Jewish Law (1994), 4:1861,
1862; idem, Jewish Law (Cases and Materials) (1999), 369–88; idem.,
“Laws of Extradition in Jewish Law,” in: Teḥumin, 8 (1986/7) 263–86;
304–9 (in Hebrew); S. Yisraeli, “Extradition of an Offender to a Foreign
Jurisdiction,” in: ibid., 287–96 (in Hebrew); J.D. Bleich, “Extradition
of an Offender to a Non-Jewish People,” in: ibid., 297–303 (in
Hebrew); idem, “Extradition of an Offender Who Has Fled to Ereẓ
Yisrael,” in: Or ha-Mizraḥ, 35 (1986/7), 247–69; Y. Gershuni, “Is it Permitted
for the Government of Israel to Extradite a Criminal to Another
Nation?” in: Or ha-Mizraḥ, 21 (1971/2), 69–77 (in Hebrew); B.
Rabinowitz, “Teomim, Extradition For Imprisonment by Non-Jews”
in: No’am, 7 (1963/4), 336–60 (in Hebrew).
[Menachem Elon (2nd ed.)]
EXTRAORDINARY REMEDIES.
Extrajudicial Remedies
As in other ancient civilizations, the earliest method of vindicating
violated rights under biblical law was self-redress. A
burglar at night may be killed on the spot (Ex. 22:1), life may
be taken for life (see *Blood-Avenger) and limb for limb (see
*Talion). Even when another man’s rights were violated, one
was exhorted not to stand idly by, but to interfere actively to
vindicate them (Lev. 19:16; and cf. Ex. 23:4–5; Deut. 22:1–4).
Again, as in other systems of law, self-redress was largely superseded
by judicial redress – firstly because of unavoidable
excesses on the part of avengers, secondly because the effectiveness
of self-redress always depended upon the injured
party being stronger than the wrongdoer and the weak victim
was in, the danger of being left without a remedy, and
thirdly because an injured party ought not to be the judge in
his own cause. The right to self-help survived in the criminal
law mainly in the form of self-defense or the defense of others;
but in civil law self-redress is in talmudic law much more
in evidence than in most other systems, and was a well-established
legal remedy.
The biblical license to kill the nocturnal burglar (Ex.) is
retained in talmudic law for the reason that such a burglar presumably
knows beforehand that, if caught, he might be killed
by the irate landlord and is therefore presumed to come with
the intention to kill the landlord first, and: “whoever comes
to kill you, better forestall him and kill him first” (Yoma 85b;
Maim. Yad, Genevah, 9:7–9). There is no restriction in law as
to the mode of killing such a burglar: “you may kill him in
whatever way you can” (Sanh. 72b). But if the thief is caught
alive, no harm may be done to him; nor may the landlord
lay hands on him if he knows that the thief comes for money
only and has no murderous designs, or where there are people
around who would hinder him (ibid.; Maim. ibid., 10–12).
Similarly, the biblical allusion to the duty of saving the girl in
danger (Deut. 22:27) led to the rule that a man was allowed
to kill the persecutor in order to save the persecuted girl from
death or rape (Maim. Yad, Roẓe’ah u-Shemirat Nefesh, 1:10).
While efforts must be made to avert the danger by means other
630 ENCYCLOPAEDIA JUDAICA, Second Edition, Volume 6