Punishment and Freedom
The Rabbinic Construction of Criminal Law
2008 | 224 pages | Cloth $59.95
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Table of Contents
Note on Transliteration
Chapter 1. Heneq and the Nature of Law
Chapter 2. Noachide Law
Chapter 3. Legal Principles and Prohibitions
Chapter 4. Murder and the Social Response to Wrongdoing
Chapter 5. "And Live by Them": Paul and the Rabbis
Chapter 6. Law, Responsibility, and Transformation
Excerpt [uncorrected, not for citation]
This book offers an interpretation of selected rabbinic texts about criminal procedure and punishment. The premise of this book is that legal practices, like any cultural practice, have semiotic significance—that is, that they can be read as expressing important cultural meanings. As Clifford Geertz argues, "The thing to ask" about cultural practices "is what their import is: what it is . . . that . . . is getting said." But, it is important to note, this book is not an interpretation of legal practices; it is an interpretation of texts about legal practices. And texts about something are not simply windows onto that thing; reading a text about a practice is not the same as looking at the practice itself. Thus, interpreting texts about a practice is a kind of double interpretation: an interpretation of the practice that the texts set out to describe, and an interpretation of the way in which the texts construct the meaning of the practices that they describe.
It is important to note, as well, my assumption, discussed more fully at the beginning of Chapter 1, that the portrayals in rabbinic texts of criminal procedure and punishment are neither descriptions of actual practice that took place in the past nor prescriptions for actual practice that will take place in the future. This assumption has at least two implications for the way in which I read these texts. First, not only do we need to take into account that we are reading texts about a practice, rather than looking at the practice itself—as I have already noted—but we also need to take into account that the practices are themselves, to a large or small degree, constructed by the texts—that is, the text is not describing a practice out there; it is constructing the practice. Second, the description of criminal procedure and punishment in rabbinic texts is not constrained by practical considerations; the legal world evoked by these texts is a world that is not bound by the exigencies of actual law enforcement. For both of these reasons, the legal world that is portrayed in rabbinic texts about criminal procedure and punishment is not only "an imaginative universe," as all cultures are; it is an imagined universe. And so, ultimately, the reading that is offered here is a reading of a textual construct, of a world that is evoked in rabbinic discourse about criminal law.
Asking "what it is that is getting said," of course, can take one in a number of directions. Surely, rabbinic texts about criminal procedure and punishment can be read with a focus on the ideas that they express about a variety of topics: for example, about the proper way to treat people—even, or perhaps especially, the people whom we are most unlikely to think to treat well. My focus in this book is on a particular set of ideas: ideas about law. Reading rabbinic texts about criminal procedure and punishment, I ask the following questions about the legal world that they construct: What is law? What does it mean for certain acts to be forbidden? What is the nature of violation of law, and what are the consequences of a person doing what is forbidden? What is the nature of human responsibility and of human freedom?
The passages on which I focus in this book nearly all appear in the Bavli, including mishnayot on which the Bavli comments and baraitot that the Bavli cites. I have chosen to focus on a particular rabbinic text on the assumption that we are more likely to find a coherent construction of a given topic within a single text than within the range of rabbinic texts. My turn to the Bavli in particular stems from the distinctive nature of this text. The Bavli is an especially rich text in its assemblage of a broad range of biblical, tannaitic, amoraic, and postamoraic material, and it is an especially coherent text in the way that it organizes and synthesizes this material into complex sugyot. In reworking this material, the Bavli often sharpens, refocuses, or redirects the conceptual thrust of the traditional material, allowing the reader to focus on the ideas that are critical to this reworking.
Nevertheless, while Bavli sugyot are highly redacted texts that allow for literary and conceptual analysis, the degree to which the Bavli as a whole may be seen as a coherently redacted text, and even the degree to which individual tractates may be seen in this way, is less clear. Recent scholarship has begun to suggest that individual tractates demonstrate coherent redaction, but the question of overall Bavli consistency is much more difficult.
Furthermore, separate from the question of redaction, the reader must be attuned to the exegetical quality of many rabbinic statements as well as, especially when it comes to the Bavli, the rhetoric of the text. How can we tell whether what appears to be a semantic argument can arguably be taken to express a conceptual construct? And when do we take an element of an argument in a Bavli sugya to express a central idea as opposed to seeing it as particular to the local literary context, driven by the rhetoric of the argument and peripheral to, if not sometimes inconsistent with, the larger ideational construct of the Bavli? Analysis of such cases is, I think, more of an art than a science. But, while there is a measure of subjectivity in such an analysis, and no doubt some readers will err on the side of over-interpreting and others on the side of under-interpreting, judgment about individual cases can be strengthened by sensitivity to the rhetoric of the Bavli as well as by looking at the degree to which the statement in question expresses an idea that resonates with the broader conceptual construct.
