PROFESSOR CALLAHAN:Ms. Woods, would you rather have a client who committed a crime malum in se or malum prohibitum?
ELLE: Neither.
CALLAHAN: And why is that?
ELLE: I would rather have a client who’s innocent.
CALLAHAN: Dare to dream, Ms. Woods. Ms. Kensington, which would you prefer?
VIVIAN: Malum prohibitum. Because then the client would have committed a regulatory infraction as opposed to a dangerous crime.
CALLAHAN: Well done, Ms. Kensington. You’ve obviously done your homework. Now let us look at malum prohibitum a little more closely. It has been said…
He sees Elle’s raised hand.
CALLAHAN: Yes, Ms. Woods?
ELLE: I changed my mind. I’d pick the dangerous one ’cause I’m not afraid of a challenge. –Legally Blonde
One of the mainstay features of the first year of law school is an assortment of bizarre hypotheticals about unusual murders. The reason law professors make up these strange scenarios is to train students in understanding principles of action, omission, and especially indirect causality–an unsavory but effective way to develop lawyerly thinking. Much as I understood the pedagogical value of this stuff, I kind of recoiled from inculcating people with outlandish scenarios when the bread-and-butter cases they would encounter in practice called for more attention; this is partly why I taught substantive criminal law very differently in 2005-2006 and much later, in 2012. But Talmudic sages live for this stuff, because they feel an obligation to build a towering shrine of logic for every word in the Torah and in the Mishna, and the latter source holds that a murderer is to be decapitated. So, here come mountains of expounding on who counts as a murderer and who does not.
At common law and most U.S. jurisdictions, a person is culpable of homicide by act or omission (the omission must come with a duty to act; there is no inherent duty to save every person on the planet, only those whose dangerous situation you created or to whom you owe special care by contract, statute, or relationship). For one’s act or omission (A) to cause another’s death (B), A has to happen before B, and it must also be established that: had A not occurred, B would not have occurred, and there is some proximity in time and circumstances between the two.
As you’ll see from the following examples, the Talmudic causality logic is pretty straightforward, and very similar to the common law rule. A person is culpable of murder if he strikes the victim with a stone or with iron (any size is lethal, says Shmuel), or holds a victim underwater or in a fire (unless the victim can extricate himself but for some reason does not). Siccing a dog on a victim is murder, but according to some, doing the same with a snake is not (as the snake has a mind of its own). If A pushes B under water, but C holds B down, C is responsible for the murder. It even might be possible that A is not responsible, if his contribution ws not the lethal one.
What if A exposes B to the elements, and B dies of natural consequences (e.g., confined to a hot place and dies of heat, or tied up and dies of starvation)? The causation here is indirect, as the immediate cause of death will appear to be “natural”, but of course there is criminal accountability here, as it is the action of the murderer that creates the conditions for the natural cause of death. It is, however, crucial to figure out whether exposing B to the dangerous situation guaranteed the lethal outcome. According to Rava, for example, tying a person in front of a lion is not murder (the lion might not be hungry), but in front of mosquitoes is (they will inevitably bite). According to Rav Ashi, even the mosquitoes have a choice.
A dispute between Rava and Rav Zeira involves a situation in which A overturns a vat on B, and the latter dies of suffocation. The redaction is unclear about who thought what. Some believe Rava would acquit, because he would also exempt A from tying up B who dies of starvation. Others believe Zeira would acquit, because he woudl exempt A from putting B in a sealed marble house unless he lit a lamp emitting poisonous fumes in it (an issue of proximate cause).
A few more scenarios follow, which are trying to get at problems of indirect causality (what today’s criminal law scholars would call “lack of proximate cause” but, at least to me, the logic does not track well, and is certainly less persuasive than the previous round:
- A pushes B into a pit with a ladder. Later, C removes the ladder (or even A removes the ladder himself). The sages acquit A, because at least initially, B could have used the ladder to escape.
- A shoots an arrow at B, who holds a shield. If, after the arrow was shot but before it reaches its target, C removes the shield (or even A somehow traverses the time/space continuum and removes the shield), A is to be acquitted, as when he shot the arrow B was still shielded.
- A shoots an arrow at B, who holds medicinal herbs that can heal the wound. If C snatches the herbs from B (or even if A snatches them) before he can heal, A is exempt, as when he shot the arrow B could have saved himself.
- The latter scenario, says Rav Ashi, holds true even if B didn’t hold the herbs, but they were available at the market.
The page ends with some examples that have to do with dangerous items that rebound:
- A throws a stone to kill B. The stone rebounds off a wall and kills C; A is accountable (this is known in modern criminal law as “transferred intent.”
- Same story if A, B, and C play ball, which rebounds and hits D. If they intended to hit D, they are culpable (as a silly aside, if they did not intend to, they can go to exile, for which the term is “golin”, and the association with a goal is, at least for me, inevitable).
- If A throws a ball that hits B within four cubits (אַמּוֹת) of A’s location, A is not culpable, as it was not his intent to throw the ball such a short distance–though other dispute this and say that intent governs the outcome, regardless of distance.
- The outcome of rebounding and diverting objects has to do with the expected physical outcome of the action. If A diverts water from its course and the flow kills B, A is liable if he exercised enough force, or diverted the water, with sufficient pressure to kill. Similarly, if one throws an object up, the object is bound to come down, but if it takes some unexpected turn to the side and kills someone, the thrower is not liable.
This concludes page 77, which carries both me and you through the end of Tuesday, by which time my busy solo parenting will come to an end and we can resume on Wednesday with page 78 right on schedule with the rest of the Jewish world. More basic homicide law to come, so stay tuned. Happy rosh hodesh (beginning of the Jewish month) and Shabbat Shalom!