Sarah Zager
While the Torah explicitly permits capital punishment, the rabbis heavily restrict its use. The accused must be warned of the crime and its consequences at the scene; two witnesses—who, in most cases, must be adult Jewish men—must have seen the crime take place, each from separate vantage points. If any one of these elements is missing, the court lacks the power to execute the accused. On many readings, this move demonstrates profound moral fortitude and restraint: though they have a biblical authorization to kill, the rabbis choose heroically to limit their own power.
Americans take similar pride in our legal system’s ability to restrict its own power, and American identity is often expressed using legal language: here is a place where you are innocent until proven guilty, where you are entitled to due process of law, where you are guaranteed trial by a jury of your peers. These procedural safeguards are more than just legal restrictions; they are manifestations of a commitment to human equality. Even when we fail to live up to that commitment, these procedural structures in place help us get back on track.
The past six months have seen a tremendous shift in the discourse surrounding sexual misconduct. Patterns of behavior that once went unnoticed and unpunished have been increasingly made visible, and, in the most high-profile cases, widespread popular condemnation has come much more quickly than in the past.
Strikingly, those who have opposed this swift action have used legal language to express their dismay, despite the fact that the vast majority of the sanctions issued against perpetrators are non-legal; people are fired from their jobs, removed from professional societies or public roles, but, in many situations, formal judicial action has not been taken.
A few examples of this kind of rhetoric: a recently re-published book review in Tablet lamented the fact that the campus sexual assault cases are not decided on a “beyond a reasonable doubt” standard, and that university officials in Title IX proceedings are “both judge and jury.”
A November 16th editorial in the LA Times argued that a willingness to ignore the “presumption of innocence” in public discussion of sexual misconduct, threatened to turn the #MeToo movement into “an exercise in public shaming, a rash extrajudicial application of stigma to supposedly wicked individuals.”
While the piece acknowledged that Mitt Romney was technically correct to tweet (in condemnation of then-Alabama Senate candidate Roy Moore) that “Innocent until proven guilty is for criminal convictions, not elections,” it also argued that he had missed the point. Instead, the author claimed, these legal standards also “embody what communities over time have agreed is a more civilized way of doing things.” According to this view, procedural rules that restrict the powers of the courts actually express a moral claim; this means that applying procedural legal restrictions outside the courtroom helps us become better, more measured, and more thoughtful people.
Or so the story goes. Though many contemporary readers of the rabbinic tradition champion the rabbis’ strict legal procedures, the rabbis themselves also critique it harshly; these critiques can prove instructive in the contemporary American case as well. The rabbis explicitly describe what is supposed to happen when it is clear that a murder has been committed, but the legal requirements for conviction cannot be met. Their proposal is graphically violent, but with a good dose of cartoonish, dark comedy:
ההורג נפש שלא בעדים מכניסין אותו לכיפה ומאכילין אותו (ישעיהו ל, כ) לחם צר ומים לחץ
Someone who murders a person without witnesses is taken into the domed chamber, and is “fed meager bread and scant water” (Isaiah 30:20) (Sanhedrin 81b). (This is the version of the Mishnah in the Vilna Edition. Mss. Kaufmann has …ההורג נפשות שלא בעדים כונסין אותו לכיפא ונותנין)
The gemara interprets this mishnah in terms of an earlier one, dealing with a person who is punished with lashes but continues to commit similar offenses. There, the mishnah rules that the criminal should be “taken into the domed chamber and fed barley until his intestines explode” (Sanhedrin 81b).
The gemara appears to be surprised by this violent punishment:
משום דלקה ושנה ב”ד כונסין אותו לכיפה אמר ר’ ירמיה אמר רבי שמעון בן לקיש הכא במלקיות של כריתות עסקינן דגברא בר קטלא הוא וקרובי הוא דלא מיקרב קטליה וכיון דקא מוותר לה נפשיה מקרבינן ליה לקטליה עילויה:
Because he was whipped and sinned again the court takes him in to the domed chamber?! R. Yirmiyah said R. Shimon ben Lakish said, “We are talking about a whipped person who is liable for excision, because he already deserves to be killed, although his death is not advanced in court. [Here,] since he has surrendered his own life, we hasten his death for him” (Sanhedrin 81b).