In this study, I take a stance that lies somewhere between the extremes of skepticism about redactional and conceptual consistency and assumption of absolute coherence. I begin with the premise that Bavli passages express a fairly coherent conception of criminal procedure and punishment and of the nature of law. It should be noted that the passages on which I focus mostly appear in bSanhedrin and its partner tractate, bMakkot, which makes the assumption of relative redactional coherence less bold. This assumption, like the others on which my analysis is based, is ultimately a working hypothesis that can only be justified, or not, by the degree to which it allows the reader to generate a compelling interpretation of the material.
I take a middle ground, too, with regard to the complicated relationship between the Bavli and the larger corpus of rabbinic material. As is well established, and as we will see throughout this study, Bavli sugyot often present a particular conceptualization of the issue at hand that is distinct, in small or large ways, from the way a topic is presented in other rabbinic texts. On the other hand, the Bavli is situated, to a large degree, in a conceptual universe shared with other rabbinic texts, and, it goes without saying, the Bavli is heir to a body of traditions within which it builds its own construct. In offering an interpretation of Bavli passages about criminal law, then, I am suggesting neither that this interpretation represents all rabbinic texts nor that this interpretation reflects a viewpoint that is entirely unique to the Bavli. In many cases, I will suggest that the Bavli is expressing, perhaps in a particularly focused way, ideas that are common to a range of rabbinic texts. At times, I will demonstrate the ways in which a Bavli sugya reconfigures traditional material, reorganizing it, changing it, and introducing new elements that generate a significantly different construct from what we find in parallel texts.
Broadly speaking, while the particulars of the interpretation of a given passage should be understood as reflecting the construct that is crystallized in the Bavli, the overall interpretation that is offered here of rabbinic criminal law can be fairly said to represent a range of rabbinic texts. Thus, I will shift between talking about "the Bavli" and "rabbinic texts" or even "the Rabbis," depending on whether I am focusing on a construct that emerges from a Bavli passage or on an idea that seems to be shared by a wider range of rabbinic texts. The intention of this usage is to emphasize both the distinctiveness of the Bavli and the situatedness of the Bavli within rabbinic discourse; it is not, of course, meant to blur the distinctiveness of the varied rabbinic texts and traditions into a single amalgam of "rabbinic thought." Nevertheless, since the purpose of this book is to offer an interpretation of the rabbinic construction of criminal law, rather than to explore the relationship between the Bavli and other rabbinic texts, much of the material that relates to this relationship, as well as some discussion of the development of the ideas discussed here in later codes and commentaries, is included in the endnotes rather than in the body of the book.
The thesis that is developed in the first four chapters of this book is that the design of criminal execution and the description of the procedures that lead to the violator of law being condemned to punishment express a particular understanding of law and of violation of law. I characterize this as an extreme positivist conception of law—a conception of law as based exclusively in the command of the lawgiver. In the first chapter, I demonstrate how the conception of law as command is expressed in the rabbinic construction of criminal procedure and punishment, and, in the following three chapters, I show how rabbinic texts reflect an awareness of alternative conceptions of law, conceptions that I characterize as falling under the rubric of natural law. The end of the fourth chapter and the final two chapters look at the corollaries of a view of law as command. I argue that the Rabbis' insistence on the positive nature of sinaitic law, and their conception of sin and punishment in relation to this conception of law, is related to notions of human freedom and self-determination and of human action as redemptive of the world and the self.
It is important to recognize that, when I contrast the rabbinic conception of law with conceptions of law that I characterize as versions of natural law, I am talking about a classical construction of natural law. This view saw law as based in the natural order and as derivable from the world as it is. Observing law, in this view, means acting in a way that is congruent with the order of things as expressed in the natural world; violating law is a violation of the providential order that is expressed in the created world. Such a view is radically different from contemporary constructions of law that are considered to fall under the rubric of natural law. Contemporary versions of natural law, while many and varied, all emphasize the input of human reason and morality into law but do not retain the strong linking of law with the natural order that characterized classical versions of natural law.
This distinction is important to keep in mind while considering my argument about the ideational corollaries of the Rabbis' conception of law as based in command. The link that I draw between the notion of law-as-command and human self-determination might well seem counterintuitive. Indeed, a positivist conception of law, especially one that sees law as based in divine command, can well be seen to affirm the fixed nature of law—and to deny the input of human reason and morality—while natural law, in its contemporary incarnations as an argument about the relationship between morality and law, seems to affirm the malleability of law in relation to changing circumstances and changing views about the world.
