Conrad Grebel University College
140 Westmount Road North
Waterloo, ON, Canada, N2L 3G6
The Conrad Grebel Review 30, no. 1 (Winter 2012)
* An earlier version of this essay was presented at the 2010 annual meeting of the American Academy of Religion in Atlanta, GA. I extend particular thanks to Emily Filler and Beth Phillips for their helpful suggestions and feedback on previous drafts of this essay.
2 Here, my focus is limited specifically to classical rabbinic literature, that is, the foundational body of texts ranging chronologically from the Mishnah (c. 200 C.E.) to the Babylonian Talmud (c. 550 C.E.). While the patterns of reasoning that I highlight may very well extend beyond this time period, they may also have undergone changes or alterations, and so I make no claims here one way or another in this regard.
7 In addition, the simplified division between just war and pacifism is the one presented by Stassen et al. See, e.g., Just Peacemaking, 9. Since my study seeks to draw parallels between the rabbinic approach and that of just peacemaking, I follow their example of emphasizing the distinctive characteristics of a third way by contrasting it to a (perhaps oversimplified) portrayal of the two other competing approaches.
11 The discussion itself can be found in BT Sanhedrin 68b-71a. A summary of rabbinic texts relating to the law of the rebellious son can also be found in Encyclopedia Talmudica, ed. Shlomo Josef Zevin (Jerusalem: Yad Harav Herzog, 1992), vol. 4, 379-87.
13 In addition to Mishnah Sanhedrin 8:1-5, upon which the Talmud directly comments here, a number of the source-pieces comprising this passage are also found in other earlier rabbinic collections (e.g., Tosefta Sanhedrin 11:2 and Sifre Deuteronomy 218-19.) However, the distinctiveness of the Talmudic passage lies in its deliberate rhetorical ordering of its material so as to convey a specific account of the proper scope of justified violence. My analysis thus differs from that of Moshe Halbertal, who also examines the ethical implications of rabbinic interpretations of the biblical law of the rebellious son. His mode of analysis tends to break down the talmudic text in order to compare differences in the interpretive moves in the passage. Without disputing his analysis of the different pieces unto themselves, I maintain the talmudic text can and ought to be read as a literary whole in which the various parts have been consciously re-employed to serve an overarching, unified ethical communication. See Halbertal, Interpretive Revolutions in the Making: Values as Interpretive Considerations in Midreshei Halakhah [Hebrew] (Jerusalem: Magnes Press, 1997), 42-68, esp. 63-64.
14 Naftali Brawer analyzes the talmudic treatment of the rebellious son as an instance of “restricted interpretation,” in an manner largely similar to the one presented here. However, by stopping after “never was and never will be,” he posits a dichotomy between “the world of ideas and the world of action” and between “the world of theory and the world of practice.” See Brawer, “Judaism and the Challenge of Sacred Text,” in Faith-based Radicalism: Christianity, Islam and Judaism between Constructive Activism and Destructive Fanaticism, ed. Christian Timmerman et al. (Bruxelles: P.I.E. Peter Lang, 2007), 96. In contrast, I argue that the logic of the rabbinic text maintains the connection between these worlds, but in a way that still ends up preventing the actual enactment of the prescribed violence.
18 See Elizabeth Alexander, Transmitting Mishnah (Cambridge; New York: Cambridge Univ. Press, 2006). Alexander argues that the Mishnah is most properly seen as a pedagogical handbook with a strong emphasis on training its readers in particular modes of reasoning and analysis (119-23). Thus, she highlights how successive lines in a given mishnaic passage are frequently arranged as an ordered series, with the aim of progressively “refin[ing] the reader’s understanding of the principle at hand” (148). The Mishnah often presents borderline cases in which “the legal reasoning behind the two (or more positions) remains unarticulated. The ask of teasing out the legal reasoning is left for the students, readers, or listeners” (166). As a whole, her analysis focuses on the “performative effect” of mishnaic passages, an approach that “tries to imagine what would result from performing the materials” (169). These elements correspond nicely to the type of reading I give here to Makkot 1:10.
19 Yair Lorberbaum also points to the deliberate arrangement of the “ascending order” in this mishnah. He reads the first three statements not as disagreeing with one another but as a single rhetorical unit, whose purpose is to express “a fundamental opposition to capital punishment.” However, he reads the fourth statement as separate from and dissenting from this rhetorical unit. In contrast, I take all four statements as part of a unified arrangement. In this case, though, the passage as a whole conveys not a simple opposition to capital punishment but a construction in which the death penalty is given a functionally infinitesimal scope. See Lorberbaum, “Blood and the Image of God: On the Sanctity of Life in Early Rabbinic Law, Myth, and Ritual,” in The Concept of Human Dignity in Human Rights Discourse, eds. David Kretzmer and Eckart Klein (The Hague: Kluwer Law International, 2002), 78-80. See also Lorberbaum, Tselem Elohim: Halachah v’Aggadah [Hebrew] (Tel Aviv: Shocken, 2004), 345-46, 349.
21 While historically speaking this statement may well have originated out of an opposing source, I analyze the mishnaic passage not in terms of the potentially diverse origins of its sources but in terms of its construction as a literary whole. In this regard, note that Rabban Shimon ben Gamaliel does not say that the others are wrong, nor does he put forth a competing norm for proper implementation of the death penalty
22 See Halivni, “Can a Religious Law be Immoral?”, 166-67. In addition to the examples of the rebellious son and the murderous court, he also points to instances of this pattern in BT Nazir 51b and BT Kiddushin 18a. Notably, these latter examples relate, respectively, to cases of corpse defilement and thievery – legal situations that do not involve the death penalty. Thus, while I have focused on instances of justified killing, the pattern of reasoning seems also to extend in rabbinic legal thought beyond this specific sphere.
