Author ORCID Identifier

0000-0001-9960-7256

Document Type

Article

Publication Date

1998

Keywords

Jewish law, Criminal law, Talmud, Punishment, Guilt, Prosecution

Abstract

Our secular society cycles as to whether it glorifies defense attor­neys or prosecutors. Sometimes, we adore defense attorneys­ -- they are the lawyers who ensure that innocents are not punished, "L.A. Law" is the show to watch, and the attorneys to imitate. Other times, we revere prosecutors -- they are the lawyers who punish evil­doers, "Law and Order" is the show to watch, and the attorneys to imitate. Jewish tradition recognizes the inherent ethical difficulties with the conduct of both types of attorneys.

Jewish law recognizes that the societal imposition of the criminal justice system on citizens, who otherwise function in accordance with their own communal norms, is a significant burden on the community, both to prosecute criminals and to defend them. Thus, while Jewish tradition unanimously recognizes the central duty to participate in the common commercial practices and financial laws of the host country through the principle of the "law of the land is the law," participation in the criminal law process -- either to prosecute criminals or to defend them -- is much more problematic. The dilemma is simple: the prose­cution of Jews for "crimes" where the punishment seems vastly differ­ent than that mandated by Jewish law, or even where the criminalized conduct is permitted by Jewish law, seems contrary to Jewish tradi­tion. On the other hand, defending guilty people from punishment does not exactly seem in the spirit of Jewish law.

Three distinct issues are involved in a Jewish law discussion of an attorney practicing criminal law: 1) When is it permissible to inform upon a person for committing a crime and to serve as a witness at the trial? 2) May one prosecute criminals? 3) May one represent a person who has been accused of a crime, and what types of defense can one present? Each of these issues will be explored at some length.

First Page

1141

Publication Title

Fordham Law Review

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