Jewish Justice: The Contested Limits of Nature, Law, and Covenant

By David Novak

In  Jewish Justice David Novak explores the continuing role of Judaism for crafting ethics, politics, and theology. Drawing on sources as diverse as the Bible, the Talmud, and ancient, medieval, and modern philosophy, Novak asserts Judaism's integral place in communal discourse of the public square.

According to Novak, biblical revelation has universal implications—that it is ultimately God's law to humanity because humans made in God’s image are capable of making intelligent moral choices. The universality of this claim, however, stands in tension with the particularities of Jewish monotheism (one God, one people, one law). Novak’s challenge is for Judaism to capitalize on the way God’s law transcends particularity without destroying difference. Thus it is as Jews that Jews are called to join communities across the faithful denominations, as well as secular ones, to engage in debates about the common good.

Jewish Justice follows a logical progression from grounded ethical quandaries to larger philosophical debates. Novak begins by considering the practical issues of capital punishment, mutilation and torture, corporate crime, the landed status of communities and nations, civil marriage, and religious marriage. He next moves to a consideration of theoretical concerns: God’s universal justice, the universal aim of particular Jewish ethics, human rights and the image of God, the relation of post-Enlightenment social contract theory to the recently enfranchised Jewish community, and the voices of Jewish citizens in secular politics and the public sphere. Novak also explores the intersection of universality and particularity by examining the practice of interfaith dialogue among Jews, Christians, and Muslims.

• Language: English
• Publisher: Baylor University Press
• Release date: Mar 15, 2017
• ISBN: 9781481305310

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Jewish Justice

The Contested Limits of Nature, Law, and Covenant

David Novak

Baylor University Press

© 2017 by Baylor University Press

Waco, Texas 76798

All Rights Reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission in writing of Baylor University Press.

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Contents

Acknowledgments

Introduction

Chapter 1. Can Capital Punishment Ever Be Justified in the Jewish Tradition?

Chapter 2. The Elimination of Mutilation and Torture in Rabbinic Thought and Practice

Chapter 3. Natural Law, Human Dignity, and the Protection of Human Property

Chapter 4. Land and People: One Jewish Perspective

Chapter 5. Jewish Marriage and Civil Law: A Two-Way Street?

Chapter 6. Jewish Marriage: Nature, Covenant, and Contract

Chapter 7. Divine Justice/Divine Command

Chapter 8. The Universality of Jewish Ethics: A Rejoinder to Secularist Critics

Chapter 9. The Judaic Foundation of Rights

Chapter 10. Social Contract in Modern Jewish Thought: A Theological Critique

Chapter 11. Toward a Jewish Public Philosophy in America

Chapter 12. Defending Niebuhr from Hauerwas

Chapter 13. Is Natural Law a Border Concept Between Judaism and Christianity?

Notes

Abbreviations and Bibliography

Credits

Index

Acknowledgments

I would like to thank the journals in which this volume’s chapters originally appeared. In order of publication, I wish to thank George Washington Law Review, Princeton University Press, Rowman Littlefield, Journal of Religious Ethics, Eerdmans Publishing Co., the Witherspoon Institute, Studies in Christian Ethics, and Cambridge University Press. I am grateful for the permission to republish these articles in the current volume and to all of the various editors who made this possible.

My thanks are also due to my editor at Baylor University Press, Dr. Carey Newman, and his wonderful staff for all their help and encouragement. Finally, thanks are due again to my research and teaching assistant, Cole Sadler, Ph.D. candidate at the University of Toronto, for the many tasks he undertook with his usual efficiency and good cheer.

This book is dedicated to my friend of more than thirty years, Professor Lenn E. Goodman of Vanderbilt University. Our frequent conversations over the years have always been significant, with enough commonality between us to make them possible and sustainable and enough difference between us to make them interesting and unending.

Introduction

The title of this collection of essays, Jewish Justice, raises the question of what is the relation between Judaism and justice. Is Jewish justice essentially different from, let us say, Christian justice, or from Islamic justice, or from secular justice? If that is so, then the word justice is in fact a homonym, and the Hebrew terms tsedeq and mishpat, usually translated as justice, should be left untranslated so as not to confuse them with what are assumed to be the altogether different notions of what is just or right coming from other traditions. Doing that, however, would lead to two grave problems that we should try to overcome.

