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1 EXECUTION AND INVENTION: DEATH PENALTY DISCOURSE IN EARLY RABBINIC AND CHRISTIAN CULTURES. By Beth A. Berkowitz. Oxford University Press Pp $ ISBN: Beth Berkowitz argues that early rabbinic discourse about the death penalty had a dual purpose. At a surface level, the Rabbis of the Mishnah, ca. 200 C.E., constructed a system of justice through which capital cases could be tried and designed a procedure through which those who were convicted could be executed. At a deeper level, Berkowitz argues, this discourse served a broader purpose, a purpose that, in a period in which Jews could not generally try capital cases, constituted the most important aspect of the Rabbis work. This underlying purpose was to highlight and promote communal acceptance of rabbinic authority and to emphasize the respect the community owed rabbinic masters and their laws. Discourse about the death penalty thus was one strategy through which the earliest rabbinic masters, who emerged in the first centuries C.E. in the period of the destruction of the Jerusalem Temple in 70 and the failed Jewish revolt against Rome under Bar Kokhba in , established themselves as the new leaders of the Jewish community. Berkowitz, who also examines early Christian discourse on the death penalty, thus can summarize her overall purpose as being to explore how death penalty discourses helped [R]abbis and Christians invent themselves. (4) Berkowitz brings to this often-examined topic contemporary literary methods and an approach honed through her use of the theoretical literature on the death penalty in a range of legal and cultural systems. As she points out, scholars of Judaism heretofore have tended to use the rabbinic texts polemically. They have asserted that the Rabbis developed a broadly humanitarian and abolitionist ideology, and this reading has been used to respond to negative Christian portrayals of Judaism in general and rabbinic Judaism in particular, portrayals that have depicted Jews and Judaism as legalistic and vindictive (in contrast to the merciful attitudes of Jesus and Christianity). Berkowitz rejects this tendency toward polemic, noting that even rabbinic statements that severely limit use of the death penalty ultimately rationalize capital punishment and grant tremendous authority to those with the power to impose it. Her goal is thus not to assess the Rabbis from within contemporary categories for or against capital punishment but to 101

2 102 JOURNAL OF LAW & RELIGION [Vol. XXIV identify the values and societal goals actually expressed within their law. She summarizes the results of the study as follows: The Rabbis hoped in their legal, literary production to create a viable alternative to the romanized, paganized culture of Palestine s Jews, and they activated this hope by imagining a world in which transgressors of Torah were punished by the proper rabbinic authorities. In this world, the Rabbis imagined having the power to convict and to kill those who rejected the rabbinically defined will of God. What I will show is how the Rabbis tried to make this world appealing, to themselves and to not-yetrabbinized Jews. In their death penalty discourse, the Rabbis strove to create a compelling brand of rabbinic authority, and they did so by engaging in multiple conversations: conversations with the Bible, with contemporary Jewish communities, and with Roman imperial culture. (7) In line with the best contemporary readings of rabbinic texts, Berkowitz thus reveals the extent to which the rabbinic treatment of the death penalty emerged from the concrete setting in which the Rabbis lived and worked. Rabbinic law to a great extent was shaped by the Rabbis own subjugation to and punishment under Rome s oppressive control. The Rabbis worked to define a new and distinctively Jewish approach to societal construction in the wake of the events of the first centuries that so changed the environment in which Judaism would exist for the following centuries. Berkowitz s study focuses on Mishnah Tractate Sanhedrin in Chapter Six and the beginning of Chapter Seven, the central texts describing the rabbinic ritual of execution. After a review of previous scholarship (Chapter Two), Chapter Three introduces the narrative of capital punishment as it is presented in the Mishnah. Chapters Four and Five study the Mishnah s treatment of the participants in an execution: the blood avenger and community that witnesses a capital crime, participants known to Scripture (Chapter Four) and participants added by the Rabbis themselves, including rabbinic authorities who serve as judges and the criminal s relatives. (Chapter Five) These latter additions represent a significant addition to and Berkowitz argues a shift from the Biblical legacy and illustrate the extent to which the rabbinic rules withdraw the authority for capital punishment from the community and grant it to themselves. Chapter Six compares the rabbinic procedures with Roman execution, asking how the latter may have played a role in shaping the former and concluding that, while the Rabbis clearly knew the Roman system, their ultimate goal was to reject the principles that underlie the

3 101] BOOK REVIEW 103 Roman approach. The Rabbis explication of proper modes of trial and execution thus comprise a context in which they test different strategies of resistance to Rome (177), which means, again, rationalizing and enhancing their own authority within the Jewish community as against that of Roman law makers and other authority figures. Chapter Seven carries out a similar comparison, now between rabbinic procedures and discourse about the death penalty found in early Christian texts. This reveals a diametrical opposition, for while the Rabbis speak from the perspective of the courts and executioners, defining their procedures and rights and asserting their single goal of achieving justice, Christians identify with the victims of execution, always depicted as martyrs. Berkowitz argues that this difference should not be allowed to mask what is shared between the two literatures. In each, discussion of execution defines a new authority structure. In the Mishnah, this is the Rabbis themselves, as we have seen. In the case of the Christian literatures, the critique of one kind of power and the embracing of a different kind reveals the power inherent in the new Christian leadership and available to all through adherence to the message of Jesus and the Church. Berkowitz s insightful reading of the Mishnah s description of the ritual of execution is supported through careful reference both to rabbinic texts and to a wide range of contemporary scholarship on the death penalty (Foucault, Post-Colonial theory, and others). The Rabbis interests and approach appear to parallel the purpose of execution rituals in a range of other settings, which focus on placing the condemned criminal on the side of rather than in opposition to the court. Within rabbinic law, by allowing the criminal to participate in his own defense and by limiting the allowable prosecution, by moving the place of execution outside of the immediate area of the court, by insisting that the condemned ultimately admit his guilt and accept that his death will serve as atonement, and by requiring that the criminal s family declare that the court s verdict and sentence were just in all of these ways the legitimate power and authority of the rabbinic court are asserted and legitimated and challenges to the court are reduced. At the same time, important in Berkowitz s analysis is the recognition of the fragility of the Mishnah s system, suggesting the Rabbis relatively insecure position within the Jewish community of the first centuries. The Rabbis empower the criminal to speak, but legislate that his speech, and so his challenge to the court s authority, may be so limited as to have no impact; the crier who precedes the condemned on the way to execution invites citizens to bring exculpatory evidence but