There is a tension built in to the gemara’s response here: on the one hand, the repeat offender renounces his own life through crimes—he deserves to be killed. On Rashi’s reading (ad loc.), this means that he hands his life over to God, who is supposed to resolve the problem. But, even though the court is not willing to execute the repeat offender according to the usual procedure, it is also not willing to leave his fate up to God alone. The rabbis intervene by moving the accused into a domed chamber, too small for him to stand up in, and ensuring his slow death. Though they remove themselves from formal legal responsibility (each increment of feeding is not enough to make any one person liable for his death), they nonetheless take direct action to halt a destructive and disturbing pattern of behavior.
The gemara reads the mishnah on the repeat offender and the wittnessless murderer as referring to the same punishment:
ומאכילין אותו לחם צר ומים לחץ: מאי שנא הכא דקתני נותנין לו לחם צר ומים לחץ ומאי שנא התם דקתני מאכילין אותו שעורין עד שכריסו מתבקעת אמר רב ששת אידי ואידי נותנין לו לחם צר ומים לחץ עד שיוקטן מעיינו והדר מאכילין אותו שעורין עד שכריסו מתבקעת:
“And is ‘fed meager bread and scant water’”: What is the difference between this mishnah which says that we feed him “meager bread and scant water” and the other mishnah which says that we feed him barley until his intestines explode? R. Sheshet said: both are referring to feeding him “meager bread and scant water” until his intestines contract, and then we feed him barley until his intestines explode (Sanhedrin 81b).
This is a strange, even downright perverse, kind of judicial self-restraint indeed. But that doesn’t mean that it is devoid of all ethical insight; nor does it undermine the conventional reading of rabbinic legal procedure. Instead, the text gives voice to a powerful moral impulse that quite literally can’t be contained. The rabbis have seen someone shed blood, and with their hands tied, they imagine (it’s unclear that they ever actually carried out this procedure) what they would want to happen to the person who so brazenly transgressed a deeply-held moral norm.
We might read this, following the Talmudist Daniel Boyarin in Socrates and the Fat Rabbis, as an acknowledgement of the limitations of the legal strictures and proceduralism that dominate rabbinic discourse. According to Boyarin, the legal procedures of the Talmud also allow the rabbis to speak in “the language of the comic, the fantastic, and the grotesque” (175).
Another rabbinic narrative of extralegal conviction describes the offence, rather than the punishment, in similarly grotesque terms:
דתניא אר”ש בן שטח אראה בנחמה אם לא ראיתי אחד שרץ אחר חבירו לחורבה ורצתי אחריו ומצאתי סייף בידו ודם מטפטף והרוג מפרפר אמרתי לו רשע מי הרגו לזה או אני או אתה
אבל מה אעשה שאין דמך מסור בידי שהרי אמרה תורה (דברים יז, ו) על פי שנים עדים או שלשה עדים יומת המת אלא המקום יפרע ממך אמרו לא זזו משם עד שנשכו נחש ומת:
It is taught in a baraita that Rabbi Shimon ben Shetah said: “I would see the redemption if I had not seen one person run after his fellow, [chasing him] into a ruin. And I ran after him and saw a sword in his hand and blood dripping from it, and a dead body convulsing. And I said to him: ‘Wicked one, who killed this person? Me or You?! [It cannot have been me, you know I was not there] But what can I do, your blood is not given over into my hand, because the Torah says, (Deut. 17:6), “On the basis of two witnesses or three witnesses shall he that is to die be put to death.” Rather, God will take recompense from you’.” They said: “They did not move from there until a snake came and bit him and he died” (Shevuot 34a).