One, that kind of isolationism would ignore the obvious historical fact that Jewish notions of what is just or right have both influenced and been influenced by similar notions coming from other traditions. That two-way influence would not have been possible if these different traditions didn’t have some conceptions of right and wrong in common. Such commonality warrants using the word justice universally.

Two, that kind of intellectual isolationism would disable Jews committed to Judaism or the Jewish tradition from bringing anything from our own tradition into discussions of justice and injustice in today’s increasingly pluralistic world. In these pluralistic public discussions, such an isolationist or sectarian approach would effectively silence the Jewish tradition’s rich moral evaluation of most of the issues of social interaction that have continually concerned everyone everywhere. The issues of social interaction subject to evaluation by moral criteria of right and wrong (by whatever name employed) are truly universal and perennial. They are by no means the unique concern of any one tradition. Moreover, these great social issues are not dealt with in intellectual isolation, but rather in an increasingly global context. The discussion of these issues is becoming more and more the subject of what is now called public reason. Public reason is practical reason that is exercised publicly. As one nineteenth-century Jewish theologian put it, in the discussion of these universal issues, the Torah permits human reason to soar, and that the greatest effort be directed to ascertaining the truth. And, as emphasized by Maimonides, the great twelfth-century jurist-theologian, the truth can be learned from and taught by anyone anywhere and at any time.

Now these discussions or exercises of public reason are not just academic; they have considerable political impact. That is because the legislators and the jurists who make public policy have frequently been educated by, and thus influenced by, thinkers from various traditions who have definite conceptions of right and wrong, of justice and injustice. All of us are affected by these public policies, so it seems only fair that each of us affected by these exercises of public reason should try to be proactive in them, rather than being either passive in them or absent from them altogether. One should try to be effective in and not just affected by these discussions. Since it can be well argued that everybody comes to normative discussions from somewhere—that is, from some tradition or historical background—those who see the need to be proactive in these normative discussions of basic social issues should draw on their respective traditions so that the rationality of their traditions soon becomes evident to fair-minded persons from whatever tradition who are thus willing to give another tradition’s moral teaching a fair hearing. Indeed, that explains my reason, as a Jewish public intellectual, for writing each of the essays (over the past fifteen years) now collected in this volume called Jewish Justice. Of course, the impact that my Jewishly based views will have on public policy, if any at all, is not for me to predict. Nevertheless, Scripture admonishes: Cast your bread upon the waters; but only after many days will you find it (Eccl 11:1). To paraphrase a Jewish commentator, this is an admonition to theologians to be patient and not despair of the public effectiveness of their moral message, for one never knows what its effect might be, sooner or later.

What is it, though, that makes the justice discussed in these essays Jewish? Surely, the fact that the discussion of the various normative issues dealt with here originates in traditional Jewish sources does not make their discussion essentially Jewish. The Jewish tradition might provide illuminating illustrations of universal moral truths about justice, yet these same truths might just as easily be illustrated from other traditions. If that is the case, the Jewish element in these discussions might well be merely exemplary rather than essential; it might be good, but not indispensable. In fact, there have been liberal versions of Judaism that have made its moral universalism primary and its theological particularism quite secondary. (Jewish theology is fundamentally particularistic because, although based on the revelation of the Creator of the whole universe, that revelation is made to a particular people at a particular time in a particular place.) On the other hand, there are more traditional versions of Judaism that have made its theological particularism primary and its moral universalism simply what the Jewish tradition seems to demand of all humans and all human societies. (Of course, why anyone who is not committed to the Jewish tradition, whether Jewish or not, should accept what some traditionalist Jewish scholars have said the Jewish tradition demands of them is a question these traditionalists never really answer.) In the former case, theology is derived from morality; in the latter case, morality is derived from theology. The approach of this book, however, avoids these two reductionist extremes. Thus, the moral views presented in this book, coming as they do out of the Jewish legal tradition known as Halakhah, have an evident rationality. To be appreciated, however, they do not require the prior acceptance of theological premises, from which they must be deduced as conclusions. Nevertheless, these moral views do have an ever-present theological dimension. That dimension, coming as it does from the Jewish theological tradition, known as Aggadah, informs these views at every turn.

