There is an eternal debate amongst philosophers and criminologists as to whether the mob boss or the actual hit man is most culpable in the murder of a rival gang leader. Though both are certainly morally guilty, the question as to which one bears the legal onus for the crime, absent statutory law on the matter, is an issue of discussion and differing opinions.
In Judaism there is a concept "that there is no excuse of agency present when a sin or crime is being committed." This means that the hit man who pulled the trigger or planted the explosive is certainly the more guilty party, in such a scenario of an ordered murder. In the words of the Talmud "regarding the instructions from the Master and contrary instructions from the student – who should one listen to?!"
Thus in this week’s parsha, even though it is the malevolent Balak who engages Bilaam in the nefarious scheme to curse the Jewish people, it is Bilaam who actually intends and agrees to do the cursing. He and not Balak emerges as the ultimate villain of the event. There is much discussion in the Talmud and in rabbinic sources as to whether any of the laws of agency, and this law in particular, exists outside of Jewish society generally.
If there is no agency outside of Jewish society, it appears that, generally speaking, there would be liability on both the instigator and the agent as well in such circumstances. In any event, it certainly is inherently wrong to engage an agent to perform an illegal or sinful (they are no longer the same today) act whether in Jewish or general society, whatever the technical legal liabilities may be.
The instigator of a crime is deemed in today’s society to be as guilty as the criminal who perpetrated the crime. Osama bin Laden was the guilty party in the World Trade Center assassinations as much as were the murderous suicide-pilots he sent forth to do the deed. Balak is responsible for Bilaam’s curses. Heaven, in its exquisite way, administers justice to all concerned in as it pleases and in its own time frame.
Balak will pay the penalty for his unwarranted hatred and enmity of Israel just as Bilaam does. The rabbis of the Talmud even extended the penalties for wrongful and criminal acts committed to include those who remained silent when they should have spoken out against evil and cruelty. Bilaam’s donkey is commended while his associates are undoubtedly condemned and eventually punished – hence the plethora of laws in our world and statutes about conspiracy to commit crimes and criminal negligence.
In fact, the actual perpetrator oftentimes attempts to hide behind the façade that one was only following orders. Judaism does not recognize that excuse and yet the one who issued the orders is also deemed guilty of the crime. Balak and Bilaam are the forerunners of Hitler and Mengele, Stalin and the NKVD. All are to be condemned not only in Heaven’s good time but also by all of us mortals on earth as well.
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