Execution and Invention: Death Penalty Discourse in Early Rabbinic and Christian Cultures

Execution and Invention: Death Penalty Discourse in Early Rabbinic and Christian Cultures BETH A. BERKOWITZ OXFORD UNI...

Author: Beth A. Berkowitz

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Execution and Invention: Death Penalty Discourse in Early Rabbinic and Christian Cultures

BETH A. BERKOWITZ

OXFORD UNIVERSITY PRESS

Execution and Invention

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Execution and Invention Death Penalty Discourse in Early Rabbinic and Christian Cultures

beth a. berkowitz

1 2006

1 Oxford University Press, Inc., publishes works that further Oxford University’s objective of excellence in research, scholarship, and education. Oxford New York Auckland Cape Town Dar es Salaam Hong Kong Karachi Kuala Lumpur Madrid Melbourne Mexico City Nairobi New Delhi Shanghai Taipei Toronto With ofﬁces in Argentina Austria Brazil Chile Czech Republic France Greece Guatemala Hungary Italy Japan Poland Portugal Singapore South Korea Switzerland Thailand Turkey Ukraine Vietnam

Copyright 䉷 2006 by Oxford University Press, Inc. Published by Oxford University Press, Inc. 198 Madison Avenue, New York, New York 10016 www.oup.com Oxford is a registered trademark of Oxford University Press. 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 of Oxford University Press. Library of Congress Cataloging-in-Publication Data Berkowitz, Beth A. Execution and invention : death penalty discourse in early Rabbinic and Christian cultures / Beth A. Berkowitz. p. cm. Includes bibliographical references and index. ISBN-13 978-0-19-517919-4 ISBN 0-19-517919-6 1. Capital punishment in rabbinical literature. 2. Rabbinical literature—History and criticism. 3. Capital punishment—Religious aspects—Judaism. 4. Capital punishment—Religious aspects—Christianity. I. Title. BM496.9.C35B47 2005 296.1'20836466—dc22

2004065442

9 8 7 6 5 4 3 2 1 Printed in the United States of America on acid-free paper

Preface

The subject of this book is criminal execution, which, as a form of violence, has several interesting features: It is authorized violence, it is ritualized violence, and it is measure-for-measure violence, usually visited upon a person as a punishment for some violence that he or she has allegedly committed. I emphasize the ﬁrst two features, that is, the role capital punishment played in the construction of religious authority in the second-century Mediterranean world, and the ritualization of capital punishment that occurred in the process. My interest, however, is not in the actual implementation of capital punishment, but rather in the function of capital punishment in religious discourse. In other words, my question is: how and why do ancient western religions talk about killing criminals? What are the social consequences of this kind of violent talk? I am also interested in, and discuss throughout, modern discourses about ancient discourses, that is, how contemporary quandaries and concerns have led to certain approaches to and representations of the past. My purpose in this study is to expose and interpret classical Jewish texts that trade in the violence of capital punishment and that have been ignored or explained away for a variety of polemical and apologetic purposes, and to show that the violence of these texts has a complex social function. I hope in the process to illuminate the religion of the rabbis and the social role of capital punishment and to overturn, or at least re-imagine, enduring stereotypes of Judaism and Christianity. This book harks back to a conversation I had with a rabbinical student while writing my dissertation, on which this book is based. We discussed the topic of my dissertation, and she exclaimed with great passion that every time she reads Mishnah Sanhedrin Chapter

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Six, she is so moved by the text’s extraordinary concern for human life that she cries. How odd, I thought: Mishnah Sanhedrin Chapter Six describes how to execute a criminal! Why would someone ﬁnd a legal text prescribing the execution of a criminal to be the highest expression of humanitarianism? But this rabbinical student is far from alone. I would go so far as to argue that this rabbinical student was articulating the normative reading of the laws of rabbinic criminal execution, namely, that they epitomize the lofty moral spirit of the classical rabbis. This book attempts to give an alternative reading, not one that declares the classical rabbis to be ignoble or immoral, but one that does see them, on some level, as savvy political players. My goal is also to better understand why other readers read these texts so differently from how I do. My chapter on the history of scholarship on the ancient Jewish death penalty attempts to contextualize the rabbinical students’ “conventional” reading. My hope is that this book will help us rethink the role of authorized violence— especially the discourses about it—in the canonical traditions of western religion and, consequently, in our own contemporary cultures.

Acknowledgments

I would like to thank the many people and institutions that gave me support in the writing of this book. I want ﬁrst to thank Michael Fishsbane for introducing me to the scholarly study of rabbinic literature at the University of Chicago and for inspiring and encouraging me to continue. From my ﬁrst year as a college student until my last year as a graduate student, the Religion Department of Columbia University provided me with wonderful courses, attentive professors, and close friends. I want to single out Wayne Proudfoot, who encouraged my pursuit of religious studies and whose door was always open to me; Celia Deutsch, Susan Shapiro, and Alan Segal, who helped me with my ﬁrst teaching efforts; Jack Hawley, who invited me to present part of this work in a departmental seminar; and Annie Barry, whose smarts, sense of humor, and unparalleled efﬁciency anchor the department. I thank David Weiss Halivni, my dissertation adviser, for providing me with a model of reading Talmud critically and sensitively and for always welcoming me into his ofﬁce and showing great concern for my personal and scholarly wellbeing. I also want to thank the other members of my dissertation committee: Alan Segal, Michael Stanislawski, Jeffrey Rubenstein, and Elizabeth Castelli. My notes from the defense were the starting point for this book. Elizabeth Castelli has since read numerous revisions and additions, always providing me generously with brilliant and painstaking commentary; her respectful and enthusiastic mentoring of students, ground-breaking scholarship, wry wit, humility, and ethical and political engagement continually inspire me and allow me to imagine what I might be able to achieve. I want also to thank my dissertation group, Rosamond Rodman, Jonathon Khan, Marina Rustow, and Kimberly Stratton, for the wonderful experience of sharing work with them. I felt with them for the ﬁrst time what it

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means to have an academic community. My other good friends studying the Rabbis, in graduate school and beyond—Rachel Anisfeld, Meesh HammerKossoy, Gidon Isaacs, Jonathan Klawans, Timothy Lytton, Aaron Panken, and Elsie Stern—manage to make the study of ancient texts a good time. I treasure each of you as a hevruta and as a friend. My transition from graduate school could not have been made any easier by the professors and graduate students of the Jewish Studies program and the Religion Department at Yale. During my time as a post-doctoral fellow in Jewish Studies, I was lucky enough to be colleagues with two of the scholars whose work I most admire: Steven Fraade and Christine Hayes. Steven and Chris are not only two of the most accomplished scholars in their ﬁeld but are also two of the most “menshlich.” I also want to thank Paula Hyman and Ivan Marcus for welcoming me warmly, and Harry Attridge, Adela Yarbro Collins, and Dale Martin for reading the last chapter of this book. Sharing work and ideas with Alan Appelbaum, Ben Begleiter, and Chaya Halberstam was a highlight of my time spent at Yale. Adinah Miller and David Feder helped make New Haven a home away from home for Josh and me. I was fortunate enough to move from Yale to the Jewish Theological Seminary, where my new colleagues in the Talmud Department and in other departments have already in the course of my ﬁrst year extended themselves to me, offering advice, support, and friendship. My sincerest thanks go in particular to Richard Kalmin and Burt Visotzky, each of whom read this book manuscript with great care and sensitivity and helped to make it a better book. I’m also thankful to David Kraemer, whose course on ritual and the Rabbis lies behind chapter 3; Bernard Levinson, with whom I discussed material in chapter 5; the two Oxford readers, whose comments were thorough and insightful; and my husband, Josh, who discussed ideas in the book with me and lent his excellent editorial skills to the manuscript. I would also like to thank the editors and staff at Oxford University Press who helped to bring this book into being. I also want to thank those people and institutions that provided me with the fellowships that allowed me to write this book: Fellowship of the Divinity School of the University of Chicago; President’s Fellowship of the Faculty of the Department of Religion of Columbia University; Mellon Fellowship of the Graduate School of Arts and Sciences of Columbia University; Irene C. Fromer Fellowship in Jewish Studies at Columbia University; Jewish Foundation for Education of Women Fellowship administered by the National Foundation for Jewish Culture; Memorial Foundation for Jewish Culture Dissertation Fellowship; Whiting Foundation Dissertation Fellowship; and Jacob and Hilda Blaustein Post-Doctoral Fellowship of the Judaic Studies Program at Yale University. I am deeply grateful for this ﬁnancial support. I am also grateful to the reference librarians at Columbia University, Union Theological Seminary, the Jewish Theological Seminary, and the University of Michigan for their assistance. Finally, I want to thank my family, both by blood and by marriage, for the love and support they give me always: my mother, my father, Randi, Jon, Talia, Shachar, Alice, Lou, David, Daniel, Alisa, and Sammy. To my husband, Josh, my daughter, Orly and, yes, my dog, Dulcie—I am thankful every day that I share my life with you. I love you.

Contents

Abbreviations, xi 1. Introduction, Execution and Invention, 3 2. Reading Execution, A Century of Scholarship on the Ancient Jewish Death Penalty, 25 3. Ritualization and Redemption, Mishnah Sanhedrin Chapter Six, 65 4. Performing Execution, Part 1, The Blood-Avenger, the Community, and the Witness, 95 5. Performing Execution, Part 2, The Relatives and the Rabbis, 127 6. Paradoxes of Power, “The Way that the Kingdom Does It,” 153 7. The Judge and the Martyr, Execution and Authority in Early Christianity, 181 Notes, 215 Bibliography, 309 Scripture Index, 331 Subject Index, 339

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Abbreviations

Ancient Sources

New Testament

Hebrew Bible

Matt Rom 1–2 Cor Gal Phil Phlm

Gen Exod Lev Num Deut Josh Judg 1–2 Sam 1–2 Kgs 1–2 Chron Ps/Pss Prov Isa Jer Ezek Mal Zech

Genesis Exodus Leviticus Numbers Deuteronomy Joshua Judges 1–2 Samuel 1–2 Kings 1–2 Chronicles Psalm/Psalms Proverbs Isaiah Jeremiah Ezekiel Malachi Zechariah

Apocrypha 1 Macc

1 Maccabees

Matthew Romans 1–2 Corinthians Galatians Philippians Philemon

Rabbinic Literature Preﬁxes y. Palestinian Talmud b. Babylonian Talmud t. Tosefta tractate m. Mishnah tractate bar. baraita Avod. Zar. B. Bat. B. Metsi’a B. Qam. Berak. Ed. Git.

Avodah Zarah Bava Batra Bava Metsi’a Bava Qamma Berakhot Eduyyot Gittin

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abbreviations

Hag. Hor. Kerit. Ketub. Mak. Meg. Menah. Mid. Mo’ed Qat. Ned. Pesah.

Hagigah Horayot Keritot Ketubbot Makkot Megillah Menahot Middot Mo’ed Qatan Nedarim Pesahim

Rosh Hash. Shabb. Sanh. Sem. Shev. Sheqal. Ta’an. Yad. Yevam. Zev.

Rosh HaShanah Shabbat Sanhedrin Semahot Shevu’ot Sheqalim Ta’anit Yadayim Yevamot Zevahim

Modern Journals and Series AJSR BA BAR BASOR BJPES CBQ EJ HTR HUCA IEJ JAAR JECS JJS JQR JRS JTS LCL ed. NovT PEQ PG REJ RevQ VT

American Jewish Studies Review Biblical Archaeologist Biblical Archaeology Review Bulletin of the American Schools of Oriental Research Bulletin of the Jewish Palestine Society Catholic Biblical Quarterly Encyclopedia Judaica Harvard Theological Review Hebrew Union College Annual Israel Exploration Journal Journal of the American Academy of Religion Journal of Early Christian Studies Journal of Jewish Studies Jewish Quarterly Review Journal of Roman Studies Journal of Theological Studies Loeb Classical Library edition Novum Testamentum Palestine Exploration Quarterly Patrologia graeca [ ⫽ Patrologiae cursus completes: Series graeca]. Ed. J.-P. Migne. 162 vols. Paris, 1857–1886. Revue des E´tudes Juives Revue de Qumran Vetus Testamentum

Execution and Invention

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1 Introduction Execution and Invention

Killing Me Softly “Anyone who decides points of law before his master is subject to the death penalty.” In this rabbinic text from late antiquity, the death penalty is administered for a seemingly small crime: teaching law in front of one’s Rabbi.1 While serial murder or rape might seem to us to be more ﬁtting capital crimes (if one believes that any crime is ﬁt to be capital), this legislation suggests that violation of the master-disciple relationship should hold the same horror. An accompanying narrative makes clear that it is not a human court but God who imposes the punishment. In the narrative, a student of Rabbi Eliezer, a late ﬁrstcentury/early second-century sage, commits the said crime and dies soon afterward: “It once happened that a student made a legal decision before him (Rabbi Eliezer). He said to Ima Shalom his wife: He will not last the Sabbath. He (the student) died. After the Sabbath the Sages came to him and said: Master, are you a prophet? He said to them: I am neither a prophet nor the son of a prophet. But I have received a tradition from my masters that anyone who makes a legal decision before his master is liable to the death penalty.”2 The story teaches that God punishes those who disrupt the rabbinic hierachy. Rabbi Eliezer’s teaching at the close of the story works on two levels to promote this hierarchy. Rabbi Eliezer legislates the penalty for transgressing the hierarchy but also shows by example what it means to respect it: He presents his law as a tradition he received from his masters, not as a product of his own ingenuity. The local sages, impressed with his forecast, proclaim him to be a prophet,

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but Rabbi Eliezer refuses to be considered even a “son of a prophet” (ironically echoing the claim of Amos [7:14], who is indeed numbered among the prophets) and instead attributes his insight to the hoary rabbinic tradition. This text, with its contrast between the respected, respectful rabbinic master and the upstart student, who is fatally punished, suggests strong rhetorical associations within early rabbinic culture between the death penalty and rabbinic authority and between capital crime and rabbinic respect. It is this book’s purpose to ﬂesh out those associations and similar associations in early Christianity and to show the discursive power of capital punishment for deﬁning and developing rabbinic and Christian authority in its formative stages. The concern of this book, in sum, is to explore how death penalty discourses helped rabbis and Christians invent themselves. A quite different approach to ancient Jewish capital punishment has been taken by the majority of scholars of the last century. This approach avows the morality of the rabbinic laws of the death penalty, which the rabbis would have liked to abolish altogether, so the argument goes, if it were not for the death penalty’s presence in the Bible. This approach became normative in contemporary scholarship, a trend I will show to have been fueled by anti-Semitism, ongoing polemics with the the Jewish Enlightenment’s inheritance of antirabbinism, as well as sustained controversy in the United States over capital punishment and its abolition. These scholars frequently bring m. Mak. 1:10 as the deﬁnitive statement about the rabbinic death penalty: The Sanhedrin 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.” Scholars emphasize the penultimate line in which Rabbis Akiva and Tarfon declare that had they been judges in a capital court, they would never have executed a single criminal. This book will examine this history of scholarship and the forces that shaped it. But this book’s purpose is also to join the scholarship by presenting a new understanding of the rabbinic death penalty that moves beyond the “humanitarianism” approach and the particular brand of Jewish-Christian polemics that helped to generate it. I argue in this book that the problem of rabbinic authority is central to rabbinic death penalty discourse and that the problem of Christian authority is central to Christian death penalty discourse, as the problem of authority is central to any institutionalized punishment of death.3 I show that even rabbinic statements that have been read as abolitionist, if looked at in a different light, in fact augment the death penalty. Following the legal theorist Austin Sarat, who argues in his article, “Killing Me Softly,” that reforms of the methods of execution in the United States—the rise of lethal injection and abolition of hanging, for example—have brought the death penalty greater legitimacy, I suggest that rabbinic reforms functioned in the same way. We can ask of the Rabbis, as Sarat asks of the United States

introduction

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government: “What is at stake in state killing when the state imagines itself killing decently, painlessly, humanely?”4 Moreover, I explore not only rabbinic trial procedure and meta-statements about capital punishment, as most previous scholars have done, but the rabbinic procedures for actually executing a criminal. In examining the rabbinic texts, I will start the clock after a conviction is delivered, when the condemned criminal is taken out of the court to be killed. My strategy is to use the tensions between the peshat or so-called simple sense of the Bible and the derash, the rabbinic interpretation, as my springboard. The case of stoning illustrates this tension. The rabbis legislate the following procedure: The stoning house was the height of two men. One of the witnesses pushes him (the condemned man) on his hips; [if] he turns over onto his heart, he (the witness) ﬂips him over onto his hips. And if he dies thereby, he (the witness) has fulﬁlled his obligation. But if not, the second [witness] takes the stone and sets it on his heart. If he dies thereby, he has fulﬁlled his obligation.5 While the Bible directs the Israelite community to collectively stone certain transgressors, the early rabbinic law code, the Mishnah, transforms the punishment such that the two witnesses to the transgression give the transgressor a fatal push from a two-story ediﬁce. Missing are the angry crowd and the ﬂying stones that the Bible would have us imagine, and in their place is a carefully orchestrated ritual of execution in which the witnesses to the crime are made executioners. This book asks why the rabbis altered the biblical procedure so drastically while claiming to be interpreting it. Rather than deconstructing the distinction between peshat and derash as some recent scholars have done, I will preserve it, using it as a wedge into the text, acknowledging that the distinction is not necessarily native to the text but may simply be a heuristic device to give my reading its point of departure.6 Acknowledging the conditioned nature of my own reading allows me also to acknowledge the conditioned nature of rabbinic reading, its grounding in both historical situation and biblical tradition. I will use the tensions between the biblical and rabbinic death penalties to help me to start asking questions about what is at stake in the rabbinic death penalty, and I will show that much of what is at stake has been obscured by the polemics of past scholarship. The early rabbis mobilized the death penalty as part of an argument for their religious authority, and this point has largely been missed. Whether that mobilization was conscious or unconscious is impossible to determine, as is the case with most matters of authorial intention, particularly in ancient texts. Nevertheless, this book shows that discourse about the death penalty was a centerpiece of early rabbinic efforts to construct power during the turbulent times following the Second Temple’s destruction. How successful those efforts may or may not have been is the subject to which I will now turn.

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The (Marginal) Rabbis of the Second Century The role of the death penalty in early rabbinic culture can be better understood by laying out the more recent revisionist historiography of the early Rabbis. According to the traditional reconstruction, the used-to-be-Pharisees-nowRabbis burst upon the scene after Rome’s destruction of the Jerusalem Temple in 70 c.e. and almost immediately became the arbiters of Jewish life in Palestine. While the late Second Temple period was deﬁned by Jewish sectarianism and divisiveness, the second century was a strictly rabbinic affair. The Rabbis accepted the mantle of Jewish leadership and proceeded to unify the Jewish community, who looked to the Rabbis to resolve their legal questions and to purify their religious practice.7 More recent historians of this period tell a very different, even reversed story. The ﬁrst century, despite its sectarianism, was host to a relatively normative and centralized Judaism; in the second century, on the other hand, Palestinian Judaism fragmented.8 The Sages coalesced among the shards. While historians disagree about a variety of issues—how hostile were the Sages to the “masses,” how much control did the Sages want over them, how different were the Sages from them, and when this relationship began to signiﬁcantly change—at the same time, they share a vision of these Sages, the Tannaim (or “teachers,” the earliest Rabbis dating to the late ﬁrst century and second century), as a small, informally organized group struggling for authority in a political structure in which their exercise of power depended solely on persuasion.9 The Sages were an exclusive and separatist clan, ambivalent about their relationship to the majority of more acculturated Jews, who were in turn ambivalent toward but most often simply ignorant of the small group of Rabbis living, legislating, and studying in their largely Greco-Roman paganized midst. This portrait of the Sages derives not only from applying more skeptical reading strategies to rabbinic texts but also from paying more careful attention to material remains.10 This recent historiography also forsakes the tendency to retroject later rabbinic institutionalization onto the early period. The power of the Rabbis as we know it from the medieval period—though that power was also far from absolute—is no longer taken for granted in the tannaitic era, which is newly conceived as an intensely formative period in the development of the Rabbis. Rather than an institutionalized religious hegemony who rallied the Jewish community around their interpretive authority, the Rabbis were much more likely to have been an embattled, almost invisible sect within secondcentury Judaism. The important innovation of this new historiographical narrative is that it entirely recontextualizes rabbinic literature. Instead of understanding that literature as representative of Palestinian Jewish society as a whole in the second century, we are compelled to understand it instead as representative of the ideals of only one particular group within that society, the rest of whom likely acted and thought in very non-rabbinic, even non-Jewish ways.11 Rabbinic law proves to have been an elaborate project of persuasion, and perhaps only self-

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persuasion, which for the most part faltered or even failed in the early period. In this study, I look at the death penalty as one “powerpoint” in this strenuous effort. 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-yet-rabbinized 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.

A “Multi-Dialogue” My understanding of rabbinic literature is that it is thus “over-determined”; it is the crux of many intersecting and criss-crossing conversations, concerns, and pressures. Some scholars of rabbinic literature have had the tendency, however, to understand it either as a function of history or hermeneutics. In other words, the scholars construed the Rabbis to be either readers, facing inward towards their sacred canon, or leaders, facing outward to their social context.12 More recently scholars have begun to integrate the hermeneutical orientation and historical location of the texts, and I tap into these efforts. One such scholar, Steven Fraade, suggests that rabbinic commentary be thought of as a “double-dialogue” that “simultaneously faces and engages the text that it interprets and the society of ‘readers’ for whom and with whom it interprets.”13 The meaning of rabbinic literature is to be found not in the biblical text, or in its interpretations, or in its readers, but in all three, “and especially in the inbetween working space, or socially situated discursive universe, that the commentary progressively constructs. . . .”14 I embrace Fraade’s “double-dialogue” and expand it into a multi-dialogue that includes several partners: the Bible, the Rabbis themselves, other late antique Palestinian Jewish communities, and Roman imperial authority.15 I suppose that these dialogues are linked with one another, as well as with my own dialogue with these texts. Of course, these partners are not distinct from each other, nor are the Rabbis necessarily in actual spoken dialogue with any of them. Nor do I believe that every rabbinic text contains all these conversations. In looking at the complete ritual of execution provided by m. Sanh.6 (this book’s chapter 3), I listen for the conversation between the rabbinic judges and the communal audience. In my fourth and ﬁfth chapters’ study of the “cast” of execution, that is, those who participate in an execution, I listen most attentively to rabbinic conversations with the Bible. The death penalty of decapitation offers a conversation between the Rabbis and Rome, explored in chapter 6. Finally, I juxtapose rabbinic conversations about criminal execution with Christian ones chapter 7) in

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order to hear a full range of ancient voices and thereby to better understand each individual conversation.

Fellow Travelers The rabbinic laws of the death penalty are host to so many conversations because of the highly charged nature of the death penalty. That punishment is political, that it functions in the generation and maintenance of power, has been a working assumption since the publication in 1975 of Michel Foucault’s Discipline and Punish. In this study, Foucault documents the disappearance of public torture in modern Europe and the introduction of the prison. While often regarded as a process of humanization, the shift away from spectacles of torture is shown by Foucault to represent not a minimization of repression but a new kind of repression that works in subtler ways on the soul rather than on the body of the criminal. The sovereign’s power is no longer manifested tangibly for all to see, but rather it entirely envelops the criminal who is now perceived to require “correction.”16 With the emergence of the prison, “justice no longer takes public responsibility for the violence that is bound up with its practice.”17 In this study, Foucault makes four assumptions about punishment that have served as the starting point for many subsequent studies of punishment including this one: 1. Punishment is a complex social function. 2. Punishment is a political tactic. 3. The principle of punishment is related to epistemology, to what and how things are known about man. 4. Punishment depends on how the body is invested by power relations.18 These four assumptions demand that schemes of punishment be situated within a larger social-political-intellectual complex, and that the body be understood as the central mechanism through which such complexes take shape. I draw not only from Foucault’s assumptions but also from the features of his argument, from his insight that what looks like reform can still be understood as a technology of power if one scrutinizes the larger matrix in which punishment functions. The problem with applying Foucault’s work to rabbinic criminal law is that it is unclear whether the rabbinic death penalty more closely approximates medieval torture or the modern prison: Is the rabbinic death penalty more like “discipline” or more like “punish”? Moshe Halbertal, a contemporary Israeli scholar, asks just this question and suggests that rabbinic law upsets Foucault’s genealogy.19 Halbertal argues that the primary concern for the Rabbis in devising their execution methods was to preserve the bodily integrity of the criminal because of their quite literal rendering of the concept of imago dei: since man’s form replicates God’s, it must not be damaged. The Rabbis thus take the external bodily punishments of the Bible and impose them instead inside the body; for instance, the Rabbis transform

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the Bible’s execution method of burning at the stake into the insertion of a burning wick into the throat of the condemned. According to Foucault’s genealogy of punishment, then, the Rabbis were “modern” before modernity. But this is no compliment to the Rabbis, at least according to Foucault’s evaluation. Modernity no longer has the ring of progress for Foucault that it does for late nineteenth and early twentieth-century scholars. It is faint praise to identify rabbinic punishment with modern European punishment, though Halbertal does point out that the rabbinic reforms have entirely different motivations than the modern ones. Furthermore, it is perhaps more workable to think of rabbinic punishment as including both medieval and modern elements according to Foucault’s categorizations. We do see the privatizing and standardizing of punishment in some rabbinic texts; yet we also see the power of the sovereign visibly at work, the sovereign in this case being God and the collective of Rabbis who represent God. A fruitful use of Foucault for the rabbinic death penalty, to my mind, therefore involves an interplay between Foucault’s two models of punishment. Rabbinic criminal execution slides back and forth between a medieval-style public manifestation of rabbinic power and a modern-style internalizing and concealing of that power, and I will suggest that this interplay is central to the negotiation for authority that takes place through the rabbinic texts. Foucault’s work has had wide-ranging inﬂuence on much contemporary study of the history of punishment in Europe and the United States.20 A Foucault-infused approach has also been taken by historians of ancient Rome who analyze the imperial politics of the Roman arena and of other Roman death penalties.21 I use this work on ancient Rome both as a methodological model and also as historical context for my study, while I use the studies of execution in medieval and modern Europe and the United States as revealing parallels for the rabbinic and Christian cases that I examine here. I also use the jurisprudential work of Robert Cover and anthropology-oriented scholarship on death in the Jewish tradition to help think through the relationship between law, violence, and death.22 One frequent feature of recent work on punishment is ritual. Many of the scholars mentioned above employ notions of ritual and spectacle in order to grasp the negotiations for authority that take place in instances of punishment. The theories and methods of ritual studies, a burgeoning subﬁeld of anthropology and religious studies, are useful for parsing the elaborate forms that punishment may take.23 I will draw on this body of work for interpreting rabbinic criminal execution. While I will discuss ritual theory at greater length later in chapter 3, at this juncture I want to address a basic question: What makes the rabbinic procedure of execution a ritual? What features allow me to use the label “ritual”? One can ask this question of any set of activities that we choose to call ritual, but the question is particularly relevant to early rabbinic procedure, since it exists to our knowledge purely as a literary artifact and not as live performance, differentiating it from the activities that we might normally think of as ritual. I would address this question, to some extent, by evading it: I am less concerned with ascertaining that rabbinic criminal exe-

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cution is ontologically a ritual than with applying the notion of ritual heuristically in order to ask fruitful questions of these laws: How are time and space ordered by the laws of criminal execution and what is the signiﬁcance of that ordering? How is speech controlled and what is the function of silence? How is power negotiated in the activities that are prescribed and proscribed? These are the kinds of questions that ritual studies habitually ask and that, I will show, are answered in revealing ways for rabbinic criminal execution, even if it exists strictly as a text, and even if it could somehow be proven that it was never once performed live. I hope, in the process, to help Talmud to join Bible in a newly developing ritual studies that encompasses both the live performance which anthropologists observe and the textual performance which religion scholars read.24 Common to both the study of punishment and the study of ritual is a concern for colonial and post-colonial contexts. For instance, how was punishment an arena (pun intended) for imperial Rome to argue its hegemony over its colonial constituents? Who was exiled and who was beheaded and who was cruciﬁed, and how did the type of punishment reﬂect if not generate social status? The reservation of beheading for a Roman citizen and imposition of cruciﬁxion for a provincial slave may have served to deﬁne the opposition between the two. Rituals of punishment worked to develop and dramatize these colonial identities and at the same time provide a ﬁeld of contestation for them.25 Post-colonial approaches to ritual examine how imperial rituals are adapted, appropriated, and resisted by local colonial populations. One of the most important contributions of this perspective is to complicate notions of authority, to see authority not as a force imposed on passive subordinates but rather as a dynamic process constantly being negotiated in all social spaces. Using such approaches, I explore here how the Rabbis coopted Roman rituals of punishment for their own use, taking up Neusner’s advice that any anthropology of the Talmud must confront the “twin-facts of Jewish powerlessness and minority-status.”26 I draw from the subaltern studies of Parama Roy and Homi Bhabha, as well as the work of James Scott in his Domination and the Arts of Resistance, particularly his notions of hidden and public transcripts.27 In adapting postcolonial studies to the reading of ancient texts, I follow the lead of scholars of late antique Judaism and Christianity such as Daniel Boyarin, Joshua Levinson, Richard Horsley, and Neil Elliott.28 I ask: How did Rabbis and Christians argue for authority in a political, cultural context in which they had relatively little? I show that in their death penalty discourses, they are very much grappling with this question. This book brings these three intersecting concerns—the politics of punishment, the politics of ritual, and the politics of imperialism—to bear on rabbinic and Christian discourses of criminal execution. On the rabbinic side, many scholars, particularly those employing feminist criticism, have already devoted substantial attention to the power politics of and in rabbinic texts, looking at how the texts construct rabbinic authority.29 Many scholars also point to voices of contestation that the rabbinic texts preserve. Much of this work articulates a deeper change in perspective upon which all this scholarship is

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predicated: The insight that texts are embedded in a social context which they shape and are shaped by, and that much of the cultural work performed by the text is not immediately visible.30 Several scholars speciﬁcally address how ritual acts to shore up rabbinic authority,31 and others think about these negotiations in the context of Roman imperialism and burgeoning Christianity,32 yet so far this set of concerns has not converged on rabbinic criminal punishment. This book asks about the part played by rabbinic criminal execution in rabbinic selfcreation during the formative period and sees that process as a dialogue with rabbinized Jews, non-rabbinized Jews, and with the pagan Romans who dominated the Rabbis culturally and politically. Integrating the approaches of penal studies, ritual studies, and post-colonial studies, I show that the rabbinic death penalty was an important part of this ongoing conversation. I also explore the very different but also central role that the death penalty played in parallel Christian conversations of the same period. This juxtaposition between rabbinic and Christian literatures will reveal how signiﬁcant was the discourse of the death penalty for the creation of new sources of authority in second-century western religious cultures. Nevertheless, I would add here that I do not intend this reading for authority to be exclusive—I acknowledge and even insist that death penalty discourse was rife with other concerns as well. Indeed, it is explicit in the rabbinic discourse that justice is the desired end of law, not rabbinic power. Yet I do not believe that the two concerns can ultimately be disentangled. The assumption about culture that underlies my analysis is that it is a work in progress. I presume that neither rabbinic Judaism nor early Christianity nor Greco-Roman paganism was a stable entity unto itself, but all were engaged in a process of self-deﬁnition that happened in relation to other processes of self-deﬁnition. James Clifford’s notion of culture as “travel” is helpful. Clifford observes that traditional ethnography “has privileged relations of dwelling over relations of travel.”33 The ethnographer in his tent in the center of the village learns “the language (as though there were one and as though it were easy to learn in a short time)” and observes the community at work. He misses, however, the “blurred boundary areas, historical realities that slip out of the ethnographic frame.”34 These boundary areas are the places where contacts and commerce occur with those outside “the culture.” When the ethnographer explores these areas as well, then he begins to focus on “hybrid, cosmopolitan experiences as much as on rooted, native ones.”35 That is not to say that there is no cultural center, Clifford insists. Rather, the ethnographer must look for mediations between center and margin, both of which constitute culture. Looking at culture as travel allows us to question “the organic, naturalizing bias of the term culture—seen as a rooted body that grows, lives, dies, etc . . .” and to see instead the “constructed and disputed historicities, sites of displacement, interference, and interaction . . .”36 I propose here that we look at rabbinic and Christian cultures as travel, wide-ranging journeys from biblical Israel to imperial Rome, from the villages of Palestine to the Greco-Roman cities scattered throughout the Meditteranean, and that we trace these journeys as fellow travelers.

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The Historical Reality of Jewish Execution My argument, that the death penalty played a key role in rabbinic and Christians constructions of authority, may seem strange considering that the historical reality of the rabbinic death penalty is in some doubt, and that Christians do not implement a death penalty at all in this early period. Let me brieﬂy discuss the matter of the social reality of ancient Jewish punishment: Was it ever used? On whom and by whom? Much has been written on the competence of the Jewish court (the “Sanhedrin”) in late antiquity, with particular attention given to the early ﬁrst century when Jesus was executed.37 Certain texts are typically used as evidence;38 these include a much-debated passage in the Damascus Document,39 passages in Philo and Josephus,40 and passages in Acts41 and the Gospel of John.42 No easy conclusions are to be drawn from this array of texts; furthermore, these ﬁrst-century texts provide the background for the early rabbinic period but do not represent it.43 For the rabbinic period itself, besides the rabbis’ own evidence which I will presently discuss, there exists one relevant Christian text. It is a letter from the church father Origen to Julius Africanus, written toward the middle of the third century, regarding the authenticity of the story of Susanna preﬁxed to the book of Daniel.44 In this tale set in Babylonia, two malicious elders who lust after the beautiful wife of a rich man try to trap her into adultery with them; when she refuses, they falsely accuse her of adultery and she is condemned to death. Teaching that piety pays off, the story ends with Susanna being saved by the clever young Daniel and the two elders executed instead. Julius Africanus had ﬁrst written to Origen impugning the story’s authenticity; among his criticisms of the story is that a Jewish court in Babylonia would not have had the power to execute the two elders who are found to be conspiring witnesses against Susanna. In his response, Origen addresses this point among others, describing his own personal experience in Palestine as evidence that Jews living under occupation do sometimes acquire the power to impose capital punishment: The answer is, that it is not an uncommon thing, when great nations become subject, that the king should allow the captives to use their own laws and courts of justice. Now, for instance, that the Romans rule, and the Jews pay the half-shekel to them, how great power by the concession of Caesar the ethnarch has; so that we, who have had experience of it, know that he differs in little from a true king. Private trials are held according to the law, and some are condemned to death. And though there is not full license for this, still it is not done without the knowledge of the rulers, as we learned and were convinced of when we spent much time in the country of that people.45 According to Origen, the patriarch of Palestine held the power to execute even though it was not formally granted by the Roman emperor. Inferences from

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this text for rabbinic power are limited, however. First, the text describes patriarchal power, a separate matter from rabbinic power.46 Origen compares the patriarch to a king (as do many rabbinic texts), suggesting that certain powers were unique to him.47 Second, the text’s agenda is to prove the authenticity of the Susanna story, so Origen would have had motivation to stretch the truth in order to address Africanus’s criticism. While this may entail an overly skeptical reading of Origen’s letter, nevertheless, the polemical context of Origen’s statement must not be discounted.48 Levine points out that in another letter Origen seems to indicate that the Jews did not have the right to execute their criminals.49 Several rabbinic texts speak about Jewish criminal competence. The rabbinic text that addresses the question most directly is a baraita (a tannaitic text not canonized in the Mishnah) preserved in the Palestinian Talmud: “Forty years before the destruction of the Temple [the right to judge] capital cases was withdrawn . . .”50 One problem with this piece of seemingly straightforward evidence is the dating of the cessation of Jewish capital punishment to forty years before the Temple’s destruction. “Forty years” is a biblical typology and thus somewhat suspect as an accurate historical marker. A baraita found in the Babylonian Talmud attributes the same forty years dating to the removal of the Sanhedrin to the “Hanut,” often translated as the “Bazaars,” which seems to be describing a different event, though later Rabbis in the Babylonian Talmud interpret it as referring to the cessation of capital punishment.51 Second, the baraita is not clear regarding the question of how this right was withdrawn; its passive voice suggests that a conquering power rescinded it. But another tradition in the Babylonian Talmud interpreting Deut 17:9 tells a different story about the cessation of Jewish penal power. According to that text, the cessation of capital punishment was a voluntary Jewish decision, and it occurred not forty years before the Temple’s destruction but at the time of the destruction: “ ‘And you shall come to the priests, the levites, and (/or) to the judges that shall be in those days’—at the time when there is a priest, there is judgment, at the time when there is no priest, there is no judgment.”52 This teaching picks up on the curious presence of not only judges but also priests in the Deuteronomy verse describing a high court of referral for difﬁcult legal cases. Playing on the ambiguity of the Hebrew letter vav that joins the priests and judges—it can be read either conjunctively (priests and judges) or disjunctively (priests or judges)—the baraita infers that judgment is dependent on priestly worship. The baraita presents an ideological decision on the part of the Rabbis not to judge capital cases in a post-temple context. This is at least how the Babylonian Talmud understands the baraita, but the baraita does not explicitly say what kind of “judgment” it has in mind. Another baraita is construed within the Babylonian Talmud to be attributing the cessation of capital punishment also to the time of the Temple’s destruction, but the baraita, when read alone, appears to be saying exactly the opposite, that with the Temple’s destruction the imposition of capital punishment did not cease. Indeed, this is what the baraita explicitly says, and it is only with the Babylonian Talmud’s rereading that the meaning gets reversed:

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“Rav Joseph said, and similarly the academy of Hizqiyah teaches: ‘From the day the Holy Temple was destroyed, even though the Sanhedrin was annulled, they did not annul the four modes of execution.’ ”53 The Talmud goes on to question: “They did not annul [the four modes of execution]? But they did annul [them]!” The Talmud then provides a striking explanation of the baraita: After the destruction of the Temple, a person deserving stoning would die by falling from a roof or being trampled by a beast (approximating the rabbinic penalty of stoning); a person deserving burning would fall into a ﬁre or be bitten by a snake (approximating the rabbinic penalty of burning), etc. . . . In other words, the four modes of rabbinic execution would happen “naturally,” apparently with God’s guidance. While this interpretation of the baraita is theologically fascinating, it is not the likely intention of the baraita, which claims rather straightforwardly that Jewish authorities continued to execute even after the Temple’s destruction. Several other rabbinic texts speak to the issue of criminal legal competence indirectly by providing narratives in which rabbinic authorities perform executions. These texts tell us little, however, about the implementation of rabbinic criminal law in second-century Palestine. First and foremost, it is incorrect to read rabbinic narratives as reportage. Their genre—homiletical, pedagogical, polemical, hortatory, however one describes it—precludes treating it as journalism or historiography. But even if we were to read rabbinic texts in the most naive way, as simple, unbiased representations of reality (if such a thing exists at all), they still would not reveal very much about second-century rabbinic capital punishment. One baraita appearing in numerous places in rabbinic literature describes an early judge, Judah ben Tabbai, who claims to have executed a criminal.54 His partner, Shimon ben Shetah, is described in a different text also as having executed criminals.55 The two characters are dated by the rabbinic texts, however, to the pre-rabbinic period.56 In another text, Rabbi Elazar ben Rabbi Tsadoq describes an execution he saw as a child.57 Since Rabbi Elazar is a second-generation tanna, represented as active in the period immediately after the Temple’s destruction, the incident he witnessed would have to have taken place in the Temple period. Again, this narrative reveals nothing about the second century when the Mishnah was developed. The Babylonian Talmud brings a related incident in which a later Rabbi, a Babylonian amora, is described as performing an execution, but this narrative yields no information about the application of rabbinic law in second-century Palestine.58 Another early rabbinic text narrates an incident in which a criminal issues a somewhat irregular confession as he approaches the site of execution.59 This incident does not describe the execution itself, but the power of its exercise is assumed. The incident is not set in real time, however: No individuals are mentioned, and no chronological markers appear. The text does not therefore lend itself to historiographical extrapolations, even if one thought that historical information about the implementation of the death penalty could theoretically be gleaned from these texts. One other rabbinic text describes a properly performed, historically speciﬁc rabbinic execution, and that execution is, intriguingly, identiﬁed by some schol-

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ars as that of Jesus.60 Tosefta Sanhedrin describes the execution of an “enticer,” a crime derived from Deut 13:7–12:61 For all the capital crimes that are in the Torah, they do not entrap except for the enticer. How [do they entrap the enticer]? They send to him two Sages in the inner room, and he sits in the outer room, and they light a candle so that they can see him and hear his voice. And thus they did to Ben Stada in Lod—they appointed against him two Sages and they stoned him.62 Whether Ben Stada is the same person as Jesus is much debated in modern scholarship.63 The Babylonian Talmud’s parallel identiﬁes Ben Stada with Ben Pandira, the derogatory name that the Talmud uses to refer to Jesus.64 In another place, the Babylonian Talmud explicitly makes Jesus the subject of a Jewish court’s execution.65 Yet it remains an open question whether the Babylonian Talmud’s identiﬁcation can be retrojected onto the Tosefta and Palestinian Talmud. If it can—or if Ben Stada may refer to Peter, as Joshua Schwartz suggests, or to other early Christians ﬁgures, or to an anonymous Egyptian charismatic revolutionary described by Josephus, all of which have been suggested—the baraita’s relevance to the question of criminal competence still would not go beyond the ﬁrst century.66 The rabbinic evidence for the historical reality of capital punishment in the second century is thus relatively messy, as rabbinic evidence usually is regarding any question of historical reality. Drawing implications from the texts is complicated for several reasons: The texts contradict each other, they are embedded in later talmudic contexts that have shaped their meaning, and their historical accuracy is more than questionable. Some of the texts that are typically brought as evidence are not necessarily addressing the question of capital competence, while the two texts that clearly do address this question say starkly contradictory things: that the power to execute was annulled forty years before the Temple’s destruction and that it continued even after the Temple’s destruction. Other rabbinic texts describe speciﬁc incidents of execution, but these narratives are generally set either before or after the second century. Can we learn anything of rabbinic judicial competence in second-century Palestine from these texts? Earlier historiography of the Rabbis (and still some recent works), reading the rabbinic texts as journalistic reports, determined on their basis that secondcentury Rabbis did not have the power to impose capital punishment.67 The baraita in the Palestinian Talmud is given pride of place in this reconstruction. More skeptical readers have questioned whether there was a Sanhedrin at all in the second century and even in the ﬁrst century, at least of the type that the Rabbis describe. Joshua Efron, Lee Levine, David Goodblatt, Martin Jacobs, and Catherine Hezser all reject the possibility that a central rabbinic court existed in the second century.68 If so, then the likelihood that the Rabbis ever implemented their criminal law is almost none.69 Roman historians propose that provincial governors, on the other hand, had great prerogatives in punishment70: “Governors had a right to freedom of

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action, they did a great deal more than mechanically apply some rule-book. Really, it was they who determined the level of judicial savagery quite as much as the central government.”71 Hengel explains that the discretionary actions of the governors had the quality of military action, since “Roman provincial administration had no separation between the authority of the army and the police and legal power. In the imperial provinces the governors were also in command of troops; carrying out sentences on rebels and men of violence had a marked military character.”72 According to Garnsey, the criminal jurisdiction of the governors was not a power delegated to them from the emperor, but a power inherent to their position, a power that existed already in the ﬁrst and second centuries (contra Mommsen, who dates criminal jurisdiction by all provincial governors only to the third century). “Throughout the second century,” says Garnsey, “lower-class citizens and free aliens alike might suffer ﬂogging, imprisonment, forced labour and execution (by decapitation or some crueler method) at the hands of the governor.”73 In short, the Jewish population of Palestine would have been subject to the death-penalty whims of Rome’s regional representative. But it was not only the governor who punished provincials. The emperor also seems to have been active: The ancient historians tell numerous anecdotes of imperial executions of provincial residents, replete with descriptions of largescale and sometimes peculiar tortures. While these narratives have their tendenz, no doubt the emperor’s activities were not benign. With these torture stories featuring both emperors and provincial governors, MacMullen explains that “we ﬁnd ourselves generally in eastern cities, especially of Palestine. . . .”74 As poignant evidence of the prevalence of torture for provincial residents, MacMullen describes a language-instruction booklet by an anonymous author around the early fourth century. The booklet describes the forum of some provincial city in the morning hours: The governor arrives to take his place on the platform between the guards. The platform is prepared. The judge mounts the platform and announces through the herald’s voice, “All parties stand.” The accused man stands, a brigand. He is interrogated as his doings deserve. He is tortured. The interrogator hammers him, his breast is torn. He is hung up . . . , he is beaten with rods, he is ﬂogged, he passes through the series of tortures and still denies [his guilt]. He is to be punished, undergoes sentencing, is led off to be beheaded.75 MacMullen remarks: “What a very chilling world it must have been for the tourist then!” if this is what the tour guide provides as useful travel information for a romp through the provinces. We can extend MacMullen’s observation, though: What an even more chilling world it must have been for the person living in the provinces, subject to the whims of such governors! As Garnsey explains, “aliens, as technically outside the civil law, were allowed no legal means of defense against magisterial arbitrariness—they could not appeal against summary beating, imprisonment, or execution.”76 Roman execution and its pattern of application reveal the logic of Roman imperialism: the priv-

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ilege of Roman citizenship in contrast to the arbitrary indignities and persecutions of the conquered provincial populations. Nevertheless, the Jewish communities of Palestine were not entirely powerless. The question is far from settled whether Jews had the ability to execute Jewish criminals in the tannaitic period, even if the Roman governor and Roman emperor could. Rabello writes: “As for criminal law, we cannot be certain as to the limits which Rome placed on the competence of Jewish courts to enjoy jurisdictional autonomy.”77 While the Jews were clearly subject to the criminal jurisdiction of the governors, they may have also enjoyed some of their own.78 Jewish power in this period is confusing and complicated, not only because we today are too far away to have a clear picture, but because even then there was no clear picture. The balance of power between Rome and its provinces was a matter of contest, as the series of Jewish revolts in the ﬁrst and second centuries bears witness. If the Jews of second-century Palestine did have some limited, negotiated degree of local judicial autonomy, it still does not tell us anything about the small group of Rabbis in whom we are interested, who likely had an even more limited judicial activism, certainly regarding criminal jurisdiction. When the Rabbis themselves present their execution legislations in the Mishnah, however, they do so matter-of-factly, without mentioning any particular problems of implementation. We can only speculate whether rabbinic audiences, all too aware of the real problems of implementation, would have understood these legislations as prescriptions for the future, idealistic conjurings of what should be. Yet there is also an aura of nostalgia that attends the laws of capital punishment. In the famous m. Mak. 1:10, Tannaim talk about what they would have done had they been in the Sanhedrin. And the actual executions described as having occurred are set in the past, before the Second Temple’s destruction. The discursive representation of execution among the Rabbis thus combines nostalgia and utopianism. As Goodblatt writes: “the rabbinic account was not intended by its authors to be a description of a contemporary or recent historical institution. Rather it is meant to describe the ideal Israelite polity as it existed in pre-exilic times and as it would exist again in the future with the restoration of the Israelite state.”79

An Education in Authority Observing the idealization of the rabbinic discourse of criminal execution, several recent scholars have argued that the rabbinic laws of capital punishment are meant to be educative rather than practical. The question is: What kind of education are they meant to provide? Israeli legal scholar Aaron Kirschenbaum suggests that the rabbinic death penalty was a “mighty instrument of character training, religious indoctrination, and spiritual ediﬁcation . . . Its purpose is to elevate man spiritually and to bring him near to Divine Law.”80 Another Israeli legal scholar, Aharon Enker, draws upon H.L.A. Hart’s distinction between two functions of punishment: one function is to indicate the severity of a crime

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and to determine its particular place within the hierarchy of crimes, and the second is to further the social objectives of penal law, for instance, crime deterrence. According to Enker’s reading of Hart, the ﬁrst function of punishment is pedagogical and the second practical. Enker argues that rabbinic capital punishment, in its ideal form in the Mishnah, fulﬁlls the ﬁrst of Hart’s roles of punishment: Its purpose is to teach the relationship of the Torah to forbidden behavior as well as to indicate the severity of a crime in a generalized way.81 The Rabbis devise other areas of law besides the formal death penalty in order to fulﬁll punishment’s practical purpose. Enker’s argument is similar to Kirschenbaum’s in its distinction between the practical and the pedagogical, though for Kirschenbaum, this distinction approximates that between religious and secular, while for Enker the contrast is between general and speciﬁc, abstract versus concrete. Another scholar, Devora Steinmetz, suggests that rabbinic criminal law reﬂects “fundamental ideas of rabbinc Judaism.”82 She identiﬁes the idea behind the formal rabbinic death penalty as a conception of law as divinely commanded, in contrast to the rabbinic idea of noachide law, which construes law as an essentially human mechanism. According to Steinmetz, the rabbinic death penalty educates Jews about the commanded status of revelation, though at the same time the rabbis acknowledge other jurisprudential models.83 Not to preclude but rather to complement these contributions, I suggest that the rabbinic death penalty provides an education in rabbinic authority. Like these scholars, I take issue with the assumption that because the rabbinic death penalty was likely never practiced, it was not a part of “real” history.84 The rabbinic death penalty made an important argument for rabbinic authority in spite of its alleged impracticability, and perhaps even because of it—the world of unpredictable performance never had to intrude. In fact, the rabbinic ritual of execution may be the ideal ritual: While rituals usually work to create a perfect reality in an unpredictable world, the ritual of the Mishnah creates a reality that is almost impervious to contingencies.85 Neusner suggests on this basis that the rituals of the Mishnah are therefore better thought of as myth86; along slightly different lines I would recommend that we think of the Mishnah’s rituals as hyper-rituals, as more ritual than ritual. A useful analogy is the cruciﬁxion paintings of medieval Europe, whose vivid depictions allowed Christian viewers to experience the passion with astounding immediacy87 or the Avodah Service of the Yom Kippur liturgy, which allows Jews praying in the synagogue to experience the Temple’s puriﬁcation.88 So too the recitation of m. Sanh. 6 might have conjured up for Rabbis and their audiences the experience of criminal execution and with it the fear of authority that execution inspires. At the same time, throughout this book I pay attention to the ways that rabbinic authority also restrains itself. Using approaches to authority and ritual developed by Bruce Lincoln and Catherine Bell, I look for rabbinic authority’s moments of aggressiveness but also its strategic withdrawals.89 What’s more, this book supposes that rabbinic discourse—and Christian discourse—about Roman punishment was also important to their respective

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authority-building projects. This approach—that punishment of a minority group by an oppressive authority may be utilized by that group to build its authority—may seem counterintuitive, in so far as oppression denies the authority claims of the oppressed. This counterintuitiveness is precisely what this book explores: how might the experience of being punished be channeled to create a new regime that, paradoxically, has the power to punish? How does the exercise of punishment come to be legitimated by subjection to it? In short, how does punishment breed new kinds of punishment?

Were the Rabbis for or against the Death Penalty? Before entering into what are hopefully nuanced discussions of the rabbinic laws of the death penalty, I want to deal with a rather un-nuanced question: Were the Rabbis for or against the death penalty? This question is likely to interest readers who are activists or have strong opinions regarding the contemporary death penalty and would like to know where the major religious traditions stand. My book is meant to complicate our understanding of the Jewish religious tradition so as to make impossible a simple answer to the proor-con dichotomy. But my book is also intended as a response to what I believe are Jewish apologetic representations of the Rabbis as enlightened protoabolitionists. It is unreasonable to expect to ﬁnd in second-century Hellenized Palestinian rabbinic Judaism a perspective that matches twenty-ﬁrst century liberal abolitionism of the death penalty. We do not ﬁnd this perspective, it seems, anywhere in the ancient western world. Roman intellectuals who criticize the arena do so for particular reasons, not because they are opposed to the death penalty per se, as Magnus Wistrand, Richard Bauman, and Peter Garnsey have shown.90 When Seneca criticizes arena audiences who enjoy the butchery of criminals, he does so not because he is an abolitionist, but for precisely the opposite reason: He believes that the gladiatorial shows should be educational, living examples of courage and determination, and these audiences have missed the point!91 Along similar lines, Cicero rejects what he perceives as exotic forms of punishment—the sack, vivicombustion—and advocates avoidance of execution over its performance, but he does not reject capital punishment in any systematic way.92 Bauman argues that Roman writers did criticize the particular methods of execution prevalent in Roman culture and their immense popularity, but he concludes that “there were no bleeding hearts in Ancient Rome.”93 Garnsey similarly explains that while Seneca and other Stoic thinkers, as well as later Christian thinkers such as Augustine and Ambrose, did favor moderation in punishment, they did not object to the death penalty as such or even advocate a reduction of penalties and torture.94 Taking a similar approach to the Rabbis, we cannot make them our models of enlightened abolitionists without gross distortion. Rather, I have emphasized the ways in which the Rabbis embrace the death penalty as a strategy by which to create authority. I think this embrace has been carefully avoided by apolo-

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getically oriented scholarship. Nevertheless, we do ﬁnd in the rabbinic texts, as in the Latin philosophical and historiographical writings, a complex, often critical construction of capital punishment. The violence of the rabbinic death penalty, as I will show, is a fundamentally negotiated violence rather than outand-out brutishness. The discourses of criminal execution in both the rabbinic and Christian texts reveal that violence is a socially complex phenomenon; it serves to deﬁne, protect, and contest social, religious, and cultural differences.95 These texts invite us to ask: “What role does the representation of violence play in the formation of ethnic and gender identities, and, reciprocally, what role do these identities play in the creation of art, or any cultural product?”96 To expect violence not to have played any role within rabbinic culture is to relegate that culture to a utopia that has little relationship to the complexity of history that we ourselves experience. This does not mean that I intend my book to be a resource for those who support the death penalty in the United States. As I suggested above, the rabbis are not a simple resource for either side of contemporary death penalty debates. They are a resource, however, for better understanding the workings of authority, its strategies of persuasion, and the role that violence plays in those strategies. In the same way that medieval European rituals of execution help to illuminate the rabbinic ones, so, too, can the rabbinic ritual of execution help to illuminate our own, even if no simple transfer of meanings is possible. The rabbinic ritual of execution is particularly difﬁcult to use as any kind of model for today, since it was likely never implemented: The Rabbis may have been willing to embrace the death penalty precisely because they did not have the chance to actually impose it, which is of course a very different case from the American death penalty. While other readers of the rabbinic death penalty do not shy away from applying it in American or Israeli courts as an authoritative legal precedent, my reading will refrain from drawing any direct conclusions for our own death penalty and instead look at the rabbinic death penalty in its own discursive context and try to understand the work that the rabbis wanted it to accomplish.97 In so doing, I do not pretend to be objectively representing the historical reality of the Rabbis. Rather, I hope to provide one particular perspective on rabbinic criminal law that I believe to be new and important, a perspective that has been obscured for complicated reasons, a perspective that looks at ancient death penalty discourse in conjunction with other death penalty discourses from other times and other places in order to better understand the nexus between violence and authority in the cultures of ancient Judaism and, ultimately, in our own. In the process, I want to move beyond the intellectualist bias implicit in the often-asked question about the rabbinic “attitude” or “approach” to capital punishment, asking rather how the rhetoric of rabbinic capital punishment functioned as a cultural practice. I explore in this study how law permeates culture and vice versa, how law’s language and institutions respond to and produce social identity.

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The Texts This book stakes out a relatively small area of rabbinic literature: chapter 6 and the beginning of chapter 7 in Mishnah Tractate Sanhedrin, the Mishnah being the canonical rabbinic law collection edited at the beginning of the third century, associated with Rabbi Judah the Patriarch. Tractate Sanhedrin, together with tractate Makkot with which it was originally joined, deals with the rabbinic court system. Sanhedrin by itself is composed of eleven chapters: The beginning of the tractate describes the different kinds of courts, their jurisdiction, and their leadership; the tractate’s middle chapters give the procedures of the court for both property cases and capital cases; and the end of the tractate provides substantive criminal law, detailing the different capital crimes and their punishments (Makkot, composed of only three chapters, continues the discussion of crime and punishment). Sanhedrin 6 and the beginning of Sanhedrin 7, my focus, describe the part of criminal procedure from the moment of conviction until the end of the criminal’s execution. Sanhedrin 6 gives a complete narrative of this procedure but restricts the procedure to the punishment of stoning. I provide the full translated text of Sanhedrin 6 at the beginning of chapter 3 below, with notes discussing textual variants. The beginning of Sanhedrin 7 ﬁlls in some of the details for the other three methods of rabbinic capital punishment—burning, decapitation, and strangulation. I discuss these texts from Sanhedrin 7 primarily in chapter 6 below. This book gives the lion’s share of its attention to the Mishnah because the Mishnah is the only early rabbinic corpus to offer a tightly organized ritual of criminal execution. The Midrash Halakhah (tannaitic midrash) collections and the Tosefta, the other major early rabbinic corpora, share some of these ritual elements and have others, but none presents a narrative of execution in the way that the Mishnah does (an interesting question in itself—why is it the Mishnah alone that contains this narrative?).98 When I deal with the participants in execution—the biblical characters the Rabbis modify as well as the new characters they insert—I will branch out beyond the Mishnah, however, to deal with a full range of early rabbinic texts that includes the Tosefta, the collections of tannaitic midrash, and baraitot (early rabbinic teachings excluded from the Mishnah) found in the Palestinian and Babylonian Talmuds. These rabbinic texts are all loosely categorized as “legal.” This is not the case for the Christian texts I explore, which range generically from gospel to narrative to epistle to apology. The generic variety in the Christian world contrasts to the relative generic homogeneity of rabbinic legislation. I will suggest that this generic contrast between rabbinic Judaism and Christianity, rather than making it impossible to compare their death penalty discourses, is revealing of how those discourses differ. The legal cast of rabbinic texts reﬂects the judicial power that the Rabbis mean to create, while the narrative structure of many Christian texts provides their critique of judicial power, a critique which I show to paradoxically produce its own new forms of power. Following what I take to be the scholarly consensus, I date all these texts more or less to

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the second and early third centuries, while keeping in mind that some may be reworked or even produced by later editors of the works in which they are found (particularly in the case of the talmudic baraitot). My approach thus lies somewhere in between traditional approaches and Jacob Neusner’s radical position that no text speaks beyond its ﬁnal editing. Accordingly, as I discuss the tannaitic texts, I consider the inﬂuence of the editors at the same time that I see the texts within each corpus as loosely independent units that may have related parallels in other corpora.

Plan of the Book This book consists of seven chapters including the present one. The second chapter examines the history of scholarship on the ancient Jewish death penalty, focusing in particular on the last century of scholarship in the United States and Israel. I include within my survey a variety of approaches and disciplines: jurisprudence, responsa, New Testament historiography, religious denominational writing, Jewish intellectual history, philosophy, Zionist reformism. I give this scholarship “thick description,” contextualizing it within the social forces that shaped it, and I offer some concluding reﬂections on what aspects of that scholarship might be most productive for further study. Chapter 3 looks at the laws of rabbinic criminal execution as a ritual narrative and interprets that ritual, paying close attention to the way it constructs space and speech. In looking ﬁrst at the ritual’s spaces, I draw attention to two poles between which all movement takes place: the “court house” and the “stoning house.” The geography of the ritual dramatizes the connection between the rabbinic judges and the power of execution while also ensuring that the two entities remain distinct. In looking next at the ritual’s speeches, I suggest that the ritual creates a negotiated balance of power between the criminal and the judges by permitting the criminal to advocate for himself but also setting limits on that self-advocacy. Finally, I argue that the Mishnah’s ritual of execution makes claims that go well beyond the condemned criminal; the ritual claims for the Rabbis the power to redeem all Jews from sin and to establish for every individual a place in the world to come. Throughout this chapter I draw upon parallel rituals of execution, medieval, modern, and contemporary. While chapter 3 examines the Mishnah’s ritual of execution as a linear narrative, chapters 4 and 5 focus on the people who enact the execution, its cast of characters, beginning with those found in the Bible—the blood-avenger, the community, and the witnesses to the crime—and concluding with characters added by the Rabbis—the criminal’s relatives and the Rabbis themselves. I argue that the blood-avenger serves as a focal point for tensions between the individual and the rabbinic authorities. In discussing the role of the community and witnesses, I show that the Rabbis withdraw the agency of execution from the community and deliver it into the hands of the crime’s witnesses. I argue that this can be interpreted as a strategy for controlling the power of execution while at the same time maintaining some distance from the execu-

introduction

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tion itself (a theme carried on from the previous chapter). In my discussion of the criminal’s relatives, I extricate the relevant passages of Mishnah from their accepted interpretation by the Babylonian Talmud to show that the criminal is permanently buried in a location separate from the family burial site. I argue that the Mishnah’s laws prescribing separate burial, prohibiting the relatives from mourning, and requiring the relatives to reconcile with the court are all means of asserting the primacy of the rabbinic community over the bonds of family. Finally, I examine narratives in which sages are portrayed as agents of execution; I show that these stories project the power of execution onto Rabbis but also evince a strategic ambivalence about that power. Chapter 6 explores the relationship between rabbinic execution and Roman execution and asks how the rabbinic experience of Roman execution may have shaped the Rabbis’ own laws of execution. After establishing that the Rabbis were familiar with Roman methods of execution, I focus on a text from the Mishnah that features a dispute about the proper method of decapitation according to rabbinic law. In the course of this dispute, the Rabbis argue over whether the rabbinic method should resemble the Roman one. The barely concealed subtext of this dispute, I suggest, is whether rabbinic power should model itself on Roman power or reject it entirely. I then consider whether other rabbinic laws of execution may be driven by the same concern. I conclude with some reﬂections on the quandaries the Rabbis faced as a minority group within the Roman Empire. In chapter 7, I juxtapose the death penalty discourse of the Rabbis with that of another minority group within the Roman Empire, Christians. I show that the early Christians, like the Rabbis, used death penalty discourse to great effect, but in an almost diametrically opposite way: Their identiﬁcation is with the executed, not the executioner. I examine the Passion Narrative in the four gospels, the stories of the execution of Stephen and the conversion of Paul in Acts, and various martyrdom narratives to show that the identiﬁcation with the judged and correlative criticism of the judge was central to the development of early Christian culture. Yet I go on to show that the rabbinic and Christian discourses are not as far apart as they might initially seem: Both produce new sites of authority for their respective audiences. While the Christian discourse might seem to critique authority, it also works to create it; I demonstrate this to be the case in the writings of Ignatius and Justin. I undermine the contrast between the rabbinic and Christian discourses not only by pointing to the authority-building nature of Christian martyrdoms, but also by showing that the rabbinic discourse had its own myths of martyrdom. The rabbinic myths of martyrdom, however, have a different object of critique than the Christian ones: Rabbinic martyrdoms are less concerned with challenging the authority of the Roman judge than the authority of the ultimate judge, God. By considering the paradoxical ways in which the rabbinic embrace of power functions as critique, and the Christian critique of power functions also as an embrace, this ﬁnal chapter, and I hope, the book as a whole, succeed in undermining enduring stereotypes of both the religious constellations of early rabbinic Judaism and early Christianity. Throughout this book I use the word “criminal” anachronistically to de-

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scribe the person condemned to death by the rabbinic court. Mishnah Sanhedrin most often uses pronoun references—“they take him out to stone him . . . they strip him . . . they push him . . .”—though sometimes it uses the word mumat, awkwardly translated as “one who is killed.” I will discuss the signiﬁcance of anonymity in the rabbinic execution ritual, but I have nevertheless chosen to use the term “criminal” because it is concise and because it is familiar, allowing us to place the rabbinic laws in a recognizable framework. That there is no real parallel for the term “criminal” in the early rabbinic texts invites us to reﬂect on the differences between rabbinic notions of crime and punishment and our own.99 A ﬁnal note: In quoting rabbinic texts, I will, unless stated otherwise, supply the text from the standard critical editions in the case of the Tosefta and tannaitic midrash collections and from the standard printed edition in the case of the Mishnah and the Talmuds (because the Mishnah and Talmuds are so widely known in their standard printed forms). I will discuss variants that emerge from manuscripts and early printings when they are signiﬁcant. Because I give extended attention to m. Sanh. 6, I rely on the Kaufmann manuscript’s version of it, since it is widely considered to be one of the best textual witnesses of the Mishnah. For the Tosefta I will refer wherever possible to the Lieberman edition, but most often I will refer to the Zuckermandel edition (since Lieberman does not cover Sanhedrin); for Mekhilta de-Rabbi Yishmael to the Horovitz-Rabin edition; for Mekhilta de-Rabbi Shimon bar Yohai to Epstein–Melamed; for Sifre Numbers and Sifre Zuta to Horovitz; for Sifre Deuteronomy to Finkelstein.100 I will use Isaac Hirsch Weiss’s edition of the Sifra (rather than Finkelstein’s because the midrashim I discuss are not treated by Finkelstein). I will use standard page and folio numbers in presenting a text from the Babylonian Talmud; with texts from the Palestinian Talmud I will provide chapter and halakhah, and in parentheses the page and folio numbers of the one-volume Venice edition. For the Hebrew Bible, I will use the Jewish Publication Society’s translation, and for the New Testament, I will use the New Revised Standard Version. I will use the Loeb editions for the texts and translations of Josephus, Philo, and Roman historians and philosophers. In translating rabbinic texts, I have decided not to follow a consistent pattern: I sometimes use standard published translations, but I have also provided my own translations; the reader should assume that the translation is my own unless I state otherwise. In the course of my translations, I use brackets to add words to the text to make its readings smoother, while I use parentheses to explain words that are in the text.

2 Reading Execution A Century of Scholarship on the Ancient Jewish Death Penalty

There was a striking shift in punishment from the medieval period to the modern: Authorities stopped executing criminals in public, torture-ﬁlled spectacles and started conﬁning them in private, relatively pain-free prisons.1 Philosophers, sociologists, historians, psychologists and others have tried to ﬁgure out how and why this change came about, and what it meant. Most early twentieth-century scholars applauded the change, viewing it as step in the ongoing march of human progress, while subsequent scholars, most prominently Foucault, saw the change as a sign of something darker and more sinister happening in modernity.2 While this interest in the humanization of punishment—or dehumanization, depending on one’s perspective—seems to carry through the work of many different scholars, nevertheless, there are also subnarratives of capital punishment scholarship with their own particular politics and purposes. One such subnarrative is provided by Richard Evans, who tells the story of death penalty scholarship in Germany, where anthropologists and folklorists working in the nationalist-tinged German discipline known as Volkskunde saw Germany’s ritualized executions of the early modern period as a healthy component of its national heritage.3 These scholars traced Germany’s executions back to its pagan past in an attempt to reconstruct an eternal, unchanging folklife unique to Germany and fundamentally untouched by intervening Christianity, a construct that scholars of the Third Reich enthusiastically embraced. Following the views of these earlier scholars, Third Reich scholars presented capital punishment as a long-standing strategy on the part of the German Volk to rid itself of the so-called degenerate. Scholarship on capital punishment thus served to legitimate the Third Reich’s genocide by showing it to be

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an integral and natural expression of the German national character. While some German scholars dissented from this approach (particularly those in exile), the Volkskunde school is still inﬂuential in contemporary work on capital punishment in Germany, according to Evans. Michael Ignatieff tells a quite different story about the historiography of punishment among 1960s and 1970s revisionist historians. In the view of those scholars (e.g., David Rothman, Michael Ignatieff himself, and Michel Foucault), the reigning narrative of humanitarian reform served to legitimate contemporary social institutions as the “culmination of a story of progress.”4 Moreover, this narrative of progress could be used to propel forward new initiatives that were claimed to be in line with this reforming tradition. By reversing the narrative of historical reform, Rothman, Ignatieff, Foucault, and others were able to call into question not only the normative reconstruction of the past but also the legitimacy of social institutions in the present. According to Ignatieff, this purpose was often explicit: The revisionist historians consciously intended to give intellectual support to ongoing campaigns for welfare rights, mental patients’ rights, and prisoners’ rights, their work playing its part in a large-scale questioning of authority that characterized the 1960s and 1970s. Michael Ignatieff ’s role in this narrative is particularly revealing of the changing times, for his reﬂections from the 1980s, inﬂuenced by the new post-Marxism and poststructuralism, challenge the totalizing tendencies of his own and others’ previous work on punishment. What we see from the narratives of Evans and Ignatieff is that the politics of death penalty scholarship vary depending on the particular death penalty and its relevant social context. In the following chapter, I provide a narrative of scholarship on the ancient Jewish death penalty, a narrative that traces the webs of politics and polemics in which that scholarship is suspended. While scholarship on Jewish capital punishment is subject to the same intellectual currents as other writings on capital punishment, and I will try to show what these are, the particular body of scholarship dedicated to the Jewish death penalty must also be understood as having its own unique trajectory shaped by the major forces of twentiethcentury Judaism: the American Jewish immigrant experience, anti-Semitism, the Holocaust, Zionism. The story of scholarship on the ancient rabbinic death penalty is, to some extent, a story about the struggles of Judaism and Jews in the United States and Israel in the twentieth and now twenty-ﬁrst century. My purpose in this chapter is to tell this story with all its twists and turns, and, in doing so, to create it.5 At the close of the chapter I offer some suggestions for how this story of scholarship can best be continued—not how to make it ﬁnally impervious to social forces (a feat no scholarship can achieve, or would even want to), but how to reanimate the study of ancient Jewish criminal law with newly relevant questions.

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Nineteenth-Century Foundations I begin the story in Baltimore in 1891, with the publication of the treatise, “The Criminal Jurisprudence of the Ancient Hebrews.”6 Its author, Samuel Mendelsohn, is not a famous scholar, yet his treatise sets the stage for much of the scholarship on the ancient Jewish death penalty in the century that follows and itself became canonized by its incorporation into the early twentieth-century Jewish Encyclopedia.7 Born in Kovno, Lithuania, in 1850 and trained as a Rabbi in seminaries in Vilna and Berlin, Mendelsohn made his way to the United States, where he became one of the ﬁrst men to receive ordination from Maimonides College in Philadelphia, the ﬁrst rabbinical school in America. Mendelsohn went on to lead Jewish communities in the American South, serving as Rabbi to congregations in Norfolk, Virginia, and Wilmington, North Carolina, receiving an honorary degree of Doctor of Laws from the University of North Carolina in 1883. While he wrote a number of small studies, his major work was his treatise on Jewish criminal law.8 In this work, Mendelsohn’s essential argument is that rabbinic criminal law, while it is effective, is at the same time humane: “. . . the system of criminal jurisprudence of the Ancient Hebrews, as recorded in the Talmud and in contemporaneous Rabbinic literature, was one which enforced civil order and secured the safety and peace of society by mildness and consideration, tempering justice with a love of humanity, and all this in an age of savagery and violence, of wars and uncertainty . . .”9 Mendelsohn’s argument spans four areas of criminal law: crimes and punishments, the institution of the Sanhedrin, the trial, and the execution itself. In each of these areas, Mendelsohn describes and analyzes the laws to show that they display a “love of humanity.”10 In his discussion of the laws of criminal execution, Mendelsohn directs his reader’s attention to the rapid timing of the execution, the last-ditch attempts at acquittal, and the absence of a professional executioner. Regarding the execution methods themselves, Mendelsohn explains that the Rabbis’ concern is to prevent the mutilation of the body of the condemned; their concern is based on the “application of the Mosaic ordinance: ‘Thou shalt love thy neighbor as thyself,’ (Lev 19:18) . . . beyond the limits of social intercourse in life” to the criminal upon his death.11 Throughout his study, Mendelsohn points to the humanitarian tendencies of rabbinic criminal law, but he is also anxious not to make that law seem effete. On the whole, however, Mendelsohn errs on the side of the Rabbis’ seeming too gentle rather than too severe. In his preface and introduction, Mendelsohn tells his readers explicitly the impetus for his work. As a Lithuanian Rabbi, Mendelsohn was dedicated to exposing his audience to the classical sources, and his pedagogical zeal seems only to have been heightened by his experiences in America. Mendelsohn mournfully describes the Talmud as “almost a sealed Book”: “Eschewing all platitudes and logomachies with which the laws are strangely mixed up, we shall furnish a clear insight into a system of jurisprudence which has occupied thousands of great minds in ages past, and which is almost a sealed Book to

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the present, though it contains abundant food for thought even for the future.”12 Mendelsohn wants to make the talmudic tradition accessible to his American audience. Mendelsohn explains why he makes criminal law the point of entry: I had in view no other than the two-fold object of acquainting those to whom the Talmud is ‘as a sealed book’ with an important part of its contents—its system of criminal jurisprudence; and of thus contributing my mite towards the vindication of the Israelitish people’s ancient literature from the aspersions cast upon it by inimical and, not unfrequently, ignorant writers. Which of these motives ﬁrst prompted this labor, I am unable to determine even for myself; but I trust that you will appreciate the importance of both together.13 Mendelsohn’s argument for the humanitarianism of rabbinic criminal law is directed at “inimical” and “ignorant” detractors of the Talmud. Mendelsohn here seems to be addressing a familiar tradition of critique of the Talmud that grew with the Jewish Enlightenment and continued in modiﬁed form in Reform Judaism. In this trajectory, according to Jay Harris, “Jewish thinkers routinely saw rabbinism as a decadent form of religion that traduced the ideals and values of the earlier Mosaic revolution. The answer for many of them was a return to Mosaic values, bypassing rabbinism altogether.”14 In their concern to claim for Judaism its rightful place in Western civilization, and by extension, to claim for Jews their rightful place in society, these critics privileged the shared biblical heritage of Judaism and Christianity over the distinctively Jewish talmudic tradition, which they declared irrational and immoral. Just ﬁve years before Mendelsohn wrote his work on criminal law, the new American Reform movement came out with its famous Pittsburgh platform, in which it discarded large sections of the Talmud because of what it perceived as outdated, empty legalism: “. . . we accept as binding only its moral laws, and maintain only such ceremonies as elevate and sanctify our lives, but reject all such as are not adapted to the views and habits of modern civilization.”15 Mendelsohn, taking his part in a nineteenth-century traditionalist defense of the Talmud along with historians such as Heinrich Graetz and Isaac Hirsch Weiss, shows in his work on rabbinic criminal law that not only biblical or “Mosaic” religion is an ethical model, but talmudic law is as well.16 In his argument for the humanitarianism of the Talmud, Mendelsohn reclaims the Talmud for Jews and for Judaism. But the object of Mendelsohn’s argument is not only internal, the Jewish Enlightenment and Reform Judaism. Mendelsohn refers also to Christian supercessionist criticisms of rabbinic Judaism that it represents a desiccated form of religion in comparison with its biblical heritage and that heritage’s apparent Christian successor.17 The historian Emil Schu¨rer, whose magisterial Germanlanguage History of the Jewish People in the Time of Jesus was published in English in New York in the same year that Mendelsohn’s work came out, embodies this trend: He describes the “peculiar lusts and equally peculiar morals

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of Talmudic Judaism.”18 Characteristic of Schu¨rer’s approach to the Talmud and many Christian critics before him was the accusation that “ethics and theology were swallowed up in jurisprudence . . . and the moral point of view superseded by the legal and formal one.”19 In showing that the Talmud manifests a “love for humanity,” Mendelsohn is able to prove this age-old Christian criticism wrong. As Mendelsohn says later in his introduction: In our opinion, even though the judiciary system of the Ancient Hebrews, preserved in the Talmud and other Rabbinic writings, be not acknowledged the exemplar of polity among modern governments, or as the universal fountain for general legislation, it certainly deserves better treatment at the hands of the critic than the generality of even modern writers are willing to accord it. The Christian world stigmatizes the Talmudic system as ‘cruel, vindictive, sanguinary’; but it does so without good reason,—aye, without attempting to ﬁnd a reason! But we shall let the Talmud speak for itself.20 In his effort to disprove both Jewish and Christian claims that the Talmud is immoral, Mendelsohn chooses criminal law as the most sensitive test case for cruelty. If Mendelsohn can show that even the criminal law of the Talmud is humane, then surely he has vindicated the ethics of the Talmud as a whole, in a grand-scale a fortiori argument. Mendelsohn is here working within a profoundly changed public attitude towards criminal punishment in the modern West which led to the privatization of execution.21 In the United States speciﬁcally, the nineteenth century was host to ﬁerce debates about criminal execution. Criticism of the death penalty in America harked back to the Founding Fathers, and in the 1830s and 1840s many reform organizations sprang up.22 The Bible became the ﬁeld on which these debates were fought, with each side using it as justiﬁcation for their view.23 In arguing for the humanitarianism of rabbinic criminal execution, Mendelsohn is showing that the Talmud agrees with the most progressive of contemporary mores according to his view. In fact, Mendelsohn shows that the Talmud got there ﬁrst: Only in the last half of [sic: the] last century, and in the face of constitutional government, we hear the great institutional writer and commentator crying out, in disgust and horror, against the inequality and cruelty of the penal code of his country. . . . These were Blackstone’s cries as late as one hundred years ago; while the Talmud, some eighteen hundred years ago, stigmatized the Synhedrion (Synod, Court) that condemned to death one human being in the course of every seven years, as a murderous tribunal; and R. Elazar ben Azaria considers it so, if it passes a sentence of death once in seventy years! Moreover, Blackstone merely advocates the adoption of a scale of crimes and of a corresponding scale of penalties, but does not deprecate the inﬂiction of capital punishment “when the offender appears incorrigible”; while such leaders among the Jews

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execution and invention as R. Tryphon and R. Akiba declare that, had they been members of the Synhedrion during the period of its full judicial power, a sentence of death should never have been passed!24

Mendelsohn quotes here from m. Mak. 1:10.25 Mentioning only the more abolitionist positions, Mendelsohn omits the ﬁnal dissenting comment from Rabban Shimon ben Gamliel that afﬁrms the need for capital punishment. Armed with his selective reading of this text, Mendelsohn goes so far as to say that the Talmud’s ethics were not only progressive by modern standards, but even more progressive than modern standards. Moreover, Mendelsohn is writing at about the same time as E´mile Durkheim, who contended that society’s punishments are a window through which society’s “true nature” can be viewed.26 In his Division of Labor in Society, Durkheim proposes that the degree of cohesiveness of a society can be judged by its attention to punishment: “. . . there exists a social solidarity which comes from a certain number of states of conscience which are common to all the members of the same society. . . . In determining what fraction of the juridical system penal law represents, we, at the same time, measure the relative importance of this solidarity.”27 With roots in the eighteenth century, the ﬁeld of criminology (a sub-ﬁeld of sociology) came to maturity at this time, stressing the need for the “scientiﬁc study of crime and its control.”28 Mendelsohn’s study of rabbinic capital punishment reﬂects this growing interest in punishment as a key to social structure and values. But Mendelsohn’s choice of criminal law as a subject is to be attributed not only to changes in American attitudes towards punishment or to the newly developing theories and methods of sociology. Mendelsohn chooses to write about rabbinic criminal law also because of anti-Semitism. Since the charges that the Jews killed Christ was standard fare in the menu of Christian insults to Jews, Jewish criminal law was very much at issue.29 Mendelsohn addresses these Christian accusations in a note, where he quotes Vargha’s “Defense in Criminal Cases with the Ancient Hebrews,” a work Mendelsohn highly praises: It is refreshing to the candid student to meet with an unbiased opinion of Ancient Jewish laws and criminal procedure, and we therefore transcribe a few more lines from Vargha: “No one of the old systems of procedure for the punishment of crime was more humane than the Jewish; and yet none has been more grievously calumniated, for now nearly twenty centuries, because of its cruelty as exposed in the alleged trial of Jesus. The Christian nations, persecutors of the Jews as they were, must needs even in this department, distort and slander the institutions of the dispersed people, unwilling, as they were, to acknowledge that its laws far surpassed their own in wisdom and in moderation.”30 Mendelsohn here joins his fellow American Jews in a vigorous tradition of defending Judaism from Christian anti-Semitism.31

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Mendelsohn’s work on rabbinic criminal law, appearing on the cusp of the twentieth century, may not have inﬂuenced all or even many subsequent studies of the subject, but it represents trends prominent throughout twentiethcentury scholarship on rabbinic criminal execution.32 Many scholars, like Mendelsohn, choose rabbinic criminal law as the avenue by which to make the Talmud accessible to unschooled Jews and to non-Jews. They strive to show that rabbinic criminal law resonates with contemporary moral sensibilities. Along these lines, the scholars explain that the distinctive purpose of the rabbinic execution methods is to avoid the disﬁgurement of the criminal’s body, though most scholars give their attention almost exclusively to trial procedure rather than to the execution methods. In their claims for the Talmud’s humane treatment of criminals, the twentieth-century scholars are responding to accusations that the Talmud represents dry legalism at best and savagery at worst, following in Mendelsohn’s footsteps. At the same time, these scholars attempt to redeem Judaism from its alleged responsibility for the execution of Jesus Christ (for many scholars, this vindication will be the central concern). To make these arguments, the scholars invariably refer to m. Mak. 1:10, especially without its last clause, as did Mendelsohn; this text comes to be the centerpiece of the scholarship. Scholars also frequently enlist the rabbinic interpretation of Leviticus’s “love thy neighbor” as “choose for him a nice execution.”33 Finally, many scholars, like Mendelsohn, work to balance the humanitarianism of the Jewish criminal system for which they are arguing with some notion of effectiveness or justice. As the story of scholarship progresses from the 1800s into the 1900s and 2000s, backlashes against some of these patterns also emerge, as well as new patterns developing out of new contexts and concerns: the establishment of the State of Israel and its new opportunities for Jewish legal expression, and new efforts for Jewish-Christian interreligious dialogue. But Mendelsohn’s strategies stay strong: to defend the Talmud from Jewish and Christian attacks and also to protect it from irrelevance.34 Two other nineteenth-century studies of rabbinic criminal law help to further deﬁne the contours of scholarship to come. Approximately a decade before the publication of Mendelsohn’s work, a similar work in both subject and spirit appeared in London, authored by Philip Berger Benny, entitled, The Criminal Code of the Jews, According to the Talmud, Massecheth Synhedrin. Benny bemoans the ignorance of Jewish law shown by his fellow Englishmen, even those welleducated in Bible: “It is probably no exaggeration to assert that not a dozen of the foremost Biblical critics in England know anything of the legal code of the Jews.”35 Benny argues that Jewish criminal law is worthy of more attention: He who would understand the penal code of the Hebrews—the practical code, that is, of the people, as it was in operation during the later period of Jewish nationality—must not depend upon the Pentateuch. He must turn to the Talmud—that much maligned and even more misunderstood compilation of the rabbins; that digest of what Carlyle would term allerlei-wissenschaften; which is at once the compendium of their literature, the storehouse of their tradition,

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execution and invention the exponent of their faith, the record of their acquirements, the handbook of their ceremonials, and the summary of their legal code, civil and penal. Herein he shall ﬁnd a system of jurisprudence ingenious and elaborate; a scheme of organisation at once simple and effective; and a criminal law the most interesting and probably the most humane that antiquity has transmitted to us.36

Like Mendelsohn later, Benny presents a balance in rabbinic criminal law between its humanitarian tendencies and its social efﬁcacy. Benny’s motivations here seem to be much the same as Mendelsohn’s, that is, a vindication of the Talmud from criticisms that it is irrelevant or immoral. The larger project is to vindicate the Jewish people itself. Benny says on the next page: “As we before observed, the subject is one entirely unexplored; and an exposition, however brief and imperfect, cannot but throw additional light upon the character, intellect, and peculiarities of a truly wonderful people.”37 While Benny’s and Mendelsohn’s works are almost identical in their arguments and concerns, Benny’s chapter on the methods of criminal execution provides an analysis not found later in Mendelsohn. According to Benny, the main rationale underlying the Rabbis’ execution methods is the minimization of pain: “The rabbins were the ﬁrst among ancient legists to render the inﬂiction of the death-penalty as painless as possible.”38 Benny, like Mendelsohn, also refers in his analysis of the execution of stoning to a concern to preserve the ﬁgure of the body, but he makes this concern part of a larger rabbinic theology: The stoning to death of the Talmud was performed as follows:—The criminal was conducted to an elevated place, divested of his attire if a man, and then hurled to the ground below. The height of the eminence from which he was thrown was always more than ﬁfteen feet; the higher, within certain limits, the better. The violence of the concussion caused death by dislocating the spinal cord. The elevation was not, however, to be so high as to smash or greatly disﬁgure the body. This was a tender point with the Jews; man was created in God’s image, and it was not permitted to desecrate the temple shaped by Heaven’s own hand.39 Benny here adds two new components to the argument for rabbinic humanitarianism that will stay ﬁxed in subsequent scholarship: The rabbinic execution methods are oriented towards the minimization of pain and founded on the biblical principle of tselem Elohim, the human being’s creation in the image of God. Recent Israeli scholarship on rabbinic execution particularly emphasizes this principle, which can be found here already in this nineteenth-century British work. Born seven years before Samuel Mendelsohn and a fellow native of Kovno, Moshe Leib Lilienblum took a different route, staying in Eastern Europe and joining the Eastern Jewish Enlightenment.40 In an early work in 1868, Lilienblum argues, like Mendelsohn, for the progressiveness and relevance of the

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Talmud, but Lilienblum goes on to contrast the ﬂexibility of the Talmud with the rigidity of the Shulkhan Arukh, the later Jewish legal code, calling for reforms to traditional Judaism.41 In an article published in the Hebrew-language journal Ha-Shiloah, Lilienblum addresses the topic of “Criminal Law in Days of Old.”42 In this short two-page piece, Lilienblum discusses various executions described in the Bible and Talmud and shows all of them to be extra-legal, effected either by God or by a human court that transgresses rabbinic law. His conclusion is that talmudic capital punishment was never applied, the fact of which Lilienblum extols in the last lines of his article: “Well-said were the statements of Rabbi Tarfon and Rabbi Akiva: ‘If we were in the Sanhedrin no person would have ever been killed,’ and if they had said only this thing, it would have been enough for them to earn honor for all future generations.”43 Once more, the quotation of m. Mak. 1:10 in abbreviated form makes its appearance, bearing its evidence for the Rabbis’ virtual abolition of criminal execution. With this conclusion honoring Rabbi Tarfon and Rabbi Akiva, Lilienblum takes a similar approach to Mendelsohn and Benny that admires the humanitarian spirit of the Talmud. Lilienblum, unlike Mendelsohn and Benny, however, does not seem concerned with the effectiveness of rabbinic criminal law; rather, he seems pleased with the notion that the law was never practiced. This argument about pure abolition, unencumbered by any anxiety that rabbinic criminal justice might appear ineffectual, becomes a prominent trend in later scholarship. Lilienblum is the ﬁrst of the scholars surveyed here to address directly the question of “what really happened” in rabbinic times. Lilienblum begins his article speciﬁcally with this question: “Many laws of the death penalty are written in the Torah, and very many are the laws that were said in the Mishnah and Talmud regarding criminal law generally and matters of the Sanhedrin and witnesses and their examination speciﬁcally. But very few are the lists of incidents of death penalties in actuality, by which we can know how the courts really acted when a incident came before them to judge criminal law” (my emphasis).44 Lilienblum goes on to say that these lists of incidents are more precious than the laws, which he declares to be relatively useless for understanding the past. Hailed as one of the fathers of the school of practical Zionism, Lilienblum was consistently concerned with the concrete and real.45 He argued with Ahad Ha’am and other cultural or spiritual Zionists, rejecting the life of the imagination as irrational and counterproductive.46 In this article, Lilienblum’s anti-aesthetic pragmatism is in evidence: “Real” history is more important than the laws on the books. While Lilienblum’s pragmatism is related to his particular artistic and political ideology, this concern for “what really happened” in the realm of Jewish criminal law— what did the Rabbis really do, whom and how did they actually execute—will become a major emphasis, if not the major question, of future scholarship on the rabbinic death penalty.

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Twentieth-Century Trajectories The most extensive work on Jewish capital punishment written in the early twentieth century, “Capital Punishment Among the Jews,” was published in 1916 by David de Sola Pool, a prominent America Rabbi, leader of the oldest synagogue in the United States, Shearith Israel in New York City. Originally from London, De Sola Pool was an active Zionist (he acted as U.S. representative of the Zionist Commission in Jerusalem to help implement the Balfour Declaration) as well as an active American (he served on the staff of Herbert Hoover and was chairman of the Committee of Army and Navy Religious Activities). In this long article, De Sola Pool takes up similar arguments found in the works of the earlier writers and concludes: “The Rabbis of the Talmudic era abolished capital punishment in the only way open to them,—in theory, as they would undoubtedly have abolished it also in legal practice while retaining it as a dead letter on the fundamental statute book, the Bible, had Jewish national independence been regained in their day.”47 What is new in De Sola Pool, and what becomes very important in subsequent work on the rabbinic death penalty (including this book), is his contrast between the Bible and the Rabbis. De Sola Pool opposes the Bible’s zeal for capital punishment with the Rabbis’ repugnance. De Sola Pool gives most of his attention to the modiﬁcations made by the Rabbis to criminal procedure in order to make conviction difﬁcult, but he begins his discussion with the execution methods themselves, showing that the Rabbis imbued them with a humane, anti-death-penalty spirit: “Therefore, while rigidly maintaining the Biblical principle of capital punishment, the Rabbis availed themselves of their right to modify the method of executing the death sentence. If they upheld the death penalty, there was nothing to prevent their mitigating the severity of its application in every way possible.”48 Keeping to the humanitarian line of argumentation evident in earlier writers, de Sola Pool introduces the tension of peshat (the Bible’s simple sense) and derash (rabbinic interpretation), the problem of legal innovation. Thematizing this tension, De Sola Pool uses it as a springboard to prove that rabbinic criminal law is inspired by distinctively humane concerns. Like his forebears, De Sola Pool brings m. Mak. 1:10, in abridged form, to support his conclusion.49 Despite the geographical, cultural, and ideological differences among these writers (e.g., Lilienblum is European reformist-Zionist, De Sola Pool is British/ American Sephardic Orthodox), these early patterns of thought about the rabbinic death penalty stay relatively constant, enduring well into the twentieth century, in scholarship as well as in popular perception. Two major works on Jewish law from post-war America exemplify the trends. Hyman Goldin’s 1951 Hebrew Criminal Law and Procedure, Mishnah: Sanhedrin—Makkot closely follows De Sola Pool’s thesis that the Rabbis were opposed to capital punishment but had it forced upon them from the Bible: “. . . no matter how strongly the Jewish jurists were opposed to the principle of the lex talionis, they could not override the Biblical injunction and abrogate it completely by substituting an-

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other punishment in its stead.”50 Goldin proceeds to m. Mak. 1:10 without quoting its last dictum.51 Like the writers before him, Goldin argues that the Rabbis modiﬁed the methods of execution in order to make them more humane, and like De Sola Pool, Goldin contrasts their methods with those of the Bible. Goldin does not appear concerned, however, that the rabbinic modiﬁcations rendered rabbinic law socially ineffective—these concerns from Mendelsohn and Benny have vanished; rather, Goldin wholeheartedly embraces what he describes as the “unwillingness on the part of the Jewish jurists legally to deprive a man of his life.”52 The foreword Goldin writes to his book provides some insight into why this embrace is so complete. Goldin writes: “This treatise is written with a twofold purpose: ﬁrst, to give the reader a clearer insight into the social life of the ancient Hebrews through an understanding of their criminal law and procedure; second, to disabuse those who have totally misunderstood the nature of Jewish criminal law and procedure in the time of Jesus of Nazareth.”53 Goldin’s ﬁrst stated purpose is to make rabbinic Judaism accessible, with criminal law as the vehicle, a strategy that can be traced back to Mendelsohn and Benny. Goldin’s second purpose also has precedent, though here it is boldly foregrounded: the exoneration of the Jews from accusations of Jesus’ murder. Addressing the unﬂattering portrait of the Sanhedrin in the gospel accounts, Goldin’s work argues that the Sanhedrin’s laws, quite to the contrary, favored the criminal. Goldin dedicates another book, The Case of the Nazarene Reopened, speciﬁcally to this question. He structures the book intriguingly as a trial of rabbinic law, with his chapters providing examination and cross-examination, defense and expert testimony, as well as summation and the judge’s charge to the jury.54 The verdict, as one might suspect, is: Not Guilty. De Sola Pool himself introduces The Spirit of Jewish Law: A Brief Account of Biblical and Rabbinical Jurisprudence With a Special Note on Jewish Law and the State of Israel, by George Horowitz, published in 1953. The two quotations that face the title page embody Horowitz’s argument: Beneﬁcence and kindness are worth as much as the fulﬁllment of all the other commandments of the Torah put together . . . —Tosefta, Peah 4.18 . . . a spirit of mercy and humanity pervades the Hebrew legal system. —Alfred Bertholet A History of Hebrew Civilization Horowitz argues that the “spirit of Jewish law” is one of “mercy and humanity,” as Bertholet’s quotation conﬁrms. Like the work of De Sola Pool whose introduction graces the book, Horowitz contrasts the humanism of the Rabbis with the Bible’s severity in an evolutionary vision of history, reversing the Jewish Enlightenment and Reform Judaism’s evaluations of the two:

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execution and invention Jewish law exhibits a process of continuous reﬁnement towards more exact justice and greater humanity. Harsh provisions of Biblical legislation, the letter of Scripture, were modiﬁed or abrogated by the spirit of humanity which constitutes the essence of the Torah and of the Talmud. Indeed, the center of the target which I aimed for was to show that the Talmud and Rabbinical developments generally, represented not a decline from the sublime teachings of the Bible and Prophets, but rather a carrying onward and forward of those very teachings.55

Horowitz is motivated by the same critique of rabbinism that animated the works of Mendelsohn and others. And like these earlier scholars, Horowitz argues for the inclusion of the Talmud in the canon of Western culture alongside the Bible and classical works: “. . . the Talmud reveals amazing independence from both Roman and Persian law, and it is not sufﬁciently known or appreciated by modern scholars that in Jewish law we have a separate, independent and original system, as different from the Roman law as is the English Common law.”56 Like the scholars before him, Horowitz quotes an abridged version of m. Mak. 1:10 in the course of his argument for the abolitionism of the Rabbis.57 Unlike many earlier scholars, however, Horowitz does not apply the theme of humanitarianism to the execution methods themselves (perhaps because an argument for abolitionism does ﬁt awkwardly with an argument for the humaneness of execution methods), though he does emphasize that execution served as full expiation for the criminal and therefore beneﬁted him. Ultimately, Horowitz blames Christians for whatever severity in criminal treatment the Jews may later have shown in post-talmudic days: “The Jews learned, in addition, from their Christian neighbors various cruel modes of punishment which were unknown and quite foreign to the spirit and letter of Talmudic law.”58 Here Horowitz turns the unﬂattering gospel accounts and later Christian accusations back on themselves, accusing the Christians of teaching cruelty to the Jews. While Horowitz’s book from the early 1950s shows a new concern for lawmaking in the State of Israel (note the title, as well as De Sola Pool’s wish, expressed in his foreword, that “the summary of that law presented in this work may be truly helpful in the future codiﬁcation of the law of the State of Israel”), the old patterns, concerns, and methods of the late 1800s are alive in the 1950s.59 This project continues into more recent decades. Like Horowitz, James Priest in his 1980 Governmental and Judicial Ethics in the Bible and Rabbinic Literature applies an evolutionary humanist scheme to Jewish history, describing a “long, slow striving for the victory of justice over force.”60 One of the building blocks of his argument is the shift from biblical to rabbinic capital punishment; Priest familiarly argues that “. . . the Sages of talmudic times persistently mitigated the harshness of the death penalty by various procedures.”61 Priest gives detailed attention to the execution methods themselves, which he organizes according to three principles: love, nonmutilation, and removal of sins. For the ﬁrst principle, Priest refers to the familiar rabbinic interpretation

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of “love your neighbor” in Lev 19:18 as “choose for him a nice execution.” For the second, Priest analyzes the execution methods of burning and strangulation, showing that each is oriented around preserving the bodily integrity of the criminal.62 For the third principle, removal of sins, Priest refers back to his discussion of the Bible, where he makes the same point with respect to biblical execution. While Priest does portray talmudic law in continuity with biblical law, he concludes with the contrast found in most earlier writers between the Bible and Talmud, that the Sages’ goal was “to alleviate the harshness of capital punishment as set forth in the Torah . . .”63 For Priest, as for his predecessors, the Pharisees were the enlightened men of their day, contrary to Christian and Jewish Enlightenment-inspired perspectives that the Pharisees marked the descent of the Jewish people into its dark ages: “With the rise of the Pharisees, however, there was a progressive development toward a more lenient and humane judicial perspective. This turn of events was the result of a more enlightened rule on the part of the Pharisees and also of the eventual control of Palestine by the Roman conquerors.”64 Priest offers the familiar excerpt from Mishnah Makkot, but he gives an unabridged version, including the ﬁnal statement by Rabban Shimon ben Gamliel. Though Priest concludes that this text is evidence of the turn toward mitigation and elimination of capital punishment by the enlightened Pharisees, he does try to include some sense of controversy, that is, of internal debate among the Pharisees about these matters. Priest’s work thus marks some important and interesting developments in the treatment of the rabbinic death penalty: He gives sustained attention to the execution methods themselves, and he portrays a complex relationship between the Bible and the Talmud that incorporates elements of both continuity and discontinuity. But on the whole Priest belongs within the trajectory of the defenders of the Talmud. Finally, Irwin Haut’s introduction to a 1991 reedition of Mendelsohn’s tract takes us full circle. Haut rejoices that with its reissue Mendelsohn’s work will be able to take “its rightful place in the growing literature on Jewish law . . .”65 Haut afﬁrms Mendelsohn’s scholarship, agreeing with Mendelsohn’s counterargument to Christianity and to Jewish Reform: Modern society has much to learn from the humanitarian attitude of the Rabbis expressed in Jewish law. Such is peculiarly relevant today with the establishment, after almost two millennia, of a Jewish State, in which Jewish law has the potential of becoming an effective and dominant component of a functioning society. . . . In the opinion of this writer, many aspects of Jewish criminal law can be integrated into a modern legal system, and it is in connection with such activity that Dr. Mendelsohn’s work has especial merit and deserves close study. Certain aspects of Jewish criminal law, including those that pertain to the embodiment of Rabbinical humanitarian attitudes are relevant today.66 Haut’s approval of Mendelsohn has much to do with his own commitment to reviving the Jewish political tradition in the state of Israel. The rest of this

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chapter will show the resounding importance that the founding of the Jewish state has had for scholarship on the rabbinic death penalty, as manifested in the writings of traditional Israeli Rabbis as well as the Mishpat Ivri movement. But ﬁrst it is important to observe how foundational are the work of Mendelsohn and the patterns of argumentation and text quotation that are found there, especially the “spirit of humanity” that Mendelsohn seeks. This same argument can be found not only in American scholarship but also in American courts, in an amicus brief written for the Supreme Court of the United States in 1999 by the National Jewish Commission on Law and Public Affairs.67 The case at hand is Bryan v. Moore (the Secretary of the Florida Department of Corrections), regarding a reconsideration of the constitutionality of Florida’s electric chair, which was argued by the petitioner to be the cause of unnecessary pain and disﬁgurement and therefore unacceptable under the standards of human decency mandated by the Eighth Amendment. This brief ’s purpose is to offer the principles of Jewish law as a guide for contemporary American executions. The brief puts forth that the Jewish legal system, “the oldest and most venerable legal system known to man,” was committed to methods of execution that were the “quickest, least painful, and least disﬁguring.”68 Analyzing the talmudic methods of execution and contrasting them to the Bible’s, quoting all the familiar rabbinic texts (e.g., M. Mak. 1:10, and “choose for him a nice execution”), the brief argues that Florida’s electric chair “would not meet the rationale of Jewish Law as administered 2000 years ago . . .” and should also be unacceptable under today’s Eighth Amendment.69 The brief, in short, uses the Talmud to shame the Supreme Court into invalidating Florida’s electric chair. The tradition of scholarship founded by Samuel Mendelsohn—arguing for the signiﬁcance of Jewish law to Western culture and for the humanitarianism of the Rabbis—thus makes its way into American legal battles exactly a century later.

Israeli Traditionalists The Israeli trajectory takes quite a different route from the American one. While Hyman Goldin and George Horowitz are declaring the humanitarianism of the rabbinic death penalty, the new Israelis of the 1950s are arguing over whether it can actually be imposed.70 The third and fourth issues of the Israeli journal Ha-Torah Ve-Ha-Medinah (“The Torah and the State”) feature articles about the rabbinic death penalty by Rabbis Yehiel M. Tykocinski, Benjamin Rabinowitz-Teomim, and Saul Israeli. The pressures of practical politics are in the foreground of these articles—Tykocinski begins: “The discussion in the Knesset about the law of annulment of capital punishment continues.”71 Tykocinski is referring here to the debates that led to the 1954 abrogation of the death penalty for murder in the Penal Law Revision Law.72 In his article, Tykocinski calls for historic Jewish law to be part of these debates, debates he criticizes for being exclusively sociological; according to Tykocinski, it is precisely the views of the Torah tradition that should be most important for de-

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termining the matter. While Tycocinski is far away from his American contemporaries regarding his concerns—no separation of church and state is to be found in these pages—his argument proves quite similar. Like them, he quotes Rabbi Akiva and Rabbi Tarfon from m. Mak. 1:10 in abridged form.73 Quoting more Rishonim (medieval commentators) than he does Talmud, Tykocinski points to the inclination towards criminal acquittal in the Jewish legal tradition. Tykocinski does not address the execution methods themselves, though he does furnish the principle of tselem Elohim as the explanation for the rabbinic reluctance to execute, a rationale that scholars before him applied also to the execution methods.74 The continuation of Tykocinski’s article is occupied with the question of contemporary application: whether the current governing body of Israel is justiﬁed by Jewish law to take on powers of the ancient Sanhedrin such as capital punishment. Tykocinski concludes that the Knesset is not so justiﬁed.75 In his ﬁnal note, which he calls the “Fundamental Point,” Tykocinski asserts that the true answer to the problem of crime is not the death penalty but better Torah education: “It has never happened nor will it ever happen that a son of Israel steeped in Torah and commandments would kill someone intentionally.”76 Tykocinski deals as much if not more with post-talmudic commentaries as he does with the Talmud, working within the practical world of Jewish law and trying to create law himself. In this sense his orientation is very different from that of the American writers, even though his evaluation—that the Rabbis leaned towards abolition—generally follows theirs. This is not the case for Benjamin Rabinowitz-Teomim, who emphasizes the Jewish tradition’s severity: “There is no kingdom of Israel which can exist if it does not ﬁght the war of good against evil . . . Concession is weakness, lack of courage, which brings one to concede also the commandment to wipe out Amaleq.”77 RabinowitzTeomim criticizes the arguments for rabbinic humanitarianism: Also the areas in which the Torah created restrictions in criminal law do not come from humanistic inclinations, as it were, as many mistakenly think and judge our Torah according to the sensibilities of the nations of the world, out of the desire to sweeten the laws and to overemphasize the quality of compassion. Far is the Torah from that quality of meaningless forgiveness with respect to every sin and transgression, that purports to forgive every wicked person with a quality of love . . . out of an acknowledgment of the weakness of the human being, that there is no innocent person who is able to judge . . . and their end is that even they have not gone on this path, all those who assimilated themselves and retreated back from the path of our lives from back in the days of the destruction and until today, who wrapped themselves in a cloak of false kindness and say: do not oppose evil.78 In this ﬁery passage, Rabinowitz-Teomim could be condemning any of the writers so far surveyed. While these writers stress the continuity of the Jewish

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tradition with Western civilization and with contemporary mores, RabinowitzTeomim makes their disjunction a point of pride. Celebrating the unique severity of Jewish justice, turning negative Christian stereotypes on their head, Rabinowitz-Teomim criticizes not only what seems to be a Christian version of forgiveness, but also those Jews who have, according to Rabinowitz-Teomim, turned their backs on Judaism to embrace Christian values. Like the other writers, Rabinowitz-Teomim is taking part in an ongoing polemic between Judaism and Christianity about sin, guilt, punishment, and forgiveness, but Rabinowitz-Teomim rails against making the rabbinic death penalty into a Judeo-Christian bridge. For Rabinowitz-Teomim, the rabbinic embrace of the death penalty becomes Judaism’s distinctive mark, representing an even higher ethic than Christianity’s “meaningless forgiveness”: “Out of its recognition of the value of life, the Torah did not give up capital punishment.”79 RabinowitzTeomim, like many other scholars, quotes the rabbinic interpretation of Leviticus’s “love thy neighbor”—choose for him a nice execution—but Rabinowitz-Teomim quickly qualiﬁes it: The wicked person must still be killed. Rabinowitz-Teomim’s article is dedicated to clearing up what he believes to be misconceptions generated by Christianity and modernity that the Torah is generally lenient on sin, and when the Torah is severe, it is so only for the sake of social order. According to Rabinowitz-Teomim, the values of Jewish law are clear-cut and non-negotiable: “the removal of evil is the starting point for the Torah’s law.”80 Rabinowitz-Teomim devotes most of his article to practical legal questions, however, considering whether a contemporary Jewish court would have the right to impose a death penalty according to legal principles such as the “needs of the hour” or the “law of the kingdom,” and if so, who exactly would deserve to exercise such powers.81 After much discussion of traditional sources, Rabinowitz-Teomim concludes that a contemporary court does not have such a right. While Rabinowitz-Teomim emphasizes the strict justice of classical Judaism, at the same time he also declares its inapplicability to modern practice. Saul Israeli, the editor of Ha-Torah Ve-HaMedinah, goes further than either Rabinowitz-Teomim or Tykocinski on this point, arguing from the sources that the modern state of Israel does have the power to reinstate the death penalty.82 Rabbi Eliezer Waldenberg, in his discussion of this issue, also supports this pro-death-penalty position from a Jewish legal perspective.83 These articles on the rabbinic death penalty emerging from the young state of Israel capture a new political situation whose Jewish legal ramiﬁcations are still being explored today. While Tykocinksi’s argument for rabbinic abolitionism resembles the arguments of his American counterparts, Tykocinski’s goal is not to open up the Talmud to those for whom it is a closed book, or to give rabbinic Judaism its proper place in Western culture, but rather to stress the importance of hinukh, traditional Jewish education, to the burgeoning Jewish state. Rabinowitz-Teomim is more fervent and ideological in his traditionalism, denouncing those who would compromise Judaism’s uniqueness and assimilate it to Western mores. Christian compassion is at core a debased version of

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morality, according to Rabinowitz-Teomim’s polemic in 1952, not yet a decade after the Holocaust’s end. His proclamation of Judaism’s distinctiveness, particularly in relation to the Christian West whose moral claims had become less than convincing, is emblematic of a Jewish drive to self-determination reaching its fulﬁllment in the world surrounding Rabinowitz-Teomim. Ultimately, Rabinowitz-Teomim is unwilling to identify the new Jewish state with the political authorities articulated by the Torah, unlike some of his rabbinic colleagues such as the editor of the journal in which Rabinowitz-Teomim’s article appears. But while Rabinowitz-Teomim may hold back on this issue, he joins them in a new toughness to be seen in Israeli writing on the rabbinic death penalty in this period. Humanitarianism gives way to a hard-line in these postwar Israeli discussions.

The Mishpat Ivri Movement The relationship between Israeli and Jewish law deepened in the twenty or thirty years succeeding these writers. The 1970s and 1980s gave rise to further writings on the rabbinic death penalty by Israeli scholars interested in integrating the law of the Jews into the law of Israel. But these scholars call for a more nuanced integration, researching areas of Jewish civil and criminal law so that it may organically seep into the decisions of the Israeli courts.84 This socio-legal movement, called Mishpat Ivri, began in turn-of-the-century Russia but did not pay serious attention speciﬁcally to the rabbinic death penalty until later in the century with the human rights activism of Israeli Supreme Court Justice Haim Cohn.85 While Tykocinski and Rabinowitz-Teomim are rabbis who speak largely in traditional language and refer strictly to Talmud and posttalmudic commentaries, all in the same breath, the Mishpat Ivri scholars study in law schools and universities as well as in yeshivahs, are often major ﬁgures in the Israeli justice system, and write with greater historical consciousness, often differentiating the Talmud from the interpretive layers laid upon it. Haim Cohn is one of the founders of the Israeli justice system. Born in Germany in 1911, he settled in Palestine in 1930, studied at Merkaz Ha-Rav Yeshivah in Jerusalem, then went back to Germany to earn a law degree. Acting as Attorney General and Minister of Justice in the 1950s, Cohn helped to create the Israeli legal system. He became a justice of the Israeli Supreme Court in 1960, and he served on the UN Commission on Human Rights. Human rights has been his abiding interest; he deals with it often in his large scholarly output. In this vein he has given a great deal of attention to capital punishment, authoring the entry for the subject in the Encyclopaedia Judaica.86 Because of Cohn’s stature, his well-respected scholarship, and his passionate activism, his views of the rabbinic death penalty have become almost canonical for contemporary writers. The article in which Cohn addresses the rabbinic death penalty most directly is “The Penology of the Talmud,” based on two papers he delivered to the World Congress for Jewish Studies in Jerusalem in 1961 and 1969.87 Cohn’s

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investigation of rabbinic punishment ﬁnds the Rabbis to be great reformers, civilizing the Bible’s laws of capital punishment, corporal punishment, and talion: “The humanization of punishment—not only in the sense of taking over from God—is the fundamental concept of talmudic penology.”88 Unlike his predecessors in the study of the rabbinic death penalty, Cohn gives most of his attention to the execution methods themselves rather than to the wellknown court procedures. For a scholar like Cohn who wishes to argue for rabbinic humanitarianism, this strategy is much more challenging, since he must show that the implementation itself—the actual killing of the criminal— was imbued with as humane a spirit as was the courtroom activity. Cohn looks closely at all four rabbinic death penalties, showing how each one is humanized by the Rabbis. Cohn ﬁrst addresses stoning, contrasting the collective nature of biblical stoning to the individualized rabbinic stoning that, according to Cohn, eliminates all traces of vindicta publica. Cohn also contrasts biblical stone-throwing with the casting down of the criminal that curiously deﬁnes rabbinic stoning, claiming that rabbinic stoning is an entirely different punishment, bearing the same name as biblical stoning but no more similarity than that. This transformation of punishment emerges, in Cohn’s view, from the rabbinic quest for “a better and more humane mode of execution.”89 According to Cohn, the Rabbis’ reforms should be attributed to their commitment to preventing the mutilation of the convict’s body, accelerating his death, and eliminating public vengeance. As further evidence for his argument, Cohn refers to the familiar rabbinic interpretation of Lev 19:18: choose for him a nice method of execution. Cohn goes on to show that these same considerations can be found in the other three rabbinic executions—burning, strangulation, and beheading—as well as in the post-mortem practice of hanging. Cohn concludes his discussion with a paean to the Rabbis, to the “spirit of liberty and independence with which the great scholars of talmudic times approached their judicial duties—the same spirit, indeed, which distinguishes their legislative reforms.”90 A great reformer himself, Cohn ﬁnds in the Rabbis a freedom and ﬂexibility that he emulates. Like De Sola Pool, he emphasizes the disjunction between the biblical and rabbinic death penalties.91 Cohn gives more sustained attention to the execution methods themselves, but the results are the same as those of the American writers: He concludes with the familiar reference to m. Mak. 1:10 (in unabridged form) as evidence for the overall rabbinic opposition to the death penalty. Moreover, Cohn seems to be motivated by many of the same concerns found in earlier writers: to open up the “sealed book” (to borrow Mendelsohn’s phrase) of the Talmud to unknowing, uncaring, or even hostile audiences; to establish for the Talmud a place in Western culture; and ﬁnally, to counter Christian accusations that rabbinic law is dryly legalistic or cruel, and that rabbinic criminal law speciﬁcally is to be blamed for the execution of Jesus. Cohn’s other writings make clear that these are the underlying purposes of his work on the rabbinic death penalties. Cohn speaks to the ﬁrst concern—the accessibility of the Talmud—in the

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preface to his 1989 Human Rights in the Bible and Talmud.92 In the preface, Cohn solicits the attention of disaffected Israeli youth: These lectures are meant for those young people who are concerned about human rights, but to whom the Biblical and Talmudic sources are unfamiliar—because they never learned them, because their teachers’ attitudes soured them towards these sources, or because of their fear that this might smack of coercive orthodoxy. Each educated person must know not only where he is going, but also where he comes from—and every Jew must have an idea of the glorious religious tradition of his people. . . . If I have succeeded, even if only in the case of a single reader, in arousing interest in our ancient sources or pride in them, I will feel amply rewarded.93 While the reasons for alienation from the Talmud may have changed from Mendelsohn’s time, the concern to draw Jews back to their tradition (a tradition Cohn redeﬁnes according to the principles of human rights) remains constant. Regarding the desire to give the Talmud a place in Western culture, no one is more equipped to speak on this matter than Cohn, the talmudist/jurist in whom Western law and Jewish law meet. In the last sentence of his “Penology,” Cohn makes claim to the contribution of Jewish law to world civilization: “The great work of reform initiated by the talmudic jurists was discontinued before it ever had the chance of being tested by practical experience; but it shines throughout the centuries as a monument of penological insight and humanitarian orientation hardly paralleled in the history of law.”94 With respect to the third concern—the “acquittal” of Jewish criminal law from the execution of Jesus—Cohn has a great deal to say. He dedicates much of his career as a scholar to this matter.95 His overall purpose in these writings is to exonerate rabbinic criminal law for Jesus’ execution; Cohn argues that the ancient Roman government, not the Rabbis, has the blood of Jesus on its hands. Central to his argument is the relationship between rabbinic law and cruciﬁxion, that is, the question of whether the Jews used cruciﬁxion as a mode of execution. Cohn resoundingly responds that they did not. The Jews, according to Cohn, not only did not execute Jesus, but rather, they tried to help him; the Gospels themselves reveal the Jews’ sympathetic relationship with Jesus if they are read more carefully.96 But Cohn also castigates the gospels, particularly the Fourth Gospel, for their tendentious representation of the Jews.97 With a proper understanding of rabbinic practice, Cohn shows, the Gospel accounts can be read with greater historical accuracy, revealing the innocence of the Jews in the execution of Jesus. Cohn’s work on the trial of Jesus exposes how central is the concern of Christian accusation to his work on the rabbinic death penalty in such articles as “Penology,” or his entry in the Encyclopaedia Judaica, where the concern is not mentioned. Like the American works of Samuel Mendelsohn or later Hyman Goldin, the argument for the humanitarianism of rabbinic criminal law is closely intertwined with the different and disturbing portrait of that law found in the Christian tradition.