Now, it is assumed in all these essays that their readers are committed to the biblical commandment: Justice, justice you shall pursue (Deut 16:20), even if many of them are not committed to the Lord God of Israel—the biblical God—by whose authority Moses uttered this commandment. As such, our discussions with them do not require their acceptance of a theological preamble. Nevertheless, why this commandment is to be obeyed is best explained, it seems to me, by the biblical teaching that this God is the Judge of all the earth (Gen 18:25), and that our pursuit of justice in human society in this world is because of our desire to imitate divine justice as an end in itself (Gen 18:19). By so doing, our pursuit attains the cosmic significance it wouldn’t attain without this theological affirmation. That is how theology informs and ultimately contextualizes our initially common practical concern that justice be done in the world. Finally, even Christians who are committed to the biblical God and His moral law, and with whom Jews have much theological commonality, are still not committed So thito the authority of the Jewish legal tradition. But that legal acceptance is not required of Christians in order for us Jews to engage in discussions with them about our common, theologically informed morality. Then they who fear the Lord spoke, each one to his neighbor (Mal 3:16).

Here are brief synopses of the individual essays, comprising the thirteen chapters of this book.

Chapter 1: Can Capital Punishment Ever Be Justified in the Jewish Tradition?

The United States is one of the few remaining nations in North America and Europe that still practices capital punishment. When Jewish scholars are asked to weigh in on this controversial topic, there is no unified opinion. What Jewish scholars can do is look to their own tradition to mine the texts that deal with this topic. In the case of capital punishment, the tradition of the rabbis attempts to reduce executions to the bare minimum, even though these legal speculations were conducted when Jews no longer had the political power necessary to execute criminals. Thus, the Jewish tradition cannot outright ban capital punishment, as it is scripturally prescribed. Instead, Jews must interpret the commandment to execute certain criminals so it is hardly ever actually applied.

Because one is commanded to uphold justice and the rule of law, not punishing criminals is not compassionate to their victims. In the twentieth century, great crimes were committed far beyond the scale of individuals, at the level of genocidal extermination of entire ethnicities and nations with no respect given between civilians and lawful combatants. In these extreme cases, like the Nuremberg trials or the execution of Adolf Eichmann by an Israeli court, such crimes were warranted. In this chapter’s context, the dawn of the twenty-first century, a great crime was the World Trade Center attack on September 11, 2001. This chapter discusses how the rule of law and respect for persons should have sought to capture criminal mastermind Osama Bin Laden (who was eventually killed by American soldiers) and have him tried and executed by an Islamic court of his peers.

Chapter 2: The Elimination of Mutilation and Torture in Rabbinic Thought and Practice

This chapter deals with a basic problem between the literal reading of Scripture and the more imaginative reading and application by rabbinic interpreters. At the literal level, Scripture states a basic notion of an eye for an eye, a tooth for a tooth (Exod 21:24-25), seeming to imply that retributive mutilation is an acceptable practice in the covenantal community. However, the ancient rabbis sought to interpret the laws according to legal fictions and casuistry with the aim of not justifying seemingly unjust barbaric practices. This exegetical attitude assumes that God is a just lawgiver, not a capricious tyrant.

In the Jewish tradition, the general interpretation of an eye for an eye is not literally retributive mutilation, but monetary compensation for damages incurred. Referring to the history of legal interpretation, this chapter discusses the reasoning of Jewish legal theorists and the various means by which they calculated compensatory payments.

The Jewish legal tradition does not equate torture and capital punishment. Torture has been seen as a fundamental crime against humanity, which the Talmud defined as even the burning of an individual’s fingernail. This attitude against torture is seen in the calculation of damages for injuries incurred. Along these lines, payment corresponds to the price the offending individual would pay in order to not be tortured. However, it does not assume actual torture will be inflicted, reducing the literal commandment, known as lex talionis, to a law not enforced.

