When scholars write about rabbinic capital punishment, they tend to cite one well-known text from the Mishnah, a second-century C.E. Hebrew-language law code:
"The Sanhedrin [Jewish court] that kills once in seven years is called destructive. Rabbi Elazar ben Azariah says: Once in seventy years. Rabbi Tarfon and Rabbi Akiva say: If we had been in the Sanhedrin, no one would have ever been killed. Rabban Shimon ben Gamliel says: Even they multiply murderers in Israel."
This text censures the rabbinic court that executes with anything nearing frequency, and two Rabbis, Tarfon and Akiva, claim that they would have never executed anyone at all. A dissenting comment from Rabban Shimon ben Gamliel argues that such abolitionism would have had disastrous social consequences by eliminating the deterrence that the death penalty allegedly provides. Many scholars of the last century, frequently omitting the last comment, concluded from this text and others that the ancient Rabbis were opposed to capital punishment. The Rabbis would have completely abolished the death penalty, the argument goes, if they had not inherited it from the Bible. According to many proponents of this historical reconstruction, the Rabbis represent an advance in moral thinking over the relative barbarism of the Bible.
This paper first explores the contours and context of this scholarship and then offers a new approach that uses Robert Cover's work to rethink rabbinic law's relationship to violence. I draw on two of Cover's essays, Nomos and Narrative and Violence and the Word, to read another rabbinic legal text, Mishnah Sanhedrin Chapter Six, which describes the rabbinic procedure for criminal execution. I employ Cover's concepts of word, role, and deed, and specifically his claim that the judge's word is turned into violent deed though the mediation of roles. Using these concepts, I suggest that the Mishnah establishes a close relationship between the rabbinic judge and violence, but at the same time creates some distance between the two. According to Cover, such strategies are typical of law, which in order to maintain legitimacy must appear to be capable of violence yet not unduly eager to resort to it. I suggest that Cover's work, when applied to rabbinic law, helps to dispel the romanticism of rabbinics scholarship, even though paradoxically Cover's own discussion of Jewish law is subject to this very flaw. Finally, I recommend several new directions that Cover's work might give to scholarship on Jewish law, and I suggest that rabbinic texts, in turn, might complicate our reading of Cover.
Beth A. Berkowitz,
Negotiating Violence and the Word in Rabbinic Law,
Yale J.L. & Human.
Available at: https://digitalcommons.law.yale.edu/yjlh/vol17/iss1/7