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While Cohn draws selectively upon the whole of Jewish history as a resource for Israeli law and culture, Mishpat Ivri colleague Menahem Elon focuses on the body of Jewish law and attempts to separate out its “secular,” democracy-friendly laws from its ritual and theology so that the former can be incorporated into Israeli cases.98 Notably, nowhere in his massive study of Jewish law does Elon give sustained attention to the talmudic death penalty. In his one-volume summary of Jewish law for the Encyclopaedia Judaica, the article on capital punishment is written not by Elon himself but by Cohn. Elon does give attention, however, to the loopholes through which the talmudic Rabbis and post-talmudic Rabbis surmounted their strict criminal procedures in order to put criminals to death. Elon shows how the Tannaim and Amoraim gave to themselves the power to inﬂict the death penalty even where the Torah would not demand it.99 Pursuing a similar theme, Elon’s discussion of communal enactments in the area of criminal law features how various medieval rabbinic authorities justiﬁed the community’s right to execute criminals outside the purview of the formal talmudic death penalty. Elon gives the text of an opinion he wrote for the case of Nagar v. State of Israel, where he quotes a responsum of the fourteenth-century rabbinic authority, Ribash (acronym for Isaac ben Sheshet Perfet, 1326–1408): You know that the law applicable to criminal cases in these times when the government has granted criminal jurisdiction to Jewish courts is not the strict law [i.e., Biblical law], for jurisdiction over criminal cases [under the law of the Torah] has been abrogated. However, in order to ‘create a safeguard,’ the courts, when the exigencies of the time demand, impose ﬂogging and punishment not prescribed in the Torah. . . . If the death penalty—although not prescribed by the Torah—was carried out for other offenses because of the exigency of the time, then it goes without saying that it may be carried out in cases of murder, concerning which our Sages were most stringent. . . .100 Elon goes on in his opinion to quote other medieval authorities who similarly gave the court latitude in punishing criminals. Elon’s concerns with the Jewish death penalty come to the surface here. It is signiﬁcant that Elon discusses medieval Jewish legal authorities who make communal enactments permitting an extra-legal death penalty, and it is also signiﬁcant that Elon discusses those enactments by way of an opinion written for an Israeli court: Elon’s interest is legal action, and most of all, legal action in modern Israel. Echoing Lilienblum’s practical Zionist dichotomy of theory and practice, Elon pursues “what really happened,” what could and did the Jews really do within their legal tradition. He avoids the talmudic death penalty because it represents to him inaction and inﬂexibility. In his entry for “Mishpat Ivri” in the Encyclopaedia Judaica, Elon’s small section on criminal law declares that the deprivation of Jewish jurisdiction “stunted the growth of the functional framework and content of this branch of Jewish law.”101 Elon’s interest in the workable and the socially useful is brought into relief

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when one searches for the texts that are habitually referred to in discussions of the death penalty. As with the other scholarly works discussed here, Elon’s Jewish Law makes reference to m. Mak. 1:10, in the context of a discussion of it by Abarbanel. A striking reversal is to be found in Elon’s reference, however: only the last part of the Mishnah is quoted! “The number of murderers will increase, and the body politic will be destroyed.”102 While other authors tend to cite only the ﬁrst opinions of Rabbi Akiva and Rabbi Tarfon, with a minority quoting the full Mishnah, Elon, through the voice of Abarbanel, offers only the last statement of Rabban Shimon ben Gamliel advocating the death penalty. The scholarship on the rabbinic death penalty is given new boundaries by Elon. Mendelsohn struggled to balance the rabbinic death penalty’s effectiveness with its gentleness. Horowitz and Goldin abandoned this struggle: For them, the rabbinic death penalty is wholly deﬁned by its humanitarian abolitionism. From a very different perspective, Rabinowitz-Teomim also denied the effectiveness of the rabbinic death penalty. In Rabinowitz-Teomim’s view, the Torah deals not with the socially pragmatic but with the religiously commanded. Elon returns to the criterion of efﬁcacy with a vengeance. Thus Elon ignores the talmudic death penalty since for him it is relegated to the realm of unusable theory. The writings of Aaron Kirschenbaum and Aaron Enker, both Israeli law school professors, provide a median position between Cohn and Elon. While Cohn embraces the theoretical nature of the rabbinic death penalty and Elon ignores the rabbinic death penalty precisely because it is theoretical, Enker and Kirschenbaum both try to show that the rabbinic death penalty’s theory complements rabbinic practice.103 Enker and Kirschenbaum argue that the rabbinic death penalty acts together with more practical measures to make a coherent justice system that lines up the ideal side by side with reality. Kirschenbaum begins his article “The Role of Punishment in Jewish Criminal Law: A Chapter in Rabbinic Penological Thought” with what he calls “The Problem”: “How did the Rabbis understand their legal system which, on the one hand, makes the punishment of criminals well-nigh impossible and, on the other hand, contains so many capital crimes?”104 To ﬁnd an answer, Kirschenbaum moves straight to medieval Jewish legal authorities, a strategy characteristic of the Mishpat Ivri movement and the traditional Jewish legal enterprise upon which it is built. Adopting the Ran’s (acronym for Nissim of Gerondi) distinction between Torah law and the king’s law, Kirschenbaum suggests: “. . . the rabbis of the Talmud and their medieval successors regarded the criminal law of the Torah as primarily a mighty instrument of character training, religious indoctrination, and spiritual ediﬁcation, and only secondarily (and sometimes not at all) as of practical import.”105 The death penalty existed for the Rabbis as a pedagogical rather than practical device, to impress upon people the relative gravity of certain crimes. Kirschenbaum interprets m. Mak. 1:10 in this light: Rabbi Tarfon and Rabbi Akiva would not have convicted a criminal precisely because they held this conception; Rabban Shimon ben Gamliel’s response criticizes them not for their ﬂight from practice but for

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their open declaration to that effect.106 According to Kirschenbaum, we must change our assumptions about the nature of law in order to comprehend rabbinic capital punishment: “In sum, whereas law is ordinarily perceived as a system for the maintenance of order and the meting out of sanctions, scriptural law is perceived as essentially educative, spiritually elevating.”107 The rabbinic death penalty’s purpose, according to Kirschenbaum, is to teach the horror of sin. Kirschenbaum’s main interest, however, is the various methods that the Rabbis developed for dealing practically with sin; the Rabbis may have wanted to teach society about crime, but they were also quite committed to punishing it. Kirschenbaum outlines the jurisdictions besides scriptural law by which the Rabbis ensured criminal punishment: exigency jurisdiction, the law of the king, and the heavenly court. Only with split vision, Kirschenbaum suggests, can one understand rabbinic criminal punishment, with one eye to rabbinic theory and one eye to rabbinic practice. Enker starts his “Yesodot Ba-Mishpat Ha-Plili Ha-Ivri (Foundations of Jewish Criminal Law)” exactly where Kirschenbaum does, with what both articulate as the problem of its inapplicability.108 Enker comes up with a solution almost identical to Kirschenbaum’s: The rabbinic death penalty, based on scriptural interpretation, is intended to educate society with respect to sacred norms of behavior. Enker does modify this thesis, however, explaining that the rabbinic death penalty is not pure pedagogy but is meant to be used in the rare case of a transgressor whose primary purpose is transgression itself, that is, rebellion against God. In normal cases of transgression, however—motivated by greed, revenge, anger, etc.—the Rabbis developed other venues of punishment, such as exigency measures and the law of the king mentioned by Kirschenbaum. Like Kirschenbaum, Enker invites us to view the formal rabbinic death penalty, “the law of the Torah,” as just one of several penal jurisdictions within rabbinic law. Both Enker and Kirschenbaum as well as Elon, as professors and practitioners of law, are troubled by the impracticability of the rabbinic death penalty. They look at law for its usefulness and ﬁnd the rabbinic death penalty wanting. While the American scholars celebrate the Rabbis’ restrictions on the death penalty, the Mishpat Ivri writers problematize them. The alleged dysfunctionality of the rabbinic death penalty leads Elon largely to ignore it, but Enker and Kirschenbaum attempt to see it in a larger context, as part of a multi-tier rabbinic justice system with both pedagogical and practical components.109 But all three thinkers have in common a concern for social utility, and they struggle with the restrictions of rabbinic criminal law. One other Israeli writer also draws from the rabbinic death penalty a usable past, though he is outside the Mishpat Ivri framework. In his 1991 Life, Freedom, and Equality in the Jewish Tradition, Noam Zohar, on behalf of Rabbis for Human Rights, brings the rabbinic death penalty to bear on the conﬂict between Israelis and Palestinians.110 Zohar associates the death penalty with the principle of tselem Elohim in Jewish sources. According to Zohar, the association can lead in two opposite directions: that one who takes a human life must be punished by being forced to give up his own life because the life he took

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was so precious, or, on the other hand, because life is precious, the murderer’s own life should not be taken. Zohar sets out to resolve the dilemma by referring to various biblical and rabbinic sources, including m. Mak. 1:10, which he quotes in full. Zohar concludes that the Jewish tradition, beginning with the Bible and continuing even more forcefully into the Mishnah, is opposed to the death penalty because of its abiding belief that each person, including the convicted criminal, is made in the image of God. Zohar does not spell out the implications for the Israeli occupation, but it is not hard to make inferences: If the convicted criminal is viewed by Judaism as a reﬂection of God, then the Palestinian must be viewed this way also. Noam Zohar’s teaching handbook carries on the tradition of Cohn’s human rights work, the goal being to show that human rights is easily integrated with rabbinic law, particularly rabbinic criminal law. Zohar’s writing is also continuous with Elon’s Mishpat Ivri, though Zohar wishes to integrate Jewish law into Israeli politics generally rather than into Israel’s courts speciﬁcally. Israeli lawyers, professors, and political activists, we can see, have interpreted the rabbinic death penalty in light of the contemporary Israeli legal and political reality. The writings of Cohn and Zohar emphasize rabbinic humanitarianism, a pattern set by Mendelsohn. But Elon, Anker, and Kirschenbaum problematize this humanitarianism; they seem embarrassed by the law’s leniency. As a consequence, Elon mostly avoids the formal death penalty, while Enker and Kirschenbaum attempt to take it seriously even while it seems useless; Kirschenbaum describes it as “a mighty instrument of character training,” a description that is almost an oxymoron. We will see that more recent Israeli writers leave behind them the problem of what the rabbinic death penalty does not do, instead articulating more fully what it does do (I will discuss these writers later in this chapter).

The New Testament Historians At the same time that the Mishpat Ivri writers were investigating the rabbinic death penalty, so were historians of the New Testament. In the 1960s, 1970s, and 1980s, scholars of early Christianity wrote a number of important studies of rabbinic execution with the aim of better understanding the historical reality from which the passion narratives of the New Testament emerged. The project of grounding early Christianity in its historical Jewish context goes back to Schu¨rer, and early on, scholars confronted the many conﬂicts between the Greek and Hebrew sources in their representations of the Sanhedrin and its activities.111 Scholars of the nineteenth and twentieth century created a host of solutions to these contradictions, favoring either the Greek sources as Julius Wellhausen and Emil Schu¨rer did or the Hebrew ones as Isaac Halevy did. Some scholars tried to effect a compromise between the two sets of sources. According to these compromises, there existed in antiquity either two Jewish judicial authorities or two Jewish judicial institutions, one political and one religious; each set of sources describes only one of these two entities. Thus it

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was suggested that both the Greek sources and Hebrew sources were accurate—they simply were describing different things. Various spinoffs of these theories were also generated, as well as an argument for the late date of the Mishnah that makes it effectively irrelevant to the earlier Greek sources.112 The conﬂict between the sources is particularly acute regarding the Gospels’ portrait of the Sanhedrin trial of Jesus, in which the Sanhedrin violates much of the criminal code laid down in the Mishnah.113 Scholars also extensively addressed the related question of Jewish jurisdiction, which I discussed in chapter 1. Only more recently has the historiographical discussion been resolved into a more detailed picture, with the rabbinic death penalty earning its own sphere of attention. While the anthology The Trial of Jesus is oriented to the topic of the title, two articles within this 1970 collection deal with the history of Jewish execution as a question unto itself. In “The Jewish Punishment of Stoning in the New Testament Period,” Josef Blinzler tracks the history of stoning in the ancient world in order to better understand its trajectory as a Jewish punishment.114 Blinzler reviews biblical stoning and then goes on to contrast it in various ways with the Mishnah’s version, a contrast made also by authors such as De Sola Pool and Cohn. Like Cohn, Blinzler suggests that the Mishnah’s stoning is an entirely different punishment from the Bible’s, and again like Cohn, he attributes the Mishnah’s differences to “a more humane rabbinic theory of law.”115 Blinzler argues that the Mishnah’s humanized version of stoning had no precedent in the period of the New Testament, when only the law of the Old Testament and the Sadducees was in use. Blinzler concludes: “Thus the thesis that the Tractate Sanhedrin did not yet apply in Jewish penal law in the period before AD 70, which is so important for a correct assessment of the trial of Jesus, can be regarded as unshaken.”116 In “Cruciﬁxion as a Punishment in Palestine,” Ernst Bammel considers whether the Jews of the New Testament period practiced cruciﬁxion. Bammel begins with Mishnah Tractate Sanhedrin’s presentation of four death penalties, observing that cruciﬁxion is not numbered among them, thus seemingly excluding the possibility that it was a Jewish punishment. Nevertheless, Bammel goes on to claim that cruciﬁxion most likely did exist as a Jewish punishment. Noting, like Blinzler, the innovations of rabbinic execution, Bammel argues that Sanhedrin’s modes of execution each seem to be modiﬁcations of earlier methods. Bammel reasons that cruciﬁxion is likely to have been one of these earlier methods, especially since it is often mentioned in rabbinic sources as a punishment for banditry, a crime that was understood to be politically motivated. Bammel concludes darkly that the Jews could have been the party responsible for crucifying Jesus: “It follows that the mention of an execution on the cross says less about the authority which called for it than about the kind of crime with which the victim was charged.”117 The question of cruciﬁxion—whether Jews used it or not as a method of execution—emerges as a controversial topic for these New Testament historians. In his “Does Tlh in the Temple Scroll Refer to Cruciﬁxion?” Joseph Baumgarten argues from Qumran texts that while hanging was a Jewish mode of

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execution, cruciﬁxion was viewed with horror by the Second Temple period Jews.118 From the same set of texts, David Halperin argues the opposite in his article “Cruciﬁxion, the Nahum Pesher, and the Rabbinic Penalty of Strangulation,” where he presents the question of Jewish cruciﬁxion as “one of the most fervently debated questions in Jewish historiography.”119 Agreeing with Stauffer, Bammel (from above), Yadin, and Hengel, Halperin argues that the Jews borrowed cruciﬁxion from the Romans, naturalized it into Jewish law, and later replaced it with the Mishnah’s penalty of strangulation out of humanitarian concerns: “Cruciﬁxion was perceived as a prolonged and agonizing form of strangulation, heneq, and was at some point drastically modiﬁed into the quick and relatively humane form of strangulation prescribed by the Mishnah.”120 While Cohn would agree with Halperin’s articulation of rabbinic concerns, Cohn disagrees with Halperin’s argument about Jewish cruciﬁxion. Cohn refers to many of the same texts as the other historians—the Temple Scroll, (col. 64, ll. 6–13), Pesher Nahum (col. i, lines 7–8), m. Sanh. 6:4, the Targum to Ruth on v. 1:17—and concludes that “from the Jewish point of view and by the most ancient tradition, hanging alive, by cruciﬁxion or otherwise, was an ‘affront to God’ and a deﬁlement of the holy land.”121 I have by no means exhausted the discussion of historical analyses of the ancient Jewish death penalty.122 In these historiographical treatments can be found a great deal of overlap with the works of the earlier Talmud scholars surveyed here: Both the historians and the Talmud scholars emphasize the innovative character of the rabbinic modes of execution vis-a`-vis their biblical and post-biblical precedents, and both sets of scholars attribute these innovations primarily to humanitarianism. But these history-writing scholars have a different aim; for them, the texts are a vehicle by which to uncover particular historical events. Moreover, the execution of Jesus is the touchstone for this history. It is not a coincidence that the most prominent concern for these studies of the Jewish death penalty is whether the Jews practiced cruciﬁxion. While some of these studies give sensitive, contextualized readings of the rabbinic sources, the rabbinic sources are ultimately a secondary concern in the quest for reconstructing the events described in the gospels. American Judaism and Death Penalty Debates This is not the case for contemporary American Jewish denominational writers on the rabbinic death penalty, for whom the rabbinic texts are the primary concern. These writers want to know: What is the traditional Jewish perspective on capital punishment? They tend to produce more popular works, but they are writers who also locate themselves within the scholarly world. Their discussions of the death penalty emerge from a climate of great national controversy in the United States: from 1968–1976 there was a complete cessation of executions while the death penalty was being tested in the courts, after which death penalty rates began to rise.123 Hugo Bedau, in the preface to his collection The Death Penalty in America: Current Controversies, points to death-penalty cases that rocked the country, making celebrities out of the prosecuted: Susan

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Smith, O. J. Simpson, Mumia Abu-Jamal, Ted Bundy. The prominence of the death penalty in American politics inspired and continues to inspire America’s religious leaders to go to their canonical texts in order to determine their tradition’s position.124 Gerald Blidstein of Orthodox Judaism’s Yeshiva University published an article dedicated to the death penalty in 1965 at the time when the constitutionality of the death penalty was beginning to be challenged in U.S. courts.125 Calling it “Capital Punishment—The Classic Jewish Discussion,” Blidstein has the goal of getting at what he believes to be the essential perspective of the canonical Jewish sources. Blidstein observes that the Bible as well as the Rabbis make no linguistic distinction between “kill” and “murder,” using the root r-ts-kh for both, even though the sources do distinguish legally between accidental and intentional killing. In other words, according to the language of Jewish law, “homicide is not splintered into the justiﬁable and the criminal.”126 Blidstein brings this observation to bear on m. Mak. 1:10, using it to explain the claim by Rabbi Akiva and Rabbi Tarfon that they would never have performed an execution: “Perhaps, then, the opposition to capital punishment is rooted elsewhere; perhaps its source is not a fear of killing the innocent but a reluctance to kill the guilty. . . . This teaching of Rabbi Akiva would be an accurate reﬂection of the categories of the Hebrew language.”127 Blidstein attributes the rabbinic reluctance to execute even guilty criminals to the principle of tselem Elohim—a move commonly made by earlier scholars. Anyone who kills a man—a just court as much as a murderer—destroys the image of God. Yet Blidstein also points to another trend in the rabbinic sources, a fear that “indiscriminate recourse to ‘mercy’ . . . would deny to an innocent society the concern shown the criminal.”128 Blidstein concludes that the Jewish sources are divided, that the Jewish death penalty is a “discussion,” as his title indicates. Joseph Soloveitchik writes the foreword for Jewish Jurisprudence: Its Sources and Modern Applications, authored by his students, the lawyers Emanuel Quint and Neil Hecht, telling its readers to expect a presentation of “halachic concepts and legal decisions without apologetics and without pandering to current fashions.”129 Like Mendelsohn, Benny, and many others before him, the authors Quint and Hecht express their concern to bring Jews back to their law: “Today, unfortunately, estrangement from the language of halacha has made it less accessible to the general public.”130 Despite Soloveitchik’s claim, Quint and Hecht’s section on the rabbinic death penalty would have raised the ire of traditionalists like Rabinowitz-Teomim as popularistic pandering, for Quint and Hecht neatly present the Rabbis as abolitionists. They quote m. Mak. 1:10 without its ﬁnal statement from Rabban Shimon ben Gamliel and summarize Jewish law’s approach to the death penalty with one sentence culled from this Mishnah: “A Sanhedrin that metes out a death sentence is known as a destructive tribunal.”131 Quint and Hecht, in fact, have altered the Mishnah, where the two opinions qualify that the Sanhedrin that metes out a death penalty either once every seven years or once every seventy years is considered destructive; in Quint and Hecht’s reconstruction of the text, the Sanhedrin that metes out a death penalty at all earns this criticism.

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Conservative Rabbis Elliot Dorff and Arthur Rosett, in their 1988 book A Living Tree: The Roots and Growth of Jewish Law, argue—in keeping with their denominational afﬁliation—for the historical dynamism of Jewish law, one of the founding tenets of Conservative Judaism, known originally as the Historical School. As their title suggests, the fundamental claim of these authors is that Jewish law grows organically. They discuss the rabbinic death penalty in the context of their discussion of the oral Torah’s patterns of continuity and change. According to Dorff and Rosett, rabbinic capital punishment is an example not of outright rabbinic revision, but of the Rabbis’ “shifting the weight accorded to varying constructions of precedents.”132 Focusing on the criminal court procedures, Dorff and Rosett argue that when the Rabbis established many procedural restrictions, they were completely conscious of their changes to the justice system: “they had decided to outlaw the death penalty, despite the numerous times the Bible requires it, and they used court procedures to accomplish that.”133 Dorff and Rosett’s approach is very similar to De Sola Pool’s and others’ later, wherein the Rabbis seem to be tempering the Bible with their own ethical convictions. Dorff and Rossett conclude their discussion by bringing m. Mak. 1:10, which they quote in unabridged form, as evidence that the Rabbis “realized the issues involved fully.”134 Israel Kazis, a Conservative Rabbi writing in the Reform Movement’s anthology Man’s Right to Life, similarly makes the death penalty one example of the way that “the Rabbis had to resort to legal techniques, which, while not abrogating the law technically, nevertheless made it practically unenforceable.”135 Kazis concludes that the Rabbis “did not look with favor upon capital punishment,” and he quotes, in abridged form, m. Mak. 1:10.136 Conservative Rabbi Elie Spitz, however, portrays a more conﬂicted tradition. Like his Orthodox counterpart Gerald Blidstein, Spitz devotes an article to the canonical Jewish approach to the death penalty.137 While Spitz’s article emphasizes different texts and has a more practical orientation—Spitz concludes his article with a call for the abolition of the death penalty today in America—Spitz’s argument about the Jewish perspective is ultimately very similar to Blidstein’s. Spitz argues that the rabbinic sources are not wholly opposed to capital punishment: “In conclusion, our tradition teaches us that capital punishment is a power which God has given to human courts. Yet the rabbis teach that courts should use their power with the greatest of care, leading to the rarity of its imposition.”138 Spitz describes elements of both continuity and discontinuity between the Bible and the Rabbis: the Rabbis believed in the death penalty’s morality along biblical lines but were concerned about the justice of its application. In resolutions made by the Central Conference of American Rabbis at conventions in 1958, 1960, and 1979, the Reform movement expressed total opposition to capital punishment.139 In the 1979 resolution, the Reform movement’s Rabbis declared abolitionism to be fundamental to the Jewish tradition, which “found capital punishment repugnant, despite Biblical sanctions for it.”140 Reform Rabbi Richard Block argues, however, that the classical rabbinic position is more complicated. Block complains about the frequent citation of

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m. Mak. 1:10 in abridged form, without the last statement of Rabban Shimon ben Gamliel: It was not until years later when I, then a rabbinical student, began preparing my ﬁrst sermon against capital punishment, that I discovered the missing ‘B-part’ of Mishnah Makot 1:10, which my rabbi had neglected to quote. . . . Jewish tradition, it appeared, had more to say on the subject of capital punishment than I had been led to believe. There was, at the very least, a difference of opinion about capital punishment to be found in the Mishna, and a debate of strikingly contemporary character.141 For Block, the Talmud’s internal controversy comes to him as a revelation; he sees in it a precedent and a parallel for the debate about the death penalty in contemporary America. Block, following his colleague Julius Kravetz, attributes the Reform movement’s abridged citation of Makkot as well as homogeneous representation of the Jewish attitude towards the death penalty to the movement’s polemical interests of abolition.142 Block submits instead that “Jewish post-biblical tradition does not speak with one voice on capital punishment.”143 Block asks the question: How could the Rabbis have been completely opposed to the death penalty if they devoted a substantial portion of m. Sanhedrin to methods of execution, indeed, if Tractate Sanhedrin becomes at one point “a virtual executioner’s manual”?144 No, the Rabbis do not reject the Bible’s values, claims Block: “Thus, it has been argued by De Sola Pool and Blidstein, among others, that the rabbis gave ‘theoretical’ allegiance to the biblical prescriptions of capital punishment while, at the same time erecting such imposing ‘practical’ barriers to capital punishment as to make it virtually impossible to carry out. So goes the conventional wisdom.”145 Block shows the “conventional wisdom” to be wrong. According to Block, the real tension within the rabbinic texts is not between theory and practice but between “midat hadin and midat harachamim, the attributes of justice and mercy.”146 Just as these two attributes coexist within God, so do they battle each other in the rabbinic arguments about the death penalty.147 In many ways, these contemporary American scholars sound very similar to their forebears: Central to their arguments is the humanitarianism of the Rabbis, that is, the rabbinic commitment to upholding the divinely originating dignity of every human being. But these writers offer something new: They try to deepen the discussion, to mark the tensions within the Jewish tradition. These writers address internal conﬂicts within the rabbinic laws of the death penalty. While for Mendelsohn this tension only lurks in the background of his work, these scholars make it their main concern. In the view of these contemporary scholars, the ancient Rabbis are caught up in a philosophical debate about whether the protection of society or the protection of the criminal has greater weight. The American writers thus ﬁnd in the rabbinic texts a reﬂection of their own society’s debates.

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Israeli “Jewish Thought” Several contemporary Israeli scholars give attention to the ancient death penalty without drawing any direct conclusions for today’s. While some earlier writers did make efforts to understand rabbinic thought in its own context— Mendelsohn argues that the Rabbis wished to prevent the mutilation of the criminal’s body, and Benny argues that the Rabbis aimed to minimize the criminal’s pain in the belief that he was created in the image of God— the earlier writers leave these suggestions relatively unexamined. Recent Israeli writers such as Peretz Segal, Moshe Halbertal, Yair Lorberbaum, and Aharon Shemesh give these ideas more sustained, in-depth attention, reading the texts carefully, contextually, and creatively. These writers do, however, have one major antecedent, whose work on Jewish criminal law stands alone in the early part of the twentieth century. This is Victor Aptowitzer, whose long article “Observations on the Criminal Law of the Jews,” written in Vienna in the mid 1920s, provides a series of studies on rabbinic capital punishment.148 In the ﬁrst section, Aptowitzer argues for the close relationship between the halakhah (law) and aggadah (narrative) regarding criminal punishment, giving numerous cases in which the halakhah is illuminated by the aggadah and vice versa.149 With this argument, Aptowitzer foreshadows the current work of Yair Lorberbaum. Among the other studies included by Aptowitzer are the principle of measure-for-measure punishment;150 the parallel between Jewish law and the Code of Hammurabi regarding punishments for adultery; the exegetical foundation for the penalty of decapitation; and the status of the embryo in rabbinic law, which Aptowitzer considers in the context of other Jewish and non-Jewish writings. In short, Aptowitzer attempts to write an intellectual history of rabbinic criminal law, locating it both within the larger complex of rabbinic thought as well as within the broad intellectual universe in which the Rabbis existed. Aptowitzer’s history, however, is episodic; he does not link his studies with one another. While Aptowitzer’s efforts are pioneering, it is not until the recent crop of Israeli scholars that the intellectual framework of rabbinic criminal law is given more systematic attention. In his 1986 dissertation, “ ‘Hiyuv Be-Dinei Shamayim’: Hiyuvei Mitot Beit Din Ve-Hiyuvei Mitah La-Shamayim” (“Liability under Divine Jurisdiction”: The Death Penalty by a Human Court and “Divine Hand”), and 1991 English abstract, Peretz Segal’s project is to unpack the rabbinic category of “liability under divine jurisdiction”: what does it mean when the Rabbis talk about being liable for a crime in the heavenly court?151 How does this liability bear relationship to liability in a human court? Segal makes it his task to explain the criminal law of the Rabbis totalistically: “. . . the method of interpretation must, it seems to me, adopt a synoptic view of the sources so as to suggest a possible explanation of the laws as a whole, by putting together subjects that show evidence of being legally consistent and arranging them as an overall coherent legal system.”152 Segal ﬁnds such coherence in what he argues to be the priestly

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origins of the concepts of both divine and human jurisdiction. According to Segal, the punishments imposed by both God and the human court, as they are represented by the Tannaim, have their origins in the concerns of the priests to atone through sacriﬁce. Segal argues, ﬁrst of all, that the Bible’s methods of criminal execution are based directly on its methods of animal sacriﬁce. Addressing the Mishnah’s innovations to the Bible in criminal execution, Segal’s argument gets more complicated: He suggests that the Rabbis modeled their executions on God’s own punishments in the biblical narrative, such as of Aaron’s sons Nadav and Avihu. But according to Segal, God’s punishments are just as much a matter of atonement as the animal sacriﬁces upon which the biblical punishments are based. In other words, the Rabbis may have creatively interpreted the Bible to come up with execution methods based on divine models of punishment (Lorberbaum will argue this as well, referring to Segal153), but the Rabbis retain the punishments’ original biblical logic of atonement. Examining the details of the tannaitic laws of the death penalty and referring to their talmudic interpretations, Segal shows that through these laws the Rabbis “were trying to come to terms with ancient traditions based on a living legal continuum derived from the concepts found in the priestly literature in the Bible.”154 Segal ultimately gives a mythological reading of criminal execution, arguing that these laws represent a “typological exegesis whereby biblical myths are given a normative meaning as an aetiological precedent. . . .”155 In the case of criminal execution by a human court, this means that the activity of the judges is seen as a reﬂection of God’s own activity. This type of exegesis, Segal notes, is generally associated with sectarian legal interpretation; according to his conclusions, however, this association must be revised to include tannaitic midrash. Professor of Jewish Thought at the Hebrew University in Jerusalem, Moshe Halbertal argues in his 1997 Mahapekhot Parshaniyot Be-Hit’havutan: Arakhim Ke-Shiqulim Parshani’im Be-Midreshei Halakhah (Interpretive Revolutions in the Making: Values as Interpretive Considerations in Midreshei Halakhah) that values are important criteria for the Rabbis in their often revolutionary interpretations of Torah.156 Halbertal shows by looking at a number of different areas of rabbinic legal interpretation that the Rabbis not only employ ethics in their legal readings of the Bible but that they also explicitly acknowledge that they do. Thus Halbertal argues for the crucial role that ethics has played in the development of Jewish law. Halbertal devotes the ﬁrst and last chapters of his book not to a speciﬁc area of law, nor even to rabbinic midrash at all, but rather to the larger complexities of the relationship between legal interpretation and ethics: How can law really be interpretation, that is, a reading of a canonical legal text like the Bible or like the American Constitution, if its motivation is ethical? The lawmaker would seem to be standing both inside and outside her canonical text at one and the same time. Halbertal draws upon the ﬁelds of literary theory and jurisprudence, especially writers who deal with both such as Ronald Dworkin, in order to resolve these dilemmas. The last topical chapter in this book discusses the executions of the rabbinic court in the context of these larger questions of law, ethics, and interpretation.

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Halbertal begins his discussion with the methods of biblical execution, stoning and burning, both of which destroy the body of the sinner. Halbertal charts the innovations made by the Rabbis to these biblical punishments, how the Rabbis both transformed these existing punishments and added new ones according to ethical and theological concerns related to preservation of the body. The Rabbis themselves reveal their ethical rationale: “And you shall love your neighbor”—choose for him a nice execution. The Talmud intertwines this ethical criterion with various semantic criteria, that is, biblical readings, integrating together ethics and interpretation into their legislation. Contra historians who would explain the rabbinic methods of execution by way of historical precedents from which the Rabbis borrowed, Halbertal argues that they are authentic products of the rabbinic lawmaking enterprise.157 According to Halbertal, the Mishnah’s method of strangulation, as well as the Mishnah’s presentation of hanging, illuminates the essential pattern of rabbinic thinking when it comes to execution. In developing the penalty of strangulation, the Rabbis are free to choose any method of execution they wish since strangulation, in their view, is the Torah’s “anonymous” execution method. When given free rein, the Rabbis create an execution method whose primary purpose is to preserve the body of the condemned, a mittah she-eyn bah roshem, literally, an execution that has no imprint. Halbertal points out that preservation of the body and not minimization of pain is the main concern here, since the “more lenient” execution method of strangulation, according to the rabbinic hierarchy, is not less painful but is rather less destructive to the body. The method of strangulation, more so than stoning or burning, incontrovertibly shows the Rabbis’ desire to preserve the body. But it is only with the Mishnah’s discussion of hanging that the underlying logic of this desire is revealed. Abbreviating the Torah’s day-long hanging to a mere moment, the Rabbis seem uneasy with the practice of hanging. Their ambivalence resides in the Torah’s mysterious explanation for taking down the body—ki qilelat elohim talu’i (Deut 21:23), a phrase whose meaning is eminently unclear. The Rabbis of the Mishnah interpret that God himself is accursed through the hanged man (reading “for a hanged man is a curse to God”), and according to Rabbi Meir, God suffers along with the hanged man. The execution of a person, which is originally demanded by God, ultimately causes God himself to suffer. According to Halbertal, “the attempt to restore the lordship of God by displaying the body of the sinner for all to see, ultimately threatens that lordship because the body of the sinner is an icon of God Himself.”158 Halbertal concludes that the theological principle of tselem Elohim, human creation in the image of God, as it appears here with respect to hanging, can perhaps explain the impetus for all the Rabbis’ innovations to execution: “Destruction of the body in punishment is forbidden because the body is an icon of God.”159 Halbertal’s ideas are not entirely new. Mendelsohn, like Halbertal, argued that the execution methods of the Rabbis are intended to prevent the mutilation of the body, also referring to the Talmud’s interpretation of Leviticus’s “love thy neighbor.” Benny linked this intention to the theological principle of tselem

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Elohim many years before Halbertal did.160 De Sola Pool likewise argued that the Rabbis wished to prevent the disﬁgurement of the body, though he attributed their wish to a belief in bodily resurrection. Halbertal’s main arguments, then, can all be found in earlier writings. His theoretical framework, however, is new. Halbertal discusses the rabbinic death penalties in the course of exploring the nature of rabbinic legal innovation and particularly the role of ethics within it. How to take the Rabbis seriously as interpreters of Bible but also as ethical religious leaders is Halbertal’s project. Along with Mendelsohn and De Sola Pool, Halbertal is still working within the tradition of viewing the Rabbis as humanitarians, as leaders for whom right ethics is a main motivating force. But Halbertal, carefully considering the Rabbis’ hermeneutical endeavors, views them also as readers. Thus does Halbertal work through the rabbinic texts with much greater care than do his predecessors, paying attention to how the Rabbis themselves interpret their laws rather than how we moderns might. Moreover, Halbertal examines their ethical schemes in the context of their theology and vice versa. Much of the polemical context of Mendelsohn’s and De Sola Pool’s works is absent: Halbertal is not trying to make the Talmud accessible to unknowing, uncaring, or accusing audiences. If anything, Halbertal’s target audience seems to be one that is too pious, refusing to acknowledge that rabbinic law suffered any seemingly “external” inﬂuences like ethics. Nor does Halbertal seem concerned to acquit the Jews of killing Christ. In this vein, Halbertal does not discuss criminal court procedure; m. Mak. 1:10, in abridged or unabridged form, does not appear. Halbertal’s focus is the methods of execution, not the trial process by which they are imposed. While Halbertal’s arguments are continuous in many ways with earlier writing on rabbinic criminal execution—the humanitarianism of the execution methods, their connection with tselem Elohim—Halbertal’s methods and concerns are refreshingly new: his serious consideration of hermeneutics, his careful readings of texts, his integration of theology and ethics, and his focus on the execution methods. Yair Lorberbaum’s argument about rabbinic capital punishment in his 2004 Tselem Elohim: Halakhah ve-Aggadah (Image of God: Halakhah and Aggadah) will immediately seem similar to Halbertal’s; Lorberbaum himself acknowledges Halbertal’s inﬂuence.161 Lorberbaum, however, takes up the principle of tselem Elohim in much greater detail than does Halbertal, bringing it to the center of his work, tracing it through tannaitic literature and into the medieval writings of Maimonides and Nahmanides. Lorberbaum parts company with Halbertal not just in scope, however, but more signiﬁcantly in his conception. Whereas Halbertal understands tselem Elohim to be primarily an ethical principle, Lorberbaum argues that it is better understood as what he calls a “theurgical theosophy” which might then give rise to a certain set of ethics.162 According to Lorberbaum, the Tannaim based Imago Dei “not so much on an anthropomorphic notion of God but rather . . . upon a theomorphic conception of man,” in which his body, soul, personality, mind, etc. all embody the image of God.163 Because man is divine, so to speak, “actions directed at human beings inﬂuence God, both positively and negatively.”164 Lorberbaum argues that the theosophy of imago Dei can thus be found not

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only in rabbinic aggadah, where it frequently appears, but also in their halakhah, in laws governing human actions, especially actions which affect fellow human beings. Lorberbaum shows this most clearly and comprehensively in the laws of criminal execution, which according to his argument are activated by the theosophy of tselem Elohim. Lorberbaum makes two main arguments about the rabbinic methods of execution: (a) “the ways of execution—stoning, burning, strangling and hanging—were designed by the Tannaim in a way which refrains from harming the body . . .” and (b) “in these forms of execution, the Bet-Din (⫽court) simulates death at the hands of heaven according to the Tannaitic understanding of it.”165 And the tannaitic understanding is that when God kills sinners, he avoids harming their bodies. Lorberbaum attributes both these features of tannaitic execution to the theosophy of tselem: “. . . according to the Tannaim, God avoids harming the body even when he kills a sinner—as if it is in his own interest since he is in his image—and this is the reason why the Bet-Din imitates him when they execute the criminal while keeping the body intact.”166 Lorberbaum criticizes those scholars who would try to explain the rabbinic executions as products of historical inﬂuence from earlier Jewish communities or from non-Jewish communities. In Lorberbaum’s view, the executions must be understood as a uniﬁed, coherent, internally-driven set of laws, rather than a legal smorgasbord picked from this or that legal system.167 For Lorberbaum, this theosophy is the source not only of the entire system of rabbinic execution methods, but also of the rabbinic attitude towards murder as harm to God’s image, as well as the Rabbis’ overall negative attitude to capital punishment, which, according to Lorberbaum, they informally nulliﬁed. Lorberbaum concludes, however, that only according to the school of Hillel/Rabbi Akiva is this theosophy upheld; the Shammai/Rabbi Eliezer tradition instead presupposes that “God is in heaven and man is on earth and there is no continuity nor ontological connection between them, and there is deﬁnitely no reliance of Heaven on earth.”168 Aharon Shemesh, professor of Talmud at Bar-Ilan University and scholarin-residence at the Shalon Harman Institute, uses the list of capital and corporal crimes in m. Sanhedrin and m. Makkot as the starting point for a comprehensive exploration of ancient Jewish notions of crime and punishment in his 2003 Onashim ve-Hata’im min Ha-Miqra le-Sifrut Hazal (Punishments and Sins from Scripture to the Rabbis).169 Shemesh’s interest is the legal innovations of the Jews of late antiquity, and he reveals those innovations by comparing the late antique laws to the laws of the Bible. The Bible, according to Shemesh, is primarily concerned with collective, covenant-based reward and punishment rather than individual crime and punishment. To piece together a coherent biblical approach to individual crime and punishment is consequently a challenge, since the Bible provides only scattered and sparse evidence. This is not the case for later Jews, shows Shemesh, who are seriously interested in capital crime and develop elaborate systems of punishment for the individual transgressor. In looking at these systems, Shemesh adds two important new dimensions

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to the exercise in comparing biblical and rabbinic law. First, like some of the recent American scholars, he observes a great diversity within the rabbinic corpora. Shemesh pays particular attention to the Rabbis’ lists of sins and their applications of punishment. While the Mishnah might portray a legal unity, says Shemesh, presenting its system of capital punishment as a “book of decrees” in the vein of a legal manual, its midrashic parallels exhibit ideas entirely at odds with those found in the Mishnah. For instance, the midrashic collection Mekhilta De-Rabbi Shimon bar Yohai preserves a legal tradition in which the murderer is punished with a measure-for-measure penalty: The murderer is executed in whatever way he committed murder. According to the Mishnah, however, the murderer is always punished with decapitation, no matter what method of murder he himself applied to his victim. Shemesh argues that the Mishnah recognizes this alternative legal approach only to reject and suppress it.170 Another example Shemesh offers is the punishment of the adulterer: While the Mishnah legislates a seemingly undisputed penalty of strangulation, the Mekhilta De-Rabbi Shimon bar Yohai explicitly imposes the penalty of decapitation. For both these cases and others (he also gives much attention to the hierarchy of four execution methods listed in the Mishnah), Shemesh not only lays out the alternative legal traditions but also tries to explain the nature of the dispute—what is at stake in these debates—and the pattern of their evolution. The second major contribution of Shemesh’s work is his juxtaposition of the rabbinic texts with those of Qumran. In this way he highlights not only the diversity among Rabbis regarding their conceptions of crime and punishment but also the wider diversity among Jews of the period. Shemesh compares how the two reading communities each approach the same problems in the biblical text regarding punishment—the Bible’s gaps and contradictions—yet produce altogether different systems of punishment. According to Shemesh, the Qumran community takes many more interpretive liberties than do the Rabbis when it comes to imposing capital punishment upon various sinners. In other words, the Rabbis stay relatively close to the Torah’s list of capital crimes, while the Qumran readers add freely to that list. In Shemesh’s view, the Rabbis’ list of capital crimes should be seen as a polemic against Qumran’s expansion: The Rabbis’ intention is to say—these capital crimes and no others! The contrast between rabbinic and Qumranic punishment is crystallized in their respective approaches to the penalty of karet, excision. The Bible presents karet as a contrast to the hattat, the sin offering: While the one who sins inadvertently may bring a sin offering to atone for the sin, the one who sins ﬂagrantly receives no dispensation—he or she is punished with karet, an irreversible excision (Num 15:30–31). Both the Rabbis and the Qumran community play radically with this punishment, appropriating for themselves the power of karet even though they construe it to be a divine prerogative. Yet they appropriate karet to very different ends. In Qumran legislation, the ﬂagrant sinner is not only banished from God’s good graces but expelled from the human community as well. This interpretation of karet accords with the dichotomous world view of the Qumran sect, according to which the children of

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light struggle against the children of darkness; when a member of the sect maliciously sins, he shows himself to belong to the latter group, whose company he was clearly intended to keep. Thus divine and human expulsion go hand in hand, both inexorable ﬁnal punishments for which no atonement can be offered. The Rabbis, like the Qumran legislators, add a humanly inﬂicted punishment in cases of karet—not expulsion, but lashes. These lashes, however, have the opposite effect from Qumran’s expulsion. While Qumran’s penalty of expulsion reinforces on the human plane the irreversible punishment that takes place on the divine plane, rabbinic lashes instead counteract the divine punishment. The ﬂagrant sinner who receives lashes is actually absolved of the karet that God would have imposed! Shemesh argues that the Rabbis, in contrast to the Qumran community, use interpretive innovation to save sinners rather than to deliver them to their damnation. In sum, Shemesh shows that the Rabbis took a more forgiving approach to punishment than their Qumran counterparts, even while both lawmaking groups based their punishments on the same biblical texts and took similar interpretive freedoms. While Halbertal and Lorberbaum deal only partially with early rabbinic punishment—Halbertal addresses many other legal topics in tannaitic midrash and Lorberbaum shares his attention with medieval sources—Shemesh’s book marks the ﬁrst full-scale, contemporary, sophisticated, detailed scholarly investigation of rabbinic punishment. His initial claim—that the purpose of the Rabbis when it comes to punishment must be newly understood—is fulﬁlled by the thorough examination that Shemesh goes on to provide. His approach is source critical, with careful attention paid to the layers and parallels of rabbinic literature, but it is also historical—he compares the rabbinic texts to those Jewish texts that most closely predate them, i.e., Qumran and other Second Temple sources. At the same time, Shemesh presumes that the rabbinic punishments themselves do not address history, which, Shemesh argues, were purely theoretical in the period in which they were redacted. Rather, the rabbinic texts must be understood primarily in terms of their interpretive trajectory; their innovations tend to be motivated by problems in the biblical text: “In light of the assumption that was already mentioned earlier, that the tannaitic engagement in their categorization of the different capital crimes is principally theoretical, it stands to reason that this development stems from interpretive motivations.”171 The implication is that these innovations are not signiﬁcantly motivated by ideology. But Shemesh’s own work suggests that the Rabbis are in dialogue with other Jews of more or less the same period of history and that they produce a distinctive ideology of punishment. Shemesh himself concludes that the rabbinic penal laws are “a product of a process inﬂuenced by historical, ideological, and interpretive factors.”172 He ultimately wants to see the rabbinic laws of punishment as comprising all these components, yet Shemesh’s work points us most towards Bible interpretation as their key feature. One American scholar, Devora Steinmetz, may be discussed in this context even though she is not a member of the Israeli faculties. In fact, the similarity of her work to that of the Israeli scholars suggests that the classiﬁcations I

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have imposed are problematic, that the distinction between Israeli and American scholars is a blurry one, particularly as American scholars take sabbatical years and fellowships in Israel (Steinmetz thanks the Hartman Institute in Jerusalem for hosting her during her research) and Israeli scholars regularly take visiting positions at American universities. Certain trends nevertheless do present themselves. Steinmetz’s work on rabbinic capital punishment resembles that of the Israeli “Jewish Thought” scholars in its detailed and contextual analysis of rabbinic sources and in its interest in Jewish intellectual history. Moreover, her work explicitly takes its departure from the studies of Halbertal and Lorberbaum, though she selects different material than the other scholars, focusing her attention on the Babylonian Talmud’s discussions of punishment, and she offers an alternative interpretation.173 Like Shemesh, she approaches these legal discussions not as descriptions of ancient social reality nor even as prescriptions for it; but while Shemesh proceeds to emphasize their exegetical concerns, Steinmetz pays close attention to their conceptual dimensions, to the ideas of law that lie within them. As the three other scholars do, Steinmetz ﬁnds the execution method of strangulation to offer particular insight into rabbinic penology, since it is a wholesale innovation of the Rabbis with no foundation in biblical traditions. Like Halbertal and Lorberbaum, Steinmetz examines the rabbinic description of strangulation as an execution that “has no imprint.” While the former two scholars extrapolate that minimizing harm to the body is a concern that runs through all the rabbinic capital punishments, Steinmetz argues that this concern is, on the contrary, restricted to strangulation, and that it is an all-ornothing proposition—either the body is harmed or it is not. She suggests instead that the penalty of strangulation is meant to mimic a “natural” death, that is, the way people normally die when there is no obvious cause of death. Just as God gave the ﬁrst human being the breath of life, so does that breath leave when a person dies. When the Rabbis impose strangulation, they take life in just the way that God does. Steinmetz situates this type of execution among the other three methods, seeing each of the four execution methods as occupying a distinct place in a tightly constructed system meant to reﬂect alternative jurisprudential models. Within this system, strangulation represents the conception of law as commanded: The one who violates law, in effect, hands himself over to death. That person, by disobeying God’s law, relinquishes the breath that God gave him. Thus the rabbinic creation of the penalty of strangulation was intended to put forth a particular concept of law, a positivist concept of law as divine command. In the second part of her article, Steinmetz looks at Noachide law, in which she ﬁnds two competing models of law, both of them different from the Sinaitic legal model represented by strangulation. One of these models is similar to natural law: Human law should be organized according to universal normative principles that are derivable from observing the entire natural world. The other model presents law as a set of basic prohibitions that allow human society to function. Steinmetz looks also at two individual crimes—brother-sister intercourse and homicide—that highlight

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the way in which the rabbinic legislations of punishment present a variety of jurisprudential models. Like her Israeli colleagues, Steinmetz ﬁnds in the Rabbis’ capital punishment a clue to some of the most important concepts of their culture. For Steinmetz, however, these concepts are not ethical, mythical, or exegetical, but jurisprudential. Her innovation is also to see the four rabbinic capital punishments as intimately related to one another and to explore them in their Babylonian iteration. Segal, Halbertal, Lorberbaum, Shemesh, and Steinmetz locate the rabbinic laws of criminal execution in new theoretical settings: the relationship between law and ethics, law and theology, law and myth, law and worldview, law and jurisprudence. Halbertal and Steinmetz construe rabbinic law to be intellectually driven, while Lorberbaum and Segal read it mythologically; Shemesh reads it mostly exegetically. Some of these writers locate the rabbinic laws also in their historical setting, in the context of varieties of late antique Judaism. The “Jewish Thought” writers do have much in common with their predecessors, however. These writers still tend to give totalizing readings, comprehensive explanations that predicate the rabbinic death penalty on a particular idea. At the same time, these writers emphasize the interpretive dimensions of rabbinic punishment, almost to a fault. They see in rabbinic law an unfolding of ideas internal to the Jewish scriptural tradition. Halbertal, Lorberbaum, and Shemesh also still give a humanitarian reading of the rabbinic death penalty. These writers emphasize many of the same themes as earlier writers, though they make them more complex: the rabbinic concern to preserve the body of the criminal, the principle of tselem Elohim, the relationship between divine and human punishment, the rabbinic tendency to provide opportunity for atonement.

Lethal Claims These patterns of scholarship emphasizing the humanitarianism of the rabbinic death penalty, persisting from before the last century and into the present one, have also created a backlash. A number of American scholars have argued that rabbinic law partially embraces the death penalty. In addition to Gerald Blidstein, Elie Spitz, and Richard Block (discussed above), all of whom point out the trajectory of embrace of the death penalty, Moshe Meiselman, writing in the Orthodox journal Gesher, claims that “Jewish law condones capital punishment . . .” but that “capital punishment is exercised with great caution.”174 Walter Jacob, in his 1999 anthology, Crime and Punishment in Jewish Law, argues also that “capital punishment may have diminished, but that is far from certain, and it was not eliminated.”175 Jacob almost returns to RabinowitzTeomim’s hard-line, insisting that the Rabbis were fundamentally in favor of the death penalty despite several statements to the contrary: “These brief statements against the death penalty, as well as others which sought to void it in the case of the rebellious son, do not change the basic tenor of the talmudic

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discussion. The death penalty remained part of the legal system and could be used when jurisdiction provided.”176 David Novak, in his Covenantal Rights, also follows the hard-line approach, acknowledging some rabbinic controversy but maintaining that the Rabbis ultimately afﬁrm the death penalty: “Hence, publicly anyway, the difference of opinion on the issue of capital punishment was essentially one of degree and not one of kind.”177 Indeed, Novak discusses rabbinic capital punishment in a section which he titles, “The Lethal Claims of the Community.”178 These writers, whether they conclude that the talmudic tradition is split or that it is fundamentally in favor of the death penalty, are comfortable with and even committed to acknowledging the rabbinic death penalty’s “lethal claims.” These recent writers try to nuance earlier arguments about rabbinic humanitarianism, showing that opposition to the death penalty is not the only talmudic trend nor the most prominent. Jacob Neusner, however, forsakes the earlier arguments altogether, asserting that rabbinic capital punishment, and m. Sanhedrin in which it is found, is really not so interesting after all: “The tractate has attracted interest out of all proportion to its intellectual merits.”179 According to Neusner, the attention given to Sanhedrin is purely a product of interreligious politics: “The reason is that it is supposed to tell us whether or not the diverse accounts of the trial of Jesus conform to the laws of ‘the Jews.’ ”180 Neusner discounts such efforts, saying that the Mishnah postdates the events of Jesus’ life by two hundred years and is therefore irrelevant to it. Without such polemical motives, no reason remains to devote attention to this tractate, which Neusner describes in none too complimentary terms: “If, however, the tractate has to stand on its own, it is hardly so compelling . . . unlike the three Babas, the tractate asks no important questions about its facts, hardly attempts to show their complex potentialities, and undertakes no strikingly fresh intellectual initiatives.”181 Following Neusner, we should put the tractate to rest, turning our attention to other more innovative parts of rabbinic literature. When you take the contemporary politics out, not much remains, in Neusner’s view. Neusner and the other “backlash” writers seem to be expressing an exhaustion with the earlier scholarship, its animating forces having lost their strength. With the thawing of Christian/Jewish relations—beginning in the 1960s with Pope John XXIII’s landmark “Declaration on the Relationship of the Church to Non-Christian Religions” and continuing into more recent times with Pope John Paul II’s 1998 statement on the Holocaust, “We Remember: A Reﬂection on the Shoah”—the need to vindicate the Jews from Christian accusations is no longer as pressing.182 Moreover, the United States has settled into its death penalty debates, reaching something of an equilibrium: The politicization of the death penalty that began in the 1960s has now normalized, with the death penalty occupying a standard place in every political campaign.183 With a recent return to classical sources and a new traditionalism even in the Reform movement, the need to show the Talmud’s appeal and relevance is also less urgent.

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Conclusions While the study of the rabbinic death penalty appears to be in need of new energy, the contributions of earlier studies already provide the necessary resources. Scholars of rabbinic criminal law point to the central importance of rabbinic innovation, asking the question: How do the Rabbis transform biblical law? Contemporary Israeli and American scholars of the rabbinic death penalty give new directions to this question, pointing to innovations not previously given adequate attention, for example, innovations to criminal execution itself. Scholars from Mendelsohn and on, because of their concern to show the rabbinic reluctance to execute, give most of their attention to criminal procedure, that is, to everything that happens before conviction. Following the lead of Halbertal, Lorberbaum, and Shemesh, I dedicate the following chapters to those activities that transpire after conviction, once the guilty verdict has been delivered. Looking at what happens after conviction yields a much different understanding of rabbinic execution. The Rabbis innovate not only with respect to the trial, as has been long noticed, but also with respect to the characters who participate in an execution, to their movements and speeches, to the actions imposed by and imposed upon them. Investigation of these innovations makes it possible to move beyond either/or thinking about rabbinic criminal execution—were the Rabbis for or against the death penalty, were they just or merciful, cruel or humanitarian—to explore the rabbinic death penalty as a social, political, and religious practice. Looking at the rabbinic death penalty as a practice means not only looking at different kinds of innovations, but also looking at the familiar innovations in new ways. Scholars like Mendelsohn and Benny and many in their footsteps point out the rabbinic proclivity to save the criminal from conviction or the rabbinic concern to preserve the criminal’s body. Cohn looks additionally at the elimination of the community from the stoning procedure. For these scholars, such rabbinic tendencies are evidence for the rabbinic “attitude” towards punishment, which the scholars frequently describe as discomfort. The scholars ask—what did the Rabbis think about the death penalty?—and bring texts like m. Mak. 1:10 as the rabbinic answer. They seek, as Horowitz formulates it, the “spirit” of Jewish law. Some scholars broaden their questions to include theology and theosophy, but they still remain strictly within the realm of the intellect. Even the more recent Israeli scholars require that rabbinic criminal law be a holistic system with one coherent ideational principle behind it. But the Foucauldian approach to punishment would have us ask: What work does this ritual of execution do? How is capital punishment mobilized? What is the political signiﬁcance of such reluctance to execute and concern to preserve the body? While European and American criminal punishment has been the subject of much cultural criticism, no one has fully looked at rabbinic execution from this perspective, supposing the rabbinic laws to be overdetermined and contradictory rather than unitary and coherent, asking about their construction of authority rather than their attitude. The essentializing, intellectualizing ap-

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proach to rabbinic criminal law has dominated. I have shown that this approach is generated by anxieties about the Talmud’s accessibility and appeal, as well as by a traditional tendency to view the Rabbis in isolation from their social setting. Also prominent in previous scholarship, besides the question of rabbinic attitude, has been the question of historical implementation: Did the Jews ever use these death penalties? Were they even intended to be used? While these questions are essential to the politically charged historiography of late antique Palestine, often they are answered by using rabbinic texts as relatively uncomplicated clues. I will steer clear of the very challenging problem of reading rabbinic texts in order to write a traditional history of events, a project which itself has been highly problematized. In the following chapters I will read rabbinic texts not as a window onto history but as part of history, and history as part of the text. I do not take a stand on the question of jurisdiction, that is, where, when, for how long if ever did rabbinized Jews have the authority to execute their criminals. Again, I will incorporate the historiographical battles over Jewish jurisdiction into my arguments, supposing that Jewish jurisdiction in that time was likely a battleﬁeld on which Jews and Romans wrestled to protect their interests, if we can even adequately distinguish between Jews and Romans. Just as Jewish jurisdiction is not a closed question now, neither was it a closed question then. Going back to Lilienblum, the question of reality has been prominent, not only for the historians but also for the Mishpat Ivri scholars. Scanning Jewish legal history for a usable past, the Mishpat Ivri writers ﬁnd the rabbinic death penalty to be a thorn in their side, declared in the Talmud itself to be a hilkheta le-meshiha, a law for the time of the Messiah.184 Kirschenbaum and Enker conclude that the rabbinic death penalty is meant to be theory, but they struggle with how to then make it seem signiﬁcant: It is ediﬁcation; it is spiritual guidance; it is character training. The rabbinic death penalty is left as windowdressing next to the truly substantial legal provisions of the “law of the king” and “law of exigency.” I suppose in the following chapters, however, that even though rabbinic criminal law may exist as “theory” rather than “practice,” that is, as a law on the books rather than law applied and enforced, it may still in some sense be understood as practice. It it to this cultural practice that I now turn, to the legal discourse about capital punishment created by the early Rabbis.

3 Ritualization and Redemption Mishnah Sandhedrin Chapter Six

A Ritual of Execution Rabbinic ritual has received a great deal of attention by historians of Judaism. According to the historiographical outline, the Rabbis used ritual to effect the transition of Judaism from the world of the Temple to a new post-Temple existence.1 In fact, the rise of the Rabbis and the fall of other Jewish sects has been attributed to the Rabbis’ ability to create rituals independent of the Temple, and not only that, but to link these new rituals to the old: They transmuted the sacriﬁce rituals of the Temple into rituals of liturgy, study, and observance of commandments.2 While this vision of the Rabbis is not wrong, it is limited—other kinds of rituals have been omitted. Our modern sensibilities about ritual and religion generally lead us to the religious rituals with which we are familiar—those of the lifecycle and holiday-cycle. Moreover, historians tend to emphasize the practical, ignoring rabbinic rituals, such as the laws of sacriﬁces, that have become defunct and were possibly defunct even at the time that the rabbinic laws were formed.3 Scholars of rabbinic literature, on the other hand, have struggled to understand the impracticable laws in the Mishnah: Are they included “because the Mishnah is conﬁdently awaiting the time of their restoration, or because the temple cult had been ordained by God and the study of its regulations was now the equivalent of their implementation, or because the rabbis were attempting to create in their minds an ideal and perfect world to which they could escape from the imperfect world around them . . .”?4 But then these scholars of rabbinic texts tend to ignore their performative orientation. So we get stuck between the

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historians, who are concerned with rabbinic ritual but only religiously familiar ones, and the text scholars, who are concerned with understanding all the subjects included in the Mishnah but not speciﬁcally as ritual. What I would call the Mishnah’s ritual of execution gets overlooked. The ritual sequence begins on the steps of the rabbinic court with the delivery of the guilty verdict and ends back at the court with the burial of the criminal’s body. Here is that narrative in full, from m. Sanh. 6:5 1. When the judgment has been concluded, they take him out to stone him. The stoning house6 was outside the court house,7 as it is said, “Take out the blasphemer” (Lev 24:14).8 One [person] stands at the entrance of the court, and the scarf9 is in his hand, and one person10 rides the horse far enough away from him so that he can still see him.11 [If] one says, “I have [some point] to argue for his innocence,” that person (with the scarf at the entrance to the court) waves the scarf, and the horse runs and stops him. And even if he [himself] says, “I have [some point] to argue for my own innocence,” they bring him back, even four or ﬁve times, only provided that there be substance in his words.12 [If] they found him innocent, they exonerated him, but if not, he goes out to be stoned. And the herald goes out before him, “Person So-and-So, the son of So-and-So, goes out to be stoned because he has committed such-and-such a transgression, and So-and-So and So-and-So are his witnesses. And anyone who knows [an argument] for his innocence, let him come and argue for him.” 2. When he was about13 ten cubits’ distance from the stoning house, they say to him: “Confess.” For it is the manner of those about to be put to death to confess, for everyone who confesses has a portion in the world to come.14 For thus we ﬁnd with Akhan, that Joshua said to him: “ ‘My son, pay honor to the Lord, the God of Israel, and make confession to Him,” etc. “And Akhan answered Joshua, ‘It is true, I have sinned against the Lord, the God of Israel. This is what I did,’ ” etc. (Josh 7:19–20). And from where [do we know] that his confession atoned for him? As it is said, “And Joshua said: ‘What calamity you have brought upon us! The Lord will bring calamity upon you this day.’ ” (Josh 7:25)—“this day” you have calamity brought upon you; you do not have calamity brought upon you for the world to come.15 And if he does not know to confess, they say to him: “Say ‘may my death be atonement for all my sins.’ ” Rabbi Judah says: If he knew that he was conspired against, he says, “May my death be atonement for all my sins except for this sin.” They said to him: If so, every person will say this in order to clear themselves.

ritualization and redemption 3. When he was four cubits’ distance from the stoning house, they took off his clothes. The man—they cover him in his front, and the woman—in her front and in her back; the words of Rabbi Judah. And the Sages say: The man is stoned naked, but the woman is not stoned naked. 4. The stoning house was the height of two men. One of the witnesses pushes him on his hips; [if] he turns over onto his heart, he ﬂips him over onto his hips. And if he dies thereby, he has fulﬁlled his obligation. But if not, the second [witness] takes the stone and sets it on his heart. If he dies thereby, he has fulﬁlled his obligation.16 But if not, his stoning is by all of Israel, as it is said, “Let the hands of the witnesses be the ﬁrst against him to put him to death, and the hands of the people thereafter” (Deut 17:7). All those who are stoned are hanged; the words of Rabbi Eliezer. And the Sages say: Only the blasphemer and idolater are hanged. The man—they hang him his face towards the people, and the woman—her face towards the tree; the words of Rabbi Eliezer. And the Sages say: The man is hanged, but the woman is not hanged. Rabbi Eliezer said: But did not Shimon ben Shetah hang women in Ashqelon?”17 They said to him: He hanged eighty women, and one does not judge two [people] in one day. How do they hang him? They sink the beam into the ground, and the wood comes out from it; they place his hands one on top of the other, and they hang him. Rabbi Jose says: The beam is inclined against the wall, and they hang him on it the way that the butchers do. And they loosen him immediately; and if they delay, they transgress a negative commandment regarding him, as it is said, “You must not let his corpse remain on the stake overnight, but must bury him the same day. For a hanged body is an affront (qilelat) to God,” etc. (Deut 21:23). That is to say, why is this [man] hanged? Because he blessed18 the Name, and the name of Heaven is found to be profaned. 5. Rabbi Meir said: When a person suffers, Shekhinah, what does the tongue say?19 As it were, my head is heavy (qalani); my arm is heavy (qalani).20 If thus the Maqom21 suffers22 over the blood of the wicked that is spilled, how much more so over the blood of the righteous.23 And not only this but everyone that delays his dead [from burial] transgresses a negative commandment. But if one delayed it for his honor, to bring him a cofﬁn and shrouds, one does not transgress regarding him. And they would not bury him in the graves of his fathers, but rather two gravesites24 were prepared for the court, one

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execution and invention for those executed by decapitation and strangulation, and one for those executed by stoning and burning.25 6. When the ﬂesh is consumed, they gather the bones and bury them in their place.26 And the relatives come and ask after the welfare of the judges and the welfare of the witnesses,27 that is to say,28 that we have nothing in our hearts against you, that you judged a judgment of truth. And they would not mourn with full ceremonies (mitablin), but they would mourn the day of the death (onenin), since mourning the day of the death (aninut)29 is only in the heart.

In the ﬁrst mishnah, the court stages a rescue effort on behalf of the convicted criminal: As he is processed to the execution site, exonerating evidence is sought in a last-ditch attempt to reverse the verdict. In the second and third mishnahs, the criminal is made to confess and then stripped. The fourth mishnah has the criminal stoned and his body then hanged. The ﬁfth mishnah prohibits delay of burial and prescribes a separate burial for the criminal in gravesites set aside by the court. The sixth and ﬁnal mishnah deals with the grieving relatives of the criminal: Their mourning is limited and they are required to make a public reconciliation to the verdict of the court. This chapter of the Mishnah, in short, creates a ritual of execution, a ritual which has little basis in biblical law.30 What is it exactly that makes this chapter of Mishnah a “ritual”? What is a ritual? Deﬁnitions abound, from the founding anthropologists of the late nineteenth century to current theoreticians.31 Formality, ﬁxity, and repetition appear again and again in characterizations of ritual, yet these characteristics prove neither necessary nor sufﬁcient for the presence of ritual. No set of characteristics seems to be applicable to every ritual.32 Catherine Bell replaces the concept of “ritual” with “ritualization” in an effort to address this problem. She calls attention to ritual’s “strategies for differentiating itself—to various degrees and in various ways—from other ways of acting within any particular culture. At a basic level, ritualization is the production of this differentiation.”33 According to Bell, “what is ritual is always contingent, provisional, and deﬁned by difference.”34 In my investigation into the rabbinic ritual of criminal execution, I will apply Bell’s concept of ritualization, looking at the ways this ritual differentiates itself from profane activities, but also from other rabbinic rituals: “Ritual activity not only plays off contrasts with nonritualized behavior, it also plays off other forms and instances of ritual activity.”35 I will try to locate criminal execution in the larger complex of rabbinic practices, exploring how this ritual both derives meaning from and confers meaning upon other activities. At the same time, I will also modify Bell’s concept by pointing to the ways that this rabbinic ritual strategically refuses to differentiate itself. Ritualization is by no means a politically neutral strategy. Nineteenthcentury anthropologists already took note of the political implications of ritual. Durkheim’s approach—that ritual generates a “collective effervescence” by

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which individuals internalize the values of society36 —founded a tradition of looking at ritual as a politically conservative force.37 Through ritual, social consensus is built. Various important modiﬁcations were made to Durkheim’s thesis, but the fundamental argument about ritual’s conservative bias remained intact.38 This view of ritual seemed to change, both in scholarship and in the popular media, in the mid-1960s: “No longer the glue of society and guardian of the status quo, it [ritual] became subversive and creative.”39 In this vein, David Kertzer argues “against the common view that political ritual merely serves to bolster the status quo. . . . Ritual may be vital to reaction, but it is also the life blood of revolution.”40 In more recent approaches, ritual is seen not as a reinforcement of the political structure or as a revolution against it but as part of the political structure itself.41 Ritual does not affect politics; ritual is politics.42 And like all politics, ritual involves negotiation for power: “Rather than afﬁrming clear and dogmatic values to impress them directly into the minds of the participants, ritual actually constructs an argument, a set of tensions.”43 Catherine Bell coins a useful term for ritual’s strategy of argumentation: “redemptive hegemony.”44 She cobbles the term together from Kenelm Burridge’s notion of the “redemptive process” and Antonio Gramsci’s notion of “hegemony” in order to explain how and why ritual happens. Gramsci’s “hegemony” provides a description of power that sees power not only in the ofﬁces of state but also in houses and shops, that is, in the “whole social process,” or, according to David Laitin, in the “symbolic framework that reigns as common sense.” Gramsci’s concept of hegemony allows ritual to be an important locus of power. Burridge’s “redemptive process,” on the other hand, explains why people wish to act ritually. The redemptive process is that process by which people are afforded the “sense of a sphere of action.” Juxtaposing “redemptive” with “hegemony,” Bell applies the term to look at how ritual functions so as to give those who ritually act a sense of empowerment, but always limited power: “Although awkward, the term ‘redemptive hegemony’ denotes the way in which reality is experienced as a natural weave of constraint and possibility, the fabric of day-to-day dispositions and decisions experienced as a ﬁeld for strategic action.”45 According to this approach, ritual gives the actor some “sense of a sphere of action, however minimal.”46 In this chapter, I will use both Bell’s concept of “ritualization” and also her concept of “redemptive hegemony” in order to interpret the intricate patterns of movement and speech prescribed by the rabbinic ritual of execution.47 For Bell, the degree to which the actor has a sphere of action is what makes the ritual “redemptive,” and the degree to which his or her sphere is constricted is what makes the ritual “hegemonic.” Bell provides something of a formula for ﬁguring out the quotients of redemption and hegemony in any particular ritual. One must examine: 1. how ritualization empowers those who more or less control the rite 2. how their power is also limited and constrained

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In the ﬁrst section of the chapter, I will discuss numbers 1 and 2, that is, I will discuss the ritual from the perspective of those controlling the ritual, in this case, the rabbinic judges. To get at the ritual from that perspective, I will look at how the Rabbis mobilize space in the course of the ritual. I will show that the relationship between the court house and the “stoning house,” the site of execution, is central to this ritual, and that the criminal’s movement from one to the other serves to link these houses as well as to emphasize their distance. In this way, the rabbinic court proves its forcefulness at the same time that it manifests its reluctance to use force. I will then move on to numbers 3 and 4, that is, the perspective of those participating in the ritual. To get at their perspective, I will look at the ritual’s arguments of speech, the way the ritual activates speech and also silence. I will show that the criminal is given the opportunity to use speech in order to advocate for himself, but that silences are also created to work against him. Throughout this discussion we will have to keep in mind the rhetorical nature of the ritual, its existence as a text, and how that textuality might shape our understanding of the events it asks us to imagine. Finally, I will explore why all this matters. I will argue that this ritual is not just about criminals and courts but about the power of the Rabbis to redeem any Jew. For their power to seem redemptive, the Rabbis rely not just on the force of ritual but also on the force of law. While the ritual theorists illuminate the power politics of ritual, they do not help us speciﬁcally with the power politics of law, the genre so central to rabbinic activity. I will use legal theorist Robert Cover’s work to illuminate the relationship between law and violence that lies at the heart of this ritual.49 Cover begins his essay, “Violence and the Word,” with an obvious but obscured distinction between legal interpretation and other forms of interpretation: “Legal interpretation takes place in a ﬁeld of pain and death.”50 If this is not the case, that is, if pain and death are not at stake in law, then “legal interpretation . . . is something less (or more) than law.”51 Cover is responding here to the “law and literature” movement, in which legal scholars such as Ronald Dworkin and J. B. White emphasize the interpretive or hermeneutical dimensions of law.52 Whatever the similarities between law and literature, Cover claims that legal interpretation is decisively different from literary interpretation. According to Cover, law is by deﬁnition “law” only when it has “homicidal potential.”53 Judges are judges only in so far as their word bears this strong relationship to deed. Capital punishment holds a special place within a legal system because its deed—the deed of killing—is so severe and unrecallable: “The fact that capital punishment constitutes the most plain, the most deliberate, and the most thoughtful manifestation of legal interpretation as violence makes the imposition of the sentence an especially powerful test of the faith and commitment of the interpreters.”54 Using Cover’s deﬁnition of law—for law to be law, it must carry the promise of violence—we can spec-

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ulate that the rabbinic ritual of execution is responsible for turning rabbinic law into just that—law. In the process, this ritual of execution turns the Rabbis into authors and adjudicators of law. In this ritual of criminal execution, the Rabbis create themselves as rabbinic judges whose word has the power of deed. What if the Rabbis never imposed their death sentence, however, a possibility rabbinic historiography certainly supports?55 Cover discusses legal systems, particularly religious ones, in which the law bears “only an uncertain relation to the institutionally implemented deeds it authorizes.”56 If the Rabbis are the authors of such a legal system, then violence loses its fundamental role. Their law would be, in Cover’s words, something less than or more than law. Whether or not the Rabbis did implement their ritual of execution, it is worth noting that the Mishnah breathes not a word about any problems of practice. While baraitot (tannaitic texts not included in the Mishnah) found in the Palestinian and Babylonian Talmuds may claim that Jewish authorities had the power to execute withdrawn from them, the Mishnah itself does not ask us to see its ritual in this context of disempowerment. Moreover, we should pay careful attention to the language of the baraita: nitlu dinei nefashot—“criminal law was taken.” In other words, criminal jurisdiction is assumed to be a natural part of rabbinic law, but impracticable due to particular historical circumstances. Cover’s contrast between a secular legal system, where theory and practice are inextricably combined, and a dichotomous religious legal system, where religious law is preserved for a more perfect world, holds only when that dichotomy “is built into the law.”57 In the case of the Mishnah’s laws of criminal execution, this dichotomy between theory and practice may indeed historically exist, but it is not built into the law. In the Mishnah’s vision of law, legal interpretation does “take place in a ﬁeld of pain and death.” A judge’s word does have, at least theoretically, the power to kill. The Mishnah’s ritual of execution, whether or not it ever truly translated into deed, is about the palpable and potent relationship between rabbinic word and violent deed. Nevertheless, we must ultimately differentiate between word and deed, between imagined executions and real ones. Surely it would have been more challenging to the Rabbis to assert themselves through ﬁctionalized rituals than through live performed ones. And certainly the difference between rhetoric and reality would have been tangible to a potential capital criminal! Still, we should not underestimate the vividness the Mishnah may have had for its ancient audiences, even while keeping in mind the difference between actual executions and literary ones. As I suggested earlier, we might try to think of rabbinic execution as working similarly to the paintings of Calvary in Medieval Europe, which according to Merback made possible a mental pilgrimage in which believers “mystically witnessed” the acts of Christ. Merback suggests that altar panels and dioramas of the Passion “furnished a literalized space for the imagination’s deployment.”58 The Mishnah may have acted in an analogous way, furnishing a kind of imaginary space for its audience, a space in which rabbinic word and its violent deed were intimately linked. Along these lines, I will discuss the rabbinic ritual as we may have been intended to approach it, as a three-dimensional lived reality, even while its ontology is textual. As I move

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through the Mishnah text, I will imagine the execution it prescribes as one would imagine a ﬁlm while reading the script. And, as I suggested earlier in chapter 1, perhaps the rabbinic ritual of execution, by existing as rhetoric rather than performance, made a stronger argument for rabbinic authority than it ever could have otherwise.

Arguments of Space In Lev 24:14 and Num 15:34, God delivers to Moses a command for the community to stone the transgressor (in Leviticus, the blasphemer, and in Numbers, the violator of the Sabbath). In both cases, God directs the people to perform their stoning “outside the camp”: Take the blasphemer outside the camp; and let all who were within hearing lay their hands upon his head, and let the whole community stone him. (Lev 24:14) . . . . [T]he man shall be put to death: the whole community shall pelt him with stones outside the camp. (Num 15:35) The geographical location is one of the few details of execution the priestly writer provides, possibly out of concern for the pollution of the camp by the corpse-to-be. Several of Deuteronomy’s numerous treatments of execution, by contrast, do not mention a location outside the camp. Deuteronomy 13:10–12, referring to the execution of the enticer to idolatry, does not specify any location at all, nor does Deut 17:12 for the man who acts presumptuously, or Deut 19:19 for the false witness. Several texts of execution in Deuteronomy do mention execution sites, but not outside the camp: “You shall take the man or the woman who did that wicked thing out to the public place (el she’arekha, lit. “to your gates”), and you shall stone them, man or woman, to death (Deut 17:5).” This verse directs the transgressor to be taken to the public place, which in biblical times was located at the gates of the city.59 Deuteronomy 21:19–21, which commands the execution of the rebellious son, echoes the language of Deut 17:5: His father and mother shall take hold of him and bring him out to the elders of his town at the public place (el sha’ar, literally: to the gate) of his community. They shall say to the elders of his town, “This son of ours is disloyal and deﬁant; he does not heed us. He is a glutton and a drunkard.” Thereupon the men of his town shall stone him to death. . . . As in Deut 17, Deut 21 directs the Israelites to take the transgressor out to the gates of the city, but here the transgressor is taken there not only for the execution itself but also for a ceremonial announcement of the boy’s sins. Deuteronomy 22:21 directs the community to stone the betrothed nonvirgin at the

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door of her father’s house: “Then the girl shall be brought out to the entrance of her father’s house, and the men of her town shall stone her to death; for she did a shameful thing in Israel, committing fornication while under her father’s authority. . . .” In this case, the criminal is executed at the site associated with her sin, her father’s house, the locus of her father’s authority which the betrothed girl has violated. From among these texts, m. Sanh. 6 chooses the priestly author’s “outside the camp” to deﬁne the location of execution, ignoring the various Deuteronomic traditions of execution: “The stoning house was outside the court house, as it is said, ‘Take out the blasphemer’ (Lev 24:14).”60 Something strange happens, however, in m. Sanh. 6:1’s mobilization of Lev 24:14. While the verse quoted requires that the criminal be taken outside the camp, the Mishnah requires that the criminal be taken outside the court: How can the Mishnah use the verse as a prooftext for its directive?61 The Babylonian Talmud notices this difference between the law and the prooftext. The ﬁrst talmudic pericope on m. Sanh. 6:1 begins with that question: “And the stoning house was outside the court house? And not more?”62 According to the Mishnah’s quoted verse, the place of stoning is not only outside the court, but outside the whole camp. The Babylonian Talmud proposes an explanation for the Mishnah’s prescription: “And that which the Mishnah teaches, the following can be derived from it: if the court goes out and sits outside the three camps, then we should [still] make the stoning house outside the court in order that the court not appear to be murderers, or else, in order that there should be rescue.” According to the Talmud’s resolution of this discrepancy, the Mishnah is giving two prescriptions: (1) that the site of execution be outside the Israelite camps, and (2) that the site of execution be outside the court. Thus, if the court for some reason is moved outside the camps, the court must still be distant from the site of execution. Through this resolution, the Talmud shows the Mishnah both to be following the verse and to be injecting its own concerns for the court’s reputation and the criminal’s life. In the Talmud’s perspective, the Mishnah is driven to its law not only for hermeneutical reasons but for ideological ones as well. While the Talmud’s harmonization may not be convincing, its articulation of the Mishnah’s ideological concern—to deﬁne the proper relationship between the court and the execution—is.63 In its shift from “outside the camp” to “outside the court,” the Mishnah transforms the priestly ritual into a ritual of the court that is constructed around two poles: the beit din and the beit hasqilah—the house of judgment and the house of stoning, two parallel “houses.”64 The overarching structure of the Mishnah is a circle, from the court house to the stoning house and back to the court house. The ﬁrst Mishnah begins with the words nigmar ha-din (when the judgment has been concluded). The ritual begins with one foot in the court, so to speak, with the decision of the court and the language of the court. The procedures then move towards the stoning house for the execution, upon which the bulk of the Mishnah is focused. But with the last two mishnahs of the chapter, Mishnahs 5 and 6, the ritual returns to the court. Mishnah 5 prescribes a separate burial for the

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criminal, not in the gravesite of his fathers but in “gravesites prepared for the court” (in the printed edition, literally “houses of graves” parallel to the court “house” and stoning “house”).65 The criminal, now as a corpse, makes his way back to the court, which, in a ﬁnal act of appropriation, refuses to hand the body over to the family. Mishnah 6 stays at the court: “. . . and the relatives come and ask after the welfare of the judges and the welfare of the witnesses, that is to say, that we have nothing in our hearts against you, that you judged a judgment of truth.” The ritual closes with the relatives making a reconciliation with the court. The ritual thus begins and ends with the court house, after a long detour through the stoning house. Thus does the Mishnah emphasize the link between the court and the execution, between the judges and the violent deed they authorize. On the other hand, the Mishnah also clearly separates the two. The Mishnah ignores Deuteronomy because the Deuteronomic traditions of execution threaten too great a proximity between court house and stoning house. Deuteronomic deaths take place “within” rather than “without”: “your gates,” “the entrance of her father’s house.” While the Targumim and Midrash Tannaim read Deut 17:5 as a direction to take the transgressor to the gates to be judged, an alternative reading suggests that the criminal is to be executed at your gates.66 In this reading of Deuteronomy, the criminal is executed right in the town square, possibly very near to the place of judgment. By choosing the Leviticus verse as its prooftext, the Mishnah moves away from such a possibility, decoupling the court and the execution, making the ritual’s starting point the deﬁnitive separateness of these two sites. The Mishnah emphasizes the distance between the judges and the execution in a variety of ways. First, it makes a long and labored procession from the court house to the stoning house. The ﬁrst line of the Mishnah—“they take him out to stone him”—is deceptive, because there is a continual possibility of a return to the court, with the stoning never taking place. The rescue team is ready, at a moment’s notice, to bring the criminal back. Anyone may argue for the convicted man’s acquittal,67 and the Mishnah allows even the man himself to argue on his own behalf, “even four or ﬁve times” (by which the Mishnah means “even many times”). The Mishnah provides in the town crier yet one more opportunity for the criminal to be brought back to court, who announces: “And anyone who knows [an argument] for his innocence, let him come and argue for him.” The language of the ritual also conﬁrms its reluctance to move away from the court. Even when describing the execution once it has progressed outside the court, the Mishnah borrows language from inside the court, phrases it used in the previous chapter to legislate court procedure, such as: “I have [some point] to argue for his innocence,” “they bring him back,” “provided that there be substance in his words,” “if they found him innocent, they exonerated him,” “let him come and argue on his own behalf.” This ritual of execution is a ritual that does not seem to want to happen: Ritual failure, to borrow Clifford Geertz’s term, is built into the ritual itself.68 Not only does the ritual resist moving away from the court house, but it also is reluctant to move towards the stoning house. The second and third

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mishnahs begin by marking the criminal’s distance from the stoning house: “When he was about ten cubits’ distance from the stoning house, they say to him, ‘Confess’. . . . When he was four cubits’ distance from the stoning house, they took off his clothes.” It is not until Mishnah 4—“the stoning house was the height of two men”—that the criminal reaches the stoning house. The repetitive rhetoric of the preceding mishnahs contributes to the ritualized slowdown, creating a series of delays, heightening the suspense, now along literary lines, using its character as text to reinforce the drama. This ritual creates itself by its manifest reluctance to launch into action, to separate from its point of origin and to move towards its destination. In other words, this ritual of execution is characterized by its resistance to the strategies of differentiation that Bell’s model describes. The Mishnah’s ritual, we might say, has separation anxiety; in contrast to Bell’s model, it seems reluctant to differentiate itself. By building failure into their ritual, that is, by emphasizing the long distance between the court and the stoning house, the Rabbis show themselves to be reluctant authorities who are not intimately or eagerly involved in the implementation of their decisions. This distancing strategy is found frequently in rituals of execution (we will see it again in chapter 5 below in a narrative describing weeping Sages who cannot change a false guilty verdict). The separation between the court house and the stoning house, or, in other terms, between the executing authority and the executioner, becomes the hallmark of modern punishment, according to Foucault: “Those who carry out the penalty tend to become an autonomous sector; justice is relieved of responsibility for it by a bureaucratic concealment of the penalty itself.”69 We see a reaction against this in a nineteenth-century American hanging. Protesting the execution of Washington Goode in 1849, the Herald Tribune recommended that “Briggs [the Governor of Massachusetts] and his Council, or the deluded priests who are clamoring for the wretch’s blood, be compelled to perform the duties of gallows builders and hangmen.”70 Similarly, Robert Cover points out that in the contemporary United States “our judges do not ever kill the defendants themselves. They do not witness the execution. . . . The most elementary understanding of our social practice of violence ensures that a judge know that she herself cannot actually pull the switch.”71 In the Mishnah’s terms, “the stoning house is outside the court house.” This distancing effect permeates the Mishnah’s ritual of execution. The spatial axes of the ritual, and their midritual shift, contribute to this effect. The ﬁrst three mishnahs, which detail the departure from the court and the approach to the stoning house, take place along a horizontal axis. Mishnah 4’s execution suddenly shifts to a vertical axis: The primary movements are pushing and dropping. Both movements are “passive aggressive”: It is not the act itself that causes the death but rather the effects of the act.72 After the death act, the ritual continues along its vertical axis with the hanging of the body. The ritual thus presents a sequence of up-and-down motions surrounding the criminal’s death: The body is taken up for stoning; the body falls; the stone falls; the body is taken up for hanging; the body is taken down. David Kertzer characterizes certain judicial rituals in small-scale societies as “taking the

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highly charged power of determining guilt in interpersonal disputes away from individuals and assigning it to some extra-human agency.”73 By shifting from a horizontal to a vertical axis, the Sages may be symbolically implying that divine agency, not their own, lies behind the act of execution.74 As Meiselman concludes from his study of the rabbinic death penalty, “the human court becomes the agent for God’s punishment.”75 Another strategy of distancing emerges if we juxtapose the ritualized execution in m. Sanh. 6 and the deﬁnition of intentional homicide in m. Sanh. 9. The two types of killing—execution and murder—prove to be sharply differentiated by the Mishnah. Such differentiation can be found also in other contexts: In his study of American executions, Brian Smith describes how the ritualization of execution in the American system marks its difference from real-world violence, that is, from other forms of homicide.76 Austin Sarat argues, along very similar lines, that “the legal construction of state killing, while it appears to reveal empathy or identiﬁcation between the state and those it kills, works primarily to differentiate state killing from murder.”77 Underneath the state’s rituals of execution lies an anxiety about whether its violence is fundamentally different from the violence it redresses, whether capital punishment is just another version of the violent chaos it hopes to transcend.78 With this in mind, we turn to m. Sanh. 1, which makes a distinction between different types of homicidal actions: A homicide who strikes his neighbor with a stone or an iron tool, or holds him down (kavash alav) in the water or in the ﬁre, and he cannot get up from there and he dies—he (the homicide) is liable [for punishment for intentional homicide]. He pushes him (dehafo) in the water or in the ﬁre, and he can get up from there and he dies—he (the homicide) is exempt [from punishment for intentional homicide]. The Mishnah identiﬁes the intentional homicide as one who actively strikes someone with a heavy weapon such as a stone or iron, or alternatively someone who holds another person down in water or ﬁre. The unintentional homicide is someone who, by contrast, merely pushes another into water or ﬁre. In Mishnah 6, the witness-executioners seem to fall into the latter camp: They push the criminal (albeit from a height rather than into water or ﬁre) instead of striking him or holding him down. In fact, the same verb is used for unintentional homicide in chapter 9 that is used for the death act of the witnesses in chapter 6: dahaf, “push.” This conﬁrms our sense that the executioners of chapter 6 are not intentional agents of homicide. Mishnah Sanhedrin 9:1 distinguishes not only between types of actions but also between the effects of those actions. If the victim cannot rise, then the homicide is guilty of intentional murder, whereas if the victim can rise, even if he ultimately dies, the homicide is guilty only for unintentional homicide. Here, too, the witness-executioners of m. Sanh. 6 seem to ﬁt into the second category. Chapter 6 suggests, with each act of execution except the ﬁnal one by the community, that the criminal could theoretically survive the execution:

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“If he dies . . . if not . . .” Thus, the execution of chapter 6 should be classiﬁed, according to chapter 9, as unintentional or accidental homicide—in other words, not murder. Mishnah Sanhedrin 9:2 deals more explicitly with the homicide’s intention: He intended to strike him on his hips and there was not enough [force] in it to kill him on his hips, [except the strike] goes onto his heart and there is enough [force] to kill him on his heart, and he dies—he is exempt. He intended to strike him on his heart and there is enough [force] to kill him on his heart, [except the strike] goes onto his hips and there is not enough [force] to kill him on his hips, and he dies—he is exempt. . . . But he intended to strike on his hips and there is enough [force] to kill on his hips, [except the strike] goes onto his heart, and he dies— he is liable. . . . The Mishnah outlines three possibilities of homicide. In the ﬁrst case, the homicide does not intend to kill his victim but accidentally does so. This type of homicide is given exemption from punishment. In the second case, the homicide does mean to kill, but he makes a mistake, striking his victim on a less vulnerable part of the body than he had intended. If the one who is struck dies anyway, the homicide is exempt because his strike must not have been the direct cause of death. While in this second case the homicide does have homicidal intention, he cannot be held accountable because his attack cannot be directly linked to his victim’s death. We can deduce from these two cases that the Mishnah requires the fulﬁllment of two conditions for culpability: intention and clear causation.79 The Mishnah’s last case provides both, even though the homicide makes a mistake in this case as well. This mistake is different, however, because the homicide’s act can still be shown to be the direct cause of death. Chapter 9 provides a revealing backdrop to chapter 6. Like chapter 9, chapter 6 focuses attention on the hearts and hips of the person killed, repeating the phrases al libo, “on his heart,” and al motnav, “on his hips.” Chapter 9’s presumption that the heart is the more vulnerable location tells us that in chapter 6, when the ﬁrst executioner targets not the heart but the hips, he does not strictly “intend” to kill him. And though the killer of chapter 9’s last case does kill his victim by striking him on the hips, the ﬁrst executioner of chapter 6 merely pushes him on the hips. Moreover, the killer of chapter 9’s second case strikes his victim on the heart, while the second executioner of chapter 6 merely drops onto the heart. The Mishnah of chapter 6 seems to ape chapter 9, proving that execution is homicide, but the “good” kind, that is, unintentional or accidental. Through these parallels, the Mishnah does not only differentiate between execution and murder, the strategy described by Smith and Sarat, but also associates execution with accidental death. Bell, following Geertz, says that “ritual actually constructs an argument, a set of tensions.”80 Such is the case for the Mishnah’s ritual of execution, which

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is in many ways an argument against, an argument about what it is not. Execution is not effected by the agency of the court (or even the agency of anyone), and the ritual itself, with its various distances and contingencies and delays, underscores the notion that the court and its authorities—the Rabbis—are not the agents of this act of killing, which is itself not murder but accidental death. The agency behind execution is almost invisible—but not quite. So far I have emphasized the distance between the court house and the stoning house. But it is important to recognize their proximity as well. Robert Cover writes: “Judges are both separated from, and inextricably linked to, the acts they authorize.”81 This is crucial: The judge is not a legitimate judge if his words are not separate from the power of deed, but the judge is only a legitimate judge if his words have the power of deed. Though the execution cannot take place only with a judge, neither can the execution take place without a judge. In the Mishnah’s terms, if the court house is not linked to the stoning house, it is not a court house but simply a house of scholars or thinkers; if the court house is also a stoning house, then the judges themselves turn into criminals. The ritual’s geography helps construct this double-sided argument for authority. The basis of that authority’s legitimacy is, on one side, its distance from the stoning house, its slowing down of the ritual, the vertical axis of action, the differentiation of execution from intentional homicide. All these features point to an authority that is self-restrained, reluctant to exercise violence. But the basis of rabbinic authority’s legitimacy is at the same time its capacity to exercise violence. The circular structure of the ritual—from the court house to the stoning house and back to the court house—as well as the mutually deﬁned space of the court house and stoning house, points to an ever-present link between the court house and stoning house. Through this linkage, the word of the judges is given “homicidal potential,” to use Cover’s expression.82 The rabbinic ritual of execution argues for a rabbinic authority that is not authoritarian but is nevertheless authoritative.83 That authority becomes legitimate by its combination of assertion and self-restraint.84 This legitimacy is made possible in part by the criminal himself. It is his body that does the literal and symbolic work of this ritual. By moving from one house to the other, the criminal simultaneously displays both the distance between the stoning house and the court house as well as their proximity to each other. The criminal becomes the link between the two houses as he moves slowly from one to the other. The body of the criminal becomes the vessel through which the rabbinic court is born.

Arguments of Speech In its interpretation of the Mishnah, the Babylonian Talmud gives two reasons for the distance between the court house and the stoning house: (1) so that the court should not appear to be murderers, and (2) so that the criminal has time to be rescued. The Talmud presents these reasons as alternative to each other: Reason 1 or reason 2. But aren’t these two reasons really one? Doesn’t the court

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avoid seeming murderous precisely by making a rescue effort?85 I want to suggest that the distinction between these two reasons has to do with the way that power is being exercised. The ﬁrst reason—that the court should not appear to be murderers—relates to how the court constrains its own power, or at least how it wishes to appear as though it is constraining its own power (the ﬁrst two elements of Bell’s redemptive hegemony). The Talmud’s second reason deals not with the court’s self-restraint but with the criminal’s selfassertion: how the criminal can exercise power on his own behalf in the course of this ritual (redemptive hegemony’s third and fourth elements). I want now to look more carefully at the criminal and to try to hear his voice.86 The initial rescue sequence is essential to the redemptive hegemony of the ritual. There are three opportunities for acquitting arguments: First, an arguer may appear at the courthouse. Second, the criminal himself may argue for acquittal. And third, the town crier, as he proceeds with the criminal to the stoning house, calls for acquitters. By opening up a space for counterarguments, the court empowers the community and the criminal himself to halt the execution. We can see this in the ﬁrst-person speech the Mishnah attributes to the advocates for the criminal, including the criminal himself: “I have [some point] to argue.” Their voices erupt into the ritual. Moreover, their voices have authority. After the Mishnah gives the criminal his opportunity to argue, it continues: “[If] they found him innocent, they exonerated him.” The implication is that the criminal’s words are no mere ﬂourish: they have the power of deed, just like the Rabbis’ own words. In fact, the words of the criminal are identical to the words attributed to the judge by m. Sanh. 5:4: “I have [some point] to argue for his innocence.” The criminal has appropriated the very language of the authority to which he is subject. The Mishnah also gives great latitude to the criminal’s capacity to argue: “even four or ﬁve times” he may be brought back to the court by his own words.87 By the same token, the rhetoric of the Mishnah also restricts the criminal’s words: “And even if he [himself] says, ‘I have [some point] to argue for my own innocence,’ they bring him back, even four or ﬁve times, only provided that there be substance in his words.” Some other agent, we are forced to assume, must determine whether the criminal’s words are substantive.88 The criminal speaks for himself, but his speech must be authorized. Following the Mishnah’s rhetoric, “even (aﬁlu) four or ﬁve times” is followed by “as long as (u-vi-levad) there is substance”; the criminal’s argument is given and taken away by the same hand. And it is immediately evident that while the criminal’s words may act to save him, they also may not: “[If] they found him innocent, they exonerated him; but if not, he goes out to be stoned.” Efﬁcacy and inefﬁcacy are juxtaposed; the Mishnah’s rhetoric pulls in opposite directions. In the one word aﬁlu (even) can be found Bell’s four-way negotiation: “and even if he [himself] says, ‘I have [some point] to argue for my own innocence,’ they bring him back.” Taking Bell’s perspectives in order, we see that this “even if ” empowers the Rabbis by marginalizing that person who has transgressed their system of values—“even” he, even that person whom we have decided to punish. But that “even if ” also constrains rabbinic power at the same time—

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even he whom we have convicted can resist. In Bell’s third perspective, we see how the criminal is dominated through his marginalization—the “even he” separates and distances the criminal. Bell’s fourth perspective, however, alerts us to the criminal’s empowerment—“even he” is capable of saving himself through speech. The complex negotiations of the ritual hang on a single word. The same multivalence can be found also in the ﬁgure of the herald and the content of his announcement. He appears at the end of the rescue sequence: “and the herald (karoz)89 goes out before him, ‘Person So-and-So, the son of Person So-and-So, goes out to be stoned because he has committed such-and-such a transgression, and So-and-So and So-and-So are his witnesses. And anyone who knows [an argument] for his innocence, let him come and argue for him.’ ” As the ﬁnal step of the rescue effort, the herald represents one last effort to rally evidence for acquittal.90 The Mishnah does not spell out the consequences of this announcement as it did for the rescue team, however, suggesting that the herald’s announcement is not expected to change the fate of the convicted.91 One wonders exactly how practical a measure the herald’s procession is meant to be: In the Talmud’s commentary, the Amora Abaye feels it necessary to add information to the content of the herald’s message to make it more effective.92 Heralds of punishment found in other rabbinic texts, as well in prerabbinic Jewish and also Roman texts, play quite another role besides rescue.93 As one might expect, the herald’s purpose is to humiliate the criminal further as well as to make his punishment an object lesson for the public. Interpreting Num 27:14, in which God reminds Moses of his rebellion in the wilderness, the legal midrash collection, the Sifre, builds a narrative in which Moses asks God to write down his sin, in contrast to David who tries to hide his sin: Two leaders stood over Israel—one said, “Do not let him write my sin,” and the other said, “Let him write my sin.” David said, “Do not let him write my sin,” as it is said, “Of David. A Maskil. Happy is he whose transgression is forgiven, whose sin is covered over” (Ps. 32:1). Moses said, “Let him write my sin,” as it is said, “For, in the wilderness of Zin, when the community was contentious, you disobeyed My command to uphold My sanctity” (Num 27:14). A parable: to what is the matter similar? To two women who were given the punishment of lashes in the court. One is given lashes because she acted disgracefully (qilqelah) and one is given lashes because she stole94 the unripe ﬁgs of the Sabbatical year. The one who stole the ﬁgs says, “I ask of you, announce my sin so that the people standing will not think to say—just as that one acted disgracefully, so this one acted disgracefully.” They hung the ﬁgs on her neck and the herald (karoz) went out announcing before her: “Because of the ﬁgs, this one is given lashes.” Rabbi Elazar Ha-Moda’i says: Come and see how beloved are the righteous before the Holy One, Blessed Be He, for in every place

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that mentions their deaths, there it mentions their sins. And why all this? So that there will not be to the creatures of the world a cause for gossip, to say: they secretly had in them disgraceful deeds (ma’asim mequlqalim) and that is why they died. Thus in four places it mentions the deaths of the sons of Aaron and in each place it mentions their deaths; it mentions their sins, to tell you that they had in them only this sin. And behold the matter is an a fortiori argument: just as God protects the righteous at a time of anger, how much the more so at a time of good will, as it is said, “Thus said the Lord: In an hour of favor I answer you, and on a day of salvation I help you.” (Isa 49:8)95 The midrash creates a parable in order to articulate and explore two different approaches to one’s personal history of sin.96 Moses and David are compared to two women who are punished for sin, one for a disgraceful, probably sexual sin and the other for a more trivial sin, i.e., taking unripe ﬁgs of the sabbatical year.97 This latter sinner asks for a public announcement of her sin so as to differentiate herself from the worse sinner with whom she is coupled. The ﬁgs are hung around her neck and a herald is called upon to announce her sin as she proceeds to her punishment. In this story, the herald’s announcement is a mark of shame, like the ﬁgs around her neck, publicizing the sin to the entire community.98 Pre-rabbinic Jewish literature portrays a similar kind of procession whose purpose is to publicly shame a person as he or she proceeds to punishment. In fact, the public procession is part and parcel of that punishment. Second Maccabees 4:30–38 recounts Antiochus’s execution of Andronicus, his deputy who had unjustly murdered the high priest Onias: “Antiochus . . . had Andronicus stripped of his purple robe, and led, with rent under-garments, all round the city to the very spot where he had committed the outrage upon Onias; there he had the murderer dispatched, the Lord rendering to him the punishment he had deserved.”99 In this execution, the offender is humiliated by having to march in the streets in his torn underwear. Second Maccabees 6: 10 is similar to the Sifre text above in that those persons punished are forced to publicly bear the object of their sin as they proceed toward their punishment: “Two women, for example, were brought up for having circumcised their children; they were paraded round the city, with their babies hanging at their breasts, and then ﬂung from the top of the wall.”100 According to Bauman, the publicizing of execution through such devices became more and more common as the Roman Empire grew: In the time of Domitian, punishment was made into a message of moral reform.101 Bauman writes: “The idea of making the propagation of a message one of the purposes of punishment was not entirely unknown to the Greeks, but its full exploitation had to wait for the Romans.”102 But Sifre Numbers works somewhat differently. The herald publicizes the crime and humiliates the sinner like in 2 Maccabees, but in the Sifre the humiliation is ultimately turned towards the sinner’s advantage. The woman who

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ate the ﬁgs requests a herald—she wants the public shaming so that the community will know exactly what she did and did not do, and they will not imagine worse. The herald’s announcement of her sin, while it shames her, also works to preserve her honor. The sinning woman ultimately earns a place next to Moses, with whom the parable compares her. The paradoxical function of the herald in this parable provides a helpful parallel for the Mishnah. The public announcement that one would ordinarily expect to humiliate the criminal in the case of the Mishnah’s herald is turned into an attempt to rescue him: “And anyone who knows [an argument] for his innocence, let him come and argue for him.” Almost the identical announcement is made for the special case of the rebellious elder in m. Sanh. 11:4. According to that text, Rabbi Judah requires that messengers be sent out to announce the execution: “. . . they kill him immediately, and they write and send messengers to all places: ‘Person So-and-So son of Person So-and-So was given the death penalty in the court.’ ”103 Like in a standard execution, the name of the person executed is publicized, but in this instance, the ﬁnal clause—“let him come and argue for him”—the clause that in m. Sanh. 6 turns the announcement into a call for acquittal—is absent. Chapter 6, playing off chapter 11, transforms a mechanism of shame into a mechanism of rescue. As in Sifre Numbers, the Mishnah’s herald has a double face, both as oppressor and as advocate. To return to Bell’s formulation, the ritual empowers both those who control the rite and those who are controlled by it. What if the advocacy efforts fail and the ritual continues, however? How does the fact of the rescue sequence change the balance of power once the ritual resumes? Richard Evans, in his study of the history of capital punishment in Germany, describes a practice in early modern German executions of the crowd shouting its assent to the execution: In some places it [the opening formula of the court] was accompanied by a ritual exchange with the crowd known as the ‘murder-cry’ or ‘hue-and-cry’ (Mord-Geschrei or Zeter-Geschrei) in which the attendant populace gave its assent to this procedure by shouting loudly at the appropriate moments. In Bavaria, the assembled spectators shouted ‘Io!’ three times at the ofﬁciating judge’s bidding.104 The rescue sequence of the Mishnah’s ritual can be understood to serve a similar function of assent. If the crowd or the criminal fails to argue for the criminal’s innocence, then they implicitly appear to be arguing for his guilt. If opportunity for argument is granted and none is made, then it can be assumed that none exists. As the execution unfolds, those performing it and witnessing it can then be sure that they do so with the afﬁrmation of the court, the community, and even the criminal himself. If some protest emerges later, the authorities can conﬁdently say: We gave you the chance! The rescue effort, in retrospect, convinces everyone that they have agreed to the events that follow. Robert Cover describes the stay of execution in the contemporary United States in similar terms: “It is the stay, the drama of the possibility of the stay, that renders the execution constitutional violence, that makes the deed an act of

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interpretation.”105 Through its granting of opportunities for argument, the Mishnah makes its own argument for rabbinic justice. The voice of advocacy, on the criminal’s part as well as the community’s, replaces the condemning voice of the judge with which this ritual begins—“when the judgment has been concluded.” But these new voices, at the same time, threaten to go silent. When this happens, then the execution will resume with greater conﬁdence. The stay of execution serves, in the end, to embolden the executioners: “The stay of execution, the special line open, permits, or more accurately, requires the inference to be drawn from the failure of the stay of execution.”106 The confession marks the criminal’s next opportunity to advocate for himself. In the Mishnah’s confession, the criminal is guaranteed a place in the world to come. The criminal’s death seems to secure his atonement, but it is left ambiguous whether the confession also plays a central role.107 (The separate burial prescribed at the end of the chapter suggests, on the other hand, that neither may be entirely effective!) According to Tosefta Yom Ha-Kippurim 5:8, death is the most effective of four stages of atonement.108 The Mishnah’s own confession formula conﬁrms this—“may my death be atonement for all my sins”—suggesting that the criminal’s death effects atonement, which in turn earns him a place in the world to come. But this same Mishnah begins with the principle that “everyone who confesses has a portion in the world to come,” suggesting that confession is the key ingredient.109 Death may indeed effect atonement,110 but according to the ritual it is the dying man’s acknowledgment in speech that allows that death to do its work. Through his speech, the criminal seems to assure himself life in the world to come. The language of the Mishnah shows that the agency of the speech act is complicated, however. Whereas Mishnah 1 showcases the voice of the criminal directly, in Mishnah 2 his voice is never heard; instead, anonymous administrators tell him to speak: “They say to him, ‘Confess!’ ” The criminal’s silence is even starker in the case of the criminal “who does not know to confess.” Is this someone who has forgotten his sins, as the Tiferet Yisra’el commentary on the Mishnah (written by Israel ben Gedaliah Lipschutz, 1782–1860) and Rashash on the Talmud (Samuel ben Joseph Strashun, 1794–1872) suggest?111 Is it someone so inarticulate or uneducated that he cannot announce his sins? Is he perhaps so disoriented by the experience of execution that he cannot think coherently?112 Perhaps, alternatively, the authors of this Mishnah have an elaborate formula for confession which only a select elite would be able to pronounce. If so, it would not be surprising that a particular convicted criminal would not know how to confess. Whatever the case—and the Mishnah does not explain the meaning of its phrase—the Mishnah presents a criminal who has become a confessional puppet, ventriloquizing the words recommended by the Rabbis. This puppetry presents a peculiar picture of confession—the administrators of the ritual appear to be more invested in the confession than the confessor himself is. One would expect, to the contrary, that the confession would be the criminal’s prerogative rather than his obligation. It is his share in the world to come that is on the line. Interpreters of execution ritual—Louis Masur on American executions;

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Philip Smith and A. J. Sharpe on English executions; Richard Evans on German executions; Spierenburg and Merback, following in Foucault’s footsteps, on European executions—help us to understand the Rabbis’ concern with the confession. These scholars pay a great deal of attention to the criminal’s ﬁnal words, showing that thse words often determine how the execution is received by the public, in many cases becoming (more and less accurately transcribed) the text of circulating pamphlets and chap books.113 Along these lines, the Rabbis’ injunction to the criminal to confess is a way of showing that they care that the criminal has his portion in the world to come. The Rabbis display their concern for the fate of their devotees, even those who have openly rejected their rules. Through the confession sequence, the Rabbis prove to be not just mere facilitators who encourage the criminal to save himself, but his saviors—it is their punishment, and their command to confess, that catapults the criminal into the world to come. Does death or confession bring atonement? The answer is both. The beginning of the Mishnah emphasizes the criminal’s own ability to achieve atonement through confession. The latter part of the Mishnah emphasizes the Rabbis’ authority—it is the death they impose, and the command to confess that they issue, that brings atonement. By formulating the confession in the particular way they do—“may my death be an atonement for all my sins,” the Rabbis transform the execution from a punishment they level into a redemption they grant. But the Mishnah’s confession might still have another purpose. In his confession before execution, Robert Devereaux, second earl of Sussex who had rebelled against the queen in 1601, declared: “In humility and obedience I prostrate myself to my deserved punishment.”114 Small-time criminals as well as traitors like Devereaux were described by popular accounts of execution in England as reconciled to their unhappy fate. It was recorded of Francis Robinson, executed in 1618, that he went to his death “like a lambe going to the slaughter . . . prepared to suffer the same willingly, patiently, and joyfully: and our conﬁdence is such of him, that he is received into the fold of that most blessed heavenly ﬂocke.”115 In seventeenth-century England, according to Sharpe, one of the primary functions of the confession before execution was to show the condemned person’s willingness to die. Similarly, in early modern Amsterdam, Spierenburg explains, the criminal “had to be convinced of the righteousness of his punishment. Those whipped and branded in Amsterdam were expected, when returning to the town hall, to kneel in front of the judges and thank them for their mildness.”116 Carlin Barton describes a similar phenomenon in the world of the Roman gladiators: The volunteer gladiator would take an oath, the sacramentum gladiatorium, in which he swore to “endure being burned, bound, beaten, and slain by the sword.”117 In Barton’s analysis, “By this awful and compulsory vow the condemned emphasized and legitimated his extraordinary position; it became contractual.” So, too, the rabbinically commanded confession manifests the criminal’s participation in his own death.118 Through the confession, the Rabbis transform the criminal from a “victim” into a cooperative volunteer seeking his portion in the world to come.

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In contrast to the standard confession, which binds the criminal’s claim to a portion in the world to come with the legitimacy of the court’s punishment, Rabbi Judah allows the criminal to claim the former without conceding the latter. In Rabbi Judah’s special confession, the criminal rejects the justice of his punishment, denying that he has committed the sin for which he is to be killed: “May my death be atonement for all my sins except for this sin.” The conﬂict between the criminal and the court ﬁnds its boldest articulation in this confession-cum-exception. Until now, the criminal and the court were able to appear to be on the same side; with Rabbi Judah’s special confession, the spell of the court is broken by the interrupting voice of the criminal. And the Mishnah once again allows the criminal’s voice to be heard directly: Instead of the command emor (say!) of the anonymous Mishnah, Rabbi Judah uses omer (he says) to introduce the criminal’s direct speech. In Rabbi Judah’s confession, the criminal literally and metaphorically speaks for himself, actively resisting his punishment and explicitly calling the court’s justice into question. Catherine Bell, drawing upon Althusser and Foucault, describes the intrinsic blindness of practice, its misrecognition of what it does.119 Until this moment, the court has not only advocated for the criminal but has also allowed the criminal to advocate for himself. This has allowed the ritual to be largely blind to the adversarial relationship between the two parties. With Rabbi Judah’s confessor, however, this blindness recedes and the court’s legitimacy is suddenly cast into doubt. The underlying conﬂict between the court and the criminal now comes to the surface, and the court’s authority threatens to slide into authoritarianism. The ritual is on the brink of real failure. In this moment of crisis, the court clamps down. The Sages respond to Rabbi Judah: “If so, every person will say this in order to clear themselves.” For the remainder of the ritual, little hint is given that the court could have erred. Instead, the Mishnah immediately describes the undressing of the criminal; in stripping him, the administrators of the ritual desocialize and dehumanize him, preparing him for the act of execution.120 The confession sequence, at its close, marks a shift in the balance of power away from the criminal and towards the Rabbis and the court. With this shift, silence reigns, and there are no more prescribed speeches until the criminal is dead and buried. This ﬁnal speech act is performed by the relatives. The relatives of the criminal—those most closely associated with him and perhaps even acting as a substitute for him now that he is gone—must afﬁrm the judgment of the court. By doing so, the relatives also assure their own acceptance by society, which might otherwise hold them indirectly responsible for the crime. If the confession with an exception is the climax of the negotiations between the criminal and the court, then the relatives’ words are the anti-climax. In fact, the relatives’ words—“you judged a judgment of truth”—turn Rabbi Judah’s special confession on its head. All doubts about the rightness of the court have been put to rest, and what remains is a court whose justice is hailed by all. The tension between the criminal and the court has been defused. Or so it would seem. But we must read the ritual not only for what might

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happen but also for what might not. What if the relatives of the criminal did not greet the judges and the witnesses? Would their silence threaten the court’s authority? Might we even imagine the relatives’ protesting the court’s decision and action? The relatives’ speech implies the possibility of silence, and this silence threatens to call the authority of the court into question. The fact of this speech—the need for it—is simply the last link in the chain of negotiations that runs through this ritual. As Bruce Lincoln writes, “authority depends on nothing so much as the trust of the audience, or the audience’s strategic willingness to act as if it had such trust.”121 The relatives’ reconciliation at the end of the ritual is the Rabbis’ claim that they have won this trust, even as they recognize its fragility.