Chapter 3: Natural Law, Human Dignity, and the Protection of Human Property

This chapter discusses a major problem facing the specific world of business ethics: corporate crime. Drawing upon broad traditions of scholarship, including Aristotelian ethics and phenomenology, this chapter examines the social, philosophical, and cultural context that could create an environment of permissible theft. In a cultural context that abhors violence and impediments to personal freedom, the biblical command Thou Shalt Not Steal seems to have been forgotten. As opposed to the work of a few individuals, this chapter argues that there is a broader social culture permitting one to steal as much as possible, one that only suggests feeling remorse in the event one is caught and prosecuted.

This chapter draws on natural law theories, developed by sources as diverse as the ancient Greek philosophers and the rabbis, to argue for universal norms available to all humans through the exercise of their reason. Despite their universal quality, the norms must be applied in the context of specific cultures whose ethics inform every interpersonal interaction from familial to economic. This chapter argues that a culture that tolerates thievery is incoherent, since even thieves have to adhere to ethical standards to at least refrain from stealing from each other. This ethical breakdown ultimately has societal implications, as no individual lives in a vacuum. On the contrary, we are all very much embedded in communal and political relations.

Chapter 4: Land and People: One Jewish Perspective

Of great importance to the Jewish religion is the commandment to live in the land appointed to the Jewish people by God. Indeed, there are even specific religious commandments that can only be fulfilled in the land of Israel. With renewed political sovereignty of the Jewish people in the land of Israel in the twentieth century in a secular polity, the question of religious commandments and the land become even more prescient.

Two of the main concepts that have been falsely equivocated are the notions of property and money. These terms are not interchangeable. Rather, money is the abstract expression of concrete, landed property. In the history of the Jewish people, prior to their exile after the destruction of the Temple, the Jewish community was divided into tribes and families who were intimately tied to their ancestral plots of land. It was only with the subsequent exile that the relationship of the Jewish people to the land of Israel became more commercial. This caused many earlier restrictions of the ownership of property to patrimony to become inoperative. This enabled those without Jewish patrimony to be more fully participatory in civil society.

As opposed to adopting a Judeo-supremacist view of Israeli citizenship, therefore relegating all non-Jews to a stateless status, this chapter advocates giving limited political enfranchisement to Israeli gentiles. This status, originating in the Torah, is called the ger toshav, or resident alien. In its original context, the ger is a sojourner in the land, a kind of landed immigrant or permanent resident without full citizenship, but having a protected legal status nonetheless. This chapter advocates applying this concept to those gentiles wishing to reside in Israel without formal religious conversion, and who would therefore be able to take part in the life of a fully Jewish polity.

Chapter 5: Jewish Marriage and Civil Law: A Two-Way Street?

Modernity brings with it concern for universal human rights and universal enfranchisement of minority groups. However, according to many liberals, modernity relegates public religious communities to the private realm as the associations of individuals. This privatization of religion in subordination to the state has made the question of religious marriage a private rather than a public matter. This chapter deals with the incommensurable difference between traditional Jewish marriage (kiddushin), its covenantal character, and its nonegalitarian procedures for divorce. Civil marriage, by contrast, can be performed outside the religious community, and has the character of a contract between individuals that may be easily broken.

This chapter discusses the fundamental correlation between duties and rights, by which every right has a corresponding duty. In the literal reading of Jewish law, it would appear to a casual reader that the Jewish law of divorce favors the man and denies rights to the woman. However, duties are far more binding on the man, while the woman has far more rights to demand justice from her religious community. Thus, in the case of an unfit marriage, a man may be coerced by religious authorities to divorce his wife because the woman has the right to be protected by the law. However, it is argued here that it is not the business of civil authorities to enforce procedures that can be best dealt with by religious courts. Sadly, most Jewish religious courts have not used ample sources in the tradition to protect the rights of women in Jewish marriage and divorce.