But, as noted, classical versions of natural law differ from these contemporary versions in seeing law as embedded in, and capable of being read off, nature. This classical view of nature as normative, the view that I will argue that the Rabbis self-consciously set their conception of sinaitic law up against, in fact suggests a static view of law, since, according to this view, the way the world is and has been is the way the world should be. In contrast, a conception of law as command can—and, in the case of the Rabbis, does—include within it the possibility of new law being made. In fact, rather than the notion of law-as-(divine-)command making human decision making impossible, the Rabbis developed the notion of the rabbinic power to make law as a direct corollary of their understanding of sinaitic law as based in command. Thus, the rabbinic focus on law as statute and on sin as violation of command is consistent with the rabbinic belief in human autonomy and the freedom of rabbinic decision making; in fact, I think, it serves as the foundation for this core characteristic of rabbinic Judaism.
Nevertheless, it should be acknowledged that a conception of law as based in command—of the normativeness of law as deriving from the fact of legislation—might suggest that law is independent of morality. A view of law as based in command can lead to a stance of moral passivity, to a sense that law is self-sufficient and all-inclusive—that is, that law needs no input from anything outside of itself and that there is nothing outside of law that is normative.
This possibility is, perhaps, particularly acute when we are talking not about a system of secular law but about a system of religious law, for two reasons. First, law here does not issue from a human sovereign or a human legislature; the laws have their source in divine command, and thus those who are bound by these laws have reason to presume that these laws are both right and good. Second, religious law is a component—for many Jews, the central component—of religious life. Thus religious law plays a role that goes well beyond the role that secular law plays, and there is an expectation of religious law that goes well beyond what one might expect from secular law. While secular law might be seen as the minimum set of demands that society places on its members in order to ensure civil order, to protect its citizens, and to promote basic moral values, religious law is seen as broader in scope and purpose—perhaps so broad that there is nothing outside of it. In short, if God expresses God's will in law, why should we look anywhere outside of law to discover God's will?
I do not wish to enter the massive debate within legal philosophy about the relationship between law and morality, nor to defend legal positivism in general against the charge of making law impervious to the dictates of morality. But I do want to offer some reflections on the special case of Jewish law, which, I have argued, is radically based in command and yet which, I believe, should not be seen as asking those who are bound by it to relinquish their moral sensibilities as a guide to action. I want to suggest that the view of law as based in command renders law neither self-sufficient nor all-inclusive—that this view of Jewish law does not imply that law exists in a vacuum, isolated from the input and even the critique of morality, nor does it negate the notion that morality constitutes an additional religious imperative to aspire to things beyond what the law demands.
The second of these two points— that law is not all-inclusive and that rabbinic texts recognize what might be called a morality of aspiration —is, I think, obvious from even a cursory familiarity with rabbinic texts. One outstanding example of a rabbinic text that embraces moral aspiration—aspiration to ethical conduct that goes beyond the demands of law—can be found in the appendix to Chapter 5. I discuss this passage extensively in Chapter 5, but I would like to locate some brief reflections on the question of both the all-inclusivity and the self-sufficiency of law in rabbinic texts in relation to a crux in this passage that I will not be addressing later.
In this passage, David and various prophets are said to have "reduced" the 613 commandments from eleven to six to three to two and, finally, to one. That these progressively smaller lists of moral behaviors or qualities are presented as reductions of the body of mitzvot lends itself to different interpretations. One option, which I think it is impossible to see the Rabbis as proposing in a literal sense, is that these moral qualities are a replacement for the mitzvot—that the huge quantity of commandments is actually reduced to only these demands. Another possibility, which is often proposed, is that the passage is asserting that these moral qualities are the principles that underlie the mitzvot—that the passage is maintaining the primacy of law as a way of life but is disclosing the moral principles on which the 613 mitzvot rest. But there is yet another possibility, and I think that this third possibility is the interpretation that best fits the homily as it appears in the Bavli.
Note that, in the Bavli, there are two alternatives to the final element in the progression from 613 to one. The first is presented in a quotation from Amos: "Seek me and live." But Rav Nachman bar Yitzchaq challenges this: the verse could be construed, he points out, as meaning that one must seek God by means of all of the Torah; thus, it would be simply reaffirming the imperative of the 613 mitzvot. Instead, a verse from Habakkuk is offered as articulating the single imperative by which one should live: wesaddiq be'emunato yihye, "but the righteous shall live by his emuna" (Hab. 2:4).