The Criminal and the Crowd If this ritual about rabbinic authority is at all generalizable, then where is the community throughout this ritual? We certainly can assume some audience to the text, though the size and nature of this audience is debated.122 But where is the audience within the text—the audience to the execution, that is? The Mishnah legislates that the community should complete the execution if the witnesses fail, but it does not explicitly invite them to be present. The Mishnah also hints at a public presence when it sends forth a herald and when it requires that the man be hanged “facing the people and the woman facing the tree,” but it never directly describes the public’s proximity. If this ritual provides redemptive hegemony, as I have so far argued, then we might ask: Who exactly is being redeemed? In an analogous penal ritual, that of the Sotah (the wayward woman described in Num 5), the Mishnah gives explicit directions about the crowd’s attendance:123 And anyone who wishes to see may come to see, except for her slaves and handmaidens, since she is made haughty (literally: her heart gets large) by them. And all the women are allowed to see her, as it is said, “and all the women shall take warning not to imitate your wantonness.” (Ezek 23:48)124 Here the crowd, with certain exceptions, is encouraged to attend the chastisement of the wayward woman. Despite the contrast, I would suggest that the community is present also in criminal execution, but indirectly: The criminal himself acts as a stand-in for the community. When the criminal is redeemed, so, by extension, is the community. Certain features of this ritual lead me to this conclusion. Twice in m. Sanh. 6 there appear statements that seem to be tangential to the execution, what we might call “extrapolation statements.” The ﬁrst occurs in Mishnah 2 with respect to confessions before dying: When he was about ten cubits’ distance from the stoning house, they say to him: “Confess.” For it is the manner of those about to be

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put to death to confess, for everyone who confesses has a portion in the world to come. The criminal’s confession is subsumed into a larger principle: All confession brings a portion in the world to come. In fact, nowhere else in the corpus of the Mishnah is confession before death discussed—this text is the exclusive source for it. The second extrapolation statement emerges later in the ritual, once the criminal has been killed. Mishnah 4 requires that the hanging body be taken down immediately: “And they loosen him immediately; and if they delay, they transgress a negative commandment regarding him, as it is said, ‘You must not let his corpse remain on the stake overnight, but must bury him the same day. For an impaled body is an affront to God’ (Deut 21:23).” After a midrashic interlude,125 Mishnah 5 resumes: And not only this but everyone that delays his dead [from burial] transgresses a negative commandment with respect to him. But if one delayed it for his honor, to bring him a cofﬁn and shrouds, one does not transgress regarding him. In this Mishnah, the rules for the criminal’s body are declared to be one instantiation of a universal rule of immediate burial.126 Through the extrapolation statement, the criminal’s body is literally assimilated to every “body”—their treatment must be the same. Like the extrapolation statement with respect to confession, this statement becomes the legal foundation not only for criminal burial but also for standard burial.127 In both instances, the extrapolation statement creates a moment when the rest of the world ﬁlters into the ritual, and the criminal becomes “Everyman.” This identiﬁcation between the condemned man and his community is a frequent feature of criminal executions. In his theory of the origins of religion, Rene´ Girard argues that the practice of animal sacriﬁce developed in order to channel violent impulses and to substitute for an originary act of collective murder.128 According to Girard, this substitution requires that the sacriﬁcial victim appear similar to the community for which it is sacriﬁced. Applying Girard’s theories to modern American executions, James McBride writes that the condemned man is given drug treatment for mental illness in order to render him sane for execution so that he can be “recognized for sharing the attributes of all those who are capable of obeying social norms.”129 Similarly, Carlin Barton describes the identiﬁcation between audience and the gladiator in Ancient Rome, where “women as well as men played at being gladiators and venatores (wild-beast hunters), both in and out of the arena.”130 Along the same lines, Richard Evans suggests that the German executions of the nineteenth century acted as a “kind of exemplary death,”131 and Wendy Lesser attributes the popularity of murder novels and movies, such as The Talented Mr. Ripley, The Silence of the Lambs, or Dostoevsky’s Crime and Punishment, to an identiﬁcation of the audience not only with the victim of the crime, but also with the perpetrator: “The Silence of the Lambs plays on our fears of people like

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Hannibal Lecter, but it also plays on our even deeper sympathies with them. . . .”132 But the community’s identiﬁcation with the criminal is partial. While others may see themselves in the criminal, they also do not see themselves in him—they have not transgressed the basic tenets of their moral world. The criminal is everyone, but he is also unique, someone who has placed himself outside the community. According to Girard’s scapegoat hypothesis, the sacriﬁcial offering must appear continuous with the community, but also discontinuous, or his death cannot be justiﬁed. Brian Smith, in his interpretation of American capital punishment as human sacriﬁce, shows that criminals executed by the American justice system represent a marginal social category, disproportionately “non-white, single, young, poor, and relatively uneducated, and in some cases seriously mentally disturbed and/or retarded. The denizens on death row are, in a word, marginal to the social, racial, and economic ‘mainstream’—liminal ﬁgures who are both ‘us’ and ‘not us.’ ”133 According to Lesser, what makes murder movies so pleasurable but also so anxiety-producing is precisely this tension between identiﬁcation and detachment.134 This paradox, as it manifests itself within the rabbinic ritual, emerges more clearly when criminal execution is compared with the normal death practices dictated by the Mishnah. In a normal death, the relatives of the deceased tear their clothes and uncover their shoulders (m. Mo’ed Qat. 3:7); in the execution of a criminal it is the criminal himself who is stripped of clothes. The criminal seems to be mourning himself before he dies—and mourning himself by force, since his stripping is performed by others. In a normal death, the Mishnah calls for a procession from the site of death to the grave,135 while in the ritual of execution the live criminal proceeds to the place that will be his site of death. In a normal death the place of burial must be distant from the place of settlement (m. B. Bat. 2:9), while in the case of the criminal, his place of death must be distant from the court. Finally, m. Sanh. 6 explicitly compares its ritual to that of normal death several times, as we have seen. Ultimately, both rituals function to transport the dead man.136 A funeral transports the dead man from this world to the next, while in the ritual of execution, the dead man is transported before he is dead: The execution enacts a funeral for a living man. Execution is a funeral that started too soon, making its object “dead” before the execution.137 Richard Evans describes a similar phenomenon in early modern Germany: The German rites of execution shared features with but also differed from the normal rites of death. Funerals, like executions, were elaborate public events, involving the participation of all levels of the community. Common to both rituals were, among other things, a speech on the part of the dying man and a meal associated with him. But an execution, Evans suggests, should be seen as the reverse of normal death rituals: “While the normal dying person was surrounded by friends and well-wishers, concerned to keep his or her social body alive within the community through acts of remembrance and reconciliation, the malefactor’s end was witnessed by a community whose main purpose was rejection, expulsion, and the erasure of memory and belonging.”138

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Like these German executions, mishnaic execution both mimics and reverses normal funerals. The tension between identiﬁcation on one hand and dissociation on the other can be seen also in the Mishnah’s reading of the story of Akhan found in the book of Joshua. In chapter 6, God promises Joshua that he will deliver Jericho into the hands of the Israelites. Before the climactic moment of conquest, Joshua prohibits the people from taking any booty from the city: The city and everything in it are to be proscribed for the Lord . . . you must beware of that which is proscribed, or else you will be proscribed: if you take anything from that which is proscribed, you will cause the camp of Israel to be proscribed; you will bring calamity upon it. All silver and gold and objects of copper and iron are consecrated to the Lord; they must go into the treasury of the Lord. (Josh 6:17–19) Akhan son of Carmi violates this proscription. In a series of dramatic ﬁngerpointings, Akhan is gradually singled out from among the Israelite people, his tribe, his clan, and ﬁnally his ancestral house (7:16–18). Joshua asks Akhan to confess, which he does (7:19–21): Then Joshua said to Akhan, “My son, pay honor to the Lord, the God of Israel, and make confession to Him. Tell me what you have done; do not hold anything back from me.” Akhan answered Joshua, “It is true, I have sinned against the Lord, the God of Israel. This is what I did: I saw among the spoil a ﬁne Shinar mantle, two hundred shekels of silver, and a wedge of gold weighing ﬁfty shekels, and I coveted them and took them. They are buried in the ground in my tent, with the silver under it.” The Mishnah uses this passage as the model for confession before execution. The biblical story closes with the punishment of Akhan and his sons and daughters, and the burning of all their possessions:139 And Joshua said: “What calamity you have brought upon us (akhartanu)! The Lord will bring calamity upon you (yakorkha) this day.” And all Israel pelted him with stones. They put them to the ﬁre and stoned them. They raised a huge mound of stones over him, which is still there (ad ha-yom ha-zeh). Then the anger of the Lord subsided. That is why that place was named the Valley of Akhor—as is still the case (ad ha-yom ha-zeh) (7:25–26). Through its playful rhetoric, the story illustrates the principle of measure-formeasure punishment and emphasizes the everlasting notoriety of Akhan. Just as Akhan brought calamity upon the Israelites, so does God bring calamity upon him: Joshua repeats the same root, a-kh-r, which in turn almost replicates Akhan’s own name. Indeed, 1 Chron 2:7 calls Akhan “Akhar,” taking up this word play and associating his name with his actions: “The sons of Carmi:

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Akhar, the troubler of Israel (okher yisra’el), who committed a trespass against the proscribed thing.” Akhan’s measure-for-measure punishment is then forever commemorated by a valley whose name has all these rolled into it: The calamity Akhan caused, the calamity visited upon him as punishment, and the man himself.140 Akhan’s name becomes synonymous with sin and punishment. The story makes of Akhan a symbol to last for all time, twice repeating the phrase, ad ha-yom ha-zeh, “until this day.” The sins of Akhan become a lesson about the exacting and exact punishment that an Israelite will suffer if he or she transgresses God’s words. Akhan’s appearance in the Mishnah’s ritual of execution marks a dramatic hermeneutical upheaval. While the biblical narrative makes Akhan into a metaphor for everlasting sin and punishment, for the Rabbis, in m. Sanh. 6:2, the character of Akhan comes to stand for the ultimate redemption: And from where [do we know] that his confession atoned for him? As it is said, “And Joshua said: ‘What calamity you have brought upon us! The Lord will bring calamity upon you this day.’ ” (Josh 7: 25)—“this day” you have calamity brought upon you; you do not have calamity brought upon you for the world to come. This reading strategy, dividing the world into this one and the next, is found also later in m. Sanh. 10. The chapter gives example after example of those Israelites who do not receive a portion in the world to come. For each biblical ﬁgure who is said not to receive a portion in the world to come, the Mishnah ﬁnds evidence in the biblical narrative. One by one, each character is hermeneutically delivered his doom: The generation of the ﬂood does not have a portion in the world to come, and they do not stand in judgment [on the ﬁnal Day of Judgment], as it is said: “My breath shall not abide in man forever” (Gen 6:3)—neither judgment nor breath. The generation of the split (Babel) do not have a portion in the world to come, as it is said: “Thus the Lord scattered them from there over the face of the whole earth” (Gen 11:8). “Thus the Lord scattered them”—in this world. “And from there the Lord scattered them” (Gen 11:9)—for the next world. The people of Sodom do not have a portion in the world to come, as it is said: “Now the inhabitants of Sodom were very wicked sinners against the Lord” (Gen 13:13). “Very”—in this world. “Wicked”—for the next world. . . . The spies do not have a portion in the world to come, as it is said: “Those who spread such calumnies about the land died of plague, by the will of the Lord” (Num 14:37). “Died”—in this world. “Of plague”—for the next world. Chapter 6 offers the same dichotomy between this world and the next that is found in chapter 10, except in reverse. While chapter 10 reads each biblical

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narrative so that the the character’s portion in the world to come is always negatively affected by his wickedness in this world (the generation of the ﬂood, the generation of Babel, the people of Sodom, etc. all suffer punishment not only in this world but also in the next one), chapter 6 reads the Akhan narrative such that it excludes any ill effects on Akhan’s share in the world to come. While chapter 10 shows that the Sages can hermeneutically take away a sinner’s portion in the world to come, chapter 6 shows that the mishnaic Sages can also grant such a portion. But chapter 10, even as it differs from chapter 6, also illuminates it. The rabbinic Akhan holds within him the biblical Akhan; the rabbinic Akhan is merely the biblical Akhan with a reprieve. The paradox of the extrapolation statements (us/not us) can be resolved if the Rabbis’ Akhan is read as a palimpsest with the biblical version appearing behind the rabbinic one. Akhan is both notorious criminal and redeemed sinner. Akhan, the Bible’s paradigm for sin and punishment, succeeds in earning a portion in the world to come through rabbinic interpretive efforts. Surely then, by the logic of a fortiori, anyone can succeed in earning such a portion (that is, if he has rabbinic support behind him).141 It becomes clear why, for this ritual, the criminal must be both familiar and strange. If he is only familiar, then our redemption is not assured because we may have sinned worse. If he is only strange, then he cannot be redeemed at all. What emerges is that the ritual of execution is not only about the sin and punishment of the criminal but about the sin and punishment of everyone. The Mishnah brings its a fortiori logic to the surface in Mishnah 5, where God’s compassion for the sinner is made explicit: Rabbi Meir said: When a person suffers, Shekhinah, what does the tongue say? As it were, my head is heavy; my arm is heavy. If thus the Maqom suffers over the blood of the wicked that is spilled, how much more so over the blood of the righteous! We can see the ritual’s extrapolating strategies also in Mishnah 2, in the substance of the criminal’s confession, which includes not just the sin for which he is executed but all of his sins: “May my death be an atonement for all my sins.” This global formula of confession is not intimately linked with capital crime; such a formula would work for anyone.142 And according to m. Avot 2: 10, everyone has sins to account for before death: “Repent one day before your death.”143 When the criminal earns his “good death,” then his audience can feel that much more conﬁdent that they will too. As Merback writes of medieval Christian audiences to execution: “When, in their own eyes, a community had ‘paved the way to eternal life for a soul seemingly beyond redemption,’ the event may well have convinced spectators that redemption was possible for them as well.”144 Through these extrapolating strategies, the Mishnah’s ritual invites the audience to step into the shoes of the criminal. But the Mishnah allows the audience, at the same time, to stay themselves: They are the “righteous,” not the “wicked,” as Rabbi Meir in Mishnah 5 divides the world. “All my sins,” for the audience, does not include a sin worthy of the death penalty.

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Louis Masur, Richard Evans, A. J. Sharpe, and Esther Cohen all connect the crowd with the criminal. The American ministers of Masur’s accounts of public execution make this connection explicit: “It is possible, yea probable, that there are some in this audience who are even more guilty than the prisoner; but their crimes are not yet detected . . . all hope to escape the hand of justice. But this hope is in vain; whether your crimes are known and punished on earth, or not: God knows every secret. . . . The day of Judgment will undeceive you.”145 One minister told the crowd, with greater brevity: “You are all sinners.”146 Once this equation is made between the criminal’s sin and the crowd’s, then the criminal’s redemption becomes a redemption for everyone. The crowd is reassured: “if such an unfortunate wretch can thus be saved . . . so can a sinner like me.”147 How is this redemption effected? Masur gives the account of one criminal who “[expressed his] thanks to all the ministers of this Town, who haved favored me with their assistance, in opening my blind Eyes, as to a Future State.”148 Masur suggests that the “execution day presented ministers with an opportunity to rekindle their reputations and re-establish their inﬂuence.” The minister showed the path to future life, or sometimes, as this criminal says, alerted their ﬂock to the very existence of a future life. In the case of mishnaic execution, the Rabbis are the ministers. As long as the Rabbis preside, as long as the Mishnah’s rituals are carefully followed, death brings atonement and a portion in the world to come.

Conclusions What, in the end, is the rabbinic ritual of criminal execution about? Is it a ritual about the rabbinic court, or about transgressors, or about Jews in general, or about the authors of the Mishnah? Or, as I will argue in the next chapter, is it about resistance to Roman power? All of the above: “Symbols and symbolic action not only fail to communicate clear and shared understandings, but the obvious ambiguity or overdetermination of much religious symbolism may even be integral to its efﬁcacy.”149 Moreover, the meanings of the ritual are largely contradictory. Depending on the angle from which you look at it— whether you see the distance from the court or the proximity to the stoning house, whether you hear the speech or the silences, whether you identify with or dissociate from the criminal—you get a different meaning, and these meanings do not always overlap. One cannot see the ritual from every perspective at once. The rescue sequence from one angle looks like the community’s interference, while from another angle it looks like their consent. The criminal’s confession can look like either self-redemption or self-destruction. The act of execution itself looks either like an act of the court or like an act of God. When we try to read and imagine this ritual, we are met with one paradox after another: The criminal is dehumanized and humiliated but also redeemed; the Rabbis exercise their power but also restrain their power. Which one is it? How do we synthesize these meanings into a coherent interpretation?

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A drive to synthesis is precisely the inclination we must avoid, for then we have betrayed the ritual’s own reluctance to synthesize. The ambiguities and contradictions of the ritual constitute the ritual itself: “. . . this orchestrated deferral of signiﬁcation never yields a deﬁnitive answer, a ﬁnal meaning, or a single act—there is no point of arrival but a constant invocation of new terms to continue the validation and coherence of the older terms. This process yields the sense of a loosely knit and loosely coherent totality, the full potential of which is never fully grasped and thus never fully subject to challenge or denial. One is never confronted with ‘the meaning’ to accept or reject; one is always led into a redundant, circular, and rhetorical universe of values and terms whose signiﬁcance keeps ﬂowing into other values and terms.”150 The Mishnah’s ritual of execution begins and ends on the steps of the court, traveling the circumference of a circle. This ritual is thus literally circular, beginning and ending in the same place, but it is also symbolically circular, deferring conclusive signiﬁcation. But we have a sense that something has happened along the way—that some feat has been accomplished, that some meaning has been created—but we are left not knowing exactly what that something is, and beyond that, we perhaps do not even realize that we do not know. More likely, we think we know: that the dignity of the criminal has been afﬁrmed; that the dignity of the criminal has been trounced; that the death penalty is to be avoided; that the death penalty is necessary. What we can try to do instead is to make arguments about the ritual’s arguments. That is, we can try to ﬁgure out which of the contradictions within the ritual are most privileged, what tensions lie closest to its heart. I looked ﬁrst at arguments of space: the geographical conﬁguration of the court house and the stoning house. This spatial relationship, I argued, becomes the basis of rabbinic self-deﬁnition. It is through the court house’s proximity to the stoning house that the law becomes law and the Rabbis become Rabbis. To make a grand claim for this ritual: The entire corpus of the Mishnah would fall without Sanh. 6.151 But the entire Mishnah would also fall if the court house were not also separate from the stoning house. By placing itself in relation to but also distant from the stoning house, the court house locates its authority between the poles of persuasion and coercion. The ritual’s arguments of speech allow us to see the ritual from the perspective of the condemned. But the speech acts have ambiguous signiﬁcance: The criminal’s failure to exonerate himself may ultimately suggest his agreement with the court, and his confession may do the same. The reconciliation of the relatives at the close of the ritual has even more complex signiﬁcance, since it recognizes their potential protest at the same time that it defuses it. But the most complex and elusive quality of these arguments of speech is their large-scale act of ventriloquism. All the speeches prove to be a puppet show choreographed by the mishnaic authors. If so—if these arguments are only ventriloquism—we cannot help but ask: Is the authority for which they campaign really a matter of negotiation? After all, the criminal never really says anything at all. The only people that ever have the chance to speak in this text are its rabbinic authors. We can counter with another question, however: If

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the voice of rabbinic authority here seems negotiated, then isn’t it? Whether the Rabbis are talking to themselves, to wider audiences, or to both, they create a vision of authority that is one in dialogue. The last set of arguments I discussed are arguments not of space here on earth but of space in the world to come. The method of this argument is extrapolation. An a fortiori logic is implied: If the transgressor gets a good death and a portion in the world to come, then surely such a portion belongs to everyone. Rabbinic authority proves ultimately to be rooted in the promise of future life. The arguments for rabbinic power made here—that it is real power, negotiated power, and redemptive power—are everywhere informed by their relationships to other kinds of rabbinic arguments, ritual and otherwise. The categories of homicide determined by m. Sanh. 9 invite us to see criminal execution within the framework of unintentional homicide. Other Mishnahs on funerals invite us to look at execution in the context of normal death practices. The ritual of execution builds its arguments out of the blocks of other arguments, which in turn do the same. The result is what Catherine Bell calls the “sense of a loosely knit and loosely coherent totality.”152 The Rabbis create a whole in which each piece seems to take its natural place. While the ritual of execution is unique, it would crumble if it were not embedded in the larger ediﬁce of practices. The ritual’s argument for redemption is based not only on its own sequence of movements and speeches but also on its relationship with other movements and speeches. In other words, it is the entire encyclopedia of rabbinic practices that makes redemption fully possible. Anyone who has studied rabbinic texts knows of their totalizing tendency: One cannot understand a rabbinic text until one has studied many. The six orders of the Mishnah begin with the question: From when do we read the evening Shema? A great many assumptions are built into this question: that one knows of the obligation to read the Shema in the evening and, indeed, that one knows what the Shema prayer is in the ﬁrst place. The reader of rabbinic texts is a reader who has mastered these schemes as a whole, who has developed what Bell calls a “sense of ritual.”153 Ultimately it is this sense of ritual, to which this ritual of execution contributes and from which it departs, that is shown to bring to life the rabbinic promise of redemption.

4 Performing Execution, Part 1 The Blood-Avenger, the Community, and the Witnesses

Foucault begins his Discipline and Punish with a shock strategy. With no preamble, he plunges into the gory tale of “Damiens the regicide,” whose 1757 Paris execution consists of one stomach-churning torture after another. When the executioner ﬁnally dedicates himself to killing the criminal, the story turns almost comic: The executioner fails with each violent attempt. The execution quickly becomes a manual for what-not-to-do-if-you-are-an-executioner. The horses are not strong enough to draw and quarter; the lit sulphur applied to the criminal burns only the outer layers of his skin; the pincers, instead of tearing the criminal into pieces, inﬂict only minor wounds. As Damiens cries out in pain with each new effort to kill him, the audience comes to sympathize with him, and the spectacle’s purpose—to dramatize the authority of the king—is subverted. The execution instead humanizes the criminal. Foucault abruptly shifts to a set of prison rules drawn up eighty years later in Paris. The prison described is the opposite of the torture spectacle. Instead of an unpredictable, unruly public display of violence, punishment according to the rules of the Parisian prison is private and orderly: The prisoners exercise, work, go to classes, pray, and read. The project of Foucault’s work, as I discussed earlier, is to interpret this radical change in western Europe’s practices of punishment and to question the oft-stated explanation that the change represents a humanitarian reform. Foucault’s opening story, intended to exemplify the old-style medieval punishments, relies on an elaborate cast of characters. Aside from Damiens the regicide, who is at once both antagonist and protaganist, are the Paris spectators for whom the execution is staged. An elderly parish priest who offers consolation to the condemned man is also present, impressing

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the spectators with his solicitude. A man named Bouton, an “ofﬁcer of the watch” who seems to have been marginally involved, leaves another account. He describes the hapless executioner, a man ironically named Samson, as well as various assistant executioners who help to tie the cords for drawing and quartering and to perform the other tasks of torture. Bouton also describes a certain Monsieur Le Breton, a clerk of the court, who has the job of eliciting a confession from the criminal. Monsier Le Breton has his own assistant confessors. The judges enter the narrative when Samson and Monsieur Le Breton consult with them over whether to give up their unsuccessful efforts to draw and quarter the criminal and resort to the more direct strategy of cutting him to pieces. Then there is a Monsieur de Marsilly, who surfaces later in the story to provide a kiss on the criminal’s forehead when the confessors refuse to do so. Finally, there is a detachment of ofﬁcers and archers who remain in the square until late that night, and, oddly, a dog who sits in the place where the dead man’s body lay, a dog whom locals believe to have received the ghost of the dead man. In sum, Foucault’s narrative is composed of a mosaic of participating characters: the condemned man, the crowd, the clerk, the church, the court, the police, the executioners, even a dog. The presence of all these characters determines the symbolic power of the event, its religious, political, and cultural meanings. The unpredictable interactions of the characters make this meaning very much negotiable. Foucault chooses this story, we can presume, precisely to emphasize the negotiations for authority that characterize public spectacles of punishment in contrast to prisons, which attempt to subdue their inmates privately, behind closed doors. If we accept Foucault’s invitation to think of certain forms of punishment as performance, then we must look at the cast of characters essential to the production’s success. We should ask: Who is allowed on stage and who is not? Who speaks and acts and who does not, and what do they say and do? Homicide may constitute the fundamental act of execution, but who performs it, who assists, and who watches create its speciﬁc social consequences. Erik Gunderson argues, for instance, that the captured tribes and slaves punished in the Roman arena served to educate the Roman public in the imperial triumph of their leaders.1 But Gunderson looks not just at the people punished in the arena but also at the people watching them, the spectators, whose seating within the arena was a virtual map of the hierarchy of Roman society. The arena “worked,” so to speak, because people came, to see and be seen, to act and to be acted upon. In the series of portraits in the following two chapters, I will be looking at the performers who enact a rabbinic criminal execution. I base myself on Philip Smith’s proposition in his study of modern narratives of execution that “execution rituals provide for both the afﬁrmation and display of personal identity and the possibilities of multiple readings” and that not enough attention has been paid to “the role of agency in punishment rituals.”2 While in the previous chapter I surveyed the rabbinic ritual of execution from start to ﬁnish, its shifting spaces and speeches, in the next two chapters I will explore the matter of agency, the question of who are the people whose identities go on display

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in rabbinic execution. But I will be looking as much at agency as passivity, asking also who is disempowered to act. Who are the agents of rabbinic execution, who is the audience, and what other people participate? Are there different levels of participation? Ultimately, what does all this tell us about agency in rabbinically imagined society more generally? According to rabbinic wish, who has the power to carry out God’s will and how is that power properly wielded? I will argue that in their orchestration of execution’s performing cast, the Rabbis respond to various other claims of agency and ultimately make their own claims supreme. I will develop portraits for the following participants: the blood-avenger of homicide, the community, the witnesses to the crime, the relatives of the criminal, and the rabbinic judges themselves. My strategy is to begin in each case with the Pentateuch and then to compare the role as it was developed by the Tannaim in the Mishnah, Tosefta, Midrash Halakhah, and baraitot in the Talmuds. I organize the tannaitic texts according to the themes they raise rather than according to their chronology, since the precise chronological relationships among these traditions are nearly impossible to sort; I also intermingle texts from the different tannaitic corpora based on the assumption that the tannaitic legislations are not so radically reworked by their redactors that they cannot be discussed at the level of individual tradition (keeping in mind that we have these texts in highly mediated form). The gaps and tensions—and also continuities—between the biblical and rabbinic pictures that emerge help to reveal the concerns of the Rabbis in creating execution. I use the interpretive dimension of the texts, in other words, as my point of entry into the rabbinic performance. In this sense, rabbinic execution is entirely different from Foucault’s Paris tale, since it functions also as exegesis. But it is also similar in that every text of execution (and Foucault’s story is also a text) is modeled out of earlier texts, and we can understand each text better by looking at the innovations it imposes and continuities it upholds.3

Individual Claims to Power I begin with the blood-avenger, or go’el ha-dam, a frequent ﬁgure in biblical schemes of punishment for homicide.4 Characteristic of societies that lack a strong central authority, blood-vengeance exists where the kinship group is responsible for the protection of individuals.5 Biblical law respects the rights of the blood-avenger even while limiting them.6 Exodus’s law code, commonly known as the “book of the covenant,” introduces into the crime of murder a distinction between intentional and accidental (21:12–14), restricting vengeance to intentional cases, but Exodus does not mention the agent of vengeance per se.7 Priestly law, on the other hand, fully deﬁnes the blood-avenger’s role. In Num 35, the blood-avenger is the primary executioner for homicide, although, as in Exodus, his vengeance is restricted to cases of intentional murder. The blood-avenger must wait until the assembly determines through the testimony of witnesses whether the killer is an intentional murderer or a manslayer (35:

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12, 24–25).8 If he is deemed a manslayer, he is sent to the cities of refuge (Num 35:6, 13–15, 25); if he is deemed an intentional murderer, however, the bloodavenger is called upon to wreak his vengeance (Num 35:19, 21). Verse 27 also gives the avenger free rein if the murderer ventures outside the city of refuge. Numbers 35 thus insists upon the continuing importance of the avenger as the executioner for intentional murderers, even while reinforcing Exodus’s concern for rescuing accidental murderers from vengeance. Deuteronomic law likewise afﬁrms the avenger’s role in executing intentional murderers (19:11– 13).9 If the intentional murderer should seek refuge illegitimately, that murderer is deposited into the hands of the avenger by the local judicial authority.10 Deuteronomy thus mediates the avenger’s powers of action through the local elders.11 All three of the biblical legal corpora maintain the relevance of the avenger as an agent of execution; the book of the covenant does so by implication, and the priestly and Deuteronomic laws do so through explicit mobilization of the avenger in cases of intentional murder.12 The corpora also restrict the avenger, however, in their distinction between intentional and accidental homicide, provision of a place of refuge for the accidental homicide, and introduction of mediating judicial bodies.13 The blood-avenger is entirely marginalized, however, by rabbinic schemes of homicide. The Rabbis exclude him from their standard ritual of execution, where he is not mentioned at all. Moreover, when the Rabbis do deal with the blood-avenger, they constrain him with the rules of their justice system—a phenomenon I will call “judicialization”—and they also institutionalize vengeance such that the blood-avenger himself is relatively insigniﬁcant—I will refer to this as “institutionalization.” Spierenburg links such trends—the imposition of various controls on private vengeance—to the emergence of stronger rulers.14 Along these lines, I suggest that we think of the controlling of vengeance as one prong in the Rabbis’ project to imaginatively strengthen their authority through the medium of law. Nevertheless, we can also see that the rabbinic transformation of the blood-avenger is generated out of tensions within the Bible itself in which the blood-avenger’s prerogatives are already limited. The movements to judicialize and institutionalize the blood-avenger begin, then, in the Bible.15 But the Rabbis judicialize and institutionalize vengeance beyond the Bible’s efforts, ultimately domesticating the individual claims or prerogatives of the avenger into their corporate legal framework. Though he is pushed to the margins, the blood-avenger is nevertheless a revealing ﬁgure for rabbinic criminal law, which subordinates individual prerogatives to the administrative judicial authority of the Rabbis.

Judicialization The Rabbis do not alter the Bible’s judicialization of the blood-avenger’s vengeance so much as emphasize it. The early rabbinic midrash to the book of Numbers, Sifre, juxtaposes Num 35:12 with 35:27, which describes the scenario of the manslayer who has ﬂed the city of refuge, voluntarily giving up its beneﬁts:

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“The cities shall serve you as a refuge from the avenger . . .” (Num 35:12). Why is it said? Since it says, “and the blood-avenger kills the manslayer, there is no bloodguilt on his account” (Num 35:27), do I learn that he shall kill him of his own accord (literally: between him and himself )? The Torah teaches, “so that the manslayer may not die unless he has stood trial before the assembly.” (continuation of v. 12)16 According to Sifre Numbers’ reading, v. 27 by itself could lead to a false conclusion, that the blood-avenger is free to kill the manslayer with impunity and with no intervention by the courts. The Sifre shows that v. 12, especially its ending, is the correction for v. 27, since v. 12 makes explicit that the bloodavenger may not take vengeance unless the murderer has been tried in court. In this midrash, the Sifre shifts the reading of v. 27 in order to highlight the judicialization of v. 12. In the context of Num 35, v. 27’s purpose, coming towards the end of the chapter, is to deal with the ambiguous case of the manslayer who leaves his place of refuge. One might conclude that the manslayer who has already lived in the city of refuge would carry its protections even if he were to leave the city. V. 27 shows otherwise, that vengeance upon the escaped manslayer is indeed permitted, that the blood-avenger in this circumstance has “no bloodguilt on his account.” But the Sifre suggests that one might read v. 27—in which no court procedure is mentioned since chapter 35 has already discussed it—as applying to the institution of vengeance as a whole, in which case we might believe that no court procedure is ever necessary! With this tenuous supposition, the Sifre then shows that v. 12 dispels these erroneous conclusions about vengeance. What the Sifre does in the process is to put the Bible’s efforts at judicialization in boldface, contrasting it with the possibility that the avenger could act “between him and himself,” or on his own accord, without the interference of the court.17 Numbers 35:30, like Num 35:12, is a judicializing verse, requiring more than one witness for the prosecution of a murder. Sifre Numbers presents a dispute between Rabbi Josiah and Rabbi Jonathan, Tannaim dated to the latter part of the second century, over the interpretation of this verse: “If anyone kills a person, the manslayer may be executed only on the evidence of witnesses, etc.” (Num 35:30) Why was it said? Since it says, “and the blood-avenger kills the manslayer, there is no bloodguilt on his account” (Num 35:27), do I learn that he shall kill him of his own accord (literally: between him and himself )? The Torah teaches “if anyone kills a person . . . only on the evidence of witnesses, etc.” It tells that he does not kill him except with witnesses— the words of Rabbi Josiah. Rabbi Jonathan says: “If anyone kills a person, the manslayer may be executed only on the evidence of witnesses, etc.” (Num 35:30) Why was it said? Since it says, “so that the manslayer may not die unless he has stood trial before the assembly (edah) (Num 35:12), do I learn that he shall kill him in the court (be-veit din) with no wit-

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Juxtaposing 35:27 with 35:30, Rabbi Josiah accomplishes much the same as the earlier midrash, and in the same language: He emphasizes the judicialization of v. 30 by reading v. 27 as applying beyond its speciﬁc context of the escaped manslayer.19 Rabbi Josiah similarly emphasizes v. 30’s judicialization, taking it one step further than does Rabbi Jonathan. By juxtaposing v. 30 instead with v. 12, he emerges with a fuller set of judicial requirements, both a court and testimony by two witnesses. Rabbi Jonathan here does not go much beyond the contextual sense of either verse (he does slightly in his interpretation of v. 12, calling the biblical edah or assembly, a beit din or court, assimilating biblical justice to rabbinic justice). He collects two judicializing verses and, by doing so, shows that blood-vengeance is to be fully constrained by the systems of the court. The midrash raises the specter of the old-style vengeance, posing it as a possibility (“Do I learn that he kills him of his own accord?”), only to quash it. Rather than creating its own innovations, this midrash, like the previous one, draws attention to the Bible’s innovations.20 Tosefta Makkot 3:6 judicializes blood-redemption also inside the city of refuge, while the manslayer is living there: “. . . [if] the blood-avenger found him within the area of the city [of refuge], behold he is like anyone, and liable for striking him and cursing him, and liable for damages, whether for a man or for a woman, and if he kills him intentionally he is killed, and if he kills him accidentally he is exiled to a city of refuge . . .”21 According to this text, the blood-avenger bears all the normal liabilities that apply between two people as long as the manslayer stays within the area of refuge. The Tosefta emphasizes that the blood-avenger has no special privileges vis-a`-vis the manslayer but is bound by the standard judicial procedures according to which (the rabbinically imagined) society operates. This tannaitic source, along with the others from Sifre Numbers,22 preserves and upholds the biblical project of judicially constraining the actions of the blood-avenger.23

Institutionalization Besides judicialization, the Tannaim also transform the blood-avenger’s vengeance into an institutionalized punishment. As with judicialization, the phenomenon of institutionalization is manifested already in the Bible.24 Exodus 21:12 presents an autonomous obligation to execute the murderer with no reference at all to the blood-avenger—the punishment of the murderer seems to be wholly independent of the blood-avenger’s personal wrath. Numbers 35, with its repeating refrain “he is a murderer; the murderer must be put to death” (35:16, 17, 18), also suggests an obligation to punish the murderer separate from the duty of the blood-avenger, but it then discusses the punishment of the murderer almost exclusively in terms of the blood-avenger: Verses 19 and 21 assume (if not require) the blood-avenger to be the agent of punishment.

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Sifre Numbers, however, explicitly makes the punishment of the murderer into an obligation separable from the blood-avenger. Sifre Numbers on v. 21 acts in typical midrashic form, observing the repetition between vv. 19 and 21: “The blood-avenger shall put the murderer to death” (Num 35:21). Why was it said? Was it not already said: “The blood-avenger himself shall put the murderer to death; it is he who shall put him to death upon encounter” (Num 35:19)? And why does the Torah say, “The blood-avenger shall put the murderer to death”? That it is possible that I have only the case where someone (the murder victim) has a blood-avenger; someone who has no blood-avenger from where [do I know]? The Torah teaches “blood-avenger”—in any case.25 The Sifre points out that v. 21 is a verbatim repetition of v. 19’s call for the blood-avenger’s vengeance. Problematizing the repetition, the Sifre concludes that v. 21 must teach something new. The Sifre proposes a law that institutionalizes the punishment of the murderer: Even the murderer without a bloodavenger must be killed. Retribution against the murderer, according to this law, goes beyond the person of the blood-avenger, existing as its own independent obligation. Yet this legislation on the part of the Sifre proves, upon reﬂection, to be not very innovative: The book of the covenant makes this obligation explicit! The Tannaim seem to be less than legally creative here, restating a law that is already ﬁrmly in place in the Bible itself. A similar gloss in Sifre Deuteronomy sheds light on the midrash in Sifre Numbers. Sifre Deuteronomy, in its commentary on Deut 19:12, yields the same law as Sifre Numbers that the murderer must be killed even when no bloodavenger exists: From where do we know that if he does not die in the hands of the blood-avenger that he shall die at the hands of anyone? The Torah teaches, “[the elders of his town shall have him brought back from there] and shall hand him over to the blood-avenger to be put to death; you must show him no pity. Thus you will purge Israel of the blood of the innocent . . .” (Deut 19:12–3). Lest you say: since this one was killed, why should we make ourselves liable for the blood of this one? The Torah teaches, “you must show him no pity. Thus you will purge Israel of the blood of the innocent . . .”—purge the doers of evil from Israel.26 While Sifre Numbers learns the law from apparent repetition within Num 35, Sifre Deuteronomy learns it from the emphatic language of Deut 19:13. Sifre Deuteronomy also ascribes a psychological rationale to the law, portraying a community that would prefer to let the murderer go free rather than to punish him: Why should it take upon itself responsibility for the punishment of the homicide if no avenger is around to do it himself or to care that someone else do it?27

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From Sifre Deuteronomy, it becomes clear that the obligation to kill the murderer is not as established as one might think; in the communal mind (as the Rabbis describe it) and in the Bible, retribution for the murderer is still enmeshed with the person of the blood-avenger. Sifre Numbers and Sifre Deuteronomy come to articulate that the punishment of a murderer nevertheless stands as an autonomous obligation independent of the existence of a bloodavenger. These midrashim force the Bible’s hand, asking what will happen when no blood-avenger is to be found. While their legislative conclusions do not contradict the biblical verses, they address unresolved tensions within them, articulating the laws of homicide in a way that the verses do not. For the Bible, homicide and blood-vengeance are still relatively closely intertwined. The midrashim pull these two apart, institutionalizing the act of execution, making it at least theoretically independent of the blood-avenger. A baraita on b. Sanh. 45b also institutionalizes vengeance, as did the tannaitic midrashim separating the function of the blood-avenger from his status as a relative of the victim. The subject of the baraita’s midrash is, according to different versions of the text, either Num 35:19 or 35:21 (verses which are very similar, as Sifre Numbers 160 illustrates):28 “The blood-avenger shall put the murderer to death upon encounter”—a commandment for the blood-avenger. And from where do we know that if there is no blood-avenger that the court preserves for him an avenger? As it was said, “upon encounter”—in any event. The baraita’s midrash requires that the court appoint someone in the place of the blood-avenger, unlike Sifre Numbers and Sifre Deuteronomy above, which do not mention any speciﬁc judicial procedure for such a situation.29 Thus does the baraita draw vengeance into the judicialized, institutionalized world of rabbinic criminal justice, in a way that the tannaitic midrash collections do only partially.30 Spierenburg describes such a development in late medieval Germany, where legal texts “sometimes explicitly refer to the punishments imposed by the authorities as ‘vengeance.’ ”31 Traditional vengeance, according to Spierenburg, is transferred from the victims and their relatives to the state. So, too, does this Babylonian baraita explicitly transfer the power of vengeance to the rabbinic court. A tannaitic midrash in Sifre Numbers goes further in its institutionalization of the punishment for homicide. In the Sifre on Num 35:27, the Tannaim apply this trend not only to the intentional murderer but also to the manslayer: [But if the manslayer ever goes outside the limits of the city of refuge to which he has ﬂed] “and the blood-avenger comes upon him” and kills him—by anyone (be-khol adam).32 This midrash permits not just the blood-avenger but any person to kill the manslayer who leaves his city of refuge. This midrash is the coup de graˆce for the blood-avenger. In the verse itself, the blood-avenger is given a special dis-

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pensation in the event that the manslayer leaves the city of refuge—the bloodavenger is not liable for murder if he cannot restrain himself from vengeance. The midrash extends this dispensation to anyone. This drive toward institutionalization compromises the previously discussed trend of judicialization: The vigilante-style prerogatives that the Bible uniquely grants to the bloodavenger are here universalized, sacriﬁcing the concern for judicial constraint in the pursuit of dismantling the special privileges of the blood-avenger. The midrash’s aim is to aggressively detach the laws of homicide from the practice of blood-vengeance, and it is willing to cede some of the supervisory powers of the court in order to achieve it. In all these cases, however, the trend toward institutionalizing has its limits. The priority of the avenger is taken to be a given. Only when an avenger is absent is another person appointed in his place. All else being equal, the avenger is the preferred agent for redress of murder. As in the Bible itself, the Tannaim of this Mishnah uphold the individual claims of the blood-avenger even while transferring those claims to others. The shift away from the bloodavenger is a gradual one.

Obligation In the Bible, blood-vengeance still seems to lie somewhere between a prerogative and an obligation.33 The Tannaim, however, besides judicializing and institutionalizing blood-vengeance, also consolidate it as a mitsvah, a religious obligation. This development can be found in Sifre Numbers on 35:19, which constructs a “common denominator” or tsad ha-shaveh from the weapons described in vv. 16, 17, and 18: “The blood-avenger himself shall put the murderer to death”: why was it said? Since it says, “Anyone, however, who strikes another with an iron object so that death results . . .” (Num 35:16); “If he struck him with a stone tool that could cause death, and death resulted . . .” (Num 35:17); “Similarly, if the object with which he struck him was a wooden tool that could cause death, and death resulted . . .” (35:18)—I have only that he is liable if he killed him with these. From where [do I know that he is liable if he killed him] with anything else? Behold, you judge a binyan av (an overarching principle) from among the three: the characteristics of a stone are not like the characteristics of the wood; the characteristics of the wood are not like the characteristics of the stone; and the characteristics of the two are not like the characteristics of the iron object; and the characteristics of the iron object are not like the characteristics of the two of them. The common denominator (tsad ha-shaveh) among the three is that they have the capacity to kill, and if he kills [with any of these three], it is a commandment (mitsvah) on the part of the bloodavenger to kill him; thus anything which has the capacity to kill, and he kills, it is a commandment (mitsvah) on the part of the blood-

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From the weapons of iron, stone, and wood mentioned by the verses, the midrash deduces that use of any weapon that has the power to kill makes one liable for murder.35 But the midrash’s focus is ultimately not vv. 16, 17, and 18, but the meaning of v. 19. The midrash concludes that v. 19 comes to teach that the blood-avenger must redress a homicide committed by any instrument that has the power to kill. The midrash uses the language of mitsvah, “commandment,” with respect to the blood-avenger, making explicit that the blood-avenger’s vengeance upon the murderer is a religious obligation and also emphasizing the broad range of that obligation.36 The tannaitic materials not only emphasize the blood-avenger’s obligation to kill the malicious murderer, but they also introduce the idea that the bloodavenger has an obligation to kill the unintentional manslayer. The Bible itself deters the blood-avenger from vengeance against the unintentional manslayer: In Deut 19:6 the city of refuge is represented as a safe haven for the manslayer from the pursuing blood-avenger.37 Numbers 35:27 exempts the blood-avenger from liability for killing the escaped manslayer, allowing him but not encouraging him to take such action. The Tannaim, however, encourage and even require the blood-avenger to pursue the manslayer as well as the murderer. In its commentary on 19:6, which describes the manslayer as he makes his way for the ﬁrst time to the city of refuge, Sifre Deuteronomy declares the pursuit of the manslayer an obligation of the blood-avenger : Lest the blood-avenger, pursuing the manslayer . . .”: it is a commandment (mitsvah) in the hand of the blood-avenger to pursue.38 While Deuteronomy is fearful that the blood-avenger will pursue the unintentional murderer—it uses the Hebrew word pen, “lest,”—the Sifre commands the blood-avenger to do so, using the language of mitsvah, commandment. In this midrash, the role of the blood-avenger vis-a`-vis the manslayer is elevated from a standing prerogative to an obligation. Mishnah Makkot 2:7 deals instead with the manslayer who has already made his way to the city of refuge but has decided to leave: A manslayer who goes outside the area [of the city of refuge] and the blood-avenger comes upon him— Rabbi Yosi HaGlili says: A commandment in the hand of the bloodavenger, and permission in the hand of anyone. Rabbi Akiva says: Permission in the hand of the blood-avenger, and no one is liable [for a capital penalty]. Babylonian Talmud Makkot 12a brings a parallel to the Mishnah which links the dispute between Rabbi Akiva and Rabbi Yosi HaGlili to Num 35:27: “And the blood-avenger kills (ve-ratsakh) the manslayer” (Num 35:27): a commandment in the hand of the blood-avenger; if there is no blood-

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avenger, permission in the hand of anyone—the words of Rabbi Yosi HaGlili. Rabbi Akiva says: Permission in the hand of the bloodavenger, and no one is liable [for a capital penalty].39 According to Rabbi Akiva, the blood-avenger has the prerogative to kill the manslayer who leaves the city of refuge. This position is in basic accordance with that of the Bible, which makes the pursuing blood-avenger not liable for vengeance. Rabbi Yosi HaGlili, however, turns the blood-avenger’s pursuit from a legally neutral act into a full-blown legal obligation. For Yosi HaGlili, when the Bible says ve-ratsakh (“and he kills”), it speaks not descriptively but prescriptively (“and he should kill”). Rabbi Yosi HaGlili’s position is radical, extending the obligations of the blood-avenger even to the case of the escaped manslayer.40 This Mishnah also speaks to the issue of the blood-avenger’s institutionalization. Like Sifre Numbers on 35:27, this Mishnah allows a substitute for the blood-related avenger even in the case of the escaped manslayer. But beyond this, the trends towards institutionalization and obligation are logically linked: both draw attention away from the desires and concerns of the injured individual, that is, the living relative. The redress of murder, for these midrashim, is not primarily a matter of satisfying the demands of the blood-avenger, but those of society and God.

Conclusions These three tannaitic trends regarding the blood-avenger—judicialization, institutionalization, and obligation—suggest an effort on the part of at least some early Rabbis to take the power of execution out of the hands of private individuals and to put it into the hands of corporate rabbinic authority. First, in judicializing blood-vengeance, the Rabbis insert their own judicial authority between the blood-avenger and the murderer or manslayer. As Sifre Numbers asks, “Does he act on his own accord?” The Torah teaches otherwise, according to the rabbinic reading of it; judicial authority must intervene in such cases of private conﬂict. Second, the trend towards institutionalization also calls for rabbinic interference. The “blood-avenger” is a role to which the court can appoint anyone, instructs Sifre Deuteronomy. In making vengeance an autonomous communal obligation separate from the blood-avenger, the Rabbis bring it under the supervision of the court. Even when the blood-avenger is available to carry out his task of vengeance, he seems to do it as an appointee of the court rather than of his own volition. While the Rabbis’ obligation of the blood-avenger may seem to run counter to some of their judicial constraints upon him, in fact it is also a constraint, and serves a similar purpose: to minimize the importance of the bloodavenger’s individual desires and, by the same hand, to augment the role of the rabbinic court.41 Obligating the blood-avenger may make him a more active ﬁgure, but not more independent. By describing the blood-avenger’s vengeance against the murderer and even the manslayer as a commandment rather than

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a prerogative, the Rabbis draw attention away from the psychological and social motivations of the individual blood-avenger. They relocate vengeance in the realm of rabbinic religion, in the system of mitsvot over which they preside. Like judicializing and institutionalizing, obligating the blood-avenger has the effect of depersonalizing the redress of murder: It is not about what the bloodavenger wants, but what he must do. Indeed, it’s not really about him at all, but the obligations that fall upon him, the rabbinic court, and the society that the court represents. Although I have been contrasting the rabbinic blood-avenger with the one portrayed in the Bible, the two are not entirely dissimilar. The Bible already begins to judicialize, institutionalize, and obligate blood-redemption, inserting the court between the two parties involved. The Tannaim, in their transfer of authority from the individual to themselves, only intensify trends found in the Bible itself. In some cases, the tannaitic innovation is merely to point out tensions within the Bible, as in Sifre Numbers on 35:21, where the the priestly law itself seems to be caught between the private system of vengeance and the bureaucratization of authority.42 The Tannaim teach about the Bible’s internal struggles, highlighting the Bible’s dual concerns to preserve the prerogatives of the blood-avenger but also to control him. The Tannaim in turn magnify these concerns, ultimately turning the blood-avenger into a replaceable functionary of the rabbinic court. Family allegiance is superseded by religious authority. Moreover, the Rabbis succeed in marginalizing the blood-avenger almost completely from their rituals of punishment.43 The blood-avenger makes no appearance in m. Sanh. 7, where homicide’s penalty of decapitation is laid out, or in chapter 9, where the crime of homicide is deﬁned. The blood-avenger does not appear frequently in Mishnah Makkot, either, where the procedures of refuge are laid out: most of the texts examined above are from the collections of tannaitic midrash, where the ﬁgure of the blood-avenger is unavoidable because of his prominence in the Bible. Yet while the Tannaim of the Mishnah marginalize the blood-avenger, at the same time they still privilege him, giving him unique prerogatives. According to Rabbi Yosi HaGlili in Mishnah Makkot, only the blood-avenger is religiously commanded to kill the manslayer. According to Sifre Numbers, Sifre Deuteronomy, and b. Sanh. 45b, the murderer can be executed by someone other than the blood-avenger, but only when the blood-avenger is unavailable. In other words, the blood-avenger is still the primary executioner for homicide, even if the court has become the presiding authority. So while the Tannaim transfer authority away from the individuals involved in the homicide and to themselves, they still recognize the claims of the blood-avenger as having force. What is the signiﬁcance of the tannaitic judicialization, institutionalization, expansion of obligation, and ultimate marginalization of the bloodavenger? And if the blood-avenger is marginalized, why does he also manage to hang on, in some cases earning new powers that even the Bible was not willing to grant him? We can think of the blood-avenger as a lightning rod in

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rabbinic texts for tension between the claims of the individual, that is, the right to self-help, and the claims of mediating authority. The blood-avenger functions as such already in the Bible, where his prerogatives are acknowledged but controlled. The rabbinic texts display the same struggle but with increased drama, alternately afﬁrming the claims of the individual or the claims of judicial authority, ultimately tilting the balance towards the latter. The bloodavenger becomes the fulcrum on which rests a conﬂict between individual assertion and judicial control. As such, the blood-avenger sets the scene for some of the central tensions that I will point to in the laws of criminal execution more generally: between the individual and the authority-bearing Rabbi, between the family and the rabbinic judge. This tension, I have shown here, is nourished by the Bible’s own textual tensions. At the same time, the rabbinic legal innovations, which go far beyond the Bible’s, suggest that the bloodavenger is also functioning as a site for tensions residing in the rabbinically imagined world.

Community Claims The blood-avenger may be prominent in biblical law, but the crime he avenges—homicide—is only one within the extensive set of capital transgressions found in the Bible.44 To punish other crimes, biblical law calls upon the community. The priestly authors invoke the people as executioners in three instances: the Molekh worshiper,45 the blasphemer, and the profaner of the Sabbath. Leviticus 20 lays out a speciﬁc execution procedure for the Molekh worshiper, identifying both the agent and type of punishment:46 “the people of the land (am ha-arets) shall pelt him with stones” (Lev 20:2).47 “The people of the land” act as collective executioner, enforcing the community’s faithful observance of God’s laws, preventing the realization of God’s threat, “lest the land to which I bring you to settle in spew you out (Lev 20:22).48 Leviticus 24:14 similarly commands the community to stone the blasphemer: “Take the blasphemer outside the camp; and let all who were within hearing lay their hands upon his head, and let the whole community stone him.” The verse emphasizes the collective: kol ha-edah—the whole community—must stone him.49 God’s pronouncement on the wood-gatherer in Num 15 closely echoes the formulation of Lev 24: “. . . the whole community (kol ha-edah) shall pelt him with stones outside the camp” (Num 15:34).50 The role of the people in the priestly sources is thus relatively straightforward: Either “the people of the land” or “the whole community” act as a uniﬁed group against the transgressor in order to address the contamination he or she has caused. The Deuteronomist somewhat complicates the community’s role in execution. In the case described by Deut 13 of one who entices others into idolatry, the one enticed is given the primary obligation to execute: “Let your hand be the ﬁrst against him to put him to death,” while the people occupy an ancillary position: “and the hand of the rest of the people thereafter”(Deut 13:10). The identical differentiation is made in chapter 17 in the case of the idolater, al-

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though there the witnesses to the idolatry play the primary role.51 Deuteronomy’s laws for the rebellious son and the nonvirgin bride do not make this distinction: “all the men of his town (kol anshei iro) shall stone him to death” (Deut 21:21); “the men of her town (anshei irah) shall stone her to death” (Deut 22:21). These laws both require the entire community to stone the sinner, but they limit it to its municipal level. The Deuteronomist also introduces a new role for the community as an audience. In the cases of the enticer (Deut 13: 12), the presumptuous man (Deut 17:13), the false witness (Deut 19:20), and the rebellious son (Deut 21:21), Deuteronomy directs that the community “will hear and will be afraid” (yishme’u ve-yira’u).52 Deuteronomy thus complicates the functions of the community and its boundaries, creating concentric layers of community with different roles in the execution process.53 But the roles are not altogether clear: How immediate a role must the wider community play in the death event? What exactly is entailed in the community’s hearing and fearing? Perhaps the Deuteronomist does not even make a legal prescription here but rather describes the execution’s predictable effects: News will spread, and people will be chastened. On the other hand, the Deuteronomist may be commanding the broader community to actively make an audience of themselves, to engage in a systematic publication of the execution. Though Deuteronomy presents a more complex picture, it shares with priestly law a strong tendency to make the community the agent of justice in certain cases of capital transgression. As Foucault relates regarding early modern European executions, the power of the community can quickly be diverted against the systems of authority, however.54 Biblical narrative, in contrast to biblical law, provides several cases wherein the collective executioner becomes the lynch mob. In Exod 8:22, Moses worries to Pharaoh that the Egyptians will stone the Israelites. At Rephidim, Moses worries again, this time that his own Israelites will turn against him: “What shall I do with this people? Before long they will be stoning me!” (Exod 17:4). Numbers 14:10 brings the Israelites— kol ha-edah (the whole community)—close to an act of mob violence against Joshua and Caleb, angering God against themselves as a consequence.55 Similar threats or acts of spontaneous mob violence surface in 1 Sam 30:6 and 1 Kgs 12:18 (and its parallel 2 Chr 10:18).56 In their prescription for and description of communal outrage, biblical law and biblical narrative seem to provide a mutual commentary.57 Narrative is the ﬁctionalized reality from which the law derives; biblical law responds to the mob rage of the narrative by channeling that rage for the protection of the community’s divine favor.58 But the narrative also acts as commentary on the law: The approved violence of the executing community can quickly turn back into the frenzied violence of the mob. In other words, the communal execution of biblical law is proven by the narrative to have its dangers; reading biblical law and biblical narrative in conjunction with one another reveals a nagging distrust of communal power. This distrust reaches full expression with the Rabbis. The role of the community as executioner is almost, though not completely, eliminated by the

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Mishnah. Mishnah Sanhedrin 6:4 presents a series of steps, each of which comes into play only when the last has failed: The stoning house was the height of two men. One of the witnesses pushes him on his hips; [if] he turns over onto his heart, he ﬂips him over onto his hips. And if he dies thereby, he has fulﬁlled his obligation. But if not, the second [witness] takes the stone and sets it on his heart. If he dies thereby, he has fulﬁlled his obligation. But if not, his stoning is by all of Israel, as it is said, “Let the hands of the witnesses be the ﬁrst (ba-rishonah) against him [to put him to death, and the hands of the people thereafter (ba-aharonah).” (Deut 17:7) In the ﬁrst step, one of the witnesses pushes the criminal down from the “stoning house.”59 If the fall does not prove fatal, then the second witness is mobilized into action to drop a stone onto the criminal.60 The community enters the action only then, if witness one and then witness two do not succeed. The Mishnah grounds this tiered procedure in Deut 17:7’s case of the idolater, whose quotation forms its end and explanation. The verse from Deuteronomy, however, suggests that the witnesses take a more prominent part in what is still a collective execution; in the Mishnah, the executioner has become almost fully individualized in the persons of the witnesses. The Mishnah here is reading ba-rishonah and ba-aharonah of Deut 17:7 in an unexpected way, to mean not ﬁrst and thereafter, but ﬁrst and only then second; in other words, the Mishnah turns the Bible’s staggered procedure into one where subsequent action is conditional on failure of the initial action. Deuteronomy itself represents a shift within the Bible from collective communal execution to a more differentiated kind of engagement, but the Mishnah transforms this engagement so that the community’s role is almost nonexistent. Moreover, the Mishnah altogether ignores the execution traditions of Leviticus and Numbers where the community plays the only role in execution.61 In demoting the community to last-resort executioner, the Mishnah introduces a new ambiguity into the procedure: Is the community on stand-by during the execution? Is it meant to watch the execution, ready to jump in if necessary? The rest of m. Sanh. 6 and beginning of chapter 7 are silent on this question; the community is almost never mentioned.62 Chapter 11, however, explicitly calls for the presence of the community in the execution of a rebellious elder in a procedure that harks back to Temple times: They do not kill him (the rebellious elder) either in the court of his city or in the court that is in Yavneh, but rather they bring him up to the Great Court which is in Jerusalem, and they keep him until the festival, and they kill him on the festival, as it is said, “all the people will hear and be afraid and will not act presumptuously again” (Deut 17:13)—the words of Rabbi Akiva. Rabbi Judah says: They do not delay the judgment of this one, but rather they kill him immediately, and they write and send messen-

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According to Rabbi Akiva (ironically, famous for his anti-death penalty stance), the execution of the rebellious elder must be attended by the entirety of the people. The event is delayed until the pilgrimage festival and then staged in the Great Court of Jerusalem.64 Rabbi Akiva’s law is linked directly to Deut 17: 13’s call for the people to hear and to fear—which I will name Deuteronomy’s “deterrence clause,” since it emphasizes the deterrent function of execution.65 Whereas m. Sanh. 6 reduces the agency of the people as executioner and does not suggest any alternative role, Rabbi Akiva in m. Sanh. 11 maximizes their participation in a new way, no longer as executioner but as an audience to a collective spectacle of execution. While Deuteronomy’s deterrence clause suggests only the publicizing of the crime to the larger community, Rabbi Akiva demands that they be in actual attendance. Yet he does so only for the case of the rebellious elder, despite the repetition of Deuteronomy’s clause in four places. Even in this one case, Rabbi Akiva’s position is subject to dispute. Rabbi Judah objects to Rabbi Akiva’s legislation on ethical grounds: “one should not delay the judgment of this one.” Rather, the criminal is to be executed immediately, with public notiﬁcation by messengers. Rabbi Judah seems to agree with Rabbi Akiva that the verse calls for a public spectacle, but he provides legislation for public involvement that can accommodate ethical concerns for the timely treatment of the criminal.66 Ironically, the Torah’s intent seems to be not a public spectacle but rather a publicization more along the lines of what Rabbi Judah has in mind: The Torah directs that all of Israel should hear, not see. Tosefta Sanhedrin 11:7 provides a parallel for the dispute between Rabbi Akiva and Rabbi Judah, where it applies not only to the rebellious elder but also to several other crimes: A rebellious son, a rebellious elder against the court, an enticer, a seducer [of a rebellious city],67 a false prophet, and conspiring witnesses: they do not kill them immediately, but rather they bring them up to the Great Court which is in Jerusalem, and they keep them until the festival, and they kill them on the festival, as it is said, “And all the people will hear and be afraid and will not act presumptuously again” (Deut 17:13)—the words of Rabbi Akiva. Rabbi Judah said to him: And is it said “and all the people will see and be afraid (yir’u ve-yira’u)”? Rather, was it not said, “all the people will hear and be afraid (yishme’u ve-yira’u)”? And why should they delay the judgment of this one? Rather they kill him immediately and write and send in all places, “Person So-and-So: his verdict was delivered in the court of So-and-So, and So-and-So and So-and-So were his witnesses, and such-and-such he did, and such they did to him.”68 Addressing all of Deuteronomy’s four cases and even adding to them multiple types of apostasy, the Tosefta offers more cases of public, spectacular execution

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than does the Mishnah, according to Rabbi Akiva.69 Rabbi Judah, as in the Mishnah, holds that the public should be notiﬁed by messengers, but in the Tosefta he establishes a two-pronged attack against Rabbi Akiva.70 While the ethical argument remains, Rabbi Judah, now in dialogue format, argues against Rabbi Akiva’s hermeneutics: Could the Torah possibly intend a visual display if it uses the verb sh-m-a? Rabbi Akiva seems to have confused yir’u, “will see,” and yira’u, “will be afraid,” reading the former when only the latter is written, according to Rabbi Judah’s critique. The stakes of the debate are thus raised in the Tosefta: Rabbi Judah argues that Rabbi Akiva’s spectacular execution is not only bad ethics but also bad reading. In Halbertal’s terms, Rabbi Judah invokes both ethical criteria and formalist criteria to produce his legislation.71 While the Tosefta here deals with the community’s role as an audience to execution, it says nothing about communal agency. The Tosefta describes the punishment of stoning as a large stone’s being dropped on the criminal, equivalent to step two of the Mishnah’s procedure: Rabbi Shimon says: A stone was there and its weight was such that it required two people to carry it. He takes it and puts it on his chest in order to uphold the commandment of stoning. . . .72 The Mishnah’s third step, stoning by all of Israel, is absent. An inversely proportional relationship between agency and audience thus becomes apparent in both the biblical and rabbinic sources: Leviticus and Deuteronomy express maximal agency for the community and a minimal role as audience; the Mishnah minimizes agency and begins to emphasize audience; in the Tosefta, communal agency is absent but audience is maximized, both in the number of cases for which it is prescribed and the stronger grounds on which it is based. The Mishnah and Tosefta thus reverse the Bible’s proportions, almost or completely eliminating the community’s agency and at the same time changing the terms of its participation as audience from a listening audience to a viewing one. The collections of tannaitic midrash amplify this trend. Commenting on Leviticus’s incident of the blasphemer, the Sifra dramatically reverses Leviticus’s meaning: “the whole community” (kol ha-edah) (Lev 24:14): and does the whole community stone him? If so, why is it said “the community”? These are the witnesses who are in the presence (ba-ma’amad)73 of the whole community.”74 The midrash ﬁrst recognizes Leviticus’s contextual meaning—“and does the whole community stone him?”—only to reject it. The midrash interprets edah, “community,” as referring not to the community but to edim, “witnesses,” in a word play on the two (though their roots are different—the root of edah is yud-ayin-dalet, while the root of ed is ayin-vav-dalet). In the somewhat obscure logic of this midrash, the word edah, “community,” seems to be superﬂuous

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because of the presence of the word kol, “whole,” which the midrash now assigns to indicate the community’s presence rather than any action taken on its part.75 As Halbertal explains, Midrash Halakhah frequently makes a selfconscious choice between two interpretive possibilities; its midrashim are not automatic, but rather assertive determinations of meaning.76 Sifre Numbers on 15:35, the story of the wood-gatherer parallel to Leviticus’s story of the blasphemer, provides a similar gloss on the identical phrase, “the whole community”: “The whole community”: in the presence (ba-ma’amad) of the whole community. You say in the presence of the whole community, or is it the whole community as it implies (ki-shemu’o)77? “The hand of the witnesses will be upon him ﬁrst to kill him (le-hamito) (Deut 17: 7): behold the Torah teaches “the whole community” (kol ha-edah), in the presence of the whole community.78 Sifre Numbers produces the same law as the Sifra, but by way of a more selfconscious hermeneutics.79 Sifre Numbers, like the Sifra, presents two interpretive possibilities: Either the entire community stones him, or the entire community is present at the stoning. But Sifre Numbers assesses the ﬁrst reading in a way that the Sifra does not, calling it the implied meaning, ki-shemu’o, recognizing it to be more intuitive or contextual.80 Sifre Numbers ultimately rejects this choice, however, and it does so by reference to Deuteronomy. Sifre Numbers reads Deut 17:7 such that the witnesses appear to be the sole agents of execution, possibly focusing on the inﬁnitive le-hamito, “to kill him”—it is the witnesses and the witnesses alone who are responsible for killing the criminal.81 Signiﬁcantly, Sifre Numbers does not cite the latter part of the verse, which suggests that the community is also responsible for the killing. Armed with this reading of the Deuteronomy verse, the Sifre then returns to its own context in Numbers, embracing the interpretation that is less inferential but more coherent in light of Deuteronomy, that the whole community watches the execution instead of performing it. We as readers of the midrash are prepared from the start to read Numbers in this way, against its grain: The midrash would not need to ask whether we should read the verse “as it implies” (ki-shemu’o) if it were planning to do so. But we are not prepared to read Deuteronomy against its grain; this is the sleight of hand that makes this midrash innovative. The Sifre draws our attention to the hermeneutics of the Numbers verse so that we do not realize that the same kind of reading is being exercised with Deuteronomy. The midrash thus lends an overall coherence to its interpretation of Torah in which the community’s sole function in execution is to watch, while the witnesses perform the act itself. This midrash addresses intertextual tensions within the Bible but also manipulates them, creating from them an entirely new program of participation in execution. To do so, Sifre Numbers takes on the very verses where the community is the force behind execution—Num 15:35 and Deut 17:7. This midrash culls the witnesses out of Deuteronomy and turns them into the

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sole executioners, relegating the entire community to an outer circle that watches the event, and then reads Numbers the same way. Sifre Deuteronomy features similar midrashim. In the case of the rebellious son, Sifre Deuteronomy asks: “And all the people of his city shall stone him”: and do all the people of his city stone him? Rather, in the presence of (ba-ma’amad) all the people of his city.82 Similarly, in Deut 22:21’s case of the non-virgin bride, the Sifre inserts the word ba-ma’amad, “in the presence of ”: “And all the people of her city shall stone her”: and do all the people of her city stone her? Rather, in the presence of (ba-ma’amad) all the people of her city.83 Like the Sifra and Sifre Numbers, Sifre Deuteronomy turns execution into a public spectacle. Other midrashim in Sifre Deuteronomy do not directly attempt to change the community’s role in execution but achieve those consequences in roundabout ways. In its commentary on Deut 13:10, which describes the execution of a person who entices another into idolatry, the Sifre avoids the verse’s implication of communal agency: “Your hand will be against him”: a commandment by the hand of the seduced to kill him. From where do we know that if he does not die by the hand of the seduced, that he should die at the hand of any person (kol adam)? The Torah teaches: “and the hand of the whole people (kol ha-am) afterwards.”84 This midrash focuses on the meaning of the word kol, playing on its different usages: kol can mean “all” or it can mean “any” or “every.” Here the Sifre shifts the meaning of kol from the ﬁrst usage to the second: kol ha-am in the biblical verse is made equivalent to kol adam in the midrashic gloss—“all the people” becomes “any of the people.” The midrash rereads the verse such that the second clause is no longer subsequent to the ﬁrst clause but is rather a modiﬁcation of it: Your hand (the enticed’s) should be against him (the enticer), but if it is absent or fails, then the hand of anyone should be against him. In this rereading, the midrash individualizes the executioner, limiting the set of possibilities either to the enticed or to a single other person. Sifre Deuteronomy offers the same midrash on the parallel verse, 17:7, where the possibilities are limited either to the witnesses or to other individuals.85 By emphasizing the singular meaning of kol, the midrash excludes the community from carrying out the execution. The tannaitic midrash collections exhibit a tendency towards individualizing execution also in their midrashim about the implement of execution, that is, the stone: They reduce the number from the multiple stones that would

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signify a collective execution to a single stone representing a single executioner. This move is made by the Sifre on Deut 13:11 with respect to the stoning of the enticer: “And you shall stone him with stones (va-avanim)”: is it possible with many stones? The Torah teaches: ba-even (read: “with a stone,” Lev 20:27). If “with a stone,” is it possible by one stone? The Torah teaches: “with stones (va-avanim)” (Deut 13:11). Say from now on if he does not die with the ﬁrst, then he should die by the second.86 Once again, the midrash recognizes the verse’s contextual meaning only to reject it. Here, Sifre Deuteronomy’s midrash crossreads with Leviticus, problematizing the singular number of the stone there (which is used stylistically by the Bible as a collective singular like “family” or “audience” in English). Constructing a tension between the plural form in Deuteronomy and the collective singular in Leviticus, the Sifre goes on to privilege a strictly singular meaning. Even the plural possibility that the midrash is willing to recognize—that a second stone might become necessary—still implies an individualized executioner, expanded from one individual to two. This midrash which individualizes the agency of execution repeats several times in Sifre Deuteronomy: for the stoning of the idolater (Deut 17:5), the rebellious son (Deut 21:21), the nonvirgin bride (Deut 22:21), and the betrothed woman and the man with whom she has consensual sex (Deut 22:23), all these verses referring to the execution stones in the plural.87 The Sifra on Lev 20:27, in a similar vein, limits stoning to only one stone: Ba-even (stone, singular): it teaches that if he dies with one stone, he has fulﬁlled his obligation.88 This midrash repeats for Lev 24:14’s case of the blasphemer. Sifre Numbers also deals with the execution stone but is more similar to Sifre Deuteronomy in that it is bothered by the Torah’s discrepancy regarding the number of stones: “So they stoned him to death with stones (ba-avanim)” (Num 15:36): one verse says “with stones” (plural) and another verse says, “so they stoned him ‘even’ (singular, read: with a stone)” (Lev 24:23). How can these two verses [both] be upheld? The stoning house was the height of two men. One of the witnesses pushes him on his hips; he falls on his chest, he turns him over on his hips. If he dies from it, he has done his duty; and if not, the second takes the stone and places it on his chest. If he dies from it, he has done his duty; and if not, his stoning is with all of Israel, as it was said, “Let the hands of the witnesses be the ﬁrst against him to put him to death, and the hands of the people thereafter” (Deut 17:7). It is found that “[the whole community] shall pelt him with stones (ba-avanim)” (Num 15:35) stands; and it is found that “so they stoned him ‘even’” (Lev 24:23) stands.89

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To resolve the problem, Sifre Numbers quotes the Mishnah’s execution procedure, wherein ﬁrst one stone is used, and if it does not succeed in killing the criminal, many stones are used; thus Leviticus’ single stone and Numbers’ multiple stones are both incorporated into the stoning procedure.90 Like the other midrashim, this one individualizes the execution, although it provides the Mishnah’s back-up version of execution that calls for communal action. Sifre Zuta on Num 15:36 works similarly but is more abridged: “With stones”: if he does not die with one stone, they kill him with many stones.91 Implicit in this midrash is the tension between singular and plural, which the midrash resolves in much the same way as above. These different midrashim—here in Sifre Zuta and Sifre Numbers, as well as in the Sifra and Sifre Deuteronomy—all share the tendency to individualize execution in their treatment of the execution stone, though they take slightly different approaches. For Sifre Deuteronomy, the executioner acts always on an individual basis; the Sifra also seems to prefer an individual executioner, not even mentioning plural possibilities; Sifre Numbers and Sifre Zuta, however, similar to the Mishnah, entertain the possibility of a communal execution, but only if the individualized execution fails. The Sifra on Lev 20:2 exhibits this last tendency to offer the community a secondary role as agent of execution. With respect to the Molekh worshiper, the midrash directs the community to assist the court that does not have adequate power to execute: “[. . . . Anyone among the Israelites, or among the strangers residing in Israel, who gives any of his offspring to Molekh] shall be put to death (mot yumat) . . .” (Lev 20:2)—in the court. From where do we know that if the court does not have power92 that the people of the land (am ha-arets) assist (mesaye’im) it? The Torah teaches: “. . . the people of the land will pelt him [with stones].” (continuation of Lev 20:2)93 First the Sifra judicializes Leviticus, interpreting the generic, passive expression mot yumat to refer to a judicial process—“in the court.” But once the Sifra has placed the power to execute in the hands of the court, it is pressed to explain the continuation of the verse prescribing that the people carry out the execution. So the midrash explains the verse as providing a two-step plan: The court is primarily responsible for the execution, but if it is somehow unable to bring it to fruition, the community should provide assistance. This midrash represents a position similar to that of the Mishnah, Sifre Numbers, and Sifre Zuta regarding the stone: The people do have agency of execution, though only in an ancillary way. Here in the Sifra, the people are subordinated explicitly to the court. The Sifre on Deut 32:1, a midrash of an aggadic bent, represents a departure from all the tannaitic texts I have so far discussed, especially the other

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tannaitic midrashim: This midrash gives the people an unusually active role in rabbinic execution. In interpreting the ﬁrst verse of Moses’ poem in Deut 32, the midrash makes an analogy between the execution of a criminal and God’s collective punishment of the sinning Israelites: Another interpretation: Give ear, ye heavens (Deut 32:1). R. Benaiah says: When a man is convicted by the court, only the witnesses cast their hands out against him ﬁrst, as it is said, “The hand of the witnesses will be against him ﬁrst” (Deut 17:7). And after that people come slowly (memashmeshin u-va’in), as it is said, “And the hand of the whole people afterwards” (continuation of Deut 17:7). In this way, when Israel does not do the will of God, what does it say about them? “For the Lord’s anger will ﬂare up against you, and He will shut up the skies” (Deut 11:17). And after that punishments come slowly, as it is said, “and you will soon perish” (continuation of Deut 11:17). And when Israel does do the will of God, what does it say about them? “In that day, I will respond, declares the Lord, I will respond to the sky” (Hos 2:23) and it says, “I will sow her in the land as my own.” (Hos 2:25)94 Just as human criminal punishment is meted out in stages, ﬁrst by the witnesses and only then by the people, so too according to Sifre Deuteronomy’s analogy does God’s punishment start in the heavens and only later are its full effects felt down on earth.95 In this representation of human execution, the people gradually join in with the witnesses to stone the sinner.96 They are not made into an audience, nor are they given a role that is conditional on the witnesses’ failure or subordinate to the court. Rather, they seem to be bona ﬁde participants in the execution, albeit as secondary to the witnesses. This representation comes closest to the contextual sense of the biblical text: The witnesses initiate the execution while the community plays a secondary but still active role. This interpretation, however, comes in an aggadic context as an analogy for God’s curses. Like in the Sifre Numbers text describing the implied (ki-shemu’o) meaning of 15:35, the Tannaim here seem to be well aware of the Torah’s communal execution. While in Sifre Numbers, the author chooses to reject this possibility based on his reading of Deut 17:7, here Rabbi Benaiah embraces it for the purposes of his comparison between divine and human punishment and ultimately to show the potential blessings that God may bestow. To take stock of the public’s role in tannaitic execution, it is useful to go back to the key biblical verses and look at how traditions within the Mishnah, the Tosefta, and the tannaitic midrash collections develop the verses. The relevant biblical sites can be organized into several heuristic categories: Category 1. Verses that describe full and unmitigated communal agency Lev 20:2: “the people of the land shall pelt him with stones” Lev 24:14: “let the whole community stone him” Num 15:35: “the whole community shall pelt him with stones”

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Category 2. Verses that describe full but secondary communal agency Deut 13:10: “Let your hand be the ﬁrst against him to put him to death, and the hand of the rest of the people afterwards.” Deut 17:7: “Let the hand of the witnesses be the ﬁrst against him to put him to death, and the hands of the rest of the people afterwards.” Category 3. The “stone” verses Lev 20:2: “they shall pelt him va-aven” (singular) Lev 20:27: “they shall be pelted ba-even” (singular) Num 15:35: “shall pelt him va-avanim” (plural) Deut 13:11, 17:5, 21:21, 22:21, 22:24: “va-avanim” (plural) Category 4. The deterrence clause of Deuteronomy 13:12, 17:13, 19:20, 21:21: “all Israel/all the people/others will hear and be afraid” The Mishnah ignores category 1, the priestly verses of full, unmitigated communal agency, basing its legislation instead on category 2, the Deuteronomic verses that provide full but secondary agency. The Mishnah changes the nature of this agency, however, reducing it to only a conditional possibility. The “stone verses,” category 3, seem perhaps to be embedded also in the Mishnah’s legislation (a connection Sifre Numbers makes explicit). The Mishnah takes up category 4, Deuteronomy’s deterrence clause, to make of execution a full-scale public spectacle, but only for the case of the rebellious elder, and only in Rabbi Akiva’s opinion. The Tosefta entirely sidesteps the identity of the executioner—both categories 1 and 2—referring to the executioner only obliquely via category 3, the actions of stoning: “he takes it (the stone) and puts it on his (the criminal’s) heart in order to uphold the commandment of stoning.” Rabbi Akiva calls for the community to participate as an audience in all the cases of category 4 where Deuteronomy’s deterrence clause appears, but his opinion is contested by Rabbi Judah, whose publicizing more closely follows the biblical model. The midrashic traditions also call for full-scale public spectacle but do not draw it from category 4, as do the Mishnah and Tosefta. The midrashim instead go straight to category 1, the verses of full, unmitigated communal agency in Leviticus and Numbers, transforming the executing community into the one who watches. The midrashim also mobilize category 2, the full but secondary agency of Deuteronomy, using it as a buttress for their transformation of execution into a public spectacle. The Midrash’s treatment of the stone texts, category 3, furthers the trend towards individualizing the action. The Midrash seems to ignore category 4, the deterrence clauses themselves which envision a distant listening audience, since the midrash has already turned the people into immediate spectators through its transformation of category 1. The role of the community in execution thus provides an excellent case study in peshat and derash, in the complications of each and in their conti-

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nuities and discontinuities with one another. In responding to four sets of biblical verses, the traditions in the Mishnah, Tosefta, and tannaitic midrash collections each impose their own pattern of emphasis and interpretation, yielding multiple representations of the community’s proper place in criminal execution. Categories 1, 2, 3, and 4 of biblical verses are focused into different kaleidoscopic formations; the tensions and concerns in the biblical texts— conﬂicts between priestly and Deuteronomic execution, unclarity in Deuteronomy’s deterrence clause, and distrust of communal agency in execution— emerging in various conﬁgurations. While these traditions differ, all of them have in common the withdrawal from the hands of the community of the power to execute. Observing the Mishnah’s elimination of the community as an agent of execution, Haim Cohn writes: “Now with the substitution of mass stoning by pushing from the stoning house, judicial punishment is liberated, in our eyes, from these last remains of public vengeance.”97 By pulling the public out of the action of execution, the Tannaim are cleaning up criminal law, ensuring that mob aggression does not take over and that the criminal is treated humanely.98 Yet Cohn describes here only half the story; he does not address the rabbinic efforts to make the community into an audience. With these efforts, the Rabbis impress upon the community the authority of their court, teaching that the agent of justice is the rabbinic judge. In the tannaitic version of execution, the witness, whose validity is carefully determined by rules of evidence, is the executioner.99 In other words, the force of execution becomes not the community, but the judge who approves the witness, whose actions the community now watches. The Sifra on Lev 20:2 makes explicit the transfer of authority from community to Rabbis: The “power of the court,” as the midrash describes it, becomes the ultimate agent of execution, with the community acting as complement, and in most cases, as audience, to rabbinic power. As Cohn argues, the Tannaim may be bothered by the thought of collective violence. But the Tannaim are not bothered by collective audience to violence; in fact, transformation of execution into a spectacle is a recurring feature in all the tannaitic corpora. Yet the tannaitic corpora are not consistent—not all these texts are quite so bold in asserting rabbinic authority in the face of communal claims. Some of the texts are more conservative in their hermeneutics and are more reluctant to disempower the community. The Mishnah is among the more conservative of the tannaitic texts in its relative reluctance to eliminate the community as agent of execution (the community still acts as back-up to the witnesses) and to make of it an audience (the Mishnah limits the scope of the dispute between Rabbi Akiva and Rabbi Judah to only the rebellious elder). Most conservative is the Sifre on Deut 32:1, which recapitulates the biblical community’s active role in execution. But it is only in this aggadic register that the Tannaim do so; otherwise, they oust the community from their role as executioner, instead making them an audience to an execution now administered by judges, a role closely associated with the Tannaim themselves. One other purportedly tannaitic text represents a dramatically different

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approach to the community’s role in execution, one that alters the paradigm of agency and audience. This text, a baraita on b. Sanh. 43a, introduces a new mode of communal participation as volunteers and as advocates for the criminal. The initial question of the pericope is asked by the late third-century Babylonian Amora Rav Huna100 about whether the community is responsible to provide the implements of rescue mentioned in the Mishnah, i.e., a scarf that is waved and a horse that runs and halts the execution.101 The pericope compounds Rav Huna’s question with a parallel question, in which the relevant baraita appears: And moreover, [there is] that which Rabbi Hiyya bar Rav Ashi102 said in the name of Rav Hisda: The one who goes out to be killed, they administer to him a grain of frankincense in a cup of wine in order that he be numbed,103 as it is said, “Give strong drink to the hapless and wine to the embittered” (Prov 31:6). And it is taught: Worthy women of Jerusalem would volunteer and bring it.104 [If]105 the worthy women did not volunteer, from whom [would the frankincense come]?106 This baraita describes women volunteering to bring to the criminal an anesthetizing drink before his execution.107 The baraita must have been abbreviated and transmitted along with Rav Hisda’s legislation, since its talmudic formulation cannot stand alone: The ﬁnal “it” must refer to the cup of wine mentioned by Rav Hisda. The redactor brings this baraita in the interests of deﬁning the parameters of communal obligation towards the criminal. The generating question for this pericope is whether the community is obligated to try to rescue the criminal. The baraita, in conjunction with Rav Hisda’s legislation, raises a related question about whether the community is also obligated to provide for the comfort of the criminal as he faces his execution.108 But the baraita itself is revealing: A group of women, according to rabbinic representation, would take upon themselves to tend to the criminal before his execution in order to lessen the trauma of his punishment. The baraita suggests that these women may have even attended the execution for this purpose.109 While the biblical community executes, the rabbis’ community, as it is represented here, provides succor.110 The community’s actions are somewhat at odds not only with the biblical model, however, but also with the tannaitic model yielded by the other sources I have discussed, where the community is made an audience to execution, a passive party to the event.111 The community in this baraita is active, not along biblical lines as executioner, but along new lines as protector of the convicted criminal. This baraita is notably a description rather than a prescription, that is, it appears to describe the “grass-roots” practice of the community rather than the Sages’ demands upon them, and it speciﬁcally focuses on women’s participation.112 This baraita, with its active communal concern for the executed criminal, represents an alternative role for the community, perhaps in resistance to the dominant trends we have seen to disengage the community from agency in execution.

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Judicial Claims At the same time that the Rabbis eliminate the community from the role of executioner, they promote the witnesses. In his interpretation of m. Sanh. 7:3, Maimonides (1135–1204) explains why: “for them (the witnesses), this thing (the crime) is the truth, for they perceived it with their senses, while for us it is a story of words, for we know only what we have heard from them; thus God who is blessed commanded that the witnesses should be appointed for this matter, and the matter is ﬁtting.” Because the witnesses are the only people who know for a fact that the crime was committed, they are the only people appropriate to mete out the punishment, according to Maimonides. The substitution of community with witnesses on the part of the Mishnah can be understood, in addition to Maimonides’s explanation, as a strategy of control by the rabbinic court, since a witness’s legitimacy is carefully determined by laws of testimony. The substitution also allows the Rabbis to micromanage the actions of killing: The witness/executioner does not act spontaneously to redress the crime he witnessed, but rather he acts within the bounds of rabbinic prescription. At the same time that the Rabbis hyperdeﬁne the identity of the executioner and his actions, they also show a curious tendency, on the other hand, to leave the executioner anonymous. I will try to make sense of all three trends regarding the executioner—coopting him, micromanaging his actions, and also leaving him anonymous—by referring to the hermeneutical and ideological factors at work. Interpreting Deut 17:7, “Let the hands of the witnesses be ﬁrst against him to put him to death,” both the Mishnah and Sifre Deuteronomy, we have seen, delegate the role of executioner to the witnesses. Sifre Deuteronomy comments that it is a “commandment for the witnesses to put him to death,” while Mishnah Sanhedrin lays out speciﬁc actions for each witness to perform. Sifra on Lev 24:14 also calls for the witnesses to act as executioner while the community watches. But before the witness can act as executioner, the Tannaim require that he ﬁrst go through an extended judicial process. The witness, in other words, is not a witness merely by the fact of his having seen a crime; rather, he must be deemed a legitimate witness by the rabbinic court.113 The criteria by which a witness is made legally acceptable are delineated by m. Sanh. chapters 3 and 4. Mishnah Sanhedrin 3:3–4 provides a list of those people who are inadmissible as witnesses: And these are the ones who are disqualiﬁed: one who plays with dice, and the one who lends with interest, and those who race doves, and those who trade in the produce of the seventh year . . . Rabbi Judah said: When [are these listed here disqualiﬁed]?114 When they have no trade other than this, but if they have another trade—they are qualiﬁed. And these are the ones who are relatives [disqualiﬁed from testimony]: his father, and his brother, and the brother of his father . . .

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The Mishnah goes on to invalidate other relatives as well as people who might be partial to the party involved, such as the best man at his wedding. The Mishnah thus disqualiﬁes witnesses based on character—e.g., the gambler and the loan shark listed above—as well as on their relationship to those involved in the case.115 The end of m. Sanh. 4 deals with the court procedure for witnesses who have made it past the ﬁrst cut, so to speak, in that they do not fall into any of the categories above. Mishnah Sanhedrin 4:5 prescribes a process of threatening the witnesses in a capital case so as to impress upon them the seriousness of their role. In this famous threat, potential witnesses are goaded, criticized, and ﬁnally told to consider themselves responsible for the destruction not only of one life but of an entire world. Chapter 5 continues the narration of the court procedure, setting out how the witnesses should be investigated after they have been intimidated. The investigation is divided into two types: haqirot and bediqot.116 The haqirot are standardized questions ascertaining basic facts such as time and place, while the bediqot are free-form questions subject to the judge’s discretion. The case is dismissed if either witness cannot answer any of the haqirot, while the bediqot have the strength to disqualify testimony only if the witnesses contradict each other in their answers. Chapter 5 goes on to lay out different scenarios of contradiction between the testimonies of the two witnesses, legislating to what degree a contradiction is sustainable. Only if the contradiction is minimal or easily explained is the testimony valid. The Mishnah ensures, by means of all these laws, that testimony is carefully controlled. Mishnah Sanhedrin 5:2 praises the judge who makes profuse bediqot, offering Ben Zakkai’s questions about a ﬁg tree’s thorns as an example, implying that if the judge wished, he could quite easily ﬁnd a way to invalidate the witnesses.117 Conversely, valid witnesses stand as such also because of the will of the judge. By appointing the witness to the position of executioner, the Tannaim make that position subject to rabbinic judicial prescriptions and prerogatives. The Tannaim make the executioner subject to rabbinic control even more directly by restraining his actions, as they interpret the mechanics of the “hand of the witnesses” from Deut 17:7: “Let the hands of the witnesses (yad ha-edim) be the ﬁrst against him to put him to death, and the hands of the people (yad ha-am) thereafter.” In their elimination of the “hands of the people” from execution, the Rabbis leave themselves with a problem of numbers: Two is an awkward number to play the role of executioner. One executioner is easy enough to envision, or, alternatively, a collective execution like the Bible’s group of stone-throwers; but how might a pair of executioners perform their job? Moreover, the Tannaim face a collective singular noun in the phrase yad haedim—literally, the “hand” of the witnesses. As the “stone” midrashim in the last section illustrate, the Tannaim are wont to read signiﬁcance into this slightly peculiar grammatical form, where plural meaning is intended but singular syntax is used. The Mishnah and the Tosefta deal with the problem of “the hand of the witnesses” in different ways. The Mishnah interprets the verse such that it

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reads “the hand of [one of] the witnesses”—only one hand is active at any one moment of the execution. While both witnesses are potentially mobilized by the procedure, they are not mobilized at the same time. In this way the Mishnah preserves the singular sense of the word yad (hand) while also creating an execution that involves both the edim (witnesses). One problem with this sequence, however, is that the witnesses perform different acts: One witness pushes, after which the other witness drops a stone. The witnesses do not equally share the burden of execution according to this procedure, since they are given separate functions. Another version of the Mishnah, however, solves this problem, prescribing that the ﬁrst witness also drops a stone: One of the witnesses pushes him on his hips; is he turns over onto his heart, he ﬂips him over onto his hips. If he dies, he has fulﬁlled his obligation. But if not, he takes the stone and sets it on his heart. If he dies thereby, he has fulﬁlled his obligation. But if not, the second witness takes the stone and sets it on his heart. If he dies thereby, he has fulﬁlled his obligation. But if not, his stoning is by all of Israel . . .118 This version gives the witnesses a more equal role in execution, even if the ﬁrst witness still has primacy. The Tosefta also addresses this issue, giving to the two executioners exactly the same role: Rabbi Shimon says: A stone was there and its weight was such that it required two people to carry it. He takes it and puts it on his chest in order to uphold the commandment of stoning.119 Instead of the Mishnah’s sequential procedure, the Tosefta proposes a simultaneous one. Since the stone is heavy enough so as to require the strength of both the witnesses, the execution can be performed only by the two witnesses acting together. The two witnesses seem to act so much in concert that the Tosefta shifts into singular verbs—“he takes it and puts it”—even though the Tosefta has made clear in the preceding clause that the stone can be lifted only with the strength of two people.120 Both the Mishnah and the Tosefta seem to be struggling with Deuteronomy’s “hand of the witnesses”—its meaning after its detachment from the “hand of the people,” as well as its syntax. In the course of this struggle, the Tannaim shift execution from a relatively spontaneous outpouring of anger, as depicted by the mob stonings in biblical narrative, to a choreographed set of pushes and drops. As Haim Cohn argues, the Rabbis are uncomfortable with collective vengeance. But the Rabbis also seem to be uncomfortable with noncollective vengeance, that is, with the individual vengeance of the witnesses. The Rabbis individualize execution, to be sure, but they also formalize it, hemming in the actions of the witnesses, making them conform to a procedure controlled by rabbinic exegesis. The Tosefta’s procedure of execution illuminates another trend in tannaitic

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execution, which I discussed in the previous chapter: occlusion of agency. In the Tosefta’s execution, the witnesses act in concert to drop the fatal stone. The consequence of such an execution procedure is that when it is ﬁnished, the agent of execution cannot be precisely determined: Was it the ﬁrst witness, the second witness, both witnesses, or neither witness who performed the execution? The two-person procedure makes it possible for either person to avoid responsibility. The Tosefta makes explicit that the stone cannot be lifted by either person alone; thus the burden of execution is deﬁnitively shared. Robert Johnson describes a similar mechanism in contemporary American executions, performed by a team of a dozen men, each of whom has a very limited role, though together they accomplish their task. This point is made in an interview with a member of one of these teams: “We all take a part of the killing, the execution. So this guy that pulled the switch shouldn’t have more responsibility than the guy that cut his hair or the guy that fed him or the guy that watched him. We all take part in it; we all play 100 percent in it, too. That take[s] the load off this one individual [who pulls the switch].”121 Along similar lines do the Mishnah and Tosefta ensure that the witnesses share the responsibility of death, keeping to the spirit of the Bible itself, which features collection execution perhaps partly for this purpose. In their elaboration of the pericope on Sanhedrin 45b in which these texts appear, medieval commentators Rabbenu Hananel (Hananel ben Hushiel, died 1055–1056) and Maimonides both emphasize the passivity of the witness/ executioners. In commenting upon the Talmud’s discussion of the baraita, Rabbenu Hananel explains the mechanics of the execution: “. . . the two of them raise it up and the one leaves it in the hand of the other, and since he does not have the force (ko’ah) to put it down from his hand, it drops down (mishtarbevet) from his hand and comes upon him (the criminal) with force (be-ko’ah).” According to Rabbenu Hananel, the heavy stone, left in the hands of one witness, must drop, since that witness is physically unable to keep it aloft. When the stone then falls and kills the criminal, it falls not because of the witness but in spite of him. That is to say, according to Rabbenu Hananel’s reading, the force (ko’ah) behind the stone is not the force of the witness but the force of gravity (though Rabbenu Hananel could not, of course, have described it as such). Rabbenu Hananel describes the witness, on the other hand, precisely as not having force.122 In this explanation of tannaitic execution, as seen through the eyes of the talmudic redactor and then in turn through the eyes of Rabbenu Hananel, “the hand of the witnesses” works ultimately to protect those witnesses from accountability for the deed to which the Rabbis have appointed them. While in biblical execution the stone is thrown by active agents of execution, in this version of execution the stone drops down from the strength of its own weight, mishtarbevet. Maimonides describes a similar passivity on the part of the witnesses: And one of the witnesses pushes on his legs from behind him . . . and if he does not die from this push, the witnesses raise up the stone that was resting there, requiring two people to carry it, and

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In the phrase “he lets down his hand” (merapeh et yado), Maimonides suggests, like Rabbenu Hananel, that the witness cannot help but drop the stone. Maimonides’s next clause, however, implies more aggressive action—“he throws the stone”—and the ﬁrst witness is given the very active task of performing a potentially lethal push. Maimonides seems caught between the Mishnah’s— and going back further, the Bible’s—more active vision of execution and the Tosefta’s passive drop. While these readings of toseftan execution come from the medieval period, I think that they provide some insight into a tendency in the tannaitic texts to evade agency. For in much of the tannaitic discussion of criminal execution, no executioner is named. While the witnesses perform stoning in m. Sanh. 6:4, the identity of the executioner is left fuzzy for the other three execution methods described in m. Sanh. 7: burning, beheading, and strangulation. In the penalties of burning and strangulation, which are almost identical to one another except for burning’s ﬁnal insertion of a wick into the mouth of the criminal, two parties pull on either side of a scarf: The commandment of those who are to be burned: They would sink him (the criminal) into manure up to his knees, and put a hard scarf124 into a soft one, and tie it around his neck. One would pull in his direction and the other would pull in his direction until he (the criminal) opens his mouth, and he lights the wick and throws it into his mouth and it goes down into his insides and scalds his bowels . . .125 The commandment of those who are to be strangled: They would sink him (the criminal) into manure up to his knees, and put a hard scarf into a soft one, and tie it around his neck. One would pull in his direction and the other would pull in his direction until his soul departs.126 One would guess that the witnesses are the actors in these procedures, both of which prescribe actions for two people, but the Mishnah does not explicitly name them. Moroever, if the witnesses are meant to pull on the cloth, then the burning procedure becomes problematic: It should call upon the witnesses to throw the wick into the mouth of the criminal rather than to pull on the rope which holds his mouth open. If the witnesses are the executioners, as the stoning procedure prescribes, then their action should be that which kills the criminal rather than that which merely helps to kill him!127 Yet the directions for burning suggest that two people pull on the rope while only one person throws the wick in. The burning procedure thus leaves uncertain who should perform which action. The decapitation procedure is even more elliptical as to who acts as executioner. The Mishnah legislates:

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The commandment of those to be decapitated: they would chop off his head with a sword the way that the kingdom does. Rabbi Judah says: This is a disgrace. Rather, they should lay his head down on the block and cut it with an axe. They said to him: There is no execution more disgraceful than that. The actions of decapitation are formulated by the Mishnah in the impersonal third person plural. If one were to stage this execution, how would one direct the witnesses? Would both witnesses hold the sword? Would only one hold it? Would one or even both have the strength for such a task? The Mishnah seems wholly unconcerned with deﬁning the identity of the executioners for this method of execution, as well as for burning and strangulation. The Tosefta and other midrashim do not mention the witnesses at all, even for stoning. The sharp resolution of the identity of the executioners in m. Sanh. 6 becomes blurred in m. Sanh. 7 and in most other tannaitic texts. The problem of the executioner’s identity points to a larger problem in the structure of the Mishnah and Tosefta. In both, the step-by-step events of execution are narrated almost exclusively in relation to the method of stoning: “When he was about ten cubits’ distance from the stoning house . . . when he was four cubits’ distance from the stoning house . . . all those who are stoned are hanged. . . .” For the Mishnah and Tosefta, the paradigmatic execution is stoning. To execute a criminal by the methods of burning, decapitation, or strangulation, one would have to import much of the procedure from stoning. Many of the medieval commentators grapple with this tension between the elaboration of the stoning procedure and the abbreviation of the three other methods. Maimonides, for instance, in his commentary on m. Sanh. 6, asserts that the stoning procedure provides the model for the other execution methods: “And as they do it with stoning so do they do it with all the other executions of the court.” The Meiri (Menahem ben Solomon Meiri, 1249–1316) also extrapolates from the stoning procedure to all others: “Take the blasphemer outside the camp” (Lev 24:14)—outside the three camps. And this is the law for the other executions by which the court would kill them, that their place was outside the court. For the sake of legal systematization, the commentators are forced to extrapolate from stoning to the other procedures, even though the Mishnah itself never does.128 But the transfer of procedure from stoning to the other methods is not smooth, as is apparent in the case of burning. What accounts for this gap between stoning and the other execution methods? A hermeneutical explanation is readily proffered: The Tannaim are most explicit about the procedure for stoning because the biblical texts are. The relevant biblical sources deal almost exclusively with the execution of stoning, which Bible scholars agree to be the Bible’s default method of execution. Burning is given much less attention, decapitation is not a formal execution method, and strangulation, according to the Talmud’s own traditions, is not based in the Bible at all.129 The Mishnah and Tosefta draw up a ritual of execution based

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on stoning because that is what the Bible allows them to do. If the phrase “hands of the witnesses” surfaced for burning or decapitation, then the Tannaim of the Mishnah and Tosefta might have identiﬁed the executioner in those execution methods as well. Their constraints are biblically imposed. But other factors may be at play. The tannaitic vacillation over the witness—the conﬂicting drives both to control him but also to leave him alone— can be understood as a negotiation for authority that takes place through the ﬁgure of the executioner. Steinmetz asks: “Are we to see the witnesses as representatives of the community, as agents of the court, as representing the interface between the community and the court—or, perhaps, as a representation of the criminal’s self-condemnation through choosing to act as he has done, since it is the witnesses who attest to the criminal’s commission of the act pursuant to his acceptance of the hatra’a (warning)?”130 The answer is—all of the above. On one hand, the Rabbis assert control over the executioner, deﬁning who he is and what he must do. On the other hand, the Rabbis sometimes withdraw, leaving the executioner anonymous, obscuring the agent of execution. As I discussed in the previous chapter, such obscuring of agency is an extremely common feature of rituals of execution: a hood covering the executioner’s head, a ﬁring squad, the modern American execution team, are all modes of dispersing or clouding responsibility. For the Rabbis, this anonymity is created textually, by interpretive elisions. In deﬁning the executioner—but also refusing to—rabbinic authority confronts its own limits, the outer boundaries of its claims to exercise force.

5 Performing Execution, Part 2 The Relatives and the Rabbis

Family Claims The characters discussed in the previous chapter—the bloodavenger, the community, and the witnesses—are all found involved in biblical execution in one form or another, even if the Rabbis alter their role in execution. But the characters I turn to in the present chapter, ﬁrst the criminal’s relatives and then the Rabbis themselves, do not appear at all in the Bible’s schemes of execution.1 To be sure, the Bible does worry about cross-generational punishment; Deut 24: 16 expressly forbids that parents be executed for the sins of their children or vice versa (“Fathers shall not be put to death for sons, nor sons be put to death for fathers: a person shall be put to death only for his own sin”). Deuteronomy’s concern is that a criminal’s family not be held accountable for his crimes. If anything, then, biblical law seems to want to exclude the criminal’s family from any involvement in his punishment. In biblical narrative, on the other hand, particularly when God punishes, the sinner’s family is frequently punished along with the sinner.2 Perhaps picking up on the biblical canon’s complications regarding the extent of the family’s accountability in the commission of a crime, the Rabbis impose a new requirement on the family to dissociate themselves from their errant relative.3 The relatives must prove their moral mettle by publicly afﬁrming the court’s conviction. The question I will be addressing in the ﬁrst part of this chapter is why: Why must the relatives repudiate their family bonds? I suggest that rabbinic judicial authority means to pit itself against the bonds of family and come out the victor. The Rabbis put this guilt to new

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ends to fashion a sharp dichotomy between themselves and the relatives that serves to deﬁne the nature of rabbinic primacy. The family of the criminal enters the procedure of execution at its end, appearing in the last mishnahs of Sanh. 6 (a text brieﬂy discussed in the previous chapters): And they would not bury him in the graves of his fathers, but rather two gravesites were prepared for the court, one for those killed by decapitation and by strangulation, and one for those killed by stoning and by burning. When the ﬂesh is consumed, they gather the bones and bury them in their place. And the relatives come and ask after the welfare of the judges and the welfare of the witnesses, that is to say, that we have nothing in our hearts against you, that you judged a judgment of truth. And they would not mourn with full ceremonies (mitablin), but they would mourn the day of the death (onenin),4 since mourning the day of the death (aninut) is only in the heart.5 In this ﬁnal sequence of the execution, the Mishnah determines the burial place of the criminal, requires the relatives to salute the judges and afﬁrm the execution, and then prohibits the relatives from the full rituals of mourning. To summarize, there are four main elements of the law: 1. the prescription for separate burial: “and they would not bury him . . .” 2. secondary burial: “when the ﬂesh is consumed, they gather the bones . . .” 3. the relatives’ salute: “and the relatives come and ask after the welfare of the judges . . .” 4. the prohibition on full mourning (avelut), but permission to engage in limited mourning (aninut): “and they would not mourn . . .” The rituals of full mourning to which the Mishnah refers in its last element probably include prohibitions during the early period of mourning on washing, work, and other activities whose omission is publicly antisocial.6 Included also would likely be the eulogy, a practice reaching back to the Bible, accompanied by self-afﬂiction, lamentations, clapping, and praise for the dead man, often given not once but in a series that extends until the one-year anniversary of death.7 These practices of avelut publicize the mourning process to the community, and in so doing, bring honor to the deceased.8 Aninut, on the other hand, includes exemptions from commandments such as prayer, recitation of the Shema, and the wearing of phylacteries, which are based on the assumption that the onen is too busy with burial needs to observe these routine rituals.9 The Mishnah here characterizes the practices of aninut, in distinction from the practices of avelut, as being “only in the heart,” in other words, private, but it is not altogether clear why the exemptions of aninut would be inherently more private than some of the practices of avelut. Perhaps the Mishnah’s principle of contrast is their different time frames, with the short-term exemptions of aninut having less public impact than the longer-term prohibitions of avelut.

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The Mishnah might also have in mind the contrast between aninut’s more passive exemptions and the many active practices of which avelut consists. Ultimately the Mishnah here seems to be focusing less on the legal customs of aninut, the exemptions from commandment, than on its literal meaning, that is, grief or oppression.10 The operative distinction between aninut and avelut seems to be that the former is primarily a matter of private affect, while the latter consists of public practice. These mishnahs carry a host of ambiguities: First, what is the signiﬁcance of separate burial? Second, what is the signiﬁcance of secondary burial, and in which site is secondary burial performed?11 The Mishnah says ambiguously that the bones are reburied into “their place.”12 What place is that? Third, why does the Mishnah permit the limited day-long mourning of aninut but prohibit the full year-long mourning of avelut? The Mishnah gives the reason that aninut is “only in the heart,” but why does privacy make aninut permissible? Fourth and ﬁnally, how might all these gestures be related to one another in signiﬁcance—the separate burial, the secondary burial, the salute of the judges by the relatives, and the prohibition on full mourning? Is there a principle of coherence? The related pericope in the Babylonian Talmud tries to answer some of these questions. The pericope, which deals with an early amoraic disagreement about whether invalidation of a sacred offering can be revoked, draws into its discussion an apparent dispute between Abaye and Rava over whether a person killed because of his wickedness (neherag mitokh risho) receives atonement as a consequence of his death.13 It is not entirely clear what these Rabbis mean by the phrase, “a person killed because of his wickedness,” but the later layers of the Talmud construe it as “a person killed by execution.” According to Rava’s position, a wicked person who is executed gains atonement through his punishment, while according to Abaye’s position that person does not gain atonement.14 Mishnah Sanhedrin 6:6 enters the dialogue in support of Abaye’s position: Know—as we teach [in a mishnah]: “They would not bury him in the graves of his fathers.” And if it should arise in your mind that since they were killed, they gain atonement—then let them be buried [in the graves of their fathers]! The Babylonian Talmud here injects a concept of atonement into the Mishnah: The criminal’s separate burial is understood to be a consequence of his allegedly unatoned state. The criminal cannot be buried with his fathers since he still bears his sin. The anonymous voice of the Talmud’s redactor makes a rejoinder, asserting that punishment does bring atonement, but in a more extended process: “We need death and burial [for atonement to take place]!” According to the anonymous voice, punishment brings atonement but only after burial.15 Rava’s position is conﬁrmed, though in slightly modiﬁed form. Rav Ada bar Ahavah,16 an early fourth-century Babylonian Amora, next enters the pericope:

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execution and invention Rav Ada bar Ahavah raises an objection [from a Mishnah]: “They would not mourn with full ceremonies, but they would mourn the day of the death, since mourning the day of the death is only in the heart.” And if it should arise in your mind that since they are buried, they are atoned, then let them be mourned!