Chapter 6: Jewish Marriage: Nature, Covenant, and Contract

This chapter engages with historical permutations in Jewish legal thought regarding marriage. It discusses how marriage went from consummation and cohabitation to increasingly structured norms that forbid intermarriage without conversion and uphold the necessity to sanctify the marital union (kiddushin, literally, sacrament).

In the Talmud, there are many theological-legal debates between the School of Hillel and the School of Shammai. It is generally understood that the School of Hillel represents the more lenient view, while the School of Shammai represents the stricter view. The tradition has generally sided with the School of Hillel. Nevertheless, the School of Shammai’s greater appreciation of the natural right to marriage provides a precedent for those who also look upon marriage as the natural right of a man to have a wife and a woman to have a husband. The covenantal and even contractual aspects of marriage, which are specifically Jewish, nonetheless presuppose marriage as a natural institution, instituted by God at the creation of humans.

Chapter 7: Divine Justice/Divine Command

This chapter deals with a fundamental equivocation in theology, equating God’s justice with God’s commandments articulated in revealed texts. This differentiation of terms argues that God’s justice is the universal ground by which individual commandments are given. The differentiation of oft-conflated concepts is not idiosyncratic, but instead within a normative tradition of Jewish rationalism. In intra-Jewish discourse, the conflict is between the commandments grounded in the general concept of justice and the notion that the commandments are sufficient in themselves, which could be termed theological positivism. This positivism in Jewish thought is indicative of an uncritical traditionalism that holds the commandments be performed for their own sake. In this view, one does not ask why a commandment is to be done; one merely asks how a commandment is to be done.

The rationalist view finds a strong voice in medieval jurist-theologian Moses Maimonides, who asserts that all the commandments have reasons, as opposed to the view that seems to regard them as the orders of an irrational, capricious God. However, one can perceive divine justice as the universal ground of divine commandments, especially those commandments that apply to all humans. Even persons outside the covenanted community can acknowledge God’s justice generally, even if they do not accept all the specific commandments of the revealed Torah.

We see God’s general concern with justice in the pre-Sinaitic prophet, Abraham, who argues with God for justice in an unjust world. Abraham engages God, asking the fundamental question: Shall not the Judge of all the world do justice? (Gen 18:25). Ultimately, this justice is the basis by which we can understand the reasons for most of the commandments pertaining to interhuman relationships, as revealed in the Torah.

Chapter 8: The Universality of Jewish Ethics: A Rejoinder to Secularist Critics

In Europe, Jews have long faced the charges of particularism by Christendom’s pretensions to universality. The earlier European Christian charges against Jewish particularism were secularized by Immanuel Kant, who argued that Judaism is only concerned with particularist legalities rather than with universal morality.

This chapter contends primarily with unlimited egalitarianism, the view that all differences must be subsumed into a homogenous political system. This view denies all communal, religious, and ethnic affiliations, advocating an ideology of complete equality. As opposed to some form of rationalistic universality, like the kind posited by John Rawls, this chapter argues that a totalizing universality easily paves the way for totalitarian regimes.

Morality must find its warrant not from the will of an individual ruler or from the general will of the citizens of a polity, but rather from the norms posited by the transcendent God. Apart from God’s revelation to specific religious communities, universal norms that have been worked out by the philosophical tradition of natural law are available to human reason. Morality must have God as its origin and goal, where moral persons, both individual and collectively, seek to imitate God in all their political relations.

Chapter 9: The Judaic Foundation of Rights

A fundamental distinction in discussing individual rights is the relation of rights to corresponding duties. However, merely imposing duties without corresponding rights results in tyranny. All duties presuppose the rights to which they are the appropriate responses. One must begin by extending their rights to their correlative duties. Judaism posits rights as given to the covenanted community by God, and God demands duties that promote that covenantal relationship. Despite the injustices in the world and its imperfections, which God’s covenanted communities must face prior to the final redemption, the covenanted community still claims God’s justice in its liturgy.

Despite its particular relation to the Jewish community, the revealed Torah of God promotes individual rights by commanding all humans to do justice for the world at large. Thus, Jews are even able to go to gentile authorities for justice, demanding succor for the widow, the orphan, and the stranger.

