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Three men walk in a desert

This post originally appeared at The Cous Cous Diaries

Yesterday's Daf (Shabbat 92b) ended with  a new Mishna which stated:

מַתְנִי׳ הַמּוֹצִיא כִּכָּר לִרְשׁוּת הָרַבִּים — חַיָּיב. הוֹצִיאוּהוּ שְׁנַיִם — פְּטוּרִין. לֹא יָכוֹל אֶחָד לְהוֹצִיאוֹ וְהוֹצִיאוּהוּ שְׁנַיִם — חַיָּיבִין. וְרַבִּי שִׁמְעוֹן פּוֹטֵר.

MISHNA: One who carries a large mass out to the public domain on Shabbat is liable. If two carried it out together, they are exempt because neither performed a complete prohibited labour. However, if one person is unable to carry it out alone, and therefore two people carried it out, they are liable. And Rabbi Shimon deems them exempt even in that case.

 The context is carrying an object on Shabbat, which is prohibited in Jewish Law, but it got me thinking about a common philosophical problem in criminal law:

 Consider a man, Bob, in a desert. Two people, John and Smith, want to kill Bob. John decides to poison Bob's water supply and Smith pokes a hole in his water bottle so the water trickles out. John and Smith have acted without knowing the other had also attempted to sabotage Bob's water bottle. Bob is both drinking poisoned water and then runs out of water. Eventually, he dies. It is impossible to determine which of the poisoning or dehydration was the cause of death. For the sake of argument, he drank just enough of the poisoned water to poison himself but also ran out of water such that dehydration killed him at exactly the same time that the poison took effect. It is also accepted that had either John or Smith acted alone, Bob would have died of the poisoning or dehydration alone at the same time as he died in the present scenario. Either act was sufficient to kill Bob. However, in deciding what was Bob's cause of death, it is impossible to say either the poisoning or the dehydration killed him because Bob would have died either way.

 The question is: Has either committed murder? The problem exists because, in English law at least, to be convicted of a murder you must be shown to have caused a person's death. If the person would have died without your intervention (and I mean in a temporally relevant way, obviously we are all going to die), then you are not guilty of murder. For example, if I shoot at a man who actually dies of a completely unrelated sudden heart attack that kills him instantly and, crucially, before my shooting caused a (for the sake of argument, definitely fatal) bullet wound, I have not committed murder. I may have committed attempted murder but simply put, I was not the cause of the man's death and therefore cannot be guilty of murder. So, if we cannot say whether the poisoning or the dehydration caused the death, who murdered Bob?

 Perhaps our Mishna can provide an answer. I should, before I continue, point out that I am taking this Mishna and Gemara completely in isolation. I am sure that the Rabbis have a specific opinion on and answer to precisely this sort of case. I look forward to reading it, if only because I can be almost certain that it will be far more complicated, complex, sophisticated and ultimately interesting than the extrapolation I have drawn here to answer the question, but nonetheless, let's go back to our Mishna. We learnt that if two people carried out a mass on Shabbat, they are exempt but if one person is unable to carry it out alone, and therefore two carried it out, they are liable.

The Gemara exapnds:

זֶה יָכוֹל וְזֶה יָכוֹל — רַבִּי מֵאִיר מְחַיֵּיב, וְרַבִּי יְהוּדָה וְרַבִּי שִׁמְעוֹן פּוֹטְרִים. זֶה אֵינוֹ יָכוֹל וְזֶה אֵינוֹ יָכוֹל — רַבִּי יְהוּדָה וְרַבִּי מֵאִיר מְחַיְּיבִים וְרַבִּי שִׁמְעוֹן פּוֹטֵר. זֶה יָכוֹל וְזֶה אֵינוֹ יָכוֹל — דִּבְרֵי הַכֹּל חַיָּיב.

With regard to an action performed by two people, when this person is capable of performing it alone, and that person is capable of performing it alone, Rabbi Meir deems them liable, and Rabbi Yehuda and Rabbi Shimon deems them exempt. If both this person is incapable and that person is incapable of performing the action alone, and therefore they performed it together, Rabbi Yehuda and Rabbi Meir deem them liable, and Rabbi Shimon deems them exempt. Ifthispersonis capable, and that person is incapable, and they performed it together, everyone agrees that he is liable.

To apply this reasoning to our case, we need to ask: What are we dealing with here? (Dad Yomi fans will appreciate, or shake their head at, my play on Gemaric phrases) Given the terms outlined above, it is clearly a case where each person is capable of performing it alone - if Bob's water bottle had only been poisoned or had there only been a hole in his bottle, he still would have died. Thus John and Smith could have performed the action of murdering Bob alone. In such a case, Rabbi Meir deems them both liable, and Rabbi Yehuda and Rabbi Shimon deem them exempt. And why?

It is based on a line from Leviticus where, in the context of committing a sin, the Torah uses the word "בַּעֲשֹׂתָהּ" which means "by performing it". "By performing it" is interpreted to mean:

הָעוֹשֶׂה אֶת כּוּלָּהּ וְלֹא הָעוֹשֶׂה מִקְצָתָהּ. 

One who performs a transgression in its entirety is liable, and not one who performs only part of it.

The reason Rabbi Meir, who accepts this understanding of the verse, believes where two people are capable of performing the action alone but perform the action together they are liable is based on his interpretation of what the verse is applying to, and is not entirely helpful for answering the question of who murdered Bob. So we have an answer, sort of. What's perhaps most interesting, however, is the Rabbi's acceptance that "by performing it" comes to exclude performing only part of a transgression. To a lesser or greater degree, therefore, this means that you are only liable for those transgressions you complete in full.

This is most interesting when you consider the Gemara's application of it to cases where one is capable and the other incapable:

 אָמַר מָר: זֶה יָכוֹל וְזֶה אֵינוֹ יָכוֹל — דִּבְרֵי הַכֹּל חַיָּיב. הֵי מִנַּיְיהוּ מִיחַיַּיב? אָמַר רַב חִסְדָּא: זֶה שֶׁיָּכוֹל, דְּאִי זֶה שֶׁאֵינוֹ יָכוֹל — מַאי קָא עָבֵיד! אֲמַר לֵיהּ רַב הַמְנוּנָא: דְּקָא מְסַיַּיע בַּהֲדֵיהּ! אֲמַר לֵיהּ: מְסַיֵּיעַ אֵין בּוֹ מַמָּשׁ

 We learned earlier that the Master said: In a case where this person is capable, and this person is incapable, and they performed it together, everyone agrees that he is liable. The Gemara seeks to clarify: Which of them is liable? Rav Ḥisda said: The one who is capable of performing the act alone is liable, as if it was the one who is incapable of performing the act alone that was liable, what is he doing that would render him liable? His efforts are inadequate to perform the task. Rav Hamnuna said to Rav Ḥisda: He is doing quite a bit, as he is assisting him. He said to him: The assistance provided by one who assists another to perform a task that the other could have performed himself is insubstantial.

 The Gemara goes on to delineate numerous examples where assistance is deemed insubstantial, in a bid to demonstrate this point. Can assistance provided by one who could not have performed the action themselves to one who could have performed it themselves, really be considered 'insubstantial'? If I'm physically incapable of boring a hole in a water bottle but I am so determined that Bob is murdered that I give my power drill which I give to Smith, am I really exempt because Smith owns his own power drill and can bore the hole? These are not points the Gemara is making, but I think they are worth pondering.


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