Rav Ada bar Ahavah brings the Mishnah’s prohibition on full mourning, the fourth element, apparently in order to refute the talmudic redactor’s conclusion that capital punishment combined with burial results in atonement. The redactional interference with Rav Ada’s statement is easily detectable, however, since Rav Ada’s statement not only uses language that typiﬁes the Talmud’s anonymous redactors—phrases such as “if it should arise in your mind” as well as an Aramaic discursive style—but also responds to a redactional statement, “we need death and burial [for atonement to take place].” It is more plausible that Rav Ada is responding to Rava’s simpler position that execution earns atonement rather than to the redactor’s proposition that atonement requires not only death but also burial. Rav Ada, we can deduce, brings m. Sanh. 6:6 in order to challenge Rava’s view that the executed criminal, by means of the execution itself, earns atonement. According to Rav Ada’s challenge, the Mishnah’s prohibition on full mourning for the executed criminal implies that he does not gain atonement. But the talmudic redactor’s more radical interference in the pericope lies ahead. The anonymous redactor counters Rav Ada’s apparent argument: “We need also consumption of the ﬂesh.” The redactor pushes off the moment of atonement yet again, now until the corpse’s ﬂesh is gone, in order to defend Rava’s position that capital punishment does, at least eventually, effect atonement. The redactor then brings the second element of m. Sanh. 6:6, the direction for secondary burial, this time to support Rava’s position: I can also prove it, since we taught [in the Mishnah]: “When the ﬂesh is consumed, they gather the bones and bury them in their place”—learn from it. With this ﬁnal move, the redactor introduces an interpretation of the Mishnah that leads to an entirely new conception of it, which medieval commentators and contemporary scholars subsequently embrace.17 Capitalizing on the Mishnah’s ambiguity, the redactor reads “in their place” in the Mishnah to mean, “in their rightful resting place,” which is interpreted as the ancestral plot. In this reading, the purpose of the secondary burial is to transfer the body from the separate plot to the ancestral plot once the criminal’s process of atonement is complete. This new understanding of the primary and secondary burial retroactively refashions our understanding of the Mishnah’s fourth element, the prohibition of full mourning. The family’s restrictions on mourning are seen to be not simply a consequence of the criminal’s unatoned state, as Rav Ada’s challenge suggests; rather, the minimized mourning becomes an active step that the family takes in order to help bring about the criminal’s atonement. As the

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medieval commentator Rashi (acronym for Solomon ben Isaac, 1040–1105) explains, the disgrace of not being mourned contributes to the process of atonement—the more suffering, the better.18 By the time this pericope draws to its close, the Talmud’s redactor has molded this Mishnah around the principle of atonement, such that the different parts of the Mishnah all seem to work towards the criminal’s ultimate atonement and literal reincorporation of his body into the family structure. The Babylonian Talmud’s understanding of the Mishnah has some problems, however. First, it presupposes that the secondary burial takes place in the ancestral plot, even though Mishnah 5 prescribes separate burial, and Mishnah 6 is at best ambiguous in directing the criminal’s bones to be buried “in their place.” “In their place” is read, according to this understanding, as referring to the gravesites of his fathers, even though such burial was forbidden in the previous legislation! This reading of the Mishnah is forced to ﬁll in the blank by supposing that a successful process of atonement takes place, allowing for family burial once the atonement is gained. But a successful process of atonement is never mentioned by the Mishnah itself. Atonement is mentioned earlier in chapter 6 with respect to the criminal’s confession, where he asks that his death be an atonement for his sins. But this theme is not picked up again later. One might argue that the ﬁnal Mishnah comes to teach that the process of atonement is an extended one that reaches completion with the decay of the ﬂesh, but the Mishnah does not explicitly connect the secondary burial with atonement. This reading of the Mishnah thus has two trouble spots: (1) It reads “in their place” as referring to the ancestral plot, even though there is no clear precedent for it, and (2) it reads in a process of successful atonement that allows for family burial. A third problem is that this understanding of the Mishnah does not coherently knit in the relatives’ salutation to the judges and witnesses. If these ﬁnal Mishnahs are dealing primarily with the process of the criminal’s atonement, then why do they insert into the middle of this discussion a clause asking the relatives to afﬁrm the court’s decision? The relatives’ salutation in fact seems to work thematically against the Talmud’s interpretation of the chapter as a whole, according to which the Mishnah is campaigning for the redemption and reincorporation of the criminal.19 The redactor’s own formulation leaves room for dismantling it: His concluding interpretation of the Mishnah bears a hint of insecurity, “I can also prove it. . . .”20 His interpretation of the Mishnah has the feeling of suggestion, of one possibility among several. I would like to examine and question the two major assumptions that the redactor has built into this Mishnah: ﬁrst, that the criminal’s secondary burial represents the successful completion of a process of atonement, and second, that the criminal’s secondary burial takes place in the ancestral plot. These two assumptions are closely related to one another, but it will be useful to look at them separately, since the ﬁrst requires us to understand the practice of secondary burial among the Jews of late antique Palestine, while the second is best approached by careful reading of the Mishnah’s phrase, “in their place.” Let us consider secondary burial in late antique Palestine. Does archaeo-

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logical research bear out the redactor’s association between secondary burial and atonement?21 The archaeological research does not deal speciﬁcally with the case of secondary burial for a criminal, but if the redactor is correct, we should expect to see some evidence that the standard practice of secondary burial was motivated by a belief that it effected atonement. Some archaeologists do come to the conclusion that this belief lay behind the practice of secondary burial. According to one such archaeologist, Eric Meyers, rabbinic Jews attributed a positive religious value to the process of the body’s decomposition, which they considered to earn atonement for that man’s sins during his lifetime. Meyers brings m. Sanh. 6:5–6 and a baraita in the Palestinian Talmud as evidence for such a belief. The Palestinian Talmud text describes a “release from judgment” that occurs upon secondary burial: At ﬁrst they were buried in ditches.22 After the ﬂesh was wasted away, the bones were gathered and placed in chests.23 On that day he (the son) mourned; on the next day he rejoiced, saying: “They have released my father from judgment (din).”24 Meyers understands “release from judgment” to refer to a process of atonement which has reached completion. Meyers also brings m. Mo’ed Qat. 1:5, where the proper response to secondary burial is the subject of dispute: Rabbi Meir said: A man may gather the bones of his father or his mother, since to him this is an occasion for rejoicing. But Rabbi Yosi says: It is to him an occasion for mourning.25 From these texts and several more tangential ones, Meyers concludes that “by the time ossuaries were in wide usage amongst the Jews, from the middle of the ﬁrst century b.c. and until the fourth century a.d., secondary burial had a rather elaborate theology to go along with it. The roots of that theology are to be found in biblical and tannaitic literature and are often clariﬁed by the later talmudic material.”26 Levi Rahmani differs from Meyers in his assessment of the historical antiquity of the custom of secondary burial,27 but he similarly argues that it was understood as an attempt to expiate sins, or alternatively, to preserve the bones for individual bodily resurrection.28 Besides m. Sanh. 6:5–6, Rahmani considers also m. Ed. 2:10, where Rabbi Akiva declares that the period of judgment for the wicked in Gehennom is twelve months long—Rahmani suggests that Rabbi Akiva has in mind the period of decomposition of the ﬂesh. Rahmani concludes that “there is no doubt, that this view was widespread until the beginning of the second century ce, at least.”29 Rachel Hachlili and Ann Killebrew follow Rahmani in his emphasis on expiation.30 David Kraemer also accepts this view of secondary burial, that the Rabbis of the Mishnah believed that “decomposition brings suffering to the dead and realization of atonement (the ﬂesh ﬁnally being gone) represents the end of that suffering.”31 The verb k-f-r, “to atone,” literally means “to wipe clean”: Ancient Jews may have collapsed the two meanings when it came to secondary burial, presuming that

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once the bones were cleaned of ﬂesh, so too was the soul cleaned of sins.32 Nissan Rubin also afﬁrms the religious explanation, inferring from the rabbinic texts a belief that the ﬁrst twelve months after death—the decomposition period—is a period of judgment, after which it is determined whether that person was righteous or wicked. If the bones remain, then God has decided that the person was righteous, and the relatives may rejoice. But some of these archaeologists and others also refer to other explanations for secondary burial having to do with the pragmatic concern of saving tomb space. Nahman Avigad, Pesach Bar Adon, and Nissan Rubin all suggest that secondary burial was the solution to a technical-economic problem in burial.33 Jewish burial in ancient Palestine was organized according to family; the members of the family were buried together in an expensive burial cave. When the cave was ﬁlled, few families had the means to add new caves. Even burial in a pit next to the cave could prove expensive. Bone-ﬁlled ossuaries, which were relatively small and could be piled one on top of the other, occupied less space than a cofﬁn or sarcophagus.34 The widespread practice of gathering bones and performing a secondary burial thus developed to make possible a proper family burial that was too expensive at the initial time of death,35 and it was facilitated, according to Steven Fine, by the rise of a community of welltrained stone masons responsible for Herod’s building projects.36 In fact, according to Rubin’s evidence, which includes rabbinic sources, secondary burial became the solution to any number of practical problems arising with respect to burial. For instance, if a fertile ﬁeld had been used for burial, the bodies could be removed and secondarily buried in order that the ﬁeld be available for agricultural use.37 Rubin concludes that the understanding of the practice of secondary burial as the fulﬁllment of a process of atonement is a later rationalization and justiﬁcation for what was essentially a practical measure to make family burial possible.38 According to scholars of rabbinic period burial, then, it is less than clear that secondary burial was practiced primarily for the sake of atonement. Rubin shows that a practical explanation is equally if not more compelling. Of course, pragmatic and religious explanations are not mutually exclusive. Nevertheless, I would argue that the atonement explanation of secondary burial is somewhat shaky, since our Mishnah is the central piece of evidence, and as I have shown, if we read it without the talmudic overlay it does not attest to a successful process of atonement; it is only with the much later talmudic redactors that the Mishnah comes to be read this way. The other rabbinic texts used as evidence also do not talk about atonement explicitly, or they come from a later period. A textual parallel for this Mishnah found in the Tosefta conﬁrms our skepticism of the redactor’s interpretation: When the ﬂesh is consumed, representatives of the court gather the bones and bury them in a box, and even a king of kings they do not bury in the graves of his fathers, but rather in the graves of the court. They had decreed two gravesites for the court: one for those

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execution and invention who are stoned and burned, and one for those who are decapitated and strangled. . . .39

The Tosefta destroys the association between secondary burial of the criminal and his atonement by explicitly requiring that the criminal be reburied not in the ancestral gravesite but in the gravesite of the court. Reversing the Mishnah’s order, the Tosefta ﬁrst describes the decaying ﬂesh and secondary burial and only then tells of the separate criminal burial plots. This reversed order makes it impossible to understand secondary burial as the fulﬁllment of a process of atonement upon which the criminal can be reburied with his fathers, since the Tosefta makes it emphatically clear that the criminal is never gathered again to his family! The redactor’s explanation fails for the Tosefta, leaving the question: Why is secondary burial prescribed here if its purpose is not to join the criminal with his fathers? Rubin’s pragmatic explanation of secondary burial provides the answer. Moreover, Rubin’s explanation allows us to see new layers of signiﬁcance in the Tosefta’s secondary burial for the criminal, which now seems to be an inversion of normal secondary burial. According to Rubin, secondary burial’s standard purpose is to allow a person to be reburied with his family. In the case of the criminal, however, the secondary burial takes place in the plot of the court, and the Tosefta explicitly excludes family burial: “they do not bury in the graves of his fathers.” By proposing a secondary burial that is not a family burial, the Tosefta emphasizes the criminal’s permanent exclusion from family.40 The question remaining is how to understand the relationship between this mishnah and this tosefta. We can ask, ﬁrst, which text came earlier, and second, whether the later text was created to clarify the earlier text or to contest it. As is traditionally assumed, it may be that the tosefta was constructed later. If that is the case, the tosefta’s purpose may have been to explicate the earlier mishnah’s ambiguous “bi-meqomam.” But the tosefta might instead be the earlier text.41 In that case, the mishnah may have intentionally injected ambiguity into the earlier tosefta’s formulation in order to produce a new meaning, that is, reburial into the ancestral site, the meaning that the Talmud’s redactor explicitly selects.42 On the other hand, the mishnah’s purpose may simply have been to abridge the tosefta. The mishnah does not spell out the criminal’s burial location because it assumes that the location is obvious—in the separate site! When the mishnah mentions secondary burial, it does so not to add a new burial site, an ancestral site, but for precisely the opposite reason, to make clear that the criminal should not be reburied in the ancestral site on the occasion when ancestral burial usually occurs.43 While the mishnah and the tosefta may well presume that the criminal ultimately receives atonement—both the mishnah and the tosefta assert earlier in this chapter that the criminal who confesses is given a portion in the world to come44—they do not prescribe for him a burial that publicly recognizes his atonement. The talmudic redactor’s activity here is characteristic; he weaves his sources into a carefully conceived pericope. One might ask why the redactor reworks his materials in the particular way that he does: Why does he interpret

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this mishnah so thoroughly in terms of atonement? First, the Talmud’s redactor seems to be taking his cue from Rav Ada, who suggests an association between atonement (or lack thereof ) and the Mishnah’s prohibition on full mourning, though the redactor does drastically expand the principle of atonement beyond Rav Ada’s suggestion. Second, by interpreting the Mishnah along these lines, the redactor stages an elaborate conversation between this Mishnah, Rava and Abaye, and Rav Ada. Third, a change in reality may lie behind the redactor’s work. Secondary burial was no longer performed in the sixth century in Babylonia, and the redactor may not have understood its logic—as we today are still uncertain.45 The redactor’s unfamiliarity with secondary burial may have led him to understand the Mishnah’s “in their place” as a reference to the ancestral plot, since the secondary burial then appears to have a purpose, that is, to transfer the body from the court to the family. Without such a purpose, secondary burial, to one unfamiliar with the practice, seems unexplainable. Finally, the redactor perhaps is also incorporating changed social attitudes into his new sequence. The talmudic redactor’s criminal, unlike the Tosefta’s and the Mishnah’s, is ﬁnally accepted back into the community. Meir Bar-Ilan argues that the redactor’s interpretation “does not get at the plain meaning of the Mishnah, but reﬂects a later custom than the Mishnah, displaying much greater tolerance.”46 Bar-Ilan’s assessment applies not only to the talmudic redactor with respect to the Mishnah but also to the talmudic redactor vis a` vis Rav Ada. The talmudic redactor reverses the interpretive trend set by Rav Ada, according to whom the family is forbidden from full mourning because of the criminal’s unatonable wickedness. The talmudic redactor takes Rav Ada’s reading as his starting point but turns it around, allowing the dead man to be purged of his evil and ultimately restored.47 Contemporary methods of source criticism—that is, extricating the mishnah from the redactor’s hand and reading it instead with its toseftan parallel— help to reveal the politics of burial at work in the mishnah. All four elements of this mishnah—the separate burial, secondary burial, prohibition on public mourning, and relatives’ salutation to the court—begin to make sense as a uniﬁed strategy to exclude the criminal from the community and simultaneously to afﬁrm the just power of the rabbinic court. The very structure of the Mishnah hints at its exclusionary politics: “And they would not bury him in the graves of his fathers, but rather two gravesites were prepared for the court. . . .” The court and the family form a dichotomy, with court burial coming to exclude family burial.48 According to Hachlili and Killebrew, Jewish burial going back to the Bible was conceived of and practiced according to the family group: “The biblical concept of burial was ‘to be buried with your people,’ perhaps indicating a tribal burial. After the settlement of the Israelite tribes in the land of Israel, one was to be buried in a family tomb (‘to sleep with’ or ‘to be gathered with your fathers’ ancestors’). Thus already at this time the concept of family burial was strong.”49 Jewish burial practices of the Roman period began to place more emphasis on the individual but still remained oriented primarily towards the family. Hachlili and Killebrew show that loculi tombs found in the land of Israel in the Hellenistic period are planned so that

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a family can be buried in the same tomb.50 Drawing conclusions from both rabbinic texts and archaeological evidence, Rubin likewise explains of rabbinic burial practices that “normally people were buried in family burial estates, whether in caves or in the ground.”51 This practice of family burial is also reﬂected in rabbinic law, which affords protections for the family tomb.52 Also in Roman custom of this period, burial was organized according to family plots.53 Rubin explains family burial as an attempt to create for every individual a sense of “permanence and connection with the community.”54 Conversely, the Mishnah’s prohibition on family burial denies the criminal’s connection with the community. As Bar-Ilan writes of this Mishnah: . . . the punishment of transgressors was not just in this world, but continued into the next world; for just as the transgressor was distanced from the community by means of his execution, so was he distanced from it by prohibiting the transferral of his body to his family for burial in the grave of his fathers, since the court had special sections dedicated to transgressors after their death. If so, just as people wanted to be buried with their family after their death, thus did they want to distance those who were not ﬁt to live with their families, both during their lives and in their deaths.”55 As Rav Aha bar Hanina in the Babylonian Talmud explains, “one does not bury a wicked person next to a righteous one.”56 The Tosefta makes the dichotomy between court and family even sharper, adding two elements not found in the Mishnah. First, it directs “representatives of the court” (sheluhei beit din) to perform the operations of bone-collection and burial. Josephus’s narratives suggest that normally these activities would have been taken care of by the family57; the Tosefta thus doubly substitutes the family with the court, not just in the location of burial but also in its preparations. Moreover, the Tosefta emphasizes the utter unbreachability of criminal separation: “even a king of kings” is subject to criminal burial. Similar separations are to be found with medieval European executions, after which the criminal was buried in grounds adjacent to the church: “Those who died in the hands of the law were excluded permanently.”58 The Mishnah’s prohibition on full mourning can be similarly unpacked. The Mishnah itself tells us its purpose in making this prohibition—to avoid public recognition of the dead. The Mishnah allows aninut because it is “only in the heart”; it refuses only those honors that are of a public character. The restriction of full mourning thus has the same signiﬁcance as separate burial; just as the criminal is not literally reincorporated into the community through family burial, neither is his memory symbolically reincorporated through the activities of mourning. Precedents and parallels of criminal execution reveal the logic of prohibitions on public mourning: It can imply that the criminal did not deserve to die, either because he did not commit the crime or because the act he committed should not be considered a crime.59 In short, mourning can function as a form of resistance. This theme can be traced all the way back to Sophocles’s Antigone, in which Antigone deﬁes Creon’s orders that her trai-

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torous brother Polyneices not be mourned or buried. Even though she is his niece and future daughter-in-law, Creon executes her because of the disruption to authority that her mourning produces, proclaiming: “There is nothing worse than disobedience to authority.”60 Closer to the rabbinic period, Philo suggests similar resonances in his essay describing the career of Flaccus, the prefect of Alexandria during the reigns of Tiberius and Gaius. Here he mentions one way in which the emperor’s birthday would be celebrated: I have known cases when on the eve of a holiday of this kind, people who have been cruciﬁed have been taken down and their bodies delivered to their kinsfolk, because it was thought well to give them burial and allow them the ordinary rites. For it was meet that the dead also should have the advantage of some kind treatment upon the birthday of an emperor and also that the sanctity of the festival should be maintained.61 Philo’s description implies that normally the families of criminals were not given the bodies to bury and to mourn. Roman emperors, it would seem, excluded criminals from the normal rites, presumably because such rites would disrupt imperial authority. Roman historians make the reason explicit: The family’s mourning was viewed as a rebellion against the emperor. Tacitus narrates a series of prosecutions for imperial treason: “Even women were not exempt from peril. As they could not be accused of grasping at sovereignty, they were indicted for their tears; and the aged Vitia, mother of Fuﬁus Geminus, was put to death because she had wept at the killing of her son.”62 Public mourning over the death of a traitor itself becomes an act of treason. Here the mother of Fuﬁus Geminus, who committed suicide when facing charges,63 is executed for her tears.64 Tacitus describes the same prohibition later in his narrative, applied not just to suicides but to criminals who have been executed. Tiberius executes complicitors with Sejanus, Tiberius’s traitorous consul: On the ground lay the huge hecatomb of victims: either sex, every age; the famous, the obscure; scattered or piled in mounds. Nor was it permitted to relatives or friends to stand near, to weep over them, or even to view them too long; but a cordon of sentries, with eyes for each beholder’s sorrow, escorted the rotting carcasses, as they were dragged to the Tiber, there to ﬂoat with the current or drift to the bank, with none to commit them to the ﬂames or touch them. The ties of our common humanity had been dissolved by the force of terror; and before each advance of cruelty compassion receded.65 Tacitus censures the prohibition on the relatives of the executed from public mourning and from burying the bodies of their dead. The association between relatives’ mourning and potential rebellion is found also in Suetonius’s accounts. Suetonius describes the same reign of terror by Tiberius after the execution of Sejanus: “It is a long story to run

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through his acts of cruelty in detail; it will be enough to mention the forms which they took, as samples of his barbarity. Not a day passed without an execution, not even those that were sacred and holy. . . .The relatives of the victims were forbidden to mourn for them. . . .”66 Like Tacitus, Suetonius condemns the prohibition on mourning; he lists it among Tiberius’s acts of cruelty. The Digest of Justinian indicates that this prohibition may have been unique to the criminal executed for treason. In a section entitled “Dead Bodies of Punished Persons,” the jurist Ulpian, praetorian prefect from 222 until his murder in 228, relates the following law: The bodies of those who suffer capital punishment are not to be refused to their relatives; and the deiﬁed Augustus writes in the tenth book of his de Vita Sua that he also had observed this [custom]. Today, however, the bodies of those who are executed are buried in the same manner as if this had been sought and granted. But sometimes it is not allowed, particularly [with the bodies] of those condemned to treason. The bodies of those condemned to be burned can also be sought so that the bones and ashes can be collected and handed over for burial.67 While the family is said to generally have the right to the criminal’s body, an exception is made for the crime of treason. The cases described by Tacitus and Suetonius in which the relatives are prohibited from burial and mourning are in fact cases of treason. The Digest of Justinian suggests, then, that the prohibition against mourning criminals might have been the exception rather than the rule, imposed by tyrannical emperors in situations in which they felt their power threatened. Indeed, Tacitus and Suetonius, criticizing the imperial practice, ﬁnd it unusually cruel rather than routinely authoritarian. I do not intend to make a positive historical link between the Mishnah’s mode of execution and that of Roman emperors. The chronological, geographical, and political distance between the Mishnah and, for instance, Tiberias’s activities in Rome, is too great. But these Roman sources do help to illuminate the potential implications of mourning a criminal. Mourning and burial of the executed criminal can be construed as resistance to the executing authority, associated with and tantamount to the crime of treason. In a parallel to the Roman emperors described by the historians, the Rabbis keep the right of burial of a criminal for themselves in order to assert the inviolability of their authority.68 On the other hand, the Rabbis treat the criminal’s corpse with relative respect and do not mention the penalty for the relatives if they disobey, in marked contrast to the Roman rulers and to the Greek tragic tradition.69 The relatives’ salutation is the part of criminal execution that most explicitly deals with the problem of rabbinic authority. This clause of the Mishnah directs the relatives to salute the judges and the witnesses: And the relatives come and ask after the welfare of (sho’alin bishlom)70 the judges and the witnesses, that is to say, that we have

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nothing in our hearts against you, that you judged a judgment of truth. This motif of asking after the welfare of another person, or salutation, appears in quite a number of tannaitic texts. Mishnah Berakhot 2:1 permits one to interrupt the recitation of the Shema prayer and its blessings in order to greet one’s superiors whom one fears. Mishnah Gittin 5’s lists leniencies for the sake “of the ways of the peace” including salutation between Jew and non-Jew.71 In both these cases, salutation is prescribed in a setting of social asymmetry wherein the inferior must reluctantly salute the one who outranks him. But she’ilat shalom can also work in the opposite direction—by withholding greeting, one can assert social superiority. For instance, the Tosefta restricts Jews more so than does the Mishnah in the she’ilat shalom of non-Jews: Jews must greet non-Jews only on their holidays or by happenstance, without levity.72 Along these lines, m. Ber. 5:1 and t. Ber. 3:22 forbid the interruption of the standing prayer and the act of writing God’s name even for the greeting of a king, showing the superiority of divine authority to even the highest human authority. Just as the giving of a greeting acknowledges the claims of the other, so too does the omission of greeting deny those claims. The relatives’ she’ilat shalom of Mishnah Sanhedrin employs the same signiﬁcances. Like the person who interrupts his Shema for the sake of honor or out of awe, as m. Ber. 2:1 legislates, so too do the relatives acknowledge their respect and fear of rabbinic authority. Moreover, this greeting takes place in a ﬁeld of potential conﬂict, as do the greetings of Mishnah Gittin. The she’ilat shalom forces the relatives to make peace, to follow the “ways of peace,” darkhei ha-shalom, as Mishnah Gittin expresses it, even though the relatives might very well feel hostile to the court. As Mishnah Sanhedrin goes on to explain here, she’ilat shalom is the strategy by which the situation of social tension is restored to harmony: “That is to say, we have nothing in our hearts against you, that you have judged a judgment of truth.”73 The withholding of such salutation— its absence—might conversely imply resistance, as suggested by Tosefta Avodah Zarah and Mishnah and Tosefta Berakhot. Behind the salutation lies the threat of silence, which would deny the court’s justice, hinting that it did not “judge a judgment of truth.”74 She’ilat shalom occurs in one other context very similar to the one in Mishnah Sanhedrin, that of general mourning laws, where she’ilat shalom is forbidden altogether in the ﬁrst three days of morning.75 On b. Mo’ed Qat. 21b, a baraita prohibits greetings early on in the process of mourning but then gradually permits greetings as the mourner gets further away from the day of death: “The ﬁrst three days, she’ilat shalom is forbidden; from the third until the seventh [day], he can return [greetings] but cannot make them; from then on he can make greetings and return them as is his [normal] way.” As Rubin explains, this practice is one of many rituals of isolation imposed on the mourner.76 Juxtaposing this baraita with the Mishnah in Sanhedrin, we see that the mourners of an executed criminal are directed to do just what a normal mourner is prohibited from doing, i.e., she’ilat shalom. In other words, the relatives of the

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executed criminal are prevented from acting in the same way as the relatives of any other deceased person. The she’ilat shalom of the Mishnah in Sanhedrin not only compels the family to submit to the rabbinic court but also doubly prohibits them from the standard practices of mourning. While the Babylonian Talmud’s pericope forces a piecemeal reading of m. Sanh. 6:5–6 that entirely excludes the element of she’ilat shalom, the principle of rabbinic authority allows the chapter to be understood as a coherent whole. The ﬁrst element, separate burial, asserts the priority of the court over the family. By claiming exclusive rights to the body of the criminal, the rabbinic court makes its authority superior to that of the family in this boundary generating case. One who transgresses rabbinic law forfeits one’s place in the family and in the community. Family and community then seem to depend for their existence on rabbinic approval; they ultimately appear to be constituted by the Rabbis’ schemes of deﬁnition. The Mishnah’s secondary burial, the second element, emphasizes the court/family dichotomy even further. While secondary burial normally is used for the sake of family burial, in the case of the criminal it is not: The criminal stays separate even upon the collection of his bones, precisely the time when most people are ﬁnally gathered with their ancestors. The relatives’ salute and their prohibition on full mourning, the third and fourth elements, also deal with the dichotomy of family and court, though with its more immediate, public dimensions. In the relatives’ salute, they must publicly subordinate themselves to the decision and action of the court. Though they may privately oppose the court’s execution, they must publicly conﬁrm its legitimacy. Along these lines, the relatives are prohibited from full mourning of the criminal because of mourning’s public nature. The logic of public and private is revealed when we view these two elements of the Mishnah in relation to one another and to the end of the chapter as a whole.77 The question motivating all this legislation is thus: What will everyone see? They will see the criminal buried ignominiously in the court’s graveyard; they will see the family make their peace with the court; they will see them go home and act as if no loss has been suffered. As Cohen writes of medieval European executions, “Like any magician’s audience, they [the viewers] saw exactly what they were meant to see and only that: The majesty of the law in its full efﬁcacy.”78 By imposing on the criminal’s relatives certain activities and prohibiting them from others, these several laws which conclude chapter 6’s ritual of execution, establish rabbinic authority speciﬁcally in its supremacy over the personal bonds of family. Rabbinic authority is administered, imposed, and ultimately accepted by those who could most poignantly disrupt it. But these Mishnahs may be understood not just as a kind of protective seal but as the active engagement of tensions. The Mishnah might well have chosen to exclude the family from execution completely, as biblical law does, or alternatively, to simply punish them, as the biblical God sometimes does. Instead, this chapter of Mishnah gives the relatives their own work—they must publicly choose their alliances. Several scholars of rabbinic culture have made note of such a tension between relative and Rabbi. According to Lee Levine, the Rabbis created a community to serve as an alternative to the family unit:

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“By promoting such values and striving to translate them into everyday behavior, the rabbis were able to forge a cohesive community for themselves, thus creating a kind of extended family. Much of the sense of togetherness, loyalty, and commitment which might ordinarily have been associated with the nuclear family now gained expression within their group.”79 Indeed, the rabbinic “family” was in competition with the biological family: “. . . the respect due a Sage was deemed greater than than due a father; the latter only brings a child into this world, whereas the former assures him a place in the world to come.”80 Daniel Boyarin points to rabbinic anxiety over their efforts to substitute genealogical ﬁliation with pedagogical, that is, to replace the father/son relationship with that of master/disciple, since pedagogical ﬁliation does not have the same guarantees: While a pregnant woman is assured, barring mishap, to produce a child, a Torah scholar can fail to produce another Torah scholar.81 Following Levine’s and Boyarin’s arguments that the Rabbis wished to create a superior alternative to the family—but that the Rabbis were at the same time anxious about whether their alternative was in fact superior—we can imagine that the Rabbis invoke the family here in order to subordinate it, that this scheme of criminal execution is designed to argue for the supremacy of rabbinic authority over the bonds of blood.

Rabbinic Claims The ﬁgure of the Rabbi does not appear in biblical execution for a simple reason—he did not exist at the time. The Bible does perhaps provide some precedent for him, however, not in its law but in its narrative, with male authority ﬁgures showcased as executioners. In contrast to biblical law, which largely requires the community to act as executioner, biblical narrative frequently portrays individual powerful men as executioners. In Gen 38:24, Judah orders his daughter-in-law Tamar to be brought out and burned.82 Pharaoh, in Gen 40:22, executes his chief baker by decapitation and then impalement.83 In Josh 8:29, Joshua is the agent responsible for impaling the King of Ai on a stake. Second Chronicles 24:21 keeps King Jehoash free from any hands-on involvement in the execution of Zechariah but makes clear that his command lies behind the public vengeance: “They conspired against him and pelted him with stones in the court of the House of the Lord, by order of the king.” Esther 7:9–10, Dan 3:6, and Ezra 6:11 all present stories in which kings command execution, though unlike 2 Chron 24:21, these kings are all foreign.84 An alternative to the model of execution set up by priestly and Deuteronomic law where God calls upon the community to execute its transgressors, these narrative passages show human male authority to be the prime mover behind execution, frequently with implicit critique. Most often this paradigm of execution is associated with non-Israelite authority—e.g., Pharaoh, Ahasuerus. But when it is associated with an Israelite—the patriarchal ﬁgure of Judah— it comes in the context of Judah’s irresponsible behavior. The Judah of Gen 38 who calls for Tamar’s execution is a man who is ready to give up his seal and

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scepter—the symbols of his ruling authority—to a passing harlot.85 In short, the male leader who calls for execution is not heartily embraced by biblical narrative. The rabbinic texts echo the biblical model. Rabbis who are portrayed as intimately involved in execution bear the burden of criticism within the rabbinic texts themselves. Only in the most exceptional of circumstances do the texts allow the Rabbi to take on the power of execution without castigation. In representing themselves as executioners, the Rabbis strategically represent an ambivalence towards power. The closer they get to representing themselves in the role of executioner, the more they appear to back away from it.

Execution Polemics In a baraita that appears in numerous rabbinic corpora—the Mekhilta, the Tosefta, the Palestinian Talmud, and the Babylonian Talmud—Judah ben Tabbai claims to have killed a conspiring witness.86 Judah ben Tabbai, in partnership with Shimon ben Shetah, was said to have acted as the third zug (pair) during the reign of the late Hasmonean high priest and king, Alexander Jannaeus, in the ﬁrst century b.c.e.87 While Judah ben Tabbai and Shimon ben Shetah, as well as the other pairs, are understood to be an earlier group distinct from the Tannaim, they are also represented as being in close continuity with the Tannaim, as found in the chain of transmission at the beginning of Mishnah Avot.88 Here is the Tosefta’s version of Judah ben Tabbai’s act of execution: Witnesses are never considered to be conspiring until the case has been concluded: they do not get lashes, pay, or get killed until the case has been concluded. One of the witnesses is never considered conspiring until both are considered conspiring: he is not given lashes until both are given lashes, and he is not killed until both are killed, and he does not pay until both pay. Rabbi Judah ben Tabbai said: May I see the consolation if I have not killed a conspiring witness in order to uproot [the false opinion] from the hearts89 of the Boethusians,90 who would say: “[the conspiring witnesses should not be killed] until the convicted man is killed.” Shimon ben Shetah said to him: May I see the consolation if you have not shed innocent blood, for behold the Torah said, “A person shall be put to death only on the testimony of two or more witnesses” (Deut 17:6)—just as witnesses are two, so should conspiring witnesses be two. At that time Judah ben Tabbai accepted upon himself to teach law only according to Shimon ben Shetah.91 This Tosefta is tightly structured: First it offers a series of legislations, and then it gives a narrative that is directly relevant to them. Both the legislations and

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the narrative deal with the punishment of a witness who is found to have conspired with his fellow witness to give false testimony. According to Deut 19:19, such a witness deserves the same punishment as that which he intended to inﬂict. The ﬁrst legislations in this Tosefta address the question of at what point in the falsely testiﬁed case the conspiring witnesses become liable for punishment; they legislate that conspiring witnesses are punished only after the original case has been fully heard and decided. The second set of legislations address the question of joint implication, establishing that only both witnesses together can be charged with conspiracy: A single witness, even if his testimony is found to be false, can be convicted only if his fellow witness is also convicted. In the episode that follows, Judah ben Tabbai proves to have supported the ﬁrst set of legislations at the expense of the second. He introduces information about an apparent dispute between the sages and the Boethusians with respect to the ﬁrst question regarding when a conspiring witness becomes liable for punishment. According to the Boethusians, says Judah ben Tabbai, the conspiring witness can be killed only after the subject of his testimony has already received his punishment. In the Mishnah’s parallel in m. Makk. 1:6, the Boethusians (or Sadducees as they are called in the Mishnah) base their law on lex talionis, the principle of life for life: Conspiring witnesses are not killed until the judgment is concluded. For behold the Sadducees say: [conspiring witnesses are not killed] until he (the falsely convicted man) is killed, as it is said, “life for life” (Lev 24:18).92 The sages said to them: And behold was it not already said, “you shall do to him as he schemed to do to his fellow” (Deut 19:21), and behold his brother [still] exists! But if so, why was it said: “life for life”? Is it possible from the time that their testimony is received that they are killed? The Torah teaches: “life for life”—behold they are not killed until the judgment is concluded.93 In the toseftan episode, Judah ben Tabbai announces to Shimon ben Shetah that he has killed a conspiring witness, seemingly after the delivery of the original false verdict, in order to refute the Boethusians, who require not just the delivery of the verdict but also its implementation. Shimon ben Shetah, in response, points out to Judah ben Tabbai that in the process he has transgressed the second set of legislations, those requiring that both witnesses be jointly charged with conspiracy.94 Apparently accepting Shimon ben Shetah’s criticism, Judah ben Tabbai thereupon determines that he will teach law only according to Shimon ben Shetah.95 This narrative attributes the agency of execution to a Sage. Judah ben Tabbai in all likelihood does not intend to say that he has with his own hands performed the execution—we might imagine that he is speaking metonymically of his court—but he does speak in the ﬁrst person, “haragti” (I killed), making himself at least syntactically the agent of execution.96 Judah ben Tabbai announces that his motivations were political—he executes the conspiring wit-

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ness, he says, “in order to uproot [the false opinion] from the hearts of the Boethusians.”97 This expression appears in tannaitic literature in two other contexts, both baraitot in the Babylonian Talmud, both dealing with Temple matters—the Temple being at the center of sectarian controversies.98 In these cases as well as the one under discussion, the law is established as such precisely in order to oppose the Sadducean law. In a baraita dealing with the red heifer, the priest is intentionally made impure and then ritually bathed in order to show that the Sadducean view, which held that the priest must additionally wait until sunset, is not being followed. In other words, the legislation requires a willful incurring of impurity solely for the purpose of polemics. In the baraita of Tosefta Sanhedrin, Judah ben Tabbai executes a conspiring witness, he tells Shimon ben Shetah, to shore up their position against that of the Sadducees.99 The politicization of execution does not go uncriticized within this text. Shimon ben Shetah retorts in sharp language that Judah ben Tabbai has “spilled innocent blood.” Shimon ben Shetah begins with the same oath that Judah ben Tabbai used—“May I see the consolation”—seemingly parodying Judah ben Tabbai’s wrongful pride.100 Judah ben Tabbai’s execution, done for the sake of the law, turns out to have inadvertently overturned the law, according to Shimon ben Shetah’s criticism.101 The same oath—“May I see the consolation”—appears with the same sages in t. Sanh. 8:3, with parallels in the Mekhilta, Palestinian Talmud Sanhedrin, Babylonian Talmud Sanh., and Babylonian Talmud Shevuot.102 In this passage, Shimon ben Shetah (Judah ben Tabbai in the Mekhilta) sees a murder but cannot testify because he is the solitary witness: Shimon ben Shetah said: May I see the consolation if I have not seen a person who ran after another and the sword was in his hand; he went before him into a ruined building; he went in after him; and I went in after him and found him killed and the sword in the hand of the murderer dripping with blood. And I said to him: Wicked one, who killed this one? May I see the consolation if either I or you did not kill him. But what can I do to you, since your judgment is not delivered into my hand, for behold the Torah said: “A person shall be put to death only on the testimony of two or more witnesses” (Deut 17:6)—rather the one who knows thoughts (God), he will exact payment from this person. They did not move from there until a snake bit him (the murderer) and he died.103 Shimon ben Shetah here uses the oath, “May I see the consolation,” both retrospectively to introduce the incident and also within the incident in his words to the criminal, literarily linking this story with the one discussed above.104 In the Mekhilta, this story (which appears instead with Judah ben Tabbai and without the oath) is coupled with the Shimon ben Shetah/Judah ben Tabbai story.105 These two stories seem to have developed in tandem, since they showcase the same sages and deal more or less with the same problem in criminal law, i.e., the problem of the single witness, and in the Tosefta, they deal also with the same biblical verse, Deut 17:6.106

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This second story (the murder in the ruined building) acts as a striking intertext for the ﬁrst. Shimon ben Shetah, in this second story, is altogether certain that the man standing before him is the murderer. Every piece of evidence is present—the initial pursuit, the entry of both men into a building, the dying man, the dripping sword—but Shimon ben Shetah is powerless to act because he is the only witness (the fact that he did not actually see the murder does not seem to trouble him107). Enraged by the circumstances, Shimon ben Shetah turns to sarcasm, posing to the murderer a rhetorical dilemma: “Either you or I killed him, but what can I do?” Shimon ben Shetah knows that he himself is not the murderer, leaving the man facing him as the all-too-obvious culprit. Shimon ben Shetah emphasizes his inability to manipulate the law—“your judgment is not delivered into my hands”—even in such a case where manipulation would be justiﬁed, i.e., where his knowledge is certain. It is in this matter that this story acts as an inversion of the ﬁrst story of the killing of the conspiring witness. Judah ben Tabbai, in the ﬁrst story, performs an execution when it is not justiﬁed, using it for political ends even though the law itself—the law prohibiting single conspiring witnesses— weighs against it. In this story, Shimon ben Shetah does not perform an execution even when it is justiﬁed, restraining himself with almost the same law— the problem of single witnesses—that Judah ben Tabbai ignores. The outcome of each story makes clear which is the preferable route. In the ﬁrst story, Judah ben Tabbai, in response to Shimon ben Shetah’s retort, cedes his authority as a Sage, from then on bowing to the other Sage’s rulings. Shimon ben Shetah, on the other hand, in the second story, sees the fulﬁllment of justice and the rightness of his decision afﬁrmed. The story ends with a deus ex machina, with God entering the scene and executing the murderer through the medium of a snake bite. The Sage who restrains himself, who makes himself subject to the autonomy of law, who in this case holds himself back from the power of execution, is approved by God himself, who carries out the execution with his own hand, so to speak. The story emphasizes the immediacy of God’s retribution—“they did not move from there”—making it clear that the snake bite is not a random event but rather God’s response to Shimon ben Shetah’s call, “the one who knows thoughts, he will exact payment from this person.” Shimon ben Shetah, in his reliance on God rather than on himself to carry out the execution, is vindicated. The stories thus provide a commentary for each other, working together to deﬁne the proper bounds of rabbinic authority. Both stories assume that the Sage has the power to execute criminals; the dilemma posed is whether the Sage will use that power wisely. Judah ben Tabbai, the story shows, does not use that power wisely—he uses it for political purposes and violates another law along the way. The Babylonian Talmud’s version of this baraita extends the critique of Judah ben Tabbai, adding one last segment to the story. . . . Judah ben Tabbai accepted upon himself to teach only according to Shimon ben Shetah. And all the days of Judah ben Tabbai he

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execution and invention would prostrate himself over the grave of that witness [whom he had killed], and his voice could be heard; and as the people thought to say: This is the voice of the killed person. He said: It is my voice. Know [it], for tomorrow he died and the voice was not heard.

In the Babylonian Talmud’s version of the story, Judah ben Tabbai is so stricken by Shimon ben Shetah’s charge of homicide that he spends the rest of his days prostrate over the grave of the man he has killed.108 Giving us insight into popular beliefs about the afterlife—or at least the rabbinic representation of them—the baraita concludes with the townsfolk surmising that Judah ben Tabbai’s weeping voice is really the voice of the dead man from the grave. Judah ben Tabbai’s immediate death, followed by the cessation of the voice, proves to the townsfolk—and to us, the narrative audience—that the voice was his, not that of the ghost.109 According to this version of the story, Judah ben Tabbai’s life has a tragic end. A crime of hubris lies at the tragedy’s center: Judah ben Tabbai’s wrongful exercise of his power of execution. In the Babylonian Talmud’s story, things go from bad to worse once Judah ben Tabbai announces his act of execution. First, his activity as a Sage is compromised—he decides to rule only according to Shimon ben Shetah, not according to his own opinion. He then spends the rest of his life crying in the graveyard, and, ﬁnally, he dies. This Sage’s decision to execute ultimately boomerangs, causing his own downfall and death.110 The Babylonian Talmud’s baraita acts as a cautionary tale to the polemicizing, power-minded sage. The sage may hold the power to execute, but he had better use it sparingly. To a wider audience, the Babylonian Talmud’s story projects a class of Sages who do not take the exercise of power lightly. A story that appears tangentially with the Mishnah’s law of hanging reverses roles, with Shimon ben Shetah acting as a hapless executioner: All those who are stoned are hanged; the words of Rabbi Eliezer. And the Sages say: Only the blasphemer and idolater are hanged. The man—they hang him his face towards the people, and the woman—her face towards the tree; the words of Rabbi Eliezer. And the Sages say: The man is hanged, but the woman is not hanged. Rabbi Eliezer said: But did not Shimon ben Shetah hang women in Ashqelon?” They said to him: He hanged eighty women, and one does not judge two [people] in one day.111 Against the Sages, Rabbi Eliezer holds that all executed bodies are hanged, including those of women, and he brings evidence of women’s hangings from the preceding period of the zugot, “pairs.” The Sages deﬂect Rabbi Eliezer’s piece of evidence, clearly familiar with the incident, declaring it an aberration. Shimon ben Shetah’s hanging cannot be used as a legal precedent, since he hanged eighty women at once, while the law limits executions to one a day. Like the last story, this one functions as a cautionary tale for the Sage-whowould-be-executioner. Again, the story’s presumption is that the Sage has full power to execute criminals. But the stories show that the Sage who embraces

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this power too assiduously risks losing it altogether. In the previous story, Judah ben Tabbai’s execution leads him to give up his lawmaking autonomy; here in the Mishnah, Shimon ben Shetah is excluded from the set of legal precedents used by his tannaitic successors. Shimon ben Shetah, at least regarding this matter, is consigned to the refuse bin of oral tradition, his act stripped of legal weight.112 Shimon ben Shetah and Judah ben Tabbai seem to have been the ﬁgures used in tannaitic literature for object lessons about judicial power. Through these retrojected ﬁgures, the Tannaim represent both their will to impose judicial power and their anxiety about misusing that power. The teachings transmitted by Judah ben Tabbai and Shimon ben Shetah in Mishnah Avot’s chain of transmission seem uncannily to articulate the lessons of these stories, as though the two Sages had learned from their own experiences: Judah ben Tabbai and Shimon ben Shetah received [Torah] from them (Joshua ben Perahiah and Nitai ha-Arbeli). Judah ben Tabbai says: Do not make yourself like lawyers; and when those with a case stand before you, they should be in your eyes like wicked people; and when they are made exempt before you, they should be in your eyes like innocent people, when they have carried out the judgment. Shimon ben Shetah says: Make many investigations of the witnesses, and be careful in your words (when you investigate the witnesses), lest from them they learn to lie.113 The irony is hard to miss: Shimon ben Shetah and Judah ben Tabbai teaching about proper judicial process! Those two Sages, of all Sages, would seem least competent on these matters, unless the bitter pill of hard experience equips them to speak. Through these two characters from a bygone era, the Tannaim assert their power to execute a criminal and undermine it at the same time, showing how the executing Sage may ultimately destroy himself.114

“Their Eyes Flowed with Tears” In another text appearing in the Mishnah, Tosefta, Palestinian Talmud, and Babylonian Talmud, the Sages underuse rather than mismanage the power of execution.115 In this text, the Sages appear to be at the mercy of judicial rules which seem to be wholly autonomous, impervious to any manipulation by the very sages who created them. Tosefta Sanhedrin 9:5 directs that the criminal be asked to confess as he approaches the execution site and narrates a particular incident in which a criminal makes an unusual confession: And there was an incident with one person who went out to be stoned. They said to him: Confess. He said: Let my death be an atonement for all my sins, but if I did this, do not forgive me, and let the court of Israel be innocent. And when the matter came before the sages, their eyes ﬂowed tears. They said to him: To retract

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execution and invention this is impossible, for there is no end to the matter (eyn la-davar sof), but behold his blood is on the neck of his witnesses (harey damo talu’i be-tsavar edav).

In this incident, the criminal delivers a confession which calls into question the justice of his execution. He asks for atonement for his sins but adds: “If I did this, do not forgive me, and let the court of Israel be innocent,” so convinced of his innocence in this case that he makes his forgiveness from God conditional upon it. When the Sages hear about the matter, “their eyes ﬂow tears”— they acknowledge the man’s claim to innocence but consider themselves helpless to change the outcome of his case.116 They explain, “there is no end to the matter.” If they reverse this man’s guilty verdict based solely on the man’s own claim, then every verdict delivered by a rabbinic court could be similarly disputed. Tears in their eyes, the Sages transfer the blame to the witnesses, whose lies proved undetectable to the rabbinic judges presiding. Anxiety about rabbinic justice exudes from this story, in which the Sages helplessly throw up their hands over a verdict they seem to doubt but for which they are in some way responsible. This baraita, as it appears in different versions, shows signiﬁcant variation with respect to: (1) the content of the criminal’s confession, (2) the reaction of the Sages, and (3) the statement of the Sages. The different versions of the criminal’s self-exonerating confession assign blame to different parties. The criminal in the Tosefta blames the “court of Israel”: “let my death be an atonement for all my sins, but if I did this, do not forgive me, and let the court of Israel be innocent.”117 He implies, but does not make explicit, the court of Israel’s guilt in the event that he does gain forgiveness.118 In the Assis manuscript of the Palestinian Talmud, the criminal condemns “the court and all of Israel” instead of “the court of Israel.”119 In the Babylonian Talmud, the criminal spells out the consequences not only for his guilt but also for his innocence and also shifts the blame to the witnesses: He said: If I have within me this sin, let my death not be atonement for all my sins. But if I do not have within me this sin, let my death be atonement for all my sins and the court and all Israel be cleared, but let the witnesses never be given forgiveness. While the Tosefta implicates the Sages, in the Babylonian Talmud they are safe from skepticism at the expense of the witnesses. The variations show that the baraita is very much concerned with who is implicated in the power to convict and to execute, particularly to what degree the Sages are implicated. The second major locus of variation is the Sages’ reaction to the news of the event, for which the Tosefta and Palestinian Talmud line up against the Babylonian Talmud.120 In the Tosefta and Palestinian Talmud, the Sages begin to weep.121 The idiom, “his eyes ﬂowed tears,” appears across rabbinic literature in a variety of contexts, among them: Adam when he is told that he will have to work the land (b. Pesah. 118a); Rabbi Joshua upon encountering a pious

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young Jew in Rome (y. Hor. 3:4 [48b]); Rabbi Eliezer upon being excommunicated after his minority ruling (b. B. Metsi’a 59b).122 In each of these instances, weeping marks a condition of tragedy, particularly a condition of exile—exile from Eden, exile from Israel, exile from the rabbinic community, the root z-l-g (ﬂow) associated with tears or blood.123 An appearance of this trope which comes very close to the Sanhedrin usage is in m. Sotah 7:8, where Agrippas weeps as he reads Deut 17:15, “you must not set a foreigner over you, one who is not your kinsman.” Because the Torah undermines his authority as king of Israel, Agrippas weeps on his own behalf. The Sages, who have praised Agrippas for his respect for Torah, quickly intervene, comforting him: “Do not be afraid, Agrippas, you are our brother, you are our brother, you are our brother.”124 Similarly in Sanhedrin, the Sages confront a crisis of authority. In the Sanhedrin story, however, no one is available to comfort them, as they were for Agrippas, and to restore their conﬁdence in their legitimacy as leaders. In the Babylonian Talmud, the Sages are not said to weep, an absence that accords with the Babylonian Talmud’s variation in the man’s confession. In the Babylonian Talmud’s version of the confession, the criminal blames only the witnesses for his conviction, declaring the court and the people of Israel unconditionally innocent. The false execution thus puts no blot on the court, only on the witnesses. Since rabbinic authority is left neatly intact, the Sages have no reason to cry; the execution will not damage their reputation. In the confession of the Tosefta and Palestinian Talmud, however, if the man proves innocent, then the rabbinic court bears the blame. As in many of the contexts in which the trope of weeping appears, the one who weeps has himself to blame for the tragic circumstances. The third locus of variation relates to the reason that the Rabbis give for their inaction, i.e., why they claim to be unable to retract the verdict. Again the Tosefta and Palestinian Talmud are similar, while the Babylonian Talmud takes a different route. In the Tosefta and Palestinian Talmud, the Sages respond upon hearing the case: “To retract this is impossible, for there is no end to the matter, but let his blood be hanged on the neck of (talu’i be-tsavar)125 his witnesses.” While the expression, “there is no end to the matter,” is used sometimes in tannaitic literature as a rationale for easing the law, preventing it from being subject to the fears of the Rabbis or of the community, it is also used to opposite effect to justify legal stringency, as it is here.126 David Fraenkel, in his Qorban Edah, explains: “Everyone will say thus and we will be required to reconsider him.” In other words, every criminal will make such a confession before his execution, and therefore every criminal will have to be given a new trial, endlessly delaying the ﬁnal act of execution.127 In the Babylonian Talmud, the Sages’ problem is instead that the “decree has already been decreed”: And when the sages heard about the matter, they said: To retract is impossible, since the decree was already decreed (kevar nigzerah hagezerah), but rather he should be killed and the burden (qolar)128 hanged on the neck of the witnesses.

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An expression that appears in tannaitic midrash and in the Babylonian Talmud, it refers usually to divine or royal decree—yearly rainfall, the temple’s destruction, human mortality, destruction of the ﬂood, Moses’ not entering the land of Canaan, Rabban Gamliel’s death sentence.129 Rashi interprets in this context: the court’s verdict has already been delivered. The problem here is not that of the jurisprudential slippery slope, as it is articulated in the Tosefta and Palestinian Talmud, but that the rabbinic court’s verdict is immovable and unquestionable, like the decrees of God or a king. The Babylonian Talmud’s baraita, in marked contrast to the weeping Sages of the Tosefta and Palestinian Talmud, portrays Sages who are conﬁdent, even imperious, in their decision-making. The Babylonian Talmud’s version adds the phrase, “rather, let him be killed,” emphasizing the assuredness of these Sages. For the Babylonian Talmud, the witnesses bear the brunt of blame, and the Sages come away scot free, their authority unscathed and even reafﬁrmed. Even in the Babylonian Talmud’s version, however, the Sages are portrayed ultimately as not entirely in command of their own system. While “the decree has been decreed” may imply judicial conﬁdence, its passive construction also suggests an inability on the part of the Sages to manipulate their own decisions. The use of this idiom here, with its associations with kings and God, may seem to enhance rabbinic power, but it also mystiﬁes its source, taking rabbinic decisions out of the Rabbis’ own hands. The Sages of this baraita, in the Babylonian Talmud’s version and in all the others, have created a legal Frankenstein, a monster of laws over which they are no longer master. It is this Frankenstein, not his creator, who has the power of execution. The Sages of this baraita, in contrast to Judah ben Tabbai and Shimon ben Shetah and perhaps in response to their mistakes, distance themselves from the power of execution. They do not try to stay the execution, but neither do they approve it; rather, they weep over their self-imposed passivity (in the Palestinian tradition’s version). While this portrait shows a crisis of authority, an inability on the part of the Sages to achieve justice, at the same time it perhaps avoids a worse crisis of authority of the kind found in the Judah ben Tabbai and Shimon ben Shetah sagas. By separating themselves from the power of execution, the Sages of this baraita guarantee that they will not repeat the mistakes made by their ancestors of misusing that power. These Sages may brieﬂy weep, to be sure, but Judah ben Tabbai spends the rest of his life prostrate over the grave of the man he executed. The Sages, it seems, have learned their lesson from their predecessors, even if they ultimately create new legal dilemmas.

More Irregularities The law of burning provides another instance in which the Sages’ power to execute goes awry. Mishnah Sanhedrin 7:2 deﬁnes the proper procedure for the penalty of burning: A wick is thrown down the criminal’s throat, burning him from the inside. In a toseftan parallel, Rabbi Elazar ben Rabbi Tsadoq attests to a burning that was done at the stake:

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Rabbi Elazar son of Rabbi Tsadoq said: I was a child and I was riding on the shoulders of my father, and I saw a priest’s daughter who had deﬁled herself through harlotry, and they surrounded her with bundles of branches and they burned her. They said to him: You were a child and there is no testimony from a child.130 In this instance, the Sage gives personal testimony about execution: The budding Sage sits on his father’s shoulders watching the execution of a priestly harlot. We might even speculate that Rabbi Tsadoq took his young son to an execution in order to teach him a lesson—in early modern European executions, according to Spierenburg, children were “confronted with physical punishment as a matter of course. Just as the authorities intended executions to serve as an example, so parents used them as educational tools.”131 Yet the lesson that was taught, in the case of this ancient burning, backﬁred, since the supervising authority performs the execution counter to rabbinic law. In the Mishnah, the Sages explicitly criticize the court: Rabbi Elazar ben Tsadoq said: An incident with a priest’s daughter who deﬁled herself through harlotry, and they surrounded her with bundles of branches and they burned her. They said to him: Because the court of that time was not expert.132

The Exceptional Enticer Only the law of the religious enticer (the masit described in Deut 13:7–12 who tries to seduce his intimate relation or friend into idolatry) portrays the sage as executioner without any obvious traces of criticism or alienation. Tosefta Sanhedrin 10:11 lays out an entrapment procedure tailor-made for the enticer: For all the capital crimes that are in the Torah, they do not entrap133 except for the enticer. How [do they entrap the enticer]? They send to him two sages (talmidei hakhamim)134 in the inner house, and he sits in the outer house,135 and they light a candle so that they can see him and hear his voice. And thus they did to Ben Stada136 in Lod— they appointed for him two sages and they stoned him.137 In this scheme, two Sages are hidden in order to catch the person at his crime. Once they can testify to the act of enticement, they go on to become his executioners. While for all other crimes the witnesses take on their ofﬁce by chance, enticement—a uniquely private crime—calls for special ssagewitnesses whose task includes the exposure of the criminal. The Sages comfortably assume the agency of execution here, but they also emphasize the exceptional nature of their strategies for the enticer: “For all the capital crimes which are in the Torah, they do not entrap except for the enticer.”

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Conclusions While the Rabbis rabbinize execution, they hesitate to make the executioner a Rabbi. The distinction between the two is signiﬁcant: the Rabbis bring execution under the rabbinic umbrella, making it fundamentally a matter of rabbinic control—they marginalize both the blood-avenger and the community— yet they shy away from too direct an engagement (this tendency becomes even more pronounced in the Babylonian Talmud’s redaction). Of course, the Rabbis have no choice in the matter once the powers of capital punishment are withdrawn from their hands. Yet their distancing and dissociation from the power of execution takes place even in legal texts that omit the question of historical capability as well as in narrative texts describing Temple times when Sages are actually engaging in execution. The Sages seem to prefer off-site management in the guise of the witnesses. These texts show that playing the judge whose hands are tied is as close as the Rabbis are willing to get to the execution itself, unless the crime is enticement. They are ready to take on the role of executioner and even the role of witness in this single case, but they themselves declare the circumstances exceptional. The Sage who acts as executioner in a standard criminal case is, on the other hand, subject to criticism, ridicule, and loss of his sagehood. This entire discussion of the Sage’s role in execution deals solely with the matter of self-representation. I am not at all engaging the question of what role the Rabbis actually played in execution, whether there were Rabbis who executed, whether these stories are “true stories,” for instance, whether there really were witches in Ashqelon that Shimon ben Shetah killed.138 I am interested here in representation, and speciﬁcally the politics of self-representation: When the Rabbis want to project something about themselves, what is that something? How do they want to see themselves and to have others see them? In these legal narratives, the Rabbis display their anxiety about assuming the agency of execution. While the Rabbis oust the biblical agents of execution from their task—the blood-avenger and the community—the Rabbis only ambivalently substitute their own agency. They disown their own claims to execute, not only in the famous baraitot in which they describe the withdrawal of their power to impose capital punishment, but also, and I would argue, more poignantly, in the stories of Sages who do impose capital punishment, in the harrowing tales of such ﬁgures as Shimon ben Shetah and Judah ben Tabbai. When the Sages imagine themselves as executioner, they do not seem to like what they see. In other instances, the Tannaim instead imagine themselves on the sidelines of execution, with the Law itself playing the only real role of agency. While the investigation of rabbinic agency in execution has left Bible exegesis mostly behind, perhaps biblical models can still be found lurking here. In their texts, the Sages allow themselves to play the role of the male authority ﬁgure who executes, but they also critique these ﬁgures, just as the biblical texts do. In the spirit of biblical representation, the Sages assume the power to execute, but not without self-criticism.

6 Paradoxes of Power “The Way that the Kingdom Does It”

Rabbinic Mimics A criminal condemned to death in the Roman Empire might, among other penalties, end up either decapitated, exposed to wild beasts, cruciﬁed, burned alive, or condemned to be a gladiator, depending on his or her social status and on the nature of the crime.1 Punishing Roman criminals was literally raised to an art form, with the condemned being forced to act out his or her death in the amphitheater, staging for the crowds either the story of the immolation of Hercules, the mauling of Orpheus by a bear, or some other wellknown myth.2 Though these “fatal charades” were relatively rare, gladiatorial combat and other executions in the arena were immensely popular throughout the Roman world. The deaths of the convicted and enslaved became one of the forms of mass entertainment consumed by the peoples of the Roman Empire. Scholarship on Roman punishment has burgeoned in recent years, fueled by subaltern studies, performance studies, and popular interest in the grislier parts of Roman imperialism as is to be found in such movies as Gladiator. What does Gladiator have to do with ancient Jewish history? Philo, Josephus, and the Rabbis describe Roman capital punishments being inﬂicted on Jews. Philo recounts the torture and cruciﬁxion of Alexandrian Jews by the prefect Flaccus.3 Josephus gives accounts of Jews being beheaded, cruciﬁed, burned, or sent to the arena, sometimes on a massive scale and often with other tortures.4 The Rabbis tell stories of being martyred at the hands of Rome and also legislate for the scenario of Jews ﬁghting in the arena. There is also the famous story of the execution of the Jew named Jesus.

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That Roman execution was a serious concern for late antique Jews is plentifully evidenced.5 That being said, we can ask: Did the Jewish experience of Roman execution shape the Rabbis’ own laws of execution? My contention in this chapter is that it did—I will show that the discourse of rabbinic execution was engaged with Roman execution in both hidden and manifest ways. In one rabbinic text, the Rabbis break into a dispute over whether they may borrow the Roman method of decapitation. This text gives us our primary evidence—it makes explicit reference to Roman execution in the context of the rabbinic laws of execution. I will look closely at this text, and I will also suggest that the engagement with Rome is at work in other rabbinic criminal laws where Rome is never mentioned. I borrow this approach from James Scott, whose postcolonial theory will be threaded through these interpretations. His work and that of Homi Bhabha and others get at the complexity of the relationship between colonized and colonizer, a relationship relevant to Roman Judea. While it may often appear that colonized peoples obediently submit to imperial authority, these writers uncover the appropriation and resistance that is often embedded within postures of submission, what Scott calls a “hidden transcript.” By looking at rabbinic law as a “hidden transcript,” hidden from Rome but also hidden from many other Jews, I will show that in their laws of execution, the Rabbis attempt to reverse the conditions of Roman power and relative Jewish powerlessness, representing themselves as the agents of penal power. Moreover, the Rabbis reverse the terms of power, shaping their executions both to resemble Roman executions but also to be their opposite. In these reversals, the Rabbis ultimately redeﬁne who is a barbarian and who is civilized, terms very much at the heart of the construction of the Roman Empire. The rabbinic ritual of execution shows the true barbarian to be not the conquered provincials but the imperial power itself, and the Rabbis prove to be the rightful authorities. But in the course of these reversals, the Rabbis allow themselves to come dangerously close to looking very much like the authority they eschew. The question of who is a Rabbi and who is a Roman, and what are the differences, drives the rabbinic laws of execution. I will emphasize the motif of mimicry. Often the colonial appears to be the mimic of an imperial “original”; such is the case in one Englishman’s description of westernized Indians in 1835 as “a class of persons, Indian in blood and colour, but English in taste, in opinions, in morals, and in intellect.”6 Roy, Bhabha, and others argue that copying is rarely simple, however—masquerade, passing, drag, and camp are destabilizing modes of mimicry that transform the identities of both the mimic and the mimicked. Joshua Levinson has pointed to such subversive mimicry on the part of the Rabbis: In his reading of an aggadic tale of Titus from Leviticus Rabbah, Levinson lays out its tangle of intertexts and subtexts from the Bible, Jewish ritual, Greek myth, and Roman culture.7 The story of Titus’s desecration of the Holy of Holies and ultimate death at the hands of a dove becomes not only an inversion of Yom Kippur ritual as well as the story of Jonah, but also its own “fatal charade” in

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which Titus is forced to play out the story of Athena’s birth from Zeus’s head. In this narrative, the Rabbis appropriate the language of their conquerors, posing the “threat of the subordinate speaking with the voice of the hegemonic, thereby calling into question the very basis of the latter’s superiority and difference.”8 Similarly, in another study, Levinson brings the Roman arena to a midrash from Genesis Rabbah that compares Cain and Abel to gladiatorial athletes.9 By reading this midrash in its full context, considering the Roman arena as political theater, as a liminal zone between life and death, human and God, man and woman, ruler and ruled, Levinson is able to show the midrash’s theological radicalism. In the midrash’s analogy between Cain’s murder of Abel and one gladiator’s murder of another, the midrash simultaneously indicts both sponsors for their injustice—God and Caesar. But Levinson discusses relatively late midrashic texts: Rabbinic subversions of Roman execution can be found also in the earlier legal discourse of the Tannaim, and that is what this chapter will show. The Mishnah’s laws of criminal execution can be viewed as a ﬁeld upon which the strategy of mimicry is tested and contested. Rabbinic power, especially the power to preside over execution, is constructed (at least partly) out of the discourse of Roman power that envelops the Rabbis.

“One Who Sits in the Stadium” That the Rabbis must have been familiar with Roman spectacles of execution can be inferred from the material remains from late antique Palestine. According to Arthur Segal’s work on theaters in Roman Palestine and Arabia, twelve theaters have been found west of the Jordan and eighteen to the east.10 These theaters were built over a period of three centuries, beginning in the ﬁrst century b.c.e. and continuing into the third century c.e., and they continued to function well into the Byzantine period. Zeev Weiss, following the evidence of Josephus’s accounts as well as the archaeological remains, tells that the ﬁrst theaters were built by Herod in Jerusalem, Caesarea, and Jericho, and by his son, Herod Antipas, in Tiberias. In the Herodian period until Bar Kokhba, according to Weiss, games were performed in Palestine but remained a narrow cultural phenomenon among the Jewish populations.11 Josephus suggests that the Jews of Palestine initially resisted Herod’s theaters, regarding them as “foreign to Jewish custom.”12 In the ﬁrst century and especially in the second century, Weiss gives evidence for a sharp rise in the number of games buildings erected in the region of Palestine, which both he and Segal associate with the processes of urbanization occurring there during this period. Weiss argues that, according to the archaeology and rabbinic sources, the popularity of games among the Jews must have exploded in the third and fourth centuries. The theaters found in Palestine, Jacobs points out, are located not only in cities with a non-Jewish majority, but also in cities like Sepphoris that were considered to be Jewish cultural centers.13 Of these theaters, the number of amphitheaters—those structures used speciﬁcally for gladiatorial games and animal baitings (as opposed to dramatic productions, chariot racing, etc.)—is relatively

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small, but Jacobs warns that a clear distinction between a dramatic theater and a gladiatorial amphitheater cannot often be made, due both to archaeological factors and to the unclear terminology of the sources.14 But one need not rely on archaeology—rabbinic sources explicitly deal with the Roman arena.15 They describe both Jewish attendance and Jewish participation in the gladiatorial games.16 The Tosefta prohibits attendance at various kinds of Roman theaters: 5. One who goes up into the theaters of the nations—it is prohibited on the count of idolatry, the words of Rabbi Meir. And the Sages say: [If one goes up] at the time that they offer sacriﬁces—it is prohibited on the count of idolatry. If they are not offering sacriﬁces—it is prohibited on the count of [not] sitting in the seat of the scornful.17 6. One who goes to the stadia (itstartiyonin) or to the circuses (karqomin)18 and sees the sorcerers and enchanters, bokion,19 mokion, molion,20 sagilarion, sagilaria21 —behold this is sitting in the seat of the scornful, as it is said, “[Happy is the man who has] not sat in the seat of the scornful, but his delight is in the Torah of the Lord” (Ps 1:1–2)—behold you learn that these [performances] bring a person to neglect the study of the Torah. 7. One who goes up into the theaters of the nations, and cries out22 for the needs of the state—it is permitted. If he conspires with them (mit’hashev)—behold it is prohibited. One who sits in the stadium (istraton)—behold he is guilty of bloodshed. Rabbi Nathan permits [it] for two reasons, [ﬁrst] because one cries out and [thereby] saves the lives [of the gladiators], and [second] because he may give evidence on behalf of the wife [of a gladiator] so that she may remarry. They may go to stadia (itstariyonin) in order to cry out and save lives, and to the circus for the sake of the state, but if he conspires with them, behold it is forbidden.23 Tosefta Avodah Zarah 2:5, the ﬁrst law in this series, deals with Rome’s dramatic theater performances, which Rabbi Meir prohibits as idolatry but which the Sages consider to be idolatry only when sacriﬁces are offered. Nevertheless, the Sages still prohibit theater attendance when sacriﬁces are not offered out of a concern for “sitting in the seat of the scornful,” a less formal basis of prohibition than idolatry is, but emphatic nonetheless. The next law in the series (2:6), dealing with other kinds of performances—clowns and games— explains why: “sitting in the seat of the scornful” causes one to neglect the study of Torah. The following law (2:7) gives a loophole, permitting theater attendance if done as a civic duty, but then reverses again to the prohibiting stance in the event that a Jew participates too willingly. The law goes on to prohibit attendance at the mortal combat of the arena, which it treats in very severe terms, accusing of murder not just those organizing or participating in

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the combat but those who go to watch.24 Rabbi Nathan, a mid-second-century tanna, mitigates this position, however: He allows attendance at the gladiatorial games for two reasons, both of which involve helping those who are injured by the games.25 First, one can scream out at the game, thereby either warning the gladiator of dangers he faces—“Look over there!”—or asking the editor (the producer of the games) to pardon the ﬁghter. In this way, the audience member can try to save the gladiator from death. The second of Rabbi Nathan’s reasons relates to the problem of the agunah, the anchored woman: If the wife of a gladiator has no evidence that her husband was killed, she is prevented from remarrying. Therefore, the audience member who testiﬁes can save the gladiator’s wife from a life of being chained to the husband who has long ago fallen in the arena. Finally the Tosefta extends the same caveat to Rabbi Nathan’s stadium loophole that it did to the one involving theaters: If one gets swept away by the entertainment, the loophole disappears, and one is forbidden to attend.26 It is one thing to go to the arena to save the agunah or to fulﬁll one’s civic duties, but another thing altogether to go to cheer on the ﬁght. This text’s sequence—its escalation from pious censure of “sitting in the seat of the scornful” to accusations of spilling blood—suggests that gladiatorial combat is a graver concern to the Rabbis than any other arena event (besides outright idolatry that might take place there). Nevertheless, Rabbi Nathan permits a Jew to attend, speaking of the need to save the lives of Jewish gladiators and to free the wives of those who die. The last legislation evinces a concern that Jews may be seduced by the arena’s murderous events even if their motivations for attendance might be pure. According to this Tosefta, the arena poses a threat not only to the physical survival of the Jewish community, as Jews are condemned to ﬁght, but also to their cultural/religious survival, as Jews who attend are seduced by its appeal. The Tosefta’s concern recalls Augustine’s famous story of his friend who, dragged to the gladiatorial games, refuses to open his eyes, but then when he does, cannot take them away from the ﬁght.27 This Tosefta offers up a host of fears about Jewish victimization and Jewish assimilation, seen also—with somewhat less intensity because of the lower stakes—with respect to the other theatrical events that threaten to take Jews away from Torah and lead them into a life of Roman leisure. Anxiety about the Roman theater appears as a motif in many rabbinic texts. An insertion into the Sifra (customarily called the Mekhilta d’Arayot) interprets Lev 18:3 through this ﬁlter: [You shall not copy the practices of the land of Egypt where you dwelt, or of the land of Canaan to which I am taking you] “nor shall you follow their laws” (Lev 18:3). And what did this verse say that has not been said, for was it not said, “Let no one be found among you who consigns his son or daughter to the ﬁre . . . one who casts spells, or one who consults [ghosts or familiar spirits . . . ] (Deut 18.10–11)? And why does the Torah teach: “Nor shall you follow their laws”? That you should not follow their laws (nimusot) in matters inscribed for them, for example, theaters, circuses, and stadia. . . .28

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Building on a perceived redundancy between Leviticus and Deuteronomy— Deuteronomy already speciﬁes the prohibition on idolatry—the Sifra interprets Lev 18:3’s prohibition on “their laws” to include not only blatant acts of idolatry but also general assimilation to foreign norms, which the Sifra deﬁnes here as Roman theatrical culture. A text from the Palestinian Talmud, along similar lines, contrasts the Roman theater with the rabbinic study house: And in his departure [from the synagogue] what did he (Rabbi Nahunya ben Ha-Qaneh) say? I express thanks before you God, my God and God of my fathers, who gave my portion among those who sit in the study houses and in the synagogues and did not give my portion in the theaters and circuses, for I labor and they labor, I am industrious and they are industrious: I labor to inherit the garden of Eden, and they labor for the lowest pit (be’er shahat), as it is said: “For You will not abandon me to She’ol, or let Your faithful one see the Pit (shahat).” (Ps 16:10)29 Both the Rabbi and the Roman labor, but in different places and for different ends. The Rabbi is deﬁned by the synagogue and study house, the pagan by the theater and circus. These earthly locations are mirrored in the ultimate locations to which they deliver their inhabitants: either Eden or the “Pit.” While the psalm verse suggests that those faithful to God will avoid the dreaded pit, the rabbinic reading sends those who deny God directly down to it. The opposition between the God-fearing audiences of the study-house and the Goddenying audiences of the theater proliferates in amoraic midrash, which uses these two social spaces to divide the world between an “us” and a “them.”30 Possessive phrases help to create this impression: “their theaters” or “the theaters of the nations.”31 The theater comes to stand for Rome, its power—political, cultural, and physical—embodied in its games. And this power is presented as the antithesis of rabbinic power. The Rabbis pair the study house with the theater in order to show the study house’s superiority, but in the process they inextricably link the two. Buried in their rejection of Rome but also perpetuated by it is an anxiety about rabbinic distinctiveness. Living in the thick of paganized Jewish Palestine, the Rabbis are preoccupied with creating an alternative to the dominant Roman culture. Through these texts runs a pattern of repulsion, attraction, and competition with Roman culture, represented metonymically by the arena. Rabbinic martyrdom narratives, telling the stories of Jewish suffering at the hands of Rome, are the counterpart to the anti-arena legislations. The tannaitic midrashim include two narratives of Rabbis persecuted under Hadrian in the ﬁrst half of the second century, the ﬁrst a double narrative of Rabbi Yishmael and Rabbi Shimon in the Mekhilta,32 and the second that of Rabbi Haninah ben Teradyon in Sifre Deuteronomy.33 In addition, the Mekhilta describes the persecution of all Jews living in Palestine for their observance of God’s commandments:

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“[For I the Lord your God am an impassioned God, visiting the guilt of the parents upon the children, upon the third and upon the fourth generations of those who reject Me, but showing kindness to the thousandth generation] of those who love Me and keep My commandments” (Exod 20:6). Rabbi Nathan says: “of those who love Me and keep My commandments”—these are [the people of] Israel who live in the land of Israel and give their lives for the commandments. Why are you going out to be killed (li-hareg)? Because I circumcised my son. Why are you going out to be burned? Because I read from the Torah. Why are you going out to be cruciﬁed? Because I ate matzah. Why are you going out to be ﬂogged? Because I shook the lulav. And it says: “[And if he is asked, ‘What are those sores on your back?’ he will reply,] ‘From being beaten in the homes of my friends’ ” (Zech 13:6)—these lashes caused me to be loved by my father in heaven.34 In this teaching of Rabbi Nathan’s, the Jews of Palestine are made more beloved to God through the religious persecutions they suffer there. The back-and-forth dialogue of the midrash echoes the verse from Zechariah that comes at its end. The series of Roman punishments that Rabbi Nathan mentions, while it is distinctively Roman—it includes cruciﬁxion—also seems to echo the Rabbis’ own punishment methods, with its list of four and its executions of decapitation (the root h-r-g is the one the Rabbis use to describe decapitation) and burning. Roman execution, in the Rabbis’ representation, comes to resemble the Rabbis’ own executions, in the same way that the study house and theater mirror each other even while they are posed as opposites.

The Decapitation Cycle and the Hidden Transcript The convergence of rabbinic execution with Roman execution becomes explicit in the death penalty of decapitation, the third of the four rabbinic death penalties, which the Rabbis organize according to degrees of severity—decapitation is considered less severe than stoning and burning but more severe than strangulation.35 Mishnah Sanhedrin 7:3 offers a dispute between Rabbi Judah and the Sages about how the penalty of decapitation should be carried out. Which method of decapitation constitutes a “disgrace” (nivul) is at the heart of their argument: The commandment of those to be decapitated: They would chop off his head with a sword the way that the kingdom (malkhut) does. Rabbi Judah says: This is a disgrace.36 Rather, they should lay his

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According to the Sages, decapitation is to be done with a sword, like Roman decapitation (as the Sages conceive it).39 Declaring the Sages’ method to be a disgrace, Rabbi Judah proposes a different method that uses the tools of the butcher: The criminal is laid down onto the chopping block and his head cut with an axe. The Sages respond in kind to Rabbi Judah’s method, calling it more disgraceful than their own. The parties in this mishnah, in their dispute about which method of execution is a greater “disgrace,” do not explain the term, but if we look in other early rabbinic texts, we see it frequently associated with bodies, and physical sexuality in particular. A woman who is a “disgrace” is a woman who is sexually unappealing: “Rabbi Yosi says: ‘You have a woman who is pleasing (na’ah) in her youth and when she ages, she becomes repulsive (mitnavelet).’ ”40 The same antonym pair appears in m. Ned. 9:10, where the verb is used transitively: “At this time Rabbi Yishmael cried and said: ‘The daughters of Israel are pleasing (na’ot), but poverty makes them repulsive (menavletan).’ ” The disgraced woman, in this case, is a woman impoverished to the extent that she loses her sexual appeal. The word is also used to describe a repulsive male body: The “disgraced” man is coupled with the man who is diseased, the man who has no sexual organs, and the man who has female organs.41 The verb and adjective form of n-v-l suggest a loss of dignity, frequently through the diminution of sexual appeal or vigor. Rabbi Judah and the Sages would thus seem to be arguing here about the (gendered) norms of bodily dignity as they are conceived by rabbinic culture.42 The disputants each wish to protect the criminal’s body from indignity as best as possible given the circumstances, and the associations with indignity include desexualization and feminization. The text remains obscure, however, on why one method should be considered more or less disgraceful than the other. The medieval Talmud commentator Rashi suggests that Rabbi Judah criticizes the Sages’ sword method because he considers it disgraceful for the criminal’s body to collapse from a standing position. The Tiferet Yisra’el Mishnah commentary provides a possible rationale for the Sages’ critique of Rabbi Judah: “it looks like one is chopping the meat of cattle.” The main textual ambiguity of this mishnah has to do with the Sages’ description of decapitation, “the way that the kingdom does”: To which kingdom do the Sages refer? While most commentators understand the “kingdom” to mean imperial Rome, others argue that it refers to the Israelites’ own political leaders, but the former interpretation is better supported.43 The entire phrase is used just one other time in tannaitic sources, in Sifre Deuteronomy, where it almost certainly refers to a Roman method of execution: Is it possible that they hang him alive the way that kingdom does? The Torah teaches: “[If a man is guilty of a capital offense] and is put to death, and you impale him on a stake . . .” (Deut 21:22)44

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In this midrash, the verse is read as evidence that the body should be hanged after death rather than as a means of death, unlike the way the kingdom does it. Hanging as a means of death, the practice of the “kingdom,” is shown to be excluded by the Torah. “The way that the kingdom does” functions as a reference to a non-Jewish method of execution, likely Roman cruciﬁxion.45 Moreover, the punishment of decapitation and speciﬁcally the sword are associated in several rabbinic sources with non-Jewish executing authorities.46 A baraita found in the Babylonian Talmud states that even though the four rabbinic executions are annulled, they are still in force through acts of God.47 For a person guilty of decapitation, the baraita claims that he will either be delivered over to the “kingdom” or be attacked by bandits. This text’s use of the term “kingdom” refers almost by deﬁnition to a Roman authority and not to a Jewish authority, for the baraita’s premise is that Jewish power is no longer functional. In addition, the baraita speciﬁcally links the penalty of decapitation with the Roman authority—it does not mention the kingdom with respect to any of the other rabbinic execution methods.48 Another baraita makes the sword a symbol of Roman imperial power.49 This baraita is an addition to a Mishnah in which the Sages prohibit images of men holding various items: a rod, a bird, a globe, all of which are considered to symbolize idolatrous Roman power. One of the items added by the baraita is a sword, as explained in the Gemara,50 because of its “denoting that it has the power of slaying the whole world.”51 Among other symbols, the sword represents Rome’s worldconquering imperial drive. In sum, the “kingdom” of m. Sanh. 7:3 is undoubtedly the Roman Empire. But it is worth considering why one has to go through these steps, that is, why the Mishnah is vague in its reference to Rome. It may have been so painfully obvious to whom the “kingdom” belonged, i.e., to the Roman emperors, that the Mishnah may not have wanted to dignify their Roman conquerors with explicit reference. In the end, the Mishnah compels its audience to contend with the ambiguity, to be forced to guess who holds the power of decapitation and who does not. Not only the referent but also the function of the phrase is ambiguous. “The way that the kingdom does” may be functioning as mere description, a handy tool of familiar reference, or as a statement of derivation, to indicate that the Rabbis borrowed Rome’s distinctive method. Yair Lorberbaum, presenting these possibilities, claims that most scholars have incorrectly taken the second approach; Lorberbaum argues against them that the Mishnah deploys this phrase only to describe the sword method, not to derive it.52 Even if Lorberbaum is correct that the phrase does not point to the true origins of the custom, however, we must still ask what prompts the Sages to use Romans as their point of reference. Homi Bhabha’s writing on mimicry and James Scott’s work on hidden transcripts and particularly strategies of reversal help to make sense of this nod to Rome. The Sages seem to be mimicking Rome, which is precisely what Lorberbaum and other writers on this mishnah resist. While some scholars do acknowledge that the Sages seem to be borrowing Roman decapitation,53 others assert either the irrelevance or ambiguity of the key phrase in the Mishnah,

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“the way that the kingdom does.” Adolf Bu¨chler, in his 1906 classic study of the rabbinic death penalty, begins his discussion of the Sages’ sword by observing its absence in the Bible and its apparent imitation of Roman decapitation, but eventually he works his way around to claiming that Gen 9:6 is the true basis for the sword.54 The orientation of Victor Aptowitzer’s 1925 analysis of decapitation is suggested in its subtitle: “The Exegetical Foundation of the Punishment of Decapitation for Murder.” Lorberbaum follows in Bu¨chler’s and Aptowitzer’s footsteps. But the Sages have good reason to borrow from Rome, if only to describe their form of decapitation. Under the Roman penal system, decapitation was a relatively honorable way to die, reserved generally for the upper-class condemned. According to Peter Garnsey, capite puniri (as decapitation is frequently referred to in Roman sources) was the “least painful and degrading form of execution” (1968:147)55 and was imposed on decurions only rarely for extreme capital offenses.56 Thomas Wiedemann writes similarly: “Beheading by the sword came to be a privilege reserved only for the honestiores (senators, soldiers, and others in the emperor’s service, and members of municipal councils, with their families). If competently carried out by an expert executioner, decapitation was swift and inﬂicted a minimum of physical pain.”57 If the Sages were concerned to preserve the criminal’s dignity, as they seem to be in m. Sanh. 7:2, then they chose well regarding Roman execution, adopting its most honorable method. Does this emulation of Roman execution suggest that the Rabbis have perversely internalized the images of Roman power to which they were subject? This model of a subordinate group’s relationship to the dominant culture has been described by such terms as false consciousness, hegemony, and naturalization.58 But Bhabha’s notion of mimicry allows us to understand such instances in a more complex way, as a potentially subversive strategy. Mimicry, while it may be viewed as ﬂattery of the mimicked, can also be a menace to him: “The menace of mimicry is its double vision which in disclosing the ambivalence of colonial discourse also disrupts its authority.”59 The rabbinic mimicry at work here disrupts Roman authority by displacing it, as Bhabha continues: “I want to turn to this process by which the look of surveillance returns as the displacing gaze of the disciplined. . . .” The Sages of the Mishnah effect such a displacement, borrowing Rome’s sword for their own executions, representing a reversal of the axes of power. The Mishnah creates an executioner that looks like the Roman one but with a rabbinic face. Rather than understanding rabbinic decapitation either as an unexamined borrowing from Rome or as totally unrelated to it, as the scholars mentioned above tend to do, we can understand it as something more, as an appropriation of power. Such a reversal frequently characterizes the “hidden transcripts” of dominated groups, according to Scott. Scott devises the term “hidden transcript” to refer to the “discourse that takes place ‘offstage,’ beyond direct observation by powerholders.”60 Scott’s term has already been used more than once to refer to rabbinic discourse, with its Hebrew/Aramaic language and its oral form making it intelligible and accessible only to the Jewish community and, more

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important, unintelligible and inaccessible to the Roman powerholders.61 Scott makes this distinction between the public and the private transcript in order to explain why subordinate groups so often seem to embrace their servile status, reeling off a string of yessirs and nosirs without any apparent resentment. Scott assigns this behavior to the public transcript, where subordinate people are forced to seemingly accept their situation. In their private life, however, “every subordinate group creates, out of its ordeal, a ‘hidden transcript’ that represents a critique of power spoken behind the back of the dominant.”62 One strategy of critique is reversal. Scott brings the example of Aggy, an American woman slave in the antebellum South. Mary Livermore, a white governess from New England, describes Aggy’s reaction after the master has just given Aggy’s daughter a beating in Aggy’s presence. After the master leaves the kitchen, Aggy turns to Mary and vents her fury: “Thar’s a day a-comin’! Thar’s a day a-comin’! . . . I hear the rumblin ob de chariots! I see de ﬂashin ob de guns! White folks blood is a runnin on the ground like a ribber, an de dead’s heaped up dat high!” According to Scott: “What is particularly striking is that this is anything but an inchoate scream of rage; it is a ﬁnely drawn and highly visual image of an apocalypse, a day of revenge and triumph, a world turned upside down using the cultural raw materials of the white man’s religion.”63 Aggy’s speech and that of the Sages share something: Each of them draws on the cultural materials of the powerful in order to empower themselves. Just as Aggy adapts the apocalyptic language of American Christianity, so do the Sages adapt the form of Roman execution, each in an effort to adapt the language of power and, in so doing, to challenge it. The toseftan parallel to this Mishnah deals with the dangers of mimicry, however, asking: Is it possible that a reversal can leave everything exactly the same? The Tosefta expresses anxiety about whether rabbinic mimicry of Romans can leave the Rabbis looking too much like them: Rabbi Judah says: Behold it says, “And love your fellow as yourself ”(Lev 19:18)—choose for him a nice execution. How do they do this for him? One lays his head on the block and cuts it off with an axe. They said to him: There is no execution more disgraceful than this. He said to them: Of course there is no execution more disgraceful than this, but rather, [one must do it this way] because of “. . . nor shall you follow their laws.” (Lev 18:3)64 This toseftan text continues the conversation captured in the Mishnah and changes its terms. The dispute between the Sages and Rabbi Judah, as it is represented here, proves to be not only about the problem of bodily dignity but also about the problem of following “their laws,” prohibited by Lev 18:3. In Rabbi Judah’s view as the Tosefta represents it, the Sages are not cleverly constructing rabbinic power out of the cultural materials of Rome, as James Scott might describe it; they are forgetting what it means to be a Rabbi in the ﬁrst place! You can not be a Rabbi and look like a Roman, argues Rabbi Judah, with Lev 18:3 as support. While this verse, in biblical context, prohibits the Israelites from imitating the religious transgressions of the Egyptians and Canaanites,

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Rabbi Judah expands the prohibition even to practices that are not transgressive. A practice, simply by virtue of its being Egyptian, Canaanite, or, in this case, Roman, becomes prohibited. The real reason (according to the Tosefta) for Rabbi Judah’s disapproval of the sword is not, as we might have thought from the Mishnah, that it violates the dignity of the criminal, but, rather, that it compromises Jewish uniqueness. In this toseftan expansion, Rabbi Judah is willing to surrender human dignity if it preserves the boundaries of Judaism. The dispute between Rabbi Judah and the Sages deals with the troubling area of foreign practices not explicitly prohibited. Idolatry is clear-cut; it is practices such as digniﬁed Roman decapitation, practices wherein the foreign power offers a positive alternative, that pose a problem.65 The Sages allow such borrowings, distinguishing between that which is foreign and that which is transgressive. Rabbi Judah identiﬁes the two, making the foreign inherently transgressive—anything Roman must be shunned. Rabbi Judah’s objection to the Sages invites a return to Scott’s discussion of hegemony and false consciousness. Rabbi Judah’s response to the Sages reveals that internalization and false consciousness are real concerns of subordinate groups as they express themselves in their private domain.66 Rabbi Judah worries that in the Sages’ resistance to Rome they will ultimately come to resemble them. The reversal of power will really be no reversal, since the executioner will look exactly the same. Scott argues that “there is little chance that acting a mask will appreciably affect the face of the actor,”67 but it is precisely this fear that consumes Rabbi Judah. Rabbi Judah’s fear is the same fear that David Quint draws out of the Aeneid: Once Turnus and Aeneas become interchangeable—both Romans— Aeneas seems to be victimizing himself even as he undoes his former victimization. What can be seen in one light as a therapeutic narrative mastering a traumatic past is in another only the perpetuation of that past, a mere repetition that cannot be narrated. Augustus repeats the violence of civil war that he seeks to end. His revenge may be part of larger cycle of reciprocity rather than a ﬁnal settlement. Or it may be both at once.”68 At the point in the Aeneid when Aeneas and Turnus, the hero and anti-hero, become most similar, the closure of the Aeneid is most disrupted—Aeneas’s vengeance, and by implication Augustus’s vengeance in Virgil’s own world, threaten to continue forever. It is at this same point in the laws of rabbinic execution—when the rabbinic executioner and the Roman executioner come to resemble each other most closely—that Rabbi Judah voices his objection. What to the Sages is a “therapeutic narrative” is to Rabbi Judah “mere repetition.” Rabbi Judah worries that the subversive mimicry of the Sages might slide into a standard scenario of idealization, with the distinctive heritage of the Rabbis getting lost in the process. Ironically, it might be argued that Rabbi Judah allows in Roman inﬂuence as much as the Sages do, since he continues to let Roman culture deﬁne the parameters of rabbinic culture—Rabbi Judah

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resorts to an inferior law simply because it is not Roman. Rabbi Judah even admits that his method is inferior; in the Babylonian Talmud’s version of this text, he adds with a note of desperation: “But what can I do?” The Sages’ assimilation and Rabbi Judah’s rejection are two sides of the same coin. In the argument between Rabbi Judah and the Sages, as it appears in the Mishnah and in various baraitot, is found both the drive towards resistance but also anxiety about the effects of resistance. These opposing forces represent a dilemma posed by the conditions of imperial domination, a dilemma whose terms might look something like this: If rabbinic power is to look nothing like Roman power, then it is not power. If rabbinic power is to look too much like Roman power, then it is not rabbinic. The Sages embrace the ﬁrst horn of this dilemma, Rabbi Judah the second. But then each is laid bare to a critique from the other side. It is this problem with which the Rabbis are contending: How do they assert their authority when they have so little of it within the status system of imperial Rome?

Burning Bodies Roman-style burning, like cruciﬁxion, is explicitly excluded from rabbinic legal boundaries, an exclusion that we might read as another point of resistance to Rome even though reference to Rome is never made. The rabbinic penalty of burning, set forth in m. Sanh. 7:2, is one of the most surprising and counterintuitive of the rabbinic execution methods. While biblical and postbiblical burnings are assumed to be a on a pyre or at the stake,69 mishnaic burning is inﬂicted internally: The commandment of those to be burned: They would sink him into manure up to his knees, and put a hard cloth into a soft one, and tie it around his neck. One would pull in his direction and the other would pull in his direction until he opens his mouth, and he lights the wick and throws it into his mouth and it goes down into his insides and scalds his bowels.70 Rabbi Judah says: If he dies in their hands they have not upheld the commandment of burning. Rather they open his mouth with tongs against his will, and light the wick and throw it into his mouth, and it goes down into his insides and scalds his bowels. Rabbi Judah and the Sages disagree about how his mouth should be opened, but the two parties agree that the person is burned to death from the inside. Internal consumption is precisely how a text in the Babylonian Talmud articulates the principle underlying this penalty:

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execution and invention From where do we learn it? It is derived [from the verbal analogy] “burning, burning” from Korah’s group; just as there burning is of the soul and the body is left intact, so here burning is of the soul and the body is left intact. Rabbi Elazar said: It is derived [from the verbal analogy] “burning, burning” from the sons of Aaron, just as there burning is of the soul and the body is left intact, so here burning is of the soul and the body is left intact.

The Mishnah’s penalty of burning seems to be based on the concept that the external form of the body should be preserved. Moreover, the continuation of the Mishnah explicitly rules out burning the body from the outside: Rabbi Elazar ben Tsadoq said: There was an incident with one priest’s daughter who made a harlot of herself and they surrounded her with bundles of sticks and burned her (hiqifuha havilei zemurot ve-sarfuha). They said to him: Because the court of that time was not expert. Lorberbaum claims persuasively that the burning described by Rabbi Elazar ben Tsadoq is likely to have been normative law predating the Mishnah.71 The Mishnah then would be making a radical innovation. The Mishnah itself seems to be aware of the oddity of its penalty, paying as much attention to how it should not be carried out as to how it should. We can suggest, following the concerns made explicit with respect to decapitation, that the Mishnah’s intention is not only to change the existing Jewish practice of burning but also to exclude the Roman method.72 When we examine Roman burning, we ﬁnd precisely the kind of burning at the stake that the Mishnah excluded. The punishment of burning a criminal alive, crematio, has a long tradition in Rome going back to the ﬁfth century b.c.e. legal code, the Twelve Tables.73 In this early formulation, the penalty of burning seems to be grounded in the logic of measure-for-measure: A person who sets ﬁre to a barn or heap of corn is himself set aﬂame.74 This logic accompanies the punishment into the second century c.e., when Callistratus lists burning as the penalty for arson.75 The penalty is expanded to other crimes, however, that do not have any explicit connection to ﬁre, such as desertion, treason, and magic.76 Nevertheless, the penalty’s raison d’eˆtre remains the total destruction of the condemned by ﬁre.77 The Rabbis’ own martyrdom stories represent Roman burning as exactly the kind of burning that the Rabbis prohibit. One version of the martyrdom narrative of Rabbi Haninah ben Teradyon, found in b. Avod. Zar. 18a, strongly suggests this reading. In the Sifre’s telling of the story, Rabbi Haninah ben Teradyon receives a decree that he will be burned with his scroll of Torah.78 The Babylonian Talmud’s version expands the story: . . . and upon their return they found Rabbi Haninah ben Teradyon sitting learning Torah, having collected together a large audience,

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and a scroll of Torah resting upon his breast. They brought him and wrapped him in the scroll of Torah, and they surrounded him with bundles of sticks (hiqifuha havilei zemurot) and they lit the ﬁre with them, and they brought sponges of wool and steeped them in water and laid them on his heart so that he would not die79 too quickly . . . The particular language of this narrative is highly suggestive: Rabbi Haninah ben Teradyon’s execution is identical to that which the Mishnah rejects. The method his persecutors employ—they surrounded him with bundles of twigs—is the same method, formulated with the same words, that the Sages of the Mishnah declare to be “inexpert.” Like the penalty of decapitation, the penalty of burning seems to have been a battleground for the culture wars of the Rabbis.

Spectacles of Death: The Stoning House and the Arena Let me venture to suggest that the paradigmatic rabbinic death penalty, stoning, also has its Roman counterpart. Both the rabbinic ritual of stoning and the Roman ritual of the arena are the most elaborate and harshest rituals of execution in their respective schemes of execution, making them a somewhat natural parallel. Their characters criss-cross when we examine them synoptically. The most salient feature of the Roman arena was its theatricality, as I discussed earlier. In the arena, Rome taught its residents the lessons of empire in impressive displays of power. According to MacMullen, Rome’s fondness for spectacles of punishment kept increasing over the ﬁrst few centuries of the common era: “There had never been a moment when Roman Justice, aroused and representing the cause of right, had hidden her acts of vengeance behind a screen; but as the crimes multiplied that earned dramatic retribution—not a mere ﬁne, not even exile, but some more violent assault upon the body of the person convicted—then, more and more, justice is acted out before the people assembled.”80 The role of the arena speciﬁcally as a site of execution is complicated, since the arena offered not just executions but “conglomerate spectacles,” that is, “multi-dimensional entertainment” combining executions with athletic contests, mock battles, battles between wild animals, chariot races, plays, and other events.81 The gladiatorial arenas were not built for the purpose of housing executions, but their construction coincided with a shift of execution from the private domain to the public, making the amphitheater an obvious location to carry out executions.82 Condemnatio ad bestias, sending a criminal to the beasts, became one of the arena’s many activities (along with the other summa supplicia, which also began to be performed in the arena), performed between the venationes (animal hunts, including animal display and slaughter) in the morning83 and the munera (gladiatorial blood shows) in the afternoon.84 Seneca criticizes those spectators who stay during the lunch-break to watch the mass

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executions, which, he scoffs, require no skill.85 To complicate matters, we can think of the venationes in the morning and munera in the afternoon also as forms of execution, since the gladiator was sometimes, though not always, also a condemned prisoner just like those killed during the lunch break.86 Condemnation to be a gladiator was different, however, from condemnation to the beasts or the other summa supplicia, “ultimate punishments,” since the gladiator had a chance to survive.87 What would a day at the arena look like?88 If one went early, the day would have begun with the entry of animals into the arena from its cellars, guided by the venatores, the “hunters”89 in charge of the event. The activities that followed were subject to great variation: One might see beasts engaging with each other in bloody battle, professionally trained venatores battling beasts, untrained prisoners being mauled by beasts, mythological enactments, or exotic animals performing tricks for the crowds, much like modern circuses. After the venationes, the meridiani, the noontime executions, would be ready to begin. The three summa supplicia—burning, cruciﬁxion, and condemnation to the beasts— could appear in any combination, in addition to other forms of torture and death.90 According to Kyle, “criminals were led into the arena almost or fully naked, with a rope or chain around their necks, sometimes bearing the verdict (titulus) attached to them. Their condemnation was proclaimed, and, tied to posts or without weapons, they were exposed to beasts.”91 These executions differed from the afternoon munera, when the gladiators, sheathed in metal or leather or bearing a body-length shield, sword in hand, emerged in the arena ready to ﬁght each other, each one given the chance to survive if he could triumph over his opponent.92 The rabbinic sources on stoning display a variety of approaches towards spectacular execution, as I showed in an earlier chapter.93 The tannaitic midrash collections create a full-scale spectacle of execution along the lines of the Roman ones. The Mishnah, on the other hand, sidesteps spectacle; it hints that the public is in attendance at an execution, but it leaves their role ambiguous. The Tosefta, at the other extreme from the midrash collections, eliminates all reference to audience. Both the Mishnah and Tosefta, however, do call for a spectacle when it comes to punishing certain crimes, i.e., those addressed by Deuteronomy’s deterrence clause: the enticer (Deut 13:12), the presumptuous man (Deut 17:13), the false witness (Deut 19:20), and the rebellious son (Deut 21:21). I showed how these positions are arrived at by a complex process of reading the Bible’s own intertexts. Now I can add the intertexts of Rome, reading the different rabbinic positions not only as attempts to make biblical execution coherent but also as attempts to coopt or reject Roman execution. The Midrash engages here in the subversions of mimicry, interpreting out from the Bible a spectacle of execution not entirely unlike the Roman one. The Mishnah charts out a middle course, hinting at the arena’s spectacles but reluctant to embrace them wholeheartedly. The Tosefta allows only an argument from silence, perhaps suggesting a rejection of spectacle. The suspense of who will win and who will lose, or how long it will take

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a gladiator to die, was what drew the crowds to the Roman arena.94 Shelby Brown, in his work on mosaic representations of the arena, tells that “gladiators are depicted preparing to ﬁght, ﬁghting, and losing much more often than receiving a death blow or already dead. . . . The excitement of the encounter was at its peak when victory was still undecided. . . .”95 It was not death itself that the spectators came to see (and that made it onto the mosaic ﬂoors of Roman houses), but everything before death. The gladiators would ﬁght until one of them could no longer, at which point the spectators would give the famous thumbs-down signal for the execution of the loser. The spectators, seated according to their class, gender, and occupation, mapping out the hierarchies of Roman society in their rising rows,96 participated in the action in a variety of ways: “Under the emperors, as citizens’ rights to engage in politics diminished, gladiatorial shows, games and theatre together provided repeated opportunities for the dramatic confrontation of rulers and ruled.”97 Potter refers to a crowd that demanded that a Christian woman and her companion be ﬂogged, but also to other crowds that advocated for the condemned, asking that they be clothed or set free.98 Sometimes the spectators became more involved than they would have wished, themselves being thrown to the beasts.99 Rabbinic sources attest to this feature of the arena, such as in t. Avod. Zar. 2: 7 (discussed above), in which Rabbi Nathan allows arena attendance for the Jew who will cry out on behalf of the gladiator. But the suspense of the arena relied not only on the crowd’s advocacy but also on the gladiator himself. According to Barton, the gladiator “was allowed another opportunity to redeem his honor and display his valor before the eyes of his enemy (as an alternative to enslavement or execution).”100 These elements of suspense—how long the gladiator can survive, and whether the crowd and gladiator will want or be able to save him—appear in another guise in the rabbinic ritual of stoning. There are three stages of stoning, only the last of which is assured to kill the criminal. The ritual plays with the drama: “if he dies . . . if he does not . . .” As in the Roman arena, one cannot be sure exactly when the criminal will meet his end. Furthermore, the rabbinic ritual is grounded in a give-and-take between community, criminal, and rabbinic authority: The community can testify on behalf of the criminal; the criminal can testify on his own behalf; the criminal earns life in the world to come by his confession, etc. The rabbinic ritual of execution, like the Roman one, is in many ways a ritual of individual and communal empowerment. The body of the convicted, one of the rabbinic concerns in Mishnah Sanhedrin, also has strong Roman resonances from the arena. The bodies of the men and women who appeared in the Roman arena were typically naked, either nearly or completely: “The males might be naked or clad only in a loin cloth, the women at times in light tunics or in a skirt and brassiere, at other times in the nude . . .”101 The practice of stripping the condemned criminal is codiﬁed in the Digest of Justinian, though it originated much earlier according to the Digest’s testimony: “Someone should not be stripped when he is put in prison but [only] after his condemnation, as the deiﬁed Hadrian wrote in a rescript.”102

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The stripping of the criminal signiﬁed his or her inferior social status; the naked body of the condemned stood in contrast with the impressively armed and costumed body of the voluntary gladiator and the toga and tunic-wearing audience.103 The naked exposure of women’s bodies would have been particularly degrading. Peter Brown writes of fourth-century Antioch: “Nudity and sexual shame were questions of social status. . . . [T]he lower classes were not expected to be capable of protecting their womenfolk from exposure. The seclusion of one’s womenfolk assumed power and wealth. The sexual vulnerability of poor girls was simply part of their general passivity to the powerful.”104 The degradation of naked women in the arena was sometimes so shocking that it backﬁred, at least according to Christian accounts, evoking pity in the crowd, who were said to have asked that women martyrs be clothed.105 Rabbinic texts also prescribe a practice of stripping the condemned criminal before his or her execution. Mishnah Sanhedrin 6:3 calls for the stripping of the condemned and presents a dispute between Rabbi Judah and the Sages about whether it should be applied to women as well as men: When he was four cubits’ distance from the stoning house, they took off his clothes. The man—they cover him in his front, and the woman—in her front and in her back; the words of Rabbi Judah. And the Sages say: The man is stoned naked, but the woman is not stoned naked. The Tosefta’s parallel is almost identical but adds some words of explanation to Rabbi Judah’s position: At a distance of four cubits from the stoning house, they would take off his clothes. The man—they cover him one piece on the front, and the woman—one piece on the front and on the back because she is all indecency (ervah); the words of Rabbi Judah who said it in the name of Rabbi Eliezer. And the Sages say: The man is stoned naked, but the woman is not stoned naked.106 According to the Tosefta, Rabbi Judah requires that a woman’s body be more covered than a man’s because her body is all “indecency.” The Tosefta’s explanation seems somewhat misplaced, however: If a woman’s body is all indecency, then surely all of it should be covered, not just small parts of it in the front and back! The Tosefta’s explanation in fact ﬁts the Sages’ position better, which requires total covering. The medieval Talmud commentator Rashi addresses this problem, commenting on the baraita as it appears on b. Sotah 8a, explaining that the woman’s pudenda can be seen both from the front and the back, unlike the genitals of the man. Thus Rabbi Judah requires the back covering as well. A similar dispute appears in the Mishnah about the hanging of the corpse after the stoning is complete. The Sages and Rabbi Eliezer argue about the exposure of a woman’s body:

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The man—they hang him his face towards the people, and the woman—her face towards the tree; the words of Rabbi Eliezer. And the Sages say: The man is hanged, but the woman is not hanged.107 The practice of stripping the body of the condemned is not found explicitly in the Pentateuch, but a tannaitic midrash locates it there: [Anyone among the Israelites, or among the strangers residing in Israel, who gives any of his offspring to Molekh, shall be put to death; the people of the land] “shall pelt him with stones” (Lev 20:2): and not with his clothes on.108 [Take the blasphemer outside the camp; and let all who were within hearing lay their hands upon his head, and let the whole community] “stone him” (Lev 24:14): and not with his clothes on.109 [Then the Lord said to Moses, “The man shall be put to death: the whole community] “shall pelt him with stones . . .” (Num 15:35): not with his clothes on.110 These tannaitic midrashim all focus on the pronoun or sufﬁx “him,” which they propose to be superﬂuous and therefore to be teaching some implicit law. The pronoun’s function, according to each midrash, is to exclude the clothing of the man who is to be stoned. The midrashim thus show a hermeneutical basis for the practice of stripping the condemned criminal. The Roman context for this ritual, however, opens up the ﬁeld of interpretation. While this mishnaic practice of stripping seems to have been interpreted out of the Pentateuch, the Roman practice of stripping the criminal adds to it another layer of signiﬁcance. In their ritual of execution, the Rabbis would have seemed to be assimilating the Roman ritual into their own, tailoring its social symbolism of clothing and nakedness to the stoning house.111 Saul Lieberman points to the same pattern in his discussion of an amoraic statement in Esther Rabbah that describes God punishing the wicked in Gehenna in their naked condition. According to Lieberman, “some of the cruel punishments used by the Roman authorities were inserted into Gehenna from real practice, and the authors were only speaking of ordinary custom.”112 Lieberman explains this borrowing from Roman punishment as a strategy of magniﬁcation: “The midrash only magniﬁes the disgrace of the transgressors and notes that they will be punished in Gehenna exactly as the government was accustomed to do in their days.”113 By echoing contemporary punishment practices in the formulation of their own, the Rabbis ask that their punishments be treated with the gravity of those imposed by Rome. The Mishnah’s distinction between male and female nakedness, in contrast to the general practice of stripping, does not seem to have any clear midrashic anchor. Tannaitic midrash does distinguish between men’s and women’s executions, but only with respect to the practice of hanging, not with respect to their nakedness:

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execution and invention If a man (ve-ish) is guilty of a capital offense and is put to death . . .” (Deut 21:22): The man is hanged but the woman is not hanged. Rabbi Eliezer says: Even the woman is hanged . . .114

This midrash works off the word ish, “man,” interpreting that it must come to exclude women from hanging. Rabbi Eliezer, as he does in the Mishnah, disagrees with this interpretation, and the midrash does not reveal anything more about his logic. In fact, the distinction Rabbi Eliezer makes—that the woman should face the tree, and the man the people—is absent from the manuscripts of the Sifre Deuteronomy and added to it only later.115 Rabbi Eliezer’s distinction would seem to be only partially anchored in midrash; moreover, the entire dispute about stoning men and women naked seems to have no midrashic basis at all. The Babylonian Talmud addresses this problem, attempting to ﬁnd some midrashic basis for the Mishnah’s opinions on male and female nakedness. The redactor comes up with a complex midrash whose mechanics are obscure: What is the reason of the Sages? The verse said, “and let them stone him,” (Lev 24:14)—What is “him”? If I say “him”—and not her, behold it is written, “you shall take the man or the woman [who did that wicked thing out to the public place, and you shall stone them, man or woman, to death]” (Deut 17:5). Rather what is “him”? “Him”— without his clothes on, behold “her” should be with her clothes. And Rabbi Judah? “him”—without his clothes on, the man and the woman are not different from each other.116 According to the midrash, if one were to try to interpret the “him” of Lev 24: 14 to exclude the stoning of women, one would ﬁnd Deut 17:5 saying otherwise, that women are stoned. The “him” must then be coming to exclude not women’s stoning, but women’s nakedness. The problem with this midrash is that the “him” of the verse is forced to do double-time, excluding the clothes of the man at the same time that it includes the clothes of the woman.117 The redactor himself backtracks from this midrash, immediately suggesting that the motivating force of these positions is moral rather than midrashic: “Is it to say that the Sages are concerned about impure thoughts and Rabbi Judah is not concerned about impure thoughts? But behold I teach the opposite. . . .” The Talmud’s anonymous redactor, ignoring his earlier midrashic offering, suggests that the Rabbis’ position is based on social concerns having to do with the potential titillation for the public of a woman’s execution.118 In the wake of the redactor’s about-face, the Tosafot, medieval Talmud commentators, throw up their hands, claiming that the Sages’ position is not a product of midrash, as the ﬁrst part of the pericope might suggest, but is really a consequence of the Sages’ ethical commitments.119 The pericope leaves the impression that the Mishnah’s distinction between men’s and women’s nakedness cannot be comfortably connected to any biblical verse. At best (from a hermeneutical perspective), this legislation of gendered nakedness can be seen as an awkward midrashic fusion of the law of gendered hanging and the law of

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naked executions, applying the gender distinction of the ﬁrst to the nakedness prescribed by the second. The murky midrashic roots of this gender distinction for nakedness make the distinction especially susceptible to a more complex reading. In the Mishnah’s argument about whether the body of a woman should be exposed during her execution, the Tannaim are playing with terms carrying strong Roman cultural associations. In his study of cruciﬁxion, David Halperin makes this connection between Roman bodies and rabbinic bodies, comparing the nakedness of Sanhedrin’s criminals to the nakedness of victims of Roman cruciﬁxion.120 Nevertheless, the rabbinic embrace of Rome has its limits. By attaching the explanation of a woman’s indecency to Rabbi Eliezer’s position instead of the Sages, the Tosefta emphasizes that Rabbi Eliezer’s position does not call for complete nakedness but for some degree of modest cover. The more scandalous position in the Mishnah, the more body-exposing position, is still far more modest than the Roman one. Not only human bodies but also animal bodies were featured in Roman spectacles. Visual representations and inscriptions with advertisements or commemorations of particular shows tell of a wide variety of animals that appeared, both domesticated and wild, both from Italy and abroad. Rare, expensive, foreign animals were common to the shows as a means for the sponsor, the editor, to show off his wealth and power. Bears, elephants, lions, leopards, hippopotamuses, crocodiles, apes, lynx, rhinoceri, bulls, giraffes, hyenas, and other animals from far-ﬂung parts of Africa and Asia all found their way into the arena and were slaughtered on massive scale. Emperors strove to come up with novel shows; for example: “Septimius Severus arranged a venatio, probably in the Circus Maximus, which consisted of a ship which fell apart to release bears, lions and lionesses, leopards, ostriches, wild asses and bison.”121 The array of wild animals in the arena showed off to the audience, in palpable animal ﬂesh, the rich and far-reaching dominion of the imperial sponsor.122 The rabbinic sources explicitly allude to the wild beasts of the arena, but they refer only to the ox, called by the rabbinic texts the shor ha-itstadon, the “stadium ox.” It is curious that the Rabbis focus on “the stadium ox,” an animal which appears rarely on mosaic panels representing gladiatorial combats and which does not seem to have been particularly popular in the stadium. The Rabbis make the ox representative, let us hypothesize, because the ox holds a central position in their own legal system: The goring ox serves in biblical and rabbinic law as the symbol for injuriousness. The Rabbis make Roman culture conform to their own familiar legal vocabulary and criticize that culture in the process. The goring ox, according to the rabbinic system, is put on trial and liable for the death penalty just as a human being is: The ox liable for stoning—[he is tried by a court] of twenty-three [judges], as it is said, “[If, however, that ox has been in the habit of goring, and its owner, though warned, has failed to guard it, and it kills a man or a woman,] the ox shall be stoned and its owner, too,

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execution and invention shall be put to death” (Exod 21:29)—like the execution of the owners is the execution of the ox.123

Mishnah Bava Qamma 4:4 makes a distinction, however, between the goring ox and the stadium ox: The stadium ox is not liable for the death penalty, as it is said, “When an ox gores . . .” (Exod 21:28)—and not when they cause him to gore. While the paradigmatic goring ox is accountable for his actions and therefore liable for the death penalty, the stadium ox is not considered responsible because of a primary difference between the two animals: The normal goring ox is said to gore of its own volition, while the stadium ox is by contrast trained to gore. A parallel baraita in the Babylonian Talmud explains: “The stadium ox is not liable for the death penalty and is kosher for the altar because it is like he is forced (ke-me’useh).”124 The stadium ox cannot be held accountable for the homicide it commits; by implication, only those who cause it or force it to do so, i.e., those who run the stadium, can be held responsible. The Rabbis, in deﬂecting guilt from the stadium ox, channel it towards the stadium itself as a Roman institution.

Comparing Systems Finally, we can look at the Roman and rabbinic practices of execution on the level of system. Both the Roman and rabbinic systems function according to degrees of severity.125 Mishnah Sanhedrin 7 begins: Four methods of execution were delivered over to the court: Stoning, burning, decapitation, and strangulation. Rabbi Shimon says: Burning, stoning, strangulation, and decapitation.126 Rabbi Shimon and the Sages seem to be arguing about the order of severity of the four rabbinic execution methods: Some forms of death are “better” to get than others.127 Rabbi Shimon reverses the couplets of the consensus position, putting burning before stoning and then strangulation before decapitation. Compare a later Roman legal text: “Those who commit capital crimes are, if from the upper classes, decapitated or exiled; those from the lower orders are cruciﬁed, burnt alive or thrown to the beasts.”128 The parallel here is strong, beyond the principle of gradation, since both the Mishnah and the Roman legal manual mention four methods of execution.129 But their ordering principles are fundamentally different. Roman execution’s ordering principle is social status. The ﬁrst question a Roman judge would ask one who came before him, whether the witness or the defendant, was “What is your condition, your rank (condicio, fortuna, tyche)?130 According to Garnsey, the differential penalty system can be seen already in the classical lawyers and emperors of the ﬁrst

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century c.e. but becomes more formalized in the period of the Antonine and Severan emperors in the second and third centuries. This formalization occurs with rising imperial anxiety to protect the higher orders, and with the disappearance of the jury courts and rise of the cognitio procedure, examination by an individual ofﬁcial who had great powers of discretion.131 While the terminology and distinctions are inconsistent—the lines between slaves, the lower orders (humiliores), and the upper orders (honestiores) were blurry132 —the Digest of Justinian (in addition to other legal sources) makes clear that there was a hierarchy of punishments that determined and was determined by social class:133 “You must know, however, that there are distinctions between punishments, and not all persons can have the same one imposed on them. To begin with, decurions cannot be condemned to the mines or to the opus metalli nor subjected to the gallows nor burned alive. If, by chance, they are so sentenced, they must be freed.”134 The penal system of the Roman Empire played an important role in the hereditary transmission and acquisition of privilege. The hierarchization of punishment can be seen most acutely in the arena: “Contrary to popular opinion, most of the arena’s dead victims were not true gladiators but doomed convicts (noxii), men (and women) sentenced to execution, cruciﬁxion, ﬁre, or the beasts.”135 The vast majority of gladiators were likely to have been defeated enemies of Rome—Gauls, Spaniards, Arabs, Thracians, Germans, Asians, Syrians, Greeks136 —and condemned criminals of servile status.137 The gladiators were peoples marginal to the Roman order, those who the Romans believed “had excluded themselves from the community of civilized peoples, and deserved death.”138 The noxii are shown in Roman art very differently from the glamorized voluntary gladiator standing proudly in his armor—the noxii are shown “nude or nearly nude, with bound hands or bound to posts, under the control of arena handlers or in the grasp of beasts.”139 The noxii were, in Rome eye’s, a surplus commodity, at Rome’s disposal for Rome’s amusement.140 The rabbinic ordering principle, made explicit by m. Sanh. 9:3, works differently.141 This Mishnah discusses a scenario in which criminals who have been given death penalties of different degrees are mixed and cannot be resorted: Should they all be given the more lenient penalty or the more severe? Rabbi Shimon and the Sages, appearing again in this Mishnah, agree that the criminals should all be given the more lenient penalty, but they dispute, as m. Sanh. 7 attests, which penalty that is:142 All those who have capital convictions who are mixed should be judged with the lighter penalty— if those convicted with stoning [are mixed] with those convicted of burning143 —Rabbi Shimon says: They should be judged with stoning since burning is more severe. And the Sages say: They should be judged with burning since stoning is more severe. Rabbi Shimon said to them: If burning were not more severe, it would not have been given to the priest’s daughter who makes a harlot of herself !

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execution and invention They said to him: If stoning were not more severe, it would not have been given to the blasphemer and to the idolater . . .144

In arguing over the scenario of a group of mixed criminals, Rabbi Shimon and the Sages seem to reveal the criterion by which they create their lists of executions from m. Sanh. 7. The logic behind these lists proves to be somewhat counterintuitive, so I will examine it step-by-step. The Tannaim begin with one known quantity: that the Torah gives certain punishments for certain crimes. The Torah clearly prescribes that the priest’s daughter is to be burned for sexual transgressions: “When the daughter of a priest deﬁles herself through harlotry, it is her father whom she deﬁles; she shall be put to the ﬁre” (Lev 21:9). The Torah also explicitly condemns the idolater to stoning: If there is found among you, in one of the settlements that the Lord your God is giving you, a man or woman who has affronted the Lord your God and transgressed His covenant, turning to the worship of other gods and bowing down to them . . . you shall take the man or the woman who did that wicked thing out to the public place, and you shall stone them, man or woman, to death. (Deut 17:2–5) So too with the blasphemer: “. . . the son of the Israelite woman pronounced the name in blasphemy, and he was brought to Moses. . . . And the Lord spoke to Moses saying: ‘Take the blasphemer outside the camp; and let all who were within hearing lay their hands upon his head, and let the whole community stone him’ ” (Lev 24:10–14). The Tannaim create out of these verses a game of inference: The Torah must have given the worst punishment to the crime it considered worst. The Tannaim work backwards from the crime to the punishment, guessing the degree of gravity of the punishment from the degree of gravity of the crime.145 The rest is subjective, of course—each disputant chooses the crime which he believes to be the most heinous. For Rabbi Shimon, the priest’s daughter’s sexual transgressions surely must be the worst crime imaginable, in which case burning must be the worst punishment. For the Sages, idolatry and blasphemy are supreme, so they consider the punishment of stoning to be the most severe.146 The degrees of severity in the rabbinic system of execution have to do with the degree of severity of the crime committed rather than anything inherent to the punishment or to the social status of the criminal. The rabbinic execution system thus bears a pattern of striking resemblances with and powerful differences from the Roman one. The Rabbis mimic the gradations of Roman execution but at the same time reject the underlying principles of Roman power.147 In this case, the logic of Rome’s executions, based on social status, would have been personally devastating to the Rabbis: As one of Rome’s conquered populations, the Rabbis themselves numbered among the humiliores subject to the summa supplicia, as the Rabbis’ own martyrdom narratives show. In replacing this logic with their own sacred logic, the logic of the Torah, the Rabbis appropriate the ordering principles of Rome but

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ﬂip them, so that those who would receive the worst punishments are no longer the Rabbis but rather the Romans, the idolaters par excellence in rabbinic eyes. I end with an alternate version of a rabbinic narrative that I discussed earlier. In that text, we saw Rome persecuting Jews with executions very similar to the Rabbis’ own. The later amoraic version makes the Roman executions methods practically indistinguishable from rabbinic ones: Why do you go out to be stoned? Because I circumcised my son. Why do you go out to be burned? Because I observed the Sabbath. Why do you go out to be beheaded? Because I ate matzah. Why do you go out to be ﬂogged? Because I made a sukkah, because I shook a lulav, because I put on teﬁllin, because I put on tekhelet, because I did the will of my father in heaven. Thus it is written, “And if he is asked, ‘What are those sores [on your back? he will reply, ‘From being beaten in the homes of my friends’]” (Zech 13:6)—these lashes caused me to be loved by our father who is in heaven.148 Lieberman points to the twinning of Roman and rabbinic execution in this midrash: “The Amoraim transmitted the words in a literary style according to the Mishnah of Sanhedrin, the beginning of Chapter Seven: four executions were given to the court, stoning, burning, beheading and strangulation, and then lashes.”149 Lieberman illuminates the midrashic pattern at work here; the punishments listed within it are precisely the punishments of the rabbinic court. The Jew is persecuted for keeping God’s commandments—circumcision, Sabbath observance, festival observance, worship—but oddly, the Jew is persecuted according to the punishments of the rabbinic court! My argument in this chapter—that the rabbinic executions reveal a profound ambivalence towards Roman executions—helps us to understand this midrash. In this narrative of persecution, the Rabbis make Roman execution look exactly like rabbinic execution, and in so doing they create an astounding reverse-mimicry. Instead of the Rabbis’ doing it “the way that the kingdom does,” the kingdom does it the way that the Rabbis do! Rabbinic power is here the “given,” while Roman authority can assert itself only through mimicry. Like Aggy borrowing the cultural materials of western Christianity in her vision of reversal, so the Romans appear forced to borrow the cultural materials of the Rabbis in order to resist them. The midrash assures its audience, however, that even this resistance will fail, since it only endears the persecuted Jew to God that much the more.

Charismatic Rabbis In this chapter, I have argued that the laws of criminal execution act as a ﬁeld on which the Rabbis test different strategies of resistance to Rome. The Rabbis choose the ﬁeld of criminal execution because it is this ﬁeld where Rome makes

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itself so “resistible,” that is, where Rome expends a great deal of its imperialist energies. Rabbinic criminal execution attacks Roman power at just the place where it is most spectacularly, artfully, and painfully imposed.150 Thus do the Rabbis experiment with modes of resistance through their own laws of execution, marginalizing Rome in the same terms by which Rome marginalizes people like the Rabbis. In conclusion, I want to explore the role these experiments play in rabbinic arguments for authority. Does the Rabbis’ resistance to Rome, in the end, make any difference, or is it just one more rabbinic fantasy? James Scott addresses this problem of making a difference. Often, hidden transcripts seem not to matter; they do not change the conditions of domination and subordination. Consequently, it is often thought that the hidden transcript is ineffective, “that the offstage discourse of the powerless is either empty posturing or, worse, a substitute for real resistance.”151 We might be tempted to make this claim of the rabbinic hidden transcript in particular, since we know with historical hindsight that the Rabbis did not change the basic conditions of Jewish subordination. In fact, in the shift of the Roman Empire from paganism to Christianity, persecution of the Jews worsened. Scott, however, recommends that we understand the hidden transcript not as a deﬂection of real action but as the breeding ground for it. Scott reminds us that “most subordinates conform and obey not because they have internalized the norms of the dominant, but because a structure of surveillance, reward, and punishment makes it prudent for them to comply.”152 That being the case, the “hidden transcript is continually pressing against the limit of what is permitted on stage, much as a body of water might press against a dam.”153 The hidden transcript, rather than channeling the anger of the oppressed away from the oppressor, gives it expression with revolutionary potential: “practices of resistance and discourses of resistance are mutually sustaining.”154 It is these expressions of resistance within the hidden transcript that ultimately generate both the day-to-day “down-to-earth, low-proﬁle stratagems designed to minimize appropriation” and the open revolutions that reach the pages of history books.155 Scott’s conclusions help us to understand the potential impact of these laws of criminal execution. Rather than viewing the Rabbis’ strategies of resistance to Rome as ineffectual rabbinic fantasy, as mere discourse, we can instead view them as practical discourse, as real critique. The signiﬁcance of the rabbinic hidden transcript lies in what Scott calls the “social production of charisma.” Scott gives the example of Mrs. Poyser, a character from George Eliot’s Adam Bede, who ﬁnally speaks her mind after years of frustration. In the novel, Mrs. Poyser and her husband resent the visits of their landlord squire, who each time imposes upon them new obligations and treats them with disdain.156 After years of deference, Mrs. Poyser ﬁnally explodes when the squire issues a thinly veiled threat of eviction; she stands up for herself and the whole parish. News of Mrs. Poyser’s explosion soon circulates to the neighbors, who take great pleasure in her rebellion. Eliot writes: “It was known throughout the two parishes that the Squire’s plan had been frustrated because the Poysers had refused to be ‘put upon,’ and Mrs. Poyser’s outbreak was discussed in all the

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farmhouses with a zest that was only heightened by frequent repetition.”157 Scott identiﬁes Mrs. Poyser’s outbreak as an instance of charisma because she fulﬁlls the expectations of her similarly oppressed neighbors; she “had her basic speech written for her in the realm of the hidden transcript.”158 Mrs. Poyser’s role as a heroine is “to a large extent scripted in advance offstage by all members of the subordinate group, and the individual who ﬁlls that role is that one who somehow—through anger, courage, a sense of responsibility, or indignation—summons the wherewithal to speak on behalf of others to power.”159 Mrs. Poyser’s charismatic heroism “depends centrally on having spoken on behalf of, in a quite literal sense, all the tenants of the squire. They did not appoint her to the post of spokesperson, but they deﬁned the role.”160 Scott concludes: Those who then sing Mrs. Poyser’s praises are far from being the simple objects of manipulation. They quite genuinely recognize themselves in her speech; she quite genuinely speaks for them. A relationship that has historically been seen as a relationship of power, manipulation, and submission becomes, on this view, a social bond of genuine mutuality. Mrs. Poyser, to invoke Jean-Jacques Rousseau, ‘wills the general will.’ The powerful emotional valence of the charismatic speech or act for subordinate groups—their sense of elation, joy, release—depends, I think, on it ﬁnding this resonance within the hidden transcript.”161 Scott’s model of charisma, through the example of Mrs. Poyser, allows us to grasp the potential signiﬁcance of the rabbinic laws of criminal execution. In their resistance to Rome—either through wholesale rejection or through subversive mimicry—the Rabbis speak not only for themselves, but they try to speak for the entire Jewish population of the Roman Empire. The Rabbis address Jewish concerns, the way Mrs. Poyser speaks for her parish. They creatively address problems of Jewish identity: how to be an oppressed minority and survive, maintaining commitment to the Bible and to Jewish observance in a pagan world. They capture the struggle for self-determination that characterizes colonized groups: The struggle to assert distinctiveness but also to co-opt sameness, to shun the colonizer and also to mimic him. It was the charisma of the Rabbis to capture this tension, to articulate it in recognizable and empowering ways. The rabbinic laws of criminal execution, in their resistance to Rome and in their disputes about the best way to resist, display the charisma of the Rabbis, in whose conversations the Rabbis hoped the Jews of the Roman Empire would be able to recognize their own concerns.