Taking into account the various kinds of relationships that duties entail, duties are primarily familial, communal, and national, not individualistic. An individual is to act morally in order to strive for the highest good of the people. Ultimately, if not immediately, one requires a metaphysical foundation of a stronger notion of universal human rights.

Chapter 10: Social Contract in Modern Jewish Thought: A Theological Critique

This chapter engages one of the greatest philosophers of modernity, the eighteenth-century Jewish thinker Moses Mendelssohn. Writing at the advent of numerous sweeping changes, Mendelssohn discussed the political emancipation of European Jewry (and, specifically, in his native Prussia), the modern nation-state, and the rise of the idea of universal human rights. As opposed to Hobbes’ pessimistic war of all against all, Mendelssohn had an optimistic view of the state of nature as formulated by Locke. In this formulation of the state of nature, Mendelssohn discussed how prior ethical-communal relations enable individual strangers to constitute a coherent society, as opposed to generating norms de novo. However, in this rationalistic formulation, religion is subsumed by the universal polity as an association of private individuals, therefore removing the normative value of religious communities.

Despite Mendelssohn’s contributions to modern political philosophy, this chapter argues against Mendelssohn’s rejection of the prior binding power of the normative Jewish tradition (in Mendelssohn’s time, Traditional Judaism was the only religious option). Therefore, Mendelssohn’s formulation of religion is too individualistic and private. This chapter argues for religious pluralism in a secular society that does not reject one’s prior communal affiliation, allowing that religio-communal relation to influence one’s voice in the public sphere.

Chapter 11: Toward a Jewish Public Philosophy in America

Considering that apart from the state of Israel there is no other Jewish polity, diaspora Jews have struggled with their identities among the nations. Particularly in North America, Jews have often asserted their identities as proud patriots, retaining their culture and religion in the face of social pressures to assimilate. Many secularists assume that individuals must give up their prior communal loyalties in order to become merely an association of like-minded individuals, accepting the kind of universality formulated by thinkers like John Rawls. This invites the critiques of philosophers like Thomas Nagel who argue against a view from nowhere, which assumes individuals are empty vessels with no particular location in time and space.

In the face of liberal pressures to assimilate and privatize religion, this chapter argues for three principles to which all American religious Jews should adhere: the Torah, Jewish self-interest, and general morality. This chapter articulates specific pitfalls, like the threat of religious syncretism and of Messianic Jews. This chapter engages with the subtleties of adhering to one’s Jewish identity. Finally, general morality, when not grounded in natural law, can lead to arbitrary societal norms. Therefore, while the principle of separation of church and state is important to protect diaspora Jews from theocracy and religious violence, public manifestations of one’s religious community (such as public Menorah lightings on Hanukkah) is a healthy affirmation of one’s communal affiliation.

Chapter 12: Defending Niebuhr from Hauerwas

This chapter discusses the role of natural law theory, traditionally associated with Catholic political theology, in the thought of the twentieth-century Protestant theologian Reinhold Niebuhr. Niebuhr’s formulation of natural law (though he eschewed that actual term itself) exhorted nonreligious persons to abhor injustice as idolatry in their political situations (especially when confronting the pagan idolatry of Nazism). Niebuhr did not assume, however, that rejection of idolatry, the worship of not-god, presupposes one’s acceptance of the God revealed in Scripture. The best one can hope for is that secular persons who appreciate Niebuhr’s political insights will come to see their true theological foundation.

Niebuhr’s formulation of natural law is placed in contrast to criticisms from Reformed Protestant theologians Karl Barth and Stanley Hauerwas. Emphasizing the political requirement to affirm biblical revelation, those who do so are reduced to political impotence in any secular society. One can resist injustice by choosing to opt-out of their society, but one cannot change it from within. Thus, this chapter sides with Niebuhr, arguing that the kind of action against injustice necessitated by his thought was much more politically effective in resisting Nazism (and other totalitarianisms) than the righteous isolation of vocal anti-Nazis like Karl Barth or pacifists like Stanley Hauerwas.

Chapter 13: Is Natural Law a Border Concept Between Judaism and Christianity?

