Why do we even have these laws?
Very little generates as much heated debate as the recent cases in Florida and elsewhere that purport to call “Stand Your Ground” laws into focus. Without getting too deeply into the detailed legal issues, it seem that most discussion of these laws perpetuates a fundamental misunderstanding of why they are passed into law in the first place. Once we understand the motivation for passing these laws, we will, I believe see that Jewish law and legal philosophy supports such statutes.
The discussion often centers on specific cases that evoke strong emotional responses and involve a range of social issues – concealed carry laws, racial profiling – that are not what the law is really about. Many of those cases do not even make use of the statutes in question as part of the legal defense or prosecution, but because they involve the use of deadly force they are subsumed under that umbrella.
To really understand laws that protect people from criminal and civil prosecution, and do not require a person to retreat before using deadly force, we must ask: “What situations were these laws intended to address?” Contrary to what in reported, stand your ground laws do not allow a person to kill another person with impunity. They were not passed to give permission for any actions not previously permitted under those states’ laws. Instead these laws were passed to address a serious flaw in the prosecution of people who use force in defense of life and limb.
Unfortunately, it is not unheard of for someone to need to use legitimate and deadly force in self-defense. Even more unfortunately, it is not uncommon for someone who does so to be subject to prosecution, imprisonment, financial and social ruin, only to be found not guilty later, or to sometimes be found civilly liable even though the situation may have clearly called for such a level of use of force. Only if one believes that there are absolutely no circumstances that justify deadly force, can such cases be acceptable. Certainly Jewish law does not hold this position. “Ha’bah l’horgechah. Kam l’horgo – If a person is coming to kill you, you should proactively kill them first.” In Jewish law, there are situations where force, up to and including a mortal strike, is justified and even mandated.
So which is worse?
In evaluating such statutes, we must ask “what is the potential legal harm that might come from their presence or absence in our system?” What are the worst-case scenarios? On the one hand, we have the terrible situation of a guilty person going free. He or she gets away with murder. Whether the recent cases fit this definition is not relevant here. We must acknowledge that if a person takes another’s life WITHOUT justification, and goes free, we have a gross miscarriage of justice.
On the other hand, we have the case where a person who HAS justification for the use of deadly force, a person whose life is actually threatened, is punished, destroyed financially, and imprisoned even though they are not guilty.
So which is worse, for a guilty man to go free, or for an innocent man to be imprisoned for life? This is not an easy question, but Jewish law is, I believe, clear and unequivocal. Many details of Talmudic judicial process for criminal and capital law encourage a finding of acquittal if there is any doubt at all. While it is a terrible miscarriage of justice to allow a murderer to walk free, it is only the second greatest miscarriage of justice. Even worse than a vindicated murderer is the incarceration of an innocent person, wrongfully prosecuted and indicted.
There is certainly room to think that the defendants in recent cases are guilty. And they may be. As observers, we likely do not know all the facts of these cases, and certainly will never truly know the state of mind of the people involved. Due process and a jury of peers will decide their conviction or acquittal. But it is clear to me that Jewish legal philosophy, values, and law require us to defend statutes that prevent innocent people who have to defend their lives with deadly force from criminal and civil penalties.