4 104 JOURNAL OF LAW & RELIGION [Vol. XXIV also announces the criminal s sin, an ethical warning that exhorts the population to adhere to rabbinic law. Even the requirement that, following the execution, the executed criminal s family must declare that the court s verdict and sentence were just is ambiguous: by making this statement, the family affirms the rabbinic court s authority over the community and promotes the community s recognition that this authority is just. But the very fact that the authors of the Mishnah see a need for such a statement suggests the weakness of the court. Neither the convicted criminal nor his family can be expected to acquiesce to the court s authority, and the court in setting out its procedures therefore must work hard to limit all possible challenges to its power. Alongside the procedures just mentioned, it therefore requires that the condemned be buried apart from the rest of his family and prohibits the executed person s family from mourning (a prohibition found as well in Roman law), which would be seen as a challenge to the authority of the court and government. In all, Berkowitz argues, the pageant of execution as presented by the Rabbis offers a picture of what the viewers are meant to see: the majesty of the law in its full efficacy. (140) At stake here is not simply justice (and certainly it is not a stance against capital punishment, as previous scholars have often read these same texts). It is, rather, a statement about the legitimate power of the Rabbis and their courts, a particularly poignant fact insofar as, in the period in which these materials were conceived, those courts generally had no jurisdiction over capital cases. Berkowitz s carefully documented study delves deep into the implications of rabbinic laws that, of course, carry with them no commentary or explicit statement regarding their authors underlying intentions or concerns. This means that, as careful as Berkowitz is in the marshalling of evidence and setting forth a cogent reading, questions remain regarding how firmly one can assert the existence of this rabbinic agenda. A particular challenge to all such reconstructions of the Rabbis underlying perhaps unconscious (Berkowitz leaves the question open) intentions is the existence of what Berkowitz herself reveals as contradictory rules. Thus, in Chapter Four, she notes that even as the Mishnah increases judicial controls on the process of punishment rendering the court alone responsible for carrying out the execution other early rabbinic texts reveal a different approach, stating that if the blood avenger to whom Scripture assigns responsibility for executing a murderer fails to do so, all Israelites become responsible for killing a murderer who has left a city of refuge. Berkowitz concludes that the Rabbis concern for what she calls institutionalization that is,

5 101] BOOK REVIEW 105 turning what in Scripture are the ad hoc actions of a relative of the victim into a controlled responsibility of the community in this case compromises (103) the trend toward judicialization, which hands all matters of execution over to the court. It thus appears that the Rabbis reading of Scripture and their attempt to make sense of the role of the blood avenger and the place of vengeance as a response to murder overcomes their separate interest in increased court authority. Additional texts that Berkowitz discusses turn Scripture s prerogative of blood vengeance into an obligation, so that, according to the Rabbis, a blood avenger must kill not only a malicious murderer but also an unintentional manslayer, an idea unknown in Scripture. But this again means that the extent to which we can speak here of a cogent underlying ideology asserting the sole power of the court must be more limited than Berkowitz admits. Her argument is plausible, that by making blood vengeance a commandment, the Rabbis shift Scriptural law from the psychological and personal to make it communal and subject to outside authority, so that it is at least roughly in line with rabbinic tendencies. But it also asserts a sort of cogency that the Rabbinic perspective might not evidence at all. Short of a more developed theory of what Berkowitz identifies as the Rabbis underlying program conscious or unconscious? the question of how we are to understand such contradictory trends remains open. This question does not change the extent to which Berkowitz s work deserves attention for its important conclusions regarding the rabbinic law of execution. Additionally, her work must be recognized for carrying forward the contemporary scholarly program of uncovering the ways in which the rabbinic literature as a whole promoted new structures of authority and distinctive legal ideologies that responded directly to the changed political setting and communal needs of the Rabbis day. This study, like much recent work on the Mishnaic literature, shows that the Rabbis were not the natural and automatic leaders of the post-70 Jewish community. They acquired that position, rather, through a program of laws and ideologies aimed whether consciously or unconsciously at meeting specific communal needs and at promoting the Rabbis as the leadership class that needed to be recognized and followed. Execution and Invention should be read, accordingly, both for its careful and persuasive readings of rabbinic discourse about execution and also for the larger light it sheds on the Rabbis emergence as the unchallenged leaders of post-temple Judaism.

6 106 JOURNAL OF LAW & RELIGION [Vol. XXIV Alan J. Avery-Peck * * Alan Avery-Peck is Kraft-Hiatt Professor of Judaic Studies and Chair, Department of Religious Studies, at the College of the Holy Cross, Worcester, Massachusetts.

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