This chapter discusses the increasingly marginalized religious communities in an increasingly secularized North America and Europe. Natural law theories, despite accusations of Catholic imperialism, have been formulated by Jewish and even Protestant scholars. In Jewish thought, the rabbinically articulated Noahide Laws represent pre-Sinaitic commandments given to all human beings. That seems to be a Jewish version of natural law.

Differing natural law theories in the different covenanted communities, Jewish and Christian, provide spaces to do comparative ethics on issues that these traditions have in common. At the same time, these discussions often devolve into mere descriptive work without normative or exhortative strength, mirroring a postmodern academic environment in which scholars function.

While acknowledging that a universal series of proscriptive norms without a communal culture is too thin, natural law thinking at least gives a space for minimal commonality between different religious communities. These communities agree on penultimate issues, such as the origin of the cosmos, human nature as created in the image of God, and many moral issues. These assumptions allow these religious groups to speak in the public sphere together and engage secular persons who have not accepted, or have not yet accepted, the theology that underlies their authentic thought and action.

I hope the essays in this book will speak to various readers in various ways. In writing them and slightly rewriting them for this volume, I have always tried to imagine who is reading my work and what they might be getting out of what they have read. If I have clarified anyone’s thinking, let alone influenced anyone’s action for good, I am grateful, even without knowing who has been so benefited.

Toronto

Hanukkah 5776

December 2015

Chapter 1

Can Capital Punishment Ever Be Justified in the Jewish Tradition?

The Death Penalty and Moral Responsibility

Debate over the death penalty is of such practical import in our society that it would be irresponsible for me to simply report opinions regarding it in my own tradition. The import of this question requires responsible citizens in our by-now heterogeneous society, coming from their respective traditions, be they religious or secular, to at least suggest a judgment on the death penalty emerging from their tradition. A question of such immediate moral concern makes a greater and more specific claim on our judgment than any question only motivated by general curiosity. Indeed, merely reporting what one’s tradition has said about a current moral controversy, like the one concerning the death penalty, usually shows that same moral controversy can be found within his or her own tradition. As such, leaving the discussion at the merely descriptive level allows the reporter to evade responsibility for what the answer of his or her tradition ought to be for the question at hand here and now. At the descriptive level alone, one can get away with concluding that some Jewish thinkers are in favor of the death penalty and others are opposed to it.¹ But that is hardly enough. In other words, the political implications of any public discussion of the death penalty are too significant for any such discussion to be left in such an irrelevant academic corner.

Moreover, even though the Jewish tradition I discuss here is only morally authoritative for us Jews, its wisdom can nonetheless provide guidance, even if only by suggestion, for those of other traditions. This is especially so when they discover analogous patterns of moral reasoning during a process of authentic multicultural dialogue. Out of this process of multilateral guidance could emerge a unilateral conclusion having real governance—that is, a theoretical conclusion leading to real political and even real legal results. Furthermore, in the process of becoming more normatively focused, such specific judgments, only tentative and suggestive at present, should still have some direct relevance to a particular situation or case of deep moral concern. It takes no stretch of the imagination at all to see the death penalty as a matter of such particular concern for us all due to the terrible events of September 11, 2001. Of course, even had these events not occurred, we would have other events on which to focus our particular concern. Nevertheless, the events of September 11 have very much eclipsed them.

How could anyone here or elsewhere, when the death penalty is so much mentioned, not think of the victims and the victimizers who came together on that by-now infamous date of September 11 in a global danse macabre? A death penalty was decreed and enacted, even entailing the suicide of the immediate perpetrators. Yet, some of the victims and some of the less immediate victimizers survived the killing. What are we to do with them? In the case of the victims who survived, our immediate response must be to offer them financial aid and emotional comfort. But, do we not also owe them—both the living and the dead—justice? In relation to the victimizers, who are still living and at large, are we not required, in the oft-stated words of President Bush, to bring them to justice? The question is, of course, just what sort of justice we are to bring them to. To cite the most important case that could possibly face us, what could we justifiably do if we were to capture Osama bin Laden or one of his close associates in the leadership of al-Qaeda? Could we try him or them in a court of law? Who could sit in such legal judgment of him or them? What could be the maximum punishment meted out to him or them if and when found guilty? In terms of this last question, the questions immediately following are, Could we justify executing him or them on moral or legal grounds? and "What does Judaism say—or better, what could Judaism say—about this?" Surely, Jewish pride in having a true teaching (torat emet) requires that Jewish thinkers not remain mute or noncommittal, especially when asked for their opinion by others.²

