Dylan ends his post with a meditation on the entanglement of subjective and objective experience. It’s all very nice to write poetry in which your head is the head-wrap, but how do you make laws if what’s in your head and what’s in the world cannot be untangled? I’ll compare the way this problem appears in the Talmud and modern normative ethics.
Rav Hanan said, “Witnesses against a betrothed maiden who are proved to be false witnesses are not executed, because they can say, ‘we came [to testify] only to render her invalid to her husband.’” But they must surely have warned her! — This treats of a case where they did not warn her. But if so, how could she be put to death at all? This refers to an educated woman, and is based on the view of R. Jose son of R. Judah. For it has been taught: R. Jose son of R. Judah said: A scholar needs no warning, for warning was instituted only in order to distinguish between intentional transgression (meizid) and mistake (shogeg). -TB Sanhedrin 41a
Here is what is happening: ordinarily, if witnesses in a capital case are proved to be lying, they are executed, because they were trying to arrange the execution of an innocent person. Here, the innocent person is an engaged woman who has sex with a third party. According to traditional Jewish laws, she would be executed (bracket any moral objections you might have). But interestingly, her fiancee would also be forbidden to sleep with her. Thus, the witnesses might say, “we didn’t want her to die, just to render her invalid to her fiancee,” in which case, according to Rav Hanan, they would not be executed.
But there’s a problem: this point occurs in a larger discussion of warning. In Talmud, generally we do not convict anyone unless the witnesses (who must be eyewitnesses) explicitly warned the defendant that her act was a capital crime, and the defendant accepted that she was committing a capital crime. But if these witnesses warned the woman, then surely they must have intended to get her killed (otherwise, why warn her?). So if they are to say plausibly, “we didn’t intend to kill her,” then they must not have warned her. But then how can she be executed? The Talmud thus limits Rav. Hanan to the case of an educated women; educated women (or men) don’t need warning, since warning exists to distinguish between people who don’t know their crime and those who do: presumably, an educated person knows.
This case comes in the context of discussing warning generally. Requiring warning means that the defendant must be shown to have intention. The problem is, as you might imagine, warning is a very high standard: probably not too many people can be executed under this standard. We’ve required foolproof verbal evidence (warning and acceptance) for an internal fact (her intention), rather than (as people typically do) inferring intention from actions.
I believe that this case involves something like a joke. The false witnesses here rely upon our intention-focused law as a defense for their perjury. They claim something that is frankly ridiculous, namely that you can frame someone for a capital offense without intending for her to die. Implicitly, the Talmud’s editor questions just how far we are willing to go in establishing intent. If we really say that we require absolute intention, we sacrifice our ability to make legal decisions solely based on the external world. To put the question in concrete terms: Is it possible, for the sake of one goal (invalidating her to her husband, vindictively), to do an act that inevitably leads to another result (her being liable to execution), without intending (or at least being responsible for) the second result? Broadly, how do we balance a legal system that cares both about internal intentions and external facts?
Obviously, this problem extends beyond the “republic in thought” of the Jewish laws of execution, which were rarely, if ever, carried out. Can an army in war bomb a city to reduce civilian morale, but not with the goal of killing the civilians, and then claim afterward that civilian deaths are incidental to its campaign? Less rhetorically, what if its goal is to destroy a certain military installation that just happens to be surrounded by civilians?
Unsurprisingly, modern philosophers have also written about this problem. Aquinas first formulated what is now called the doctrine of double effect (DDE), and Elizabeth Anscombe resuscitated the idea, which is roughly, “you may perform an act which has good consequences and bad consequences, if a) the bad consequences are not intrinsic to the act but just happened to be associated with the act and b) you don’t intend the bad consequences.” Anscombe used DDE to argue against consequentialism, the popular (among professional philosophers) moral theory that holds that actions are right or wrong insofar as their consequences are good or bad. Consequentialism, its critics allege, have a hard time with the following two cases (the trolley problem):
A) Can a surgeon kill an innocent patient to use his organs to save five innocent people who otherwise will dies?
B) Can a train conductor whose train is hurtling down the tracks toward five innocent people turn a switch so that the train goes on an alternative track and strikes another innocent person instead?
Many people say the surgeon may not kill, but the conductor may flip. Why? For those who hold DDE, the point is that the train conductor does not actually want to kill the one person. If there were no one on the alternative track, the conductor would be happier. The surgeon, on the other hand, can save five only through killing one; the death of the one man is not just a double effect, it’s the main effect, without which no saving would happen. DDE depends on the idea that intent matters: the distinction between main consequences and side consequences only has moral meaning if we assume that the train conductor doesn’t want to kill the one person. The consequentialist has several good replies; I won’t treat the complex shakla v’tarya (back and forth) that can ensue.
DDE tries to balance intention and external consequences, allowing the train driver license to cause harm based on his intent while limiting the surgeon. The Talmud balances these two through a neat irony: the same warning that must be used to establish intent for the defendant can be used to infer intent for the witnesses. Note that this inference is much weaker than the warning standard for the defendant; the witnesses never accept that they are framing her for a capital crime, they just do something that strongly indicates it. Thus, this irony defuses the case without addressing the broader question of whether the warning standard is reasonable, but my sense is that the Rabbis do not care so much. They do not like judicial executions much anyway, and they don’t mind fudging the philosophy. The joke, or at least the gross exaggeration, indicates the theoretical difficulty of warning without changing it.
Mainly, I want to note the parallel occurrence of a moral dilemma in two discourses, and then to return to our larger discussion of interpretation and intention. The problem of identifying whether someone is to blame for secondary consequences, and what constitutes intent, is ultimately the same problem of determining whether a comedian is responsible for the problematic content implicit in their joke, if that content is unintentional. As Jay Smooth smartly points out, when someone says something racist, if you call them a racist, you are going to lose the argument, because we use the word “racist” (rightly or wrongly) to refer to someone with bad intentions, and only the racist knows her intentions. Rather, we might insist that whatever Woody Allen intended, his joke itself encodes misogynist ideas in such a way that his telling had pernicious consequences. I think there are upsides and downsides to this approach, which will be the subject of the post about authorship and interpretation to which you can look forward. In the meantime, note that internal facts (our intentions) and external facts (what our acts amount to in the world) are entangled. It is an entanglement that creates problems when we interact with other people and other texts.