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7 The Judge and the Martyr Execution and Authority in Early Christianity

Love Thy Neighbor In an early midrash, Rabbi Judah reads Lev 19:18’s famous dictum of brotherly love to be a direction for the death penalty: Rabbi Judah says: Behold it says, “And love your fellow as yourself ” (Lev 19:18)—choose for him a nice execution. How do they do this for him? One lays his head on the block and cuts it off with an axe. They (the Sages) said to him: There is no execution more disgraceful than this. Rabbi Judah said to him: Of course there is no execution more disgraceful than this, but [one must do it this way] because of “. . . nor shall you follow their laws.” (Lev 18:3)1 In the last chapter, I discussed the implications of this dispute for Roman imperial power, but I did not emphasize its exegetical dimensions. According to Rabbi Judah’s reading of Lev 19:18, loving your neighbor entails meting out to him a “nice” or digniﬁed execution. Although the verse’s spirit of love appears to be at odds with punishment, Rabbi Judah in fact stays true to the original context in Lev 19, where the theme is not universal love, but rather the proper treatment of an adversary: 17. You shall not hate your brother in your heart; you shall surely reproach your fellow, and you shall bear no sin because of him. 18. You shall not take vengeance or bear a grudge against your countrymen, and you shall love your neighbor as yourself: I am the Lord.

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Verses 17 and 18 form a unit with a repeating structure: Each verse ﬁrst presents a prohibition (you shall not hate your brother/you shall not take vengeance), then states its remedy (you shall surely reproach/you shall love), and ﬁnally provides a rationale (you shall bear no sin/I am the Lord).2 Further tightening the unit, the end of v. 18 mirrors the beginning of v. 17: “you shall love your neighbor” is the positive formulation of “you shall not hate your brother.”3 The two verses together are concerned with hatred, vengeance, and grudges.4 Moreover, the larger passage in which both verses are found deals with judicial matters: “You shall do no injustice in judging: you shall not be partial to the poor nor defer to the rich, but in righteousness shall you judge your neighbor . . .”5 When Rabbi Judah construes Lev 19:18 as a humanitarian reform of methods of execution (though he does almost immediately change his mind about the benevolence of beheading with an axe), he is not far off from the passage’s contextual concerns with fair treatment of those whom one judges negatively. Another ancient Jewish interpretation of this verse, along similar lines, paradoxically adheres to the contextual meaning of the verse while seeming to refuse it. This is the interpretation proclaimed by Jesus in the Sermon on the Mount narrated by the Gospel of Matthew:6 43. You have heard that it was said, “You shall love your neighbor and hate your enemy.” 44. But I say to you, Love your enemies and pray for those who persecute you, 45. so that you may become sons of your father who is in [the] heavens; for he makes his sun rise on [the] bad and [the] good, and he makes the rain to fall on [the] righteous and [the] unrighteous. 46. For if you love those who love you, what reward do you have? Do not the tax collectors also do the same? 47. And if you greet your brothers only, what extraordinary thing do you do? Do not pagans do the same? 48. Therefore, you shall be perfect as your heavenly father is perfect.7 In this last of the six “antitheses” of Matt 5, Jesus seems to say that the Hebrew Bible’s call for brotherly love does not go far enough.8 He preaches instead that one must love not only one’s neighbor but also one’s enemy in the pursuit of divine perfection.9 In the second century, Marcion, bringing this antithesis and the others as evidence, taught that Jesus came to discard the Law and the Prophets. But Jesus does something curious here: He quotes a verse that does not exist. While “you shall love your neighbor” is familiar from Leviticus, the attendant prescription to hate one’s enemy is nowhere to be found in the verse.10 The problem is easily resolved if we presume that Jesus is objecting not to the verse itself but to a common interpretation of the verse in Jesus’ time that limited its scope to the like-minded.11 Jesus replaces this interpretation with an expansive one that extends the verse’s dictum even to the persecutor.

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Like the rabbinic interpretation above, Jesus’ interpretation resuscitates the contextual meaning of the verse: Jesus applies the dictum of brotherly love to the adversary, resonating with Leviticus’s own concern.12 Yet the Christian reading, in the end, proves more radical with respect to Leviticus than the rabbinic one when we look to their larger contexts respectively in the Tosefta and in Matthew’s sermon. The rabbinic reading, while it reforms and rabbinizes biblical methods of criminal execution, preserves the Bible’s essential framework of sin, judgment, and punishment. The Sermon on the Mount, on the other hand, takes this triangle apart. The preceding antithesis interrogates the lex talionis and advocates instead an ethic of generosity if not passivity in the face of wrongdoing.13 Earlier in Matt 5, Jesus declares sinful not only the act of murder but also murderous thoughts, reconﬁguring biblical law’s notion of sin. The ﬁrst verse of Matt 7 rejects judgment altogether: “Judge not, that you be not judged.” Jesus’ interpretation of Lev 19:18 takes its place within a larger project of destabilizing or perhaps “eschatologizing” the biblical heritage of crime and punishment.14 I take these two readings, one rabbinic and one Christian, not necessarily as emblematic of ancient Jewish interpretations of Lev 19:18, which existed in substantial variety and are a subject in their own right.15 The two readings do, however, point to the divergent constructions of crime and punishment to be found in the complexes we call early Christianity and rabbinic Judaism. In this chapter, I look at early Christian discourses of criminal execution in the second century, drawing attention to the starting points, suppositions, and strategies shared with contemporaneous rabbinic literature. But I will emphasize the diametrically opposite positioning that Christian authors take vis-a`-vis criminal punishment. In the ﬁrst part of the chapter, I examine early Christian narratives, beginning with the Passion Narrative, continuing with Paul’s conversion and persecutions told in Acts, and expanded by various martyrdom narratives, in which the Christian hero is executed by villainous authorities who pervert the law they claim to follow. These myths of martyrdom show that early Christian culture is forged from a strong identiﬁcation with the executed. While the hero of the rabbinic story is the righteous judge, as we have seen, the hero of the Christian story is the righteous martyr. Rabbis and Christians speak in different registers, to be sure—Rabbis legislate, and Christians narrate. In other words, rabbinic discourse is legal, while Christian discourse takes place in story and gospel, epistle and apology, as we shall see. Yet these generic differences only amplify the contrast I am drawing: Legal discourse reﬂects the rabbinic self-perception as judge, while Christian genres more aptly characterize the judged. So this chapter is a study in contrasts, not only of the content of discourse but also of its form.16 In both traditions, I should add, the reality of the second century exists in some tension with the discourse. The number of rabbinic judges who could actually impose a death penalty, by the Rabbis’ own evidence, was none; the number of actual Christian martyrs, while greater than that, was not likely to have been produced by any systematic juridical persecution of Christians in this early period.17 There is, however, ﬁerce scholarly debate surrounding both questions—the juridical competence

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of Jews and the juridical persecution of the Christians—suggesting that there is no easy way to connect the dots between the stories ancient people told and the lives they lived.18 My purpose in this chapter is not only to contrast the rabbinic and Christian discourses of punishment. I argue that sitting on opposite sides of the judge’s bench can, in fact, have similar social consequences. Playing the executed as well as playing the executioner are both modes of authority building. Rabbinic Judaism and early Christianity each mobilize the discourse of criminal execution to generate new sites of authority. The ﬁgure of the powerful rabbinic judge lies at the heart of the elaborate system of law the Rabbis construct, as previous chapters have shown. This chapter will show how the partner ﬁgure of the martyr becomes a central topos within early Christian narrative and acts as a catalyst for evangelization. In looking at the letters of Ignatius of Antioch and Justin Martyr, the subject of the next part of the chapter, we will see how the discourse of martyrdom is used not only to critique authority but also to build it. In the process of juxtaposing the Christian discourse of criminal punishment with the rabbinic one, I will be dredging up seemingly eternal stereotypes of Judaism and Christianity, the one as a religion of judgment and severity, the other as a religion of submission and forgiveness. To some extent, the contrast I draw between rabbinic Judaism and early Christianity conﬁrms these stereotypes. Yet I hope, at the same time, to subvert these stereotypes or at least to shift the way we look at them. I want to ask the unexpected question about each: How is rabbinic Judaism’s “judicialism” a form of resistance to power? How is early Christianity’s anti-judicial ethos a form of wielding power? And how are both innovations to a common body of inherited traditions of law and authority? I will explore how early Christian writings make claims for religious authority by manipulating a discourse of punishment, and I will show that, in the end, the Christian and rabbinic paradigms are much closer than they initially would seem. We will see that the paradigms themselves begin to bleed, so to speak, over to the other side: In a succeeding section of this chapter we will see the martyr making prominent appearances in rabbinic literature. Yet I will show that the rabbinic martyrdom narratives are markedly different from the Christian ones. While in Christian martyrdoms the villain is the Jewish and, later, Roman judge, in rabbinic martyrdoms the villain appears to be the divine judge, the God who permits the punishment of righteous rabbinic Jews. I take here an approach to early rabbinic Judaism and early Christianity that sees the two not as distinct religions but as two conversations within the same religious universe. This is an approach adopted by recent scholars rebelling against earlier conﬁgurations of the two either as mother/daughter religions or older brother/younger brother religions. Daniel Boyarin, Israel Yuval, Galit Hasan-Rokem, Mark Hirshman, Burton Visotzky, Annette Reed and others instead emphasize the overlap and exchange between Rabbis and Christians and delay the drawing of ﬁxed boundaries between them until rel-

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atively late.19 These scholars point to both rabbinic and Christian texts that show evidence of shared concerns and also polemical intent. While I will not be making any arguments about actual historical interaction between early Rabbis and Christians when it comes to their discourses of criminal punishment (though I do not wish to discount the possibility that there was such interaction), I do propose that we view them as belonging to a common context. In thinking in this way about early rabbinic Judaism and early Christianity, we can better see those discourses each as a choice among a menu of possibilities. The two discourses become not inevitable consequences of their location but active shapings of it. Previous generations of scholars of early Christianity assumed that its martyrdom stories were simply mirrors held up to real-life martyrdom experiences. Scholars of rabbinic literature tended to read rabbinic law in the same way, as a reﬂection of Jewish reality. More recent scholars have shaken up this one-to-one correspondence approach. By juxtaposing rabbinic and Christian discourses of criminal execution, I want to explore how Christians and Rabbis, both minority groups suffering under Roman rule (albeit suffering perhaps to different degrees) come out telling very different yet compelling stories about their experiences. These two bodies of texts, when looked at side by side, show that telling a story of martyrdom is one ideological choice among many, and that creating a ritual of criminal execution is as well. Through this double lens, we can see both rabbinic and Christian narratives of criminal execution each as active shapings of past and present discourses that creatively generate claims to truth and to public authority.

Myths of Martyrdom The Passion Narrative The discourse of criminal punishment in early Christianity begins with the Passion Narrative20—the story of Jesus’ death at the hands of Jewish and/or Roman authorities, plotted as a judicial trial.21 The legal elements of this story are perhaps the most contested portion of the entire New Testament, at least from a Jewish perspective, since responsibility for Jesus’ execution is at stake. All four Gospels include some type of trial, legal proceeding, hearing, or interrogation of Jesus before Jewish authorities and Roman authorities. Multiple discrepancies exist regarding the details of both.22 For the session with Jewish authorities, the Gospels differ with respect to the extent of its formality, who is involved, and when it takes place. Mark and Matthew portray a full-scale legal proceeding at night with priests, scribes and elders, and then also some legal proceeding as morning comes, intended either as a continuation of the ﬁrst or as a second proceeding.23 In Luke, an assembly of elders, priests, and scribes meets in the morning to try him, though without witnesses, charges, or sentence as in Mark and Matthew. John shows Jesus being interrogated ﬁrst by Annas and then by Caiaphas, with both interrogations by the high priests taking place during the night and ﬁnishing as morning comes (and thus chron-

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ologically similar to Mark and Matthew). John’s narrative has nothing resembling a formal trial of Jesus by a Jewish court, though John does tell of a trial of Jesus that takes place several weeks before Jesus’ death (11:47–53).24 The trial by Pilate that follows the Jewish trial bears some similarity to it, at least in Mark’s version, where Pilate’s questions resemble those of the high priest, and Jesus’ responses, though in reversed order, almost repeat. Yet in the larger scheme of the narrative, Mark dramatizes the Roman trial much less than he does the Jewish trial. While Matthew and Luke expand the scene well beyond Mark, John’s version of the Roman trial is by far the most elaborate, with extended conversations between Pilate and the Jews/the chief priests (it is ambiguous which) and then between Pilate and Jesus, organized in a chiastic arrangement.25 Luke is the only Gospel to follow up the trial in front of Pilate with a second Roman interrogation before Herod. Common to all the Gospels is a subsequent scene involving Barabbas and then Jesus’ condemnation to the cross and cruciﬁxion, though again, the Gospels differ with respect to many details, such as information regarding the custom of releasing a criminal, the intensity of the crowd’s desire to execute Jesus and Pilate’s desire not to, whether it is Pilate or Pilate’s wife who proclaims the innocence of Jesus, to what extent Pilate is to blame for Jesus’ execution, and the chronology of Jesus’ being ﬂogged and mocked. Finally, the Gospels differ not only in their organization and articulation of the Passion Narrative but also in the theological signiﬁcance they attribute to Jesus’ execution (I will omit discussion of what signiﬁcance Jesus himself attributed to his execution, a subject of much inevitably inconclusive debate). For Mark and Matthew, despite their differences from each other, the executed Jesus is abandoned and agonized, a ﬁgure of suffering but also consolation and vindication. For Luke, Jesus is forgiving and healing, always in close communion with God, his innocent suffering and death salutary even for his executioners. For John, Jesus is triumphant, immune to the persecutions of persistently blind human authorities, acting willingly for the sake of God’s glory to fulﬁll the prophecies of Scripture.26 But what the Gospels all share in their perspective on the passion is that Jesus’ execution represents a gross miscarriage of human justice. The injustice of this act generates the drama of the story and remains at its center. Mark and Matthew portray a Jewish court that is bent on killing Jesus from the outset. Mark begins the ﬁnal countdown toward Passover with the murderous intentions of the Jewish leaders: “The chief priests and the scribes were looking for a way to arrest Jesus by stealth and kill him” (14:1). The trial itself, as Mark narrates it, is almost parodic. The chief priests and “whole” council (holon to synedrion) are looking for testimony to use against Jesus (14:55), though they can ﬁnd none. Witnesses come forward to accommodate the court’s evil wishes, but Mark emphasizes that the testimony is false, mentioning its falseness four times within three verses: “For many bore false witness against him, and their witness did not agree. And some stood up and bore false witness against him, saying, We heard him say, ‘I will destroy this temple that is made with hands, and in three days I will build another, not made with hands.’ Yet

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not even so did their testimony agree” (Mark 14:56–59).27 The high priest elicits from Jesus what he considers to be a self-incrimination, discards the requirement of witnesses altogether, and inﬂuences the other judges to issue a condemnation. These same judges, it seems, proceed to spit on and strike Jesus, making the scene look more like a lynching than a trial. The language of law dominates the story—ﬁve words of the stem martyr-, “witness,” appear in four of Mark’s key verses (14:55–59)—yet the judicial structures are consistently corrupted by the Jewish judges. Matthew elaborates on Mark to create an even more negative portrait of the Jewish court. In Matthew, the court seeks false testimony to use against Jesus (26:59). And infamously, the Jews accept full responsibility for Jesus’ execution: “His blood be on us and on our children!” (27:25). In neither Mark nor Matthew does Pilate receive positive treatment, but he is at best negligent in his responsibilities as a ruler rather than malicious as the Jewish authorities and people are.28 Luke’s narrative also emphasizes corruption: The Jewish authorities accuse Jesus repeatedly of perversion and leading astray (diastrephein, 23:2; apostrephein, 23:14), but it is the Jewish authorities themselves who prove in the story to be guilty of such charges.29 While Luke portrays no false witnesses against Jesus or sentencing of him by a Jewish court as do Mark and Matthew, a Jewish assembly interviews Jesus, proclaims no need for further testimony, and delivers him over to Pilate, who in turn hands him over to Herod. The chief priests and scribes interfere actively in both the Roman trials, swaying the Roman leaders to condemn Jesus even though Pilate and Herod profess sympathy with Jesus. Luke portrays Jesus as a martyr ﬁgure, innocent of the charges brought against him, suffering as an act of obedience to the divine will, a descendant of the Hebrew Bible’s prophets.30 The Jewish judicial corruption familiar from Mark and Matthew turns up eventually in Luke, as part of the trial of Stephen in Acts 6 and 7.31 In John’s Gospel, the chief priests and Pharisees decide early in the story to put Jesus to death (11:45–53). At numerous junctures in John’s passion, Pilate tries to release Jesus, and the Jews argue for his condemnation. Both the Roman and Jewish systems of criminal justice are identiﬁed with falsehood and darkness in opposition to Jesus’ and his disciples’ truth and light, John’s dualistic preoccupations. Roman justice, under Pilate, is spineless; Jewish justice, meted out by the high priests and carried out by “the Jews,” is hypocritical and malicious. While the Jewish court claims not to have the ability to put a criminal to death, they effectively crucify Jesus by forcing Pilate to do it.32 In John’s narrative as well as in the synoptics, Barabbas acts as the counterpart to Jesus, emphasizing the perversion of justice: While the innocent man is executed, the guilty man goes free.33 Indeed, Barabbas is guilty of the very same crime of which Jesus is falsely accused, that of political disturbance. One can ask about the implications of Jesus’ indictment, found in all four Gospels, for an ideology of criminal justice. Do these four versions of a story about a corrupt court intend to criticize human justice per se? Do they criticize the particular court that they believe to have tried Jesus? Do they criticize the justice systems at work in the late ﬁrst/early second centuries when the gospels were redacted, or none or all of the above? Of course, the implications spun

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out of the gospels depends on the context in which they are being interpreted, and I will presently turn to some early Christian interpretations of the justice administered to Jesus (or lack thereof ). At the very least, we can say by the terms of the Passion Narratives that they radically criticize the judicial power used against Jesus, especially by the Jewish legal authorities but also by the Jewish people as a whole and the Roman legal authorities.34 The story uses the setting and language of the court to create its heroes and villains and to generate the conﬂict between them.35 And it is relatively unambiguous who is who: The heroes are those executed and allied with the executed, and the villains are those who execute (though it varies who exactly plays the role).36 The judges are bloodthirsty, and the accused is innocent.37 There is a ﬁne line, perhaps no line, between the legal proceedings the judges initiate and the violent frenzy of a mob.38 While the persecuted Christ might superﬁcially appear to have earned God’s disfavor, the story shows that the mainstream Jewish establishment is the true object of divine judgment, and that the suffering of Christ is, in fact, the fulﬁllment of God’s plan. Scriptural fulﬁllment drives the story; the characters almost have no choice but to play their parts. In Luke, immediately before the trial narrative is set into motion, Jesus predicts his punishment based on Isa 53:12.39 The other Gospels include similar scriptural predictions. Moreover, the trial of Jesus itself is structured by legal procedure derived from the Pentateuch, as well as steeped in motifs from the Psalms and other Hebrew biblical passages.40 The sense of inevitability fostered by this scriptural shaping in no way detracts from the drama of good versus evil; indeed it enhances the drama that the sacred Hebrew Scriptures should already contain it.41 The literary pattern of unjust judge and innocent victim creates a myth of origins that is the Gospels’ critical contribution to the growing movements of Christianity.42 This drama of suffering and injustice proves so powerful that the author of Luke-Acts borrows it to tell several other stories, to which I now turn.

The Martyrdom of Stephen The story of the early church told by the book of Acts is littered with persecutions and trials. A narrative formula begins to emerge: The martyr performs miracles, antagonists are provoked, the martyr is put on trial, the martyr gives a speech during the trial, the court convicts the martyr, the martyr displays his continuing trust in God, he is then forced to suffer, upon which he renews his proclamation of God’s word.43 The trial and execution of Stephen is pivotal among these repeating narrative units: Stephen’s story begins the spread of the gospel out of Jerusalem and jumpstarts the Jewish persecutions and, speciﬁcally, those of Saul of Tarsus, who ﬁrst appears next to Stephen. Stephen is introduced in Acts 6 as one of the seven chosen “to serve tables,” that is, to hand out food to the needy, so that the twelve apostles can focus on prayer and ministry, though in the continuation of the chapter he assumes the role of preacher (Acts 7 is taken up mostly by a long speech delivered by Stephen). While Stephen is a less prominent character than Peter or Paul, he is repeatedly characterized by Luke-Acts as being similar to Jesus and his apostles: He is a

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man of “good repute, full of Spirit and wisdom” (6:3), “full of faith and of the Holy Spirit” (6:5), and doing “great wonders and signs” (6:8).44 The events that unfold are strongly reminiscent of the Passion Narrative (not just Luke’s own version but also Mark’s): Stephen is accused of blasphemy, a council is convened, false witnesses come forward, and Stephen is executed. Speciﬁc parallels between the two stories are unmistakable: Stephen, in words almost identical to Jesus’, declares during his trial that the Son of Man is seated/standing at the right hand of God (Luke 22:69; Acts 7:56), both proclamations drawing upon Ps 110:1.45 Stephen’s ﬁnal prayer, “Lord, Jesus receive my spirit” (Acts 7: 59) not only refers to Jesus but also echoes Jesus’ own last words, “Father, into your hands I commit my spirit” (Luke 23:46). Stephen’s plea that his persecutors be forgiven (Acts 7:60) mimics Jesus’: “Father, forgive them; for they do not know what they are doing” (Luke 23:34). Both pleas are uttered “with a great voice” (Luke 23:46; Acts 7:60). Both deaths are also fulﬁllments of sacred predictions, since Stephen’s death is foreshadowed by Jesus’ prophecy in Luke 12:1–12 and 21:12–19. Already within the same literary work, Jesus’ execution at the hands of unjust authorities acts as a model for subsequent martyrdoms.46 Inherent to this paradigm is an antagonist who unfairly punishes the protagonist. Like in the Passion Narrative of Luke and the other synoptics, the Jewish authorities hypocritically manipulate their legal system in order to execute Stephen.47 The trappings of justice are all to be found: a judicial council, witnesses, accusation, interrogation. In fact, the trial and execution of Stephen follows the strictures of the Hebrew Bible even more closely than the Passion Narrative does, since in the story of Stephen the Jews not only try and condemn the criminal but they punish him themselves as well, and they do so according to the Hebrew Bible’s primary method of punishment, stoning. But while the Hebrew Bible in numerous places requires the criminal to be cast out and stoned just as Stephen’s executioners do here, the Hebrew Bible also legislates careful investigation (e.g. Deut 17:4, 6), legislation that Stephen’s executioners decidedly ignore. The trial and punishment of Stephen, like that of Jesus, pretend to observe the Hebrew Bible’s criminal law while they grossly undermine its basic principles. Some scholars have even attempted to attribute the narrative of Stephen’s martyrdom to two sources, one of which describes a lynch mob and the other of which describes a trial, but it is easy to see the narrative logic of combining the features of both: The blurring of boundaries between trial and mob vengeance speaks to the parody of Jewish justice that Luke-Acts represents.48 We will see that such blurrings become a common feature of early Christian martyrdom narratives, enhancing the reader’s or listener’s sympathy with the accused and their hatred of the executing authorities. Thus do these stories engage their audiences and, according to Talbert’s argument about Luke-Acts’s martyrdom stories, increase their evangelistic outreach.49

The Conversion of Paul Stephen, whose story is the prelude to Paul’s, also provides its model of ministry and martyrdom.50 The story of Paul’s many persecutions structure the

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remaining narrative of Acts, yet it is the narrative of Paul’s conversion which is more revealing of the work done by the discourse of crime and punishment.51 Like in most narratives of conversion, we meet Paul in the “before picture.”52 Saul’s increasingly violent activities are highlighted through the vehicle of Stephen. The Saul narrative begins tamely, with Saul standing by during Stephen’s death, guarding the garments of those who witnessed Stephen’s alleged crime (7:58); next Saul is somewhat more actively “consenting” (syneudoko¯n) to Stephen’s death (8:1).53 The narrative then escalates, with Saul engaging in his own persecutions of Christians (8:3). Saul is set in stark contrast to the Christians who bury and mourn Stephen: “Devout men (andres eulabeis) buried Stephen . . . but Saul was ravaging (elymaineto) the Church . . .” (8:2–3). The narrative puts Saul’s violence into relief, making him seem almost singlehandedly responsible for destroying the Church.54 In fact, we learn nothing about Saul in our introduction to him except that he is the enemy of Christians.55 After an interlude in which two other conversion narratives appear, one of Simon Magus and the other of an Ethiopian ofﬁcial, both foreshadowing the conversion of Saul, the narrative returns to Saul and his persecutions. The violence is ratcheted up a notch, with Saul now “breathing threats and murder against the disciples of the Lord” (9:1). Saul next allies himself with the high priest, the antagonist familiar from the Passion Narrative, asking him for letters to the synagogues in Damascus permitting him to arrest Christians there and bring them back, bound, for trial in Jerusalem.56 This alliance is emphasized again later in the story, when Ananias describes Saul as having “authority from the chief priests to bind all who call upon your name” (9:14). On the way to Damascus, however, Saul famously sees a light from heaven, falls to the ground, and hears a voice, which proves to be the voice of none other than Jesus himself: “Saul, Saul, why do you persecute me? . . . I am Jesus, whom you are persecuting” (9:4–5). Jesus’ call implies that in persecuting the followers of Christ (the verb is diokein, used by Luke-Acts almost exclusively in connection with Paul), Saul has also been persecuting Christ himself.57 After a now-blind Saul rises from the ground, reaches Damascus, and begins to fast, the scene shifts to Ananias. When God calls to Ananias to go to Saul and Ananias hesitates, God conﬁrms his choice of Saul to be witness to his word: “Go, for he is a chosen instrument of mine to carry my name before the Gentiles and kings and the sons of Israel; for I will show him how much he must suffer (dei pathein) for the sake of my name” (9:15–16). Saul’s chosenness is linked here to the suffering he will endure.58 This suffering recalls Jesus’ suffering: pascho¯, the verb God uses to describe Paul’s future sufferings, is the verb used usually to describe Jesus’—the title “passion” narrative derives from it.59 To witness to Jesus is deﬁned by the suffering one shares with Jesus precisely as a consequence of witnessing to him. Saul’s movement from one who causes others to suffer to one who himself suffers is the essence of his conversion as God prophesies it; the suffering is both a consequence of the conversion and the means to it. Thereafter Ananias goes to Saul and lays his hands on Saul’s head; this act ﬁlls Saul with the Holy Spirit, allowing him to regain his sight, to be baptized, and to end his fast. Saul begins to proclaim Jesus, amaz-

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ing those in the synagogue who had been prepared for a teacher hostile to Christ. The narrative immediately shifts to a new persecution not by Saul but of him: “When many days had passed, the Jews plotted to kill him” (9:23). The once persecutor has now become the persecuted. These persecutions of Paul continue until the end of the book of Acts, on the part of “the Jews” (and in some cases facilitated by the Romans), though interestingly Paul survives the book of Acts, unlike his martyrological models.60 The central character of the book of Acts, Paul has often been read as a paradigm of conversion (though we must avoid the traditional notion that it is a conversion from one religion to another, from the old religion of Judaism to the new religion of Christianity).61 This paradigm shows conversion to Christ to be a conversion from persecutor to persecuted. Whereas the pre-conversion Saul binds “all those who call upon your name” (pantas tous epikaloumenous to onoma sou, 9:14), the post-conversion Paul suffers “for my name” (hyper tou onomatos mou, 9:16); the Saul who was consenting to Stephen’s execution (anairesis) becomes the one whom others want to execute (anelein, 9:23, 24, 29).62 What it means to join the Christian community is to shift from executioner to executed, from judge to judged, from jailer to imprisoned.63 This shift is not incidental to Saul’s conversion but constitutive of it.64 Jesus’ selfdisclosure to Saul shows that the Christian suffers persecution because of Jesus, like Jesus, and also with Jesus.65 Paul’s shift from persecutor to persecuted is emphasized in the other two tellings of his conversion later in the book of Acts, the repetition emphasizing the conversion’s centrality in the narrative scheme of Luke-Acts.66 These two subsequent ﬁrst-person accounts in Acts 22 and Acts 26 differ in signiﬁcant ways from the initial third-person narrated account in order to intensify the story’s drama.67 The conversion narrative in chapter 22 is set into motion in chapter 21, when Paul is accused of teaching against the law and deﬁling the Temple, and the Jerusalem Jews seize him. Paul defends himself in the style of formal legal defenses found in Roman historiography, thus transforming the outdoor scene into a courtroom and the mob into a judge.68 Paul’s speech of self-defense begins with his pre-conversion persecutions: “I persecuted this Way to the death, binding and delivering to prison both men and women, as the high priest and whole council of elders bear me witness. From them I received letters to the brethren, and I journeyed to Damascus to take those also who were there and bring them in bonds to Jerusalem to be punished” (22:4–5). Paul emphasizes the legal sanction his persecutions bore, expanding the issuing authorities to include the “whole council of elders” (pan to presbyterion). Paul is also clearer about his purpose: He brings the Christians in bonds to Jerusalem “to be punished” (timo¯re¯tho¯sin), a phrase missing from chapter 9, and he adds to his binding Christians his “delivering [them] to prison.” Paul borrows legal language also to describe the mission that Jesus confers on him: Ananias tells Paul that he “will be a witness (martys) for him to all men” (22: 15), and, later in the scene, Jesus uses the same language of testimony to tell Paul that the people of Jerusalem “will not accept your testimony (martyrian) about me” (22:18). Just as Paul, earlier in his speech, conﬁrms the witness that

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the high priest and elders bear to his persecutions of Christ, so does Paul here conﬁrm the witness he himself now bears to Christ—Paul conﬁgures his conversion in terms of shifting testimony. Like in the original conversion scene, this one ends with his Jewish audience demanding that he be killed: “Up to this word they listened to him; then they lifted up their voices and said, ‘Away with such a fellow from the earth! For he ought not to live’ ” (22:22).69 While Paul previously sought the death penalty for Christians, now he, as a Christian, is threatened with the same punishment. As the narrative tension escalates, the legal language is intensiﬁed in Paul’s second telling of his conversion story before King Agrippa II and Festus, once again in a speech of self-defense.70 Paul confesses to his past as a persecutor of Christians: “I not only shut up many of the saints in prison, by authority from the chief priests, but when they were put to death I cast my vote against them” (26:10). Paul here emphasizes the legal nature of his persecution not only by attributing its source of authority to the chief priests but also by portraying himself as a judge voting to condemn Christians.71 Paul uses similar words in v. 12: “And I journeyed to Damascus with the authority and commission of the chief priests.” As in chapters 9 and 22, Paul describes his trip to Damascus as having the authority of the chief priests, though he here he also adds the word epitrope¯s, “commission,” suggesting that the chief priests not only condoned but also instigated his activities. Jesus’ words to Paul on the road to Damascus are greatly expanded from chapters 9 and 22: “But rise and stand on your feet; for I have appeared to you for this purpose, to appoint you to serve and bear witness to the things in which you have seen me and to those in which I will appear to you . . .” (26:16). Jesus is again portrayed as using the language of testimony: Whereas previously Paul has been a witness against Christians (and therefore Christ), now he will bear witness to Christ. Paul continues the story, describing to Agrippa the immediate consequences of his conversion: “For this reason the Jews seized me in the temple and tried to kill me” (26:21). The paradigm of conversion from executioner to executed is reinscribed. The conversion stories of Paul make use of legal discourse, speciﬁcally the discourse of criminal law, in order to create Christian identity. The larger narrative in which Paul goes on to convert others takes on the same legal cast; his persecution is often portrayed in terms of trials and other judicial encounters.72 Christian identity is thus created through legal discourse that moves its characters—and attempts to move its audience—from plaintiff to defendant, or from the judge to the stand. Frequently the legal context slips into something more frenzied and disordered, but this only serves to highlight the hypocrisy of the Jewish (and sometimes pagan) courts that much the more. Scholars frequently regard this penchant for penal talk as an effort on the part of early Christians to make sense of their real-life persecutions.73 It may well be the case that these stories were important sources of solace and support for suffering Christians, but they may have also functioned in more complicated ways for Christians who were not themselves suffering as much as the characters in the stories. These writings of and about Paul tell a dramatic story in which

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an innocent man is unjustly accused and punished by blind or malicious judges. These stories might appeal not only to those audiences who have actually suffered at the hands of authority, but also to those looking for a gripping view of reality in which sympathies are clearly deﬁned and power structures are challenged or reversed. The early Christian stories, we might speculate, gave Christian and not-yet-Christian audiences a compelling new take on Jewish and Roman authority, becoming the basis for Christian imagination and self-perception, just as rabbinic law may have been intended to function for rabbinic audiences. But while rabbinic law used the language of judicial violence to celebrate the just rabbinic judge, Christian narrative used this language to criticize if not demonize the wielders of judicial power.

The Early Martyrs The early myths of martyrdom of Jesus, Stephen, and Paul contributed (along with Roman persecutions!) to an increasingly rich martyrological tradition in which Rome replaces the Jews as the arch-villain. The book of Revelation tells the story of suffering in the cosmic language of apocalypse, while a body of martyrdom narratives grew that pitted the Roman imperial authorities against the militarily weaker but spiritually stronger Christians.74 In these narratives, Christians reverse the abject status assigned to them by the Roman hierarchy, representing themselves instead as the glorious victors paradoxically empowered by their humiliating torments.75 Imperial Rome’s hegemony was called into question by narratives of reversal such as the Martyrdom of Polycarp, the Passion of Perpetua and Felicitas, and the Acts of Lyons and Vienne. Like the New Testament narrative traditions from which they draw, these martyrdom narratives make important use of criminal legal discourse in order to produce their disruptions of power.76 It might be better to say that the drama of these narratives often derives not from the law but from the lawlessness of the Roman authorities and the mobs who encourage them, a motif familiar from LukeActs and the other Gospels.77 The righteousness of the suffering Christians comes into view in contrast to the law-breaking rulers who try them. The Martyrdom of Polycarp, the earliest known Christian martyrdom narrative outside the New Testament canon, describing events in mid-second century Smyrna, portrays a willing young martyr named Germanicus facing an ineffectual governor and an angry mob accusing him vaguely of “atheism.”78 Later in the narrative the arena audience is described as “lawless pagans” (anomo¯n ethno¯n).79 Like in the Passion Narratives and the martyrdom scenes in Acts, what should have been a trial turns out to be a frenzy of anger. In another second-century martyrdom narrative, the Christian Lucius objects to the unreasonable judgment exercised by Urbicus, the prefect, who has just condemned Lucius’s fellow Christian, Ptolemaeus, to death.80 Lucius proceeds to defend the innocence of Ptolemaeus and to attack all implicated Roman authorities: “Your sentence, Urbicus, does not beﬁt the Emperor Pius, his philosopher son, or the holy senate!”81 As Elizabeth Castelli writes, “the logic of the story depends upon the complete and recognizable innocence of Ptole-

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maeus, including the absence of a precise law which Ptolemaeus might be seen to have violated.”82 For his pains, Lucius is also then condemned to death, along with a third man left anonymous, at which point the narrative abruptly ends, leaving the reader with some of the sense of surprise that Lucius himself and the nameless third man must have felt upon hearing the governor’s summary command to execute them. Along similar lines, the martyrdom narratives of Justin and his companions, Ptolemaeus and Lucius, and Christians in Vienne and Lyons showcase Roman authorities who act somewhere between law and brute violence. Castelli argues that common to all these martyrdoms is a representation of the malleability of Roman law, which has the narrative function of attributing to the persecutors “irrationality and diabolical character” in contrast to the essentially righteous character of the Christians.83 The upright Christians are shown to be the ultimate victors of the tale, as the secondcentury Christian apologist and lawyer Minucius Felix writes of the Christian gladiator: “How beautiful is the spectacle to God when a Christian does battle with pain . . . when, triumphant and victorious, he tramples upon the very man who has pronounced sentence against him!”84 And the losers of the tale are ironically the condemning judges, who will themselves be judged and eternally punished, as Polycarp declares before his martyrdom: “The ﬁre you threaten me with burns merely for a time and is soon extinguished. It is clear you are ignorant of the ﬁre of everlasting punishment and of the judgment that is to come that awaits the impious” (11:2).85 The ﬁgure of the witness is the key to the irony of these narratives.86 While in the Hebrew Bible and in Hellenistic legal literature the witness’s purpose is to condemn, in the Christian martyrdom narrative the witness becomes the “criminal” himself, though the narrative’s audience knows that the true criminals are the judge and the bloodthirsty crowd.87 To this witness is attributed many powers, as the Martyrdom of Polycarp illustrates. The ﬁrst paragraph of the narrative speaks of the practical effects of Polycarp’s martyrdom: “We are writing to you, dear brothers, the story of the martyrs and of blessed Polycarp who put a stop to the persecution by his own martyrdom as though he were putting a seal upon it.”88 Polycarp’s death seems to have stemmed the tide of Christian deaths in Smyrna. Polycarp’s testimony is described as being in imitation of Christ’s own testimony: “For practically everything that had gone before took place that the Lord might show us from heaven a witness in accordance with the Gospel. Just as the Lord did, he too waited that he might be delivered up . . .” The echoing effect is then doubled: “. . . that we might become his imitators (mime¯tai), not thinking of ourselves alone, but of our neighbors as well.” Polycarp imitates Christ; we Christians imitate Polycarp; others imitate us—a chain reaction is set off. But Polycarp’s testimony is signiﬁcant not only because it mimics Christ’s but also because it teaches the primacy of the spirit: “Some indeed attained to such courage that they would utter not a sound or a cry, showing to all of us that in the hour of their torment these noblest of Christ’s witnesses were not present in the ﬂesh, or rather that the Lord was there present holding converse with them.”89 Polycarp’s story proceeds in the steps of Christ. He is apprehended by a police captain named

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Herod; he is put on a donkey to travel to the city on the Sabbath during Passover; numerous other details evoke Christ’s own passion.90 Polycarp’s martyrdom is also ﬁgured as an animal sacriﬁce to God: “he was bound like a noble ram chosen for an oblation from a great ﬂock, a holocaust prepared and made acceptable to God.”91 In Polycarp’s ﬁnal prayer, he describes his martyrdom as giving to him “a share among the number of martyrs in the cup of your Christ, for the resurrection unto eternal life of both the soul and the body in the immortality of the Holy Spirit.”92 Once Polycarp has been killed, the Christians of Smyrna describe their refusal to abandon his body, and they defend their loyalty to Polycarp : “. . . we love the martyrs as the disciples and imitators of the Lord (mathe¯tas kai mime¯tas), and rightly so because of their unsurpassed loyalty towards their king and master. May we too share with them as fellow disciples!”93 These speakers portray the martyrs as both imitating Christ and teaching his word. Imitation becomes a recurring theme towards the end of the narrative, when his burial site is described as a memorial “for the training and preparation of those who will [ﬁght the contest] one day,” and the story of his martyrdom is described as one which “everyone desires to imitate (mimesthai).”94 The martyr’s testimony, as it is represented in this narrative, has many meanings: It brings peace to other Christians, it brings to life the story of Christ himself, it acts as a sacriﬁce, it brings immortality to the martyr, and it acts as a model for future Christians. This new kind of witness testiﬁes not to a crime, to the truth of a profane event like the witnesses of Deuteronomy or a Hellenistic court, but rather to a higher truth—that is, if one views the act of testimony from the perspective of the Christian narrative.95 We can imagine that the Roman perspective sees in the Christian testimony a testimony like any other, to an act of illegality. The Christian testiﬁes before the Roman authorities to his or her “crime,” but the truth is beyond the grasp of the human judges. These narratives foreground the contrast between testifying to the truth and denying the truth. The martyr who confesses to his Christianity is contrasted to the Christian who, his courage faltering, denies his Christianity. In the Martyrdom of Ptolemaeus and Lucius, the martyr Ptolemaeus is characterized in terms of this opposition: “Now Ptolemaeus, who was a lover of truth, and not deceitful or a liar by disposition, admitted that he was a Christian, and so the centurion had him put in chains and had him punished for a long time in jail.”96 To be a true Christian is to be a true witness and thereby to incur punishment; to fail as a Christian is to be a false witness and thereby to avoid punishment. This is the choice the narrative presents: “Now a person who disowns something either deliberately denies the fact or else (aware that this is unworthy and alien to him) avoids any admission of it. But such conduct does not beﬁt the true Christian (to¯ ale¯thino¯ christiano¯).”97 Great anxiety is expressed in many of these early narratives that a Christian should have the courage to testify the truth. In the Martyrs of Lyons, the confessing Christians fear their tortures not because of the pain, but because of the concern that “that some might fall away.”98 When a Christian denies his Christianity, he is censured by the narrative: Quintus the Phrygian becomes the negative model in the Martyrdom of Polycarp of the Christian who voluntarily gives himself

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over and then turns cowardly.99 In the Martyrs of Lyons, the cowardly Christians are ridiculed: They suffer the same fate as the confessing Christians but with great dejection and humiliation, while the confessing Christians advance “joyously, with majesty and great beauty mingled on their countenances.”100 Yet the two categories—the true witness and the false—are not simple opposites. The Martyrs of Lyons speaks of the redemption that the martyrs will bring to those Christians who did not confess: “. . . the martyrs brought favor to those who bore no witness, and the virgin Mother experienced much joy in recovering alive those whom she had cast forth stillborn.”101 The act of testimony is likened to resurrection; the true testimony of the martyrs brings to life those who offered none.102 It also inspires other Christians who originally did not have the courage to confess to change their minds upon second trial. These second-round martyrs have almost a higher status than the ﬁrst-timers: “Greatly was Christ gloriﬁed in those who had previously denied their faith but later confessed contrary to the pagans’ expectations.”103 The greatest criticism is reserved for those who would not confess even during their second trial: “There remained outside, however, all those who had never enjoyed even a vestige of the faith nor any knowledge of the wedding garment nor any thought of the fear of God; rather by their way of life they blasphemed the way. And these were the sons of perdition.”104 This set of narrative reversals—the judge is the criminal, the criminal is the witness, and the witness is the hero—has its roots in ancient political reality, wherein Roman provincial governors likely did have a great deal of legal prerogative and were capable of recalibrating a trial as they saw ﬁt. But the historical background of these martyrdom narratives does not obviate their ideological function; it only helps to explain the literary power they sought. For if the legal discourse made sense to Christian audiences in light of their political reality, then it could be that much more successful in deﬁning who was Christian and who was not and making clear which was preferable. According to these narratives, the Christian is the man or woman who is tried and punished, just as his or her forebears were, going back to Jesus.105 Of course, this does not mean every Christian had to be executed in order to prove their Christianity; but it did mean that Christian audiences had to empathize with the executed. To be a Christian—to join the Christian “we”—meant to despise the spectacles of punishment (even if Christians also co-opted them for their own narratives), as the second-century Athenian Athenagoras describes: “For when they know that we cannot endure even to see a man put to death, though justly, who of them can accuse us of murder or cannibalism . . . We, deeming that to see a man put to death is much the same as killing him, have abjured such spectacles.”106 Neither does this mean that Christians had to think execution at the hands of the state was entirely a bad thing. If the executioner was clearly the villain (or, as is often the case, Satan working through him),107 the execution itself provided a precious opportunity for the martyr to suffer just like Jesus, to atone for the martyr’s own sins, and, most signiﬁcantly, to bring atonement for the sins of others.108 In fact, in some narratives the Roman authority is reluctant

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to carry out the execution, though this feature of the narrative serves less to reveal the leniency of the executioner than to emphasize the willingness of the Christian to suffer for his or her beliefs.109 Suffering became part of the symbolic core of Christianity, and this had important consequences. Judith Perkins contends that “the discursive focus in the second century on the suffering body contributed to Christianity’s attainment of social power by helping to construct a subject that would be present for its call.”110 She points to Wayne Meeks’s and Peter Brown’s work showing that the institutionalization of the church depended on its reaching out to the poor; Perkins adds that it was not only Christianity’s practical efforts to help the poor but also its discursive efforts to explain and elevate their suffering that contributed to its success.111 Tertullian himself makes the same point when he declares that the blood of the martyrs is seed and that disciples are made by the martyrs’ deeds.112 The discourse of crime and punishment was central to the construction of Christian identity and to the development of the church, from the Gospels to the second century martyrdom traditions (we may also include the apocryphal acts of the apostles as well as apologies by Tertullian, Athenagoras, Melito, and Justin that portray the Christian community in the midst of persecution). The authority ﬁgures shift from the Jews to the Romans, but the sympathies do not. Christian audiences are moved, in story after story, to identify with and emulate the judged, the persecuted, the executed. These dramatic patterns are drawn from both the Hebrew Bible and from the Greco-Roman world. Sam Williams argues that the particular concept of vicarious expiatory suffering was borrowed from Greco-Roman culture, speciﬁcally Greek funeral orations and the tragic poets, yet the larger languages and motifs of suffering have a long history in the Hebrew Bible, and the Christian texts clearly make use of this as well.113 Putting into play these different cultural traditions, the Christian texts invite their audiences to experience the perversions of law by hypocritical rulers and to put themselves in the shoes of the innocent criminal. To convert to Christ means to do just this, according to Paul’s paradigm or one that develops later in which the convert is inspired by seeing a Christian submit to punishment.114 The reverse is also true, that is, the fallen Christian is one who assents to punishment. Castelli calls Augustine’s account of his unfortunate friend Alypius, who desperately wishes to avoid the gladiatorial games but then is utterly seduced by them, the ultimate “deconversion” story.115 To “deconvert” from Christianity, then, is to move from hating the spectacles of punishment to loving them. At the same time, I do not mean to suggest this trajectory is monolithic or that it is the only one within early Christianity. Martyrdom was a hotly contested matter, a point of great debate among early Christians around which orthodoxy emerged. Many Christian writers criticize martyrs who too zealously give themselves over to martyrdom. Such was the problem with the Phrygian Quintus criticized by the Martyrdom of Polycarp: “This is the reason, brothers, that we do not approve of those who come forward of themselves: this is not the teaching of the Gospel.”116 Moreover, I will presently highlight a strain within early Christianity in which judgment and punishment are embraced or, at least, tolerated. We will see these two trajectories within the very

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same texts, the letters of Ignatius and the apologies of Justin, where authority is simultaneously criticized and constructed. In rabbinic law, the creation of rabbinic judicial authority entails an implicit (sometimes explicit) critique of Roman authority. In Christian texts, the action happens in reverse: The critique of judicial authority implied by the motif of martyrdom ultimate produces a new Christian authority embodied in the bishop.

Complications Bishop of Antioch in Syria in the early second century, Ignatius wrote seven letters en route to Rome where he had been condemned to the beasts. He wrote the ﬁrst four letters in Smyrna, to the churches in Ephesus, Magnesia, Tralles, and Rome. Then from Troas, Ignatius corresponded with the churches in Philadelphia and Smyrna and also with Polycarp. In these seven letters, Ignatius’s imminent martyrdom plays a central role. Ignatius seeks to “attain God” and expects to do so only upon successfully undergoing his martyrdom in Rome, which he several times imagines as a reenactment of Christ’s passion.117 But Ignatius is as much if not more preoccupied with church order. He stresses obedience to the church authorities, envisioning for the ﬁrst time in Christian history as far as we know a local congregation governed by a single bishop surrounded by a council of presbyters and supported by deacons.118 Ignatius also wants to deﬁne Christian belief according to relatively ﬁxed parameters, excluding other varieties such as Docetism and judaizing. I want to examine here how the two concerns—martyrdom and church order—get rhetorically related in Ignatius’s writing. How does Ignatius connect these concerns, and what does it tell us about each?119 In Ignatius’s letters, a web of associations is spun among the bishop, the obedient church member, the martyr, and Ignatius himself; the common thread is Christ’s passion.120 In Ignatius’s letter To the Ephesians, he praises the Christians in Ephesus but also warns them against heresy. In chapters 2–6, Ignatius exhorts the Ephesians to be uniﬁed under the bishop. He uses metaphors of music to imagine this unity: Just as strings are tied to the harp, so should Christians be tied to the bishop, and as a choir sings in unison under the choir master, so should Christians sing under the bishop’s direction, taking the pitch from God himself (4:1–2). In these analogies, the bishop is closely allied with his presbytery. But Ignatius also identiﬁes the bishop with God: “He, then, who does not come to the assembly, by that very fact displays arrogance and has judged himself. For it is written, ‘God resists the arrogant.’ Let us be eager, then, not to resist the bishop that we may be obedient to God” (5:3).121 To submit to the bishop is identiﬁed with submission to God. The logic is more complicated than a simple equation between the bishop and God, however. Schoedel outlines Ignatius’s argument here: “not coming together (under the bishop) is arrogance; God resists arrogance; therefore obey the bishop (come together) that we may be found obedient to God.”122 Yet in the next verse, Ignatius does make an explicit equation between the bishop

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and God: “And the more anyone sees a bishop keep silence, the more he should fear him. For everyone whom the householder sends into his stewardship, him must we receive as the one who sent him. Clearly, then, one must regard the bishop as the Lord himself ” (6:1). While earlier Ignatius portrays the bishop as the representative of the church before God, or as a means for the church to show its obedience to God, here Ignatius demands that the bishop be regarded as God himself. This identiﬁcation between the church authorities and God appears several times throughout Ignatius’s letters. In his letter To the Trallians, Ignatius draws a terrestrial triangle—bishop, deacons, presbyters— that is parallel to the celestial one: “Correspondingly, everyone must show the deacons respect. They represent Jesus Christ, just as the bishop has the role (typon) of the Father, and the presbyters are like God’s council and an apostolic band. You cannot have a church without these. I am sure that you agree with me in this (3:1–2).123 Upon creating this new conception of church order modeled on (literally, a typology of ) heaven’s order, Ignatius closes with the rhetorical trick of making it seem obvious: “I am sure that you agree with me . . .” Ignatius describes a similar set of parallel triangles in his letter To the Magnesians: “Let the bishop preside in God’s place (topon), and the presbyters take the place (topon) of the apostolic council, and let the deacons (my special favorites) be entrusted with the ministry of Jesus Christ who was with the Father from eternity and appeared at the end [of the world]” (6:1).124 In what is perhaps a cross-epistolary word play, in this letter Ignatius replaces the term typos (type) with topos (place) to conﬁgure the relationship between the earthly and the heavenly authority. How does Ignatius justify to his congregants his equation between the bishop and God? Strangely enough, by equating the church members also with God! “For when you obey the bishop as if he were Jesus Christ, you are living not in a merely human fashion but in Jesus Christ’s way, who for our sakes suffered death that you might believe in his death and so escape dying yourselves” (Trallians 2:1).125 Ignatius again associates the bishop with God—this time with Jesus Christ rather than with God the Father—but here he adds something: The church members, in so far as they obey the bishop, imitate Christ in his passion. Submission to the bishop is modeled on Christ’s suffering.126 In his letter To the Philadelphians, Ignatius once more associates Christ both with the bishop and the church member: “Yours is a deep, abiding joy in the passion of our lord . . . this is especially true if you are at one with the bishop, and with the presbyters and deacons, who are on his side and who have been appointed by the will of Jesus Christ” (salutation).127 While the bishop is appointed by Christ, the Christian who obeys him stands in for Christ in so far as he suffers as Christ himself did. Ignatius ties obedience and the passion together even more clearly later in the letter: “If anyone walks in the way of heresy, he is out of sympathy with the passion (3:3).”128 To betray the bishop is to betray the passion; conversely, to obey the bishop is to imitate the passion. The church member who obeys the bishop becomes a martyr ﬁgure like Christ and like Ignatius himself. The bishop and the martyr come together in Ignatius. In his letter To

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Polycarp, Ignatius is the martyr who imitates the passion on behalf of the obedient church communities to whom he writes: “I give my life as a sacriﬁce (poor as it is) for those who are obedient to the bishop, the presbyters, and the deacons” (6:1).129 We have here martyrdom on top of martyrdom on top of martyrdom: Ignatius martyrs himself for those church members who in turn “martyr” themselves for the bishop, all of whom imitate the originary martyrdom of Christ for God. Yet Ignatius also demands obedience as a bishop: He is both the subject of suffering and the object for whom one suffers. He comes up with a construction of authority to resolve this contradiction, what I would call a “less is more” approach to authority. In his letter to the Ephesians, Ignatius denies his own authority as a letter writer: “I do not give you orders as if I were somebody important. For even if I am a prisoner for the name, I have not yet reached Christian perfection. I am only beginning to be a disciple, so I address you as my fellow students” (3:1).130 Ignatius claims here to be merely a “fellow student” (syndidaskalitais),131 though that doesn’t stop him from going on in his letter to give many orders to his “fellow students.”132 But we should look carefully at the logic Ignatius is using. He says: “even if (ei . . . kai) I am a prisoner, I am not yet (houpo¯) perfect.” Ignatius, in other words, links prison with perfection. The obvious question is: what would it take for Ignatius actually to attain Christian perfection? Well, if prison has brought him closer to perfection, then the only thing that could get him all the way there is martyrdom. It is his not-yet-martyr status, then, according to Ignatius, that prevents him from giving orders. But at the same time, it is his about-to-be martyr status that enables him to write at all, that makes him a disciple.133 Ignatius locates his authority in his suffering. But we also have in Ignatius’s writing the rhetoric that you can never suffer enough, that a martyr can only really have authority once he is gone. The charisma of the role lies in refusing it. If the martyr actually claimed his authority as a martyr, he would no longer be one. Thus Ignatius demands obedience, as bishop and letter-writer, at the same time that he denies his capacity to do so, in fact, precisely because he denies his capacity to do so. A helpful contemporary analogy to Ignatius’s construction of authority is “outsider music” described by Dwight Garner in his 2002 New York Times Magazine article, “Band of Outsiders.” Garner describes music like that of a small, rural Canadian schoolgroup made in their local gymnasium, or that of Jack Mudurian, a Boston nursing home resident who recorded a 129 Sinatra song medley, embraced by a handful of music enthusiasts who reject popular mass production. What makes music “outsider music,” asks Garner? The lines are blurry, he admits. Are Frank Zappa and Bjo¨rk, both idiosyncratic and selftaught, outsider musicians, or are they too popular? Garner embraces the definition of one record producer, who explains: “Being an outsider musician is not an aspiration. As soon as you try to make outsider music, you’re not.”134 We can see a similar pattern in Christian martyrdom. As soon as a Christian calls him or herself a martyr, he or she no longer is one. The reluctance on the part of martyrs to call themselves as such can be seen in the account of the Martyrs of Lyons: “. . . they would not proclaim that they were martyrs nor

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would they allow us to call them by that name. Rather, if anyone of us would speak of them as martyrs either by word or letter, they would sharply rebuke him. For it was their joy to yield the title of martyr to Christ alone, who was the true and faithful witness, the ﬁrst-born of the dead, and the prince of God’s life.”135 Along these lines, Ignatius refuses the role of martyr at the same time that he plays it (“To be sure, I am ever so eager to be a martyr (pathein), but I do not know if I deserve to be” [Trallians 4:2]) and refuses the authority of a letter writer at the same time that he claims it.136 Ignatius makes similar protestations in his other letters, such as in his letter To the Trallians: “Since, too, I am a convict, I have not thought it my place to give you orders like an apostle. God has granted me many an inspiration, but I keep my limits, lest boasting should be my undoing” (3:3–4:1).137 Here, in slight contrast to his letter To the Ephesians, Ignatius’s status as a prisoner works not to highlight his progress towards Christian perfection but to mark his distance from it. Similarly, in his letter To the Romans, Ignatius writes: “Pray Christ for me that by these means I may become God’s sacriﬁce. I do not give you orders like Peter and Paul. They were apostles. I am a convict. They were at liberty. I am still a slave. But if I suffer, I shall be emancipated by Jesus Christ . . .” (4:3).138 Ignatius’s contrast between his own enslavement and Peter and Paul’s freedom is ironic, since both Peter and Paul are described as having spent much time under arrest, just like Ignatius. Yet Ignatius again refuses the right to give orders because he claims not to have suffered enough. In so doing he creates a version of authority that can never really exist (at least alive). Ignatius manages to construct his authority out of a mythic vocabulary in which authority ﬁgures are either long-gone apostles or unworthy boasters.139 But Ignatius does make room for himself to issue commands, as the not-yet-martyred writer of letters, precisely by denying himself full legitimacy as an issuer of commands.140 To be a true Christian, in Ignatius’s complicated and sometimes contradictory constructions, is primarily to suffer like Jesus Christ. Like in so many martyrdom narratives, Ignatius struggles for Christian authenticity, preoccupied with what it means to be a real Christian rather than simply to inhabit the name. Perpetua teaches a similar lesson of Christian identity to her father: Father, said I, do you see this vase here, for example, or waterpot, or whatever? Yes, I do, said he. And I told him, Could it be called by any other name than what it is? And he said, No. Well, so too I cannot be called anything other than what I am, a Christian.141 For Perpetua, to be a Christian means to die for it, much to her father’s sorrow and anger, and Ignatius, in his letter To the Romans, deﬁnes it the same way: “I may not only talk, but really want it. It is not that I want merely to be called (logo¯mai) a Christian but actually to be one (euretho¯). Yes, if I prove to be one,

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then I can have the name. Then, too, I shall be a convincing Christian only when the world sees me no more . . . the greatness of Christianity lies in its being hated by the world, not in its being convincing to it” (Romans 3:2–3).142 The true Christian, the one who is Christian not only in name but also in being, is the one who has ﬁnally disappeared from the world. Reading this text, Perkins argues: “The bodily destruction on which Ignatius’s letter insists acts as a powerful and stark signiﬁer of the end of all contemporary social and political authority and control.”143 But, in fact, the suffering—to the point of total selfdestruction—of the authentic Christian becomes the basis of authority in a variety of ways.144 The church member, in order to suffer like Christ, must give his obedience to the bishop, who represents Christ. And Ignatius, because he both suffers like Christ and represents him, grants to himself (partial) authority to exhort obedience. To suffer like Christ means different things depending on who one is in the triangle of the bishop, the martyr, and the congregant, but in all cases, that suffering has important implications for church authority. The conjunction of these two discourses in Ignatius’s letters—martyrdom and church order—invites us to rethink the implications of both. The discourse of martyrdom, we have seen, generally relies for its drama on its alignment with the judged and its converse criticism of the judge. The martyrdom narrative always takes an oppositional stance vis a` vis the operating authority ﬁgures. This anti-authority, anti-judgment strain is where I began my discussion, with its surfacing in the Sermon on the Mount and its reiteration in many other early Christian texts. But Ignatius’s letters open up the possibility that the discourse of martyrdom can also generate its own claims to authority even while seeming to criticize authority (in Ignatius’s case, the authority criticized is, by implication, the Roman authorities who plan to execute him, but more explicitly the Christian authority ﬁgure who too zealously claims it). The myths of martyrdom become the rationale for obedience to authority, an authority that Ignatius is in the process of creating, and an authority that draws it strength, paradoxically, from a discourse in which authority is opposed or rejected. We can see this happening already in the Gospels, where it is Jesus’ martyrdom that inaugurates his cosmic kingship. The paradox is illuminated by the ﬁgure of Ignatius, who is both the bishop who demands obedience and the martyr who gives it. It is no wonder that Ignatius also expends much energy on refuting the doctrines of Docetism that deny the human suffering of Christ. For the suffering of Christ is at the heart of Ignatius’s exhortation to obedience, and indeed, his very power to exhort.145 The apparent anti-judgment, anti-authority alignment of the early Christian discourse of criminal punishment is thus more complicated than it would initially seem. It exists alongside, and as we see in Ignatius, sometimes coincides, with a project of afﬁrming and creating authority.146 This authorityafﬁrming tendency can be found even more explicitly in the mid-secondcentury writings of Justin. Like in the letters of Ignatius, martyrdom provides the literary framework. But whereas Ignatius writes inward, to the Christian communities with whom he is in contact, Justin directs his words outward in the form of an apology, a speech of defense in the tradition of Paul in Acts 22

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and 26. But Justin’s real audience goes beyond the explicit addressees—the Roman emperor, his sons, the senate, and the entire Roman people—to include Christians and potential Christians. Writing in a genre that has a distinctly legal cast and writing about questions of law, Justin comes up with a markedly different construction of punishment from Ignatius in his letters. In his First Apology, Justin holds the Roman rulers accountable to standards of justice: “. . . since you are called pious and philosophers and guardians of justice and lovers of culture, at least give us a hearing—and it will appear if you are really such. For in these pages we do not come before you with ﬂattery, or as if making a speech to win your favor, but asking you to give judgment according to strict and exact inquiry—not, moved by prejudice or respect for superstitious men, or by irrational impulse and long-established evil rumor, giving a vote which would really be against yourselves” (2).147 In this passage Justin claims to reject the device of ﬂattery even while he heaps praises upon Rome for its moral rectitude. While the stereotype to which Justin appeals is familiar from Christian martyrdom narratives, i.e., the irrational Roman ruler who sends Christians summarily to their deaths, Justin argues that for the Romans to punish unjustly would be to betray their own values. Justin thus creates a code of justice that appears to be shared by both pagans and Christians, unlike in the martyrdom narratives, which critique pagan justice, or in Ignatius’s letters, which create a distinctive internal Christian order. Justin applies this code throughout the apology, using the generic legal language of accusation, testimony, guilt, and innocence to argue the Christian case. Justin invites the Roman rulers to investigate the charges against Christians, and he boldly asks for punishment if it is deserved: “If they [the charges] are shown to be true, [let us] be punished as is proper. But if nobody has proofs against us, true reason does not allow [you] to wrong innocent men because of an evil rumor—or rather [to wrong] yourselves when you decide to pass sentence on the basis of passion rather than judgment” (3).148 Justin here afﬁrms a basic principle of criminal justice—let the guilty be punished and the innocent be freed—and Justin also reminds his addresses of the qualities of reason and impartiality necessary for good judgment. He also praises the just ruler who punishes appropriately, describing his judgments as beneﬁcial for both the judge and the judge: “Every honorable man will recognize this as a fair challenge, and only just, that subjects should give a straightforward account of their life and thought, and that rulers similarly should give their decision as followers of piety and philosophy, not with tyrannical violence. From this both rulers and subjects would gain.”149 While we might easily speculate that Justin is being disingenuous, engaging in rhetorical art in order to save Christian lives, at the same time he does offer a compelling construction of criminal justice using the cherished Roman values of piety, philosophy, reason, honor, truth, and fairness—values Justin very much seems to embrace. But if we read on, Justin’s view of justice seems to shift. Later arguing that Christians are an ally to Roman rule, Justin proceeds to undermine the legitimacy of that rule, criticizing it for being based on an ineffective strategy of deterrence:

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execution and invention We are in fact of all men your best helpers and allies in securing good order, convinced as we are that no wicked man, no covetous man or conspirator, or virtuous man either, can be hidden from God, and that everyone goes to eternal punishment or salvation in accordance with the character of his actions. If all men knew this, nobody would choose vice even for a little time, knowing that he was on his way to eternal punishment by ﬁre; every man would follow the self-restrained and orderly path of virtue, so as to receive the good things that come from God and avoid his punishments. There are some who merely try to conceal their wrongdoing because of the laws and punishments which you decree, knowing that since you are only men it is possible for wrongdoers to escape you; if they learned and were convinced that our thoughts as well as our actions cannot be hidden from God they would certainly lead orderly lives, if only because of the consequences, as you must agree. But it seems as if you were afraid of having all men well-behaved, and nobody left for you to punish; this would be the conduct of public executioners, not of good rulers.150

Justin contrasts Rome’s deterrence strategy with God’s: While the would-be Roman criminal waits to commit his crime until the coast is clear, a would-be Christian criminal knows that God is always watching. Moreover, God’s punishment—“eternal punishment by ﬁre”—is worse than any human method and thus more effective as a deterrent.151 Justin concludes: If the Romans truly cared about virtue, they would adopt Christian views. The pagan system, he argues, seems to generate offenders just so that it can have people to punish. Justin returns here to a familiar Christian discourse of criminal justice in which Christianity is deﬁned as punishment-averse and paganism as punishmenthungry.152 In Justin’s construction of punishment, however, he fundamentally embraces the value of punishment as a deterrent to vice. Justin simply argues that the human justice system is not very good at accomplishing its task; in fact, it encourages bad behavior. The only truly effective system of punishment, Justin carefully argues, is God’s, and it’s so effective that it discourages not only bad behavior but also bad thoughts. While apparently assenting to Roman criminal justice, Justin also subverts it, shifting back and forth between praise of Roman justice and derision for it.

Crossovers Early Christian discourses of criminal justice, while largely mobilizing sympathies for the criminal and against the judge, also offer other possibilities, as we can see here with Ignatius and Justin, constructions of Christian authority and even Roman authority in which the power to judge and to punish is approved, albeit conditionally. If we move to the rabbinic discourse, the converse can be said. While the early rabbinic discourse of criminal justice imagines

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rabbis as punishing judges, we also ﬁnd the beginnings of a martyrdom tradition, in other words, a growing alignment with the judged.153 The tannaitic corpora offer two martyrdom narratives, one a double-narrative of Rabbi Yishmael and Rabbi Shimon in the Mekhilta,154 and the second that of Rabbi Haninah ben Teradyon in Sifre Deuteronomy.155 These three Tannaim would have been victims of the Hadrianic persecutions in the ﬁrst half of the second century. In the ﬁrst text, the martyrdom narrative of Rabbi Yishmael and Rabbi Shimon is brought to illustrate an interpretation of Exodus: If you do afﬂict them” (Exod 22:22): whether by a severe afﬂiction or a light afﬂiction. . . . At the time when R. Shimon and R. Yishmael were led out to be killed, R. Shimon said to R. Yishmael: Master, my heart fails me, for I do not know why I am to be killed. R. Yishmael said to him: Did it never happen in your life that a man came to you for a judgment or with a question and you let him wait until you had sipped your cup, or had tied your sandals, or had put on your cloak? And the Torah has said: “If you do afﬂict them”—whether it be a severe afﬂiction or a light afﬂiction. Whereupon R. Shimon said to him: “You have comforted me, master.”156 The relevant verses from Exodus’s legal code describe the punishment that God will inﬂict if an Israelite mistreats a widow or orphan: “You shall not illtreat any widow or orphan. If you do afﬂict them, I will heed their outcry as soon as they cry out to Me, and My anger shall blaze forth and I will put you to the sword, and your own wives shall become widows and your children orphans” (Exod 22:21–23). The rabbinic authors of this midrash attribute special meaning to the doubling of the verb “afﬂict” (aneh te’aneh), a common syntactical strategy for emphasis used in the Bible and a frequent impetus for midrash. The rabbis here interpret the doubling to refer to two kinds of mistreatment: severe or light. In other words, the grammatical doubling exists to teach that God prohibits not only major but also minor judicial mistreatment. The story of Rabbi Shimon and Rabbi Yishmael then illustrates this point. The two rabbis are led out to be killed in a martyrdom-like scenario. Rabbi Shimon, in a classic crisis of theodicy, expresses to Rabbi Yishmael that their punishments seem undeserved. But we soon ﬁnd out that the rabbis are not so innocent as they seem. Rabbi Yishmael assures Rabbi Shimon that their punishments are deserved, an assurance that is intended to, and succeeds in, comforting Rabbi Shimon before his execution. What is the sin they committed to deserve execution? They delayed a judgment by several minutes, perhaps seconds, while they attended to their personal comfort. The poignance of this midrash turns on the triviality of the sin. The punishment is grossly out of proportion with the sin: A judge, merely because he once made someone wait a few extra moments for his judgment, is being delivered to execution. We, the audience to the midrash, are surely meant to be surprised by such drastic retribution on God’s part. Yet we can only be more surprised when the rabbis in the story both seem to accept this equation as

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perfectly sound: Rabbi Shimon’s brief lapse of faith in God’s justice is restored. But is ours, the audience to the midrash? If it is, the restoration is to be found in the lemma that generated the midrash. God makes clear in the verse, in his grammatical emphasis, that a judge is prohibited from oppressing his litigants even by a “light afﬂiction.” If we take the verse seriously, as surely we are intended to, then Rabbi Shimon and Rabbi Yishmael’s punishments should seem reasonable: Their light afﬂiction is just as prohibited as a severe afﬂiction and deserves just as serious a punishment, the severe punishment promised in the biblical passage. The martyrdom narrative of the midrash dramatizes the gravity of both light and severe afﬂictions in administering law. It is easy to forget, in reading this midrash, that the Exodus verse is not speciﬁcally talking about the administration of law. While the addressee of the verse would seem to be the general Israelite community, the midrashic authors interpret the verse in a judicial context, as being addressed to rabbinic judges. The midrash turns the verse into a manual and commentary on judicial behavior, creating rigorous standards of justice to which the Rabbis are clearly held accountable. The midrash thus works both to intimidate rabbinic judges into respect for their litigants, but also to represent rabbinic judges as holding themselves to this higher standard. The midrash is also dealing with a classic question of belief: how to reconcile God’s justice with a seemingly unfair world. The midrash thus kills two birds with one stone (a grossly apt metaphor for this double-martyrdom midrash): It afﬁrms God’s justice at the same time that it afﬁrms rabbinic justice. The one party wholly and oddly absent in this narrative is the Roman judge. We can imagine a Roman judge who has condemned the two rabbis to death, perhaps for their observance of the Torah’s commandments or for political disturbance.157 We would ﬁnd this Roman judge to be inﬂicting a punishment that happened to be just, but only coincidentally, for it is hardly plausible that the Roman judge is punishing the Rabbis for sipping tea while a Jewish litigant waited to be heard. But the midrash is completely uninterested in the injustice of the Roman judge. The midrash assumes, from the outset, that all punishment comes from God, and it makes the Roman punishers irrelevant. The story’s double interest is divine justice and rabbinic justice, not pagan justice. The midrash, while it apparently offers a martyrdom narrative, is less about being judged than being a judge. In the other martyrdom narrative, Rabbi Haninah ben Teradyon receives a decree that he will be burned with his scroll of Torah.158 Another interpretation: “The Rock, His work is perfect” (Deut 32: 4a). When they apprehended Rabbi Haninah ben Teradyon, he was condemned to be burned together with his Torah scroll. When he was told of it, he recited this verse, “The Rock, His work is perfect.” When his wife was told, “Your husband has been condemned to be burned, and you to be decapitated,” she recited the verse, “A God of faithfulness and without iniquity” (Deut 32:4b). And when his daughter was told, “Your father has been condemned to be burned, your mother to be decapitated, and you yourself to be assigned to

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work (prostitution),” she recited the verse, “Great in counsel, and mighty in work, whose eyes are open [upon all the ways of the sons of men, to give every one according to his ways] (Jer 32:19). Rabbi (Judah the Prince) said: How great were these righteous persons, in that at the time of their trouble they invoked three verses justifying (God’s) judgment, which are unequaled in Scripture. The three directed their hearts (toward God) and accepted the justice of God’s judgment. . . .159 This midrash thematizes theodicy even more explicitly than the previous one. The midrash is generated by Deut 32:4, a verse from Moses’ poem that praises God’s justice: “The Rock!—His deeds are perfect, yea, all His ways are just; a faithful God, never false, true and upright is He.” In this midrash, Rabbi Haninah ben Teradyon and his wife each afﬁrm God’s justice through the recitation of different parts of this verse as they are captured and punished by the Romans. When their daughter is also captured and told of her parents’ decree and of her own condemnation to prostitution, she cries out a similar verse from Jeremiah proclaiming God’s justice. The story closes with Rabbi Judah the Patriarch’s praise of the three martyrs, in which he points to the three passages that they cited as the verses that most vindicate God in all of Scripture. According to Rabbi Judah’s praise, the rabbi, wife, and daughter have afﬁrmed not only God but also God’s revelation, choosing the three passages that most require reconciliation with worldly suffering. Once again, the Roman judge is entirely absent from the story. While Christian martyrdom narratives hinge on a scheme of heroes and villains, with the corrupt judge as a key feature of the story, in these rabbinic narratives, the only potentially corrupt judge is God. Moreover, in neither rabbinic story is the martyr given a choice regarding his martyrdom. To that extent, perhaps these stories should not be called martyrdoms at all, since the element of choice is usually central in the Christian narratives (and in the books of the Maccabees, often considered to be the forerunner of both Jewish and Christian martyrdoms). The moment of decision at the heart of the Christian martyrdom narratives plays the powerless yet faithful protagonist against the powerful yet faithless antagonist. This narrative, on the other hand, and the other midrashim in the Sifre which surround it, are instead preoccupied with problems of God’s justice. But in this narrative, unlike the previous one from the Mekhilta, the martyrdoms are not cast as just punishments for sin. This narrative, in the tradition of the book of Job, does not posit any recognizable correlation between sin and punishment, but rather afﬁrms God’s justice precisely in the face of such absence. Moreover, punishment becomes something potentially positive, in that it provides the occasion for pious expressions of faith, and, as the suceeding segment makes clear, it delivers Rabbi Haninah and his family into the world to come. But we should note that it is not the punishment that earns them their merit, but their faith. This is not the case in another midrash in the Mekhilta, which I discussed in the previous chapter, where punishment is itself meritorious:

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execution and invention [For I the Lord your God am an impassioned God, visiting the guilt of the parents upon the children, upon the third and upon the fourth generations of those who reject Me, but showing kindness to the thousandth generation] of those who love Me and keep My commandments” (Exod 20:6). Rabbi Nathan says: “of those who love Me and keep My commandments”—these are [the people of] Israel who live in the land of Israel and give their lives for the commandments. Why are you going out to be killed? Because I circumcised my son. Why are you going out to be burned? Because I read from the Torah. Why are you going out to be cruciﬁed? Because I ate matzah. Why are you going out to be ﬂogged? Because I shook the lulav. And it says: “[And if he is asked, ‘What are those sores on your back?’ he will reply,] ‘From being beaten in the homes of my friends’ ” (Zech 13:6)—these lashes caused me to be loved by my father in heaven.160

Here the lashes mentioned in Zechariah become the grounds for God’s love. Yet this midrash also addresses a traditional question of theodicy: The verse it glosses is a classic expression of divine justice—God punishes those who reject God and rewards those who observe God’s commandments. The resolution the midrash provides is complex. Rabbi Nathan’s interpretation of the verse seems to undermine it: Those who love God and keep God’s commandments, according to the verse, receive rewards, but according to Rabbi Nathan, receive all sorts of severe punishments. The interpretation of the verse in Zechariah presents a way to integrate Rabbi Nathan’s reading with the verse’s own message: The punishments earn God’s love, which becomes a reward for those who love God. The midrash turns persecution into a means of attaining God’s love, thereby reconciling the reality of Jewish persecution with the portrait of God painted by the Pentateuch. We must assume for this logic to work, however, that those who truly love God would consider the return of their love to be the ultimate reward. Perhaps it is this midrash’s purpose to impose this assumption, to implicitly chastise those who may not feel that God’s love is enough in a world of pain and suffering. Are these midrashim authentically to be categorized as “martyrdom narratives” like those found in second-century Christianity? Boyarin discusses yet another text in the Mekhilta which seems to ﬁt the category, but he argues that essentially we do not ﬁnd martyrdom narratives in rabbinic literature until a later period, to some extent as a response to the popularity of Christian martyrdoms.161 Boyarin addresses the long-standing controversy over the relative dating of Jewish and Christian martyrdom traditions: W.H.C. Frend and his followers hold the Jewish traditions to be prior, while Glen Bowersock and his school argue for the priority of the Christian martyrdoms.162 Boyarin declares both approaches to be problematic because of their false separation of Judaism and Christianity at too early a stage. While part of the problem is how one

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deﬁnes Judaism and Christianity and the split between them, part of the problem is also how one deﬁnes martyrdom.163 My purpose here is to explore how the discourse of criminal justice functions in these narratives to deﬁne rabbinic identity, whether we call them martyrdom narratives or not and what we might mean by martyrdom. What sets these narratives apart within tannaitic literature, to my mind, is that Rabbis assume a role in them that is quite unusual. While in tractate Sanhedrin and the Mishnah as a whole the Rabbis are primarily identiﬁed as judges, in these few narratives the Rabbis are instead pictured as the objects rather than agents of punishment. But these narratives, unlike their Christian parallels, do not uncomplicatedly align themselves with the Rabbis being punished. In the ﬁrst text, the Rabbis deserve their punishment, at least by the terms of the text. Moreover, the rabbinic “martyrs” are more fundamentally characterized as rabbinic judges. In the other texts, the Rabbis or Jews who are condemned to execution do not deserve their punishment, but this inequity does not turn into explicit censure of the punishers as it does in Christian martyrdoms. The only character who potentially might deserve censure is God, which is precisely the concern of these texts. Of course, we might say this also of the Christian martyrdom traditions we have seen, that somewhere embedded in the drama is the anxiety that God’s justice is absent from the world. Conversely, we might say of the Rabbis’ martyrdom narratives that they assume the evil of the Roman judges who condemn them; it is abundantly apparent in other parts of rabbinic literature that the Rabbis’ perspective on Roman rule is far from neutral. Yet it is only in the Christian texts that this human evil is emphasized, while the rabbinic texts much more directly address the question of theodicy, problematizing God’s apparent inaction. Whatever these signiﬁcant differences between early rabbinic martyrdom narratives and Christian ones, I do also want to draw attention to their similarities, to the crossover of forms. Rabbis get delivered over to execution just like so many Christians. Rabbinic discourse, in these cases, represents itself in alignment with the judged even if that alignment is complicated. But we should also notice that even when the Rabbis do identify themselves as judges, as is much more often the case, that picture is also not uncomplicated. Earlier in this book, I discussed rabbinic narratives that are intensely critical of Rabbis who execute. Condemning Rabbis end up somehow condemning themselves in these narratives. I also showed how the rabbinic laws of criminal execution launch a critique of Roman power. In addition, we can view much of rabbinic criminal law, even while it aligns itself with the authority who judges, as a criticism of such authority in that it “hyper-legalizes,” attempting to rid the law of all its potential for misuse. Thus we see that the rabbinic identiﬁcation with the judge does not entail a wholehearted embrace of that role, but contains within it also challenges to the assumption of judicial authority. A variety of rabbinic texts show this tendency to “hyper-legalize” and thereby to implicitly criticize the forms of judicial authority familiar in the rabbinic world. Mishnah Sanhedrin 4:1–2 makes it extremely difﬁcult for a court to arrive at a conviction:

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execution and invention Civil cases and criminal cases are alike in inquiry and examination, as it is said, “You shall have one manner of law” (Lev 24:22). What difference is there between civil cases and criminal cases? Civil cases are tried by three [judges], but capital cases are judged by twenty-three. Civil cases may open either [with evidence] for acquittal or for conviction, but capital cases must open [with evidence] for acquittal and must not open [with evidence] for conviction. Civil cases may be decided by a majority of one [judge] either for acquittal or for conviction, but capital cases are decided by a majority of [even] one for acquittal but by [at least] two for conviction. Civil cases may be retried whether [the verdict was] for acquittal or for conviction, but capital cases may be retried [only] for [obtaining] acquittal and may not be retried for conviction. In civil cases all may argue for acquittal or for conviction, but in capital cases all may argue for acquittal but not everyone may argue for conviction. In civil cases the one who argues for acquittal [can retract and] can argue for conviction, and the one who argues for conviction [can retract and] can argue for acquittal, but in capital cases the one who argues for conviction [can retract and] can argue for acquittal, but the one who argues for acquittal cannot retract and argue for conviction. Civil cases can be judged during the daytime and concluded at night, but criminal cases should be judged during the daytime and concluded during the daytime. Civil cases can be concluded on the same day whether [the verdict is] for acquittal or for conviction, but criminal cases can be concluded in the same day only when [the verdict is] for acquittal, but [must be concluded] on the day after [if the verdict is] for conviction. Therefore they should not judge [criminal cases] on the eve of the Sabbath or on the eve of a festival. In civil cases concerning deﬁlement and purities, they should begin [arguments] from the greatest [judge], but in criminal cases, they should begin [arguments] from the side (where the least important judges sit). All are eligible to judge civil cases, but only priests, Levites, and Israelites whose daughters are marriageable to priests are eligible to judge criminal cases.

These two mishnahs never state the principle underlying their long list of contrasts between civil and criminal cases, but it is not difﬁcult to deduce: While a civil trial should be evenly balanced between acquittal and conviction, a criminal trial should be weighted towards acquittal and against conviction. The Mishnah makes acquittal more likely in a criminal trial through a number

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of strategies: The judge must open his arguments in favor of acquittal. The guilty verdict must be reached by a majority of at least two. The judge cannot reverse his opinion from acquittal to conviction, etc. Based on these mishnahs and others, many readers have presumed that the Rabbis were opposed to capital punishment and inserted these obstacles as a way of ensuring that no conviction would ever be delivered, as I discussed at length in chapter 2. Modern Israeli legists are so bothered by the impracticability of the Mishnah’s criminal law that they turn to other areas of rabbinic law, such as the King’s law, to use as a resource for modern Israeli criminal law.164 These scholars view the Mishnah as something other than law—as pedagogy, as hyperlaw, or metalaw. They point to the way that the Mishnah legislates its criminal procedure in near-utopian terms, for example, requiring the criminal to be warned by the witnesses before he or she commits the crime that the would-be crime is forbidden and that he or she will be punished by the particular method of execution assigned to that crime. The criminal must also declare that he or she commits the crime intentionally, with the knowledge that he or she will be punished with a particular execution, and he or she commits that crime precisely in order to be punished.165 A conviction—if it could ever come out of a mishnaic court—would, under these conditions, be almost unassailable. Moreover, other rabbinic sources completely eliminate the Sanhedrin’s capacity for capital punishment: “Forty years before the destruction of the Temple, [the power to try] capital cases was withdrawn”; “at a time when there is no priest, there is no judgment.”166 We might view this rabbinic strategy of hyperlegalizing, that is, immunizing the law against all possible failings, as not so different from Christian hypercriticisms of authority, Rabbis and Christians both dedicated to reworking the legal procedures deﬁned by the Hebrew Bible and to rebelling against Roman legal caprice. While rabbinic alignments in the second century may be primarily with the judge, and Christian alignments primarily with the judged, we see reﬁnements, criticisms, and also reversals of this.

Constructions of Authority The crossover of the judge with the martyr may partly be due to historical interaction between Rabbis and Christians in the second century, though how much and how signiﬁcant is difﬁcult to prove and much debated.167 But the slippage between judge and martyr may be explained otherwise. They are, after all, opposite poles of the same discourse. We can see their interconnectedness in many modern discourses: patriotic nationalism emerging out of revolution in the United States and France and many other countries, structures of judicial authority built upon martyrdom and vice versa in an endlessly self-generating cycle. The extraordinary, often disturbing dialectic between these two characters is particularly striking in the case of rabbinic Judaism and Christianity, both embattled groups within the Roman Empire (though not to the same

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degree).168 It’s not that the Rabbis were, in reality, empowered to judge, or that the Christians were uniquely disempowered. Rather, what we see here are Jews and Christians reacting to conditions of powerlessness in different ways, drawing upon their biblical heritage and Greco-Roman culture to build a discourse of criminal justice that works to create group identity. Rabbinic and Christian discourses of criminal law, despite their differences, work to similar purposes in that they are both essential to the second-century project of creating new sources of authority in the wake of the destruction of old sources. Rabbinic texts create a rabbinic judge with the power to punish those who trangress rabbinic law. Christian texts create the bishop/martyr whose power is grounded in his willingness to be punished, a willingness that the church member is expected to mimic in his obedience to that bishop. In a more diffuse way, Christian martyrdom narratives also work to mobilize sympathies and evangelize, even when the authority of the church is not explicitly the concern as it is in Ignatius’s letters.169 But one also ﬁnds in rabbinic and Christian texts subversions of these new authority ﬁgures, rabbinic judges who are themselves judged or who do not judge well, and Christian martyrs who threaten rather than buttress church order. As Keith Hopkins writes, “In short, martyrs could undermine the power of bishops. Martyrs and confessors had to be revered and celebrated—but also controlled.”170 The discourse of criminal punishment is used to build up and to take apart different kinds of authority, frequently at the same time. For both Rabbis and Christians, their discourses of criminal punishment attempted not only to deﬁne Jewish and Christian identity in the second century but also to create the authority ﬁgures who would have the power to deﬁne it. Both these discourses presented resistance to the Roman discourse of criminal punishment that enveloped them, though the strategies were different. The Christians effected a reversal, ﬂipping winner and loser, judge and criminal, while the Rabbis effected a substitution, inserting their own better, Torah-based brand of justice for the Roman one. In the end, both rabbinic and Christian discourses of criminal execution, in their different ways, worked to maintain and ultimately expand the communities of Rabbis and Christians beyond what they could have imagined. What we ﬁnd, however, is a role reversal between Rabbis and Christians in the third, fourth, and ﬁfth centuries. The amoraic midrashim manifest a ﬂourishing of martyrdom narratives that become ever more elaborate as they pass through editors’ hands.171 Rabbi Akiva becomes the martyr par excellence in the rabbinic tradition, his hagiography including combs tearing through his ﬂesh and other horrible tortures; the narratives and poems of martyrdom eventually became the dominant discourse of medieval Ashkenazic Judaism.172 Conversely, Christianity in the subsequent centuries converts the Roman Empire and takes over the imperial seat of power it once condemned. As Ramsay MacMullen argues, the penal practices of the Empire become even more cruel in Christian hands.173 Though cruciﬁxion and gladiatorial combat were largely outlawed, the list of capital crimes grew and new capital punishments were created.174 Christianity, in other words, starts making martyrs (even while at the

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same time solidifying its own martyrdom traditions). Though this reversal of judge and martyr may seem surprising given their ancient alignments, I conclude with the reminder that the judge and the martyr are inseparable, “codependent” partners in the ongoing discourse of criminal punishment of Western religions.

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Notes

chapter 1 1. Sifra 45c (Weiss ed.: Isaac Hirsch Weiss, Sifra De-Ve Rav [Vienna: Schlossberg, 1862]). On problems with using the term “late antiquity” for the early rabbinic period, see Glen Bowersock, “The Greek Moses,” in Religious and Ethnic Communities in Later Roman Palestine, ed. Hayim Lapin (Bethesda: University Press of Maryland, 1998), 31–48, esp. 34–35. I use it here as a convenient marker of Jewish literary development, to distinguish rabbinic literature’s historical period from the ancient biblical period on one side and the medieval post-talmudic period on the other. For those unfamiliar with the collections of rabbinic literature, see the reference work, Hermann Leberecht Strack and Gu¨nter Stemberger, Introduction to the Talmud and Midrash, trans. Markus Bockmuehl (Minneapolis: Fortress, 1996). All citations and transliterations of rabbinic and biblical literature follow the guidelines set forth in Patrick H. Alexander, et al., eds., The SBL Handbook of Style for Ancient Near Eastern, Biblical and Early Christian Studies (Peabody, Mass.: Hendrickson, 1999). I will use its guidelines also for the abbreviations fo rabbinic corpora: m. for Mishnah; t. for Tosefta; y. for the PalestinianTalmud (known traditionally as “the Yerushalmi”); b. for the Babylonian Talmud (known traditionally as “the Bavli”). 2. I use Shaye Cohen’s translation. See also his discussion of this text in “The Rabbis in Second-Century Jewish Society,” The Cambridge History of Judaism; ed. W. D. Davies and Louis Finkelstein (Cambridge: Cambridge University Press, 1999), 3:953–54. 3. For a very different approach to Mishnah Tractate Sanhedrin that also argues that authority is its central theme, see Raviv’s dissertation from BarIlan University, where he argues that the tractate’s concern with authority stems from its preoccupation with Deuteronomy, which in turn is characterized by “its repetition and summary of the laws of the Torah while emphasizing the procedures and authority structures for the enforcement of these

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laws” (Daniel Raviv, PhD diss., “Analysis of Midrashic Passages in Mishna Sanhedrin,” Bar Ilan University, 1998), 1. 4. Austin Sarat, When the State Kills: Capital Punishment and the American Condition (Princeton: Princeton University Press, 2001) 69. 5. m. Sanh. 6:4. 6. For recent revisions of the concepts of peshat and derash and their relationship in rabbinic exegesis, see David Weiss Halivni, Peshat and Derash: Plain and Applied Meaning in Rabbinic Exegesis (New York: Oxford University Press, 1991); Daniel Boyarin, Intertextuality and the Reading of Midrash (Bloomington, Ind.: Indiana University Press, 1990); Jose´ Faur, “Basic Concepts in Rabbinic Hermeneutics,” Shofar 16 (1997): 1–12; and Moshe Halbertal, Mahapekhot Parshaniyot Be-Hit’havutan: Arakhim KeShiqulim Parshani’im Be-Midreshei Halakhah (Jerusalem: Magnes, 1997). See also Ralph Loewe, “The ‘Plain’ Meaning of Scripture in Early Jewish Exegesis,” Papers of the Institute of Jewish Studies 1 (1964): 140–86; Sarah Kamin, Rashi’s Exegetical Categorization: With Respect to the Distinction Between Peshat and Derash (Jerusalem: Magnes, 1980); W.G. Braude, “Midrash as Deep Peshat,” Studies in Judaica, Karaitica and Islamica; ed. Sheldon R. Brunswick (Ramat Gan, Israel: Bar Ilan University Press, 1982) 31–38; David Henshke, “Ganav Ha-Ba Ba-Mahteret—Le-Yahaso Shel HaMidrash La-Peshat,” Megadim 7 (1989): 9–15; idem, “Le-Darcham Shel Hazal BeLimud Peshuto Shel Miqra,” Megadim 20 (1993): 21–34. 7. I refer here to the historiography by Israeli and Zionist scholars discussed by Schwartz, especially Gedalyahu Alon and his followers: Seth Schwartz, Imperialism and Jewish Society: 200 b.c.e. to 640 c.e. (Princeton: Princeton University Press, 2001) 5–8. 8. For the evaluation of the Second Temple period sects as representative of a “Torah-centered Judaean mainstream elite,” see Schwartz, Imperialism, 49–99. 9. See Lee Levine, The Rabbinic Class of Roman Palestine in Late Antiquity (Jerusalem: Yad Izhak Ben Zvi; Jewish Theological Seminary of America, 1989); Aharon Oppenheimer, The ‘Am Ha-Aretz: A Study in the Social History of the Jewish People in the Hellenistic-Roman Period, trans. I. H. Levine (Leiden: Brill, 1977); Alan Segal, Rebecca’s Children: Judaism and Christianity in the Roman World (Cambridge: Harvard University Press, 1986); Martin Goodman, State and Society in Roman Galilee, A. D. 132–212 (Totowa, N.J.: Rowman and Allanheld, 1983); Catherine Hezser, The Social Structure of the Rabbinic Movement in Roman Palestine (Tu¨bingen: Mohr Siebeck, 1997); Cohen, “Rabbis in Second-Century”; Schwartz, Imperialism. Goodman, Hezser, Cohen, and Schwartz are more skeptical and minimalist in their reconstruction of second century rabbinic authority. 10. See Schwartz, Imperialism, 129–61, for his discussion of the second and third century material remains from the Galilee and previous scholarly approaches to them. 11. I don’t use the term “non-Jewish” in an essentialist way as a transhistorical category, but rather to refer to how Judaism was historically deﬁned prior to the second century through such major themes as God, Temple, Torah, covenant, etc. See discussion in Schwartz, Imperialism, 49–66. 12. For further discussion, see Beth Berkowitz, “Decapitation and the Discourse of Anti-Syncretism in the Babylonian Talmud,” JAAR 70 (2002): 743–70. 13. Steven D. Fraade, From Tradition to Commentary: Torah and Its Interpretation in the Midrash Sifre to Deuteronomy (Albany: State University of New York Press, 1991) 14. 14. Fraade, Tradition, 14. 15. Fraade’s articulation resonates with the philosophical hermeneutics of Gada-

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mer; see Hans-Georg Gadamer, Wahrheit und Methods: Grundzu¨ge einer philosophischen Hermeneutik (3rd ed.; Tu¨bingen: Mohr, 1975), esp. 329–60. See discussion of Gadamer’s concept of dialogue in David Couzens Hoy, The Critical Circle: Literature, History, and Philosophical Hermeneutics (Berkeley: University of California Press, 1978), 61ff. 16. Michel Foucault, Discipline and Punish: The Birth of the Prison, trans. Alan Sheridan (New York: Vintage, 1995). See, for example, 129. 17. Foucault, Discipline and Punish, 9. 18. I have paraphrased his list: Foucault, Discipline and Punish, 23–24. 19. See Halbertal, Mahapekhot Parshaniyot , 145. 20. On punishment in Europe, see: Pieter Spierenburg, The Spectacle of Suffering: Executions and the Evolution of Repression (New York: Cambridge University Press, 1984); Richard Evans, Rituals of Retribution: Capital Punishment in Germany, 1600– 1987 (New York: Oxford University Press, 1996); Mitchell B. Merback, The Thief, the Cross, and the Wheel: Pain and the Spectacle of Punishment in Medieval and Renaissance Europe (Chicago: University of Chicago Press, 1998); Esther Cohen, “Symbols of Culpability and the Universal Language of Justice: The Ritual of Public Executions in Late Medieval Europe,” History of European Ideas 11 (1989): 407–416; Esther Cohen, “ ‘To Die a Criminal for the Public Good’: The Execution Ritual in Late Medieval Paris,” Law, Custom, and the Social Fabric in Medieval Europe: Essays in Honor of Bruce Lyon, ed. Bernard S. Bachrach and David Nicholas (Kalamazoo, Mich.: Medieval Institute Publications, Western Michigan University, 1990), 285–304; James A. Sharpe, “Last Dying Speeches: Religion, Ideology and Public Execution in SeventeenthCentury England,” Past and Present 107 (1985): 144–67. On punishment in the United States, see: Louis Masur, Rites of Execution: Capital Punishment and the Transformation of American Culture, 1776–1865 (New York: Oxford University Press, 1989); Philip Smith, “Executing Executions: Aesthetics, Identity, and the Problematic Narratives of Capital Punishment Ritual,” Theory and Society 25 (1996): 235–64; Brian K. Smith, “Capital Punishment and Human Sacriﬁce,” JAAR 68 (2000): 3–26. 21. See the works of Richard Bauman, Crime and Punishment in Ancient Rome (New York: Routledge, 1996); Peter Garnsey, “Why Penal Laws Become Harsher: The Roman Case,” Natural Law Forum (1968): 141–62; idem, Social Status and Legal Privilege in the Roman Empire (Oxford: Clarendon, 1970); Katherine M. Coleman, “Fatal Charades: Roman Execution Stages as Mythological Enactments,” JRS 80 (1990): 44– 73; Roland Auguet, Cruelty and Civilization: The Roman Games (London: Allen and Unwin, 1972); Keith Hopkins, Death and Renewal: Sociological Studies in Roman History (New York: Cambridge University Press, 1983); Denise Grodzynski, “Tortures Mortelles et Cate´gories Sociales. Les Summa Supplicia dans le Droit Romain Aux IIIe et IVe Sie`cles,” Du Chaˆtiment dans la Cite´: Supplices Corporels et Peine de Mort dans le Monde Antique, ed. Y. Thomas (Rome: L’E´cole, 1984), 361–403; Ramsay MacMullen, “Judicial Savagery in the Roman Empire,” Chiron 16 (1986): 147–66; Thomas E. J. Wiedemann, Emperors and Gladiators (New York: Routledge, 1992); Carlin Barton, The Sorrows of the Ancient Romans: The Gladiator and the Monster (Princeton: Princeton University Press, 1993); idem, “Savage Miracles: Redemption of Lost Honor in Roman Society and the Sacrament of the Gladiator and the Martyr,” Representations 45 (1994): 41–71; David Potter, “Martyrdom as Spectacle,” in Theater and Society in the Classical World, ed. R. Scodel (Ann Arbor: University of Michigan Press, 1993): 53–88; idem, “Performance, Power, and Justice in the High Empire,” Roman Theater and Society: E. Togo Salmon Papers, ed. W. J. Slater (Ann Arbor: University of Michigan Press, 1996), 129–60; Paul Plass, The Game of Death in Ancient Rome: Arena Sport

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and Political Suicide (Madison: University of Wisconsin Press, 1995); K. Shelby Brown, “Death as Decoration: Scenes from the Arena on Roman Domestic Mosaics,” Pornography and Representation in Greece and Rome, ed. Amy Richlin (Oxford: Oxford University Press, 1992) 180–211; Erik Gunderson, “The Ideology of the Arena,” Classical Antiquity 15 (1996): 113–51; Donald G. Kyle, Spectacles of Death in Ancient Rome (New York: Routledge, 1998); and Alison Futrell, Blood in the Arena: The Spectacle of Roman Power (Austin: University of Texas Press), 1997). 22. See Robert Cover, “Violence and the Word,” Yale Law Journal 95 (1986): 1601– 29; repr. Narrative, Violence, and the Law: The Essays of Robert Cover, ed. Martha Minow, Michael Ryan, and Austin Sarat (Ann Arbor, Mich.: The University of Michigan Press, 1993): 203–238; Nissan Rubin, Qets Ha-Hayim: Tiqsei Qevurah Ve-Evel BiMeqorot Hazal (Tel Aviv: Hakkibutz Hameuchad, 1997); David Kraemer, The Meanings of Death in Rabbinic Judaism (New York: Routledge, 2000). 23. See Ronald L. Grimes, ed., Readings in Ritual Studies (Upper Saddle River, N.J.: Prentice Hall, 1996). 24. See discussions on the history of mutual estrangement between Jewish studies and anthropology in Howard Eilberg-Schwartz, The Savage in Judaism: An Anthropology of Israelite Religion and Ancient Judaism (Bloomington, Ind.: Indiana University Press, 1990) 1–114; and Harvey Goldberg, ed., Judaism Viewed from Within and from Without: Anthropological Studies (Albany: State University of New York Press, 1987). 25. See my discussion at the beginning of chapter 5. 26. Jacob Neusner, Method and Meaning in Ancient Judaism (Missoula, Mont.: Scholars Press, 1979) 38. 27. Parama Roy, Indian Trafﬁc: Identities in Question in Colonial and Postcolonial India (Berkeley: University of California Press, 1998); Homi K. Bhabha, The Location of Culture (London: Routledge, 1994); James C. Scott, Domination and the Arts of Resistance: Hidden Transcripts (New Haven: Yale University Press, 1990). 28. See Daniel Boyarin, Dying for God: Martyrdom and the Making of Christianity and Judaism (Stanford: Stanford University Press, 1999), 45–50; Joshua Levinson, “Atlet Ha-Emunah: Alilot Damim Ve-Alilot Medumot,” Tarbiz 68 (1999): 61–86; idem, “ ‘Tragedies Naturally Performed’: Fatal Charades, Parodia Sacra, and the Death of Titus,” Jewish Culture and Society Under the Christian Roman Empire, ed. Richard Kalmin and Seth Schwartz (Leuven: Peeters, 2003), 349–84. See also Richard A. Horsley, ed., Paul and Empire: Religion and Power in Roman Imperial Society (Harrisburg, Pa.: Trinity, 1997); Neil Elliott, “Romans 13:1–7 in the Context of Imperial Propaganda,” Paul and Empire: Religion and Power in Roman Imperial Society (ed. Richard A. Horsley; Harrisburg, Pa.: Trinity, 1997), 184–204. 29. Bernadette Brooten’s work on women in the ancient synagogue undermines the impression of male rabbinic domination (Women Leaders in the Ancient Synagogue: Inscriptional Evidence and Background Issues [Chico, Calif.: Scholars Press, 1982]). Judith Romney Wegner and Judith Hauptman are pioneers of reading the rabbinic texts themselves in a new way, looking for how the rabbis dominated women in and through those texts but also gave them freedoms and protections (Judith Romney Wegner, Chattel or Person?: The Status of Women in the Mishnah [New York: Oxford University Press, 1988]; idem, “Public Man, Private Woman: The Sexuality Factor and the Personal Status of Women in Mishnaic Law,” Jewish Law Association Studies 4 [1990]: 23–54; Judith Hauptman, Rereading the Rabbis: A Woman’s Voice [Boulder, Col.: Westview, 1998]. Others such as Tal Ilan read rabbinic texts, non-rabbinic texts, nonJewish texts, and material artifacts to recover Jewish women’s history (Tal Ilan, Jewish Women in Greco-Roman Palestine [Tu¨bingen: J.C.B. Mohr, 1995]; Tal Ilan, Mine and

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Yours Are Hers: Retrieving Women’s History from Rabbinic Literature [Leiden, New York: Brill, 1997]; idem, Integrating Women Into Second Temple History [Tu¨bingen: Mohr Siebeck, 1999]). Daniel Boyarin, Michael Satlow, Aryeh Cohen, Miriam Peskowitz, Charlotte Fonrobert, and Natan Margalit, along with several of those already mentioned, integrate feminist critical readings with literary critical ones, showing how the literary qualities of the text work to construct gender and to regulate and control sexuality (See Daniel Boyarin, Carnal Israel: Reading Sex in Talmudic Culture [Berkeley: University of California Press, 1993]; Michael Satlow, “ ‘Texts of Terror’: Rabbinic Texts, Speech Acts, and the Control of Mores,” AJS Review 21 [1996]: 273–98; idem, Tasting the Dish: Rabbinic Rhetorics of Sexuality [Atlanta: Scholars Press]; idem, Jewish Marriage in Antiquity [Princeton: Princeton University Press, 2001]; Aryeh Cohen, Rereading Talmud: Gender, Law and the Poetics of Sugyot [Atlanta: Scholars Press, 1998]; Miriam Peskowitz, Spinning Fantasies: Rabbis, Gender, and History [Berkeley: University of California Press, 1997]; Charlotte Fonrobert, Menstrual Purity: Rabbinic and Christian Reconstructions of Biblical Gender [Stanford, Cal.: Stanford University Press, 2000]; Natan Margalit, “Not by Her Mouth Do We Live: A Literary/Anthropological Reading of Gender in Mishnah Ketubbot, Chapter 1,” Prooftexts 20.1–2 [2000]: 61–87). 30. See Boyarin, Carnal Israel, 10–16. 31. See Cohen’s reading of the rabbinic ritual of conversion in Shaye J. D. Cohen, The Beginnings of Jewishness: Boundaries, Varieties, Uncertainties (Berkeley: University of California Press, 1999), 198–238, and Hoffman’s interpretation of the rabbinic ritual of circumcision in Lawrence Hoffman, Covenant of Blood: Circumcision and Gender in Rabbinic Judaism (Chicago: University of Chicago Press, 1996). See also Yuval’s interpretation of the Passover seder in Israel J. Yuval, “Easter and Passover as Early Jewish-Christian Dialogue,” in Passover and Easter: Origin and History to Modern Times, ed. Paul F. Bradshaw and Lawrence A. Hoffman (Notre Dame, Ind,: University of Notre Dame Press, 1999) 98–126. 32. For the Roman imperial context, see Schwartz, Imperialism; Hayim Lapin, “Hegemony and Its Discontents: Rabbis as a Late Antique Provincial Population,” Jewish Culture and Society Under the Christian Roman Empire; idem, Religious and Ethnic Communities in Later Roman Palestine (Potomac: University Press of Maryland, 1998); idem, Economy, Geography, and Provincial History in Later Roman Palestine (Tu¨bingen: Mohr Siebeck, 2001); Levinson, “Atlet Ha-Emunah”; Levinson, “ ‘Tragedies Naturally Performed.’ ” For the relationship between rabbinic Judaism and early Christianity, see Boyarin, Dying for God, and now Border Lines: The Partition of JudaeoChristianity (Philadelphia: University of Pennsylvania Press, 2004); Marc Hirshman, A Rivalry of Genius: Jewish and Christian Biblical Interpretation in Late Antiquity (trans. Batya Stein; Albany: State University of New York Press, 1996); Yuval, “Easter”; Burton L. Visotzky, Fathers of the World: Essays in Rabbinic and Patristic Literatures (Tu¨bingen: J.C.B. Mohr (Paul Siebeck), 1995); Seth Schwartz, “Some Types of JewishChristian Interaction in Late Antiquity,” Jewish Culture and Society Under the Christian Roman Empire, 197–210; and see Judith R. Baskin, “Rabbinic-Patristic Exegetical Contacts in Late Antiquity: A Bibliographical Reappraisal,” Approaches to Ancient Judaism, vol. 5, Studies in Judaism and Its Greco-Roman Context (ed. William S. Green; Atlanta: Scholars Press, 1985), 53–80. 33. James Clifford, “Traveling Cultures,” Cultural Studies (ed. Lawrence Grossberg, Cary Nelson, and Paula Treichler; New York: Routledge, 1992), 99. 34. Ibid. 35. Ibid., 101.

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36. Ibid. 37. Some bibliography on this question includes: Hugo Mantel, Studies in the History of the Sanhedrin (Cambridge: Harvard University Press, 1961), 254–302; Paul Winter, “Sadoqite Fragments IX, I,” RevQ 6 (1967): 131–6; idem, “The Trial of Jesus and the Competence of the Sanhedrin,” New Testament Studies 10 (1964): 494–99; Isaac Rabinowitz, “The Meaning and Date of Damascus Document IX, I,” RevQ 6 (1968): 433–36; Ephraim E. Urbach, “Batei-Din Shel Esrim u-Sheloshah Ve-Dinei Mitot Beit-Din,” Fifth World Congress of Jewish Studies (ed. P. Peli; Jerusalem, 1972), 40n13; Gedaliah Alon, “Towards an Investigation of the Halakhah of Philo” Tarbiz 5, 6 (1924): 28–36, 241–46, (Hebrew); idem The Jews in Their Land in the Talmudic age, 70–640 c.e., trans. and ed. Gershon Levi (Jerusalem: Magnes, 1980–1984), 1:207–211; E. P. Sanders, Judaism, Practice and Belief 63 b.c.e.–66 c.e. (Philadelphia: Fortress, 1992) 487; James S. Maclaren, Power and Politics in Palestine: The Jews and the Governing of Their Land, 100 b.c.–a.d. 70 (Shefﬁeld: JSOT Press, 1991), 88–101; Alfredo Mordechai Rabello, Ha-Yehudim Ba-Imperiah Ha-Romit Be-Re’i Ha-Haqiqah (Be-Iqvot Mehqaro Shel Jean Juster) (Jerusalem: Merkaz Dinur 1987), 82 and see references there, esp. n28. See discussion in Yair Lorberbaum, Tselem Elohim: Halakhah Ve-Aggadah (Jerusalem: Schochen, 2004) 173n11. Blidstein discusses the question with respect to the talmudic and medieval periods in Gerald Blidstein, “Capital Punishment—the Classic Jewish Discussion,” Judaism 14 (1965): 170n23. On the question of general Jewish legal jurisdiction, see Alfredo Mordechai Rabello, “Jewish and Roman Jurisdiction,” in An Introduction to the History and Sources of Jewish Law, ed. N. S. Hecht, et al. (Oxford: Clarendon, 1996); for his discussion of criminal jurisdiction, see 144. For arguments that the Sanhedrin no longer existed after the destruction of the Temple, see Levine, Rabbinic Class, 76–83; and Joshua Efron, Studies on the Hasmonean Period (Leiden: Brill, 1987), 290–303. 38. See Raymond Brown, The Death of the Messiah: From Gethsemane to the Grave: A Commentary on the Passion Narratives in the Four Gospels (New York: Doubleday, 1994), 1:363–72, where he provides a thorough, very useful discussion of the question of Jewish criminal competence; my discussion relies on his. 39. Florentino Garcı´a Martı´nez and Eilbert J. C. Tigchelaar, eds., The Dead Sea Scrolls Study Edition (Leiden: Brill; Grand Rapids: Eerdmans, 1997), 2:564–65, col. ix; see discussions by Winter, “Sadoqite Fragments IX,I;” Rabinowitz, “Meaning and Date of Damascus Document IX,I;” D. M. Derrett, “Behuqey Hagoyim: Damascus Document IX, I Again,” RevQ 11 (1983): 409–15; and Aharon Shemesh, “Scriptural Interpretation in the Damascus Document and Their Parallels in Rabbinic Midrash,” The Damascus Document: A Centennial of Discovery, ed. J. M. Baumgarten, et al (Leiden: Brill, 2000), 169–74. 40. Philo and Josephus both describe an inscription in the Jerusalem Temple warning foreigners from entry on pain of death; the remains of the actual inscription have been found; see Josephus, Jewish War 5.5.2; Antiquities 15.11.5; Philo, To Gaius, 31. On the inscription, see Peretz Segal, “The Penalty of the Warning Inscription from the Temple of Jerusalem,” IEJ 39 (1989): 79–84. While the text of the inscription suggests that the penalty was implemented by God (“. . . whoever is caught will have himself to blame that his death ensues”), Josephus’s narrative implies that the Temple’s Jewish authorities had the power to execute the sentence, albeit under Roman restraint: The Roman emperor Titus chastises John of Gischala saying, “And did we not permit you to put to death any who passed it, even were he a Roman?” (Jewish War 6.2.4; see discussion in Brown, Death of the Messiah, 1:66). Even if Josephus’s narrative is accurate in its depiction of the Jewish powers of capital punishment, it

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may have been granted only for the Temple precinct. Moreover, Josephus suggests tight Roman control over this power (in another instance, the high priest Ananus is deposed by the Romans for his capital sentencing of James, the brother of Jesus; Ant. 20.9.1). 41. In Acts 6–7, Stephen is brought before the Sanhedrin and stoned. Some scholars see this instance as anomalous, however, and they suggest that the Sanhedrin had power here only because Stephen had violated the law of Temple sanctity. But there are other problems with extrapolating from this case. If the incident is dated to 36 c.e., as has been suggested, then the court may have acted against Stephen because of a brief gap in Roman rulership that seems to have occurred at this time (see Brown, 1:370, and 1:335n14). In any event, as I will discuss in chapter 7, the narrative makes Stephen’s death look more like a lynching than a court-ordered execution. 42. The narrative of the adulterous woman who is nearly stoned (John 7:53–8:11) supposes that the Jewish court had the power to execute. Extrapolation from this story has its problems, however: The story is a late interpolation in John, but, more importantly, its primary purpose is to demonstrate Jesus’ message about the hypocrisy of human judgment and thus its historical value is questionable (see Brown, 1:368–89). In John 11:47–53, a Sanhedrin is convened with the purpose of putting Jesus to death; the narrative seems to assume that the Jewish court could have carried out its purpose. Along the same lines the synoptic gospels represent a Jewish court with the power to issue a capital sentence. On the other hand, the Gospel of John also provides the locus classicus for the argument that the Jews of Palestine in this period did not have the power to execute criminals. When Pilate attempts to deliver Jesus into the hands of the Jews, they proclaim, “It is not lawful for us to put any man to death” (18:31). Paul Winter tries to reconcile this statement in John with contradictory passages by attributing John’s representation here to his theological/ideological spin. He argues that, in the Evangelist’s view, the Jews had to make this claim in order to fulﬁll John 12:32–33’s prediction that Jesus would be “lifted up”: Since the Jews did not use the punishment of cruciﬁxion, Jesus could only be “lifted up” if the Romans took over the execution. See Paul Winter, On the Trial of Jesus (Berlin: De Gruyter, 1961), 110–130. The contradiction is less acute, however, than Winter’s efforts at harmonization might imply, for even in the passages where the New Testament does assume Jewish criminal competence, frequently the Roman authorities carry out or even override the Sanhedrin’s decisions, such as in Acts 21–25 when Paul is taken from the Jewish court and judged by Romans or in the Passion Narrative when Jesus is handed over to the Roman authorities. 43. Raymond Brown attempts to draw conclusions from this array of texts about the ﬁrst-century reality of Jewish capital punishment. He suggests that John 18:31 is historically accurate—the Jews of Palestine did not have the power to execute—but only if that statement is understood in a nuanced way. The Romans may have permitted the Jews to execute for certain religious offenses, but generally they demanded that the Jewish authorities hand over their criminals to them. Sometimes Jews may have taken it into their own hands to execute in cases where they were prohibited, and in these cases the Romans were likely to punish the authorities who overstepped their bounds (see Brown, 1:371). 44. Epistula ad Africanum, 20.14, Patrologia Graeca, ed. J. P. Migne, xi, 82–84. See discussion of Origen’s letter by Alon, Jews in Their Land, 1:209–211, where he weighs the approaches of Jacob Mann, who discounts Origen’s claim, and Juster, who largely accepts it, and argues instead that Origen probably heard of one or several extraordinary cases of capital punishment and drew unwarranted conclusions from

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them. See also discussion of this letter in N.R.M. de Lange, Origen and the Jews: Studies in Jewish-Christian Relations (Cambridge: Cambridge University Press, 1976), 33–34; Ephrat Habas-Rubin, “The Jewish Origin of Julius Africanus,” JJS 45 (1994): 86–91; Aharon Oppenheimer, “Jewish Penal Authority in Roman Judaea,” Jews in a GrecoRoman World, ed. Martin Goodman (Oxford: Clarendon, 1998), 185n11, and discussions by Levine, Goodman, and Segal, who read Origen with varying degrees of skepticism: Levine, Rabbinic Class, 137; Goodman, State and Society, 114–16; Peretz Segal, “Jewish Law During the Tannaitic Period,” An Introduction to the History and Sources of Jewish Law, ed. N. S. Hecht, et al. (Oxford: Clarendon, 1996), 103–104; and Glen Bowersock, “The Greek Moses,” in Religious and Ethnic Communities in Later Roman Palestine, ed., Hayim Lapin (Bethesda: University Press of Maryland, 1998), 31–48, esp. 37–38. 45. Origen, The Writings of Origen, trans. Frederick Crombie (Edinburgh: T. and T. Clark, 1869). 46. On the relationship between the rabbis and the Patriarchs, see Hezser, Social Structure, 405–49, especially 417–29. See also Schwartz, Imperialism, 110–119. 47. For a discussion of the patriarch’s pretensions to royalty, see David Goodblatt, The Monarchic Principle: Studies in Jewish Self-Government in Antiquity (Tu¨bingen: Mohr Siebeck, 1994), 131–75. 48. Habas-Rubin warns against extreme skepticism: “Some details . . . cannot be simply discarded as falsehoods, since there would be no point in Origen’s using stark lies to bear out his basic claim . . .” (90). 49. Levine, Rabbinic Class, 137n25. See also Habas-Rubin, 90n24. 50. y. Sanh. 1:1 (18a), 7:2 (24b). The Palestinian Talmud, the “Yerushalmi,” is a compendium of rabbinic teachings compiled in third and fourth-century Palestine and organized according to the Mishnah. 51. b. Sanh. 41a; parallels on b. Shabbat 15a and b. Avod. Zar. 8b. See also b. Rosh Hashanah 31a, and discussion in Brown, Death of the Messiah, 1:350. Cohn attributes the forty years to an apologetic motive: “The better opinion appears to be that the Jewish court at the time of Jesus still exercised jurisdiction in capital cases according to Jewish law, including the passing and execution of capital sentences, and that the talmudic dicta to the contrary effect were made during the Christian era for apologetic reasons, in order to disprove the allegation that Jesus could have been tried and sentenced by a Jewish court (Haim H. Cohn, “Reﬂections on the Trial and Death of Jesus,” Israel Law Review 2 [1967]: 8–9, esp. n 15). But the Talmud elsewhere explicitly places the responsibility for Jesus’ death on a Jewish court (b. Sanh. 43a-b). I thank Richard Kalmin for this observation. The Babylonian Talmud or “Bavli,” is a compendium of rabbinic teachings beginning in the third century C.E. and not ﬁnally redacted probably until the early medieval period, organized according to the Mishnah. 52. b. Sanh. 52b. 53. This text appears three times in the Babylonian Talmud: b. Ketub. 30b; b. Sotah 8b; b. Sanh. 37b. 54. Mekhilta Mishpatim, Masekhta de-Kaspa 10 (Horovitz/Rabin ed., 327; Lauterbach ed., 170); t. Sanh. 6:6 (Zuckermandel ed., 424); y. Sanh. 6:5 (23b); b. Mak. 5b ; b. Hag. 16b. See my discussion in chapter 5. 55. m. Sanh. 6:4. 56. See m. Avot 1:8. 57. t. Sanh. 9:11 (Zuckermandel ed., 429); see parallel m. Sanh. 7:2 and b. Sanh. 52b.