23 Devora Steinmetz, Punishment and Freedom: The Rabbinic Construction of Criminal Law (Philadelphia: Univ. of Pennsylvania Press, 2008), 15. See also Steinmetz, 1-2, 15-17, and 124fn3 for further details concerning these laws.
24 Chaya T. Halberstam argues that the rabbinic texts (as illustrated by Mishnah Makkot 1:10 in particular) are characterized by a tension between “a commitment to doing justice” and “an ultimate uncertainty about the world around them” that makes them skeptical about their ability to make reliable judgments in death penalty cases. See Halberstam, Law and Truth in Biblical and Rabbinic Literature (Bloomington: Indiana Univ. Press, 2010), 102. While I agree with her highlighting of a tension in the texts, I maintain it may be not only a matter of justice vs. uncertainty; it may also stem from a concern to combine a commitment to justice with an awareness of the infinite value of individual life. In this latter vein, Yair Lorberbaum argues that the classical rabbis held that “capital punishment is a form of murder and therefore it is prohibited, irrespective of the guilt of the suspect” (“Blood and the Image of God,” 79).
25 David Weiss Halivni’s formulation, with its careful insertion of “nigh,” captures this sensibility well: “[T]he Rabbis retained capital punishment in principle but hedged around the carrying out of capital punishment with so many prerequisites that for all practical purposes it became nigh impossible to execute anyone.” Halivni, “Can a Religious Law be Immoral?,” 167.
26 Rabbinic law does make room for certain types of justified killing outside the context of capital crimes. For instance, if one individual is pursuing another with the intent to kill, a third person (or the pursued person himself or herself) is obligated to prevent the pursuer, even at the cost of the latter’s life. However, even here a close analysis of the relevant talmudic passage indicates a logic similar to the “infinitesimal scope” that we have seen above. Thus, if the third person could have prevented the pursuer through other means but killed him anyway, the killing is unjustified: the third person is now guilty of murder and is subject to the death penalty. While the law of justified killing remains in full effect, the weighty burden of “other means” limits its direct applicability. See BT Sanhedrin 73a-74b.
27 This approach enables the rabbis simultaneously to embrace two apparently contradictory streams within the biblical text. Alongside the pro-kingship, pro-centralization attitudes described above, there are also streams that voice direct opposition to such institutions and would seek to reject them. The rabbis find a way of heeding both: like the pro-kingship and pro-centralization voices, they affirm the legitimacy of such institutions in principle, but with regard to normative stipulations for the present period, their practice mirrors the ethic of the anti-kingship, anti-centralization voices.
28 Cf. BT Sanhedrin 51b, where the same phrase – “study and receive reward (d’rosh v’kabels’char)” – used with regard to the rebellious son is also applied to the question of institutions to be restored only in the messianic future. For more on the exilic suspension of Jewish collective violence as a broad theme within classical rabbinic literature, see, e.g., Michael S. Berger, “Taming the Beast: Rabbinic Pacification of Second-Century Jewish Nationalism,” in Belief and Bloodshed: Religion and Violence across Time and Tradition, ed. James K. Wellman, Jr. (Lanham: Rowman and Littlefield, 2007); Jacob Neusner, Vanquished Nation, Broken Spirit: The Virtues of the Heart in Formative Judaism (Cambridge; New York: Cambridge Univ. Press, 1987).
29 Though it avoids an atemporal rejection, the rabbinic suspension of collective violence until the coming of the messiah might seem to lose sight of justice by pushing it off to a far-away, distant future. Note that the rabbis also held, theologically, that the messiah could come at any moment – even the very next moment (see, e.g., BT Sanhedrin 98a). Such a notion can function to keep the idea of justice alive and present, and the conceptual tension between now and not-now parallels the ethical tension generated by the infinitesimal reduction of the scope of justified violence.
31 See, e.g., Peter Ochs’s commentary in The Jewish-Christian Schism Revisited, 120; Daniel Boyarin, “Judaism as a Free Church: Footnotes to John Howard Yoder’s The Jewish–Christian Schism Revisited,” Crosscurrents 56.4 (Winter 2007): 15-17. See also Ochs’s more recent reconsideration of Yoder’s thought in The Free Church and Israel’s Covenant (Winnipeg: CMU Press, 2010), 16-23.
34 My exploration of the peacemaking potential of rabbinic logic does not mean that the study of these texts will always or automatically instill this type of reaction. Further research is necessary to determine more precisely when, why, and how such practices of text-engagement can translate or have translated into practical habits of moral judgment and response. A more detailed look at this issue is found in Peter Ochs, “Morning Prayer as Redemptive Thinking,” in Liturgy, Time, and the Politics of Redemption, ed. Randi Rashkover and C. C. Pecknold (Grand Rapids: Eerdmans), 50–87.
35 Stassen et al. emphasize “practices, not principles” (Just Peacemaking, 34) and might be quite wary of claims to address the theoretical side of this stalemate, as it may destabilize the practical consensus they have succeeded in achieving. However, this problem cannot be sidestepped indefinitely, and the desire to put forth just peacemaking as a robust third paradigm for the ethics of war and peace will also eventually require conceptual theorizing.
Conrad Grebel University College
140 Westmount Road North
Waterloo, ON, Canada, N2L 3G6