Emuna here does not mean faith. Rather, the word connotes the attribute of faithfulness or trustworthiness. But, if we take it to mean faithfulness in the sense of being faithful to the commandments, then this final verse lends itself to the same challenge that prompted its substitution for the Amos verse. Just as that verse, Rav Nachman bar Yitzchaq pointed out, could be construed as suggesting that one must seek God by means of fulfilling all of the commandments, this verse would mean that one lives by being faithful to all of the commandments. It is clear, then, that the meaning of ????????? here is not faithfulness to the commandments but faithfulness or trustworthiness as a moral quality, a quality that describes how one interacts with other human beings.
In including both alternatives for the final verse and Rav Nachman bar Yitzchaq's challenge to the first of these, the Bavli seems intent on making it clear that the homily is not focusing on doing the mitzvot and merely disclosing the underlying principles behind the mitzvot. Rather, as I will argue in Chapter 5, the homily is setting out two different modes of behavior: one guided by law and the other guided by moral qualities. As I said above, I do not think that we can construe the homily as suggesting that observing the law does not matter as long as our behavior is shaped by morality. But, then, what does the setting out of these two models suggest?
First, I think the homily is emphasizing that moral behavior has the quality of a religious imperative. This is suggested by the form of the homily: "Six hundred thirteen mitzvot were given to Moses . . . . David came and reduced them to eleven . . . . Habakkuk came and reduced them to one." While it is clear from reading these progressively smaller lists that we have moved from talking about laws to talking about moral qualities, the structure of the homily obscures this fact. In other words, the lists of eleven, six, three, two, and one moral qualities are presented, like the 613 mitzvot, as religious imperatives. The culmination of the homily with the Habakkuk verse makes this point even sharper. The verse talks about living "by" the moral quality of faithfulness or trustworthiness. But note that a different verse talks about living "by" the laws; this verse is Lev. 18:5, which is quoted in the mishna in relation to which this homily appears and which, I will argue in Chapter 5, echoes in the background of the entire passage. Thus, moral aspiration and law are two modes by which one lives. Law is not all-inclusive; moral imperatives exist side by side with the imperative of law.
Second, the passage seems to be claiming some sort of relationship between these two imperatives. It is not clear exactly what kind of relationship the passage is suggesting, but I propose that one could take the fact of a relationship to suggest that law, besides not being all-inclusive, is not self-sufficient. In other words, not only is there a moral imperative that exists separately from law, but there is a relationship between legal and moral imperatives. Thus, law and morality are neither absolute alternatives (if I am moral, I do not need law) nor absolutely reducible one to the other (if I keep the law, then I am moral—and thus I need not attend to dictates of morality that come to me from outside of the law).
If law and morality are non-independent but non-identical vectors to guide human life, then we have the possibility not only of morality filling in where law leaves off but of morality critiquing law. In a sense, we have an aspirational view of law itself: law is not amoral—it is not entirely independent of morality—and it certainly then must not be immoral. The idea of two distinct vectors that guide human behavior should not be taken as implying the idea of parallel and independent universes, in which law need not aspire to be shaped by morality, and in which I must be a moral person and I must follow the law, but I need not consider whether the law itself is moral. Rather, it should be the aspiration of law and of those who are committed to following the law to shape law in alignment with the voice of morality.
And here we come full circle, because I argued above that it is a corollary of the conception of law as command that law can be made, that law can deliberately be changed. Just as the Rabbis' rejection of classical natural law is a rejection of the notion that we can read what ought to be off of what is in the world, the Rabbis' construction of law as command, generating the idea that human beings themselves can make law, is a rejection of the notion that what the law is is what the law ought to be. Thus, the radical characterization by the Rabbis of law as command, along with the rabbinic belief in human autonomy and the freedom of rabbinic decision making that I suggest are the corollaries of this conception of law, sets out a vision of law as aspiring to be moral and of the doer of law as aspiring to the morality that law should, but may not yet perfectly, embody.
It goes without saying that the reflections that I have offered here are my personal attempt to consider what is at stake in the central argument of this book for those who, like me, see themselves as the spiritual heirs of the Rabbis. These reflections are an extension of the central argument of this book, but the validity of that argument should in no way be seen as hinging on the persuasiveness or value of these reflections. The argument of the book should be judged on its own merits, and different readers might come away with very different thoughts on the implications of the book's argument, whether for rabbinic thought, for rabbinic