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58. b. Sanh. 52b. The Amoraim (sing. amora), “sayers” or “explainers,” were rabbis considered to be the successors to the Tannaim, dating from approximately the third century to the ﬁfth centuries in Palestine and Babylonia. 59. t. Sanh. 9:5, Zuckermandel ed., 429; see also m. Sanh. 6:2; y. Sanh. 6:4 (23b); b. Sanh. 44b. 60. Another rabbinic text narrates a speciﬁc incident of execution, but it is set in the Greek period and describes an extra-legal punishment performed for the sake of building a “fence around the Torah”; see b. Sanh. 46a. 61. On the “enticer,” masit, and its relationship to the “seducer,” madiah, see Aharon Shemesh, Onashim Ve-Hata’im Min Ha-Miqra Le-Sifrut Hazal (Jerusalem: Magnes, 2003) 150–58. 62. t. Sanh. 10:11. Parallels can be found in y. Sanh. 7:10 (25c–d) and b. Sanh. 67a. 63. For the various theories regarding the identiﬁcation of Ben Stada, see Joshua Schwartz, “Ben Stada and Peter in Lydda,” Journal for the Study of Judaism 21 (June 1990): 1–18. For scholars rejecting the identiﬁcation (Jewish scholars largely), see Matthew Goldstein, Jesus in the Jewish Tradition (New York, 1950), 60. 64. See a survey of these texts in Robert Travers Herford, Christianity in Talmud and Midrash (New York: Ktav, 1975). 65. b. Sanh. 43a (this passage was censored out of the standard printed edition— see s.v., Raphael Nathan Rabbinovicz, Diqduqei Sofrim/Variae Lectiones, 2 vols. [New York: M.P. Press, 1977]). See Brown’s discussion of this text, 1:376–78. The Talmud’s representation of this Jewish court is partially inconsistent with Jewish law as it was later deﬁned by the Rabbis: The initial formulation describes the Jewish court hanging Jesus—not an execution method approved by rabbinic law—but the text later describes the Jewish court stoning him. I thank Richard Kalmin for pointing this out. 66. See Schwartz, “Ben Stada.” There is one scholar who would date the events described in the baraita to the postdestruction period, J. Derenbourg, Essai sur l’Histoire et la Ge´ographie de la Palestine (Paris: Imprimerie impe´riale, 1867), but his is a minority opinion. 67. So writes Louis Isaac Rabinowitz in the Encyclopaedia Judaica: “The rabbis agreed that with the destruction of the Temple the Sanhedrin was precluded from inﬂicting capital punishment” (“Capital Punishment,” 5:145). Peretz Segal, in a recent anthology on the history of Jewish law, reads the rabbinic texts in a similar way, but draws opposite conclusions: “It seems therefore that despite the fact that theoretically the Jewish Court had been denied its jurisdiction over capital crimes, as a matter of practice Jewish autonomy in this ﬁeld was maintained, apparently for as long as it did not interfere with the interests of the Roman government” (Segal, “Jewish Law,” 104). His evidence, oddly, is the texts in which Ben Stada is stoned and Rabbi Elazar bar Tzadok testiﬁes to an execution he saw as a child, both incidents set in Temple times. 68. See discussion by Hezser, Social Structure, 172n126. 69. As Hezser writes: “The assumption of a sanhedrin or central rabbinic court after 70 has been dismissed . . . Accordingly, rabbinic references to punishments inﬂicted by such a court, such as the death penalty mentioned in M. Mak. 1:10, have to be regarded as merely theoretical” (Hezser, Social Structure, 462). There are many tannaitic narratives describing more informal rabbinic judging, but none of these stories deal with matters of capital punishment: “Purity issues and family law clearly predominate in these texts, while issues of civil and criminal law are almost totally absent” (Hezser, Social Structure, 191–92). Moreover, these stories are highly formalized and therefore problematic as historical evidence. 70. See Ramsay MacMullen, “Judicial Savagery in the Roman Empire,” Chiron

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16 (1986): 149–50; Peter Garnsey, “The Criminal Jurisdiction of Governors,” JRS 58 (1966): 51–55. 71. “Judicial Savagery,” 149–50. Also in Thomas E. J. Wiedemann: “Outside Italy, the authority of a Roman governor within his province was so absolute that no one could effectively challenge his decision to punish anyone in any way he decided, whatever the formal legal rights of the accused” (Emperors and Gladiators [New York: Routledge, 1992], 68). 72. Martin Hengel, Cruciﬁxion in the Ancient World and the Folly of the Message of the Cross (Philadelphia: Fortress, 1978), 49. 73. Garnsey, “Criminal Jurisdiction,” 53. 74. MacMullen, “Judicial Savagery,” 156. 75. Ibid. 76. Garnsey, “Why Penal Laws Become Harsher,” 141–62. 77. Rabello, “Jewish and Roman Jurisdiction,” 144. 78. See, for example, Peretz Segal: “. . . both the sources of Jewish Law and external evidence indicate that capital crimes did fall under the jurisdiction of the Jewish courts both before and after the destruction of the Temple. . . . The claim that Jewish jurisdiction had been abrogated with respect to capital crimes must be restricted to particular occasions only” (Segal, “Jewish Law,” 103–104). Rabello argues against the all-or-nothing approach of Mommsen and Juster, claiming instead that jurisdiction in the Roman empire was unsystematic; see Rabello, “Jewish and Roman Jurisdiction,” 144–45. Along these lines, see also Maclaren, Power and Politics, 224: “Negotiation was the favoured means for reaching a decision. This situation is especially evident in Roman-Jewish relations. There are only a limited number of occasions where dogmatic arbitrary decisions were made. It was expected that negotiations would take place to seek a solution.” 79. Goodblatt, Monarchic Principle, 108. 80. Aaron Kirschenbaum, “The Role of Punishment in Jewish Criminal Law: A Chapter in Rabbinic Penological Thought,” Jewish Law Annual 9 (1991): 127, 142. 81. Arnold Enker, “Yesodot Ba-Mishpat Ha-Pelili Ha-Ivri,” Mishpatim 24 (1994): 190. 82. Devora Steinmetz, “Crimes and Punishments, Part I: Mitot Beit Din as a Reﬂection of Rabbinic Jurisprudence,” JJS 55 (2004), 81–101, quoting 83. 83. For other scholars who identify a particular concept that underlies the rabbinic death penalty, see also Halbertal, Mahapekhot Parshaniyot, 145–67; Lorberbaum, Tselem Elohim; Peretz Segal, “ ‘Hiyuv Be-Dinei Shamayim’: Hiyuvei Mitot Beit Din VeHiyuvei Mitah la-Shamayim” (PhD diss., Hebrew University Law School, 1980). 84. See my discussion of Elon in chapter 2. 85. I follow here J. Z. Smith’s notion of ritual that it “represents the creation of a controlled environment. . . . Ritual is a means of performing the way things ought to be in conscious tension to the way things are in such a way that this ritualized perfection is recollected in the ordinary, uncontrolled, course of things” (Jonathan Z. Smith, “The Bare Facts of Ritual,” Imagining Religion: From Babylon to Jonestown [Chicago: University of Chicago Press, 1982], 63). 86. See “Ritual without Myth: The Use of Law for the Study of Judaism,” in Jacob Neusner, Method and Meaning in Ancient Judaism, 2nd Series (Missoula, Mont.: Scholars Press, 1981), 55. 87. Merback describes one German painting, “Calvary with Other Scenes of the Passion,” in which the viewer wends his or her way visually through the streets of Jerusalem and the hills of Calvary; in the corner of the painting are the donors, who

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act as counterparts to the viewer. Merback suggests that such paintings “furnished a literalized space for the imagination’s deployment” (Merback, Thief, 46–47). 88. I draw this understanding of the Avodah service from Zvi Zohar, “U-Mi Metaher Et’khem—Avikhem She-Ba-Shamayim,” AJSR 14.1 (1989): 1–28 (Hebrew section); idem, “Miqveh Yisra’el Adonai,” AJSR 19.2 (1994): 1–23 (Hebrew section). 89. Bruce Lincoln, Authority: Construction and Corrosion (Chicago: University of Chicago Press, 1994); Catherine Bell, Ritual Theory, Ritual Practice (New York: Oxford University Press, 1992). 90. Magnus Wistrand, Entertainment and Violence in Ancient Rome: The Attitudes of Roman Writers of the First Century a.d. (Go¨teborg, Sweden: Acta Universitatis Gothoburgensis, 1990); Richard A. Bauman, Crime and Punishment in Ancient Rome (New York: Routledge, 1996); Garnsey, “Why Penal Laws Become Harsher.” 91. Wistrand brings Seneca, Epistles 70.20, 21, 23, 26 as evidence that the arena provided stoic models of bravery and contempt for death (Entertainment, 19). In this letter to Lucilius, Seneca tells stories of men who killed themselves before being killed in the arena, teaching the lesson that “dying is more honorable than killing.” 92. See Bauman, Crime and Punishment, 142. 93. Ibid., 159–64. The Midrash Halakhah are collections of rabbinic legal exegesis, organized according to the verses of the Pentatech, considered to be dated to the tannaitic period though edited in the later amoraic period. 94. Garnsey, “Why Penal Laws Become Harsher,” 154–56. 95. See Go¨ran Aijmer and Jon Abbink, eds., Meanings of Violence: A Cross Cultural Perspective (New York: Berg, 2000). See especially Abbink’s preface: “. . . in many historical instances violence has the effect of a ‘creative’ or at least ‘constituent’ force in social relations: deconstructing, redeﬁning, or reshaping a social order, whether intended or not” (xii). 96. Rosenberg, Legacy, 5. 97. See, for instance: National Jewish Commission on Law and Public Affairs, Brief of COLPA and IAJLF as Amici Curiae in Support of the Petitioner, Anthony Braden Bryan v. Michael M. Moore (Washington, D.C.: Byron S. Adams, 1999). 98. I assume here, along with the scholarly consensus, that Midrash Halakhah is tannaitic, even if it is edited late. I do not take a stand, however, on the evolutionary relationship between Midrash Halakhah and Mishnah. See discussion of different views on which came ﬁrst in Moshe Halbertal, Mahapekhet Parshaniyot, 13–15. 99. On the relationship of the modern concept of “crime” to the traditional Jewish legal system, see Stephen M. Passamaneck, “The Concept of Crime in the Jewish Tradition,” Crime and Punishment in Jewish Law (ed. Walter Jacob and Moshe Zemer; New York: Berghahn Books, 1999) 3–21; and Leonard Kravitz, “What is Crime?” Crime and Punishment in Jewish Law, 22–33, both of whom emphasize the tension between the two. 100. Moshe S. Zuckermandel, Tosefta: Al Pi Kitve Yad Erfurt u-Viyenah (Jerusalem: Wahrmann, 1963); Saul Lieberman, Tosefta (New York: The Jewish Theological Seminary of America, 1955); H. Saul Horovitz and Israel A Rabin, eds. and comps., Mecilta d’Rabbi Ishmael (Jerusalem: Bamberger and Wahrmann, 1960); Jacob N. Epstein and Ezra Z. Melamed, eds. and comps., Mekhilta d’Rabbi Simon b. Jochai (Jerusalem: Mekize Nirdamim, 1955); H. Saul Horovitz, ed. and comp., Siphre d’Be Rab (Jerusalem: Shalem, 1992); Louis Finkelstein, Sifre al Sefer Devarim (New York: The Jewish Theological Seminary of America, 1969).

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notes to pages 25–28

chapter 2 1. This shift from medieval to modern has probably been exaggerated, however: see Michael Ignatieff, “State, Civil Society, and Total Institutions: A Critique of Recent Social Histories of Punishment,” Crime and Justice: An Annual Review of Research, ed. Michael Tonry and Norval Morris (Chicago: University of Chicago Press, 1981), 3: 162–64. 2. See Ignatieff, “State.” See also Evans’s very helpful sketch in Richard Evans, Rituals of Retribution: Capital Punishment in Germany, 1600–1987 (New York: Oxford University Press, 1996), 1–24. 3. Evans, Rituals of Retribution, 3–7. 4. Ignatieff, “State,” 155. 5. See Yair Lorberbaum, Tselem Elohim: Halakhah Ve-Aggadah (Jerusalem: Schocken, 2004), 173n11, for a telling of this story which generally follows the same lines. 6. The term, “Ancient Hebrews,” is not a neutral choice. In the 1991 reprint of Mendelsohn’s book, this title phrase is changed to “Jews.” The word “Jews” according to modern parlance is the correct one for Mendelsohn’s purposes: “Ancient Hebrews” suggests biblical Israel, while Mendelsohn is clearly referring to rabbinic Judaism. In using the term “Hebrew,” Mendelsohn is using the preferred term of nineteenthcentury American Jews, who understood “Jew” to be a less polite designation. On the resonances in late nineteenth-century America of the terms “Semite,” “Israelite,” “Hebrew,” and “Jew,” see Naomi W. Cohen, “Antisemitism in the Gilded Age: The Jewish View,” Essential Papers on Jewish-Christian Relations in the United States: Imagery and Reality, ed. Naomi W. Cohen (New York: New York University Press, 1990), 128. 7. See Samuel Mendelsohn, cowritten with Marcus Jastrow, “Capital Punishment,” Jewish Encyclopedia, JewishEncyclopedia.com, http://www.jewishencyclopedia .com/view.jsp?artid⫽128&letter⫽C&search⫽capital%20punishment. 8. On the life of Samuel Mendelsohn, see Irwin H. Haut, introduction to Samuel Mendelsohn, The Criminal Jurisprudence of the Jews (New York: Sepher-Hermon Press, 1991, originally 1891), V-IX. 9. Mendelsohn, Criminal Jurisprudence, 15. 10. Ibid., 15. 11. Ibid., 159n382. 12. Ibid., 23. 13. Ibid., 3. 14. Jay Harris, How Do We Know This? Midrash and the Fragmentation of Modern Judaism (Albany: State University of New York Press, 1995), 153. 15. Paul R. Mendes-Flohr and Jehuda Reinharz, eds., The Jew in the Modern World: A Documentary History (New York: Oxford University Press, 1980) 371–72. 16. See Harris, How Do We Know This, 173–210. Harris describes a “broader rehabilitation of Pharisaic rabbinic Judaism in the face of political and historical constructs that would identify it as the incarnation of foolishness and immorality. Rescuing the ancient rabbis from the caricatures of Gentile and Jewish scholars was deemed an urgent need by conservative religious leaders, and in this they came to be followed by liberal Jews as well. Portraying the rabbis as intelligent readers, progressive minds, and judicious legislators came to dominate public lectures and sermons and the popular Jewish press, as well as scholarly periodicals” (207). Mendelsohn is part of this trend. 17. On negative Christian perceptions of Jews and Judaism in the United States

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in Mendelsohn’s time, see Louise A. Mayo, “The Ambivalent Image: NineteenthCentury America’s Perception of the Jew,” Essential Papers on Jewish-Christian Relations in the United States, 105–26. See also Jonathan D. Sarna, “The American Jewish Response to Nineteenth-Century Christian Missions,” Essential Papers on JewishChristian Relations in the United States, 21–42. On Christian critics in Europe, see Harris, How Do We Know This? 135, 155. 18. Emil Schu¨rer, A History of the Jewish People in the Time of Jesus (Abridgment of First Division), ed. Nahum N. Glatzer (1886–1890; repr., New York: Schocken, 1961), 84. 19. Glatzer’s introduction to Schu¨rer, xi. See also Moore’s criticisms of Christian scholarship on rabbinic literature: George Foot Moore, “Christian Writers on Judaism,” HTR 14 (1921): 197–254. In America, in a more popular context, hostility toward the Talmud can be found in the nineteenth-century Sunday School Union book, The Jew at Home and Abroad, which attacks the Talmud for its “ridiculous laws” and its directions for “absurd and superstitious practices which are so numerous” (quoted in Mayo, “Ambivalent Image,” 120). 20. Mendelsohn, Criminal Jurisprudence, 15. 21. On the privatizaton of punishment in Europe, see Michel Foucault, Discipline and Punish: The Birth of Prison, trans. Alan Sheridan (New York: Vintage, 1995), and Pieter Spierenberg, The Spectacle of Suffering: Executions and the Evolution of Repression (New York: Cambridge University Press, 1984). On the process of privatization in the United States, see Louis Masur, Rites of Execution and the Transformation of American Culture, 1776–1865 (New York: Oxford University Press, 1989). 22. Masur, Rites of Execution, chs. 2, 3, 6, and 7. 23. For example, see Masur’s description of the September 1881 debate between George Barrell Cheever and Wendell Phillips about the execution of Charles Guiteau, President Garﬁeld’s assassin (Masur, Rites of Execution, 161). 24. Mendelsohn, Criminal Jurisprudence, 16–17. 25. For full text, see above, 4. 26. This approach can be found also later in Greenberg’s work on biblical criminal law: “My remarks are conﬁned to the criminal law, an area that lends itself well to comparative treatment, and in which the values of a civilization come into expression with unmatched clarity” (Moshe Greenberg, “Some Postulates of Biblical Criminal Law,” Studies in the Bible and Jewish Thought [Philadelphia: Jewish Publication Society, 1995] 27). 27. E´mile Durkheim, The Division of Labor in Society, trans. George Simpson (1893; repr. New York: Free Press, 1933) 109. 28. See Stanley Cohen, “Criminology,” The Social Science Encyclopedia, ed. Adam Kuper and Jessica Kuper (New York: Routledge, 1996), 152, where he discusses the two main schools of thought within criminology, the “classical school” and the “positivist school.” 29. As one example, Mayo describes a Sunday-school book in nineteenthcentury America, Elizabeth Peabody’s Sabbath Lessons, that speaks of the “conspiracy of the Jewish rulers against Jewish Christ,” and reproves the Jews for “indulging themselves in reviling, covetousness.” Nathaniel Hawthorne’s poem “The Star of Calvary,” quoted by Mayo, is another example:

Behold O Israel! behold, It is no Human One That ye have dared to crucify

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notes to pages 30–32 What evil hath he done? It is your King, O Israel! The God-begotten Son!

See Mayo, “Ambivalent Image,” 107, 109. Naomi Cohen describes similar accusations of deicide in the 1870’s revivalist crusade of Reverend Dwight L. Moody; see Cohen, “Antisemitism,” 134. On the persistence of these views, see Glock and Stark’s sociological study in the 1960s that ﬁnds “widespread acceptance of the belief [among members of contemporary churches] that the Jews overwhelmed Pilate to bring about the death of Jesus. This is further conﬁrmed by data, which shows that 58 percent of the Protestants and 61 percent of the Roman Catholics picked the Jews as the group ‘most responsible for crucifying Christ’ ” (Charles Y. Glock and Rodney Stark, Christian Beliefs and Anti-Semitism [New York: Harper and Row, 1966], 52). The controversy surrounding Mel Gibson’s 2004 ﬁlm, The Passion, makes clear that the problem is ongoing. 30. Mendelsohn, Criminal Jurisprudence, 15n12. 31. See Sarna, “American Jewish Response,” 23. 32. According to Haut, the work was well-received at the time but then dropped out of sight until the 1960s; see introduction, Mendelsohn, Criminal Jurisprudence, VI, vi. 33. Beror lo mitah yafah; see b. Pesah. 75a; b. Sotah 8a; b. Ketub. 37b; b. B. Qam. 51a; b. Sanh. 45a, 52a. 34. Similar trends can also be found earlier in Israel Jehiel Michel Rabbinowicz, Le´gislation Criminelle Du Talmud: Organisation de la Magistrature Rabbinique, Autorite´ Le´gale de la Mischnah (Paris: Imprimerie Nationale, 1876). In his long, insightful, and colorful preface, Rabbinowicz argues, like Mendelsohn does later, that the Rabbis effectively abolished capital punishment, quoting m. Mak. 1:10 in abridged form. About the execution methods themselves, Rabbinowicz claims that the Rabbis completely changed the biblical penalties. Rabbinowicz, like Mendelsohn, explains that one of the ideas motivating his study is to refute the general assumption that the Talmud is inferior to other ancient classical works that are universally admired (xvii), and he attributes this assumption to Christian prejudice against the Pharisees. Adopting an evolutionary scheme of human history, Rabbinowicz argues that the Talmud is closer to contemporary nineteenth-century values than are the Classics or the Bible. Rabbinowicz also directly engages the problem of peshat and derash, that is, critique of the methods of rabbinic interpretation, and explains that he plans to bracket the relationship between the law and the biblical verses, considering the verses to be only “asmakhtha, de simples attaches” (xxxi), emulating the work of “l’illustre docteur Geiger” (xxxii). Rabbinowicz represents an interesting blend of traditionalism and reform (lighter on the traditionalism and heavier on the reform than Mendelsohn); at the end of his preface, he describes his birth in a small village in Lithuania and his plans to create a Polish grammar so that the Jews of Poland can understand the language that surrounds them. He also thanks two “brave catholiques” who helped him to complete his Talmud study, part of quite an entertaining set of acknowledgments that includes the owner of the cafe in which he does his work and the owner of a Polish restaurant that gives him a discount on his food. 35. Philip Berger Benny, The Criminal Code of the Jews According to the Talmud, Massecheth Synhedrin (London: Smith, Elder, 1880) 4. 36. Ibid., 6. 37. Ibid., 7.

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38. Ibid., 84. 39. Ibid., 87–88. 40. For a brief introduction to Lilienblum, his life and writings, see section in Arthur Hertzberg, The Zionist Idea: A Historical Analysis and Reader (New York: Atheneum, 1959) 166–77. 41. “. . . the talmudic sages knew well that the Legislator had not intended to encrypt within his words a host of laws, but rather that time and common sense were the causes of the new laws—the words of Scripture merely furnishing a prop for their rulings. No so the latter-day codiﬁers!” (excerpt from Orhot Ha-Talmud, Appendix, quoted and discussed by Lawrence Kaplan in The Jewish Political Tradition, vol. 1, Authority, ed. Michael Walzer, Menachem Lorberbaum, and Noam J. Zohar [New Haven: Yale University Press, 2000] 289–306). 42. Moshe Leib Lilienblum, “Haqirot Talmudiyot,” Ha-Shiloah 5 (Jan 1899): 39–42. 43. Lilienblum, “Haqirot,” 40. 44. Ibid., 39. 45. Maguen problematizes this approach to Lilienblum by looking at his conﬂicts with Poalei-Zion; see Yoseph Maguen, Pulmus She-Nishkakh: Mi Tsarikh Po’alim Yehudim Be-Erets Yisra’el (Tel Aviv: Amudot, 1994), especially the last two chapters. On practical Zionism, see Martin Sicker, Reshaping Palestine: From Muhammad Ali to the British Mandate (Westport, Conn.: Praeger, 1999) 87–112. 46. See Zipperstein, Elusive Prophet, 72–80. 47. David De Sola Pool, “Capital Punishment Among the Jews,” Jewish Eugenics, and Other Essays, ed. Max Reichler (New York: Bloch, 1916), 98. 48. Ibid., 76 (his italics). 49. Ibid., 97. 50. Hyman E. Goldin, Hebrew Criminal Law and Procedure, Mishnah: Sanhedrin– Makkot (New York: Twayne, 1952), 24. According to Lawrence Hoffman, Goldin was an authoritative voice of his time, known primarily for his translation of Solomon Ganzfried’s Kitsur Shulkhan Arukh. Hoffman describes another work of Goldin’s also to be a “classic,” his Ha-Madrikh, a synopsis of practical guidance for rabbis; see Lawrence Hoffman, Covenant of Blood: Circumcision and Gender in Rabbinic Judaism (Chicago: University of Chicago Press, 1996) 67. 51. Goldin, Hebrew Criminal Law, 25. 52. Ibid., 26. 53. Ibid., 7. 54. Hyman E. Goldin, The Case of the Nazarene Reopened (New York: Exposition, 1948). 55. George Horowitz, The Spirit of Jewish Law: A Brief Account of Biblical and Rabbinical Jurisprudence with a Special Note on Jewish Law and the State of Israel (New York: 1953; repr. Bloch, 1993) ix. 56. Ibid., x. 57. Ibid., 167. 58. Ibid., 216. 59. Ibid., viii. 60. James E. Priest, Governmental and Judicial Ethics in the Bible and Rabbinic Literature (New York: Ktav; California: Pepperdine University Press, 1980) 1. 61. Ibid., 141. 62. Ibid., 126–30. 63. Ibid., 134.

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notes to pages 37–40

64. Ibid.,136. 65. Haut, Introduction, VI. 66. Ibid., VIII. 67. National Jewish Commission on Law and Public Affairs, Brief of COLPA and IAJLF as Amici Curiae in Support of the Petitioner, Anthony Braden Bryan v. Michael M. Moore (Washington, D.C.: Byron S. Adams, 1999), 1. The brief describes the commission as “an organization of volunteer lawyers and social scientists that advocates the position of the Orthodox Jewish community on legal issues affecting religious rights and liberties in the United States.” Mark Miller, a lawyer who works for the ﬁrm that contributed to the brief, sent it to me. 68. Ibid., 2. 69. Ibid., 3. 70. For a discussion of arguments within the early state of Israel about the role of Jewish law within it, see Menahem Elon, The Principles of Jewish Law (Jerusalem: Keter, 1975), 1612–18. 71. Jehiel M. Tykocinski, “Mishpat Ha-Mavet al Pi Ha-Torah Be-Avar u-VeHoveh,” Ha-Torah Ve-Ha-Medinah 4 (1952): 33. Tykocinski (1872–1955) was born in Belorussia, moved to Palestine when he was ten years old, and eventually became a rabbinic leader in Jerusalem. Samuel Cooper discusses Tykocinski’s inﬂuential responsa in the area of death, burial, and mourning in “The Laws of Mixture: An Anthropological Study in Halakhah,” in Judaism Viewed from Within and from Without: Anthropological Studies, ed. Harvey Goldberg (Albany: State University of New York Press, 1987) 64–66. 72. Menahem Elon, Jewish Law: History, Sources, Principles (Ha-Mishpat Ha-Ivri), trans. Bernard Auerbach and Melvin J. Sykes (Philadelphia: The Jewish Publication Society, 1994), 4:1615n102. 73. Surprisingly, Tycocinski does later quote the last part of this Mishnah, but he does so in the context of discussing the Jewish tradition’s perspective on the deterrent effects of punishment (Tykocinski, “Mishpat Ha-Mavet,” 41). He uses this part of the text to claim that Judaism is not concerned with the deterrent effects of punishment, which ﬁts his larger thesis that sociological considerations should be less important than religious ones. 74. Tykocinski, “Mishpat Ha-Mavet,” 39. 75. For a discussion summarizing Tykocinski’s position on this legal question, as well as Rabinowitz-Teomim’s and others, see Basil Herring, Jewish Ethics and Halakhah for Our Time: Sources and Commentary (New York: Ktav, 1984) 149–73. 76. Tykocinski, “Mishpat Ha-Mavet,” 42. 77. Benjamin Rabinowitz-Teomim, “Mishpatei Nefashot Be-Din Ha-Sanhedrin uVe-Din Ha-Malkhut,” Ha-Torah Ve-Ha-Medinah 4 (1952): 46. 78. Ibid., 47. 79. Rabinowitz-Teomim, “Mishpatei Nefashot,” 47. 80. Ibid., 48. 81. Ibid., 52–81. 82. He summarizes: “The end of the matter is that there is nothing said that contradicts what we have suggested in an article in the Torah and the State that it is within the power of the people to choose the king and to give him the rights even for matters of criminal law, as it seems from the words of the Ridbaz. . . .” (Saul Israeli, “Be-Shulei Ha-Ma’amar,” Ha-Torah Ve-Ha-Medinah 4 [1952]: 82–89, quoting 86). 83. Eliezer Waldenberg, “Shoftim Ve-Shotrim Bi-Medinah Yehudit Le-Or Ha-

notes to pages 40–45

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Halakhah,” Sinai 22 (1948): 164; see discussion in Herring, Jewish Ethics and Halakhah for Our Time, 163–64. 84. See formulation by Elon, “The Religious and Cultural Aspects of the Question of the Status of Jewish Law in the Jewish State,” Jewish Law, 4:1898–1946. 85. See Menahem Elon, “Mishpat Ivri,” section “Ha-Mishpat Ha-Ivri Society and Mishpat Ha-Shalom Ha-Ivri,” Encyclopaedia Judaica, 12:109–151, esp. 141–42. 86. Haim Cohn, “Capital Punishment,” in Encyclopaedia Judaica, 5:142–47. 87. Haim H. Cohn, “The Penology of the Talmud,” Israel Law Review 5 (1970): 57–74. 88. Ibid., 82. 89. Ibid., 64. 90. Ibid., 72. 91. Ibid., 63, 72. 92. Haim H. Cohn, Human Rights in the Bible and Talmud (Tel Aviv: MOD Books, 1989), esp. 20–21. 93. Ibid., 7. 94. Cohn, “Penology,” 82. 95. Haim H. Cohn, The Trial and Death of Jesus (New York: Harper and Row, 1967); idem, “Reﬂections on the Trial and Death of Jesus,” Israel Law Review 2 (1967): 332–79; idem, “Ha-Teliyah—Af Hi Ba-Mitot Beit Din?” Proceedings of the Congress of Jewish Studies 8 (1981): 19–28. 96. See, for instance, Cohn, Trial, 235. 97. Ibid., 224–28. 98. Such is the distinction made in the introduction to section, “State of Israel,” in Walzer, Lorberbaum, and Zohar, The Jewish Political Tradition, vol. 1, Authority, 468. For Elon’s philosophy of Mishpat Ivri, see Elon, Jewish Law, 4:1898–1946. 99. Elon, Jewish Law, 2:515–19. On the extra-legal punishments of the Rabbis, see also Hanina Ben Menahem, “Extra-Legal Reasoning in Judicial Decisions in Talmudic Law” (PhD diss., Oxford University, 1978); idem, Judicial Deviation in Talmudic Law: Governed by Men, Not by Rules (New York: Harwood, 1991); and the work of Michelle Hammer-Kossoy, “Rabbinic Criminal Punishment: Divine Justice in Human Hands” (PhD diss., New York University, 2005). 100. Nagar v. State of Israel, 35 (i) P.D. 113 (1980), discussed and translated in Elon, Jewish Law, 2:692. 101. Elon, “Mishpat Ivri,” in EJ. In his Jewish Law volumes, Elon does remark in a note that his encyclopedia discussion of criminal law requires revision; see Elon, Jewish Law, 47n1. 102. Elon, Jewish Law, 1:255. 103. On the importance of theory for Cohn: “It is for this reason that, however theoretical and untouched by realities it may appear to be, talmudic penology has an appeal and interest which is not only and purely historical. Here was a penological laboratory which was quite unique: the talmudic penologists . . . acted sub specie aeternitatis, with the object of providing just laws for an ideal society” (Cohn, “Penology,” 63). 104. Aaron Kirschenbaum, “The Role of Punishment in Jewish Criminal Law: A Chapter in Rabbinic Penological Thought,” Jewish Law Annual 9 (1991): 124. This article is a translation of one that appeared earlier in Hebrew, “The Place of Punishment in Jewish Criminal Law: A Chapter in the Penological View of Hazal and the Rishonim,” Iyunei Mishpat 12 (1987): 253–73. 105. Kirschenbaum, “Role of Punishment,” 127.

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106. Ibid., 130. 107. Ibid., 131. 108. Arnold Enker, “Yesodot Ba-Mishpat Ha-Pelili Ha-Ivri,” Mishpatim 24 (1994): 177–206. See also his article in English, “Aspects of Interaction Between the Torah Law, the King’s Law, and the Noahide Law in Jewish Criminal Law,” Cardozo Law Review 12 (1991): 1137–56. 109. Shalom Albeck takes a similar view, arguing that the rabbinic death penalty is primarily educational (Shalom Albeck, Mavo La-Mishpat Ha-Ivri Bi-Yemei HaTalmud [Ramat Gan, Israel: Bar-Ilan University Press, 1999] 306). 110. Noam Zohar, Hayim, Herut Ve-Shivyon Ba-Masoret Ha-Yehudit (Jerusalem: Rabbis for Human Rights, 1991). 111. Efron has a useful summary of the conﬂict between the Greek sources and the Hebrew sources on the Sanhedrin and the series of scholarly efforts to resolve it; see Joshua Efron, Studies on the Hasmonean Period (Leiden: E.J. Brill, 1987), 287–90. See also Raymond Brown, The Death of the Messiah: From Gethsemane to the Grave: A Commentary on the Passion Narratives in the Four Gospels (New York: Doubleday, 1994), 1:340–48. 112. See Efron, ibid., for discussion and references. 113. For some efforts to resolve the conﬂict between the Gospels and the Mishnah in their representations of Jewish criminal law, see: Herbert Danby, “The Bearing of the Rabbinical Criminal Code on the Jewish Trial Narratives in the Gospels,” JTS 21 (20 1919): 51–76; G.A. Barton, “On the Trial of Jesus Before the Sanhedrin,” JBL 41 (1930): 205–11; Solomon Zeitlin, “The Cruciﬁxion of Jesus Re-Examined,” JQR 31, 32 (1940): 327–69, 175–89, 279–301; idem, “The Political Synedrion and the Religious Sanhedrin,” JQR 36 (1946): 109–140; idem, “Synedrion in Greek Literature, the Gospels and the Institution of the Sanhedrin,” JQR 37 (1946): 189–98; idem, “The Trial of Jesus,” JQR 53 (1962): 77–88; Sidney B. Hoenig, “Synedrion in the Attic Orators, the Ptolemaic Papyri and Its Adoption by Josephus, the Gospels and the Tannaim,” JQR 37 (1946): 179–87; Hugo Mantel, Studies in the History of the Sanhedrin (Cambridge: Harvard University Press, 1961), 54–101, 254–302; Paul Winter, On the Trial of Jesus (Berlin: de Gruyter, 1961); David R. Catchpole, “The Problem of the Historicity of the Sanhedrin Trial,” in The Trial of Jesus: Cambridge Studies in Honour of C.F.D. Moule, ed. Ernst Bammel (Naperville, Ill.: Alec R. Allenson, 1970) 47–65; idem, The Trial of Jesus (Leiden: Brill, 1971); John Dominic Crossan, Who Killed Jesus?: Exposing the Roots of Anti-Semitism in the Gospel Story of the Death of Jesus (San Francisco: HarperSanFrancisco, 1995). See also the journal Judaism 20.1 (1971) dedicated to “The Trial of Jesus in the Light of History,” with articles by Robert Gordis, Haim Cohn, Morton Enslin, David Flusser, Robert Grant, S.G.F. Brandon, Joseph Blinzler, Gerard Sloyan, and Samuel Sandmel. 114. Josef Blinzler, “The Jewish Punishment of Stoning in the New Testament Period,” The Trial of Jesus: Cambridge Studies in Honour of C.F.D. Moule, 147–61. 115. Ibid., 152. 116. Ibid., 161. 117. Ernst Bammel, “Cruciﬁxion as a Punishment in Palestine,” The Trial of Jesus: Cambridge Studies in Honour of C.F.D. Moule, 165. 118. Joseph M. Baumgarten, “Does Tlh in the Temple Scroll Refer to Cruciﬁxion?” JBL 91 (1972): 472–81. 119. David Halperin, “Cruciﬁxion, the Nahum Pesher, and the Rabbinic Penalty of Strangulation,” JJS 32 (1981): 32–46.

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120. Ibid., 40. 121. Cohn, Trial, 210. 122. See also: Paul Winter, “Sadoqite Fragments IX,I,” RevQ 6 (1967): 131–36; Isaac Rabinowitz, “The Meaning and Date of Damascus Document IX,I,” RevQ 6 (1968): 433–36; Urbach, “Batei-Din”; Joseph A. Fitzmyer, “Cruciﬁcation in Ancient Palestine, Qumran Literature and the New Testament,” CBQ 40 (1978): 493–513; Martin Hengel, Cruciﬁxion in the Ancient World and the Folly of the Message of the Cross (Philadelphia: Fortress, 1978), 84–85; Brown, Death of the Messiah, 1:311–560. 123. For a brief history of the death penalty in America, see introduction in Hugo Bedau, The Death Penalty in America: Current Controversies (New York: Oxford University Press, 1997) 3–25. 124. Most mainstream religious organizations in the United States have come out in opposition to the death penalty; see Claire Gisel, “Movement Against Death Penalty Grows,” Christian Social Action 14.4 (July–Aug 2001): 23–24; P. C. Jr. Eniss, “Presbyterians Oppose Capital Punishment,” Journal for Preachers 25.2 (2002): 29–34; James McBride, “Capital Punishment as the Unconstitutional Establishment of Religion: A Girardian Reading of the Death Penalty,” Journal of Church and State 37 (1995): 269, and 269n24 for bibliography; and Bedau, Death Penalty, 415–44. 125. On these legal challenges, see Bedau, Death Penalty, 15, and his references in 15n23. 126. Gerald Blidstein, “Capital Punishment—the Classic Jewish Discussion,” Judaism 14 (1965): 163. 127. Ibid., 164–5. 128. Ibid., 167. 129. Emanuel Quint and Neil Hecht, Jewish Jurisprudence: Its Sources and Modern Applications (New York: Harwood Academic, 1980) 1. 130. Ibid., 3. 131. Ibid., 37. 132. Elliot N. Dorff and Arthur I. Rosett, A Living Tree: The Roots and Growth of Jewish Law (Albany: State University of New York Press, 1988) 224. 133. Ibid., 225. 134. Ibid. 135. Israel J. Kazis, “Judaism and the Death Penalty,” Contemporary Jewish Ethics, ed. Menachem Mark Kellner (New York: Sanhedrin, 1978) 326. 136. Ibid., 329. 137. Elie Spitz, “The Jewish Tradition and Capital Punishment,” Contemporary Jewish Ethics and Morality: A Reader, ed. Elliot N. Dorff and Louis E. Newman (New York: Oxford University Press, 1995), 344–49. 138. Elliot N. Dorff and Louis E. Newman, eds., Contemporary Jewish Ethics and Morality (New York: Oxford University Press, 1995), 348. 139. CCAR Yearbook 68 (1958): 100; CCAR Yearbook 70 (1960): 69–70; CCAR Yearbook 89 (1979): 105. 140. CCAR Yearbook 89 (1979): 105. 141. Richard Block, “Death, Thou Shalt Die: Reform Judaism and Capital Punishment,” Journal of Reform Judaism 30.2 (Spring 1983): 2. 142. See Julius Kravetz, “Some Cautionary Remarks,” CCAR Journal, 15.1 (January 1968): 75–81. 143. Block, “Death, Thou Shalt Die,” 2. 144. Ibid., 3.

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145. Ibid., 4. 146. Ibid., 5. 147. Underlying Block’s claim is a somewhat curious conception of Jewish law: “the purpose of halacha is to penetrate and replicate God’s mind” (Block, “Death, Thou Shalt Die,” 6). 148. Victor Aptowitzer, “Observations on the Criminal Law of the Jews,” JQR, n.s., 15 (1924): 55–118. 149. See Aharon Shemesh, “ ‘Elu Hen Ha-Neheragim’: Iyun be-Pereq mi-Torat Ha-Onshim Shel Hazal,” Shenaton Ha-Mishpat Ha-Ivri 21 (1998): 283n54, where he undercuts Albeck’s criticism of Aptowitzer for using aggadah to understand earlier halakhah. 150. See Shemesh’s correction of Aptowitzer’s view of measure-for-measure punishment in rabbinic literature: “Elu Hen Ha-Neheragim,” 280–81. 151. Peretz Segal, “ ‘Hiyuv Be-Dinei Shamayim’: Hiyuvei Mitot Beit-Din VeHiyuvei Mitah La-Shamayim” (Ph.D. diss., Hebrew University, 1986); idem, “Postbiblical Jewish Criminal Law and Theology,” Jewish Law Annual 9 (1991): 107–21. 152. Segal, “Postbiblical Jewish Criminal Law,” 108. 153. Lorberbaum, Tselem Elohim, 170–344. 154. Segal, “Postbiblical Jewish Criminal Law,” 118. 155. Ibid., 120. 156. Halbertal, Mahapekhot Parshaniyot; see also my discussion above, 8–9. 157. Halbertal leans toward this possibility for both burning and stoning, though he does discuss Urbach’s theory that the Mishnah’s executions represent ancient traditions (Urbach, “Batei-Din”). Halbertal submits that the Mishnah’s selection of peculiar traditions would still need to be explained, even if Urbach were correct; see Mahapekhot Parshaniyot, 153–4. Halbertal leans even more in this direction regarding strangulation—see his discussion of the question of its history, 157–58. Halbertal concludes that a tradition of strangulation by hanging seems to have existed prior to the Mishnah, but not strangulation as the Mishnah itself prescribes it. 158. Halbertal, Mahapekhot Parshaniyot, 166. 159. Ibid., 167. On this passage of Mishnah, see also David Henshke, “Le-Toldot Midrash Ha-Katuv ‘Qilelat Elohim Talu’i’ beyn Halakhah Kitatit Le-Hazal u-veyn HaMishnah La-Tosefta,” Tarbiz 64 (2000): 507–537. Henshke’s article discusses rabbinic and sectarian interpretations of Deut 21:23 and infers from these interpretations the existence of ancient Jewish debates about the legitimacy of hanging as a method of execution. Henshke could be grouped with the “Israeli Jewish thought” school that I present here. 160. The idea can be traced back also to nineteenth-century German scholars; see Lorberbaum, Tselem Elohim, 173. 161. He thanks Halbertal in his dissertation: “Tselem Elohim: Sifrut Hazal, HaRambam, VeHa-Ramban” (PhD diss., Hebrew University, 1997), 99. The dissertation is the basis for Lorberbaum’s subsequent book. I will cite largely from the dissertation, since there he includes an English language summary that allows me to draw from Lorberbaum’s own formulations. 162. Ibid. 163. Ibid., VIII, English summary. 164. Ibid., IX. 165. Ibid., XIV. 166. Ibid., XIV-XV. 167. Tselem Elohim, 173n11.

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168. “Tselem Elohim,” X. 169. Aharon Shemesh, Onashim Ve-Hata’im Min Ha-Miqra Le-Sifrut Hazal) (Jerusalem: Magnes, 2003). 170. In his conclusion, Shemesh considers to what extent the Mishnah’s editor/s may have intentionally suppressed alternative traditions; see 205–216. The implications of this question, as Shemesh points out, are broad: To what extent did early rabbinic culture sustain and encourage diversity of opinion, given its common characterization as a culture dedicated to mahloqet (debate)? 171. Shemesh, Onashim, 5. 172. Ibid., 205. 173. Devora Steinmetz, “Crimes and Punishments, Part I: Mitot Beit Din as a Reﬂection of Rabbinic Jurisprudence,” JJS 55 (2004):81–101; “Crimes and Punishments, Part II: Noachide Law, Brother-Sister Intercourse, and the Case of Murder,” JJS 55 (2004): 278–305. 174. Moshe Meiselman, “Capital Punishment in Jewish Law,” Gesher 8 (1981): 34. 175. Walter Jacob and Moshe Zemer, eds., Crime and Punishment in Jewish Law (New York: Berghahn Books, 1999), 52. 176. Ibid. 177. David Novak, Covenantal Rights (Princeton: Princeton University Press, 2000), 180. 178. Ibid., 179. 179. Jacob Neusner, A History of the Mishnaic Law of Damages, part 3: Baba Batra, Sanhedrin, Makkot (Leiden: Brill, 1984) 131. 180. Ibid. 181. Ibid. Neusner does claim in the next paragraph that Tractate Sanhedrin has its creative moments: “When ‘Moses’ does not provide information which their scheme of order and substance requires, they do not hesitate to make things up for themselves.” 182. In the earlier statement, the Roman Catholic Church already clariﬁed that the death of Christ “cannot be blamed upon all the Jews then living, without distinction, nor upon the Jews of today.” On these developments, see Randolph L. Braham, “The Vatican: Remembering and Forgetting,” The Vatican and the Holocaust: The Catholic Church and the Jews During the Nazi Era, ed. Randolph L. Braham (New York: The Rosenthal Institute for Holocaust Studies; Columbia University Press, 2000) 13– 46. Braham also discusses criticisms of the Catholic Church for not going far enough in their reconciliation efforts and assertions that this document was an apology for the Church. On the reduction of anti-Semitism in American church teaching since the 1960s, particularly the charge of deicide, see also Judith H. Banki, “The Image of Jews in Christian Teaching,” Essential Papers on Jewish-Christian Relations in the United States, 43–58. For a pessimistic assessment of more recent Christian attitude towards Jews, see Franklin H. Littell, “American Protestantism and Antisemitism,” Essential Papers on Jewish-Christian Relations in the United States, 171–87. 183. Bedau, Death Penalty, 17: “Until recent decades, the death penalty played little or no visible role in American electoral politics. . . . This indifference came to a noticeable end with two major Republican party political campaigns, Richard Nixon’s in 1968 . . . and Ronald Reagan’s in 1972 . . .” 184. b. Sanh. 51b.

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chapter 3 1. Historians dispute the degree of trauma experienced upon the fall of the Second Temple. Baron, for instance, minimizes the signiﬁcance of the event: “On the fall of Jerusalem, Judaism was so integrated a system of action and belief that not even the need to make a new start was to involve it in vital transformation” (Salo W. Baron, A Social and Religious History of the Jews, 2nd ed. [New York: Columbia University Press, 1952], 2:110). Cohen attributes to the Temple’s destruction a greater effect but argues that the transition to a post-temple existence was facilitated by developments within the Judaisms of the Second Temple period (Shaye Cohen, From the Maccabees to the Mishnah [Philadelphia: Westminster, 1987], 218). 2. Baron emphasizes the continued paying of tithes, the restatement of old doctrines of charity, and most of all, prayer: “Prayer was an even more direct and timehonored substitution. . . . Some rituals were now adopted to reinforce the symbolic link between synagogue and Temple” (ibid., 119). See also Lawrence Schiffman, From Text to Tradition: A History of Second Temple and Rabbinic Judaism (Hoboken, N. J.: Ktav, 1991), which has a practical emphasis similar to Baron’s: “. . . many changes occurred in the area of Jewish law and practice. In some cases, Temple-oriented rituals were transferred to the home or synagogue. . . . In the case of Passover, since the Paschal sacriﬁce was no longer possible, the ritual was transformed into a festive Seder meal to take place in the home. . . . The most central aspect of the transition from predestruction to post-destruction times was the change of the center of worship from Temple to Synagogue. This change must be fully understood to grasp the essence of Rabbinic Judaism. . . .” (161–70). See also Gedaliah Alon, The Jews in Their Land in the Talmudic Age, trans. and ed. Gershon Levi (Jerusalem: Magnes, 1980) 1:253–87, for a similar analysis of rabbinic innovations after the Temple’s destruction. 3. Cohen, From the Maccabees to the Mishnah, 219: “There is much scholarly debate and little certainty about the origins and intent of the Mishnah’s laws. All scholars, I think, would agree that some of the laws derive from second temple times, while others are the innovations of the rabbis of the second century c.e.; . . . few laws are attributed to ﬁgures of second temple times. . . .” 4. Ibid. 5. My translation is based on the standard printed ed.; I will footnote signiﬁcant variants from the Kaufmann manuscript, known to be the most important manuscript of the Mishnah: Faksimile-Ausgabe des Mischna Codex Kaufmann, ed. David Kaufmann and Georg Beer (The Hague: M. Nijhoff, 1929; repr. Jerusalem: n.p., 1967), A 50, part 2, 297–98. On the Kaufmann manuscript, see M. Beit-Arie´, “K’Y Kaufmann Shel Ha-Mishnah [Budapest A50]: Motsa’o u-Zemano,” Qovets Ma’amarim Bi-Leshon Hazal 2 (1979–80): 84–99. I will also note important variants from other manuscripts and early printings. On manuscripts of the Mishnah, see Yaakov Sussman, “Kitvei-Yad u-Mesorot-Nusah shel Ha-Mishnah,” 7th World Congress of Jewish Studies 3.(Hebrew) (1981): 215–50; M. Krupp, “Manuscripts of the Mishna,” The Literature of the Sages, ed. Shmuel Safrai (Philadelphia: Fortress, 1987), 1:252–62. 6. Neither the Mishnah nor the Tosefta explains precisely what this structure is. They do discuss its height, the Mishnah describing it as the height of two men, and the Tosefta commenting that the height of the criminal should be added to this measurement rather than included within it (t. Sanh. 9:6, Zuckermandel ed., 429). The preoccupation with height would suggest that the “stoning house” was intended to be not a full-scale building but just a structure or even platform of a certain height, with

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the word beyt (house of ) in this phrase meant to be taken loosely. For further discussion, see below, 242n64. 7. The tenses shift back and forth between past and present within and among all versions of the Mishnah. It is difﬁcult to know what meaning to make of this, whether the tense shifts are due to the vagaries of transmission or to a concerted effort on the part of the authors to chronologically locate this procedure in both the past and present, to attribute it to hoary tradition as well as to claim its contemporary relevance. 8. The Kaufmann manuscript links this sentence with the previous one using the letter vav, though it appears to be added by a later scribe. The original scribe, in the same place, has added the article et, seemingly incorrectly, and the later scribe puts a line through the word. Kaufmann and other early manuscripts (Parma and Paris) quote the verse in a more expanded form: “Take the blasphemer outside the camp.” The abbreviation of later editions makes better sense of the Mishnah, which is not referring to the Israelite camp. I will presently suggest that the tension between the legislation and the prooftext is a fault line within the text that reveals its deeper concerns. 9. Sudarin. Borrowed from the Greek soudarion and the Latin sudarium, though its ending gets confused by transmitters with a Hebrew plural and is then singularized to sudar in some versions and pluralized to sudarim. See the Eliezer Ben-Yehuda dictionary, Milon Ha-Lashon Ha-Ivrit Ha-Yeshanah ve-Ha-Hadashah (London: Yoselof, 1969), s.v. sudar. Marcus Jastrow (typically) associates the word instead with the Hebrew root ts-d-r, (Dictionary of the Targumim, the Talmud Babli and Yerushalmi, and the Midrashic Literature [Peabody, Mass.: Hendrickson, 2005]). 10. Kaufmann and the other early manuscripts eliminate explicit mention of a second person: “and the horse is far enough away . . .” A rider would seem to be implied, however. 11. The manuscripts and printings vary a great deal in their use of articles, e.g., the scarf/a scarf, the horse/a horse, etc. The deﬁnite article gives the procedure a more ritualized feel—the scarf and the horse set apart for this function—but one runs the risk of overreading what may be merely scribal whims. 12. In the Kaufmann manuscript, the ﬁrst mishnah ends here. In most later versions of the Mishnah, the chapter is divided into fewer mishnahs than it is in the early manuscripts: The Kaufmann and Parma manuscripts have twelve mishnahs, with the act of execution taking place squarely in the middle, in Mishnah 6. The Paris manuscript has only eight mishnahs, while the Yemenite manuscript and printed editions have only six. The Kaufmann division has a strong literary impact, but I will use the standard divisions for the convenience of reference. I will use a line space to mark where the Kaufmann manuscript begins a new mishnah. 13. This modiﬁer (the preﬁx kaf) is missing in the early manuscripts. The version with the preﬁx suggests a less precise and perhaps less highly ritualized procedure. 14. Kaufmann has: she-ken derekh ha-mumatin ha-mitvadin (“for this is the manner of those about to be put to death who confess”). This formulation would suggest that there are two groups, those about to be executed who do confess, described here, and those about to be executed who do not confess. The standard printed edition as well as most other manuscripts omit the ha before mitvadin, implying instead that everyone who is executed confesses beforehand. This formulation makes more sense in light of the subsequent rationale given for confession, that it earns for the confes-

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sor a portion in the world to come—the ﬂow of logic seems to be that anyone about to be executed would want to confess. It is possible that the Kaufmann manuscript has this meaning in mind as well. On the other hand, Mishnah 2 describes people who do not know how to confess, implying that not everyone may be able or willing to confess, suggesting that the Kaufmann reading may mean to limit confession to only a select group of convicted criminals. 15. “You do not have calamity brought upon you for the future to come” in Kaufmann and other early versions (la-atid lavo instead of la-olam ha-ba). “World to come” seems to have been replaced “future to come” in order to harmonize this midrash with the beginning of the mishnah that speaks of a “portion in the world to come.” It seems likely that this midrash on the story of Akhan existed separately and was joined together by the editor of the Mishnah with the law of criminal confession. 16. The Paris manuscript has the ﬁrst witness both pushing the criminal and also dropping the stone. If the criminal still has not died, only then does the second witness come and repeat the stone drop: “One of the witnesses pushes him on his hips; if he turns over onto his heart, he ﬂips him over onto his hips. If he dies, he has fulﬁlled his obligation. But if not, he takes the stone and sets it on his heart. If he dies thereby, he has fulﬁlled his obligation. But if not, the second witness takes the stone and sets it on his heart. If he dies thereby, he has fulﬁlled his obligation. But if not, his stoning is by all of Israel . . .” This version is found also in the Naples printing, the Palestinian Talmud’s Mishnah, and in some traditions of the Babylonian Talmud (see n. 9 on b. Sanh. 45a in Raphael Nathan Rabbinovicz, Diqduqei Sofrim/Variae Lectiones, 2 vols. [New York: M. P. Press, 1977]. 17. The Kaufmann manuscript makes this statement declarative: “There was an incident with Shimon ben Shetah who hanged women in Ashqelon.” Rabbi Eliezer’s statement is still intended, at least by the editors of the Mishnah, to challenge the previous legislation. 18. “He blessed” is euphemistic for “he cursed.” The Kaufmann manuscript is explicit: “because he cursed (qilel) the Name.” 19. Most editions of the Mishnah omit the word shekhinah: “When a person suffers, what does the tongue say?” See the listing in Jacob Nahum Epstein, Mavo LeNusah Ha-Mishnah, in Hebrew (Jerusalem: Magnes, 1963) 87. Rabbinovicz consider this word to be a mistake; see Diqduqei Sofrim, n. 60 to b. Sanh. 46a. For a full and up-to-date discussion of the variants of this passage of the Mishnah (i.e., Rabbi Meir’s midrash on Deut 21:23), see David Henshke, “Le-Toldot Midrash Ha-Katuv, ‘Qilelat Elohim Talu’i’ beyn Halakhah Kitatit le-Hazal u-veyn Ha-Mishnah La-Tosefta,” Tarbiz 64 (2000): 507–537, esp. 529–35. 20. The exact meaning of this mishnah, particularly the two expressions of suffering, is difﬁcult to determine, complicated by the existence of many variants. Already in the two talmuds can be found disputes regarding the proper interpretation of this mishnah, followed by responsa in the gaonic period (ca. the end of the sixth century until the eleventh). See Jacob Nahum Epstein, Mavo Le-Nusah Ha-Mishnah, in Hebrew (Jerusalem: Magnes, 1963) 87–88, and Hayim Tsvi Taubes, ed., Otsar HaGeonim Le-Masekhet Sanhedrin (Jerusalem: Mosad Ha-Rav Kook, 1966) 358. See also Aharon Greenbaum, “Bi’urim Le-Qeta Mishnah Ketav-Yad Me-Ha-Genizah Im Niqud Erets-Yisra’eli,” Sefer Ha-Yovel Le-Rabbi Hanokh Albeck (Jerusalem: Mosad Ha-Rav Kook, 1963) 120–22; Hanokh Yalon, “Qalani Me-Roshi Qalani mi-Zero’i,” Alumah 1 (1936): 124–28; Moshe Bernstein, “Ki Qilelat Elohim Talu’i (Deut. 21:23): A Study in Early Jewish Exegesis,” JQR 74 (1984): 21–45. And see Henshke’s discussion, “LeToldot Midrash ha-Katuv,” 528–37.

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21. Both shekhinah and maqom are epithets for God. 22. Kaufmann has instead: “If thus the verse says I suffer over the blood of the wicked,” referring back to Deut 21:23 and portraying God as the ﬁrst-person speaker. The Karlsruhe and Florence manuscripts of b. Sanhedrin and the Naples printing of the Mishnah have a hybrid version: “If thus the Holy One Blessed Be said I suffer over the blood . . .” See Henshke, “Le-Toldot Midrash Ha-Katuv,” for further discussion of variants. 23. The version of this mishnah in Kaufmann, Parma, and Lowe is: “When a person suffers, what does the tongue say? My head is heavy (qaleni); my arm is heavy (qaleni). If thus the verse says I suffer over the blood of the wicked, how much more so over the blood of the righteous that is spilled.” The Paris manuscript is mostly similar. 24. Batei qevarot, though many versions have only qevarot, (see Diqduqei Sofrim on b. Sanh. 46a, n. 90; Krauss, Mishnah Treatise Sanhedrin, 16n12). This difference in terminology may reﬂect two different modes of burial found in rabbinic sources, the former referring to burial buildings, the latter referring to burial in the ground. See the explanation of terms in Joseph Patrich, “Qevurah Rishonah al-Pi Meqorot Hazal— le-Vi’uram Shel Munahim,” Qevarim Ve-Nohagei Qevurah Be-Erets Yisra’el Ba-Et HaAtiqah, ed. Itamar Singer (Jerusalem: Yad Izhak Ben-Zvi; The Israel Exploration Society, 1994) 191–93. 25. The order is awkward, since the couplets of punishments are presented with the more lenient ﬁrst, but within the couplets, the more severe punishment is ﬁrst. The Kaufmann manuscript’s order, which has “one for those executed by stoning and by burning, and one for those executed by decapitation and by strangulation,” works better contextually, following the severe-to-lenient order of execution methods presented at the beginning of the next chapter of Mishnah. See Diqduqei Sofrim on b. Sanh. 46a, n. 100; Krauss, Mishnah Treatise Sanhedrin, 16n13. 26. Bi-meqoman. Also in the Paris manuscript and the Talmuds. The Kaufmann manuscript and others have ba-maqom. One manuscript of the Babylonian Talmud has “in the graves of his fathers,” which I would argue is an emendation based on the Babylonian Talmud’s interpretation. I discuss the signiﬁcance of this word below in chapter 5. 27. The order of witnesses and judges is reversed in Kaufmann and other early manuscripts, but presented this way by the Yemenite manuscript and the Mishnah in the Talmuds. The order would seem to determine whether more emphasis is placed on the judges who give the guilty verdict or the witnesses on whose testimony that verdict is based. 28. The Parma manuscript adds here de’u, “. . . that is to say, you should know that we have nothing . . .” Some versions leave out ke-lomar, “that is to say,” suggesting a direct quotation rather than an explanation of what the relatives recite. 29. The word appears in Kaufmann and other early manuscripts as aninah. 30. J. Z. Smith, in the discussion of his paper in Robert G. Hamerton-Kelly, Violent Origins: Walter Burkert, Rene Girard, and Jonathan Z. Smith on Ritual Killing and Cultural Formation (Stanford: Stanford University Press, 1987), warns scholars of ritual away from the Bible for precisely this reason—that the Bible does not really have any: “. . . I just back away from it, as I do from most biblical material, because we don’t have ritual texts in the Bible. We have very poor ethnographic descriptions. You cannot perform a single biblical ritual on the basis of what is given to you in the text. If you can’t perform it, then by deﬁnition it is not a ritual.” The following chapter is based on the contrast between this lack of ritual in the Bible and the Rabbis’ creation

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of ritual, a contrast that Smith notes: “The rabbis gleefully will supply the lacuna for you, but they don’t know any more than I do on the subject” (210). What Smith probably means by this last comment is that our own reconstructions of biblical ritual might as accurately represent the Bible’s original as the rabbinic reconstructions would. 31. For the history of and possibilities for deﬁning ritual, see Grimes’s introduction and articles by Robbie Davis-Floyd, Richard Hardin, Roy Rappaport, J. Z. Smith, and Stanley Tambiah in Ronald L. Grimes, ed., Readings in Ritual Studies (Upper Saddle River, N.J.: Prentice Hall, 1996). See also Catherine Bell, Ritual Theory, Ritual Practice (New York: Oxford University Press, 1992), 3–68; and idem, Ritual: Perspectives and Dimensions (New York: Oxford University Press, 1997), 138–69. 32. Bell, Ritual Theory, 91–2. 33. Ibid., 90. 34. Ibid., 91. 35. Ibid., 117. 36. E´mile Durkheim, The Elementary Forms of the Religious Life, trans. Joseph Ward Swain (New York: Free Press, 1965) 432: “So everything leads us back to this same idea: before all, rites are means by which the social group reafﬁrms itself periodically. . . . Men who feel themselves united, partially by bonds of blood, but still more by a community of interest and tradition, assemble and become conscious of their moral unity.” 37. See Bell, Ritual Theory, 171–81. 38. See ibid., 171–77. Bell outlines four theses that sprang from Durkheim’s model of ritual: 1. the social solidarity thesis (Robertson Smith, Evans-Pritchard, Fortes, Munn), 2. the channeling of conﬂict thesis (Gluckman, V. Turner), 3. the repression thesis (Girard, Burkert), and 4. the deﬁnition of reality thesis (Geertz, T. Turner, Douglas, Lukes). 39. David I. Kertzer, Ritual, Politics, and Power (New Haven: Yale University Press, 1988) 2. 40. Ibid. 41. Ibid., 5: “To say that a person is clothed with authority is something more than metaphorical. . . . In Kessler’s words, ‘The symbolic is not a residual dimension of purportedly real politics; still less is it an insubstantial screen upon which real issues are cast in pale and passive form. The symbolic is real politics, articulated in a special and often most powerful way.’ ” Along these lines, Cannadine asks: “Is spectacle the handmaid of power, is it the other way round, or is it something altogether more complex and subtle?” (David Cannadine and Simon Price, eds., Rituals of Royalty: Power and Ceremonial in Traditional Societies [Cambridge: Cambridge University Press, 1987], 4). Bell sees in the work of Clifford Geertz, Harold Wechsler, David Cannadine, and Maurice Bloch “a concern to analyze symbols and rites as real, effective, and powerful, not as simply secondary and expressive or as mere ideological tools that brainwash by dint of redundant assertions and group enthusiasm” (Bell, Ritual Theory, 194). 42. Bell, 195. 43. Ibid. 44. Ibid, 83. 45. Ibid., 84. 46. Ibid. 47. Scholars have looked at this play with respect to other rituals of execution. For instance, Spierenburg says of early modern European executions that “although

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the authorities largely controlled the spectacle of suffering, they were not omnipotent. They could not merely pick people off the streets and put them to the scaffold to be whipped or branded. The selection of delinquents to be punished on the scaffold was also determined by general notions of what constituted crime and what appropriate penal options were. Of course these were changing as well. But on the whole they functioned as constraints, setting the limits within which the magistrates could operate” (Pieter Spierenburg, The Spectacle of Suffering: Executions and the Evolution of Repression [New York: Cambridge University Press, 1984], 110). Scholars of Roman rituals of execution in particular have paid close attention to the back-and-forth between the imperial rulers and the crowd; see below, 168–169. 48. Ibid., 211. 49. See Beth Berkowitz, “Negotiating Violence and the Word in Rabbinic Law,” Yale Journal of Law and Humanities, 17 (2005): 125–150. 50. Robert Cover, “Violence and the Word,” in Martha Minow, Michael Ryan, and Austin Sarat, eds., Narrative, Violence, and the Law: The Essays of Robert Cover (Ann Arbor: The University of Michigan Press, 1993) 203. Originally published as: Robert Cover, “Violence and the Word,” Yale Law Journal 95 (1986): 1601–1629. 51. Ibid., 210. 52. Ibid., 204n2. 53. Ibid., 214. 54. Ibid, 230. 55. See my discussion above in chapter 1, 12–17. 56. Cover, “Violence,” 223. 57. Cover, “Violence,” 223 (his italics). 58. Mitchell B. Merback, The Thief, the Cross, and the Wheel: Pain and the Spectacle of Punishment in Medieval and Renaissance Europe (Chicago: University of Chicago Press, 1998) 47. 59. See Tigay on Deut 6:9 (Jeffrey H. Tigay, Deuteronomy [Philadelphia: Jewish Publication Society, 1996] 79. The Targumim read “your gates” here not as the site of execution but as the site of judgment. See discussion in David Weiss Halivni, “The Location of the Bet Din in the Early Tannaitic Period,” Proceedings of the American Academy for Jewish Research 29 (1960): 187–88, and my discussion below. 60. m. Sanh. 6:1. The Palestinian Talmud addresses the conﬂict between the Mishnah and Deuteronomic execution; see y. Sanh. 6:1 (23b). See also the commentary attributed to the Ran (Nissim ben Reuben Gerondi, ?1310–?1375, s.v. matnitin, and the Tosafot, s.v. ki heykhi, on b. Sanh. 42b, and Hayyim Benveniste, Hamra VeHayyei (Jerusalem: Sifra, 1959), 163–69. 61. Hayyim Benveniste asks this question; see Hamra Ve-Hayyei, 164, s.v. sham gemara u-veit ha-sqilah. 62. This last sentence is absent in the Munich, Karlsruhe, and Florence manuscripts, the Soncino printed ed., the commentary of Rabbenu Hananel, and the Yad Ramah. I leave it in my translation because it helps to explain the Talmud’s question. 63. Halivni points out problems in the Babylonian Talmud’s interpretation. First, the discrepancy between the Mishnah’s law and the Mishnah’s verse still stands. Second, according to the Sifra, the court must be inside the camp. The Talmud’s interpretation, on the other hand, hypothesizes that the court might situate itself outside the camp. 64. The word bayit is used in rabbinic literature both literally and metaphorically, for formal structures but also for various kinds of spaces, like those within the body—e.g., beit ha-beliyah (the esophagus, literally, the “house of swallowing”),

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beit ha-shehi (the armpit, literally, the “house of the bend”)—and also to refer metaphorically to women (for discussion of bayit as woman, see Charlotte Elisheva Fonrobert, Menstrual Purity: Rabbinic and Christian Reconstructions of Biblical Gender [Stanford: Stanford University Press, 2000] 40–67; Gail Susan Labovitz, “ ‘My Wife I Called My House’: Marriage, Metaphor, and Discourse of Gender in Rabbinic Literature” (PhD diss., Jewish Theological Seminary, 2002]). In the case of the court house and the stoning house, the word bayit likely refers to some kind of provisional structure. The seating layout of the court is described in m. Sanh. 4:3–4. Though no actual courthouse is mentioned, the elaborateness of the seating suggests some kind of housing structure. On the stoning house, see also above, 237 n6. 65. On Jewish burial customs in the rabbinic period, see David Kraemer, The Meanings of Death in Rabbinic Judaism (New York: Routledge, 2000), 48–71; Nissan Rubin, Qets Ha-Hayim: Tiqsei Qevurah Ve-Evel Bi-Meqorot Hazal (Tel Aviv: Hakkibutz Hameuchad, 1997); Itamar Singer, ed., Qevarim Ve-Nohagei Qevurah Be-Erets Yisra’el Ba-Et Ha-Atiqah (Jerusalem: Yad Izhak ben-Zvi; The Israel Exploration Society, 1994); Gedaliah Alon, “Burial Customs in Early Israel,” (Hebrew), Bulletin of the Jewish Palestine Exploration Society 9 (1941): 107–112. For earlier Jewish practices, see Elizabeth Bloch-Smith, Judahite Burial Practices and Beliefs About the Dead (Shefﬁeld: Shefﬁeld Academic Press, 1992). For Roman practices, see J.M.C. Toynbee, Death and Burial in the Roman World (Ithaca, N.Y.: Cornell University Press, 1985), and Keith Hopkins, Death and Renewal: Sociological Studies in Roman History (New York: Cambridge University Press, 1983). And see below, chapter 5, 127–142. 66. The Mishnah’s neglect of Deuteronomy can also be explained hermeneutically: Halivni suggests that the Mishnah follows the readings of Deuteronomy found in the Targum and Midrash Tannaim, “that when Scriptures says ‘your gates’ it means that the idol worshiper and adulterer are brought to the court to hear their sentence, and not to be stoned either at the gate of the court or at the gate of the city.” These verses in Deuteronomy, according to this reading, are referring not to the site of execution but to the site of judgment. The Mishnah, when it directs the execution to take place outside the court, is in fact incorporating these Deuteronomic verses which equate the place of judgment with the city’s gates. Halivni concludes that this Mishnah, which assumes an ancient identity between court and city gates, must itself date to ancient times. 67. Rashi and the Meiri, important medieval Talmud commentators, diverge in their interpretation of the Mishnah on this point: According to Rashi, the Mishnah permits any of the judges to argue on the convicted person’s behalf, while according to the Meiri the Mishnah permits anyone in the community to do so. See Benveniste’s discussion of their positions, where he asks why the ﬂag-waver does not just stand on high so that the horse-rider would not be necessary: Benveniste, 162–63, s.v. matnitin ve-ha-sus. 68. On ritual failure, see “Ritual and Social Change: A Javanese Example,” in Clifford Geertz, The Interpretation of Cultures: Selected Essays (New York: Basic Books, 1973), 142–69. Contrast Geertz’s Javanese funeral gone awry with this ritual, where failure is part of the ritual. 69. Michel Foucault, Discipline and Punish: The Birth of the Prison, trans. Alan Sheridan (New York: Vintage, 1995), 10. 70. Louis Masur, Rites of Execution: Capital Punishment and the Transformation of American Culture, 1776–1865 (New York: Oxford University Press, 1989), 20.

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71. Cover, “Violence and the Word,” 229, 234 (his italics). Spierenburg writes similarly of late medieval/early modern European executions: “The highest authority did not associate itself directly with violent death on the scaffold” (Spierenburg, Spectacle of Suffering, 54). The distance of the judges from the execution is found in a description of a ceremony of execution in Amsterdam, in a manuscript ca. 1660 by Hans Bontemantel treating Amsterdam’s government. According to his description, “the magistrates come into the justice-room once again and kneel in prayer, together with the prisoners and the preacher. After this they return to the windows and watch the sentences being executed” (Spierenburg, Spectacle of Suffering, 46–47). The judges here are both distanced as well as linked to the execution—they remain near the execution, watching it, but from a window. I will discuss the combination of distancing and linking below. An execution similar to the one described by Bontemantel can be found pictorially in a woodcut printed in Paris in 1541. See Merback’s reproduction and description: “The judges and magistrates, their work now done, have withdrawn from the scene and taken up positions in ﬁrst-ﬂoor windows” (Thief, 142). 72. This is emphasized particularly in commentaries on the Babylonian Talmud’s pericope dealing with the dropping of the stone—see my discussion of the witnesses below, chapter 4, 120–26. 73. Kertzer, Ritual, Politics, and Power, 133. 74. Smith quotes one Missouri ofﬁcial giving a similar interpretation of Missouri’s lethal injection machine, whose advantage the ofﬁcial claims is to “spread out the responsibility” (Brian K. Smith, “Capital Punishment and Human Sacriﬁce,” JAAR 68 [2000]: 10n6). Foucault also talks about the dispersal of responsibility: “Smallscale legal systems and parallel judges have multiplied around the principal judgment: psychiatric or psychological experts, magistrates concerned with the implementation of sentences, educationalists, members of the prison service, all fragment the legal power to punish” (Discipline and Punish, 21). 75. Moshe Meiselman, “Capital Punishment in Jewish Law,” Gesher 8 (1981): 26. 76. Smith, “Capital Punishment,” 11: “Indeed, ritualized death is made to appear as unlike killing in the extra-ritual world as possible.” Smith describes, for instance, a phenomenon of medicalizing the execution so that pain and torture are eliminated. On the technical difﬁculties that nevertheless do happen in American executions— e.g., the criminal is not killed immediately because of a glitch or the executioner is himself endangered by the execution method—see the documentary ﬁlm, Mr. Death: The Rise and Fall of Fred A. Leuchter, Jr., dir. Errol Morris (Lions Gate Films, 1999) about a designer of execution equipment (who was eventually co-opted by the Holocaust denial movement). See Foucault also on botched executions, Discipline and Punish, 51–3. 77. Austin Sarat, When the State Kills: Capital Punishment and the American Condition (Princeton: Princeton University Press, 2001), 65. 78. Ibid., 124. 79. For a systematic analysis of the tannaitic laws of homicide, see Jonah Ostrow, “Tannaitic and Roman Procedure in Homicide,” JQR, n.s., 48 (1957–58): 352–70; JQR, n.s., 52 (1961–62): 160–67, 245–63. A study of the laws of homicide in the biblical period is provided by Pamela Barmash, Homicide in the Biblical World (Cambridge: Cambridge University Press, 2005). 80. Bell, Ritual Theory, 195. 81. Cover, “Violence and the Word,” 235 (my italics). 82. Ibid., 214.

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83. See discussion of authority in Bruce Lincoln, Authority: Construction and Corrosion (Chicago: University of Chicago Press, 1994). 84. Self-restraint can be crucial for maintaining authority: Spierenburg writes of authorities in smaller towns and rural areas that they “were often reluctant to set the apparatus of repression in motion. They had to live with the population afterwards. In quiet times they had no police force at their disposal and therefore were more inclined towards a policy of appeasement” (Spierenburg, Spectacle of Suffering, 102–103). 85. The medieval commentators implicitly address this question. In his commentary on the Mishnah, Maimonides seems to fuse the two reasons together: “The reason that the stoning house was outside the court house is so that the judges will not seem to have determination to kill, and that while they are still walking him to the stoning house it is possible that someone will come and argue for his acquittal.” The Meiri (and the Ra’avad on Sifra Emor 19) simply omits the Talmud’s ﬁrst reason, probably because it is so closely related to the second reason that it requires no mention of its own. 86. Smith suggests that the agency of the capitally convicted criminal has been unjustly ignored: “. . . social theory has shown little sensitivity to the role of agency in punishment rituals and the historically, subculturally and individually speciﬁc negotiated meanings which attended to the cultural, signifying aspects of punishment. . . . Perhaps this explains an empirical oversight regarding the powers of action available to execution victims as opposed to state actors” (Philip Smith, “Executing Executions: Aesthetics, Identity, and the Problematic Narratives of Capital Punishment Ritual,” Theory and Society 25 [1996]: 235–64). Smith describes two ways in which the criminal can resist the meaning imposed by the state and church: the “deviant performance” and the “pious performance.” The deviant criminal turns the execution into farce, and the repentant criminal turns the execution into tragedy. Merback similarly describes medieval European executions as a struggle between groups: “Each group expected the ritual of punishment to transmit a narrative of its own aspirations both to itself and to the others; and these narratives often vied for supremacy in the dramaturgy of the state executions” (Thief, 137). 87. Hayyim Benveniste explains that “four or ﬁve times” in rabbinic texts means “many times.” Benveniste also raises the possibility that Maimonides may hold that the phrase “even four or ﬁve times” refers not only to the criminal but also to anyone who argues for his acquittal, but Benveniste rejects it; see Hamra Ve-Hayyei, 163, s.v. sham ve-aﬁlu. 88. On b. Sanh. 43a, Abaye (a late third-century rabbi) supplies two sages, a zoga de-rabbanan, who make this determination. 89. From the Greek ke¯ryx, “herald” (see s.v. Ben-Yehudah). Ben-Yehudah lists this Mishnah under his entry for k-r-v-z, where he reads the word as an inﬁnitive absolute, kharoz—“a person who announces things to inform the public; a public crier; a herald.” (Krauss takes the same linguistic approach as Jastrow; see Mishnah Treatise Sanhedrin, 57.) Jastrow reads the word as a passive participle, referring to an announcement rather than an announcer: “the kheruz goes out before him. . . .” Both forms can be supported by the context—the active qal verb yotse which follows suggests a town crier rather than an announcement, yet the Mishnah does not include any verb of announcing before it give the text of the announcement. I follow BenYehudah’s reading. 90. In the baraita about Jesus on b. Sanh. 43a, the herald goes forth forty days before the execution. In contrast, the Mishnah’s structure and syntax suggest to me a herald that participates in the execution itself.

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91. The Meiri (Menahem ben Solomon, 1249–1316), noticing that the Mishnah does not articulate any consequences for the herald’s announcement, adds them to the sequence: “And the herald goes out before the one who went out from the court . . . and if one said I can argue for acquittal, we take him back the way that we explained, and if they do not ﬁnd him innocent they take him out until he is ten cubits . . .” (Beit Ha-Behirah Ha-Shalem al Masekhet Sanhedrin, ed. Yitshak Ralbag (Jerusalem: n.p., 1970 or 1971) 145). 92. b. Sanh. 43a: “Abaye said: And one must say: ‘On day such-and-such, and at hour such-and-such,’ and in place such-and-such,’ lest there be those who know [that the testimony is false] and they will come and call them (the ﬁrst witnesses) into question.” Abaye adds to the Mishnah: (1) day, (2) hour, and (3) place. In his commentary on Abaye’s statement, Rashi clariﬁes that these elements are intended to add to the Mishnah’s content rather than to substitute for it. 93. I refer to heralds speciﬁcally in the rabbinic context of punishment, since heralds are also found in many other contexts, though much more frequently in amoraic texts than in tannaitic ones. In the Mishnah one ﬁnds the character of Gevini Karoz, the ofﬁcial “muezzin” for the Temple, mentioned in m. Sheq. 5:1 and m. Tamid 3:8 (and in b. Zev. 21b and b. Tamid 30b); heralds can also be found in y. B. Mets’ia 2: 5 (8c); b. Yev. 36a, 41b, 119b. 94. Variants have “she gathered and she ate” instead of “she stole.” Theft is somewhat strange here, since the crime is then ambiguous: Is it that she stole someone else’s possession or that she ate something forbidden? I read this ambiguity as intentional, as an attempt on the part of the midrash to trivialize her sin: She stole something that no one could eat anyway! On the other hand, as Fraade points out, m. Sanh. 3:3’s prohibition on selling the produce of the seventh year suggests that perhaps the woman in this parable was committing that crime: Steven D. Fraade, “Sifre Deuteronomy 26 (Ad Deut. 3:23): How Conscious the Composition?” Hebrew Union College Annual 54 (1983): 277n87. See nn 96 and 97 below for further discussion of her sin. 95. Sifre Numbers 137 (Horovitz ed., p. 183–4). Parallels appear in Sifre Deuteronomy 26 (Finkelstein ed., 36–37); Sifre Zuta on 27:14 (Horovitz ed., 319); b. Yoma 86b; b. Sanh. 107a; Numbers Rabbah 19:12, and other parallels mentioned by Saul Lieberman, Greek in Jewish Palestine/Hellenism in Jewish Palestine (New York: The Jewish Theological Seminary of America, 1994), 162n7. Parallels also listed in Finkelstein, 36, n. 2, and Fraade, “Sifre Deuteronomy 26,” 271n62, where he also discusses the relative chronology of the parallels (on chronology, see also 275n81, and 276n85). See Fraade, 271–77, for a comparison of the textual parallels. 96. On the deﬁnition and dynamics of the rabbinic parable, or mashal, see David Stern, Parables in Midrash: Narrative and Exegesis in Rabbinic Literature (Cambridge: Harvard University Press, 1991). 97. See m. Shev. 2:5 and 4:7, the latter of which legislates that unripe ﬁgs (pagim, the term used in this midrash) in the sabbatical year can be eaten only once when they redden, and only then in the ﬁeld, and cannot be taken home for consumption until they have fully begun to ripen. The Sifra links this legislation to Lev 25:7 (Weiss ed., 106c). The Mishnah makes clear the relative insigniﬁcance of the woman’s transgression, since the pagim that she took are partially permitted. See Fraade’s discussion of this sin and other texts relevant to it: Fraade, “Sifre Deuteronomy 26,” 264n45. 98. See Satlow’s discussion of this text regarding the practice of public shaming for adultery: Michael Satlow, Tasting the Dish: Rabbinic Rhetorics of Sexuality (Atlanta:

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Scholars Press) 173–74. Lieberman interprets the theft of the unripe ﬁgs in this narrative as a ﬁgurative expression for an unmarried woman having sex or a betrothed woman having sex with her betrothed before the marriage has been completed (Lieberman, Greek, 163). Sperber follows Lieberman and explains the unripe ﬁgs as a reference to ancient Greek scapegoating rituals (Daniel Sperber, Magic and Folklore in Rabbinic Literature [Ramat Gan, Israel: Bar Ilan University Press, 1994), 134–36]. This reading has its problems. The woman in the story asks to wear the ﬁgs as a way of differentiating her sin from that of the adulterer—the story thus presumes that their crimes are very far apart in scale. Lieberman’s reading makes the sins seem quite similar, however. Moreover, the parallel to Moses and David is tighter if the ﬁrst woman committed a trivial sin, as Moses did in hitting the rock, while the second woman committed adultery, as David arguably did with Batsheva. See discussion by Fraade, “Sifre Deuteronomy 26,” 274n74. 99. Charles’s translation. 100. See also the parallel in 1 Macc 1:61. Fourth Maccabees 6:1–5 speaks explicitly of a herald, though not as part of a public procession to the site of punishment but as part of the punishment itself: “But when Eleazar replied thus eloquently to the exhortations of the tyrant, the guards around him dragged him roughly to the torturing place. And ﬁrst they unclothed the old man, who was adorned with the beauty of holiness. Then binding his arms on either side they scourged him, a herald (ke¯ryx) standing and shouting out over against him, Obey the orders of the king. But the great-souled and noble man, an Eleazar in very truth . . .” 101. Another such device is the blaring of trumpets: “Another—Publius Marcius— was executed by the consuls outside the Esquiline Gate according to ancient usage and at sound of trumpet (cum classicum canere).” From Tacitus, Annals 2.32 (LCL, 3. 431), describing a series of executions in Rome, sponsored by Tiberius, of astrologers and magicians. The “titulus” is another publicizing device, “an inscription written on wood, which stated the defendant’s name and the crime for which he had been condemned” (Tzaferis, “Cruciﬁxion,” 49; see also Ernst Bammel, “The Titulus,” in Jesus and the Politics of His Day, ed. E. Bammel and C. Moule [New York: Cambridge University Press, 1984], 353–64). 102. Richard A. Bauman, Crime and Punishment in Ancient Rome (New York: Routledge, 1996) 94. For medieval heralds of execution, see, for instance, Esther Cohen, “Symbols of Culpability and the Universal Language of Justice: The Ritual of Public Executions in Late Medieval Europe,” History of European Ideas 11 (1989): 407: “At each crossroads the procession halted, and the herald read aloud their crimes. Everytime the condemned assented to this list with words and gestures, and then the procession went on.” 103. For further discussion of this text, see below, 109–111. 104. Richard Evans, Rituals of Retribution: Capital Punishment in Germany, 1600– 1987 (New York: Oxford University Press, 1996) 71. 105. Cover, “Violence and the Word,” 231. 106. Ibid. 107. The Maharsha (Samuel Eliezer ben Judah ha-Levi, 1555–1631, a Talmud commentator) raises this question on the Mishnah: “And from where do we know that his confession effects atonement? I can say that it was the death of Akhan that effected his atonement and not his confession.” See s.v. ve-iy atah akhur. Hayyim Benveniste also raises this question; see Hamra Ve-Hayyei, 175, s.v. sham matnitin omrim. 108. See parallel in m. Yoma 8:8, and Kraemer’s discussion, Meanings, 40.

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109. See the commentary of Tiferet Yisrael on the Mishnah: “that is to say, only when he confesses does he have a portion in the world to come. . . .” 110. See Kraemer’s argument, Meanings, 35. 111. See Hanokh Albeck’s note, Shishah Sidrei Mishnah, vol. Seder Neziqin (Jerusalem: Bialik Institute, 1952–59), 447. 112. A baraita in the Babylonian Talmud tells that the criminal was administered an anesthetizing drink precisely for the purpose of scrambling his wits; see b. Sanh. 43a and my discussion below, chapter 4, 119 (see also the anonymous redactor’s comment on b. Sanh. 43a that the criminal may be so afraid as to be rendered inarticulate). 113. See especially James A. Sharpe, “Last Dying Speeches: Religion, Ideology and Public Execution in Seventeenth-Century England,” Past and Present 107 (1985): 144–67, and Esther Cohen, “ ‘To Die a Criminal for the Public Good’: The Execution Ritual in Late Medieval Paris,” Law, Custom, and the Social Fabric in Medieval Europe: Essays in Honor of Bruce Lyon, ed. Bernard S. Bachrach and David Nicholas (Kalamazoo, Mich.: Medieval Institute Publications, Western Michigan University, 1990), 285– 304; see also Masur, Rites of Execution, 41–45; Evans, Rituals of Retribution, 77–86, 150– 90; Foucault, Discipline and Punish, 43–44, 65–69; Spierenburg, Spectacle of Suffering, 53, 58, 95; Merback, Thief, 147–50. 114. Sharpe, “Last Dying Speeches,” 57. 115. Quoted in Sharpe, “Last Dying Speeches,” 152n31, from Henry Goodcole, True Declaration of the Happy Conversion, Contrition, and Christian Preparation of Francis Robinson. 116. Spierenburg, Spectacle of Suffering, 59. 117. Carlin Barton, The Sorrows of the Ancient Romans: The Gladiator and the Monster (Princeton: Princeton University Press, 1993), 14. 118. In all these cases, like in the Mishnah, the authority that commands the execution also commands or encourages the criminal’s confession. In Tudor England, “the authorities actively encouraged the condemned to address himself to the public with a moralistic story, explaining how he had sinned and deserved his punishment.” Sometimes, however, by the same token, the convict was denied this right out of fear of what he might say (Spierenburg, Spectacle of Suffering, 63). 119. Bell, Ritual Theory, 108–109. 120. See Kraemer’s discussion of the desocializing function of nakedness, Meanings, 25, with respect to the mourners’ practice of rending their clothes. 121. Authority, 8. 122. The early scholarly view of the nineteenth century was a maximalist one, that the Rabbis had total dominance. Erwin Goodenough, in his work on Jewish symbols, went to the other extreme, arguing that the Rabbis had little standing within the Jewish world of late antiquity. See chapter 1 above for further discussion, 6–7. 123. Both the Palestinian and Babylonian Talmuds make a comparison between execution and the Sotah ritual; see y. Sanh. 6:4 (23c) and parallel in y. Sotah 1:5 (17a); b. Sanh. 45a and parallel in b. Sotah 8a-b. For discussion of these texts, see Moshe Assis, “Qeta Shel Yerushalmi Sanhedrin,” Tarbiz 46 (1976): 79–80. 124. m. Sotah 1:6. 125. Epstein notes that Mishnah Tractate Sanhedrin is replete with midrashic interpolations; see Jacob Nahum Epstein, Mevo’ot Le-Sifrut Ha-Tannaim; Mishna, Tosephta Ve-Midreshei Halakhah (Jerusalem: Magnes, 1957), 418–19. 126. Tannaitic midrash also anchors the general law in Deut 21:23’s treatment of

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hanging criminals: see Sifre Deuteronomy 221 (Finkelstein ed., 254); b. Sanh. 46b; and commentary by Mordekhai Sabato, Ketav-Yad Temani Le-Masekhet Sanhedrin (Bavli) uMeqomo Be-Masoret Ha-Nusah (Jerusalem: Hebrew University; Yad Izhak ben-Tsvi, 1996), 136–37, 242. See also Epstein, Mevo’ot Le-Sifrut Ha-Tannaim; Mishna, Tosephta Ve-Midreshei Halakhah, 155. 127. The Babylonian Talmud’s commentary on this Mishnah (b. Sanh. 46b-48b) is a major source for Jewish laws of burial, including such matters as the timing of burial, the burial site, and the eulogy. See Kraemer’s discussion of these passages, Meanings, 97–98, 103–105. 128. See Rene´ Girard, Violence and the Sacred, trans. Patrick Gregory (Baltimore, Md.: Johns Hopkins University Press, 1972); for summary of Girard’s argument and further development, see Hamerton-Kelly, Violent Origins, introduction by Burton Mack, 6–22, and Girard’s paper and discussion, 73–148. 129. James McBride, “Capital Punishment as the Unconstitutional Establishment of Religion: A Girardian Reading of the Death Penalty,” Journal of Church and State 37 (1995): 271, 275. 130. Barton, Sorrows, 66. 131. Evans, Rituals of Retribution, 83. 132. Wendy Lesser, Pictures at an Execution (Cambridge: Harvard University Press, 1993), 51. 133. Smith, “Capital Punishment and Human Sacriﬁce,” 13. Masur gives similar statistics for American executions 150 years earlier: “Former soldiers, foreigners, and other ‘outsiders’ were most likely to be hanged. Town leaders perceived and presented members of these groups as invaders who infested and corrupted otherwise virtuous communities” (Rites of Execution, 38). On the marginality of criminals and its signiﬁcance to the success of the scapegoating, see also McBride, “Capital Punishment,” 271. 134. Lesser, Pictures at an Execution, 88. 135. See Kraemer, Meanings, 27n12. 136. Ibid. 137. Compare Johnson’s description of a contemporary American execution, where the ﬁnal period of the deathwatch “takes on a distinctively funereal ambiance. The ofﬁcers are quiet, moving about gingerly so as not to disturb the prisoner. One might say they behave much like attendants at a wake or funeral. . . . They speak in hushed tones, as though they were visiting a grave” (Robert Johnson, Death Work: A Study of the Modern Execution Process, 2nd ed. [Belmont, Calif.: Wadsworth, 1998], 153– 54). In medieval Germany, a wand would be cast down at the convict’s feet as the death sentence was being read; the wand would break into bits, signaling the “moment of civil death for the prisoner” (Evans, Rituals of Retribution, 138). Criminal execution’s reworking of a normal funeral mutes the agency of the court in yet another way, since the court seems to be killing a man who for all intents and purposes is already dead. 138. Rituals of Retribution, 101. 139. For efforts to explain God’s punishment of Akhan’s family, see Joel S. Kaminsky, “Joshua 7: A Reassessment of Israelite Conceptions of Corporate Punishment,” in The Pitcher is Broken: Memorial Essays for Go¨sta W. Ahlstro¨m, ed. Steven W. Holloway and Lowell K. Handy (Shefﬁeld: Shefﬁeld Academic Press, 1995), 315–46; and R. E. Clements, “Achan’s Sin: Warfare and Holiness,” in Shall Not the Judge of All the Earth Do What Is Right? Studies on the Nature of God in Tribute to James L. Crenshaw, ed. David Penchansky and Paul L. Redditt (Winona Lake, Ind.: Eisenbrauns,

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2000), 113–26. On the ambiguity regarding who or what exactly is stoned and/or burned, see Kaminsky, “Joshua 7,” 319n13. 140. On the name of the place, see Kaminsky, “Joshua 7,” 315n2. 141. Hayyim Benveniste, responding to the question of how the Mishnah can use Akhan as a model for everyone, also attributes to the Mishnah an a fortiori logic; see Hamra Ve-Hayyei, 175, s.v. sham matnitin omrim. 142. The Maharsha reads this portion of the Mishnah as referring not to capital criminals but rather to those dying a natural death who do not know how to confess; see s.v. a”l hitvadeh. 143. The context in Avot is striking. The teaching about repentance is juxtaposed with an injunction to adhere to the rabbinic sages: “One should warm oneself by the ﬁre of the Sages.” A violent warning accompanies the injunction: “their bite is the bite of a fox, and their sting is the sting of a scorpion . . .” Themes of repentance, death, violence, and rabbinic authority intermingle in Avot as they do here in Sanhedrin. 144. Merback, Thief, 144. 145. Masur, Rites of Execution, 43n45. 146. Ibid. 147. Merback, Thief, 143–44, who draws a conclusion similar to Sharpe, Evans, and Masur. 148. Masur, Rites of Execution, 42n42 (italics in original). 149. Bell, Ritual Theory, 184. 150. Ibid., 106. 151. In an interesting parallel, Raviv argues that Mishnah Tractate Sanhedrin functions as an encapsulation of the entire corpus of Mishnah, in much the same way that Deuteronomy functions as repetition and summary of the previous books of the Pentateuch. He also sees Mishnah Sanhedrin and the book of Deuteronomy as primarily concerned with questions of authority; see Daniel Raviv, “Analysis of Midrashic Passages in Mishna Sanhedrin” (PhD diss., Bar Ilan University, 1998). 152. Bell, Ritual Theory, 106. 153. Ibid., 107. This approach to ritual—that its meaning cannot be isolated from other cultural practices—is found also in the work of Maurice Bloch, to whom Bell frequently refers. See Bloch’s “The Royal Bath in Madagascar” as an example, where he reads the royal bath ritual in light of each household’s ritual and vice versa: “When we follow the various acts of the ritual through we see not only how the ritual parallels others but also how it uses the symbolism of other rituals to create the uniqueness of the royal construction” (in Cannadine and Price, Rituals of Royalty, 294).

chapter 4 1. Erik Gunderson, “The Ideology of the Arena,” Classical Antiquity 15 (1996): 113–51. 2. Philip Smith, “Executing Executions: Aesthetics, Identity, and the Problematic Narratives of Capital Punishment Ritual,” Theory and Society 25 (1996): 236. 3. I am looking only at rabbinic innovations and continuities with respect to the Bible, since the Bible is what the Rabbis explicitly address. A separate project would be to examine the relationship between rabbinic criminal law and various post-biblical Jewish legal developments such as those of Philo, Josephus, the New Testament, or Qumran.

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4. The blood-avenger appears in both biblical law and biblical narrative, e.g., Num 35; Deut 19; Josh 20; 2 Sam 14:11; 2 Sam 21:1–9. See also Judg 8:18–21; 2 Sam 3: 27, 4:11–12; 2 Kgs 9:26. The translation and conceptualization of the Bible’s term, go’el ha-dam, is disputed, with de Vaux suggesting that the role is primarily one of offering protection, and Daube arguing that it is one of recovery, getting back a person or object that has been lost. See Roland de Vaux, Studies in Old Testament Sacriﬁce (Cardiff, Wales: University of Wales Press, 1964) 69–70, 73–74; idem, Ancient Israel: Its Life and Institutions, trans. John McHugh (Grand Rapids: Eerdmans, 1997), 21; David Daube, The Exodus Pattern in the Bible (London: Faber and Faber, 1963), 28; and idem, Studies in Biblical Law (Oxford: Clarendon, 1947) 40; see also the discussion of the term (which follows Daube) in Pamela Barmash, Homicide in the Biblical World (Cambridge: Cambridge University Press, 2005): 50–52, where she considers the question of whether the blood-avenger might not have been a relative of the victim (she concludes that he would have been). 5. See Moshe Greenberg, “Avenger of Blood,” Interpreter’s Dictionary of the Bible, (New York: Abingdon, 1962), 1:32. See also Roland de Vaux, Ancient Israel, 10–12, where he locates his discussion of blood-vengeance in a section describing “Nomadism and Its Survival” in the Bible. I will be following the scholarly consensus that the blood-avenger is a relative of the victim; see Barmash, Homicide, 50–52. 6. See De Vaux, Ancient Israel, 160. While acknowledging some continuity between the pre-biblical and biblical practices of vengeance, de Vaux points out the Bible’s modiﬁcations to the earlier system, which was characterized by vengeance on the collective level, kin-group against kin-group, as seen in the story of the Gibeonites’ execution of Saul’s sons in 2 Sam 21:1–14; see also de Vaux, Studies, 68. Biblical law alters this system by limiting vengeance to action by an individual against an individual as well as distinguishing between intentional and accidental murder, according to de Vaux, Studies, 69. Greenberg emphasizes the discontinuities more so than does de Vaux, arguing that they stem from a humanitarian concern for the application of justice to private cases of dispute; see Moshe Greenberg, “The Biblical Conception of Asylum,” JBL 78 (1959): 125. See also idem, “Some Postulates of Biblical Criminal Law,” Studies in the Bible and Jewish Thought (Philadelphia: Jewish Publication Society, 1995) 30–34, where Greenberg argues that the Bible, which prohibits the blood-avenger from accepting compensation for an intentional murder, has a fundamentally different approach to homicide than other ancient Near Eastern law collections, which do allow for pecuniary compensation. 7. The term “book of the covenant” is used in Exod 24:7 and is considered by scholars to refer to Exod 20:23–23:19. For a general introduction to biblical law, see Dale Patrick, Old Testament Law (Atlanta: John Knox, 1985). 8. On the “assembly,” see Jacob Milgrom, Numbers (Philadelphia: The Jewish Publication Society, 1989), 292, and Excursus 1. See also Barmash, Homicide, 88–89. 9. According to the nineteenth-century scholarship represented by Wellhausen, Exodus represents the earliest stratum of the biblical laws of homicide, with a Deuteronomic reform coming later to localize the places of refuge, and ﬁnally the priestly source afﬁrming Deuteronomy’s arrangement and making it more speciﬁc (Julius Wellhausen, Prolegomena to the History of Israel [1885; repr., Atlanta: Scholars Press, 1994], 33, 162, 375; and see summary in Barmash, Homicide, 71–72). Against this position, Greenberg argues that the blood vengeance of the Numbers text, representing the multiplicity of local priesthoods in pre-Josianic conditions, predates Deuteronomy’s secularized blood-vengeance; see Greenberg, “The Biblical Conception of Asylum.” Agreeing with Greenberg’s reconstruction of Deuteronomy’s adaptation of

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priestly asylum cities, Milgrom deals primarily with the relationship between Exodus’s altar of asylum and Numbers’ cities (Numbers, Excursus 75, 504–509). Calum Carmichael plots out the revisions within Deuteronomy itself: Deut 19’s prescription for land division revises the legal language of Deut 12–13, but has its roots in the narrative’s concern for the conquest of the land in chapters 1–4, particularly 4:41–3. Carmichael also argues for the inﬂuence of the laws of Exod 21:12–14 on Deut 19; see Calum M. Carmichael, The Laws of Deuteronomy (Ithaca, N.Y.: Cornell University Press, 1974), 111–12. 10. Greenberg emphasizes Deuteronomy’s restrictions on the blood-avenger: “Deut. 19:12f. has entirely replaced the right of the kinsman to dispose as he wishes of the murderer with the unconditional death penalty. True, the avenger is the executioner, but he has no say in the sentence; once the man has been convicted of murder the matter is out of his hands” (“Biblical Conception,” 128–9). See also Gerhard von Rad, Deuteronomy: A Commentary, trans. Dorothea Barton (Philadelphia: Westminster, 1966), 127–28. 11. A discrepancy exists between Deuteronomy’s insertion of a judicial body and Numbers’ similar insertion: Numbers 35:25 makes clear that the judges conduct the trial somewhere outside the city of refuge, while Deut 19:11–12 implies that the trial takes place within the city; see Milgrom’s comments, Numbers, 292. 12. Barmash argues that in biblical law the “victim’s family assumed primary responsibility for ensuring that the slayer was held accountable for his offense” (Homicide, 23). And later: “In all the legal sources, the avenger, go ‘el ha-dam, acted as executioner” (Homicide, 25). 13. See Barmash’s cross-reading of the narrative of Cain and Abel with the biblical law of homicide, where she argues, along these lines, that the Bible tends towards protecting murderers (Homicide, 12–19). 14. Pieter Spierenburg, The Spectacle of Suffering: Executions and the Evolution of Repression (New York: Cambridge University Press, 1984), 4–10. 15. Scholars are skeptical that there ever really existed an originary state of lawlessness in which vengeance would have been freely practiced. See, for instance, Westbrook: “The situation described is that which existed before the rule of law but it is not evidence of real historical development. If such a stage of lawlessness ever existed, it is lost in the realms of pre-history” (Raymond Westbrook, Studies in Biblical and Cuneiform Law [Paris: J. Gabalda, 1988], 46). See Barmash’s discussion, Homicide, 24n8. 16. Sifre Numbers 160 (Horovitz ed., 216); parallel on b. Mak. 12a, and loose parallels in Mekhilta Misphatim 4 (Horovitz-Rabin ed., 261), and t. Mak. 3:6–7. 17. The redactor of b. Mak. 12a construes this baraita (which is quoted in the name of Rabbi Eliezer) differently in order to use it as tannaitic support for a teaching of the Amora Rav. According to this reading, the midrash suggests that one might think that the blood-avenger can summarily kill the accidental homicide who escapes the city of refuge, but in fact, v. 12 comes to teach that the escaped killer must be tried in court beforehand—a second time! If this reading is correct, the midrash is making a substantive legal innovation; it is instituting a secondary judicial procedure for the manslayer who has ﬂed the city of refuge. In this case, the midrash is judicializing well beyond the Bible, adding court trials that would barely seem to have any purpose (the manslayer’s act has already been judicially deﬁned in the ﬁrst trial). On the problems of this reading, see the Rashash (Samuel ben Joseph Strashun, 1794– 1872, Vilna) on b. Mak. 12a. I thank Devora Steinmetz for discussing this text with me.