- Shimon Ben Shetah tells a gripping story, which has clearly made a traumatic impression. The graphic description of the raised sword, the dripping blood, and the convulsing body allow us to begin to feel his moral outrage, and, facing the possibility that the alleged murderer might be let off the hook on a technicality, and, taken as a unit, they offer a pointed parody of rabbinic legal restraint.
Though he is clearly disturbed by the scene, R. Shimon ben Shetah does not actually kill the murderer, and we need not read his story as implying that he should have. Instead, we can read him as arguing that the problem is the willingness to just accept the legal restrictions without a word of moral dismay. Whether or not the murderer gets his just reward—from the Torah’s perspective, the shedding of his own blood—we, those who see the bloody trail that he leaves behind, should not be pleased, or even merely complacent about the outcome. We should, instead, be so outraged that we dream up a creative scheme to make him pay for his desecration of God’s image.
Though R. Shimon ben Shetah says that “God will take recompense from you,” God’s intervention does not take the place of his own. He cannot stand to wait for God to resolve this situation either in this world or the next; instead, he creates his own “domed chamber” where a “natural” death is sure to take the murderer swiftly. Even as he acknowledges that, according to rabbinic law, the murder’s blood is “not in his hands” in a way that would authorize a formal execution, R. Shimon ben Shetah takes direct action to contain someone who he knows to be violent and dangerous. Though the legal system does not give him (or the Rabbinic court) the power to kill such a murder, it also does not authorize him to ignore the situation; instead, it requires him to find a way to contain it. Following Boyarin, we can now reread “But what can I do, your blood is not in my hands,” not as a statement of rabbinic legal restraint, but as a comic yet grotesque punchline that ends the narrative—”Your blood is not in my hands,” and yet I will still ensure that you receive the punishment I know you deserve.
The willingness to lean on legal restrictions in the non-legal context of workplace sexual harassment, then, amounts to saying “But what can I do, your blood is not in my hands,” leaving the scene without going on to find another solution to the problem at hand. And, in doing so, it makes the expression of the kind of moral outrage that R. Shimon ben Shetah describes impossible; in the worst cases, it may even prevent such an outrage from welling up altogether. The Talmud teaches us that the adherence to legal procedural safeguards—the very procedural safeguards that contemporary readers so often uphold as examples of the rabbis’ progressive non-violence—come with a cost. In fact, it depicts that cost in the most graphic and theologically forceful terms: the only response to injustice that cannot be punished is to find a way to punish it, and a failure to do so presents an obstacle to redemption. This cost is often left unnoticed and undescribed in American discourse, where legal restraint is treated as an instrument for good.
Just as we can learn from the Talmud’s demand for moral outrage, we can also learn something from the form that it takes. The possibilities that the Talmud explores for extrajudicial punishment are extraordinarily violent, perhaps even more violent than the ones that rabbinic law sanctions explicitly. Boyarin goes so far as to argue that these kinds of passages are “seriocomic”; they are so over-the-top as to be funny. While I’m not quite willing to go that far in reading these specific sources, it does seem like these texts do reveal the inherent volatility of this kind of (entirely necessary) moral outrage. Though we express our moral outrage very differently—through forceful public rhetoric rather than domed chambers and snake bites—the strange, excessive punishments that Hazal dream up in cases where their normal legal procedures don’t work can help us understand why the conversation around sexual misconduct has become so polarizing, and why some participants in the debate seem to be talking past one another. Those who have said “me too” are standing over the dead body and crying out; and their cries are so forceful and so painful that they can be hard to hear and to understand. Just as I was surprised, confused, and a little repulsed when I first read the rabbis’ descriptions of force-feeding the accused, many of my male friends and colleagues expressed a churn of the stomach when they encountered the sheer number of “me too” stories and began to understand the pain that underlies each one of them. The Talmud’s grotesque voice vividly expresses this feeling of painful, but difficult to process, disgust.
