Who’s at Fault? — M Horayot 1:1 — #99

If the court issued a ruling permitting the violation of commandment mentioned in the Torah, and an individual went and unwittingly (bi-sh’gagah) did it on their instructions, whether [the court] did it and he did it with them, or whether they did it and he did it after them, or whether they did not do it and he did it, he is exempt because he relied on the court. If the court issued [such] a ruling and one of them knew that they erred, or a student qualified to issue rulings [knew that they erred], and the individual went and did it because of [the court’s] instructions, whether they did it and he did it with them, or whether they did it and he did it after them, or whether they did not do it and he did do it, he is liable because he was not relying on the court. This is the general rule: If one relies on himself, he is liable. If one relies on the court, he is exempt.

INTRODUCTION

A person who unintentionally violates a mitzvah, and even without knowing he did so, strikes us intuitively as entirely different from a person who knowingly and purposefully commits the same act. For the Torah, as for the Rabbis, there is a world of difference between a sin committed unwittingly (bi-sh’gagah) and one committed knowingly and intentionally (b’meizid). The liturgy of the High Holy Days reinforces this distinction. What happens when a court mistakenly declared a forbidden action permissible and a person relying on the court’s ruling violated a mitzvah?

Torah instructs (Leviticus 4 and Numbers 15:22–31) that one who sins unwittingly must bring a sacrifice as atonement to rectify their relationship with God and wipe the slate clean. Had the same person committed the same act intentionally, he would have deserved the punishment of karet (excision from the community). Horayot (“Instructions”), the last tractate in the Order Nezikim (“Damages”), concerns erroneous judgments made by the High Priest or the Sanhedrin and the consequences for one who acts on the basis of these mistaken rulings.

COMMENTARY

The mishnah first explains the conditions of the situation it wishes to discuss: A court promulgated an erroneous decision, permitting an act that Torah forbids. On this basis, an individual violated a mitzvah of the Torah, relying on the permission granted by the court. Whether that person committed the act together with members of the court, or whether she saw them do it and imitated them, or whether she merely knew about their ruling and committed the act independently, she is not considered guilty because she earnestly and reasonably relied on the court’s opinion.

If, however, she had reason to know that the court’s ruling was incorrect either because she was a member of the court, or because she herself possessed sufficient halakhic background and knowledge to realize the court’s error, yet she nonetheless acted in accordance with the court’s erroneous ruling (thereby violating a mitzvah) she is guilty of violating the mitzvah whether she did it (as in the first instance) together with the members of the court, in imitation of the members of the court, or independently on the basis of the court’s ruling.

Having expounded these two scenarios, the mishnah concludes by promulgating a general rule: If a person relies on his own judgment and it is wrong, he is liable for his behavior when it violates a mitzvah. If, however, a person relies on the ruling of a court that issues an erroneous ruling, he is not held guilty.

This raises the question: Can you claim you are innocent of violating the law by saying you were following a ruling of a court? According to the mishnah this depends: If you could not be expected to know their ruling was erroneous, you are not held liable. If, however, you had reason to know their ruling was invalid (perhaps because you had sufficient background) yet you go ahead and commit the forbidden act based on their ruling, you are guilty of the violation because you should have known—indeed, had the capacity to know—better.

QUESTIONS TO CONSIDER AND DISCUSS

1. Oliver North, working for the National Security Council during the Reagan administration in the late 1980s, was a central figure in the Iran-Contra scandal. (Weapons were illegally sold to Iran in the hopes of encouraging Iran to release U.S. hostages held in Lebanon. Profits from the weapons sales were funneled to right-wing Contra rebels in Nicaragua who engaged in massive human rights violations and terrorist attacks. The entire scheme was illegal.) North made clear in Senate hearings that he was proud of his actions, defending himself by saying, “I am not in the habit of questioning my superiors. If [Admiral Poindexter] deemed it not to be necessary to ask the President, I saluted smartly and charged up the hill,” and “I was given a mission and I tried to carry it out.” Where should the line be drawn between following orders and exerting one’s own moral agency? Have you ever faced such a decision?
2.  In 1945–46, following World War II, twenty-two Nazi leaders were put on trial in Nuremberg, Germany. Many of the defendants claimed innocence, arguing that “befehl ist befehl” (German: “an order is an order”); that is, they should not be found guilty for following orders. This is known as the “Nuremberg defense,” which Adolf Eichmann used unsuccessfully in 1962 to disavow responsibility for his crimes, claiming that he and others were “forced to serve as mere instruments.” When is “following orders” a reasonable defense? When is it not?
3. Three months after Eichmann’s trial began In Jerusalem, Yale psychologist Stanley Milgram designed an experiment (read about it here) designed to study how ordinary people could commit atrocities. Do you know anyone who participated in these, or similar, experiments? Do you think you would administer painful punishments to others? (Most people believe they would not, yet most test subjects did.) What conclusions do you think can be drawn from Milgram’s work about what Hannah Arendt termed “the banality of evil? (Eichmann in Jerusalem, 1963)