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18. Sifre Numbers 161 (Horovitz ed., 221). 19. In the version that Horovitz prefers, appearing in the Tosfot Shontz on b. Mak. 10b, the juxtaposed verse is not v. 27 but v. 19, which lays out the general requirement for the blood-avenger to kill the murderer. Both versions work the same way by reading the other verse in isolation from its context, supposing that it calls for vengeance without judicial review. See Horovitz, Sifre, 221n3. 20. Similar features can be found in Mekhilta Mishpatim 4 (Horovitz-Rabin ed., 261), where Exod 21:12’s general requirement for the punishment of homicide is crossread with Num 35:12’s requirement for judicial review, thereby emphasizing Numbers’s judicialization. 21. Zuckermandel ed., 441. 22. Another tannaitic source could be discussed in this context, found in y. Sanh. 3:9 (21c) and its parallel pericope, y. Shev. 4:1 (35b), where Rabbi Yosi responds to the legal position that relatives of the injured party may act as judges, objecting that the court would then consist of blood-avengers. The blood-avenger here is subordinated to and excluded from the rabbinic judicial process. 23. In conjunction with placing the actions of the avenger under judicial constraint, the Tannaim also protect the manslayer in other ways, such as guaranteeing that there are enough cities of refuge, that these cities have adequate water, that they not host businesses that might attract the blood-avenger, and that they have enough people living in them to make life viable for the manslayer; see Sifre Numbers, 159, t. Mak. 3:8–9, b. Mak. 10a, and see Louis Ginzberg, “Asylum—In Rabbinical Literature,” in The Jewish Encyclopedia, JewishEncyclopedia.com, http://www .jewishencyclopedia.com/view.jsp?artid⫽2067&letter⫽A&search⫽Asylum#1. 24. Ginzberg speaks of the institutionalization of vengeance in both biblical and rabbinic law: “. . . according to the higher conception of the Bible, a murder is not so much a crime against the individual as against the community. This conception is carried still further by the rabbinical law, under which the avenging relative has no rights left. The hunting down of a murderer is no longer the business of the avenger, but of the state . . .” (Louis Ginzberg, “Avenger of Blood—In Rabbinical Literature,” The Jewish Encyclopedia, JewishEncyclopedia.com, http://www.jewishencyclopedia .com/view.jsp?artid⫽2162&letter⫽A&search⫽Avenger%20of%20Blood#1). 25. Sifre Numbers 160 (Horovitz ed., 219). 26. Sifre Deuteronomy 187 (Finkelstein ed., 226–27). The last segment repeats in many parts of Sifre Deuteronomy: piskas 86, 151, 155, 220, 240, 241, and 272. 27. Rashi, in his commentary on the verse, explains the logic: “that you should not say: the ﬁrst person has already been killed, why should we kill this one (the murderer) and there will be two Jews who are killed?” In Rashi’s eyes, the community wants to avoid further bloodshed even the punishment is just. 28. While the printed editions of the Talmud give v. 19 without the pronoun hu, all the manuscripts as well as other important testimonies give v. 21 with the pronoun. See the Rashash, who discusses the different versions and argues for the version with v. 21. Rashi, on the other hand, gives v. 27, which surprises all the later commentators; see Mishneh Le-Melekh to the Mishneh Torah, Hilkhot Rotse’ah, 1:2. See the discussion of this talmudic text and the medieval commentaries in Devora Steinmetz, “Crimes and Punishments, Part II: Noachide Law, Brother-Sister Intercourse, and the Case of Murder,” JJS 65 (2004) 278–305 n. 86. 29. In his reading of this baraita, James Priest also emphasizes the role of the court: “. . . under law, the court-appointed avenger was actually serving as a dispas-

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sionate executioner of a criminal for the committing of a capital offense” (Governmental, 165). 30. The midrashic strategy at work here is somewhat complicated. The Rashash, preferring the version of the baraita which quotes v. 19, explains that the midrash is on the seemingly superﬂuous hu yemitenu (“it is he who shall put him to death”), a phrase which is omitted from v. 21. Rabbenu Hananel offers an interpretation that focuses on the phrase be-ﬁg’o-vo (“upon encounter”). According to Rabbenu Hananel, “the one who encounters (poge’a) him kills him, even though he is not the bloodavenger, but rather, in the place of the blood-avenger.” In Rabbenu Hananel’s reading of the midrash, be-ﬁg’o-vo implies anyone who encounters the murderer, whether he be the blood-avenger or a substitute. On the biblical meaning of this phrase, see Mayer Sulzberger, The Ancient Hebrew Law of Homicide (Philadelphia: Julius H. Greenstone, 1915), 83–84; and J. J. Finkelstein, The Ox That Gored (Philadelphia: The American Philosophical Society, 1981), 26n3. 31. Spierenburg, Spectacle of Suffering, 10. 32. Sifre Numbers 160 (Horovitz ed., 220). 33. See Greenberg, “To be sure, execution is still the prerogative of the kinsman (Deut 19:12), but he is not free to pardon or accept a monetary composition instead,” “Avenger of Blood,” 1:321. See also Barmash: “A member of the family had the right and responsibility to kill the slayer and could do with impunity under certain conditions” (Homicide, 23; my emphasis). 34. Sifre Numbers 160 (Horovitz ed., 218). On the hermeneutical principle of tsad ha-shaveh, see Ezra Zion Melamed, Eshnav Ha-Talmud: Hoveret-Ezer Le-Talmidim u-LeMitlamdim (Jerusalem: Kiryat-Sepher, 1976), 97, no. 2 in the category “binyan av.” 35. See also the parallels cited in Horovitz, 217n11. 36. The consolidation of the blood-avenger’s vengeance into a commandment is also found in the baraita on b. Sanh. 45b that I discussed above. A midrash from Sifre Zuta, Masei 35:19 (Horovitz ed., 333, and found also in y. Mak. 2:5 [31d]), also does this: “And from where [do we know] that even if he said that he cannot le-haqbilo? The Torah teaches: ‘it is he who shall put him to death upon encounter (be-ﬁg’o-vo)’ (Num 35:19).” The meaning of le-haqbilo in this midrash is not clear. In n. 13, Horovitz explains that it refers to a situation in which the blood-avenger is unable to execute the murderer immediately; the midrash teaches that in such a case, the blood-avenger must kill the murderer whenever he can, that is, “upon encounter” (be-ﬁg’o-vo). Moses Margoliot (d. 1781), in his Pnei Moshe commentary on the Palestinian Talmud, gives a similar interpretation. This midrash thus makes the blood-avenger’s vengeance a standing obligation free from any time limits. David Fraenkel (1707–1762) in his Qorban Edah interprets otherwise. The problem according to Fraenkel is that the bloodavenger cannot bear to meet the murderer because of the extreme hatred he bears for him. Even in such a case, goes the midrash according to Fraenkel, the blood-avenger is required to perform his task. While Fraenkel describes the blood-avenger’s difﬁculty rather than his delay, like Margoliot he produces an understanding of the law that stresses the blood-avenger’s obligation to kill the murderer no matter what conditions may work against it. 37. Blidstein notes the Bible’s sympathy towards the manslayer: “The Torah itself . . . sees the accidental homicide as pitiably caught in the situation and in some way undeserving of the death he faces . . .” (“Capital Punishment,” 169n4). 38. Sifre Deuteronomy 183 (Finkelstein ed., 225). 39. See Diqduqei Sofrim on the Mishnah on b. Mak. 11b, second half of n. 6:

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“ ‘No one is liable’ (eyn hayavin) is the version of the Venice printed ed., but the eyn (no) was erased by the Maharshal in the ﬁrst printing; but the version of the Mishnahs and the Palestinian Talmud and all the early medieval commentators is like the old version [of the Venice ed.], and already the Ritva testiﬁed to this later on 12a . . . that it is the correct version, and see the Tosfot Yom Tov.” 40. While beyond the purview of this chapter, the backlash response of the Babylonian Amoraim to the Tannaim is revealing of just how radical the tannaitic legislations are. On b. Mak. 12a, Mar Zutra bar Toviah in the name of Rav makes the bloodavenger liable for killing the manslayer outside the city of refuge, backtracking from the tannaitic position and even the Bible’s position found in Num 35:27. While the Talmud may suggest otherwise, Rav seems to be adding his own position to the two presented in the Mishnah of Rabbi Yosi HaGlili and Rabbi Akiva (Rav’s status is sometimes recognized to be equal to a Tanna’s in the expression Rav tanna hu u-faleyg— see David Weiss Halivni, Meqorot u-Mesorot: Bi’urim Ba-Talmud Le-Seder Moed, vol. Tractate Shabbat, [New York: The Jewish Theological Seminary of America, 1982], 114– 15). See also Rav Huna’s statement on b. Mak. 10b, who exempts the blood-avenger for killing the manslayer as he ﬁrst makes his way to the city of refuge. While the Talmud’s anonymous redactor goes on to associate Rav Huna’s law with a baraita (that reads the phrase “yet he did not incur the death penalty” of Deut 19:6 as referring not to the manslayer, as the contextual sense of the verse suggests, but rather to the blood-avenger himself ), Rav Huna can be more simply connected to m. Mak. 2: 7’s dispute between Rabbi Akiva and Rabbi Yosi Ha-Glili. The language of m. Mak. 2: 7, where the Tannaim are debating the status of the blood-avenger who kills the manslayer after he has ﬂed the city of refuge, is very similar to Rav Huna’s. Rav Huna, in fact, seems to be adding the case of the blood-avenger who kills the manslayer on his way to the city of refuge for the ﬁrst time. Rav Huna contrasts his case with that of the Mishnah, making the blood-avenger’s initial prerogatives much less than those given to an escaped manslayer, whether one follows Rabbi Akiva or Rabbi Yosi HaGlili. For while Rabbi Yosi HaGlili commands and Rabbi Akiva permits the bloodavenger to kill the escaped manslayer, Rav Huna only exempts from liability the bloodavenger who kills the manslayer before he reaches the city of refuge. In other words, Rav Huna accepts the Mishnah’s permissiveness towards the avenger with respect to the manslayer who leaves the city of refuge, but rejects it for the manslayer who ﬁrst sets out there. Like Rav, Rav Huna seems to be uncomfortable with the latitude given by this Mishnah to the blood-avenger. See also Abaye’s statement on b. Mak. 12a, which also restricts the capabilities attributed to the blood-avenger by the Tannaim. Abaye seems to be responding to the concern of the anonymous redactor—the question of whether the Torah “spoke in human language,” in other words, whether the Torah’s language should be taken as normal human discourse (on this hermeneutical approach, associated with the school of Rabbi Yishmael, see Burton L. Visotzky, “Jots and Tittles: Scriptural Interpretation in Rabbinic and Patristic Literatures,” Fathers of the World: Essays in Rabbinic and Patristic Literatures [Tu¨bingen: J.C.B. Mohr [Paul Siebeck], 1995], 28–40)—but it is more likely that Abaye is addressing the prerogatives of the blood-avenger, legislating that the manslayer who leaves the city of refuge should be allowed to return to it for protection. This statement, as well as those of Rav and Rav Huna, attest to a trend among the early generations of Babylonian Amoraim to make the blood-avenger a less active ﬁgure than the tannaitic version. I would argue from pericopes on b. Sanh. 33b and b. Mak. 12a that the anonymous redactor follows and enhances the amoraic trend. 41. The augmentation of the blood-avenger’s obligations may, of course, have

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other causes or consequences as well. For instance, the Rabbis may wish to create a more rigorous system of punishment for the murderer and manslayer because of beliefs they hold about the severity of homicide. I do not exclude other explanations such as this one for the legal innovations found in rabbinic law, which I argue in my introduction is most richly understood as a place of intersection for many different concerns. 42. On Weber’s notions of rationalization and bureaucratization, which describe the kinds of developments I am pointing out with respect to blood-vengeance in the Bible and in rabbinic law, see Talcott Parsons, introduction to Sociology of Religion, by Max Weber (Boston: Beacon, 1993), xlii–xliii. Moshe Greenberg also makes this argument about biblical Israel more generally, that the “sovereignty of the kinship group over matters affecting its private interest was just beginning to be superseded by communal authority”; see “Avenger of Blood,” 1:321. 43. The separation of homicide from other crimes is found frequently in systems of punishment according to Pamela Barmash, “Homicide,” (PhD diss., Harvard University, 1999), 4n8. 44. Greenberg organizes biblical crimes into six categories (“Crimes and Punishments,” Interpreter’s Dictionary of the Bible [New York: Abingon, 1962], 1:737–41):

(1) Crimes against God and religion (includes foreign cults and usages, blasphemy, and violations of religious institutions) (2) Homicide (3) Sexual crimes (includes violations of marriage, violations of chastity, incest, and homosexuality and bestiality) (4) Insubordination and treason (5) Perjury (6) Crimes against persons (includes kidnaping) 45. It is not clear what this sin entails. For a summary of the scholarly and historical issues, see Baruch Levine, Leviticus (Philadelphia: The Jewish Publication Society, 1989), Excursus 7, 258–60. 46. This is unusual, since Lev 20 does not generally provide details of capital punishment, repeating the passive huf ’al expression mot yumat, “he shall be put to death,” in 20:9, 10, 11, 12, 13, 15. See discussion of this phrase in Jacob Milgrom, Studies in Levitical Terminology (Berkeley: University of California Press, 1970), 5–8. Milgrom argues that while one rabbinic line of exegesis interprets “yumat” to mean death at the hands of God (see 5n7), in the Bible it always means death at human hands. 47. The execution method of stoning was used most likely because it allowed the whole community to participate. See Jeffrey Tigay, Deuteronomy (Philadelphia: The Jewish Publication Society, 1996), 133. 48. On the term am ha’arets (people of the land), see the summary of views in Aharon Oppenheimer, The ‘Am Ha-Aretz: A Study in the Social History of the Jewish People in the Hellenistic-Roman Period, trans. I. H. Levine (Leiden: Brill, 1977), 10–11 (and n. 37 for bibliography, borrowed from En’tsyqlopedia Miqra’it), where he emphasizes its high social status, though he leaves open the question of whether the phrase refers to a social stratum or to a deﬁned institution with speciﬁc functions. It is unlikely, then, that this biblical verse is calling for a fully popular execution, even if it is collective. 49. In some contexts, the edah seems to refer to a more select body, such as in Num 35:12, 24–5, while in certain contexts it refers to the entire assembly of adult

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Israelite males. In the cases of execution discussed here—Lev 24 and Num 15—it is unclear how inclusive an assembly is intended, but the pronoun kol suggests collective action whether it be partial or entire. For discussion of the edah in Num 35, see Barmash, Homicide, 88–89. 50. The primary difference between the legislations given in conjunction with each incident (Lev 24’s blasphemy and Num 15’s woodgatherer) is that the blasphemy becomes a “teaching moment” for God, who delivers permanent ordinances about this transgression and others (see Lev 24:15–22). In Num 15, however, God legislates only for this particular event. See Jacob Licht, A Commentary on the Book of Numbers, 2 vols. (Jerusalem: Magnes, 1991), 1:93. 51. Levinson argues that Deut 17 is a reworking of Deut 13; see Bernard M. Levinson, Deuteronomy and the Hermeneutics of Legal Innovation (New York: Oxford University Press, 1997), 98–143. 52. In Deut 13:10–12 and 21:21, Deuteronomy uses a different phrase for the executing community than it does for the audience community: kol ha-am (13:10) or kol anshei ir’o (21:21) throw stones, while kol yisra’el (13:12; 21:21) hears of the event and absorbs its lesson. Yisra’el seems to be the broader category. Deuteronomy 17, however, calls for kol ha-am to hear and be afraid, which in Deut 13 is the communal agent of execution, not the wider audience. Deuteronomy 19, addressing the case of the false witness, is more elliptical, referring vaguely to ha-nisharim (others) to indicate the communal audience (the Babylonian Talmud attributes Deut 19:20’s unusual wording to the unique character of the crime of false testimony as a crime that not everybody can commit, because not everyone is ﬁt to stand as a witness in court; see b. Sanh. 89a). 53. Carmichael argues for a series of successive internal revisions: Deuteronomy 19 adds a speciﬁc law concerning witnesses to the rule of witnesses in Deut 17, which in turn brings together the procedural instructions from Deut 13. See Calum M. Carmichael, The Laws of Deuteronomy (Ithaca, N.Y.: Cornell University Press, 1974) 100– 101. Carmichael does not address the changes in the terminology of community, nor does Levinson, who similarly argues that Deuteronomy 17 reworks 13, which in turn reworks Exod 22:19; see Levinson, Deuteronomy. 54. Michel Foucault, Discipline and Punish: The Birth of the Prison, trans. Alan Sheridan (New York: Vintage, 1995) 62–65. 55. The object of mob rage is ambiguous in the biblical text: Rashi and Ibn Ezra interpret Joshua and Caleb, but it could also refer to Moses and Aaron. 56. The Israelites are not always an uncontrollable mob when they act in concert. In the case of the wood-gatherer (Num 15:36) and Akhan’s theft of proscribed property (Josh 7:25), kol ha-edah (the whole community) and kol yisra’el (all of Israel) execute the transgressor with the narrative’s approval (and in the Numbers incident, by God’s command). 57. Calum Carmichael has written extensively on reading biblical law and biblical narrative in conjunction with one another. He argues that frequently the narrative can be shown to have given rise to the law. This runs contrary to the standard approach that sees the law as a separate enterprise from the narrative. My approach here draws from Carmichael’s insight that the two are related, but I see law and narrative here as existing in a more mutual relationship than Carmichael usually portrays. See now also Pamela Barmash, “The Narrative Quandary: Cases of Law in Literature,” VT 54 (2004): 1–6. 58. J. J. Finkelstein makes this argument: “Against this background [of the biblical narratives] we may perceive in the formal sentence of death by stoning the modu-

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lation of an otherwise uncontrolled and spontaneous lynching process into a solemn, ritualized execution carried out under formal judicial authority, to be invoked for a limited number of capital offenses” (J. J. Finkelstein, The Ox That Gored, 27). 59. On the stoning house, see above, 237n6, and 242n64. 60. In my explanation of the Mishnah, I am following Albeck’s version (the Cambridge manuscript) as well as his interpretation, which he bases on Maimonides in the Mishneh Torah, Hilkhot Sanhedrin, 15:1 (see Albeck, Shishah Sidrei Mishnah, vol. Seder Neziqin, 447). There are two ambiguities in the wording of the Mishnah: 1) Whether the body is ﬂipped onto its chest or onto its back, and 2) why the body is ﬂipped. In Maimonides’s interpretation, the second witness ﬂips the body over so that it is facing up in order to check whether the person is still alive and to drop the stone on his chest if necessary. According to Rashi, however, the body is turned over out of respect, although it is not clear whether Rashi intends to say the body should be ﬂipped onto its chest or onto its back. See Albeck’s discussion of the medieval commentaries, 447. 61. See my discussion above, 72–74. 62. The community is mentioned in the context of postexecution hanging in m. Sanh. 6:4: “The man is hanged facing the people, and the woman facing the tree— the words of Rabbi Eliezer.” The “people” appear here more in order to deﬁne the direction of hanging than to play a role within the procedure. The cry of the herald also suggests an audience. 63. m. Sanh. 11:4. 64. For an argument for the existence of local criminal courts in addition to the Great Court in Jerusalem, see Ephraim E. Urbach, “Batei-Din Shel Esrim u-Sheloshah Ve-Dinei Mitot Beit-Din,” in Fifth World Congress of Jewish Studies, ed. P. Peli (Jerusalem, 1972) 37–48.” See also H. Albeck’s notes, Shisha Sidrei Mishnah, vol., Seder Neziqin, 459, on the local court and the Yavnean court, the latter of which he argues was equated by the Tannaim with the Great Court in Jerusalem even before the Temple’s destruction. The absence of this phrase in the Tosefta, however, suggests to me that it is a late interpolation made to boost the prestige of Yavneh after the Temple’s destruction. 65. The Mishnah in Babylonian Talmud Sanhedrin’s manuscripts, as well as in Rashi and Maimonides, has instead Deut 13:12’s version of the deterrence clause, “Thus all Israel will hear and be afraid . . . ,” but the correct version is that of Deut 17: 13, the verse dealing with the rebellious elder, with kol ha-am instead of kol yisra’el. See Krauss, Mishnah Treatise Sanhedrin, 30n21. 66. Rabbi Judah’s position, in which an ethical criterion modiﬁes his reading of the Torah’s law, is not unusual in rabbinic sources, according to Moshe Halbertal (Mahapekhot Parshaniyot Be-Hit’havutan: Arakhim Ke-Shiqulim Parshani’im BeMidreshei Halakhah [Jerusalem: Magnes, 1997], 15–22). Whether the ethical criterion is the true or exclusive motivation for the law is debatable. 67. Shemesh argues that the enticer and the seducer are really two phases of the same crime; see Aharon Shemesh, Onashim Ve-Hata’im Min Ha-Miqra Le-Sifrut Hazal (Jerusalem: Magnes, 2003), 150–58. 68. Zuckermandel ed., 432. 69. The Hasdei David commentary on the Tosefta tries to reconcile the Mishnah with the Tosefta, but also argues that Maimonides held that the two texts disagreed. On sorting out the relationship between the Mishnah and Tosefta, see Shamma Friedman, “Tosefta Atiqta: Le-Yahas Maqbilot Ha-Mishnah Ve-Ha-Tosefta,” Tarbiz 62 (1993): 331–38; idem, “Maqbilot Ha-Mishnah Ve-Ha-Tosefta,” Proceedings of the World

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Jewish Congress 11.3, 1 (1994): 15–22; idem, Synoptic Parallels of Mishna and Tosefta Analyzed with a Methodological Introduction (Tosefta Atiqta: Masekhet Pesah Rishon: Maqbilot Ha-Mishnah Ve-Ha-Tosefta u-Ferushan Be-Tseruf Mavo) (Ramat Gan, Israel: Bar-Ilan University Press, 2002); Judith Hauptman, “Mishnah as a Response to ‘Tosefta,’ ” The Synoptic Problem in Rabbinic Literature, ed. Shaye J.D. Cohen (Providence, R.I.: Brown Judaic Studies, 2000), 13–34. 70. There are two other major differences between this Mishnah and this Tosefta besides the basis of Rabbi Judah’s argument: (1) only the Mishnah forbids execution in local courts and the court in Yavneh, and (2) the substance of the message brought by the messengers, in Rabbi Judah’s position, is different. In the Tosefta, the message is more detailed: The name of the court’s judge is given, as well as the names of the witnesses, the details of the crime, and the details of the execution. In the Mishnah, the message gives only the person’s name and the fact that they were executed. See also another parallel for this baraita on b. Sanh. 89a, a version which fuses the Mishnah and Tosefta. 71. See also a baraita on b. Sanh. 89a which is more conservative than either the Mishnah or Tosefta: “Four [cases] require announcement (hakhrazah): the enticer and the rebellious son and the rebellious elder and conspiring witnesses.” The commentators all raise the question of the meaning of “announcement” and the relationship of this baraita to the dispute between Rabbi Akiva and Rabbi Judah. They interpret “announcement” in several ways: as referring to the delivery of a written message, to a convoy of messengers, to a public execution, or to all of these or some combination. The tannaitic sources themselves do not provide any evidence for the usage of “announcement,” since this baraita is the only tannaitic text in which this noun form appears. The Midrash Tannaim to Deut 13:12 suggests that “announcement” refers to the kind of written message that Rabbi Judah prescribes: “They write and send to the cities: ‘On Day Such-and-Such, So-and-So was judged for death.’ That is why it is said, ‘Thus all Israel will hear and will be afraid’ (Deut 13:12)—it teaches that one needs announcement.” The text in Midrash Tannaim associates the term “announcement” with Rabbi Judah’s position. If so, the baraita on b. Sanh. 89a would establish Rabbi Judah’s view, in its most extensive form applying to all four of Deuteronomy’s cases, as an anonymous and uncontested position. This baraita most closely adheres to Deuteronomy’s delineations and represents itself as the legislative consensus. 72. T. Sanh. 9:6 (Zuckermandel ed., 429). 73. See s.v. ma’amad, Ben-Yehuda dictionary. Ben-Yehuda cites this midrash as it appears in Sifre Deuteronomy 202, with the following deﬁnition: “be-ma’amad ploni, that So-and-So is standing there at that time, pre´sence, Anwesenheit, presence.” See also Jastrow, s.v. ma’amad, second deﬁnition; Arukh Ha-Shalem, ed. Alexander Kohut (Vienna: n.p., 1926), s.v. ma’amad. This word is also used to denote the halting of a funeral escort, as well as a division of representatives, part of which served at the Temple with the priests. Neither of these other meanings, both of which are somewhat technical, seem to be directly intended here. 74. Sifra Emor 19:3 (Weiss ed., 104c). 75. The agent of execution is now the witnesses, in a reading of Leviticus that seems to incorporate the Mishnah’s reading of Deuteronomy. Possibly because of the obscurity of the logic, and also to make it consistent with similar midrashim that I will presently discuss, the Vilna Gaon emends this baraita to make the midrashic mechanics simpler, so that the word “community” teaches only one thing:“kol ha-edah (Lev 24:14): and does the whole community stone him? If so, why is it said ‘the community’? Rather, in the presence of the whole community.”

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76. Halbertal, Mahapekhot Parshaniyot, 21–22. 77. The manuscripts have several variations on this word: ke-shom’o, kemashma’o, ke-mishmu’o, ki-shemu’o. 78. Sifre Numbers 114 (Horovitz ed., 123). 79. Sifre Zuta, on the other hand, provides a gloss that is even more abridged than the Sifra, simply reading be-ma’amad kol ha-edah (Parshat Shelah, Horovitz ed., 288). 80. See Loewe’s discussion of this term (he calls it “mishma’o”), which he sees as an indication that “the early Rabbis [are] on the verge of an understanding of what the plain ‘letter’ of scripture means” (Ralph Loewe, “The ‘Plain’ Meaning of Scripture in Early Jewish Exegesis,” Papers of the Institute of Jewish Studies 1 [1964]: 169–70). A similar approach to the term is taken by David Weiss Halivni, Peshat and Derash: Plain and Applied Meaning in Rabbinic Exegesis (New York: Oxford University Press, 1991), 76. 81. In his commentary on the Sifre Numbers, Pardo provides an alternative understanding of the mechanics of this midrash. According to Pardo, the midrash hinges on the Bible’s verb ragom (“shall pelt”), which is in the inﬁnitive form rather than the plural imperative yirgemu. Pardo explains that in the thinking of this midrash, the verse’s avoidance of the plural imperative in favor of the inﬁnitive suggests the agency only of the witnesses and not of the whole community; see David Pardo, Sifre: Midrash Halakhah le-Bemidbar u-Devarim (Jerusalem: Mekhon “Lev Sameah”, 1990),75. 82. Sifre Deuteronomy 220 (Finkelstein ed., 253). 83. Sifre Deuteronomy 240 (Finkelstein ed., 271). The Oxford Neubauer 151 ms. of Sifre Deuteronomy is missing this gloss. 84. Sifre Deuteronomy 89 (Finkelstein ed., 152). 85. Sifre Deuteronomy 151 (Finkelstein ed., 205). 86. Sifre Deuteronomy 90 (Finkelstein ed., 153). 87. See Sifre Deuteronomy 149, 220, 240, 242 (Finkelstein ed., 204, 253, 271, 272). 88. Sifra Qedoshim 10:4 (Weiss ed., 91c); see also Sifra Emor 20:10 (Weiss ed., 105b). 89. Sifre Numbers 114 (Horovitz ed., 123). 90. On the citation of the Mishnah and the Tosefta in the tannaitic midrash collections, see Ezra Z. Melamed, Ha-Yahas She-Vein Midreshei Halakhah Le-Mishnah ULe-Tosefta, 2nd ed. (Jerusalem: Magnes, 1988). 91. Sifre Zuta Shelah (Horovitz ed., 288). 92. The Vilna Gaon emends im eyn ko’ah beit din yafeh (if the court does not have a strong legal right) to im eyn ko’ah be-veit din (if the court does not have power). 93. Sifra Qedoshim 10:4 (Weiss ed., 91b-c). 94. Sifre Deuteronomy 306 (Finkelstein ed., 333); the translation is from Reuven Hammer, trans. and ed., Sifre: A Tannaitic Commentary on the Book of Deuteronomy (New Haven: Yale University Press, 1986), 301. 95. While this midrash is part of a sequence of midrashim on Deut 32, Deut 32 itself does not appear. The connection seems to lie in Deut 11’s featuring of the heavens and the earth as arenas of God’s activity, both of which Moses calls upon in the ﬁrst verse of his poem to act as his witnesses. 96. See Jastrow, s.v. mishmesh: memashmeshin, “to come gropingly, slowly.” The phrase also appears in y. Pe’ah 8 (20d) and y. Ned. 3 (38a). 97. Haim H. Cohn, “The Elements of Jewish Penology,” in Fifth World Congress

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notes to pages 118–119

of Jewish Studies, ed. Avigdor Shinan (1972), 3:195. Halbertal offers a different explanation of this phenomenon: The motivating force for the Sages’ elimination of communal stoning is their concern to preserve the body of the criminal; see Halbertal, Mahapekhot Parshaniyot, 149–52. 98. See discussion of the elimination of the community also in Devora Steinmetz, “Crimes and Punishments, Part I: Mitot Beit Din as a Reﬂection of Rabbinic Jurisprudence,” JJS 55 (2004): 91–93. 99. For further discussion, see section below, “Judicial Claims,” 120–26. 100. The Florence manuscript has the early fourth-century Rava instead of Rav Huna. 101. The Talmud’s anonymous redactor expands Rav Huna’s question, articulating two possibilities and the reason that each is logical: “Since it is his rescue, [the rescue items] should be [provided] from him, or perhaps since the court is obligated to make the rescue for him, [the rescue items] should be from them?” According to the redactor’s explanation, Rav Huna’s question deals with whether the responsibility for rescue falls on the public’s shoulders or on the criminal’s own. 102. The Munich manuscript has “Rabbi Hiyya bar Ami, some say Rabbi Yits’hak bar Ami, in the name of Rav Hisda.” The Florence manuscript is similar to the Munich manuscript but links the names into a chain: “Rav Hiyya bar Ami said in the name of Rav Yits’hak bar Ami who said in the name of Rav Hisda” (Rav Hiyya bar Ami and Rav Yits’hak bar Ami are both third-generation Babylonian Amoraim [spanning the fourth century], making the Munich manuscript more logical than the Florence). The Karlsruhe manuscript combines these versions but has scribal corruptions; see Rabbinovicz’s note, letter 50 on Sanh. 43a. See also Mordekhai Sabato, KetavYad Temani Le-Masekhet Sanhedrin (Bavli) u-Meqomo Be-Masoret Ha-Nusah (Jerusalem: Hebrew University; Yad Izhak ben-Tsvi, 1996), 323. 103. Rav Hisda’s formulation “in order that he be numbed” (ke-dei she-titaref da’ato) seems to be drawn from a baraita related to the treatment of the witnesses before they give testimony: they must be moved around from place to place in order to confuse them (t. Sanh. 9:1; b. Sanh. 32b, 40b; b. Sotah 8a). The phrase appears only in these two contexts. 104. In the Karlsruhe manuscript of the Babylonian Talmud, the ﬁnal pronoun in singular, which is more logical, referring to the grain of frankincense: “. . . would volunteer and bring it.” The Florence manuscript omits the ﬁnal pronoun. The variation on the ﬁnal piece of the baraita supports my contention below that this baraita’s original ending was lost in transmission as it became linked to Rav Hisda’s legislation. 105. The Munich manuscript has the word “if ” beginning this question, clarifying it; the printed edition does not. 106. The Talmud perhaps leaves the question open (see Hamra Ve-Hayyei, 172, s.v. ha vadai): “Behold it certainly stands to reason—from the public, since it is written, ‘Give’ (imperative plural, from Prov 31)—from them.” According to Rabbenu Hananel, this answer comes from Rav Ravai of Rov, who according to Sherira Gaon is one of the Saboraim who added to the Gemara (see Sabato’s discussion in Ketav-Yad, 155, where he speculates that it may be Rav Huna himself who answers the question). Rav Ravai determines from the Proverbs verse that the community is responsible for provision of the frankincense and wine for the criminal; it is uncertain whether Rav Ravai intends to answer the ﬁrst question too from Rav Huna about the scarf and horse.

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107. See Jastrow entry for qoret: a particle, grain, (coagulated) drop. The Arukh understands qoret instead as referring to berries. See Fred Rosner, Medicine in the Bible and Talmud: Selections from Classical Jewish Sources (Hoboken, N.J.: Ktav, 1995), 217– 18. Frankincense has strong associations with biblical sacriﬁces and offerings to God: in Exod 30:34, it is used in preparing holy incense; in Lev 2:1, 2, 15, 16 and 5:11, 6:8, and Num 5:15, it is used in conjunction with the meal-offering; in Lev 24:7, it is offered with the shew-bread. The use of frankincense with the criminal as he or she faces execution is perhaps meant to evoke these types of biblical sacriﬁces. Much has been written about the relationship between criminal execution and sacriﬁce; see Futrell’s study of the gladiatorial games as human sacriﬁce, Alison Futrell, Blood in the Arena: The Spectacle of Roman Power (Austin: University of Texas Press, 1997). See also Brian K. Smith, “Capital Punishment and Human Sacriﬁce,” JAAR 68 (2000): 3– 26, and James McBride, “Capital Punishment as the Unconstitutional Establishment of Religion: A Girardian Reading of the Death Penalty,” Journal of Church and State 37 (1995): 263–87, for comparisons between modern American capital punishment and sacriﬁce. 108. In later Jewish legal works, the administering of the wine slips into the execution ritual as though it were in the Mishnah itself. Maimonides and the Meiri both require that wine be given to the criminal after his confession and before he approaches the execution site; see the Mishneh Torah, Hilkhot Sanhedrin 13: 2, and the Meiri on b. Sanh. 43a. 109. See Joachim Jeremias, Jerusalem in the Time of Jesus: An Investigation Into Economic and Social Conditions During the New Testament Period, trans. F. H. Cave and C. H. Cave (Philadelphia: Fortress, 1969), 95, where he associates these women with those mentioned in the Gospels who “accompanied Jesus to his cruciﬁxion (Luke 23: 27ff.) . . . [and] provided the wine mingled with myrrh offered to Jesus before his cruciﬁxion (Mark 15:23; Matthew 27:34).” Jeremias describes these women as a “lay nobility” (225). This phrase, “worthy women of Jerusalem” (nashim yeqarot she-biYerushalayim) is used twice in rabbinic literature in baraitot found in the Babylonian Talmud, here and in b. Ketub. 106a. In b. Ketub., the baraita is one of a series discussing groups of people who would draw money from the coffers of the Temple: Women who raise their sons for the [service] of the [red] heifer would take their wages from the treasure [of the half-shekel contributions]. Abba Sha’ul says: worthy women of Jerusalem would feed and clothe them. Finkelstein describes these women as a wealthy elite, understanding the adjective yeqarot to refer to their wealth; see Louis Finkelstein, The Pharisees: The Sociological Background of Their Faith (Philadelphia: The Jewish Publication Society of America, 1966). The adjective perhaps is meant to have a double meaning, referring both to their material wealth as well as to their spiritual bounty, as represented by the philanthropic purposes to which they put their wealth. See the Arukh’s deﬁnition, equating yaqar with kavod, “honor.” Sabato follows the Arukh; see Ketav-Yad, 52n21. 110. For a group in medieval Europe analogous to the Jerusalemite women described in this baraita, see Merback, Thief, 148, who describes “ ‘comfort societies,’ lay confraternities dedicated to the spiritual and physical care of prisoners before and after their execution. . . .” A later German parallel for giving wine to the condemned man is found in Richard Evans, Rituals of Retribution: Capital Punishment in Germany, 1600–1987 (New York: Oxford University Press, 1996), 74.

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111. The uniqueness of this baraita might suggest its fabrication by Babylonian editors. 112. The descriptive character of the baraita is the feature that generates the Talmud’s question: If the women do not volunteer, must someone else bring the frankincense? 113. For a detailed study of the rabbinic laws of evidence and their legal codiﬁcations, see Shalom Albeck, Ha-Re’ayot be-Dinei ha-Talmud (Ramat Gan, Israel: Bar Ilan University Press, 1987). See also discussion in Zeev Falk, Introduction to Jewish Law of the Second Commonwealth (Leiden: Brill, 1972), 1:113–43. 114. See t. Sanh. 5:2, where Rabbi Judah is clearly responding to the entire list, and H. Albeck’s note, Shishah Sidrei Mishnah, vol. Seder Neziqin, 444. 115. On the criteria of character for witnessing, see S. Albeck’s discussion, HaRe’ayot, 29–31, 104–120; on the issue of relatives or close friends serving as witnesses, see his discussion, 25–8, 79–91. See also Falk’s discussion of eligibility to testify in rabbinic law and in other Jewish sources of late antiquity, Introduction to Jewish Law, 122–25. 116. These legislations are found also in Sifre Deuteronomy in very similar form; see Sifre Deuteronomy 93, 148, 190 (Finkelstein ed., 154, 203–204, 230). See S. Albeck’s discussion of the investigation of witnesses, Ha–Re’ayot, 213–39. 117. “All who multiply bediqot are worthy of praise. There was an incident wherein Ben Zakkai investigated the thorns of ﬁg trees.” See also the parallel baraita in b. Sanh. 41a and Tanhuma Shoftim 1. 118. The Paris manuscript. This alternative version, according to Diqduqei Sofrim, n. 9 on Sanhedrin 45a, appears also in: the Naples printing; the Palestinian Talmud; the commentary of Rabbenu Yonah; the commentary of Rabbenu Tam; the Arukh, 207; and the Yad Ramah, where it is added. See also Krauss, Mishnah Treatise Sanhedrin, 15n5. 119. t. Sanh. 9:6 (Zuckermandel ed., 429). 120. The pericope in the b. Sanh. 45b is disturbed by this shift, as I will presently discuss. 121. Robert Johnson, Death Work: A Study of the Modern Execution Process, 2nd ed. (Belmont, Calif.: Wadsworth, 1998), 126–27. 122. Rashi’s explanation is quite different. According to Rashi, the stone is put in the hands of the second witness for him to throw it—and thus the baraita uses singular verbs—in order that the stone be thrown with more force. Rashi gives as the logic for this hand-off that a stone cannot be forcefully thrown by two people at the same time. 123. Mishneh Torah, Hilkhot Sanhedrin, 15:1. 124. Sudarin. This is the same word used in m. Sanh. 6, the cloth or scarf that the person stationed at the court waves in the case that last-minute exonerating evidence is found. 125. m. Sanh. 7:2. 126. m. Sanh. 7:3. 127. David Fraenkel makes this point in his Shirei Qorban on y. Sanh. 7:2 (24b). 128. See also the commentary attributed to the Ran, s.v. matnitin, which addresses the problem of extrapolation from stoning to the other executions. This commentary goes so far in its extrapolation as to talk about a “burning house,” a “decapitation house,” and a “strangulation house,” though the commentator admits the possibility that these execution methods do not require an established place in the way that stoning does. See also Benveniste’s Hamra Ve-Hayyei, where he at one point

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hypothesizes that the herald required by m. Sanh. 6:1’s stoning procedure is not intended to be used for the other three execution methods (172, s.v. lefanav in). 129. See b. Sanh. 53a. 130. Devora Steinmetz, “Crimes and Punishments, Part I: Mitot Beit Din as a Reﬂection of Rabbinic Jurisprudence,” JJS 55 (2004): 93n46.

chapter 5 1. The family of the victim of homicide, on the other hand, is prominent; see my discussion above of the biblical blood-avenger, 97–98. 2. Moshe Greenberg argues that the Bible exhibits a dual standard of justice, one standard for God that includes vicarous and collective punishment and one standard for human beings that requires individualized punishment. Among other texts, Greenberg points to the decalogue: “. . . . For I the Lord your God am an impassioned God, visiting the guilt of the parents upon the children, upon the third and upon the fourth generations of those who reject Me” (Exod 20:5–6; Deut 5:9). Greenberg explains that Deut 24:16 (quoted above) is a provision for justice by human hands, referring to judicial execution, while Deut 5:9 refers to God’s own justice (Moshe Greenberg, “Some Postulates of Biblical Criminal Law,” Studies in the Bible and Jewish Thought [Philadelphia: Jewish Publication Society, 1995], 35, 37). Tigay and others disagree with Greenberg’s reading, pointing to the qualiﬁer “of those who reject Me” as a rejection of vicarious punishent, indicating that only those future generations who also reject God will be punished (Tigay, Deuteronomy [Philadelphia: The Jewish Publication Society, 1996], 437; Michael Fishbane, Biblical Interpretation in Ancient Israel [Oxford: Oxford University Press, 1989], 345n72; Moshe Weinfeld, Deuteronomy and the Deuteronomic School [Oxford: Clarendon, 1972], 318). Levinson adopts the Greenberg reading, understanding the phrase not as a reaction to the doctrine of transgenerational punishment but rather as part of the original promulgation of that doctrine; see Bernard M. Levinson, “ ‘You Must Not Add Anything to What I Command You’: Paradoxes of Canon and Authorship in Ancient Israel,” Numen 50 (2003): 37n64. Levinson argues that some biblical texts do criticize God’s vicarious punishment, such as Lam 5:7 (“Paradoxes,” 29) and that the prophet Ezekiel strategically subverts the divine doctrine using Deuteronomy 24:16 as his precedent (“Paradoxes,” 31–36). And see Levinson’s discussion of Deut 7:9–10, “God . . . instantly requites with destruction those who reject Him . . .”, where he argues that the divine doctrine of transgenerational punishment is revoked (“Paradoxes,” 36–44). 3. It is striking that in the same chapter of Mishnah the Rabbis also invoke the story of Akhan, in which Akhan’s family is executed, apparently innocently (Josh 7:11, see chapter 3 above, 89–91, for discussion of Akhan in the Bible and in the Mishnah). There are various possibilities for interpreting the juxtaposition: 1) The Mishnah is drawing upon the Akhan narrative’s assumption about family accountability and uses that as the basis for requiring the sinner’s relatives to condemn him. 2) The Mishnah is highlighting the contrast between its justice system and God’s without making any connection between them. 3) The Mishnah, by setting up a contrast, intends to criticize God’s justice according to which Akhnan’s relatives did not seem to have the opportunity to dissociate themselves from Akhan before they themselves were punished. 4) Coincidence (the Mishnah draws upon the Akhan narrative as a source for confession and does not intend any associations with other parts of the Akhan narrative). 4. A dispute over the deﬁnition of aninut is reported in the Palestinian Talmud.

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According to Rabbi Judah the Patriarch, it refers to the period from death until burial, while according to the anonymous consensus, it refers to the day of the death (y. Pesah. 8:8, 36a–b; y. Sanh. 2:1, 20a). I translate aninut according to the anonymous consensus opinion. See discussion of aninut in Nissan Rubin, Qets Ha-Hayim: Tiqsei Qevurah Ve-Evel Bi-Meqorot Hazal (Tel Aviv: Hakkibutz Hameuchad, 1997), 104–105, esp. n. 3. 5. m. Sanh. 6:5–6. For further notes on this text, see above, 67–68. 6. See David Kraemer, The Meanings of Death in Rabbinic Judaism (New York: Routledge, 2000), 31–32, on mourning customs found in the Mishnah. The Tosefta adds many more prohibitions: on anointing, wearing shoes, having sex (these three, however, depend on a somewhat ambiguous text), haircutting, doing laundry, nailcutting, greeting, sitting on couches or beds, which further separate the mourner from the social world (see ibid., 41–44). The Mishnah here may or may not be assuming this fuller set of prohibitions. See also Rubin, Qets Ha-Hayim, 160–89. 7. Kraemer points out that the correct translation of hesped is not eulogy but rather “beating of the heart,” which suggests the loud and public nature of the lament; see Meanings, 39, and see also his discussion of the Babylonian Talmud’s pericopes on the hesped, ibid., 99–103. See on the eulogy also Rubin, Qets Ha-Hayim, 190–213. It is not entirely clear from this Mishnah, however, that the hesped is forbidden for the executed criminal, since it seems that a hesped was given during the period of aninut, the practices of which the Mishnah permits to the relatives; see Rubin, Qets HaHayim, 198–203. Nevertheless, this Mishnah does seem to assume that the practices of aninut are private, which would exclude a eulogy. On the eulogy as it is represented in Tractate Semahot, see introduction in Dov Zlotnick, The Tractate “Mourning” (Semahot) (New Haven: Yale University Press, 1966), 19. 8. The preceding Mishnah in this chapter makes the honor of the dead central to the practices of mourning, permitting the delay of burial “in order to honor him.” On concern for kevod ha-met, the honor of the dead, see also m. Mo’ed Qat. 3:8; m. Berakhot 3:2; Minor Tractate Semahot 10:13, 11:6. 9. The Palestinian Talmud expands these exemptions, adding various prescriptions and prohibitions for the onen’s eating and drinking; see y. Berakhot 3:1 (6a); y. Mo’ed Qat. 3:5 (82b), and see discussions by Kraemer, Meanings, 73–74, and Rubin, Qets Ha-Hayim, 104–105. For discussion speciﬁcally of tannaitic practices, see Kraemer, Meanings, 28–29. 10. From the root a-v-n. 11. Secondary burial in this case refers to the collection of bones into an ossuary (see y. Mo’ed Qat. 1:5 [80c] and parallel in y. Sanh. 6:9–10 [23d], and my discussion below of secondary burial). Rahmani describes the ossuaries found in Palestine as straight-angled containers, sometimes standing on short legs, the length and width determined by the dimensions of the thigh bone, the height determined by the volume of the bones together including the skull. They are made almost exclusively of stone, and many have writing and decorations upon them; see Levi Y. Rahmani, “Glusqmot Ve-Liqut Atsamot Be-Shilhei Tequfat Bayit Sheni,” Qadmoniyot 11 (1979): 102–112, where he also provides photographic reproductions. 12. The Palestinian manuscripts all have not “in their place” but “in the place.” See discussion in Aharon Shemesh, Onashim Ve-Hata’im Min Ha-Miqra Le-Sifrut Hazal (Jerusalem: Magnes, 2003), 45n20. 13. b. Sanh. 47a–b. The discussion about invalidation, based on a teaching of Rabbi Yohanan, appears in several places in the Babylonian Talmud (b. Ned. 36a, b. Hor. 11a, b. Kerit. 7a, and b. Zev. 12b) as well as in y. Git. 7:1 (48c) and y. Hor. 1:2

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(45d), where it is the subject of a dispute with Resh Lakish (see also loose parallels in y. Pesah. 8:2 [35d] and y. Yoma 6:1 [43c]). It is brought here in Sanhedrin because it is afﬁxed to the dispute between Abaye and Rava, which in turn is the occasion for Rav Ada to bring Mishnah Sanhedrin, as the following discussion will explain. The Sanhedrin pericope is the only place where the dispute between Abaye and Rava as well as Rav Ada’s response appear. 14. How much of this dispute is original to Abaye and Rava is hard to distinguish—the Talmud’s anonymous redactor seems to have interfered quite a bit with these statements. For instance, the response to Rava is attributed to Abaye in the printed edition and some manuscripts, but absent in the Paris manuscript, suggesting that it comes from the redactor; also, Rava’s and Abaye’s language uses style typical of the anonymous redactors and contains a relatively high degree of manuscript variation. Rabbenu Hananel comments on this dispute but omits the tradents Abaye and Rava altogether, calling it a sugya de-shemata. On the tendency of the Babylonian Talmud to fabricate extended dialogues between Abaye and Rava, see Richard Kalmin, Sages, Stories, Authors, and Editors in Rabbinic Babylonia, ed. Ernest S. Frerichs, Shaye J. D. Cohen, and Calvin Goldscheider (Atlanta: Scholars Press, 1994), 175–92. 15. See discussion of atonement in conjunction with this Mishnah in Kraemer, Meanings, 35; on links in the Tosefta between death and atonement, see ibid., 40. On the redemptive dimensions of suffering more generally, see idem, Responses to Suffering in Classical Rabbinic Literature (New York: Oxford University Press, 1995), especially 68 (the Tosefta); 81, 85 (Midrash Halakhah); and conclusions on 212. 16. In the Munich manuscript “bar Ahavah” is absent, while in the Karlsruhe manuscript the name appears as “Rav Aha bar Aba,” which is perhaps a confusion of Rav Aha bar Ada, another Babylonian Amora of about the same generation as Rav Ada bar Ahavah. 17. See H. Albeck’s commentary on this Mishnah, and see also the works of scholars on Jewish burial, for instance, Patrich, “Qevurah Rishonah,” 206, and Eric M. Meyers, Jewish Ossuaries: Reburial and Rebirth (Rome: Biblical Institute Press, 1971), 80. 18. See also Judah Ha-Cohen Almadari’s commentary, which follows Rashi, in Jacob H. Lipshitz, comp. and ed., Sanhedrei G’Dolah: Series of Commentaries from Rishonim on Treatise Sanhedrin, 4 vols. (Jerusalem: Harry Fischel Institute for Talmudic Research and Torah Law, 1968), 2:250. See also the Nimmuqei Yosef (novellae on Alfasi authored by Joseph ibn Haviva), s.v. amar Rabbi Meir. An alternative explanation for the prohibition on full mourning is given by some traditional commentators on the Mishnah, based on a statement of Rav Ashi and its redactional expansion on b. Sanh. 47b, that because atonement happens only after the closing of the tomb, the mourning of the criminal must be delayed until then (see Bartenura and the Tosfot Yom Tov, canonical commentaries on the Mishnah). However, once the mourning is delayed, it is permanently canceled. According to this explanation, the mourning cannot be performed because the criminal does not deserve it at the time when mourning traditionally takes place. The Tosfot Yom Tov captures the principal difference between this interpretation of the Mishnah’s prohibition on mourning and the ﬁrst explanation: “It seems that for those who say this, the prevention of mourning is not for the sake of atonement, but rather because it is not proper to mourn him since his atonement is not yet complete. . . . According to the ﬁrst explanation, [the prohibition on mourning] is for the sake of atonement. According to the second explanation, [the prohibition on mourning] is because they are not ﬁt to be mourned.” While in this

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chapter, I will adopt neither of these explanations since they are both based on the later readings of the Amoraim and the redactors, I think this second explanation, emphasizing propriety, is closer to the Mishnah’s contextual meaning. 19. The commentators are left not only with a thematic inconsistency but also with a chronological one: When should the salutation be performed? Since the salutation, according to the traditional reading of the Mishnah, no longer seems to ﬁt into the mourning sequence, commentators are forced to ﬁnd another place for it. According to Maimonides’s commentary on the Mishnah, the salutation takes place at the time that the guilty verdict is delivered, much before the ﬁnal sequence of burial and mourning. This ordering requires that the Mishnah be read nonchronologically or nonnarratively, which is a less compelling reading, since the rest of m. Sanh. 6 and much of the tractate as a whole conform to a linear sequence. 20. Deyqa nami ki-di-tenan: The syntax and meaning of this phrase is somewhat difﬁcult. Melamed translates it into Hebrew as af meduyeqet she-hu shoneh, and he explains: After a position is staked out, it is declared accurate, and a tannaitic teaching is brought to support it (see Ezra Zion Melamed, Eshnav Ha-Talmud: Hoveret-Ezer leTalmidim u-Le-Mitlamdim [Jerusalem: Kiryat-Sepher, 1976], 25). Steinsaltz understands the deyqa to refer not to the opinion that was previously expressed but rather to the Mishnah which follows, reading the nami not as Melamed does to mean “even” but rather “also” (“it is also precise, for it teaches . . .”). See Adin Steinsaltz, The Talmud: The Steinsaltz Edition, A Reference Guide (New York: Random House, 1989), 109. Jastrow reads deyqa in this expression as a noun, meaning “evidence by conclusion,” with deyqa nami meaning “there is also an evidence, i.e., I can also prove it,” see Jastrow s.v. deyqa. 21. On secondary burial in Jewish Palestine of late antiquity, see: S. Krauss, “La Double Inhumation Chez les Juifs,” REJ 97 (1934): 1–34; P. Bar-Adon, “Le-Minhag Ha-Qevurah Ha-Sheniyah Ve-Liqut Atsamot,” Yedi’ot Ha-Hevrah Le-Haqirat Erets Yisra’el Ve-Atiqoteha 5 (1937): 70–71; S. Yevin, “He’arah,” Yedi’ot Ha-Hevrah Le-Haqirat Erets Yisra’el Ve-Atiqoteha 5 (1937): 103; Nahman Avigad, “Ir Ha-Qevarot Shel Yerushalayim Bi-Yemei Ha-Bayit Ha-Sheni,” Sefer Yerushalayim, ed. Shmuel Yevin (Jerusalem: Mossad Bialik; Dvir, 1956), 320–35; Eric M. Meyers, “Secondary Burials in Palestine,” BA 33 (1970): 2–29; idem, Jewish Ossuaries, Reburial and Rebirth: Secondary Burials in Their Ancient Near Eastern Setting (Rome: Biblical Institute Press, 1971); idem, “Secondary Burials in Palestine,” in The Biblical Archaeologist Reader Four, ed. by E. Campbell and D. Freedman (Shefﬁeld: Almond, 1983), 91–114; Levi Y. Rahmani, “A Tomb on Shahin Hill,” IEJ 8 (1958): 101–105; idem, “Review of E. M. Meyers—Jewish Ossuaries: Reburial and Rebirth,” IEJ 23 (1973), 121–26; idem, “Glusqmot”; idem, “Tosefet Le-Ma’amar Glusqmot Ve-Liqut Atsamot Be-Shilhei Tequfat Bayit Sheni,” Qadmoniot 12 (1979): 30; A. Kloner, “Me’arat Qevarim Mi-Yemei Bayit Sheni Ve-Givat Ha-Mivtar Bi-Yerushalayim,” Peraqim Be-Toldot Yerushalayim Bi-Yemei Bayit Sheni, ed. Aharon Oppenheimer (Jerusalem, 1981) 191–224; Rachel Hachlili and Ann Killebrew, “Jewish Funerary Customs During the Second Temple Period, in the Light of the Excavations at the Jericho Necropolis,” PEQ 115 (1983): 109–139; Vassilios Tzaferis, “Cruciﬁxion— The Archaeological Evidence,” BAR 11, no. 1 (1985): 44–53; Nissan Rubin, “HaQevurah Ha-Sheniyah Be-Erets Yisra’el Bi-Tequfat Ha-Mishnah Ve-Ha-Talmud— Hatsa’ah Le-Model Shitati Le-Qesher She-Vein Ha-Mivneh Ha-Hevrati Le-Darkhei HaTipul Ba-Met,” Qevarim Ve-Nohagei Qevurah Be-Erets Yisra’el Ba-Et Ha-Atiqah, ed. Itamar Singer (Jerusalem: Yad Izhak BenZvi; The Israel Exploration Society, 1994), 248– 69; see also the discussion in Jon Davies, Death, Burial and Rebirth in the Religions of Antiquity (New York: Routledge, 1999), 80–82.

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22. The baraita’s word is mahamorah. See Patrich’s explanation, “Qevurah Rishonah,” 193–94, which follows Lieberman, that it is a large ditch dug into the ground or carved into rock, either inside a burial cave or outside, into which the entire body was placed, found frequently in graves of the third and fourth centuries. 23. The word here is subject to much variation: razin, arazin, yarazin. Both Zlotnick and Lieberman propose that the word comes from the Greek soros and refers to a holder for bones or dust; see Zlotnick on Sem. 12:8 and Lieberman, Tosefta Kifshuta, 5: 1235. On this text see also Meyers, Jewish Ossuaries, 59–61; Hachlili and Killebrew, “Jewish Funerary Customs,” 119; Rachel Hachlili, “The Goliath Family in Jericho: Funerary Inscriptions from a First Century,” BASOR 235 (1979): 55. 24. y. Mo’ed Qat. 1:5 (80c), and parallels in y. Sanh. 6:12 (23d) and y. Pesah. 8:8 (36b). Perhaps the text should be translated: “They have released my father from torture,” following Lieberman’s observation that the Hebrew din often means torture. See Saul Lieberman, “Roman Legal Institutions in Early Rabbinics and in the Acta Martyrum,” Texts and Studies (1944; repr., New York: Ktav, 1974) 71n99. I thank Burt Vistozky for this observation. 25. Meyers, Jewish Ossuaries, 81. 26. Ibid., 85. Meyers is reluctant, however, to associate the practice of secondary burial with any particular belief in resurrection, unlike other scholars; for example, see Rahmani, “Tomb on Shahin Hill,” 105. 27. See Rahmani’s review of Meyers, where this criticism is central. 28. Rahmani, “Tomb on Shahin Hill,” 117–18, see especially nn. 6 and 7; idem, “Glusqmot,” 103–104; idem, “Review of Meyers,” 121. 29. “Glusqmot,” 104. 30. “Jewish Funerary Customs,” 129: “Rahmani’s suggestion seems to us a plausible explanation of this custom, particularly in view of the historical and social events of the period.” 31. Kraemer, Meanings, 35. 32. I thank Burt Vistozky for pointing out the signiﬁcance of the root k-f-r. 33. Bar-Adon, “Le-Minhag Ha-Qevurah Ha-Sheniyah.” See Rubin, “Ha-Qevurah Ha-Sheniyah” in Qevarim Ve-Nohagei Qevurah, 248–69, which is reprinted in abbreviated form in his book, Qets Ha-Hayim, 145–53. 34. Rubin, “Ha-Qevurah Ha-Sheniyah,” 263, and see esp. 263nn56–57. On ﬁndings of ossuaries piled next to and above each other, see Hachlili and Killebrew, ibid., 119; Rachel Hachlili, “A Jerusalem Family in Jericho,” BASOR 230 (1978): 45; idem, “Goliath Family,” 56–57; Avigad, “Ir Ha-Qevarot,” 325. 35. In addition to Rubin, Meyers also emphasizes the signiﬁcance of the family in understanding secondary burial: “In a secondary burial the emphasis is on the keeping of the remains within the precincts of the family tomb . . .” (Meyers, “Secondary Burials,” 112). Davies suggests a practical explanation for secondary burial that is somewhat different from Rubin’s. He proposes that the use of ossuaries among Jews may reﬂect “not so much a diminished respect for the long dead as a powerful and prioritising respect for the newly-dead, as tombs and loculi were used over and over again, with the space vacated by the former not available to facilitate the proper treatment of the latter” (Death Burial, and Rebirth, 8). 36. Steven Fine, “A Note on Ossuary Burial and the Resurrection of the Dead in First-Century Jerusalem,” JJS 51 (2000): 69–76. 37. Rubin, “Ha-Qevurah Ha-Sheniyah,” 265–66. 38. “Ha-Qevurah Ha-Sheniyah,” 266–67. When I distinguish between “practical” and “religious” explanations, I do not intend to say that there are not religious

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beliefs fueling the concern for family burial. Rather, by a “practical” explanation I mean that secondary burial was a relatively neutral practice in the pursuit of providing a family burial; by a “religious” explanation I mean that secondary burial was itself infused with religious value. 39. t. Sanh. 9:8 (Zuckermandel ed., 429). 40. If Meyers and others are correct that secondary burial does signify in the tannaitic worldview the completion of a process of atonement, the Tosefta can still be made to make sense. By mentioning secondary burial here, the Tosefta may be using a kind of a fortiori argument to show that the criminal’s atonement is not recognized; even secondary burial, which normally gives time for the dead man’s atonement, does not function with the same success in the case of the criminal. In other words, by legislating that secondary burial remains separate burial, the Tosefta may be emphasizing that the criminal’s atonement never fully takes place, that it never earns for him a place by his fathers. Even by the time of secondary burial, even if the criminal is theoretically atoned, the criminal still does not deserve family burial. 41. Here I follow, at least for this case, the recent work of Judith Hauptman hypothesizing that traditions in the Mishnah are often distillations of the Tosefta and rely upon the audience’s knowledge of the Toseftan tradition for clariﬁcation; see Judith Hauptman, “Mishnah as a Response to ‘Tosefta’,” The Synoptic Problem in Rabbinic Literature, ed. Shaye J. D. Cohen (Providence, R.I.: Brown Judaic Studies, 2000), 13–34. See also Judith Hauptman, “Does the Tosefta Precede the Mishnah: Halakhah, Aggada, and Narrative Coherence,” Judaism 50 (2001): 224–40. On this question of the possible priority of traditions in the Tosefta, see also Shamma Friedman, Synoptic Parallels of Mishna and Tosefta Analyzed with a Methodological Introduction (Tosefta Atiqta: Masekhet Pesah Rishon: Maqbilot Ha-Mishnah Ve-Ha-Tosefta u-Ferushan Be-Tseruf Mavo) (Ramat Gan, Israel: Bar-Ilan University Press, 2002). 42. Judith Hauptman and Christine Hayes both suggested this possibility to me when I gave this chapter as a paper at the Association of Jewish Studies Conference of 2001. 43. Shemesh, Onashim Ve-Hata’im, 45n20 contains a lengthy discussion of this mishnah where he comes to the same conclusions as I do here, based on very similar reasoning. 44. m. Sanh. 6:2; t. Sanh. 9:5. 45. Rubin makes this point: “Scholars of the land of Israel have investigated this phenomenon greatly, and there is no dispute among them with respect to the ﬁndings themselves; the problem is in understanding the meaning of secondary burial, whether it is connected to a particular eschatological conception” (“Ha-Qevurah HaSheniyah,” 249). On the matter of dating: according to Rubin, the practice of bone collection into ossuaries was known in the Jewish community from the ﬁrst-century b.c.e. until the third-century c.e., though in Jerusalem the practice ceased earlier by 135 c.e.; see “Ha-Qevurah Ha-Sheniyah,” 248 (Rubin follows Rahmani—see Rahmani, “Glusqmot,” 111). Kraemer extends the period of ossilegium (bone collection) among Jews until the mid-fourth-century; see Meanings, 51. Hachlili and Killebrew, however, limit ossilegium primarily to the Second Temple period; see “Jewish Funerary Customs,” 127. In “The Goliath Family,” Hachlili limits the custom of secondary burial in ossuaries among Jews to a period beginning in the early ﬁrst-century c.e. and continuing only until 70 c.e., with sporadic appearances until the mid-secondcentury; see 62–63. Tzaferis dates the use of ossuaries to the Herodian dynasty, ending in the second half of the second-century c.e. See also Meyers’s discussion of dat-

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ing, Jewish Ossuaries, 39–44, where his conclusions for a terminus ad quem are unclear. 46. Meir Bar-Ilan, “Ha-Qevurah Be‘Nahalat Avot’ Bein Ha-Yehudim Ba-Et HaAtiquah,” Qevarim Ve-Nohagei Qevurah Be-Erets Yisra’el Ba-Et Ha-Atiqah, ed. Itamar Singer (Jerusalem: Yad Izhak Ben-Zvi; The Israel Exploration Society, 1994), 220n44. In this note, Bar-Ilan proposes what I am arguing in this chapter, that the Mishnah, when read separately from the Babylonian Talmud’s pericope, directs separate burial in the criminal gravesite and does not permit reincorporation of the criminal. 47. The Palestinian Talmud’s pericope on this mishnah provides an interesting contrast to the Babylonian Talmud: A tragedy happened to Rabbi Abahu: one of his children passed away. Rabbi Yonah and Rabbi Yosi entered [to visit him]. When they saw his face, they were afraid; they did not say to him any words of Torah. He said to them: Would the Rabbis care to say a word of Torah? They said to him: Would you care to? He said to them: Just as the authority below, where there is falsehood, lying, deception, bias, and bribery, and we are here today and gone tomorrow, “the relatives come and salute the judges and the witnesses, to say that we have nothing in our hearts against you, that you judged a judgment of truth”; so too with the authority above, where there is no falsehood, lying, deception, bias, or bribery, and He lives and exists forever and ever, how much the more so are we obliged to accept upon us God’s justice. And it says: “. . . and show you compassion, and in His compassion increase you as He promised your fathers on oath.” (Deut 13:18) In this story, Rabbi Abahu, a fourth-century Palestinian Amora, delivers a teaching upon the occasion of the death of one of his children. He makes an a fortiori argument: If the relatives of the executed criminal must make their peace with the human judges, how much the more so must all human beings make their peace with God in the event of a loved one’s death. Rabbi Abahu’s logic rests on a contrast between the ﬂaws of human justice and the perfection of divine justice, implying that the reconciliation of the criminal’s relatives with the court is imposed not because it was correct in its judgment, but because authority must be embraced even at great cost to oneself. This story, roughly parallel chronologically to Rav Ada’s comment in the Babylonian Talmud, does not result in any speciﬁc legal differences between the Palestinian Talmud and Babylonian Talmud but does express a quite different perception of the criminal and the justice of his death. In Rabbi Abahu’s analogy between the execution of a criminal and the loss of his own child, the criminal and his relatives are portrayed sympathetically, while the court is criticized. Moreover, the story makes the relatives, in their reconciliation with the court in the face of grief, a paradigm of faith. Rav Ada emphasizes, on the contrary, the unworthiness of the criminal to be mourned. 48. Family burial is deﬁned in patriarchal terms as “burial with the fathers.” See Bar-Ilan, “Ha-Qevurah Be‘Nahalat Avot,’ ” 225n66, on patrilocal burial within patriarchal societies. 49. Hachlili and Killebrew, “Jewish Funerary Customs,” 128. 50. See also Avigad’s description of the large-scale burial village found in the Jerusalem environs: “all these burial caves are family burial sites” (“Ir Ha-Qevarot,” 321). 51. Rubin, Qets Ha-Hayim, 142. See, for example, Sem. 13:8: “All who sleep with him in his life are buried with him in his death.” On the importance of family burial

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in the rabbinic world, see also Bar-Ilan’s discussion, “Ha-Qevurah Be‘Nahalat Avot,’ ” 219–24. 52. See Bar-Ilan’s discussion of these laws, 220–21, and Zlotnick, The Tractate “Mourning” (Semahot), 20. 53. Davies, Death, Burial, and Rebirth, 148. Hopkins describes the important role played by family tombs in Roman life: “We have to imagine Roman families picnicking al fresco at the family tomb, where, according to Christian critics, they often got boisterously drunk, with their dead relatives around them” (Keith Hopkins, Death and Renewal: Sociological Studies in Roman History [New York: Cambridge University Press, 1983], 233). Hopkins remarks that Roman tombs rarely had family members from more than several generations; see 205–206. On Roman tomb visits, see also Paul Veyne, The Roman Empire, trans. Arthur Goldhammer (Cambridge: Belknap Press of Harvard University Press, 1997), 169–71. 54. Rubin, Qets Ha-Hayim, 140. Bar-Ilan also interprets family burial as a marker of continuity; see “Ha-Qevurah Be‘Nahalat Avot,’ ” 225. The assumption behind these practices is some kind of postmortem existence; see Bar-Ilan, 227, and for a more detailed discussion, see Kraemer’s Meanings, where he argues that the Rabbis believed death to be an extended process. 55. Bar-Ilan, “Ha-Qevurah Be-Nahalat Avot,’ ” 219–20 (my translation). Bar-Ilan explains here that not only executed criminals but also apostates and children of forbidden intercourse would have been buried separately; see 222–24. 56. b. Sanh. 47a. 57. Against Apion 2.205 (discussed in Hachlili and Killebrew, “Jewish Funerary Customs,” 120–21). 58. Esther Cohen, “ ‘To Die a Criminal for the Public Good’: The Execution Ritual in Late Medieval Paris,” Law, Custom, and the Social Fabric in Medieval Europe: Essays in Honor of Bruce Lyon, ed. Bernard S. Bachrach and David Nicholas (Kalamazoo, Mich.: Medieval Institute Publications, Western Michigan University, 1990), 294. A similar case is the executions of early modern England and the Netherlands, where the corpses of criminals were given to the anatomy room or exposed on the gallows, denying to the criminal burial with his community. Burial with one’s community was a major concern for criminals in Europe well into the eighteenth century according to Pieter Spierenburg, The Spectacle of Suffering: Executions and the Evolution of Repression (New York: Cambridge University Press, 1984), 90. 59. Zlotnick argues that in talmudic and midrashic texts excessive mourning is considered punishable for the reason that it calls God’s justice into question (The Tractate “Mourning,” 27). I am arguing similarly that the Rabbis restrict the mourning of the criminal because it would call into question the justice of rabbinic decree. 60. Sophocles, Antigone, ed. David Grene and Richmond Lattimore, trans. David Grene (Chicago: University of Chicago Press, 1991), 187. For other ancient narratives in which relatives risk their lives in order to bury their kinsmen, see Saul Lieberman, “Some Aspects of After Life in Early Rabbinic Literature,” Harry Austryn Wolfson Jubilee Wolfson, (English Section) (Jerusalem: American Academy for Jewish Research, 1965), 2:519–21. 61. In Flaccum 83 (LCL ed., translated by F. Colson and G. Whitaker, [Cambridge, Mass.: Harvard University Press, 1941] 9:346–49). 62. Annals 6.10 (LCL ed., trans. John Jackson [Cambridge.: Harvard University Press, 1986], 4:170–71). 63. See also Cassius Dio’s Roman History, 58.4.5–6 (LCL ed., trans. by Earnest Cary, [New York: MacMillan, 1914–1927], 7:196–97).

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64. Bauman suggests that Tacitus may not have given us the full details of Vitia’s offense; see Richard A. Bauman, Crime and Punishment in Ancient Rome (New York: Routledge, 1996) 63. Bauman speculates that this rule, prohibiting mourning for those who commit suicide in order to avoid a conviction, goes back to the republican period. 65. Annals 6.19 (LCL ed., 4:186–87). 66. Lives of the Caesars, 61.2 (LCL ed., trans. by J. C. Rolfe, 1:394–95). 67. Digest of Justinian 48.24.1, collected from Ulpian’s “Duties of the Proconsul,” bk. 9 (trans. and ed. Alan Watson, The Digest of Justinian, ed. Theodor Mommsen and Paul Krueger [Philadelphia: University of Pennsylvania Press, 1985], 863). 68. The practice of denying to the family the body of the executed criminal continues into medieval and modern Christian Europe, with similar political and religious signiﬁcance: “. . . it was the fate of criminals who were hanged from the gallows or displayed publicly on the wheel to be denied proper Christian burial, despite the protestations of family members, whose honour was also impaired by judicial harshness on this issue. In the words of an eighteenth-century encyclopedist, ‘For, though no more bodily pain is inﬂicted hereby, yet the shame done to the body by the denial of burial is accounted an increase in the punishment’ ” (Mitchell B. Merback, The Thief, the Cross, and the Wheel: Pain and the Spectacle of Punishment in Medieval and Renaissance Europe [Chicago: University of Chicago Press, 1998], 214). 69. Lieberman emphasizes this contrast between the Rabbis and the Romans, arguing that “the Roman practice of depriving the executed criminals of the right of burial, and exposing the corpses on the cross for many days, an atrocity often inﬂicted on the Christian martyrs, horriﬁed the Jews.” At the same time, Lieberman describes the same practices existing within the Jewish tradition, performed, for instance, by King David (2 Sam 21:9–10) and the Maccabees (1 Macc 7:46). See Lieberman, “Aspects,” 517. 70. The phrase sho’alim be-shalom appears with some variation: The Paris manuscript of the Mishnah has sho’alin et shalom while the Palestinian Talmud’s version of the Mishnah includes neither preposition nor article—sho’alin shalom. See Krauss, Mishnah Treatise Sanhedrin, 16n16. The different versions of the expression might suggest slightly different construals. 71. m. Git. 5:9; m. Shev. 4:3. 72. t. Avod. Zar. 1:2–3. 73. Another version of the Mishnah appears without the expression “that is to say” (kelomar, absent in Mishnayot Napoli), perhaps suggesting that the Mishnah’s explanation is meant to function as a text in some sort of formalized ceremony of reconciliation. 74. See my discussion earlier in chapter 3, 85–86. 75. See Rubin, Qets Ha-Hayim, 181–82, for a discussion of the rabbinic prohibitions of greetings for mourners. 76. Ibid., 181. 77. The Meiri, in his commentary on the Mishnah, makes just this association between the practice of she’ilat shalom and the prohibition on mourning, an association that gets eclipsed by the traditional Talmud-inﬂuenced readings of this Mishnah: And when the ﬂesh is consumed, they gather the bones and bury them in their place—in the burial place of their fathers—and the relatives make them a cofﬁn and burial clothes; and they mourn them neither at the time

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notes to pages 140–142 of death nor at the time of the collection of the bones, but rather the relatives who are ﬁt to mourn come and salute the witnesses and the judges, that is to say that we have nothing in our hearts against you, that you judged a judgment of truth, and he caused it to himself. And thus they do not show sorrow in their deaths but rather mourn the day of the death by themselves, since mourning the day of the death is only in the heart.

In the Meiri’s formulation, she’ilat shalom seems to act as a substitute for mourning, which I am arguing is precisely how it functions: The relatives who would mourn must go to reconcile themselves to the court instead. The Meiri also adds to the Mishnah’s explanation of she’ilat shalom: “and he caused it to himself.” In this formulation, the court seems not to be responsible for the execution at all; the criminal alone is responsible. The Meiri goes on to explain the restriction to aninut not by referring to atonement but by emphasizing public consequences—“showing sorrow.” 78. Cohen, “ ‘To Die a Criminal’,” 300. 79. Lee Levine, The Rabbinic Class of Roman Palestine in Late Antiquity (Jerusalem: Yad Izhak Ben Zvi; Jewish Theological Seminary of America, 1989), 58. 80. Ibid., 61. 81. Daniel Boyarin, Carnal Israel: Reading Sex in Talmudic Culture (Berkeley: University of California Press, 1993), 197–225. 82. Rabbinic midrash struggles with a conﬂict between this biblical narrative and rabbinic law, which imposes the penalty of burning only on a priest’s daughter and particular crimes of incest (see Genesis Rabbah 85, 10, as well as almost all the traditional medieval Torah commentaries). 83. Such is the interpretation of Nahum Sarna in Genesis (Philadelphia: The Jewish Publication Society, 1984), where he tries to make v. 22 consistent with Joseph’s interpretation of the baker’s dream in v. 19 as well as with its ancient Near Eastern context; see 280. 84. Of these narrative passages in which male authority ﬁgures command execution, none shows these ﬁgures as direct agents of execution—the servants of the king are always responsible for the nuts-and-bolts of execution. I discuss this phenomenon, i.e., the distancing of the issuing authority from the implementation of execution, below and in chapter 3. 85. See Alter’s reading of the story of Judah and Tamar as that of a “painful moral education” (Robert Alter, The Art of Biblical Narrative [New York: Basic, 1981], 11). Judah’s moral inadequacies are reﬂected especially in his call for Tamar’s execution, according to Alter: “The naked unreﬂective brutality of Judah’s response to the seemingly incriminating news is even stronger in the original, where the synthetic character of biblical Hebrew reduces his deadly instructions to two words: hotzi’uha vetisaref” (9). 86. Mekhilta Mishpatim, Masekhta de-Kaspa 10 (Horovitz-Rabin ed., 327; Lauterbach ed., 170); t. Sanh. 6:6 (Zuckermandel ed., 424); y. Sanh. 6:5 (23b); b. Mak. 5b; b. Hag. 16b. 87. On the reign of Alexander Jannaus, or Yannai as he is known in rabbinic sources, see Emil Schu¨rer, History of the Jewish People in the Age of Jesus Christ (175 b.c.–a.d. 135), ed. Geza Vermes and Fergus Millar, trans. T. A. Burkill, et al (Edinburgh: T. and T. Clark, 1973–87), 1:219–32. On the rabbinic reports of interaction between Yannai and Shimon ben Shetah, see Schu¨rer, History, 1:221–22, 231; on Shimon ben Shetah, see also 2:360–63. The dating of Shimon ben Shetah and Judah ben Tabbai to the reign of Yannai is based on the rabbinic reports, which Schu¨rer

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already calls unreliable. Josephus does not mention either Shimon ben Shetah or Judah ben Tabbai. 88. See Hoenig’s discussion of the zugot as the early heads of the Sanhedrin and the question of whether the rabbinic reconstruction of history is accurate: Sidney B. Hoenig, The Great Sanhedrin: A Study of the Origin, Development, Composition, and Functions of the Bet Din Ha-Gadol During the Second Jewish Commonwealth (New York: Bloch, 1953), 37–40. Hoenig considers and rejects the position that the “reports in the Mishnah of the existence of a Nasi and Ab Bet Din at the head of the Great Sanhedrin are the ‘transference’ or ‘retrospection’ of the later organization of Jabneh into the earlier period of the Second Temple” (39). Efron, who is generally skeptical in his reading of the rabbinic sources, nevertheless says similarly that “there is insufﬁcient reason to consider them purely anachronistic deﬁnitions [the posts of Nasi and Av Bet Din, said to be occupied by the zugot]” (Joshua Efron, Studies on the Hasmonean Period [Leiden: E.J. Brill, 1987], 294). 89. I am following Jastrow’s translation here; see s.v. lev. The phrase appears elsewhere in rabbinic literature, used only with the Boethusians or Sadducees, only in Babylonian baraitot, and usually with the inﬁnitive lehotsi (to take out) rather than la’aqor (to uproot), as it is here. The phrase—its grammar, its development, and its meaning—deserves more study. See n. 97 below for further discussion. 90. The parallels in the Palestinian and Babylonian Talmuds have “Sadducees.” The Boethusians seem to have been a subgroup of the Sadducees; on the identity of the Boethusians vis-a`-vis the Sadducees, see Louis Finkelstein, The Pharisees: The Sociological Background of Their Faith (Philadelphia: The Jewish Publication Society of America, 1966), 2:762–79. See also Lawrence Schiffman, From Text to Tradition: A History of Second Temple and Rabbinic Judaism (Hoboken, N.J.: Ktav, 1991), 111–12. 91. t. Sanh. 6:6 (Zuckermandel ed., 424). The parallels show variation about what Judah ben Tabbai does at the end of the story. Babylonian Talmud parallels have bifnei or lifnei instead of al pi, meaning “before Shimon ben Shetach” rather than “according to Shimon ben Shetach” (I would speculate that the Babylonian Talmud has edited the baraita to adapt it to the pericope that follows in Hagigah—see the text there). The Palestinian Talmud has yet another variant: mipi. The Munich manuscript of b. Hagigah takes out the word ela (only); Rabbinovicz, in his note on Hagigah, speculates that this may be the correct version, though he remarks that the Makkot manuscripts do contain the word ela. 92. The Mishnah should read nefesh be-nefesh, following Deut 19:21, which deals with the crime of conspired testimony. Leviticus 24:18 quoted here, on the other hand, gives the law for the destruction of animals, that one who kills an animal must replace it with another. The Leviticus formula was used here perhaps because the lex talionis was known better in that form. 93. The Mishnah and Tosefta differ on the matter of the Sages’ position regarding when the conspiring witnesses incur punishment. According to the Tosefta, the sages’ concern in their legislation is not that the punishment of the conspirers takes place before the punishment of the falsely convicted man, but only that it take place after the case is completely closed (and not after the testimony is given, for instance). In other words, the sages of the Tosefta do not explicitly rule out that the conspiring witnesses can also be punished after the punishment of the falsely convicted man. The sages of the Mishnah, on the other hand, clearly rule this out, giving the punishment of false witnesses only a very small window of opportunity between the closing of the case and the carrying out of the punishment. See H. Albeck’s discussion, Shishah Sidrei Mishnah, Seder Neziqin, 463–64.

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94. Shimon ben Shetach’s reprimand varies among the textual witnesses. Here in the Tosefta, he quotes Deut 17:6 followed by his own version of the legislation. In the Mekhilta, he paraphrases the Torah and then gives the legislation that he recites in the Tosefta; in the Babylonian Talmud he quotes the speech of the sages—“behold did not the sages say . . .”—and then gives the law in the form in which it is found earlier in the Tosefta, before the narrative. In the Palestinian Talmud, Shimon ben Shetach does not make clear the basis of his accusation. 95. The Mekhilta does not include this ﬁnal concession on the part of Judah ben Tabbai (in most versions of the Mekhilta, the names are reversed, so it is Shimon ben Shetach who has killed the false witness). 96. In his commentary on the Palestinian Talmud’s version, Fraenkel proposes that Judah ben Tabbai killed the witness with his own hands; see n. 99 below. 97. This phrase does not appear, however, in the version of the baraita found in the Mekhilta, and appears in garbled form in the Palestinian Talmud’s baraita. I will refrain from speculating on whether the phrase is late, added to the original narrative, or an early part of the baraita that was later removed; the most I can say is that the inclusion of the phrase in the baraita is more common than not, appearing in the Tosefta, Babylonian Talmud, and in some form in the Palestinian Talmud. The phrase itself is awkward; if it means, as Jastrow interprets, “to uproot from the hearts,” then the inﬁnitive dangles with no direct object—“false opinion” must be inserted. The versions of the text where the “yud” is left out of the word m-l-b-n leave open the possibility that the word is not “from the heart,” but rather the noun malben, “foundation,” that is, “to uproot the foundation.” 98. One baraita, which deals with the practices of the red heifer, appears on b. Yoma 2a, b. Hag. 23a, and b. Zev. 21a; the other baraita deals with the incense offering and is found in on b. Yoma 53a. This second baraita is very similar in structure to the one under discussion, in which the sages engage in a dispute over Bible interpretation with the Sadducees. For this phrase, see also: b. Yoma 2a, 53a; b. Zev. 21a; Genesis Rabbah (Vilna ed.) 87:9, vayehi adonav; Tanhuma (Buber ed.) Vayetsei, 21, va-yomer elohim; Midrash Psalms (Buber ed.) 1:[21], be-rosh homiyot. For a discussion of this text and others in which the Rabbis explicitly refer to polemics with the Sadducees, see David Rosental’s response to Yisra’el Ya’aqov Yuval, “Ha-Pas’him al Shtei Ha-Se’iﬁm: Ha-Haggadah shel Pesah Ve-Ha-Pas’ha Ha-Notsrit,” Tarbiz 65 (1996): 26–28, and see Rosental’s references there. For a summarized discussion of the role of the Temple in sectarian controversies, see Shaye Cohen, From the Maccabees to the Mishnah (Philadelphia: Westminster, 1987), 131–32. 99. David Fraenkel, in his Shirei Qorban, responds to this rather shocking feature of the story, asking: If the person deserved to be executed, then how can Judah ben Tabbai claim to have executed him with the purpose of sending a message to the Sadducees? Fraenkel resolves the problem by emphasizing the ﬁrst-person singular language that Judah ben Tabbai uses: Judah ben Tabbai sent a message to the Sadducees not simply by executing the witness but by executing him with his very own hands. Thus Judah ben Tabbai’s polemical intent did not have to do with executing the witness per se, but with executing him with his own hands. Fraenkel’s answer is not convincing, but his question points to the story’s notable ﬁrst-person formulation. 100. In the Mekhilta, only the retort begins with this oath. See for this expression (er’eh be-nehamah) also t. Ketub. 5:10, y. Ketub. 5:12 (30c), and b. Ketub. 67a. The expression is ambiguous: what precisely is the “consolation”? Moreover, the logic is puzzling. In each remark, the rest of the sentence is framed in the negative: “I will

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see the consolation if I did not kill . . . ,” “I will see the consolation if you did not shed innocent blood . . .” Both of these negative statements are false—Judah ben Tabbai did kill the witness, and Shimon ben Shetach does think that Judah ben Tabbai shed innocent blood—implying that the speaker does not want to see the consolation, which seems to be a strange intention on the part of the speaker, the consolation referring, according to Jastrow, to the restoration of Israel. Rashi offers two possible explanations of the idiom. Rashi’s ﬁrst explanation adds a lo to the beginning of the idiom, making both the “if ” and the “then” clauses negative so that the consequences will come out positive. According to this explanation, the gemara euphemistically takes out the lo so that the ﬁrst clause will sound like a blessing, even if the ﬁnal results then become logically tangled (the Tosafot give a similar explanation on b. Hag. 16b). Rashi’s second explanation tweaks the meaning of “consolation” so that it refers to the consolation the speaker would receive if his sons were to die before he did—a consolation that is undesirable. With this deﬁnition of “consolation,” the logic of the “if/then” clause ﬂows: “May I receive this consolation if I have not killed . . . ,” but if I have killed the witness, then I will not receive the consolation. 101. In ben Menahem’s reading of the story, the basis of Shimon ben Shetah’s criticism of Judah ben Tabbai is not that he departed from the law for political purposes, which according to ben Menahem was standard rabbinic practice, but rather that he went as far as he did, that he sacriﬁced human life for these ends. There are other cases, ben Menahem points out, in which Rabbis approve of extra-legal executions, but ben Menahem characterizes these cases as instances of “widespread moral corruption,” “where the moral state of society was in actually danger.” See Hanina Ben Menahem, Deviation in Talmudic Law, 101–107. 102. Mekhilta Mishpatim, Masekhta de-Kaspa, 10 (Horovitz-Rabin ed., 327; Lauterbach ed., 170–71); y. Sanh. 4:11 (22b); b. Sanh. 37b; b. Shev. 34a. 103. t. Sanh. 8:3 (Zuckermandel ed., 427). 104. In the Babylonian versions, Shimon ben Shetah uses the expression only once to introduce his narrative. In the Mekhilta, where the story is told about Judah ben Tabbai, he does not use the expression at all but says instead the euphemistic curse tavo alay, “May . . . come upon me,” which omits the substance of the curse. 105. In both the Tosefta and the Mekhilta, this story provides the paradigm (or steals the paradigm, depending on which came ﬁrst) for conjecture in the rules of evidence. The Mekhilta brings the story in interpreting Exod 23:7: They saw him pursuing someone else to kill him and the sword was in his hand; they said to him, “You should know that he is a son of the covenant, and the Torah said, ‘Whoever sheds the blood of man, by man shall his blood be shed’ ” (Gen 9:6). And he said to them, “I know, [and I do it precisely] because of that.” The witnesses hide their eyes. Afterwards they found a man dying and the sword dripping blood from the hand of the killer: do I learn that he should be held accountable? The Torah teaches: “Do not bring death on those who are innocent and in the right.” (Exod 23:7) This legislation—which is almost identical to that of the second story of Shimon ben Shetah (Judah ben Tabbai in the Mekhilta)—is used by the Mekhilta (and by the Tosefta) as an example of a case in which the witnesses can be certain that they know who the murderer is, but since they did not technically see the murderer, they cannot testify. The story with Shimon ben Shetah, however, assumes that the witnesses do have enough information; the problem is instead that there is only one witness.

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106. I say “more or less the same problem” because the problem is somewhat different in the two stories. In the story of the murder in the ruined building, the sage is entirely certain that the man before him has killed someone, but he is the only witness—thus the single witness problem is a problem of evidence. In the story with the conspiring witnesses, however, the problem is speciﬁc to the rules of conspiring witnesses, where one witness can be charged only if both are. The problems are similar enough, however, to have caused the stories to be linked or perhaps even to have been generated as a unit. 107. See note above. 108. This trope in rabbinic literature—to be prostrate over someone’s grave (mishtate’ah al qivro)—appears in two other texts in the Babylonian Talmud, Hag. 22b and Sotah 34b. The Hagigah usage is very similar to this one in Sanhedrin. In Hagigah’s narrative, Rabbi Joshua condemns a certain teaching of the house of Shammai. After being shown the rightness of the house of Shammai’s teaching, “he went and prostrated himself upon the graves of Beth Shammai. He said: ‘I crave your pardon, O bones of Beth Shammai . . . ’ It is said that all his days his teeth were black by reason of his fasts” (The Babylonian Talmud, ed. I. Epstein, trans. Maurice Simon [London: Soncino, 1965–1990]). Like in Sanhedrin, the main character, wracked with guilt and begging for pardon, prostrates himself over the grave of someone he has wronged, speciﬁcally through the medium of law. Also similar to Sanhedrin is that the main character spends the rest of his life doing penance. 109. The Babylonian Amoraim do not let the matter rest: Rav Aha the son of Rava suggests to Rav Ashi that perhaps the crying voice was all along that of the dead man, and that the voice ceased to be heard with Judah ben Tabbai’s death not because it was Judah ben Tabbai’s voice but because the dead man was ﬁnally appeased, or because the dead man ﬁnally called Judah ben Tabbai to judgment. These comments suggest a belief that the wrongly executed criminal may continue to haunt the living. 110. The sage’s act of execution is the direct cause of his death, since he seems to die in the story in order to silence the rumors about the voice’s being that of the ghost. 111. m. Sanh. 6:4. 112. In the Palestinian Talmud and in Rashi’s commentary on the parallel in the Babylonian Talmud, the story of Shimon ben Shetah’s execution of the eighty witches is greatly expanded. See y. Sanh. 6:6 (23c); y. Hag. 2:2 (77d–78a); Rashi on b. Sanh. 44b, s.v. de-baya mikhsa. For bibliography on this story, see Hayim Tsvi Taubes, ed., Otsar Ha-Geonim le-Masekhet Sanhedrin (Jerusalem: Mosad Ha-Rav Kook, 1966), 353n29; Abraham Naftali Tsvi Ruth, “Teshuvot Rav Paltoi Gaon Be-Ginzei Kaufmann,” Tarbiz 25 (1956): 146n46. For text analysis, see Moshe Assis, “Qeta shel Yerushalmi Sanhedrin,” Tarbiz 46 (1976): 56. For discussion, see Saul Lieberman, “On Sins and Their Punishments,” Seier Ha-Yovel Likhvod Louis Ginzberg (New York: Ha-Aqademiyah Ha-Ameriqanit Le-Mada’ei Ha-Yehadut, 1946), 249–70; Joshua Efron, “The Deed of Simeon ben Shetah in Ascalon,” Jews and Hellenistic Cities in Eretz Israel, ed. A. Kasher (Tu¨bingen: Mohr Siebeck, 1990), 318–41; Jonathan Lee Seidel, “Studies in Ancient Jewish Magic” (PhD diss., University of California at Berkeley, 1996), 210–19. Joseph Baumgarten, Haim Cohn, and David Halperin also discuss this story for its relevance to the history of cruciﬁxion; see my discussion above, chapter 2, 48–49. 113. m. Avot. 1:8–9. 114. This principle—that the power to execute boomerangs against the execu-

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tioner—is picked up by the Palestinian Talmud. In y. Sanh. 6:5–6 (23b), Shimon ben Shetah’s son is falsely convicted and executed, seemingly as a consequence of his father’s zeal: Shimon ben Shetah’s hands were heated (Jastrow, s.v. hamum, translates this clause: “he was very severe in executing judgment”). A band of scoffers came. They said: Let us give advice so that we can testify against his son to kill him. They testiﬁed against him and his verdict was delivered to be killed. When he went out to be killed, they said to him (Shimon ben Shetah): We are lying witnesses. His father wanted to restore him (his son). He (Shimon ben Shetah’s son) said to him: Father, if you want salvation to come through you, make me like an isqufa (a threshhold).” The P’nei Moshe commentary, following Rashi, associates Shimon ben Shetah’s zeal in this story with the eighty witches and identiﬁes the “scoffers” as the vengeful relatives of the witches. Whether the two stories are related or not, the theme emerges: Those who use force will themselves (or, in this case, their loved ones) become subject to it. 115. m. Sanh. 6:2; t. Sanh. 9:5 (Zuckermandel ed., 429); y. Sanh. 6:4 (23b); b. Sanh. 44b. 116. The Babylonian Talmud’s pericope questions the sages’ ready acknowledgment of his self-proclaimed innocence: Why are the sages here so quick to believe the convicted man? The Talmud’s anonymous redactor alters the circumstances of the case such that the witnesses retracted their testimony and even explained the reason for their retraction. In his commentary, the Meiri addresses this problem differently, instead modifying the manner of the confession: The one who goes out to be killed whom we see cry out “Violence!” upon his death, until from between his eyelids it becomes clear that he has been falsely accused, that is to say, that they have testiﬁed false testimony against him, until he speaks with a full heart and not in the manner of defense and deception. . . . 117. t. Sanh. 9:5. 118. Mishnah Sanhedrin 6:2 does not place the blame anywhere, while the Palestinian Talmud fuses the Mishnah’s and Tosefta’s versions. 119. See Assis’s discussion, “Qeta,” 73n19. Assis argues that this is the original version; see the parallel in m. Rosh Hash. 3:1. 120. See Richard Kalmin, “Jewish Sources of the Second Temple Period in Rabbinic Compilations of Late Antiquity,” vol. 3 in, The Talmud Yerushalmi and GrecoRoman Culture, ed. Peter Scha¨fer (Tu¨bingen: Mohr Siebeck), 3:17–54, on the intervening phrase, “When the matter came before the Sages . . .”/“When the Sages heard about the matter . . . ,” and his discussion of this text on 44–45. 121. In the Tosefta: “their eyes ﬂowed tears” (though the Vienna manuscript is missing the word “their eyes”; the text reads “they ﬂowed tears”). The Palestinian Talmud, on the other hand, leaves out the “tears”; the text reads “their eyes ﬂowed.” The Assis manuscript reﬂects the variant Tosefta reading. Clearly the idiom was subject to variation. 122. See also Sifre Deuteronomy 80 (Finkelstein ed., 146, and see Finkelstein’s notes); t. Zev. 2:17 (found also in b. Menah. 18a); t. Yad. 2:16; also y. Sheq. 5:1 (49a)/y. Yoma 3:9 (41a).

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123. See references in Ben-Yehuda Dictionary, s.v. z-l-g. 124. Agrippas reads the Torah standing, while the Mishnah requires only that the king take the Torah while standing; see the entire text of m. Sotah 7:8. 125. This phrase—“but let his blood be hanged on the neck of his witnesses”— seems to play with the double usage of t-l-y as both noun—teloy, “noose/loop”—and participle—talu’i, “hanging/attached to”. For instance, one could also translate: “but let his blood be a noose around the neck of his witnesses.” 126. An example of the former is m. Yoma 1:1’s appointing an extra wife for the high priest before the Day of Atonement, in order for him to fulﬁll the interpretation of Lev 16:6, “Aaron is to offer his own bull of sin offering, to make expiation for himself and for his household”—“his household”—that is his wife. “There is no end to the matter” is given as a rationale for not making this appointment (see also m. Pesah. 1:3). A case similar to the one here, where the expression justiﬁes legal stringency, is that of t. Sotah 1:1, where the Sages respond to Rabbi Judah’s leniency in sotah accusations that might lead to an absurd number of accusations. 127. The Sages’ explanation here in the baraita resonates with their parallel explanation in the Mishnah for their prohibition on such confessions: “If so, everyone will say this in order to clear themselves.” The Babylonian Talmud uses the baraita to explain the Mishnah; see b. Sanh. 44b, where the talmudic redactor asks on the Mishnah: “So let them clear themselves!” 128. The word qolar, similar to the Latin collare, referring to a wooden collar worn by prisoners, originating in the Greek kollarion/kloios (Ben-Yehuda, s.v. qolar). The qolar appears in rabbinic literature with this meaning, “the one who goes out in a qolar” describing a person taken prisoner by the Roman regime and condemned to death (m. Git. 6:5; b. Git. 65b.). The qolar of the prisoner is used by the Rabbis also as a simile for enslavement, e.g., “the one who makes a vow is like one putting a qolar on his neck” (y. Ned. 9:1 [41b] ). The metaphorical use of the qolar here in the baraita of Sanhedrin resonates with the literal meaning, evoking the principle of measure-formeasure: Just as the witnesses send the convicted man to his death, so will they be given a qolar on their necks, indicating their own punishment. 129. Mekhilta Bo, Masekhet de-Pis’ha 14, va-yehi mi-qets (Horovitz-Rabin ed., 51); Mekhilta Be-Shalah, Masekhet de-Amaleq 2, va-yomer adonai (Horovitz-Rabin ed., 182); Sifre Deuteronomy 29, va-yomer adonai (Finkelstein ed., 45–6); b. Rosh Hash. 17b; b. Ta’an. 29a; b. B. Bat. 60b, 121b; b. Avod. Zar. 5a; b. Zev. 113b. 130. t. Sanh. 9:11 (Zuckermandel ed., 429). 131. Pieter Spierenburg, Spectacle of Suffering, 97. Spierenburg writes that in the early nineteenth century, in the Netherlands as well as in Germany, schools often closed on the day of execution so that children could attend. In the middle of the century, the magistrates advised that the schools be left open; see 98. 132. m. Sanh. 7:2. The Babylonian Talmud’s pericope tries to reconcile the Mishnah with the Tosefta by declaring that there were two separate incidents; see b. Sanh. 52b. The pericope also describes an Amora performing an execution identical to the one witnessed by Rabbi Elazar the son of Rabbi Tsadoq when he was a child: Imarta the daughter of Tali was a priest’s daughter who deﬁled herself through harlotry. Rav Hama bar Tuviah surrounded her with bundles of branches and burned her. Rav Joseph said: He erred in two ways—he erred with respect to Rav Matna’s teaching [that the Mishnah wick should be one of lead] and he erred with respect to the [following] baraita: “And you shall appear before the levitical priests, or the magistrate in charge at the time”

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(Deut 17:9)—at the time when there is a priest there is judgment; at the time where there is no priest, there is no judgment. Rav Joseph criticizes Rav Hama on two counts: (1) Rav Hama did not execute her in the proper way—he did not use the wick of metal but rather burned her the oldfashioned way with bundles of branches, and (2) Rav Hama should not have executed her at all. Like the stories of Judah ben Tabbai and Shimon ben Shetah, the story of Rav Hama has its comic elements. Its protaganist is an obscure Amora, mentioned in all of talmudic literature only here and not entitled “Rav” in most versions of the pericope. The woman whom he punishes, Imarta bat Tali, also appears only in this story. Her ﬁrst name means “ewe” (female sheep), while her patronymic means “lamb” (young sheep), yielding the name, “Ewe daughter of Lamb.” Her burning at the stake is perhaps ﬁgured as a sacriﬁcial offering, considering her priestly connections. 133. Makhminim in the Vienna manuscript of the Tosefta and the printed edition. The Erfurt manuscript of the Tosefta uses the more generic word memitin. 134. The Mishnah has “witnesses” instead of Sages; this is the case also for this baraita as it appears in y. Sanh. 7:12 (25c–d), though the Palestinian Talmud does mention Sages, not witnesses, in the subsequent incident of Ben Stada. 135. The Babylonian Talmud’s version of this baraita on b. Sanh. 67a reverses these locations, so that the instigator sits in the internal room and the witnesses in the external room. Perhaps the Talmud’s editor found that arrangement more logical— if the instigator is tricky, as the Mishnah explains, then he might not wish to commit his crime in a more accessible spot (this is Rashi’s explanation). 136. See discussion of this text above, 14–15. This is construed as a reference to Jesus by most scholars. See Herford’s argument that this name, as well as Ben Pandera and Yeshua, refers to Jesus: Robert Travers Herford, Christianity in Talmud and Midrash (New York: Ktav, 1975) 344–47. Herford rightly argues that the various talmudic passages about Jesus should be read not historiographically but polemically (360). See also Hugo Mantel, Studies in the History of the Sanhedrin (Cambridge: Harvard Univeristy Press, 1961), 280, who follows Herford. See also D. Rokeah, “Ben Stada is Ben Panthera,” Tarbiz 39 (1969): 9–18. Since the law of the enticer is bound together with the Jesus story, it is possible that the law may have been at least partly generated by the Jesus story, the law furnishing an opportunity to describe and parody Jesus’ execution. This is the hypothesis of Bernhard Pick, Jesus in the Talmud: His Personality, His Disciples and His Sayings (Chicago: Open Court, 1913), 38–39, and referred to in Herford, 80. Herford claims that there is no basis for such a hypothesis, though he does not reject it outright. Herford does draw a connection, however, between the Tosefta’s procedure and the Gospel narratives, e.g., the outer and inner chamber mentioned in Matt 26:69, and the lighted lamp kindled in the outer court, mentioned in Luke 22:55 (Pick makes these connections as well). Mantel argues that the story of Ben Stada “dates in all probability from the second century and envisaged what was regarded as the idolatry of later Christians” (280). 137. The parallel m. Sanh. 7:10 calls for witnesses instead of Sages and greatly expands the law: For all the capital crimes of the Torah they do not entrap [a criminal] except for this one. He said [the enticement] to two [people], and these are his witnesses—they bring him to the court and stone him. He said [the enticement] to one [person], he should say: I have friends who want this. If he was clever and cannot speak in front of them—they place witnesses [lying] in wait for him behind an enclosure, and he says to him: Say what you said

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notes to pages 151–153 to me in private; and the other says [it] to him, and he says to him: How can we abandon our God who is in heaven and go and worship trees and stones? If he retracts, behold that is good (mutav). But if he said: Thus is our obligation, and thus is proper for us—those standing behind the enclosure bring him to the court and stone him. . . .

The Mishnah begins with an occasion in which no entrapment is necessary, a possibility absent from the Tosefta. The Mishnah then provides a strategy for entrapment only if the instigator is of a particularly sneaky cast; for the Tosefta, however, entrapment is the baseline strategy. Also, the Mishnah hides the witnesses behind a fence; the Tosefta places two Sages in an inner space while the alleged instigator sits unknowingly in a space outside them. Two different kinds of testimony are then elicited: According to the Tosefta, a candle is lit so that the sages can both hear and see the man, while the Mishnah seems concerned only with the witnesses’ hearing the incitement. The Tosefta’s strategy concludes here, shifting into an account of the particular case of Ben Stada in which this strategy was enacted, while the Mishnah goes on to give the instigator one more opportunity to retract. The Mishnah declares such a retraction to be mutav, good or better, suggesting that the strategy of entrapment involves no zeal for punishment on the part of the sages. In sum, the Mishnah seems to have softened the toseftan strategy, making the Sages seem less bent on entrapment. 138. A substantial number of the historiographical works on this story do take this position—see Efron’s article, and n. 112 above. See, for brief discussion and bibliography, Lee Levine, The Rabbinic Class of Roman Palestine in Late Antiquity (Jerusalem: Yad Izhak Ben Zvi; Jewish Theological Seminary of America, 1989), 16n9.

chapter 6 1. Other methods of punishment include: the sack, precipitation, exposure to the fork, and opportunity to commit suicide. I have drawn upon the following studies of Roman execution: Peter Garnsey, “Why Penal Laws Become Harsher: The Roman Case,” Natural Law Forum (1968): 141–62; idem, Social Status and Legal Privilege in the Roman Empire (Oxford: Clarendon, 1970); Roland Auguet, Cruelty and Civilization: The Roman Games (London: Allen and Unwin, 1972); Keith Hopkins, Death and Renewal: Sociological Studies in Roman History (New York: Cambridge University Press, 1983); Martin Hengel, Cruciﬁxion in the Ancient World and the Folly of the Message of the Cross (Philadelphia: Fortress, 1978); Denise Grodzynski, “Tortures Mortelles et Cate´gories Sociales. Les Summa Supplicia dans le Droit Romain Aux IIIe et IVe Sie`cles,” Du Chaˆtiment dans la Cite´: Supplices Corporels et Peine de Mort dans le Monde Antique, ed. Y. Thomas (Rome: L’E´cole, 1984), 361–403; Ramsay MacMullen, “Judicial Savagery in the Roman Empire,” Chiron 16 (1986): 147–66; Thomas E. J. Wiedemann, Emperors and Gladiators (New York: Routledge, 1992); Carlin Barton, The Sorrows of the Ancient Romans: The Gladiator and the Monster (Princeton: Princeton University Press, 1993); idem, “Savage Miracles: Redemption of Lost Honor in Roman Society and the Sacrament of the Gladiator and the Martyr,” Representations 45 (1994): 41–71; David Potter, “Martyrdom as Spectacle,” in Theater and Society in the Classical World, ed. R. Scodel (Ann Arbor: University of Michigan Press, 1993), 53–88; idem, “Performance, Power, and Justice in the High Empire,” Roman Theater and Society: E. Togo Salmon Papers, ed. W. J. Slater (Ann Arbor: University of Michigan Press, 1996), 129– 60; Paul Plass, The Game of Death in Ancient Rome: Arena Sport and Political Suicide (Madison: University of Wisconsin Press, 1995); K. M. Coleman, “Fatal Charades: Ro-

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man Execution Stages as Mythological Enactments,” JRS 80 (1990): 44–73; Shelby Brown, “Death as Decoration: Scenes from the Arena on Roman Domestic Mosaics,” Pornography and Representation in Greece and Rome, edited by Amy Richlin (Oxford: Oxford University Press, 1992), 180–211; Richard A. Bauman, Crime and Punishment in Ancient Rome (New York: Routledge, 1996); Erik Gunderson, “The Ideology of the Arena,” Classical Antiquity 15 (1996): 113–51; J. C. Edmondson, “Dynamic Arenas: Gladiatorial Presentations in the City of Rome and the Construction of Roman Society During the Early Empire,” Roman Theatre and Society: E Togo Salmon Papers, ed. W. J. Slater (Ann Arbor: University of Michigan Press, 1996), 69–112; Donald G. Kyle, Spectacles of Death in Ancient Rome (New York: Routledge, 1998). 2. Coleman, “Fatal Charades,” 60, 63. See also Auguet’s discussion, Cruelty, 100– 106, and Wiedemann, Emperors, 83ff. 3. In Flaccum 72–85. See Hengel, Cruciﬁxion, 35, for discussion. 4. Beheading: Jewish War 2.243 (Josephus uses the word pelekei from the verb pelekizo¯, “behead,” found also in Antiquities 20.117); burning: Jewish War 7.450; cruciﬁxion: Jewish War 2.75, 241, 253, 301, 306, 308; 3.321; 5.289; 5.450–51; Antiquities 17.295; 20.129 (and see Hengel, Cruciﬁxion, 26n16); arena: Jewish War 6.417–18; 7.23– 25; 7.37–38; 7.96. 5. The number of Jews actually executed is impossible to guess, though we should also keep in mind that the fear of execution does not necessarily depend on numbers. 6. Parama Roy, Indian Trafﬁc: Identities in Question in Colonial and Postcolonial India (Berkeley: University of California Press, 1998), 1. 7. Joshua Levinson, “ ‘Tragedies Naturally Performed’: Fatal Charades, Parodia Sacra, and the Death of Titus,” Jewish Culture and Society Under the Christian Roman Empire, Jewish Culture (Leuven: Peeters, 2003), 349–84. 8. Ibid., 378. 9. Joshua Levinson, “Atlet Ha-Emunah: Alilot Damim Ve-Alilot Medumot” (The Athlete of Piety: Fatal Fictions in Rabbinic Literature) Tarbiz 68 (1999): 61–86. 10. Arthur Segal, Theatres in Roman Palestine and Provincia Arabia (Leiden: Brill, 1995), 3. 11. Weiss, “Games,” 228. 12. Antiquities 15.268, 19.332–34. 13. Ibid., 331. 14. Jacobs, “Theatres,” 328–29. 15. On rabbinic familiarity with and legislation on Roman spectacles, see: Moshe David Herr, “Hashpa’ot Hitsoniyot Be-Olamam Shel Hakhamim Be-Erets Yisra’el— Qelitah u-Dehiyah,” Hitbolelut u-Temi’ah, Hamshikhi’ut u-Temurah Be-Tarbut HaAmim u-Ve-Yisra’el, ed. Yosef Kaplan and Menahem Stern (Jerusalem: Mercaz Zalman Shazar, 1989), 106–83; idem, “Bein Batei Kenesiyot Le-Vein Batei Teatra’ot VeQirqasa’ot,” Keneset Ezra, ed. S. Elizur, M. D. Herr, and G. Shaked (Jerusalem: Yad Izhak ben Zvi, 1994): 105–17; Marc Brettler and Michael B. Poliakoff, “Rabbi Simeon Ben Lakish at the Gladiator’s Banquet: Rabbinic Observations on the Roman Arena,” HTR 83 (1990): 93–98; Zeev Weiss, “Tarbut Ha-Bidur u-Mivnei Ha-Bidur LaHamonim Be-Erets Yisra’el Ha-Romit Ve-Hishtaqfutam Bi-Meqorot Hazal” (PhD diss., Hebrew University, 1994); idem, “Tarbut Ha-Pnai Ha-Romit Ve-Hashpa’atah al Yehudei Erets-Yisra’el,” Qadmoniot 28 (1995): 2–19; idem, “The Jews and the Games in Roman Caesarea,” Caesarea Maritima, ed. A. Raban and K. Holum (Leiden: Brill, 1996), 443–53; Martin Jacobs, “Theatres and Performances as Reﬂected in the Talmud Yerushalmi,” The Talmud Yerushalmi and Greco-Roman Culture, ed. Peter Scha¨fer (Tu¨-

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bingen: Mohr Siebeck, 1998) 372–48. On rabbinic martyrdom at the hands of Rome, see: Samuel Krauss, “Gladiator,” The Jewish Encylopedia, JewishEncyclopedia.com, http://www.jewishencyclopedia.com/view.jsp?artid⫽252&letter⫽G&search⫽gladiator; Saul Lieberman, “Roman Legal Institutions in Early Rabbinics and in the Acta Martyrum,” Texts and Studies (1944; repr., New York: Ktav, 1974), 57–111; idem, “The Martyrs of Caesarea,” Annuaire de l’Institut de Philologie et d’Histoire Orientales et Slaves 7 (1939): 395–446; idem, “Redifat Dat Yisra’el,” Salo Wittmayer Baron Jubilee Volume: Hebrew Section (Jerusalem: American Academy for Jewish Research, 1974), 213–45; Moshe David Herr, “Persecutions and Martyrdom in Hadrian’s Days,” Studies in History, ed. David Asheri and Israel Shatzman (Jerusalem: Magnes, 1972), 85–125; Gerald Blidstein, “Rabbis, Romans, and Martyrdom—Three Views,” Tradition 21.3 (1984): 54– 62; Ithamar Gruenwald, “Intolerance and Martyrdom: From Socrates to Rabbi ‘Aqiva,” Tolerance and Intolerance in Early Judaism and Christianity, ed. Graham N. Stanton and Guy G. Stroumsa (New York: Cambridge University Press, 1998), 7–29; Aryeh Cohen, “Towards an Erotics of Martyrdom,” The Journal of Jewish Thought and Philosophy 7 (1998): 227–56; Daniel Boyarin, Dying for God: Martyrdom and the Making of Christianity and Judaism (Stanford: Stanford University Press, 1999); Richard Kalmin, “Rabbinic Traditions About Roman Persecutions of the Jews: A Reconsideration,” JJS 54 (2003): 21–50. 16. I will discuss only texts in which the Rabbis express an opinion about the gladiatorial games, that is, texts where they deﬁne a stance vis-a`-vis the games. There are, in addition, many rabbinic texts in which the Rabbis mention the Roman theater for practical purposes, as an aside, or as an analogy or illustration; it would be worthwhile to look for patterns even in these seemingly neutral references. See discussion of such references by Weiss, “Tarbut Ha-Bidur,” 266–76. 17. Based on Ps 1:1–2 (this passage later quotes the verse explicitly): “Happy is the man who has not followed the counsel of the wicked, or taken the path of sinners, or sits in the seat of the scornful, but his delight is in the Torah of the Lord and he utters his Torah day and night.” 18. According to Herr, it should read karqosin, “circus,” (Herr, “External Inﬂuences,” 90n25). 19. See Jacobs, “Theatres,” 333: “The ﬁrst term, bokion, has been convincingly explained as boukkion, Bucco, the ﬁrst clown in a certain kind of folkloristic comedy . . . ,” and see 333n42 there. 20. Jacobs, 333–44: “Mokion, therefore, may be the third clown of these fables, called Maccus. The following term, molion, may be derived from Morio, another wellknown fool.” See Jacobs’s nn. 43–45. 21. Ibid., 334: “The ﬁnal pair, sagilaria, sagilarin, has been interpreted as a reference to the (ludi) saeculares, games to be celebrated once every century, and which included theatre performances, circus games and sacriﬁces”; see nn. 49, 50. Jacobs provides another suggestion for sagilaria as well, see p. 334. 22. The text reads tsadi-yud-yud-resh-vav. See Jacobs, “Theatres,” 333n38: The word is a corruption and should read tsadi-vav-vav-het, tsavah, as the Vienna manuscript and printed editions have (and as the Erfurt manuscript has in the next lines). According to Herr, it should read tsadi-yud-yud-het, which is equivalent to tsadi-vav-vavhet (Herr, “External Inﬂuences,” 90, n. 25). 23. t. Avod. Zar. 2:5–7. See Zuckermandel ed., 462, for text. Parallels: y. Avod. Zar. 1:7 (40a); b. Avod. Zar. 18b (esp. the JTS manuscript, Bet Ha-midrash Le-rabanim Be-New York, ed. Sh. Abramson [New York, 1957], 32–33). As Jacobs points out, this passage from the Tosefta and its (scrambled) parallel in the Palestinian Talmud con-

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tains many corrupted loan words from Greek and Latin, whose meaning has been the subject of much study. See Jacobs, “Theaters,” 333n41, for bibliography of scholarship on this text. For a discussion of the different terms the Rabbis use for the Roman theater, see Weiss, “Tarbut Ha-Bidur,” 245–49; for a discussion of the terms they use for the events that take place in them, see 255–57. 24. According to Jacobs, the expression “stadion” originally refers to the racecourse, but it comes in rabbinic texts to refer to gladiatorial combat. The terminology is unstable even in the Roman texts, see Jacobs, “Theatres,” 339. 25. See discussion of Rabbi Nathan’s legislation by Weiss, “Tarbut Ha-Bidur,” 235–39. 26. The precise meaning of mit’hashev is not clear here. According to Neusner, it refers to mental engagement in the performance, while according to Krauss it refers to betting on the games. See Jacobs, “Theatres,” 333n39, who follows Krauss. Important for my reading is the sense that one must not become personally invested in the games, whether that be psychological or ﬁnancial. 27. Confessions, 6.8 (13); (trans. Henry Chadwick [New York: Oxford University Press, 1991], 100–101. 28. Isaac Hirsch Weiss, Sifra de-Ve Rav (Vienna: Schlossberg, 1862), 86a. 29. y. Ber. 4:2 (7d). For discussion of this text, see Herr, “Hashpa’ot Hitsoniyot,” 90; and Herr, “Bein Batei Kenesiyot le-Vein Batei Teatra’ot Ve-Qirqasa’ot,” 118–19. See also Weiss, Tarbut Ha-Bidur, 225, esp. 225n38. 30. See Weiss, Tarbut Ha-Bidur, 225, 279: Genesis Rabbah 67:4 (Berischit rabba, ed., J. Theodor with corrections by Ch. Albeck in the 2nd printing [Jerusalem: Wahrmann Books, 1965], 757); b. Avod. Zar. 18b; Pesiqta Rabbati, hosafah 1’ 4 (ed. Me’ir Ish Shalom [Vienna: n.p, 1880; repr. Tel Aviv, n.p. 1963 or 1964] 200); Lamentations Rabbah, Petihta 17 (ed. Shelomoh Buber, 7b [Tel Aviv: n.p. 1963 or 1964]), etc. 31. See Jacobs’s discussion of this language and the cultural politics it entails, “Theatres,” 336, 346. 32. Mekhilta Mishpatim 18 (Horovitz-Rabin ed., 313; see note on line 5: most other versions of this text have Rabbi Shimon ben Gamliel). 33. Sifre Deuteronomy 207 (Finkelstein ed., 346); see also b. Avod. Zar. 17b. See discussion in Lieberman, “The Martyrs of Caesarea,” 418. 34. Mekhilta Masekhta de-BaHodesh, Parshat Yitro 6 (Horovitz-Rabin ed. 227). 35. See discussion below, “Comparing Systems,” 174–177. 36. Nivul hu zeh (also in Kaufmann manuscript). One also ﬁnds the versions: nivul hu lo or hu nivul lo, “it is a disgrace to him.” See Diqduqei Sofrim, b. Sanh. 52b, letter 20; and Krauss, Mishnah Treatise Sanhedrin, 17n9. 37. Qotsets (found in Kaufmann)/qofets: see Peretz Segal, “ ‘Hiyuv Be-Dinei Shamayim’: Hiyuvei Mitot Beit Din Ve-Hiyuvei Mitah La-Shamayim” (PhD diss., Hebrew University Law School, 1980), 112n93. See also the notes on this mishnah in Yair Lorberbaum, “Tselem Elohim: Sifrut Hazal, Ha-Rambam, Ve-Ha-Ramban,” (PhD diss., Hebrew University, 1997), 122–25; idem, “Adam, Dam, Demut—Al Mitat Ha-Hereg Be-Sifrut Ha-Tannaim,” Bar-Ilan Law Studies 15 (2000): 431–42. 38. Qoﬁts (found in Kaufmann)/qoﬁs: See Diqduqei Sofrim on b. Sanh. 52b, letter 20; Krauss, Mishnah Treatise Sanhedrin, 17n10. 39. Segal, “ ‘Hiyuv Be-Dinei Shamayim,’ ” 112, gives evidence that the Roman method of decapitation actually looked more like Rabbi Judah’s method of the axe. 40. Sifre Zuta 12 (Horovitz-Rabin ed., p. 274). 41. Sifra Behuqotai 3:8 (Weiss ed., 112d ). 42. I disagree here with Peretz Segal, who interprets the “disgrace” of the Mish-

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nah’s debate to be related to atonement: “tortures that are not necessary for achieving atonement through execution are a nivul” (“Hiyuv Be-Dinei Shamayim,” 116). In an interesting contemporary parallel to the Mishnah’s discussion, Austin Sarat describes a dissenting opinion written in 1994 by Judge Reinhardt of the Ninth Circuit Court of Appeals for the case Campbell v. Wood, which deals with the constitutionality of hanging, where Judge Reinhardt argues that executions can be cruel even when they are not particularly painful if they are degrading. See Austin Sarat, When the State Kills: Capital Punishment and the American Condition (Princeton: Princeton University Press, 2001), 75. 43. Segal, “Hiyuv,” 113, 118, and 160, n. 140. Kook also takes this approach; see “Din Ha-Malkhut Ba-Sayif,” Ha-Torah Ve-Ha-Medinah 3 (1951): 153–54. Lorberbaum rejects this hypothesis—see “Tselem,” 125n161, and “Adam, Dam, Demut,” 433n25. 44. Sifre Deuteronomy 221 (Finkelstein ed., 254); the phrase is absent in some manuscripts of the Sifre. A parallel baraita is found in b. Sanh. 46b. 45. See Joseph M. Baumgarten, “Does Tlh in the Temple Scroll Refer to Cruciﬁxion?” JBL 91 (1972): 478: “The object of this midrash is to exclude any possible exegetical basis for cruciﬁxion which is unmistakably identiﬁed as a Roman practice.” Henshke argues that you can ﬁnd a reference to Roman cruciﬁxion buried in Mishnah Sanhedrin. According to his reading of m. Sanh. 6:5, Rabbi Meir’s midrash on Deut 21:23 is intended to comfort Jewish audiences in light of the reality of Roman cruciﬁxion. Henshke reads Rabbi Meir to be saying that when human beings suffer during cruciﬁxion, so too does God suffer with them; if God suffers over wicked people who are cruciﬁed, how much the more so must he suffer over righteous Jews who are cruciﬁed by the Romans. If Henshke is right, then he has found another moment, in addition to those I have discussed in this chapter, where Roman execution gets resisted in the Mishnah. 46. See Lorberbaum, “Tselem,” 125n161: “The sword is in fact the method of execution generally attributed to the kingdom,” and Lorberbaum gives references to amoraic midrash and to Josephus, as well as to the Ketubbot text below. Krauss also interprets this Mishnah as referring to Rome; see Mishnah Treatise Sanhedrin, 44n3a. 47. b. Ketub. 30a; b. Sotah 8b; b. Sanh. 37b; see Talmud Bavli im Diqduqei Sofrim Ha-Shalem, ed. Moshe Hirschler (Jerusalem: Yad Ha-Rav Herzog, 1972), 1:219, note on line 16. 48. See also the baraita on b. Sanh. 56a, “every execution stated with respect to the Noahides is nothing but the sword,” where again decapitation is speciﬁcally associated with non-Jews. See also b. Berak. 32b and Leviticus Rabbah 6:5. 49. b. Avod. Zar. 41a. 50. It is not clear whether this explanation is original to the baraita or an addition by the redactor: The language, which repeats as an explanation for each prohibited item, suggests that it is an early explanation. 51. I have used Steinsaltz’s English translation, but the language is quite difﬁcult. The phrase is euphemistic, according to Rashi’s commentary. A literal translation would read: “that it kills itself beneath [or instead of] the entire world.” 52. Lorberbaum, “Adam, Dam, Demut,” 433. Lorberbaum footnotes only Segal, however, and I think Lorberbaum may be misreading Segal. For a comprehensive listing of scholars who explain the rabbinic method as derivative of the Roman one, see Segal, “ ‘Hiyuv Be-Dinei Shamayim,’ ” 149n94. Segal lists Adolf Bu¨chler, but I read Bu¨chler to be struggling with this issue; see Bu¨chler’s “Die Todesstrafen der Bibel und der Ju¨disch-Nachbiblischen Zeit,” Monatschrift fu¨r Geschichte und Wissenschaft des Judentums 50 (1906): 691–96.

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53. See Krauss, Urbach (1972), and Halperin. 54. Bu¨chler’s language is peculiar—he writes that Gen 9:6 “forced,” gezwungen, the Rabbis to come up not only with the punishment of decapitation but also with the particular method of the sword (692). 55. On the term capite puniri, literally, “capital punishment,” see Garnsey (1968: 148n32; 1970:105). The phrase is slippery, however, according to Garnsey, and sometimes can refer also to other penalties, such as in Digest 48.8.3.5, where it refers to exposure to beasts. The more speciﬁc terms used for decapitation are decollatio and condemnation ad gladium. 56. Decapitation continued to be considered the most honorable of execution methods in medieval and modern Europe (Spierenburg, Spectacle of Suffering, 71). 57. Wiedemann, Emperors, 69. 58. See James C. Scott, Domination and the Arts of Resistance: Hidden Transcripts (New Haven: Yale University Press, 1990), 70–107. 59. Homi K. Bhabha, The Location of Culture (London: Routledge, 1994), 88. 60. Scott, Domination, 4. 61. Daniel Boyarin, Dying for God, 42–66; Levinson, “Atlet Ha-Emunah: Alilot Damim Ve-Alilot Medumot,” 62–63. 62. Scott, Domination, xii. 63. Ibid., 5–6. 64. t. Sanh. 9:11 (Moshe S. Zuckermandel, Tosefta: Al Pi Kitve Yad Erfurt uViyenah [Jerusalem: Wahrmann, 1963], 429–30). This is the reading of the Vienna manuscript and the ﬁrst printed edition of the Tosefta (as well as the baraita in both Talmuds). According to the Erfurt manuscript, the Sages hold, along with Rabbi Judah, that the axe is the proper method, but they disagree with him over the reason: Rabbi Judah says: Behold it says, “And love your fellow as yourself ”(Lev 19: 18)—choose for him a nice execution. How do they do this for him? One lays his head on the block and cuts it off with an axe. They said to him: There is no execution more disgraceful than this. [absent: He said to them: Of course there is no execution more disgraceful] but rather, [one must do it this way] because of “. . . nor shall you follow their laws.” (Lev 18:3) This version of the Tosefta ascribes to the Sages a different legal position (the axe) than does the Mishnah (the sword). The problem with this version of the Tosefta is that it assumes a sword position that Lev 18:3 prohibits and that the axe comes to displace, yet according to this text, no one actually holds that position! According to Lorberbaum’s reconstruction, the Mishnah and Tosefta do not disagree, but, rather, each version of the baraita and the mishnah should be read as successive segments of a conversation. These are the steps of the conversation:

(1) the Sages lay out the sword position (mishnah) (2) Rabbi Judah criticizes the sword as a disgrace and lays out the axe position (mishnah) (3) the Sages criticize the axe as a disgrace (both versions of the baraita) (4) Rabbi Judah admits that the axe is a disgrace (Vienna version of baraita) (5) But raises the problem of “their laws” (both versions of baraita). See Lorberbaum, “Adam, Dam, Demut,” 454–56. There are some problems with this reconstruction. First, it smooths out differences between the Mishnah and the Tosefta and smooths out the reading of a difﬁcult text, two strategies that are hazardous for

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establishing an authentic text. Second, this reading entails that Rabbi Judah asserts that the axe is a mark of brotherly love and then almost immediately admits that the axe is the most disgraceful method of execution. The strangeness of this exchange perhaps suggests that it is a later text attempting to make sense of contradictory versions of this dispute, rather than the record of an original coversation, as Lorberbaum argues. 65. In fact, even idolatry has its gray areas: The Rabbis provide various dispensations for the manufacturing of idols and for other interactions with idolatry. See Ephraim E. Urbach, “The Rabbinical Laws of Idolatry in the Second and Third Centuries in the Light of Archaeological and Historical Facts,” Collected Writings in Jewish Studies, ed. Robert Brody and Moshe D. Herr (Jerusalem: Magnes, 1999) 151–93; Gerald J. Blidstein, “Rabbinic Legislation on Idolatry—Tractate Abodah Zarah, Chapter I” (PhD diss., Yeshiva University, 1968); Christine E. Hayes, Between the Babylonian and Palestinian Talmuds: Accounting for Halakhic Difference in Selected Sugyot from Tractate Avodah Zarah (New York: Oxford University Press, 1997), 127–43 ; Seth Schwartz, “Gamaliel in Aphrodite’s Bath: Palestinian Judaism and Urban Culture in the Third and Fourth Centuries,” in vol. 1, The Talmud Yerushalmi and Greco-Roman Culture, ed. Peter Scha¨fer (Tu¨bingen: Mohr Siebeck, 1998), 203–217. For an expanded version of this last article, see Seth Schwartz, “The Rabbi in Aphrodite’s Bath: Palestinian Society and Jewish Identity in the High Roman Empire,” in Being Greek Under Rome: Cultural Identity, the Second Sophistic and the Development of Empire, ed. Simon Goldhill (Cambridge: Cambridge University Press, 2001). 66. See Scott, Domination, especially p. 90. 67. Ibid., 110. 68. David Quint, Epic and Empire: Politics and Generic Form from Virgil to Milton (Princeton: Princeton University Press, 1993) 80. 69. See Lorberbaum’s discussion, “Tselem,” 101: “Burning in the Bible is always burning as it is simply understood, that is to say, the burning of the body. . . .” See also Segal, “ ‘Hiyuv Be-Dinei Shamayim,’ ” 99. 70. Jastrow’s translation of “le-tokh me’av ve-homeret et b’nei me’av,” s.v. me’eh. 71. Lorberbaum, “Tselem,” 104; see also Segal, “ ‘Hiyuv Be-Dinei Shamayim,’ ” 99. 72. The Rabbis represent existing Jewish practice in this way; see Lorberbaum, Peretz Segal, and David Halperin, “Cruciﬁxion, the Nahum Pesher, and the Rabbinic Penalty of Strangulation,” JJS 32 (1981): 41n45: “The mishnah’s language implies that the Tannaim recognized the court as belonging to a group to which they might look for precedents (the Pharisees, presumably); only, in this case, it happened to be incompetent.” Babylonian Talmud. Sanhedrin 52b tells of a Babylonian Amora, centuries later, who also burns at the stake. See my discussion of these texts in chapter 5, 150–151. 73. Alternative terms for this punishment are vivus exuri, vivicomburium, vivus incendi, igni necari; see Bauman, Crime and Punishment, 67n11. 74. Digest 47.9.9. See Auguet’s discussion, Cruelty, 70. 75. Digest 48.19.28.12. 76. Also punished with burning were temple-robbing (Digest 48.13.7) and homicide of master by a slave (Digest 48.19.28.11). See Bauman, Crime and Punishment, 180n13, for further references. 77. Following Grodzynski: “La symbolique du feu n’apparaıˆt gue`re dans les textes juridiques, si ce n’est qu’il repre´sente en quelque sorte l’absolu dans la destruction, et du coupable, et du crime” (“Tortures Mortelles,” 368–69). See, for instance, Josephus, Jewish War, 7:38.1 (the verb used is katapimpre¯mi, burn to ashes), 450.3

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(the verb he uses there is katakaio¯, consume by ﬁre); see also the graphic descriptions of burnings at the stake in Christian martyrdom narratives such as that of Polycarp, 12–15 (where the ﬂames miraculously protect rather than destroy him). 78. For a discussion of the historicity of this text, see Lieberman, “Redifat Dat Yisra’el,” 6–7. 79. Printed ed.: “so that his spirit would not leave him . . .” 80. “Judicial Savagery,” 159. 81. Kyle, Spectacles of Death, 50. 82. Wiedemann, Emperors, 78. 83. Ibid., 59: “During the republican period, these venationes were not usually given in the context of the gladiatorial munera, but on special occasions such as the celebration of a triumph. Nevertheless they set precedents for what the Roman people expected, once venationes had come to be regularly associated with gladiatorial contests from Augustus’s time on.” 84. Ibid., 67; see also Kyle, Spectacles, 51; Coleman, “Fatal Charades,” 55. 85. Epistles 7.4. For discussion, see Wiedemann, Emperors, 67, and Kyle, Spectacles, 91–92; Magnus Wistrand, Entertainment and Violence in Ancient Rome: The Attitudes of Roman Writers of the First Century a.d. (Go¨teborg, Sweden: Acta Universitatis Gothoburgensis, 1990), 16–8, 35–7. 86. The phenomenon of the volunteer gladiator grew with time; see Barton’s discussion, Sorrows, 13–46. 87. See Coleman, “Fatal Charades,” 56. 88. The following description is drawn from Auguet, Cruelty, 81–106, and Wiedemann, Emperors, 55–101. See also Ludwig Friedla¨nder, Roman Life and Manners Under the Early Empire, 7th ed., ed. and trans. Leonard Magnus and J. H. Freese (1908; repr., New York: Barnes and Noble, 1965, 1908), 2:1–130; Je´roˆme Carcopino, Daily Life in Ancient Rome: The People and the City at the Height of the Empire, ed. Henry T. Rowell, trans. E. O. Lorimer (New Haven: Yale University Press, 1940), 202–47. 89. Also called bestarii. See Wiedemann, Emperors, 55–101, and see Kyle, Spectacles, 79: “Later equated with the venator, the bestarius was originally someone armed with knife or spear who was condemned to ﬁght beasts with the probability of death. Over time some bestarii became trained beast-gladiators, and like gladiators they had a chance of survival and even fame.” Edmondson distinguishes between “beast ﬁghters (bestarii), who fought in armor against wild beasts, and beast hunters (venatores), who wore short hunting tunics and were armed only with spears” (“Dynamic Arenas,” 81n47). 90. Wiedemann, Emperors, 82: “The penalties of ad bestias and ad ﬂammas might be linked to cruciﬁxion. Pionius was nailed to a cross, and then burnt.” Not only combination executions but also exotic executions appear to have been used—a ﬁgurine from North Africa, for example, represents a woman who is riding a bull, naked with her hands tied, being mauled by a leopard (for a photographic reproduction, see Kyle, Spectacles, 93). 91. Kyle, Spectacles, 53–54. 92. See Auguet, Cruelty, 46–47, for a description of the armor and weapons. 93. Chapter 4, 107–120. 94. See Coleman, “Fatal Charades,” 58, for a discussion of suspense in the arena. 95. “Death as Decoration,” 202. 96. See Edmondson, “Dynamic Arenas,” 83–95, on the way the seating of the arena deﬁned social position. See, in brief, Kyle, Spectacles, 79.