The rabbis’ response to this feeling was to use their rich imaginations to devise a form of revenge that would settle the moral accounts, and to include those narratives alongside their legal discussions. We can follow their example by making space for moral disgust in our public discourse, even if that disgust is vetted through a shared public discourse that occurs outside the courtroom; though we will not be putting anyone into the domed chamber, we can allow that disgust, when expressed clearly and compellingly, to have, real, tangible, but non-legal consequences in our institutions. But, as these grotesque rabbinic narratives suggest, the process of addressing wrongs outside of formal legal procedure is as messy, destructive, and even painful as it is necessary. The kinds of sexual misconduct highlighted in the past few months reveal practices that are too insidious and deeply entrenched to have clear legal solutions; but that does not authorize us to say that the blood of the women who have been wronged by this culture is not in our hands. It is.
As Christine Hayes notes in her book What’s Divine about Divine Law?: Early Perspectives, the rabbis often attempt to incorporate moral intuitions that diverge from the letter of the law within the structure of the law itself (309-310). Confronted with the strange procedure of the domed chamber, the rabbis debate its exact dimensions and legislate precise requirements for when it is to be carried out; what begins as outrage or desperation becomes part of the fabric of rabbinic law (Sanhedrin 81b). But, as Hayes also points out, this is not the only move that the Talmud makes in cases of apparent conflict between morality and rabbinic law. “It must be said, however,” Hayes writes, “that not every text that recognizes an ethical value independent of divine law seeks immediately to subsume it within the halakhic system or devalue it. Some texts openly acknowledge the existence of independently accessed ethical values and rely upon them for the modification of the law” (314, italics in the original). One of the great challenges for the #MeToo movement is to keep both these approaches alive: we need to build fair and powerful systemic responses to sexual harassment and assault, without allowing those systems to stunt our raw moral outrage.
Addressing this challenge is made all the more urgent by one of the major differences between the rabbinic cases discussed here and current discussions of sexual misconduct: in the rabbinic cases, we never hear the victim speak, only the grotesque and bloody residue testifies to the crime. In most #MeToo cases, we hear testimony directly from the victim.
At first, this might suggest that the evidence in the rabbinic cases is more attenuated, making it harder to feel the deep moral dismay that the rabbis demonstrate in these cases. But, the material evidence that R. Shimon ben Shetah catalogues—physical blood, a raised sword, a convulsing body—are signifiers that all of us can understand easily. We are almost biologically programmed to be disgusted and dismayed when we see them. The same is not true of a human being, in front of us telling her story; it is easy to find a way to discount her, to claim that she isn’t the kind of person who tells the truth, or that it simply “can’t have been that bad.” When used inappropriately, legal language can be a powerful aid in this kind of silencing; when this occurs, we don’t even get to hear the stories that would show us, in words rather than physical evidence, that there really is a bloody sword raised in front of us, demanding a moral response.
The impulse to think broadly about the intuitions that drive a legal tradition, and the willingness to apply these ideas broadly and creatively is important in both the Jewish and American contexts. As learners of Torah, we attempt to find meaning in and to learn from a text whose laws are almost never spoken in a courtroom. Our conviction is that they remain important and informative, that they have something to tell us. And as Americans, we are—or at least ought to be—willing to allow texts that were originally imagined as narrow legal codes to have wider effects on our political life. This kind of thinking has allowed us to greatly extend core freedoms and privileges to people who were excluded from the original imaging of the American project. And we are better for it.
But we need to remember that this kind of learning is undermined when we use those legal standards to silence the very moral impulses that they are designed to cultivate. A substantive engagement with a legal tradition requires more than just blindly applying it everywhere else in our lives. We are not faithful to our legal principles when we turn our workplaces, schools, and newspapers into courtrooms, as if the differences between these spaces were not accounted for within the law itself. Instead, such an engagement requires both an appreciation for the potential and even beauty of legal norms, and a willingness to proactively address the often grotesque and violent conduct that lies beyond the reach of codified law, but nevertheless demands to be stopped.
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