Of course, we are assuming that Osama bin Laden and the leadership of al-Qaeda are being charged as war criminals. And, of course, there are the precedents of the 1947 Nuremberg trials of the Nazi leaders and the 1962 trial of Adolf Eichmann in Jerusalem. In both of these cases, the accused were tried in a court of law as opposed to simply being killed upon capture. Thus, it was assumed that the accused had violated a law for which they were responsible before the time of their crime (nulla poena sine lege) and were thereby responsible for its legal consequences after their crime. And that means that the victors in a war had the right to try those of the vanquished whom they could indict for instigating the crime of killing whole populations. Dealing with this crime is different in kind from the way the victors have often dealt with those who simply killed enemy combatants in what could be seen as a program of conquest. The crime of failed conquest, if that is even the right word for it, has more often been punished by political and economic sanctions against the offending nation than by legal sanctions, like the death penalty, against its leaders. In both the Nuremberg and Eichmann trials, it was assumed even before it was formally concluded that we may punish such wholesale acts of murder with the death penalty.

The reason for the death penalty in such cases was best expressed, I think, by the late political philosopher Hannah Arendt. Despite her rather ambivalent relationship with her own Jewish heritage, she nevertheless expressed views, as we shall soon see, that have strong foundation in the Jewish tradition, whether she knew it or not. In the epilogue to her still-controversial book of 1963, Eichmann in Jerusalem, she formulated what she thought should have been the justification for the death sentence against Adolf Eichmann for the crime of genocide. Dramatically speaking in the second person, as if she were the presiding judge pronouncing the death sentence against Eichmann, she wrote,

And just as you supported and carried out a policy of not wanting to share the earth with the Jewish people and the people of a number of other nations—as though you and your superiors had any right to determine who should and who should not inhabit the world—we find that no one, that is, no member of the human race, can be expected to share the earth with you. This is the reason, and the only reason, you must hang.³

The Death Penalty for Ordinary Murder

I would like to place Hannah Arendt’s great insight about the death penalty for the crime of genocide in the context of the exceptionally rich tradition of moral experience and reflection of the Jewish people, something she herself did not do. And how she responded to the program of terror implemented by Adolf Eichmann and those with him is, to a large extent, the way we can respond to the program of terror initiated by Osama bin Laden and those with him. By so doing, we can develop her insight with greater precision, and we can better connect it to the moral distinction that needs to be made between the murder of individual human persons for reasons extraneous to their essential humanity (homicide) and the murder of persons for the sole reason of removing them, and everyone like them, from humankind itself altogether (genocide). Making this great moral distinction should lead to even greater legal differences between homicide and genocide.

Although all Jewish norms can be derived from either specific biblical commandments or the general biblical mandates warranting legislation by Jewish authorities, Jewish reflection on the meaning and purpose of these norms takes place in the Talmud and its related literature. Surely, such is the case with Jewish reflection on the death penalty. All of it comes from the Talmud. And, quite significantly, this reflection takes place during a time when, according to the Talmud itself (and some other cognate sources), the Jewish people did not have enough political sovereignty to enforce the death penalty on anyone.⁴ This means that talmudic reflections on the death penalty were either reflections on what had transpired in previous Jewish history, what the rabbis hoped would transpire in future Jewish history with the restoration of Jewish political sovereignty, or what the rabbis either approved of or disapproved of in the surrounding gentile societies, especially those gentile societies under whose rule Jews were living at the time. In the case of these gentile societies, the rabbis were in effect telling them rabbinic views of their judicial practices, even though it is quite unlikely these societies were interested in what the rabbis thought of them and their laws and were even less interested in listening to the practical guidance their thoughts about them implied. As we shall see,