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Mattot Massei 2018

Our parshot discusses a person who, fleeing to a City of Refuge after killing someone, is tried for murder. Assist the edah in deciding whether the suspect is guilty, the Torah gives various examples (or precedents) of acts that constitute murder. Through these examples, we can discern subtle influences Biblical law has had on modern English law.

Example 1: actus reus & mens rea

Under English law, a suspect is only guilty of murder if the jury are satisfied of two things. First, that the suspect has performed the actus reus, ie. the act constituting murder. The actus reus for murder is unlawful killing. Second, that the suspect unlawfully killed with the necessary mens rea (literally, “guilty mind”). The mens rea for murder is either intention to kill or intention to cause grievous bodily harm. Without establishing both elements, a suspect cannot be found guilty of murder. So, if Dominic intends to kill Toby with a spade, but only ends up breaking Toby’s arm, Dominic is not guilty of murder. The actus reus is missing. Equally, if Dominic is vigorously gardening and, accidently losing his grip, causes the same spade to fatally career into Toby’s skull, Dominic is not guilty. No mens rea.

Similarly, in Numbers 35:16, we find the following: “anyone who strikes another with an iron object so that [ie. in order that] death results is a murderer”. The Torah is introducing a distinction between action and intention. The suspect is a murderer because they intended to kill - “so that” (mens rea) – and “death results” (actus reus) from their act. For the Torah and English law alike, it is the conjunction of both elements that makes the suspect a murderer.

Example 2: intention to (cause) GBH

As mentioned above, in English law, it is sufficient that the suspect intends merely to cause the victim GBH. Number 35:17 states: “if he struck him with a stone tool that could cause death, and death resulted, he is a murderer”. Here, the Torah is stating that the suspect need not have intended to kill in order to be a murderer: it is sufficient that they intended to cause serious harm, which ultimately resulted in death.

This is clear from the difference between verses 16 and 17. In v.16, the murderer uses an iron object – something they knew would kill the victim. In v.17, however, a stone object is used. In contrast to iron, a stone object need not necessarily cause death – it may only cause serious harm [as the Torah says: “a stone tool that could cause death”]. Nonetheless, like English law, the suspect is considered a murderer because – even if they only intended to cause serious harm – that is a sufficient mens rea.

Shabbat Shalom.

Dominic Olins

More documents on this Parshah: