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Speir on Clemency in Jewish Law

By Lawrence Solum

Ian S. Speir (Georgetown University Law Center) has posted Clemency in Jewish Law on SSRN. Here is the abstract:

Is there a concept of clemency in Jewish law? In other words, is the power to grant clemency - to nullify the consequences flowing from a criminal conviction - a halakhically valid institution? Through a systematic inquiry, this paper advances a qualified yes to that question. First, this paper explores Jewish criminal law and fleshes out the three separate, though not wholly distinct, jurisdictions within it: the ordinary jurisdiction of the bet din (or religious court), the exigency jurisdiction of the bet din, and the king?s jurisdiction. The interaction among these three jurisdictions is then explored to determine whether a Jewish king may, in some circumstances, exercise the power to grant clemency.

Four questions are posed (the third in two parts): (1) May the king grant clemency to a criminal convicted by a royal court? (2) May the king grant clemency to a criminal convicted by a bet din under its ordinary jurisdiction? (3) May the king grant clemency to a criminal convicted by a bet din under its exigency jurisdiction - (a) For a religious offense? (b) For an offense against society?

Each of these question is carefully explored, and the answers may be summed up thus: The king may grant clemency only to a criminal convicted by a royal court. The king may never grant clemency in the face of a judgment by a bet din.

A final, important insight that this paper offers is the rationale that underpins the king?s exercise of clemency in Jewish law. Modern, secular legal systems permit an executive officer to grant clemency either as an act of grace, benefiting a particular individual, or in the interest of the ?public welfare.? This paper argues that the former rationale is foreign to halakhah. Because a Jewish king exists for the well-ordering of society, his exercise of clemency must be justified strictly by the public interest.

Full post as published by Legal Theory Blog on May 21, 2010 (boomark / email).