Punishment and Freedom: The Rabbinic Construction of Criminal Law (review)

Abstract

Reviewed by: Punishment and Freedom: The Rabbinic Construction of Criminal Law Herbert W. Basser Punishment and Freedom: The Rabbinic Construction of Criminal Law, by Devora Steinmetz. Series: Divinations: Rereading Late Ancient Religion. Philadelphia: University of Pennsylvania Press, 2008. 224 pp. $55.00. Anyone who has studied bSanhedrin-Makkot should definitely read this book. Readers will find real substance in Devora Steinmetz's discussions of pagan-natural-law versus Torah-commanded-law as well as in her breathtaking feats of finely reasoned talmudic interpretation. Essentially, Steinmetz discusses a number of passages in the Bavli dealing with the death penalty. At the center of her discussion is the punishment of hereg, beheading by a sword: an act that obviously disfigures the criminal as his blood is absorbed into the earth. The Torah (Dt. 13:15) specifies this repulsive punishment solely for the inhabitants of an idolatrous city and for no other crime. There are three other manners of death that do not disfigure (especially in the talmudic etiquette of execution) because they spill no blood: stoning, choking, and burning. While the Torah mandates a death penalty for murder, it nowhere assigns any specific manner of execution. Our author sets out to unravel the rabbis' peculiar choice of decapitation to punish the crime of murder. For the rabbis, the Book of Genesis describes concepts of (near) innate, socially instilled consciousness of natural justice. They say Adam was commanded (Genesis 2:16) to obey "Noahide laws." They understood that violations of these laws incurred the punishment, each and every one, of hereg. Hereg, then, must be the punishment for infractions against natural social laws because they interfere with the efficient functioning of all society. The revelation of this punishment, made by God to Noah in the interim space between the original creation and Noah's new world, links Adam's laws to Noah's power to seek punishment for infractions of social laws. But only one crime [End Page 164] and ensuing punishment is cited in scripture, namely, Genesis 9:6, which says, in effect, "you kill a person and a person will kill you"—natural justice. The rabbis reasoned that since murder is only one of the universal prohibitions in Noahide Laws and is punishable through spilling the blood of the criminal, so it must follow that all the other universal Noahide Laws were meant to be punished by the "spilling of blood" (hereg by sword). The rabbis noted this is the only punishment mentioned anywhere in the Torah (Dt 13:15) that cannot help but spill blood. So murder, unlike any other capital crime, is not only an infraction against divine command; it is first and foremost an infraction of natural, social law, punishable by decapitation. In scripture's poetic, perhaps even mythic, view this harsh consequence is rooted in the natural underpinnings of Creation. Genesis 4:10 describes how the murdered Abel's blood "cries" out for justice from the stained earth. Numbers 35:16–21: says that premeditated murder requires restoration for the bloodied earth through bloody retribution by natural justice meted out by wronged family members. Steinmetz's discussion of the spilling of the blood of a heifer (Dt. 21: 8-9) for unsolved murders accompanied by a recitation, referring to "spilled innocent blood," and atonement, adds a nice flourish to her argument. In spite of murder being an intuitive social wrong, the rabbis picture the judicial proceedings of hereg as following all warrants of mishnaic theories of revealed, positive law. The basic principle the rabbis wanted to enunciate was that revealed law at Sinai entails a legal construct in the theory of jurisprudence where the Torah conceives as the Jew as a free agent, able to make responsible choices. Consequently, offenders must be punished for infractions against God's commandments so the law remains above them and not beneath them. And this holds also for willful murder which, notwithstanding its social source, defies God's command. Bavli reflects on the nature of crime prohibited by commandment and its specified punishment, which is unlike natural law. The latter is imbued by society or nature into the fabric of human consciousness. The former demands proof of the expressed mental awareness...