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Punishment and Freedom: The Rabbinic Construction of Criminal Law (Divinations: Rereading Late Ancient Religion) - Hardcover

Steinmetz, Devora

 
9780812240689: Punishment and Freedom: The Rabbinic Construction of Criminal Law (Divinations: Rereading Late Ancient Religion)
Hardcover
ISBN 10: 0812240685 ISBN 13: 9780812240689
Verlag: University of Pennsylvania Press, 2008

Inhaltsangabe

In Punishment and Freedom, Devora Steinmetz offers a fresh look at classical rabbinic texts about criminal law from the perspective of legal and moral philosophy. Steinmetz holds that the criminal and judicial procedures they describe were never designed to be applied in a real state. Rather, these texts deal with broader philosophical, theological, and ethical conceptions of the law.

Through close readings of passages describing criminal procedure and punishment, Steinmetz argues that the Rabbis constructed an extreme positivist view of sinaitic law based in divine command. This view of law is related to a conception of the human being as fully free and responsible. Steinmetz contrasts this philosophy with the reflections on law in the Pauline letters and argues that the Rabbis see their own view of law as a key marker of Jewish identity that is tied to the rabbinic notion that human beings are charged with shaping the world and their own destiny.

Punishment and Freedom is a valuable guide through talmudic discourse for scholars of Jewish thought, early Christianity, and legal philosophy.

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Über die Autorin bzw. den Autor

Devora Steinmetz teaches Talmud and rabbinics at the Jewish Theological Seminary.

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Preface

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...

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Verlag
University of Pennsylvania Press
Erscheinungsdatum
2008
Sprache
Englisch
ISBN 10 
0812240685
ISBN 13 
9780812240689
Einband
Gebundene Ausgabe
Anzahl der Seiten
206
Kontakt zum Hersteller
Nicht verfügbar
Verantwortliche Person
Mare Nostrum Group B.V.
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Breda
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