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97. Hopkins, Death and Renewal, 15. 98. For discussion of public acclamations, see Potter, “Performance, Power, and Justice.” See also Hopkins, Death and Renewal, 14–20. 99. See Hopkins, Death and Renewal, 10: “A spectator, who made a witty remark at the expense of Domitian during a gladiatorial show, was, at the emperor’s command, dragged from his seat and thrown to the dogs, with a mocking placard round his neck (Suetonius, Claudius 34, Domitian 10, cf. Caligula 35).” 100. Barton, Sorrows, 34–35. 101. Potter, “Martyrdom as Spectacle,” 66. 102. Digest 48.20.2.1; see Theodor Mommsen, Romisches Strafrecht (Leipzig: Dunker and Humblot, 1899) 855–56. 103. On the variety of military costumes, see Auguet, Cruelty, 46–47. On the clothes of the Roman audiences, see Edmondson, “Dynamic Arenas,” 85–86. 104. Peter Brown, The Body and Society: Men, Women, and Sexual Renunciation in Early Christianity (New York: Columbia University Press), 315–16. 105. The Martyrdom of Perpetua and Felicitas 20:3–4 (Latin text with English translation in Herbert A. Musurillo, The Acts of the Christian Martyrs [Oxford: Clarendon, 1972], 106–131); see Potter’s discussion, “Performance, Power, and Justice,” 129. On this narrative, see also Margaret Miles, Carnal Knowing: Female Nakedness and Religious Meaning in the Christian West (Boston: Beacon, 1989), 59–63, and Elizabeth Castelli, “Visions and Voyeurism: Holy Women and the Politics of Sight in Early Christianity,” Protocol of the Colloquy of the Center for Hermeneutical Studies, n.s. 2 (Berkeley: Center for Hermeneutical Studies, 1994). 106. t. Sanh. 9:6 (Zuckermandel ed., 429). 107. m. Sanh. 6:4. 108. Sifra Qedoshim 10:4 (Weiss ed., 91c). 109. Sifra Emor 19:3 (Weiss ed., 104c). 110. Sifre Zuta Shelah 36 (Horovitz ed., 288). 111. Lorberbaum also makes this connection between nakedness in rabbinic execution and nakedness in Roman execution, though he formulates the connection as a borrowing on the part of the Rabbis; I would prefer to complicate the notion of borrowing, however, which is my purpose in this chapter. See Lorberbaum, “Tselem Elohim,” 140n260. 112. Saul Lieberman, “On Sins and Their Punishment,” Texts and Studies (1946; repr., New York: Ktav, 1974), 48; also published in Saul Lieberman, “On Sins and Their Punishments,” Sefer Ha-Yovel Likhvod Louis Ginzberg (New York: HaAqademiyah Ha-Ameriqanit le-Mada’ei ha-Yehadut, 1946) 249–70. 113. Lieberman, “Sins,” 49. 114. Sifre Deuteronomy 221 (Finkelstein ed., 253). 115. See Finkelstein, 254n16. 116. b. Sanh. 45a. 117. See the commentary of Mitspeh Eitan on 43a. See also the Meiri on the Mishnah, who includes the Sifra’s midrash but leaves out the Talmud’s. 118. This move on the redactor’s part is worth noting: He juxtaposes a hermeneutical explanation with a conceptual explanation, suggesting that they are not mutually exclusive. The redactor provides a model, in other words, of reading legal innovations as “multi-dialogues.” See my discussion in chapter 1, 7–8. 119. Tosafot on b. Sanh. 45a, s.v. ha otah bi-khsutah. See Benveniste’s discussion of this Tosafot in Hamra Ve-Hayyei, 181–82, s.v. may ta’ama de-rabbanan. 120. Halperin, “Cruciﬁxion,” 44–45.

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121. Wiedemann, Emperors, 61. On the animals of the arena, see also Plass, Game of Death, 53–54. 122. Wiedemann, Emperors, 60–61; Auguet, Cruelty, 84–86; Plass, Game of Death, 205n19. 123. m. Sanh. 1:4. 124. b. B. Qam. 41a. 125. See Aharon Shemesh, Onashim Ve-Hata’im Min Ha-Miqra le-Sifrut Hazal (Jerusalem: Magnes, 2003) 35–56, where he argues that there are two rabbinic execution systems, only one of which functions according to degrees of severity; the other is a system in which each penalty exists autonomously. This alternative system must be excavated from the tannaitic texts as they have been redacted; I deal here only with the system of graded severity that is explicit and prominent in the Mishnah in its ﬁnal form. While Shemesh is interested primarily in the internal interpretive factors that produced the interplay of both systems, it would be interesting to speculate what cross-cultural historical factors may have been involved, if he is correct about the coexistence of two rabbinic systems. 126. Epstein explains that m. Sanh 7:1 is a later addition, inserted because of m. Sanh. 6:5’s mention of the four types of execution; see Jacob Nahum Epstein, Mevo’ot Le-Sifrut Ha-Tannaim; Mishna, Tosephta Ve-Midreshei Halakhah (Jerusalem: Magnes, 1957), 418. 127. See Shemesh, Onashim, 37n6, where he observes that the Sages’ comment taken by itself does not imply an order of severity; it is only through the juxtaposition with Rabbi Shimon’s list that the Sages’ list takes on that meaning. Shemesh argues that the order of the Sages’ list did not originally have any particular signiﬁcance. 128. Bauman, Crime and Punishment, 1; he dates this legal manual to 300 c.e. 129. Only three are mentioned in a list of punishments attributed to secondcentury Callistratus found in the Digest: The stages (gradus) of capital punishment are more or less as follows: the extreme penalty is held to be condemnation to the gallows. There is also burning alive; this, however, though deservedly included in the term “extreme penalty” (summi supplicii), is yet regarded as following after the ﬁrst, because this class of punishment was devised at a later time. Also there is beheading. Then, the next punishment after death is sentencing to the mines; after that, deportation to an island . . . (Digest 48.19.28.1.) 130. MacMullen, “Judicial Savagery,” 147. 131. Garnsey, Social Status, 171–72. See the summary by Kyle, Spectacles, 95–96, and 121–22n145: Bauman disagrees somewhat with Garnsey, seeing the differential penalty as a function more of the second century than the ﬁrst. 132. See Bauman, Crime and Punishment, 125–36. See also Grodzynski, : “Sont honestiores les se´nateurs, les chevaliers, les de´curions et aussi d’autres personnes posse´dant une auctoritas qui n’est pas pre´cise´e, meˆme par Paul” (“Tortures mortelles,” 390). On the evolution of the punishment of slaves, see Grodzynski, 393–96. 133. Bauman makes the observation that one’s social status was not necessarily prior to one’s punishment category; in other words, that one’s punishment category could be seen to determine one’s social status rather than the other way around. See Crime and Punishment, 129. For a different perspective, see Grodzynski, “Tortures mortelles,” 390: “Le droit pe´nal est le reﬂet de la socie´te´ elle-meˆme.” 134. Digest 48.19.9.11. 135. Kyle, Spectacles, 91.

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136. Barton, Sorrows, 13. 137. For instance, see Shelby Brown’s “Death as Decoration,” where Brown describes a mosaic from El Djem: “The victims are also clearly speciﬁed as nonRomans” (196). 138. Wiedemann, Emperors, 103. 139. Kyle, Spectacles, 92. 140. Ibid. 141. As represented by the Babylonian Talmud, the Tannaim do make a social distinction with respect to execution methods (b. Sanh. 56a, 57b, 71b): They assign to Noahides a speciﬁc execution method. This distinction works differently from that made by Romans, however, in that the method assigned (it is disputed whether it should be strangulation or decapitation) is one of those also imposed on Jews, and, moreover, it is one of the more lenient methods. 142. According to Shemesh’s analysis, the parallel Tosefta suggests that there existed an alternate way of interpreting the ﬁrst line of this Mishnah; in the Tosefta, Rabbi Yosi calls not for the “lighter” penalty but for the “lightest,” i.e., strangulation (Onashim, 41–43). 143. See Epstein, Mevo’ot Le-Sifrut Ha-Tannaim, 154–55, where he shows that this Mishnah was originally the teaching of Rabbi Shimon and followed his ordering principles. 144. m. Sanh. 9:3; see b. Sanh. 80b–81a. 145. See Shemesh’s discussion of this text: “. . . neither one of the sides suggests any objective criterion for determining that one execution method is more severe than another” (Onashim, 38). In other words, their assessments of severity do not have anything to do with the punishment itself. 146. The Tannaim do not explain the logic of their choices: Why is the harlotry of the priest’s daughter the worse possible crime, according to Rabbi Shimon, or idolatry, according to the Sages? See the Gemara’s speculations on b. Sanh. 49b: Stoning is more severe than burning since it was given to the blasphemer and idolater. What is the severity [of these crimes]? Since he stretches his hand out against the essence. On the contrary, burning is more severe, since it was given to the priest’s daughter who committed harlotry. And what is the severity [of this crime]? Since she profanes her father. See Rashi’s commentary, who associates this baraita with another on b. Sanh. 52a, and see the commentary attributed to the Ran on b. Sanh. 52a, s.v. adarabah, who asks how Rabbi Shimon could consider the honor of ﬂesh and blood more weighty than the honor of God. 147. Neither does there seem to be much biblical precedent for categorizing execution methods according to gradations of severity; see Shemesh, Onashim, 4–5, 55. 148. Leviticus Rabbah 24:14 (Emor), parsha 32. 149. “Redifat Dat,” 216. 150. The Rabbis were not the lone critics of the arena—see Wistrand’s discussion of Juvenal and Tacitus. Passages Wistrand points to in which Juvenal expresses contempt for gladiators are: Juvenal 2.143–48; 6.82–113; 8.183–210; and especially 13.28ff. See Wistrand, Entertainment, 22–3, also his discussion of Juvenal’s famous expression “bread and circuses” in 10.72–80, Wistrand, 11. Tacitus expresses his negative opinion of the arena in Annals 13.31.1. There he says that history should be about great things and not about trivial matters; his examples of trivial matters are the building of amphitheaters and the regulation of the number of gladiators, which he describes scofﬁngly

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as the stuff of Rome’s daily gazette. See also Tacitus, Dialogue 29.3; Annals 1.54.2; 1.76.3; 14.14.2; 14.21.1; 15.36.4. See Wistrand, Entertainment, 11–13, 26–28, for discussion. See also Bauman’s discussion which reads authors such as Seneca and Cicero as being more critical of the arena and ﬁnds a broader pattern of criticism of saevitia, cruelty, and embrace of humanitas: Bauman, Crime and Punishment, 142. See also Garnsey, “Penal Laws,” 154–56. Similar elitist attitudes to spectacles of execution can be found expressed later in early modern Europe: A Dutch patrician, Constantin Huygens, denounced the spectators at an execution as stupid, their hearts smothered and their minds narrow. See Spierenburg, Spectacle of Suffering, 98–99, where he describes repugnance among the upper classes for the execution crowds. 151. Scott, Domination, 184. 152. Ibid., 193 (his italics). 153. Ibid., 196. 154. Ibid., 189. 155. Ibid., 188. 156. See ibid., 6, where Scott introduces this ﬁgure. 157. Ibid., 7. 158. Ibid., 222. 159. Ibid. 160. Ibid. 161. Ibid. (Scott’s italics).

chapter 7 1. t. Sanh. 9:11 (Vienna manuscript and ﬁrst printed edition). 2. This pattern is suggested by Jacob Milgrom, Leviticus 17–22: A New Translation with Introduction and Commentary (New York: Doubleday, 2000), 1646. 3. This mirroring effect can be found also in v. 15, which begins with “do not do injustice” and ends with “do justice.” 4. Kugel points out that “all of the things enjoined are very difﬁcult to enforce simply by legal ﬁat—they ultimately depend on the heart of each individual and a desire to comply even when, sometimes, noncompliance is undetectable” (James L. Kugel, “On Hidden Hatred and Open Reproach: Early Exegesis of Leviticus 19:17,” HTR 80 [1987]: 44). 5. Lev 19:15. See James L. Kugel, The Bible as It Was (Cambridge, Mass.: Belknap Press of Harvard University Press, 1997), 454, who suggests that this introductory verse might suggest that the commandments which follow are meant to be applied in a legal context. 6. On whether this interpretation is an authentic saying of Jesus, see William Klassen, “ ‘Love Your Enemies’: Some Reﬂections on the Current Status of Research,” The Love of Enemy and Nonretaliation in the New Testament, ed. Willard Swartley (Louisville, Ky.: Westminster/John Knox Press, 1992), 4–5; and Hans Dieter Betz, The Sermon on the Mount: Commentary on the Sermon on the Mount, Including the Sermon on the Plain (Matthew 5:3–7:27 and Luke 6:20–49, ed. Adela Yarbro Collins (Minneapolis: Fortress, 1995), 211–14. 7. Matthew 5:43–48. In the parallel in Luke’s Sermon on the Plain, 6:27–36, the command to love the enemy is not combined with Lev 19:18. On the relationship between the two passages, see Betz, Sermon on the Mount, 296–301, and speciﬁcally on the love command, 312–13. For discussion of the command to love the enemy, see the anthology: Swartley, ed., Love of Enemy; and John Piper, ‘Love Your Enemies’: Jesus’ Love

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Command in the Synoptic Gospels and in the Early Christian Paraenesis (Cambridge: Cambridge University Press, 1979). 8. The title “antitheses” seems to have ﬁrst been used by Marcion; see Betz, Sermon on the Mount, 200. Betz argues that this last antithesis is intended to sum up the ﬁve previous antitheses; see ibid., 204–205. 9. It is left ambiguous, perhaps intentionally, whether “you shall be perfect” is a command, a prediction, or a promise; see Betz, Sermon on the Mount, 321. 10. The Sermon not only adds to the verse but also omits parts of it, such as “as yourself ” and the phrase, “I am the Lord”; see Betz, Sermon on the Mount, 302. 11. For this understanding of “hate your enemy,” which some have suggested is a polemic against Qumran theology, see Morton Smith, “Matthew 5:43: ‘Hate Thine Enemy’,” HTR 45 (1952): 71–73 and Betz, Sermon on the Mount, 304–309. On this pattern of citation of the Hebrew Bible in other antitheses, see Betz, Sermon on the Mount, 205–211. 12. Both Leviticus and the Tosefta are likely referring to the enemy within the Israelite/Jewish community; see Milgrom, Leviticus 17–22, 1647. But whether Jesus intended the enemy within the community or outside of it, or a personal enemy or corporate one, is a subject of debate; see Richard A. Horsley, “Ethics and Exegesis: ‘Love Your Enemies’ and the Doctrine of Non-Violence,” JAAR 54 (1985): 3–31, who argues that the enemy here is a local, personal enemy ; and summary in Betz, Sermon on the Mount, 301–302, 311–13. Kugel discusses a variety of ancient Jewish interpretations of the identity of the enemy in Bible as It Was, 455–59. 13. Matthew 5:38–42. Many scholars read Jesus’ rejection of the lex talionis here speciﬁcally as a rejection of legal action; see Dorothy Jean Weaver, “Transforming Nonresistance: From Lex Talionis to ‘Do Not Resist the Evil One’,” The Love of Enemy and Nonretaliation in the New Testament, ed. Willard Swartley (Louisville, Ky.: Westminster/John Knox Press, 1992), 33. Weaver points out, however, that Jesus’ rejection of the lex talionis here moves it beyond a legal context to a general social and political context of persecution, as is apparent in the examples he gives in vv. 39–42. Others argue that Jesus does not reject the legal system per se, but rather offers a strategy to the poor for negotiating an unjust legal system; see Walter Wink, “Neither Passivity Nor Violence: Jesus’ Third Way (Matt 5:38–42 Par.),” The Love of Enemy and Nonretaliation in the New Testament, ed. Willard Swartley (Louisville, Ky.: Westminster/John Knox Press, 1992), 102–125. 14. One commentator suggests that Jesus’s command to love the enemy can be read as a “contradiction to all justice,” though this writer is unsatisﬁed with this possibility; see Jerome Rausch, “The Principle of Nonresistance and Love of Enemy in Mont. 5,38–48,” CBQ 28 (1966): 36. I thank Dale Martin for his suggestion that Jesus’ sermon functions not so much to get rid of judgment as to delay it. 15. See Kugel’s multiple discussions. 16. I thank Chaya Halberstam at Yale and John Gager at the Society of Biblical Literature Annual Meeting 2002, where an abridged version of this chapter was presented, for pointing to the problem of genre. 17. See Timothy D. Barnes, “Legislation Against the Christians,” JRS 58 (1968): 32–50, and Judith Perkins, The Suffering Self: Pain and Narrative Representation in the Early Christian Era (London: Routledge, 1995), 15–16, who take this approach. But also see the helpful discussion by Paul Keresztes, Imperial Rome and the Christians: From Herod the Great to About 200 a.d. (Lanham, Md: University Press of America, 1989), 1:111–20, who lays out the different positions regarding the juridical basis for Christian persecution and vehemently objects to Barnes’s approach, though he does

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acknowledge that local governors would have had the freedom to ignore an imperial rescript calling for Christians to be executed. 18. See, for example, Keresztes’ discussion of Hadrian’s rescript to Minicius Fundanus, which he describes as having been interpreted by scholars both as evidence that Christians were guaranteed freedom from legal prosecution for being Christian and, on the contrary, as evidence that Christians did not have such freedom, Imperial Rome, 121. 19. For basic bibliography in the ﬁeld of Christian-Rabbinic comparative studies, see Burton L. Visotzky, “Fathers of the World: An Introduction,” Fathers of the World: Essays in Rabbinic and Patristic Literatures, (Tu¨bingen: J.C.B. Mohr [Paul Siebeck], 1995), 24–27. 20. See William R. Schoedel, Ignatius of Antioch: A Commentary on the Letters of Ignatius of Antioch (Philadelphia: Fortress, 1985), 15. Ignatius is the ﬁrst to use the term “passion” to describe the cruciﬁxion of Jesus; I discuss his writings at greater length below. 21. The Passion Narrative was long considered by scholars to be the earliest continuous account of events in Jesus’ life. See F. J. Matera, Passion Narratives and Gospel Theologies: Interpreting the Synoptics Through Their Passion Stories (Leiden: Brill, 1985), 9–11. According to Matera, scholars largely agree with the hypothesis of Bultmann, Dibelius, and Schmidt that Mark inherited some kind of Passion Narrative, but they argue over how extended that narrative was when Mark received it, or, in other words, how active an editor Mark was. More recently, scholars such as Burton Mack have questioned the assumptions behind this approach, suggesting that it was a convenient model for scholars looking for a historical kernel around which to orient their New Testament historiography. Mack draws attention to more recent American scholarship that makes a “declaration of independence” from the continental traditions, admitting the possibility that Mark simply made it up (albeit based on previous Jewish and/or Hellenistic traditions and genres). These scholars, including Mack, advocate that the Passion Narrative be studied for its narrative design and rhetorical art and without any assumptions about a preexisting passion narrative that the gospel authors merely tweaked; see Burton L. Mack, A Myth of Innocence: Mark and Christian Origins (Philadelphia: Fortress, 1988); and idem, Who Wrote the New Testament? The Making of the Christian Myth (San Francisco: HarperSanFrancisco, 1995). 22. On scholars’ attempts to deduce the legal reality of Jesus’ trial, see references in Raymond Brown, The Death of the Messiah: From Gethsemane to the Grave: A Commentary on the Passion Narratives in the Four Gospels (New York: Doubleday, 1994), 1: 315–27 (the Jewish trial), 665–75 (the Roman trial). 23. Brown, Death of the Messiah, 420. 24. Ibid., 424. 25. Ibid., 758. 26. This is the approach in Brown, Death of the Messiah, 1:25–35., and also in Arthur J. Droge and James D. Tabor, A Noble Death: Suicide and Martyrdom Among Christians and Jews in Antiquity (San Francisco: Harper, 1992), 118–19. 27. See Brown’s discussion, 1:432–34. 28. This approach is taken by Brown, 1:387–88. See also 1:359n69; 1:739–40; 1:595. 29. See Brown, 1:739, on perversion, leading astray. 30. This is the thesis in Charles H. Talbert, “Martyrdom in Luke-Acts and the Lukan Social Ethic,” Political Issues in Luke-Acts, ed. Richard Cassidy and Philip J. Scharper (Maryknoll, N.Y.: Orbis, 1983) 99–110, and in idem, Learning Through Suffer-

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ing: The Educational Value of Suffering in the New Testament and in Its Milieu (Collegeville, Minn.: Liturgical Press, 1991). See also Scott Cunningham, ‘Through Many Tribulations’: The Theology of Persecution in Luke-Acts (Shefﬁeld: Shefﬁeld Academic Press, 1997), 25, 35. This approach goes back to Martin Dibelius; see discussion in Brian E. Beck, “ ‘Imitatio Christi’ and the Lucan Passion Narrative,” Suffering and Martyrdom in the New Testament: Studies Presented to G. M. Styler by the Cambridge New Testament Seminar, ed. William Horbury and Brian McNeil (Cambridge: Cambridge University Press, 1981), 28–47. 31. See Brown, Death of the Messiah, 1:432. 32. See ibid., 1:390. 33. See ibid., 1:754. 34. I do not intend to say that there really existed such an entity as the “Jewish people as a whole” or the Jewish or Roman legal authorities as corporate entities; I speak in terms of the Gospels’ characterizations. See the discussion of the characters involved in the trial narrative in all four gospels in E. Jane Via, “According to Luke, Who Put Jesus to Death?” Political Issues in Luke-Acts, ed. Richard Cassidy and Philip J. Scharper (Maryknoll, N.Y.: Orbis, 1983), 126–33. 35. The legal discourse also creates the two poles between which the exceptional characters, like the disciples and the new converts, can move. This is Malbon’s argument with respect to Mark: “Thus, in their narrative contexts, the Jewish leaders in Mark’s Gospel are characterized as ‘ﬂat’ and ‘bad’; they are simply Jesus’ opponents— but not quite without exception. And the exceptions suggest that being a foe of Jesus is not simply a matter of one’s social or religious status and role, but a matter of how one responds to Jesus (Elizabeth Struthers Malbon, “The Jewish Leaders in the Gospel of Mark: A Literary Study of Marcan Characterization,” JBL 108 [1989], 280). Darr makes a similar argument for Luke-Acts: “The narrative focuses attention on whether or not these secondary characters recognize and repond correctly to the divine will being manifested through the protaganists. . . . At the far end of the spectrum are the Pharisees who . . . carefully observe many of Jesus’ works and hear many of his words, but fail utterly to recognize what they see and hear. . . . A wide range of paradigmatic ﬁgures fall between these two extremes” (John A. Darr, On Character Building: The Reader and the Rhetoric of Characterization in Luke-Acts [Louisville, Ky.: Westminster/John Knox, 1992], 56–57). 36. Malbon makes the point that the leaders of the Jewish establishment are not always villains: Mark describes an exceptional scribe “not far from the kingdom of God” (12:34), and includes two Jewish leaders, Joseph of Armiathea and Jairus, who follow Jesus. See the discussion in Malbon, “Jewish Leaders,” 275–76. 37. Malbon argues that Mark’s author, like other ancient authors, schematizes the characters of the story, painting “extreme cases of enemies and exemplars as the background against which the trials and joys of followers may stand out more boldly” (Malbon, “Jewish Leaders,” 279). According to Malbon, then, the purpose of the legal discourse, at least in Mark, would be to dramatize the choice between following Jesus or opposing him. Johnson argues that the “slander” of the Jewish authorities found in the Passion Narratives is rhetoric typical of Hellenistic philosophy; see Luke T. Johnson, “The New Testament’s Anti-Jewish Slander and the Conventions of Ancient Polemic,” JBL 108 (1989): 419–41. 38. See Brown, Death of the Messiah, 1:721. 39. Luke 22:37. This is one of Luke’s many additions to the three passion predictions found in the synoptics; see Cunningham, ‘Through Many Tribulations’, 80– 81.

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40. See Brown, Death of the Messiah, 1:434; Daryl Schmidt, “Luke’s ‘Innocent’ Jesus: A Scriptural Apologetic,” Political Issues in Luke-Acts, 117–18; Via, “Who Put Jesus to Death?” 135. 41. I disagree here with Droge and Tabor who suggest that the drama of evil judges against innocent victim is mutually exclusive with its character as prophecy: “Clearly, they [the gospel authors] understood his death not as the execution of a convicted criminal but as a divinely ordained event: predicted by the prophets and provoked by Jesus himself,” (Droge and Tabor, Noble Death, 116). 42. I do not use the word “myth” here in the sense of falsehood; I leave open the knotty and highly politicized question of the historical reality of Jesus and the possible circumstances of his death. 43. Cunningham points out this pattern with respect to Peter, John, and the apostles (Cunningham, ‘Through Many Tribulations’, 204). 44. See discussion of the Jesus/Stephen parallels in Cunningham, ‘Through Many Tribulations’, 203. 45. Moessner argues that the stories of both Jesus and Stephen are modeled on Moses and other Hebrew prophets: D. P. Moessner, “ ‘The Christ Must Suffer’: New Light on the Jesus-Peter, Stephen, Paul Parallels in Luke-Acts,” NovT 28 (1986): 220– 56, and Cunningham takes up the argument, ‘Through Many Tribulations’, 206–209. For references to scholarship on the parallels between Jesus’ death and Stephen’s, see Via, “Who Put Jesus to Death?” 136n59; Talbert, “Martyrdom in Luke-Acts and the Lukan Social Ethic,” 100; Cunningham, 209n77. Cunningham discusses why the passions of Jesus and Stephen are not in fact more parallel—the author could have made the parallel tighter (209n78). See Conzelmann on the signiﬁcance of Jesus standing at the right hand of God in the Stephen story rather than sitting as in Luke 22:69: Hans Conzelmann, Acts of the Apostles: A Commentary on the Acts of the Apostles (Philadelphia: Fortress, 1987), 59–60. 46. How we are meant to read the relationship between the stories is ambiguous. Cunningham asks: “What is the signiﬁcance of what is surely an intended correspondence between the two passions? Does Jesus provide Luke with a model for suffering persecution unto death? Does Stephen imitate Jesus?” (211). In his response, Cunningham distinguishes between imitation and Luke’s concern with continuation, to show “that what God begins to do in Jesus, he continues to do through the disciples” (212). Dehandschutter discourages thinking about Jesus’ death as a paradigm intended for later martyrdoms: Boudewijn Dehandschutter, “La Perse´cution Des Chre´tiens dans les Actes Des Apoˆtres,” Studia Patristica 17 (1979): 541–46; Les Actes Des Apoˆtres: Traditions, Re´daction, The´ologie, ed. J. Kremer (Leuven: Leuven University Press, 1979). 47. “The report alternates between the description of a riot and of legal proceedings . . .” (Conzelmann, Acts, 47–48, 60). 48. See Ernst Haenchen, The Acts of the Apostles, trans. Bernard Noble, Gerald Shinn, and R. McL. Wilson (Philadelphia: Westminster, 1971), 273; Conzelmann, 47– 48. See also Brown, Death of the Messiah, 721, where he discusses the hostile crowd motif found in both the Passion Narratives and in later martyrdom narratives. 49. Talbert, “Martyrdom in Luke-Acts and the Lukan Social Ethic.” Cunningham makes a similar argument, 214. On the contribution of Luke-Acts to the construction of second-century Christianity, see also Christopher Mount, Pauline Christianity: LukeActs and the Legacy of Paul (Leiden: Brill, 2002), 170–80. 50. See Cunningham, ‘Through Many Tribulations’, 205–206, on the parallels between Stephen and Paul. Both Stephen’s and Paul’s stories are in turn modeled on

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Jesus’—see discussion of the parallels in Moessner, 247–56; Via, “Who Put Jesus to Death?” 137–38; Cunningham, 285n310. 51. See Mount’s argument that the project of Luke-Acts was to put Paul at the center of the story of Christian origins in order “to provide an adequate conception of Christianity in the context of Greco-Roman culture”: Mount, Pauline Christianity, 172– 80. Mount argues that in the later second century, however, Acts was used as the “basis for a static construction of Christian origins based on the unity of all the apostles in the proclamation of the Gospel delivered to them by Jesus” (177). A powerful discourse of Jewish and Roman criminal law is found also in Paul’s own writings. (I do not discuss these in the body of this chapter since Paul’s letters predate the rabbinic materials by too many years to be considered contemporary.) Paul uses the language of criminal law in literal and metaphorical ways to enhance his rhetoric, to capture his theology, and to bolster his own authority as letter-writer. In 2 Cor 1:9, Paul writes that he and his Asian brothers “felt that we had received the sentence of death . . .” Later in 2 Cor 6 Paul attributes to him and his fellow Christians the liminal status of being “punished and yet not killed” (6:9). Further on in chapter 11, Paul’s identiﬁes his punishments as the criminal penalties found among the Jews (lashes and stoning) and also among the Romans (beating): “Five times I have received at the hands of the Jews the forty lashes less one. Three times I have been beaten with rods; once I was stoned” (11:24–25). In 1 Cor 4:9, Paul becomes the condemned criminals displayed by military conquerors: “For I think that God has exhibited us apostles as last of all, like men sentenced to death, because we have become a spectacle to the world, to angels and to men.” Later in this letter he uses gladiatorial combat to argue for the reality of resurrection (15:32) (whether he is referring to literal or ﬁgurative combat is unclear; see discussion in Pobee, Persecution and Martyrdom in the Theology of Paul, 99–101). Paul also refers to his imprisonment numerous times in his letters (Phil 1:7, 13, 14, 17; 2 Cor 6:4–5; Phlm 1:1, 9, 10, 13; see Cassidy for further references, who argues that Paul’s imprisonment is decisive for deﬁning his circumstances and providing a basis for his epistolary appeals). Pobee describes the logic of Paul underwriting his authority as apostle with his experience as a persecuted prisoner in this way: “No one could so happily accept direct physical violence, physical dangers and treachery unless he had been genuinely called by God to that apostolic vocation,” John S. Pobee, Persecution and Martyrdom in the Theology of Paul [Shefﬁeld: JSOT Press, 1985], 93–94). Other verses in which Paul authenticates his apostleship by reference to his persecutions are, according to Pobee, Gal 6:17, 2 Cor 6:4–10, 11:16–30; see Pobee, Persecution and Martyrdom in the Theology of Paul, 97. In Gal 3:13, not Paul but Jesus himself is the condemned criminal, hanged on a tree like the criminal described in Deut 21:23: “Christ redeemed us from the curse of the law, having become a curse for us—for it is written, ‘Cursed be every one who hangs on a tree.’ ” Earlier in Gal 2:20, Paul and Jesus are together in cruciﬁxion: “I have been cruciﬁed with Christ; it is no longer I who live, but Christ who lives in me.” Christ’s cruciﬁxion is at the heart of Paul’s missionary message. In the famous 1 Cor 1:23, Paul makes the cruciﬁxion the central and distinctive element of Christian teaching: “[For Jews demand signs and Greeks seek wisdom] but we preach Christ cruciﬁed, a stumbling block to Jews and folly to gentiles” (also 1 Cor 2:2: “For I decided to know nothing among you except Jesus Christ and him cruciﬁed”). Paul describes Christ’s cruciﬁxion as an instance of criminal punishment, at the same time interpreting it in cosmic, theological terms: “None of the rulers of this age understood this, for if they had, they would not have cruciﬁed the lord of glory” (1 Cor 2:8).

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Whether Paul is referring here to the earthly rulers who cruciﬁed Jesus or to cosmic forces of evil is unclear (see Pobee, 66–68). Pobee, as well as Horsley and Elliott, argue that both levels of meaning are intended, since Paul, like other Jewish apocalyptic writers of the period, understood current historical struggles as a mirror of God’s struggles against cosmic forces of evil (see Horsley, Paul and Empire, 142–43). If we broaden our deﬁnition of legal discourse enough, we can ﬁnd it permeating all of Paul’s writings, which constantly circle around themes of sin, judgment, law, and authority (see, for example, Rom 2:1, 5:18, 14:22–23; 1 Cor 4:1–5; 6; 2 Cor 4:8–11; 5:10; 5: 15; Phil 3:10) 52. See Cunningham’s discussion of Krister Stendahl’s, “Paul Among Jews and Gentiles” (in Paul among Jews and Gentiles and Other Essays [Philadelphia: Fortress, 1976], 7–22), ‘Through Many Tribulations’, 219n109, who argues that Paul does not have a conversion but a “calling,” but Cunningham argues that Paul’s experience can be called a conversion. Segal’s study of Paul uses modern understandings of conversion in order to examine Paul’s experience as it is described in Acts; see Alan F. Segal, Paul the Convert: The Apostolate and Apostasy of Saul the Pharisee (New Haven: Yale University Press, 1990). 53. The verb “depicts an attitude of some duration, not a momentary reaction”; Haenchen, Acts, 293. 54. This is Cunningham’s observation, 215. He points out that the verb lymaino¯ is highly descriptive, used in the Septuagint for wild animals tearing raw ﬂesh. Moreover, the counterintuitive verse structure—1. Saul consents to death of Stephen, 2. Jerusalem church is persecuted, 3. devout men bury Stephen, 4. Saul’s role in the persecution (one would expect 2 and 3 to be reversed)—literarily highlights the tie between Saul’s persecution and Stephen’s martyrdom and the contrast between Saul and the devout men who bury him (215–16). See also Beverly Roberts Gaventa, From Darkness to Light: Aspects of Conversion in the New Testament (Philadelphia: Fortress, 1986) 55, and Haenchen, Acts, 298, who comments that “the Hellenistic Jews who have hitherto been the persecutors vanish at one stroke, and Saul singlehanded assumes their role. But the lack of numbers is compensated by Saul’s rabid activity . . .” 55. This is Gaventa’s observation, 56, and see also Haenchen, 298, who says along similar lines: “Paul is not the commander of a striking-force, an EinsatzKommando: he is the persecution in person” (his italics). 56. The historical possibility that the high priest would have asserted his authority over cities outside the land of Israel is highly unlikely; see, e.g., Haenchen, Acts, 320n2. 57. See Cunningham’s discussion of the Christology embedded in this statement, 219–21. 58. The exact nature of the linkage between “carrying my name” and “suffering for my name” is ambiguous, buried in the connective word gar, “for.” Cunningham discusses the possibilities, 225–28. 59. See Cunningham, 224, on this passage’s identiﬁcation between Jesus’ suffering and Paul’s. On this identiﬁcation within the Book of Acts as a whole, see ibid., 285–87. 60. See Cunningham, 276–77, on “the Jews” as the opponents of Paul. See n. 50 above on Jesus-Paul parallels. 61. On this hazard, see Richard A. Horsley, ed., Paul and Empire: Religion and Power in Roman Imperial Society (Harrisburg, Penn: Trinity, ) 5–7. On Paul as the central character in Acts, see Mount, Pauline Christianity. 62. Cunningham makes this observation, 229.

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63. This is not to say that every conversion scene in the New Testament is conﬁgured this way; see Gaventa’s study, in which she identiﬁes three types of conversion: alternation, pendulum-like conversion, and transformation (148–49, Gaventa categorizes the conversion of Paul in Acts as the second type). 64. As Cunningham writes: “Persecution is not a secondary aspect of Paul’s vocation, but is an integral part of it” (224). 65. As Cunningham says of Acts 9:4–5, “The disciples of Jesus are persecuted because they are identiﬁed with his name. The persecution of Jesus continues on in that of his disciples, and they are persecuted like him. And now the epitome of that relationship is revealed to the one whom Luke will picture as suffering the most for the sake of Jesus and suffering the most like him. The persecution of the disciples of Jesus is equivalent to the persecution of Jesus himself, for, in a manner that Luke does not clearly deﬁne, Jesus identiﬁes with his disciples in persecution” (221). 66. Via observes that one of Luke’s literary strategies is to “refer several times in different ways to the same event(s)”: Via, “Who Put Jesus to Death?” 138. 67. For a synoptic view of the three accounts, see Gerhard Lohﬁnk, The Conversion of St. Paul: Narrative and History in Acts, trans. and ed. Bruce J. Malina (Chicago: Franciscan Herald, 1976), 8–19. On the discrepancies between these three accounts, see Lohﬁnk’s discussion, 20–21; Segal, 7; Gaventa, From Darkness to Light, 52–95. On earlier scholarly efforts to explain the three accounts as three different sources that Luke possessed, see Haenchen, Acts, 108, who himself explains the accounts as a literary development by the author. 68. Gaventa’s insight, 68. 69. “They were essentially demanding the death penalty against the apostle” (H. W. Tajra, The Trial of St. Paul: A Juridical Exegesis of the Second Half of the Acts of the Apostles [Tu¨bingen: J.C.B. Mohr [Paul Siebeck], 1989] 73). 70. Paul describes his activity in terms of self-defense in a trial: apologeisthai (26: 2, “to make my defense”), heste¯ka krinomenos (26:6, “I stand here on tria”l), heste¯ka martyromenos (26:22, I stand here testifying); see O’Toole, 32. Haenchen makes the observation, however, that this seeming trial does not begin with an accusation, has neither a prosecutor nor witnesses, and ends with an unofﬁcial discussion, all of which suggests that the trial form is a literary device that the author uses selectively for dramatic effect; see 690–91. 71. Literally, Paul casts his pebble, the way voting was carried out. Tajra suggests that it is more likely that Paul is using the phrase metaphorically to describe his approval of the killing of Stephen and other saints: Tajra, Trial of St. Paul, 165–66. But Conzelmann argues that this phrase is to be taken literally to say that Paul actively participated in the voting: Conzelmann, Acts, 210. 72. According to Tajra’s juridical exegesis of Acts, the historian can glean much important information from the book of Acts about ﬁrst-century Roman legal reality; see Tajra, Trial of St. Paul. On the legal mechanics of Paul’s case, see also Richard J. Cassidy, Paul in Chains: Roman Imprisonment and the Letters of St. Paul (New York: Herder and Herder; Crossroad, 2001), 211–27. For a listing of the different kinds of persecution Paul endures in the book of Acts, see Cunningham, 231. As with the Passion Narratives, I leave open the difﬁcult question of how much actual biographical material these texts contain. 73. See Cunningham’s discussion of Conzelmann, Braumann, and Schu¨tz, 24–28. 74. I draw on the martyrdom narratives that have been dated to the second century according to Timothy D. Barnes, “Pre-Decian Acta Martyrum,” JTS 19 (1968):

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509–31; repr., Timothy D. Barnes, Early Christianity and the Roman Empire (London: Variorum Reprints, 1984). 75. See Perkins, 104–123, who reads in the Martyrdom of Perpetua a “potentiality that Christian empowerment offered for turning the social and political body of the Roman empire upside down” (113). See also Castelli’s discussion of this narrative, Martyrdom and Memory: Early Christian Culture Making (New York: Columbia University Press), 85–92, and for bibliography of scholarship on it, 237n67. 76. The early martyrdom narratives draw not only on New Testament models of martyrdom such as Jesus, Stephen, and Paul, but also on New Testament prophecies of martyrdom: In the synoptic apocalypse, Jesus predicts that his followers will bear testimony for him before governors and kings (Mark 13:9–11; Luke 21:12–15; Matt 24:9– 14). At least some of these martyrdom traditions also probably draw on earlier precedents, both pagan and Jewish. A collection of martyrdom texts dating from the eighth century b.c.e. until the ﬁfth century c.e. is provided in Jan Willem van Henten and Friedrich Avemarie, Martyrdom and Noble Death: Selected Texts from Greco-Roman, Jewish, and Christian Antiquity (New York: Routledge, 2002). Some scholars emphasize the continuity in constructions of martyrdom more than others; see Boyarin’s discussion of W.H.C. Frend’s work for one analysis of this question: Dying for God, 127–30. 77. See Castelli, Martyrdom and Memory, 39–79. 78. Herbert Musurillo, The Acts of the Christian Martyrs (Oxford: Clarendon, 1972) 5. 79. Ibid., 9. 80. See Castelli, Martyrdom and Memory, 43–44, for discussion. 81. Musurillo, Acts, 41. 82. Castelli, Martyrdom and Memory, 44 (italics in original). 83. Ibid., 95. 84. Quoted in ibid., 120. 85. See Perkins, 122–23, for her discussion of the role reversal between judge and judged. Shaw draws attention to the same literary feature in the Martyrdom of Perpetua and Felicitas; see Brent D. Shaw, “The Passion of Perpetua,” Past and Present 139 (1993): 5. 86. The Christian witness becomes such a central religious ﬁgure by the second century that the Greek word martys, witness, takes on a technical meaning of participation in the suffering and death of Jesus. Tertullian takes the Greek word and uses it in Latin, instead of using the Latin word for witness, in order to preserve this technical sense; see discussion in Lampe, “Martyrdom and Inspiration,” 120 and Glen W. Bowersock, Martyrdom and Rome (Cambridge: Cambridge University Press, 1995), 1– 21. 87. For example, Deut 17:6: “A person shall be put to death only on the testimony of two or more witnesses; he must not be put to death on the testimony of a single witness,” and Deut. 17:7: “Let the hands of the witnesses be the ﬁrst against him to put him to death, and the hands of the rest of the people thereafter . . .” Some similar traditions of testimony exist in the Greek legal tradition: The martys is a person who has ﬁrst-hand knowledge of an event and is called upon to state in court what they have seen or heard [A. A. Trites, The New Testament Concept of Witness (Cambridge: Cambridge University Press, 1977), 8–10]. 88. Musurillo, Acts, 3. 89. Ibid. 90. See Maxwell Staniforth, trans., with Andrew Louth, Early Christian Writings: The Apostolic Fathers (Harmondsworth, Middlesex, England: Penguin Books, 1968), 117.

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91. Musurillo, Acts, 13. 92. Ibid. 93. Ibid., 17. 94. Ibid. 95. Even in the prophetic literature, witnesses are described primarily as accusers of idolaters rather than as witnesses for God (Isa 55:4; Jer 29:23, 42:5; Mic 1:2; Mal 3:5). An exception is Isa 43, though even there witnesses are used both for idolatrous people and for God. The martyrological tradition, however, reads the prophets as early “witnesses” for God and develops a notion of the inspired prophet-martyr; see Lampe, “Martyrdom and Inspiration,” 123–25. 96. Musurillo, Acts, 41. 97. Ibid. 98. Ibid., 65. 99. Ibid., 5. 100. Ibid., 73. 101. Ibid., 77. 102. Also: “For through the martyrs those who had denied the faith for the most part went through the same process and were conceived and quickened again in the womb and learned to confess Christ. Alive now and strengthened they came before the tribunal that they might again be questioned by the governor: for God, who does desire the death of the sinner but shows him the favor of repentance, made it sweet for them” (ibid.). 103. Ibid. 104. Ibid. 105. This perception of the Christian as primarily a person who suffers punishment is not only internal but also external; the earliest pagan references to Christianity portray a similar picture. See Perkins, Suffering Self, 18–23. 106. Athenagoras, Legatio pro Christianis, 35.1, translated and discussed by Castelli, Martyrdom and Memory, 112. At the same time that Christians professed hostility to Roman spectacles of punishment, they also coopted the drama of those spectacles for their own narratives and rituals; see Castelli, Martyrdom and Memory, 104–133. On the other hand, just as the Christian rejection of gladiatorial spectacles is complicated, so too is the supposed pagan embrace of them. Pagan intellectuals, like Christian writers, also criticized the games; see Magnus Wistrand, Entertainment and Violence in Ancient Rome: The Attitudes of Roman Writers of the First Century a.d. (Go¨teborg, Sweden: Acta Universitatis Gothoburgensis, 1990). On the accusations of murder and cannibalism against which Athenagoras defends Christians, see Burton L. Visotzky, “Overturning the Lamp,” Fathers of the World: Essays in Rabbinic and Patristic Literatures (Tu¨bingen: J.C.B. Mohr (Paul Siebeck), 1995), 75–84. 107. See Perkins, 32, 119, and G.W.H. Lampe, “Martyrdom and Inspiration,” Suffering and Martyrdom in the New Testament: Studies Presented to G. M. Styler by the Cambridge New Testament Seminar, ed. William Horbury and Brian McNeil (Cambridge: Cambridge University Press, 1981) 122. 108. See Perkins, Suffering Self, 24–40, who argues that death represents a happy ending in many early Christian narratives. See also Everett Ferguson, “Early Christian Martyrdom and Civil Disobedience,” JECS 1 (1993): 75, which sums up the multiple signiﬁcances of martyrdom as a baptism, a eucharist, an anticipation of the eschaton, etc. 109. This is suggested in Droge and Tabor, Noble Death, 133. Ferguson adds the important observation that the imperial authorities were reluctant to execute Chris-

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tians because they were aware of the challenge to their authority that martyrdom posed: Ferguson, “Early Christian Martyrdom,” 80. 110. Perkins, Suffering Self, 3. 111. Wayne A. Meeks, The Origins of Christian Morality (New Haven: Yale University Press, 1993); Peter Brown, Power and Persuasion in Late Antiquity (Madison: University of Wisconsin Press, 1992); Perkins, 10–14. 112. Apology, 50. 113. Sam K. Williams, Jesus’ Death as Saving Event: The Origin of a Concept (Missoula, Mont.: Scholars Press, 1975) 230. 114. See Perkins, 35–40. 115. Castelli, Martyrdom and Memory, 115. 116. Musurillo, 5. Von Campenhausen argues that this passage is a later antiMontanist polemical insertion (Hans von Campenhausen, “Bearbeitungen und Interpolationen Des Polykarpmartyriums,” Aus der Fruhzeit Des Christentums [Tu¨bingen: J.C.B. Mohr (Paul Siebeck), 1963], 253–301). Droge and Tabor, Noble Death, 160n26, disagree. See also Droge and Tabor’s discussion of Clement of Alexandria’s criticism of “athletes of death,” 141–49, and their disagreement with G.E.M. de Ste. Croix’s argument that the “orthodox” church fathers were unanimously opposed to voluntary martyrdom, 152. 117. On his hopes of “attaining God,” see Ephesians 12:2; Magnesians 14; see Schoedel, Ignatius of Antioch, 28–29. For parallels between Ignatius’s martyrdom and Jesus’ passion, see Romans 6:3; Smyrneans 4:2; Trallians 10; Magnesians 5. 118. See Smyrnaeans 8:2, 9:1; Trallians 7:2; Magnesians 3:1, 6:1; Ephesians 3:2, 5:3, 6:1; pol. inscr. Adela Yarbro Collins writes: “The Pastoral Epistles (1 and 2 Timothy and Titus) do presuppose or advocate a form of governance close to that; the author there implies that the ‘bishop’ is a presbyter, a kind of ﬁrst among equals. It may be that the ofﬁce rotated among presbyters” (private correspondence). See discussion in Martin Dibelius and Hans Conzelmann, The Pastoral Epistles: A Commentary on the Pastoral Epistles, trans. by Philip Buttolph and Adela Yarbro, ed. Helmut Koester (Philadelphia: Fortress, 1972). 119. Frequently Ignatius’s martyrdom is read as a wholly private affair; see, for instance, Ferguson, “Early Christian Martyrdom,” 76: “Ignatius may have dwelled on the personal aspects of martyrdom, but others were aware of the community dimensions of the deed.” Swartley tackles this approach head on, arguing against it, in Willard M. Swartley, “The Imitatio Christi in the Ignatian Letters,” Vigiliae Christianae 27 (1973): 81–103. I am arguing, also contrary to this approach, that there is an intimate connection between Ignatius’s talk of martyrdom and his talk of church order. 120. See, similarly, Perkins, 189: “Ignatius was the ﬁrst writer to use the word pathos (suffering) to describe Christ’s death, and its choice underlines his focus. Christ’s suffering was his essential message, and Christians’ acceptance of suffering was the sign of their commitment to his message.” 121. Schoedel translation. 122. Schoedel, Ignatius of Antioch, 56. 123. Cyril C. Richardson, ed. and trans., Early Christian Fathers (Philadelphia: Westminster, 1953), 99. 124. Ibid., 95. 125. Ibid., 98. 126. See Schoedel, 111. 127. Richardson, Christian Fathers, 107. 128. Ibid., 108.

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129. Ibid., 119. 130. Richardson translation, Christian Fathers, 88. 131. See Schoedel’s discussion, 48–49: Ignatius’s posture of humility is conventional in Greek literature and linked to the special sanctity of the apostles that Ignatius is unable to claim. 132. Ignatius’ commanding style is perhaps the most impressive quality of his letters: “Modern readers are struck by the way Ignatius gives directions” (Robert F. Stoops Jr., “If I Suffer . . . Epistolary Authority in Ignatius of Antioch,” HTR 80 [1987]: 163). 133. Many have made this point, as Stoops says: “Because Ignatius explicitly denied his equality with the apostles, most investigators have found the key to his authority in his status as a martyr-in-the-making” (162). On what Ignatius means by discipleship, see Stoops, 174. As Stoops writes, “It seems reasonable to assume that Ignatius’s decision to write letters was connected to his position as a condemned man on his way to execution” (165). 134. “Band of Outsiders,” by Dwight Garner, New York Times Magazine, March 17, 2002, 11–14, quoting 12. 135. Musurillo, 83. 136. Richardson, Christian Fathers, 99. 137. Ibid. 138. Ibid., 104. 139. We can cast the discussion instead in terms of Ignatius’s conception of the apostolic right to command, (see Stoops, 168), but this somewhat begs the question: why did Ignatius have a conception of the apostolic right to command as exclusively conﬁned to the past, or as essentially collegial, and what rhetorical force did this conception have? 140. Castelli makes this point, Martyrdom and Memory, 83. 141. Musurillo, 109. 142. Richardson, Christian Fathers, 104. 143. Perkins, 191. 144. Perkins actually goes on to make this point: “Ignatius’ letters were able to demand such a complete rejection because, at the same time as they represented a denial of all earthly control, they also constructed a human institution to embody the divine control that bodily destruction substantiates” (191). 145. Pagels makes this connection between anti-docetism and martyrdom in Elaine H. Pagels, “Gnostic and Orthodox Views of Christ’s Passion: Paradigms for the Christian’s Response to Persecution?” in The Rediscovery of Gnosticism: Proceedings of the International Conference on Gnosticism at Yale, New Haven, Connecticut, March 28– 31, ed. Bentley Layton (Leiden: Brill, 1978), 262–88; see 266–67 for her discussion of Ignatius. 146. We can see this already happening in Paul’s writings, upon which those of Ignatius are modeled (on the parallels of Ignatius with Paul, see Stoops, 167; and Early Christian Fathers, 91). While Paul expresses some of the same anti-judgment motifs that can be found also in, for instance, the Sermon on the Mount (e.g., Rom 2: 1: “Therefore you have no excuse, o man, whoever you are, when you judge another; for in passing judgment upon him you condemn yourself, because you, the judge, are doing the very same things,” he also judges, reprimands, and threatens to punish the communities to which he writes. In his ﬁrst letter to the Corinthians, Paul castigates the community for an incident in which a man was living with his step-mother. Echoing Deuteronomy’s direc-

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tions for the criminal (he quotes it later in v. 13), Paul demands: “Let him who has done this be removed from among you” (5:2). Paul declares his own judgment of the sinner—“For though absent in body I am present in spirit, and as if present, I have already pronounced judgment in the name of the Lord Jesus on the man who has done such a thing” (5:3)—and Paul elaborates his command that the sinner be exiled and punished—“When you are assembled, and my spirit is present, with the power of our Lord Jesus, you are to deliver this man to Satan for the destruction of the ﬂesh, that his spirit may be saved in the day of the Lord Jesus” (5:4–5). Paul gives the Corinthians authority to carry out the punishment of the offender among them, and he encourages them at the end of chapter 5 and the beginning of chapter 6 to take judicial action within their community when necessary. Paul plays the agent of punishment also in his Second Letter to the Corinthians. He proclaims himself “ready to punish every disobedience” (10:6) and refers to an incident in which he seems to have requested that the Corinthian community punish someone who had offended him (2:1–11; 7:8–11). At the end of the letter, Paul metaphorically frames his third visit to the Corinthians as a third testimony described by Deuteronomy: “This it the third time that I am coming to you. Any charge must be sustained by the evidence of two or three witnesses. I warned those who sinned before and all the others, and I warn them now while absent, as I did when present on my second visit, that if I come again I will not spare them—since you desire proof that Christ is speaking in me” (13:1–2; Paul is echoing also the motif of three from chapter 12: the third heaven [12:2] and the three times Paul sought the Lord [12:8]). Paul threatens those Corinthians guilty of “impurity, immorality, and licentiousness” (12:21) with punishment upon his arrival in Corinth. Yet Paul also denies that the punishment will be his own: he locates the authority to punish not in himself but in Christ: “He is not weak in dealing with you, but is powerful in you. For he was cruciﬁed in weakness, but lives by the power of God. For we are weak in him, but in dealing with you we shall live with him by the power of God” (13:3–4). Paul’s logic is typically hard to follow, but he associates the power to punish with the power of God and contrasts that to his own weakness, which he links with the cruciﬁxion. In common with Ignatius, Paul denies his authority to punish at the same time that he afﬁrms it, with the cruciﬁxion as the crux on which the paradox turns. Paul’s letter mobilizes Hebrew biblical criminal law, the cruciﬁxion, and divine power to create a discourse of criminal punishment in which Christians are justly punished by fellow Christians. Like in many schemes of punishment, Paul’s is perhaps more an intimidation strategy than a concrete threat. In the letter’s closing, Paul expresses his wish that no punishment will be needed: “For we are glad when we are weak and you are strong” (13:9). Complicating the discourse of Christian punishment in Paul is that of Roman punishment. While criticizing Roman authority, Paul also famously seems to support it in his letters to the Romans: “Let every person be subject to the governing authorities” (13:1) (On this contradiction, see Luise Schottroff, “ ‘Give to Caesar What Belongs to Caesar and to God What Belongs to God’: A Theological Response of the Early Christian Church to Its Social and Political Environment,” The Love of Enemy and Nonretaliation in the New Testament, ed. Willard Swartley [Louisville, Ky.: Westminster/John Knox Press, 1992], 223–57; Neil Elliott, “Romans 13:1–7 in the Context of Imperial Propaganda,” in Paul and Empire: Religion and Power in Roman Imperial Society, ed. Richard A. Horsley [Harrisburg, Penn: Trinity,], 184–204; Cassidy, Paul in Chains, 17–35). We can make some sense of the contradictions in Paul’s approaches to judgment and punishment if we assign them to different kinds of sin (against the individual vs. against the community), different kinds

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of offenders (Christians vs. outsiders), and different kinds of judges (divine vs. human). Paul’s letters thus microcosmically mirror the complexity of early Christian discourses of punishment with their alternating critiques and embraces of different kinds of penal authority, depending on context and concern. 147. Richardson, Christian Fathers, 242. 148. Ibid., 243. 149. Ibid. 150. Richardson, Christian Fathers, 248. Afﬁrmation of Christian loyalty to Roman rule is a common trope in early Christian writing (Martyrdom of Polycarp 10; Martyrdom of Apollonius 6, 9; Martyrdom of Cyprian 1:2; see discussion in Ferguson, “Early Christian Martyrdom,” 80). Justin’s goes beyond, for instance, the Martyrdom of Polycarp or the Martyrdom of Apollonius in that he not only acknowledges the authority of Rome but also the system of criminal justice by which it keeps order. 151. The contrast between human and divine punishment is also found frequently in the martyrdom narratives; see discussion in Ferguson, “Early Christian Martyrdom,” 78–79. What is interesting about Justin’s discussion is that he afﬁrms the principles of human punishment even while comparing it negatively to God’s punishment. 152. He makes this explicit in chapter 15, drawing on a familiar theme from the gospels: “For the heavenly father wishes the repentance of a sinner rather than his punishment” (Richardson, 251). Some sins were considered unforgivable, however, by various Church fathers; see Burton L. Visotzky, “Mortal Sins,” Fathers of the World, 41–60. 153. We can ﬁnd rabbinic alignment with the judges also in legislations such as t. Avod. Zar. 2:5–7, discussed in chapter 6 above, which describes Jews ﬁghting for their lives inside the stadium and prohibits attendance for entertainment. An almost identical formulation is found in a Christian context in the contemporaneous letter to Autolycus by Theophilus, bishop of Antioch: “Consider whether people who have received such teaching would practice undifferentiated and illegal sexual relations or even do that which is most godless, eat human ﬂesh, considering that it is forbidden to us even to observe the contests of the gladiators, lest we become participants and accomplices in acts of killing” (3:14ff.); translated in Schottroff, “ ‘Give to Caesar’,” 225. For bibliography and discussion of Christian defenses against pagan charges of sexual perversion and cannibalism, see Burton L. Visotzky, “Overturning the Lamp,” Fathers of the World, 75–84. 154. Mekhilta Mishpatim 18 (Horovitz and Rabin, Mechilta d’Rabbi Ishmael, 313). See note on line 5: most other versions of this text have Rabbi Shimon ben Gamliel. See discussion of this text in Saul Lieberman, “Redifat Dat Yisra’el,” Salo Wittmayer Baron Jubilee Volume: Hebrew Section (Jerusalem: American Academy for Jewish Research, 1974), 227–28, where he gives the full set of parallels and argues that the Mekhilta version is the correct one. 155. Sifre Deuteronomy 207 (Finkelstein, Sifre al Sefer Devarim, 346). See also b. Avod. Zar. 17b. See discussion in Saul Lieberman, “The Martyrs of Caesarea,” Annuaire de l’Institut de Philologie et d’Histoire Orientales et Slaves 7 (1939): 418. 156. Jacob Z. Lauterbach, ed. and trans., Mekilta de-Rabbi Ishmael (Philadelphia: The Jewish Publication Society, 1976), 141–142. 157. Lieberman argues that if they had been arrested for observance of commandments, they would have understood their deaths as martyrdom, and therefore they must have been apprehended as political rebels; see Lieberman, “Redifat Dat Yisra’el,” 228.

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158. For a discussion of the historicity of this text, see Lieberman, “Redifat Dat Yisra’el,” 218–19. 159. Sifre Deuteronomy 307 (Finkelstein, Sifre al Sefer Devarim, 346); translation from Reuven Hammer, trans. and ed., Sifre: A Tannaitic Commentary on the Book of Deuteronomy (New Haven: Yale University Press, 1986), 312. 160. Mekhilta Masekhta de-BaHodesh, Parshat Yitro 6 (Horovitz and Rabin, Mechilta d’Rabbi Ishmael, 227). 161. Daniel Boyarin, Dying for God: Martyrdom and the Making of Christianity and Judaism (Stanford: Stanford University Press, 1999), 109–114. 162. W.H.C. Frend, Martyrdom and Persecution in the Early Church: A Study of a Conﬂict from the Maccabees to Donatus (Garden City, N.Y.: Doubleday, 1967); Glen W. Bowersock, Martyrdom and Rome (Cambridge: Cambridge University Press, 1995). 163. The foundational work of Saul Lieberman on rabbinic martyrdom narratives takes the deﬁnition of martyrdom for granted, assuming it to exist in parallel ways in both rabbinic and Christian sources. Arguing that willingness to die for religion developed among the Rabbis only in the generation after the Hadrianic decrees, Herr carefully distinguishes between Christian martyrdom, with its explicit concern for witnessing and testimony, with rabbinic martyrdom, which evinces only an implicit “martyr-consciousness” (Moshe David Herr, “Persecutions and Martyrdom in Hadrian’s Days,” Studies in History, ed. David Asheri and Israel Shatzman [Jerusalem: Magnes, 1972], 102–125). Yet Herr ultimately likens the two martyrological traditions, describing a rabbinic martyr archetype very similar to that found in Christianity. Blidstein draws different conclusions from a passage in the Babylonian Talmud: While martyrdom exists as one cultural option for the Rabbis, it is not valorized and is even discouraged. Blidstein argues that rabbinic martyrdom is not really even martyrdom: Rabbi Haninah, the closest to a martyr ﬁgure, in fact wishes to escape death (Gerald Blidstein, “Rabbis, Romans, and Martyrdom—Three Views,” Tradition 21.3 [Fall 1984]: 57). Aryeh Cohen, in his “Erotics of Martyrdom,” points out, like Herr, that the Rabbis have no equivalent to the Greek martys. Moreover, Cohen argues like Blidstein that the rabbinic equivalent, kiddush ha-shem, is denigrated by a discursive context that compares it to illicit sexual pleasure. Cohen concludes that the Rabbis have no concept of martyrdom, and what concept they do have, they deeply problematize. Boyarin similarly approaches rabbinic martyrdom as a work in progress. He argues that martyrdom is a deﬁning topos in rabbinic and Christian literature, also like Cohen thematizing the question of deﬁnition, arguing that the relative priority one assigns to rabbinic and Christian martyrdom narratives will depend on how one deﬁnes martyrdom. Boyarin addresses the problem of deﬁnition by suggesting that it was precisely what concerned ancient Jews: We should not deﬁne martyrdom and then look to see whether Rabbis and Christians had it at a particular date or not, but rather, we should look at how Rabbis and Christians used a discourse of martyrdom to deﬁne themselves in relation to each other. Boyarin does identify a new phenomenon of martyrdom appearing among Jews in the second century which entails “a ritualized and performative speech act,” the fulﬁllment of a religious commandment per se, and “powerful erotic elements” (Boyarin, Dying for God, 95–96). This new type of martyrdom, argues Boyarin, appears ﬁrst among Christians and then among Rabbis who likely co-opted it. See also Boyarin’s discussion of the Frend-Bowersock debate regarding the deﬁnition of “martyrdom” and whether it originates with Judaism or Christianity, 127–30. 164. See Aaron Kirschenbaum, “The Place of Punishment in Jewish Criminal Law: A Chapter in the Penological View of Hazal and the Rishonim,” Iyunei Mishpat

306

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12.4 (1987): 253–73; idem, “The Role of Punishment in Jewish Criminal Law: A Chapter in Rabbinic Penological Thought,” Jewish Law Annual 9 (1991): 123–43; Arnold Enker, “Yesodot Ba-Mishpat Ha-Pelili Ha-Ivri,” Mishpatim 24 (1994): 177–206; idem, “Aspects of Interaction Between the Torah Law, the King’s Law, and the Noahide Law in Jewish Criminal Law,” Cardozo Law Review 12 (1991). 165. The Mishnah does not include all these details, though it does mention a warning. See t. Sanh. 11:1 and parallels in the Babylonian Talmud 8b and 80b, and also Mekhilta Mishpatim 4 (H. Saul Horovitz and Israel A. Rabin, eds. and comps., Mechilta d’Rabbi Ishmael [Jerusalem: Bamberger & Wahrmann, 1960], 261). 166. y. Sanh. 1:1; 7:2; b. Sanh. 37b; b. Sanh. 41a; b. Sanh. 52b. 167. Yuval argues for anti-Christian polemics already in tannaitic texts; see Israel Yuval, “Easter and Passover as Early Jewish-Christian Dialogue” in Passover and Easter, 98–126. Adiel Schremer counters that Christianity was not signiﬁcant enough in this early period for the Rabbis to expend energy on it, and that the loci classici have been misread (Schremer has a forthcoming book that makes this argument; he gave a series in Yale’s Judaic Studies Colloquium in 2001–2002 on the topic). 168. One question to be considered is that of the juridical basis of persecution by the Roman imperial authorities and to what extent those authorities punished Christians and Jews; another question is to what extent Christians and Jews were persecuted informally in their local communities. For instance, Hadrian’s rescript to Minicius Fundanus suggests that the Emperor sometimes tried to limit local persecutions in the interest of preserving public order; see Keresztes, Imperial Rome, 123. Early Christian martyrdom narratives often represent violent mobs as the main instigation behind persecution, as does Justin Martyr in his First Apology; see Keresztes, 125–26. Keresztes suggests that Jews and Christians were treated in generally the same way in the ﬁrst two centuries, 127. Lieberman differentiates between persecution of Jews and Christians in the second century: Judaism was not prohibited as such, even if many Jewish practices were, while Christianity was categorically prohibited. See Lieberman, “The Martyrs of Caesarea,” 428–33, Lieberman, “Redifat Dat Yisra’el,” 213–34, and Boyarin’s discussion of Lieberman’s thesis, Boyarin, Dying for God, 123, 211n138. 169. See Talbert’s argument. 170. Keith Hopkins, A World Full of Gods: The Strange Triumph of Christianity (New York: Free Press, 2000), 112. 171. Following Boyarin, I would see this development as an attempt to coopt popular Christian motifs into rabbinic culture; see Dying for God, 93–126. 172. See Boyarin, Dying for God, 107, esp. 107n58. 173. Ramsay MacMullen, “What Difference Did Christianity Make?” Historia 35 (1986): 322–43. 174. MacMullen, “What Difference Did Christianity Make?” 333–43. MacMullen attributes Christians’ cruelty in punishment to their visions of purgatory and their religious zeal, their efforts to control all of daily life, and their moral deﬁance toward law, though MacMullen also identiﬁes a moral deterioration separate from the institutionalization of the church. To complicate matters more, we can also see a similar development in early medieval Spanish Judaism, when religious authorities developed new forms of capital and corporal punishment; see Simha Assaf, Ha-Onshin Aharei Hatimat Ha-Talmud (Jerusalem: Sifriyah Mishpatit, 1922); David Menahem Shohet, The Jewish Court in the Middle Ages: Studies in Jewish Jurisprudence According to the Talmud, Geonic and Medieval German Responsa (New York, 1931) 121–50; Paul Vishny,

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“The Informer as a Defendant in Jewish Criminal Procedure,” Studies in Jewish Jurisprudence (New York: Hermon, 1974), 231–45; Stephen M. Passamaneck, “R. Judah b. Asher on Capital Penalties,” Jewish Law Association Studies VII (1994): 153–72; Neil S. and Emanuel B. Quint Hecht, “Exigency Jurisdiction Under Jewish Law,” Dine Israel 9 (1978): 27–99.

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Scripture Index

HEBREW BIBLE Genesis 6:3 90 9:6 162 11:8 90 11:9 90 13:13 90 38:24 141 40:22 141 Exodus 8:22 108 17:4 108 20:6 159, 208 20:23–23:19 250n7 21:12 252n20 21:12–14 97, 100, 251n9, 252n20 21:28 174 21:29 173–74 22:19 256n53 22:21–23 205 22:22 205 24:7 250n7 Leviticus 2:1 261n107 2:2 261n107 2:15 261n107 2:16 261n107 5:11 261n107 6:8 261n107

18:3 157, 158, 163, 182 19:17 182, 183 19:18 27, 37, 38, 39, 42, 163, 181, 182, 183 20 107, 255n46 20:2 107, 115, 116, 117, 118, 171 20:9 255n46 20:10 255n46 20:11 255n46 20:12 255n46 20:13 255n46 20:15 255n46 20:22 107 20:27 114, 117 21:9 176 24 107, 255–56n49, 256n50 24:7 261n107 24:10–14 176 24:14 66, 72, 73, 107, 111, 114, 116, 120, 125, 171, 172, 258–59n75 24:15–22 256n50 24:18 143 24:22 210 24:23 114 25:7 245n98

15

107, 255–56n49, 256n50 15:30–31 58 15:34 72, 107 15:35 72, 112, 114, 116, 117, 171 15:36 114, 115, 256n56 25 98 27:14 80 35 250n4, 256n49 35:6 98 35:12 97–98, 99, 100, 252n20, 255–56n49 35:13–15 98 35:16 100, 102, 103, 104 35:17 100, 102, 103, 104 35:18 100, 102, 103, 104 35:19 21, 98, 100, 101, 102, 103, 104, 252n28, 253n36 35:21 98, 100, 101, 102, 252n28 35:24–25 97–98, 255– 56n49 35:25 251n11 35:27 98, 99, 100, 102, 104–5, 252n28, 254n40 35:30 99, 100

Numbers 5 86 14:10 108 14:37 90

Deuteronomy 1–4 251n9 4:41–43 251n9 6:9 241n60

332

scripture index

Deuteronomy (continued ) 11 259n95 11:17 116 12–13 251n9 13 107, 256n51, 256n52, 256n53 13:7–12 15, 151 13:10 107, 113, 117, 256n52 13:10–12 72, 117, 256n52 13:11 114, 117 13:12 108, 117, 168, 256n52, 257n65, 258n71 17 72, 107, 256n51, 256n52, 256n53 17:2–5 176 17:4 189 17:5 72, 74, 114, 117, 172 17:6 142, 144, 189 17:7 67, 109, 112, 113, 114, 116, 117, 120, 121 17:9 13 17:12 72 17:13 108, 109, 110, 117, 168, 257n65 17:15 149 18:10–11 157 19 250n4, 250–51n9, 256n52, 256n53 19:6 104, 254n40 19:11–12 251n11 19:11–13 98 19:12 101, 253n33 19:12f. 251n10 19:13 101 19:19 72, 143 19:20 108, 117, 168, 256n52 19:21 143 21 72 21:19–21 72 21:21 108, 114, 117, 168, 256n52 21:22 160, 172 21:23 55, 67, 87, 238n20, 239n21, 248n127, 284n45 22:21 72–73, 108, 113, 114, 117 22:23 114 22:24 117 24:16 127 32 116, 259n95 32:1 115, 116, 118 32:4 207 32:4a 206 32:4b 206

Joshua 6:17–19 89 7:11 263n3 7:16–18 89 7:19–20 66 7:19–21 89 7:25 66, 90, 256n56 7:25–26 89 8:29 141 20 250n4

Jeremiah 32:19 207 Lamentations 5:7 263n2 Ezekiel 23:48 86

Judges 8:18–21

250n4

1 Samuel 30:6 108 2 Samuel 3:27 250n4 4:11–12 250n4 14:11 250n4 21:1–9 259n4 21:1–14 250n6 1 Kings 12:18 108 2 Kings 9:26 250n4 1 Chronicles 2:7 89 2 Chronicles 10:18 108 24:21 141 Ezra 6:11 141 Esther 7:9–10

Isaiah 49:8 81 53:12 188

141

Psalms 1:1–2 156 16:10 158 32:1 80 110:1 189 Proverbs 31 260n106 31:6 119

Daniel 3:6 141 Hosea 2:23 116 2:25 116 Amos 7:14 4 Zechariah 13:6 159, 177, 208 NEW TESTAMENT Matthew 5 183 5:43 182 5:44 182 5:45 182 5:47 182 5:48 182 7 183 26:59 187 27 221n42 27:25 187 27:34 261n109 Mark 14:1 186 14:55 186 14:55–59 187 15:23 261n109 15:56–59 186–87 Luke 12:1–12 189 21:12–19 189 22:69 189 23:2 187 23:14 187 23:27ff. 261n109

scripture index 23:34 189 23:46 189

2 Corinthians 12:2 303n147

John 7:53–8:11 221n42 11:45–53 187 11:47–53 186, 221n42 12:32–33 221n42 18:31 221n42, 221n43

APOCRYPHA AND PSEUDEPIGRAPHA 1 Maccabees 1:61 246n101

Acts 6 187, 188 6–7 221n40 6:3 189 6:5 189 6:8 189 7 187, 188 7:56 289 7:58 190 7:59 189 7:60 189 8:1 190 8:2–3 190 8:3 190 9:1 190 9:4–5 190 9:14 190, 191 9:15–16 190 9:16 191 9:23 191 9:24 191 9:29 191 21 191 21–25 221n42 22 191 22:4–5 191 22:15 191 22:18 191 22:22 192 26 191 26:2 298n70 26:6 298n70 26:10 192 26:12 192 26:16 192 26:21 192 26:22 298n70 Romans 3:2–3 202 1 Corinthians 5:13 303n147

2 Maccabees 4:30–38 81 6:10 81 4 Maccabees 6:1–5 246n101 RABBINIC LITERATURE Mishnah Avot 1:8 222n56 1:8–9 277n113 2:10 91 Bava Batra (B. Bat.) 2:9 88 Bava Qamma (B. Qam.) 4:4 174 Berakhot (Berak.) 2:1 139 3:2 264n8 5:1 139 Eduyyot (Ed.) 2:10 132 Gittin (Git.) 5 139 5:9 271n71 6:5 278n128 Makkot (Mak.) 1:6 143 1:10 4, 17, 30, 31, 33, 34, 35, 36, 38, 39, 42, 45–46, 47, 50, 51, 52, 56, 63, 223n69, 228n34 2:7 104, 254n40 3:6–7 251n16 3:8–9 252n23 6:4 49 12a 104, 243n40

333

Mo’ed Qatan (Mo’ed Qat.) 1:5 132 3:7 88 3:8 264n8 Pe’ah 4:18 35 Pesahim (Pesah.) 1:3 278n126 Rosh HaShanah (Rosh Hash.) 3:1 277n119 Sanhedrin (Sanh.) 1 76 1:4 289n123 3 120 3:3–4 120, 245n95 4 75, 120, 121 4:1–2 209 4:3–4 242n65 4:5 121 5 73, 121, 131 5:2 121 5:4 79 6 7, 18, 21, 24, 66, 73, 74, 76, 77, 82, 86, 88, 90–91, 93, 109, 110, 125, 128, 131, 262n124, 266n19 6:1 73, 241n61, 262–63n128 6:1 83 6:2 83, 238n15 6:2 90, 223n59, 268n44, 277n115, 277n118 6:3 170 6:4 49, 109, 124, 216n5, 222n55, 257n62, 276n111, 288n107 6:4 75, 87 6:5 73, 87, 91, 131 6:5 284n45, 289n126 6:5–6 132, 140, 264n5 6:6 74, 76 6:6 129, 130, 131 7 21, 106, 109, 124, 125, 174, 176, 177 7:1 289n126 7:2 150, 162, 165, 222n57, 262n125, 278n132 7:3 120, 159, 161, 262n126 7:10 279n137 9 76, 77, 94, 106

334

scripture index

Sanhedrin (Sanh.) (continued ) 9:1 76 9:2 77 9:3 175, 290n144 10 90–91 11 82, 109, 110 11:4 82, 257n63 4:5a 121, 262n118 45b 102 Shev’it 2:5 245n98 4:3 271n71 47 245n98 Sotah 1:6 247n125 7:8 149, 278n124 Tamid 3:8 245n94 Yoma 1:1 278n126 8:8 247n109 Tosefta Avodah Zarah (Avod. Zar.) 1:2–3 271n72 2:5 156 2:5–7 282n23, 304n154 2:6 156 2:7 256 Bava Batra (B. Bat.) 2:9 88 Berakhot (Berak.) 3:22 139 Ketubbot (Ketub.) 5:10 274–75n100 Makkot (Mak.) 3:6 100 3:6–7 251n16 3:8–9 252n23 Mo’ed Qatan (Mo’ed Qat.) 3:7 88

6:6 222n54, 272n66, 273n91 8:3 144, 275n103 9:1 260n103 9:5 147, 268n44, 277n115, 277n117 9:6 237n6, 258n72, 262n119, 288n106 9:8 268n39 9:11 222n57, 278n130, 285n64, 291n1 10:11 151 11:7 110 Sheqalim (Seqal.) 5:1 245n94 Sotah 1:1 278n126 Tamid 3:8 245n94 Yadayim (Yad.) 2:16 277n122 Yom Ha-Kippurim 5:8 83 Zevahim (Zev.) 2:17 277n122 Talmud (Babylonian) Avodah Zarah (Avod. Zar.) 2:7 169 5a 278n129 8b 222n51 17b 283n33, 305n156 18a 166 18b 282n23, 283n30 41a 284n49 Bava Batra (B. Bat.) 60b 278n129 121b 278n129 Bava Metsi’a (B. Mes.) 59b 149

Pe’ah 4:18 35

Bava Qamma (B. Qam.) 41a 289n124 51a 228n33

Sanhedrin (Sanh.) 5:2 262n114

Berakhot (Berak.) 32b 284n48

Gittin (Git.) 65b 278n128 Hagigah (Hag.) 16b 222n54, 272n86, 275n101 22b 276n108 23a 275n98 Horayot (Hor.) 11a 264n13 Keritot (Kerit.) 7a 264n13 Ketubbot (Ketub.) 30a 284n47 30b 222n53 37b 228n33 67a 274–75n101 106a 261n109 Makkot (Mak.) 3:6 100 5b 222n54, 272n86 10a 252n23 10b 252n19, 254n40 12a 104, 251n16, 251–52n17, 254n40 Menahot (Menah.) 18a 277n122 Mo’ed Qatan (Mo’ed Qat.) 21b 139 Nedarim (Ned.) 36a 264n13 Pesahim (Pesah.) 75a 228n33 118a 148 Rosh HaShanah (Rosh. Hash.) 17b 278n129 31a 222n51 Sanhedrin (Sanh.) 6:1 241n61 32b 260n103 33b 254n40 37b 222n53, 275n102, 284n47, 306n167 40b 260n103

scripture index 41a 222n51, 262n117, 306n167 42b 241n61 43a 119 43a 223n65, 244n89, 245n91, 245n93, 247n113, 261n108 43a 260n102 43a–b 222n51 44b 223n59, 276n112, 277n115, 278n127 45a 228n33, 238n17, 247n124, 288n116, 288n119 45b 102, 106, 253n36, 262n120 45b 106 45b 123 46a 223n60, 238n20, 239n25, 239n26 46b 248n127, 284n446 46b–48b 248n1286 47a 270n56 47a–b 264n13 47b 265n18 49b 290n14666 51b 236n184 52a 228n33, 290n146 52b 222n52, 222n57, 223n58, 278n132, 286n72, 306n167 53a 263n129 56a 284n48, 290n141 57b 290n141 67a 223n62, 279n135 71b 290n141 80b–81a 290n144 89a 256n52, 258n70, 258n71 107a 245n96

Tamid 30b 245n94

Pe’ah 8 (20d)

Yevamot (Yevam.) 36a 245n94 41b 245n94 119b 245n94

Pesahim (Pesah.) 8:2 (35d) 264–65n13 8:8 (36a–b) 263–64n4 8:8 (36b) 267n24 8:8 (36a–b) 263–64

Shabbat (Shabb.) 15a 222n51

Ketubbot (Ketub.) 5:12 (30c) 274–75n100

Shevu’ot (Shev.) 34a 275n102

Makkot (Mak.) 2:5 [31d] 253n36 3:6 100

Sotah 8a 170, 228n33, 260n103 8a–b 247n124 8b 222n53, 284n47 34b 276n108

Mo’ed Qatan (Mo’ed Qat.) 1:5 (80c) 264n11, 267n24 3:5 (82b) 264n9

Ta’anit (Ta’an.) 29a 278n129

Yoma 2a 274n98 53a 274n98 86b 245n96

335

260n96

Berakhot (Berak.) 3:1 (6a) 264n9 4:2 (7d) 158, 283n29

Sanhedrin (Sanh.) 1:1 (18a) 222n50 2:1 263–64n4 3:9 (21c) 252n22 4:11 (22b) 275n102 6:1 (23b) 241n61 6:4 223n59 6:4 (23b) 223n59, 277n115 6:4 (23c) 247n124 6:5 (23b) 222n54, 272n86 6:5–6 (23b) 277n114 6:6 (23c) 276n112 6:9–10 (23d) 264n11 6:12 (23d) 267n24 7 (25c–d) 223n62 7:2 (24b) 222n50, 262n127 7:12 (25c–d) 279n134 9:5 223n59 9:6 237n6 10:11 223n62 20a 263–64n4

Gittin (Git.) 7:1 (48c)

Sheqalim (Sheqal.) 5:1 (49a) 277n122

Hagigah (Hag.) 2:2 (77d–78a) 276n112

Shevu’ot (Shev.) 4:1 (35b) 252n22

Horayot (Hor.) 1:2 (45d) 264–65n13 3:4 (48b) 149

Sotah 1:5 (17a)

Zevahim (Zev.) 12b 264n13 21a 274n98 21b 245n94 113b 278n129 Talmud (Palestinian) Avodah Zarah (Avod. Zar.) 1:7 (40a) 282n23 Bava Metsi’a (B. Mes.) 2:5 (8c) 245n94

Nedarim (Ned.) 3 (38a) 260n96 9:1 (41b) 278n128

247n124

Yoma 3:9 (41a) 277n122 6:1 (43c) 264–65n1 OTHER RABBINIC WORKS Genesis Rabbah 10 272n82 85:10 272n82 87:9 274n98 Lamentations Rabbah 17 283n30 Leviticus Rabbah 6:5 284n48 24:14 290n148

336

scripture index

Mekhilta de-Rabbi Yishma’ el Parashat Be-Shalah, Masekhta de-Amaleq 2 278n129 Parashat Bo, Masekhta dePis’ha 14 278n129 Parashat Mishpatim, Masekhta de-Neziqin 18 158, 283n32, 304n155 4 251n16 Parashat Mishpatim, Masekhta de-Kaspa 10 222n54, 275n102 Midrash Psalms 1:[21] 274n98 Numbers Rabbah 19:12 245n96 Pesiqta Rabbati Hosafah 1:4 283n30 Semahot (Sem.) 10:13 264n8 11:6 264n8 12:8 267n23 13:8 270n51 Sifra 3:8 283n41 10:1 215n1 10:4 114, 115, 259n88, 259n93, 288n108 19:3 111, 258n74, 288n109 20:2 115, 118 20:10 259n88 24:14 120 Sifre Deuteronomy 13:10 113 17:7 113 19:6 104 26 245n96 29 278n129 32:1 115, 118 80 277n122 86 252n26 89 113, 259n84 90 114, 259n86

93 262n116 148 262n116 149 114, 259n87 151 113, 252n26, 259n85 155 252n26 183 104, 253n38 187 252n26 190 262n116 202 258n73 207 158, 283n33, 305n156 220 113, 114, 252n26, 259n82, 259n87 221 160, 284n44, 288n114 240 114, 252n26, 259n83, 259n87 241 252n26 242 114, 259n87 272 252n26 306 115–16, 259n94 307 305n160 Sifre Numbers 15:35 112 15:36 115 35:12 98 35:19 103 35:21 101, 106 35:27 98, 102, 105 114 112, 114, 259n14, 259n78, 259n89 137 245n96 159 252n23 160 98–99, 102, 251n16, 252n25 161 252n18 Sifre Qedoshim 10:4 114, 115, 259n88, 259n93 Sifre Zuta 12 283n40 27:14 245n96 35:19 253n36 36 288n110 Tanhuma Shoftim 1 262n117 Targum to Ruth on v. 1:17 49

APOSTOLIC FATHERS Ignatius, To the Ephesians (Ign. Ephesians) 2–6 198 3:1 200 3:2 301n119 4:1–2 198 5:3 198, 301n119 6:1 199, 301n119 12:2 301n118 Ignatius, To the Magnesians (Ign. Magnesians) 3:1 301n119 5 301n118 6:1 199, 301n119 14 301n118 Ignatius, To the Philadelphians (Ign. Philadelphians) 3:3 199 Ignatius, To Polycarp (Ign. To Polycarp) 6:1 199–200 Ignatius, To the Romans (Ign. Romans) 6:3 301n118 Ignatius, To the Smyrnaeans (Ign. Smyrnaeans) 4:2 301n118 8:2 301n119 9:1 301n119 Ignatius, To the Trallians (Ign. Trallians) 2:1 199 3:1–2 199 3:3–4:1 201 4:2 201 4:3 201 7:2 301n119 10 301n118 Martyrdom of Polycarp 10 304n151 11:2 194, 195 GREEK AND LATIN WORKS Augustine Confessions 6.8 (13) 283n27

scripture index Digest of Justinian 48.19.9.11 289n134 48.19.28.1 289n129 48.20.2.1 288n102 48.24.1 138, 271n67 Josephus Against Apion 2:205 270n57 Antiquities 15.11.5 220n40 15.268 261n12 17.295 281n4 19.332–34 281n12 20.9.1 221n40 20.117 281n4 20.129 281n4 Jewish Wars 5.5.2 220n40 Jewish War 2.75 281n4 2.243 281n4 3.321 281n4 5.289 281n4 5.450–51 281n4 6.4, ll. 126–27 220n40 6.417–18 281n4 7.23–25 281n4 7.37–38 281n4 7.38.1 286n77 7.450 281n4 241 281n4 253 281n4

301 281n4 306 281n4 308 281n4 Juvenal 2.143–48 290n150 6.82–113 290n150 8.183–210 290n150 13.28ff. 290n150 Origen Epistula ad Africanum 20.14 221n44 Philo Ad Gaium 31 220n31, 220n40 In Flaccum 72–85 281n3 83 270n61 Seneca Epistles 7.4 287n85 7.20 225n91, 287n85 70.21 225n91 70.23 225n91 70.26 225n91

Domitian 10 299n99 Lives of the Caesars 61:2 271n66 Tacitus Annals 1.54.2 290–91n150 1.76.3 290–91n150 2.32 246n102 6.10 270n62 13.31.1 290n150 14.14.2 290–91n150 14.21.1 290–91n150 15.36.4 290–91n150 Dialogue 29.3 290–91n150 DEAD SEA SCROLLS Temple Scroll col. 64, ll. 6–13 49 Pesher Nahum col. i, lines 7–8

49

Suetonius Caligula 35 288n99

EARLY CHRISTIAN LITERATURE Martyrdom of Apollonius 6 304n151 9 304n151

Claudius 34 288n99

Martyrdom of Cyprian 1:2 304n151

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Subject Index

Abaye, 129, 135 Abel (biblical ﬁgure), 155 Abu-Jamal, Mumia, 50 accidental death, 77, 78, 97, 98 acquitting arguments, 79 Adam (biblical ﬁgure), 148 Adam Bede (Eliot), 178–79 adultery, 58 Aeneid (Virgil), 164 Africanus, Julius, 12, 13 agency, 96–97, 110, 111, 117 aggadah, 53, 57 Agrippas, 149 agunah, 157 Akhan (biblical ﬁgure), 89–91 Akiva, Rabbi, 4, 33, 39, 45, 50, 57, 104–5, 110–11, 118, 132, 212 Ambrose, 19 American Judaism, 49–52 Amoraim, 44 Amos (prophet), 4 amphitheaters, 155–56, 167 Amsterdam (Netherlands), 84 Ananias, 190, 191 Andronicus, 81 animals, 173 animal sacriﬁce, 54, 87 aninut, 128–29, 136 Antigone (Sophocles), 136–37 Antiochus, 81

anti-Semitism, 4, 30 Aptowitzer, Victor, 53, 162 arena, 156, 158, 167–70, 175 Athenagoras, 196 atonement, 54, 58, 59, 83–85, 91, 129–34, 148 Augustine, 19, 157, 197 authority constructions of, 211–13 death penalty as aid to development of Christian, 4, 12 death penalty as aid to development of rabbinic, 4, 12 death penalty as education in rabbinic, 18 as dynamic process, 10 and execution in early Christianity, 181–213 and institutionalized punishment of death, 4 Lincoln (Bruce) on, 86 rabbinic, 4, 11, 12, 18, 78, 105 and ritual, 9, 11, 78 and site of execution, 78 avelut, 128–29 Avigad, Nahman, 133 Babylonia, 135 Babylonian Talmud, 136, 144–50

340

subject index

Babylonian Talmud (continued ) baraitot in, 13–15, 21, 71, 142, 144–45, 148, 161, 174 on Ben Stada, 15 on blood-avenger, 104 on burial, 136, 140 on burning, 165–67 and cessation of capital punishment, 13 concept of atonement, 129 on decapitation, 161 discussions of punishment, 60 on nakedness, 172 on site of execution, 73, 78 on stadium ox, 174 on stoning, 14 Bammel, Ernst, 48, 49 banditry, 48 Barabbas, 186, 187 Bar Adon, Pesach, 133 baraitot, 13–15, 21, 71, 102, 142–52, 161, 174 Bar-Ilan, Meir, 135, 136 Barton, Carlin, 84, 87, 169 Bauman, Richard, 19, 81 Baumgarten, Joseph, 48 Bedau, Hugo, 49–52 bediqot, 121 beheading, 10, 42, 58, 124–25, 153, 154, 159–65, 174, 177 beit din, 73 beit haskilah, 73 Bell, Catherine, 18, 68, 69, 75, 77, 79– 80, 82, 85, 94 Benaiah, Rabbi, 116 Benny, Philip Berger, 31–32, 33, 35, 53, 56, 63 Ben Pandira, 15 Ben Stada, 15, 151 Bertholet, Alfred, 35 Bhabha, Homi, 10, 154, 161, 162 Bible blood-avenger in, 106, 107 executions in, 33, 37, 54 language in, 50 laws of capital punishment, 42 punishment in, 57, 58 stoning in, 5, 48 zeal for executions, 34 See also speciﬁc books; speciﬁc biblical ﬁgures

blasphemy, 107, 176 Blidstein, Gerald, 50, 51, 52, 61 Blinzler, Josef, 48 Block, Richard, 51–52, 61 blood-avenger, 97–107, 152 Boethusians, 143 book of the covenant, 97 Bowersock, Glen, 208 Boyarin, Daniel, 10, 141, 184, 208 brotherly love, 181–83 Brown, Peter, 170, 196 Brown, Shelby, 169 Bryan v. Moore, 38 Bu¨chler, Adolf, 162 Bundy, Ted, 50 burial, 73–74, 87, 128–36, 138, 140 burning, 9, 37, 42, 55, 57, 124, 150–51, 159, 165–67, 174, 177 Burridge, Kenelm, 69 Cain (biblical ﬁgure), 155 Callistratus, 166 capital punishment. See death penalty “Capital Punishment Among the Jews” (De Sola Pool), 34 Case of the Nazarene Reopened, The (Goldin), 35 Castelli, Elizabeth, 193, 194, 197 Central Conference of American Rabbis, 51 charisma, 179 Christ. See Jesus Christianity, 37, 40 and authority, 4, 181–213 biblical heritage of, 28 compared with Judaism, 21, 40, 183, 184 and execution, 181–213 myths of martyrdom, 185–98 Passion Narrative, 185–88 and ritual, 11 scholars of early, 47 and teaching of cruelty to Jews, 36 church order, 198, 199, 202 Cicero, 19 circus, 158 civil law, 210 Clifford, James, 11 clowns, 156 Cohen, Esther, 92

subject index Cohn, Haim, 41–45, 47, 48, 49, 63, 118, 122 collective effervescence, 68 collective vengeance, 122 colonial populations, 10, 154 community, 86–88, 91, 107–19, 140, 152 confession, 66, 83–87, 91–93, 131, 147– 48 Conservative Judaism, 51 Covenantal Rights (Novak), 62 Cover, Robert, 9, 70, 71, 75, 78, 82 crime, 18, 39, 46, 58 Criminal Code of the Jews, According to the Talmud, Massecheth Synhedrin (Benny), 31 “Criminal Jurisprudence of the Ancient Hebrews, The” (Mendelsohn), 27 criminal law Jewish, 31 as test case for cruelty, 29 of Torah, 45 versus civil law, 210 See also rabbinic criminal law “Criminal Law in Days of Old” (Lilienblum), 33 criminology, 30 cruciﬁxion, 10, 43, 48–49, 153, 159, 161, 173, 186 “Cruciﬁxion as a Punishment in Palestine” (Bammel), 48 “Cruciﬁxion, the Nahum Pesher, and the Rabbinic Penalty of Strangulation” (Halperin), 49 cruelty, 29, 36 culture, 11 Daniel (biblical ﬁgure), 12 David (biblical ﬁgure), 80, 81 death penalty as aid to development of Christian authority, 4, 12 as aid to development of rabbinic authority, 4, 12 and American Judaism, 49–52 cessation of Jewish, 13–14 constitutionality of in U.S., 50 contrast between Bible and Rabbis, 34, 42 elimination by Pharisees, 37 in Germany, 25–26, 82

341

and humanitarianism, 28, 29, 31–40, 42 in Judaism and Christianity, 40 Kazis on, 51 rabbinic, 17, 18, 42, 45–46, 51, 53, 56, 60–64 as rabbinic education, 18, 45, 46 rabbinic evidence for in second century, 15 rabbis’ stand on, 19–20, 42, 61, 62, 63, 211 role in early rabbinic culture, 6–7 scholarship on ancient Jewish, 25–64 Spitz on, 51 for teaching law in front of one’s master, 3 in U.S., 29, 49–52, 88 Zohar on, 47 See also execution Death Penalty in America, The (Bedau), 49 decapitation. See beheading decomposition, of body, 132–33 “Defense in Criminal Cases with the Ancient Hebrews” (Vargha), 30 derash, 5, 34 De Sola Pool, David, 34–36, 42, 48, 51, 52, 56 deterrence, 203–4 Deuteronomy, 72, 74, 98, 104, 108–12, 117, 127, 158, 168 Devereaux, Robert, 84 Digest of Justinian, 138, 169, 175 Discipline and Punish (Foucault), 8, 95 Division of Labor in Society (Durkheim), 30 Docetism, 202 “Does Tlh in the Temple Scroll Refer to Cruciﬁxion?” (Baumgarten), 48 Domination and the Arts of Resistance (Scott), 10 Dorff, Elliot, 51 Durkheim, E´mile, 30, 68 Dworkin, Ronald, 70 Efron, Joshua, 15 Eighth Amendment, 38 Elazar ben Azariah, Rabbi, 4, 29 Elazar ben Rabbi Tsadoq, Rabbi, 14, 150– 51

342

subject index

electric chair, 38 Eliezer, Rabbi, 3–4, 57, 67, 146, 149, 171– 73 Eliot, George, 178–79 Elliott, Neil, 10 Elon, Menahem, 44–45, 46, 47 emperors, 16, 17 England, 31, 84 Enker, Aharon, 17, 18, 46, 47 enticement, 15, 151 entrapment, 151 Esther Rabbah, 171 ethics, 29, 54–55, 56, 61 ethnography, 11 eulogy, 128 evangelization, 184 Evans, Richard, 25, 26, 82, 84, 87, 88, 92 excision, 58 execution audience to, 86–92, 95–96, 108, 111, 118 and authority in early Christianity, 181– 213 beheading, 10, 42, 58, 124–25, 153, 154, 159–65, 174, 177 Benny on, 32 burning, 9, 37, 42, 55, 57, 124, 150–51, 159, 165–67, 174, 177 community’s role in, 86–88, 91, 107– 19 compared with normal death practices, 88 and condition of body, 8–9, 27, 32, 37, 55–57, 60, 63 and court, 73, 74, 78–79, 93 cruciﬁxion, 10, 43, 48–49, 153, 159, 161, 173 degrees of severity, 174–77 in Germany, 25, 82, 87, 88 hanging, 42, 55, 57, 67, 68, 75, 86, 87, 146, 161, 170–72 historical reality of Jewish, 12–17 Lilienblum on, 33 location of, 72–75 Mendelsohn on, 27 methods of, 27, 32, 36, 37, 52, 54–58, 60, 174, 182 and minimization of pain, 32, 53

in Mishnah, 5, 48, 66–94 performing, 95–152 privatization of, 29 rabbinic, 14, 31, 92–93, 96–97, 154– 79 rituals of, 9–10, 65–94, 96 role of sages in, 142–52 in Rome, 16, 153–79 Sarat on, 4 as spectacle, 9, 110, 168 stay of, 82–83 strangulation, 37, 42, 49, 55, 57, 58, 60, 124, 159, 174 in U.S., 38, 87 See also stoning Exodus, 97, 98, 100, 205 expulsion, 59 extrapolation statements, 86–87 family, 68, 85–86, 88, 93, 127–41 fatal charades, 153, 154 Felix, Minucius, 194 Fine, Steven, 133 First Apology (Justin), 203 Flaccus, 153 ﬂattery, 203 Florida, 38 foreign practices, 164 forgiveness, 40 Foucault, Michel, 8, 9, 26, 75, 95–96, 97, 108 Fraade, Steven, 7 Fraenkel, David, 149 Frend, W.H.C., 208 funerals, 88 games, q155–57 Gamliel, Rabban Shimon ben, 30, 37, 45, 50, 52, 150 Garner, Dwight, 200 Garnsey, Peter, 16, 19, 162, 174 Geertz, Clifford, 74, 77 gender, 171–73 Germanicus, 193 Germany, 25–26, 82, 87, 88, 102 Girard, Rene´, 87, 88 Gladiator (movie), 153 gladiators, 84, 87, 153, 156, 157, 167–69, 175, 194

subject index God and capital punishment, 8, 32, 47 Imago Dei, 8, 56–57 justice of, 206–9 love of, 208 power of, 9 punishment of, 54, 116, 204, 205, 208 and rabbinic hierarchy, 3 retribution of, 145 go’el ha-dam. See blood-avenger Goldin, Hyman, 34–35, 38, 43, 45 Goodblatt, David, 15, 17 Goode, Washington, 75 goring ox, 173–74 Gospel of John, 185–86, 187 Gospel of Luke, 186–89 Gospel of Mark, 185–87 Gospel of Matthew, 182–83, 185–87 Gospels, 185–88, 202 Governmental and Judicial Ethics in the Bible and Rabbinic Literature (Priest), 36 governors, 15–16, 17 Graetz, Heinrich, 28 Gramsci, Antonio, 69 guilt, 40, 76, 82 Gunderson, Erik, 96 Ha’am, Ahad, 33 Hachlili, Rachel, 132, 135 Hadrian, 158, 169 halakhah, 53, 57 Halbertal, Moshe, 8, 9, 53–56, 59–61, 63, 112 Halevy, Isaac, 47 Halperin, David, 49, 173 Hananel, Rabbenu, 123, 124 hanging, 42, 55, 57, 67, 68, 75, 86, 87, 146, 161, 170–72 Hanina ben Teradyon, Rabbi, 166–67, 205–7 haqirot, 121 Harris, Jay, 28 Hart, H.L.A., 17, 18 Hasan-Rokem, Galit, 184 Ha-Torah Ve-Ha-Medinah (Israeli journal), 38, 40 hattat, 58 Haut, Irwin, 37

343

heart, 77, 122 Hebrew Criminal Law and Procedure, Mishnah (Goldin), 34 Hecht, Neil, 50 hegemony, 69 Hengel, Martin, 16 herald, 80–82, 86 Herod, 155, 186, 187 Herod Antipas, 155 Hezser, Catherine, 15 hidden transcripts, 154, 161–63, 178 hips, 77, 122 Hirshman, Mark, 184 History of the Jewish People in the Time of Jesus (Schu¨rer), 28 “Hiyuv Be-Dinei Shamayim” (Segal), 53 homicide, 50, 60, 76–78, 96–107, 145, 146 Hopkins, Keith, 212 Horowitz, George, 35–36, 38, 45, 63 Horsley, Richard, 10 hubris, 146 humanitarianism of execution methods, 56, 182 of Jewish criminal system, 31 in practices of punishment, 95 rabbinic, 32, 34, 35, 37–39, 42, 43, 48, 49, 52, 56, 61, 62 of Talmud, 28, 29, 33, 36 human rights, 47 Human Rights in the Bible and Talmud (Cohn), 43 idolatry, 107–8, 156, 158, 164, 176 Ignatieff, Michael, 26 Ignatius of Antioch, 184, 198–202, 204 Imago Dei, 8, 56–57 imperialism, 10, 11, 16, 153, 161 incest, 60 innovation, 57, 63 institutionalization, 98, 100–103, 105 intentional murder, 97–98 Israel, 31, 38 death penalty in, 40 “Jewish Thought,” 53–61 lawmaking in, 36 Mishpat Ivri movement, 38, 41–47 scholarly traditionalists, 38–41 Israeli, Shaul, 38, 40

344

subject index

Jacob, Walter, 61 Jacobs, Martin, 15, 155–56 Jesus, 15, 30, 31, 35, 43, 48, 56, 62, 153, 182–83, 185–88, 192, 194, 198, 199, 202 Jewish court. See Sanhedrin Jewish criminal competence, 13, 14 Jewish criminal system, 31 Jewish Enlightenment, 28, 32, 35, 37 Jewish execution, 12–17 Jewish Jurisprudence (Soloveitchik), 50 “Jewish Punishment of Stoning in the New Testament Period, The” (Blinzler), 48 Jonathan, Rabbi, 99, 100 Josephus, 15, 153, 155 Joshua (biblical ﬁgure), 89, 90 Joshua, Rabbi, 148 Josiah, Rabbi, 99, 100 Judah, Rabbi, 21, 66, 67, 82, 85, 110–11, 118, 159–60, 163–65, 170, 172, 181– 82, 207 Judah (biblical ﬁgure), 141 Judah ben Tabbai, 14, 142–47, 150, 152 Judaism, 28, 40 American, 49–52 assimilation, 157 compared with Christianity, 21, 183, 184 Conservative, 51 and death penalty, 26, 61 Mendelsohn on, 30 Reform, 28, 35, 51, 52 judges, 74, 75, 78, 184, 204–13 judicial claims, 120–26 judicialization, 98–100, 103, 105 justice, 11, 40, 52, 108, 148, 203, 206–9 Justin Martyr, 184, 202–4 karet, 58, 59 Kazis, Israel, 51 Kertzer, David, 69, 75 Killebrew, Ann, 132, 135 killing, 50, 70, 76, 78, 120 “Killing Me Softly” (Sarat), 4 “kingdom,” 161 Kirschenbaum, Aaron, 17, 18, 45–46, 47 Knesset, 38, 39 Kraemer, David, 132

Kravetz, Julius, 52 Kyle, Donald G., 168 Laitin, David, 69 language, 50, 74, 83 lashes, 59, 208 law, 3, 70–71, 93, 209–11 legal decisions, 3 legal interpretation, 70, 71 Levine, Lee, 15, 140, 141 Levinson, Joshua, 10, 154, 155 Leviticus, 111, 114, 115, 117, 158, 183 Leviticus Rabbah, 154 lex talionis, 143 liability, 53 Lieberman, Saul, 171, 177 Life, Freedom, and Equality in the Jewish Tradition (Zohar), 46 Lilienblum, Moshe Leib, 32–33, 44, 63 Lincoln, Bruce, 18, 86 literary interpretation, 70 literature American Judaism and death penalty debates, 49–52 Greek and Hebrew sources, 47–48 Israeli “Jewish Thought,” 53–61 Israeli traditionalists, 38–41 Mishpat Ivri movement, 38, 41–47 multi-dialogue, 7–8 New Testament historians, 47–49 nineteenth-century foundations, 27–33 rabbinic, 21–22 twentieth-century trajectories, 34–38 See also speciﬁc texts and authors Livermore, Mary, 163 Living Tree, A (Dorff and Rosett), 51 Lorberbaum, Yair, 53, 54, 56–57, 59–61, 63, 161, 162, 166 lynch mob, 108 MacMullen, Ramsay, 16, 167, 212 Mahapekhot Parshaniyot be-Hit’havutan (Halbertal), 54 Maimonides, 56, 120, 123, 124 Maimonides College, 27 Makkot. See Mishnah Makkot manslayer, 97–99, 102–6 Man’s Right to Life (anthology), 51 Marcion, 182

subject index martyrdom in Christian narrative, 184, 185–98, 207, 209, 212–13 conversion of Paul, 189–93 crossover of judges and martyrs, 204– 13 dating of Jewish and Christian traditions, 208 deﬁnition of, 209 early martyrs, 193–98 Hopkins on, 212 of Ignatius of Antioch, 184, 198–202 Justin on, 202–4 myths of, 183, 185–98 narrative of Rabbis Yishmael and Shimon, 205–6 rabbinic narratives, 158, 166, 205–9 of Stephen, 188–89 Martyrdom of Polycarp, 193, 194–95, 197 Martyrdom of Ptolemaeus and Lucius, 193– 94, 195 Martyrs of Lyons, 195–96, 200 Masur, Louis, 83, 92 McBride, James, 87 Meir, Rabbi, 67, 91, 132, 156 Meiselman, Moshe, 61, 76 Mekhilta, 142, 144, 158, 205, 207, 208 Mekhilta de-Rabbi Shimon bar Yohai, 58 Mendelsohn, Samuel, 27–33, 35, 37, 38, 43, 45, 47, 53, 55, 56, 63 Merback, Mitchell, 71, 84, 91 mercy, 52 Meyers, Eric, 132 Midrash Halakhah, 21, 112 mimicry, 154, 155, 161–63, 168, 176 Mishnah, 21, 45, 48, 62 aninut and avelut, 128–29, 136 and atonement, 131, 133, 135 community’s role in, 109, 116–18 confession in, 83, 84, 86, 147 criminal law in, 33, 71, 211 decapitation in, 125 on hanging, 86, 87 impracticable laws in, 65, 211 on intentional homicide, 76 language of, 74, 79, 83 and location of execution, 74–75 methods of execution, 55, 66–94 on mourning, 128–30, 135, 136

345

normal death practices in, 88 penalty of burning, 166 prohibition on family burial, 136 and public presence at execution, 86, 91, 168 punishment in, 5, 50, 58 rabbinic capital punishment in, 18 and relationship between court and execution, 73, 74 rituals of, 18, 65–94 stoning in, 48, 68, 116–17, 122 on witnesses, 120–23 Mishnah Avot, 142, 147 Mishnah Berakhot, 139 Mishnah Gittin, 139 Mishnah Makkot, 21, 37, 52, 57, 104, 106 Mishnah Sanhedrin, 21, 48, 52, 65–94, 109, 120–21, 139, 150, 159, 169, 170, 174, 209–10 Mishpat Ivri movement, 38, 41–47 mob violence, 108, 118 Molekh worshiper, 107 Mommsen, Theodor, 16 Mosaic values, 28 Moses (biblical ﬁgure), 72, 80, 81, 108, 150, 176 mourning, 128–31, 135–40 movies, 87, 88 murder, 50, 58, 76, 97–107, 145, 146 myths, 61, 153, 183, 185–98 Nagar v. State of Israel, 44 Nahmanides, 56 nakedness, 169–73 narrative, 108 Nathan, Rabbi, 156, 157, 159, 169, 208 Neusner, Jacob, 10, 22, 62 New Testament, 47–49, 185 Nissim of Gerondi, 45 Noachide law, 60 normal death practices, 88 Novak, David, 62 nudity. See nakedness; stripping obligation, 101, 102, 103–5 “Observations on the Criminal Law of the Jews” (Aptowitzer), 53 Onashim ve-Hata’im min ha-Miqra leSifrut Hazal (Shemesh), 57

346

subject index

ordering, 10, 175, 176 Origen (church father), 12–13 orphans, 205 ossuaries, 132, 133 oxen, 173–74 Palestine, 131, 133, 155 Palestinians, 46–47 Palestinian Talmud, 15, 21, 71, 132, 142, 147–50, 158 Passion Narrative, 183, 185–88, 189 passivity, 97 patriarchical power, 12–13 Paul (apostle), 188, 189–93, 197, 201 Perkins, Judith, 196 Perpetua, 201 peshat, 5, 34 Peter (apostle), 15, 201 Pharisees, 37 Philo, 137, 153 Pilate, 186, 187 Pittsburgh platform, 28 politics, 10, 38, 68–69 Potter, David, 169 power of ancient Rome, 17, 161 Foucault on, 8 of God, 9 individual claims to, 97–107 paradoxes of, 153–79 patriarchical, 12–13 rabbinic, 6, 79, 94, 165 and ritual, 10, 69 Priest, James, 36–37 prison, 8, 95 progress, 26 punishment in ancient Rome, 10, 18, 96 in Bible, 57, 58 contrast between rabbinic and Qumranic, 58–59 of crime, 46 Foucault on, 8, 9, 95 functions of, 17–18 in Germany, 102 of God, 54, 116, 204, 205, 208 heralds of, 80 hierarchy of, 175 history of, 9 for homicide, 97–107

humanization of, 42 in Judaism and Christianity, 40, 207– 8 measure-for-measure, 89–90, 166 meted by governors, 15–16 as moral reform, 81 rabbinic, 8–9, 46, 59 rituals, 9–10, 91, 96 shift in methods of, 25, 95 and society, 30 See also death penalty; execution; speciﬁc methods of punishment Qorban Edah (Fraenkel), 149 Quint, David, 164 Quint, Emanuel, 50 Qumran, 58–59 rabbinic authority, 4, 11, 12, 18, 78, 105 rabbinic commentary, 7 rabbinic criminal law, 61, 209–10 Aptowitzer on, 53 Benny on, 31–32 Cohn on, 43 De Sola Pool on, 34 Lilienblum on, 33 Mendelsohn on, 27–31 Steinmetz on, 18 rabbinic death penalty, 17, 18, 42, 45–46, 51, 53, 56, 60–64 rabbinic execution, 14, 31, 92–93, 96–97, 154–79 rabbinic hierarchy, 3 rabbinic mimicry, 153–55, 162, 163, 176 rabbinic power, 6, 79, 94, 165 rabbinic ritual, 65–66, 68–71, 92–93, 96 rabbis/Rabbis charismatic, 177–79 and executions, 8–9, 27, 34–35 interpretations of Torah, 54 language used by, 50 and punishment of crime, 8–9, 46, 59 of second century, 6–7 stand on death penalty, 19–20, 42, 61– 63, 211 See also speciﬁc rabbis Rabbis for Human Rights, 46 Rabello, Alfredo Mordechai, 17 Rabinowitz-Teomim, Benjamin, 38, 39– 40, 41, 45, 50, 61

subject index Rahmani, Levi, 132 Ran. See Nissim of Gerondi Rashi (Solomon ben Isaac), 131, 150, 170 Rava, 129, 135 Rav Ada bar Ahavah, 129–30, 135 Rav Aha bar Hanina, 136 Rav Ashi, Rabbi Hiyya bar, 119 Rav Hisda, 119 Rav Huna, Amora, 119 redemption, 84, 90–92 redemptive hegemony, 69, 79, 86 redemptive process, 69 Reed, Annette, 184 reform, 8, 26, 182 Reform Judaism, 28, 35, 51, 52 relatives. See family repression, 8 resistance, 165 reversals, 163, 164, 196 Ribash (rabbinic authority), 44 ritualization, 68, 69–70 ritual(s) and authority, 9, 11, 78 deﬁnition of, 68 of execution, 9–10, 65–94, 96 language of, 74 of Mishnah, 18, 65–94 of mourning, 128 political implications of, 68–69 and power, 10, 69 of punishment, 9–10, 91, 96 rabbinic, 65–66, 68–71, 92–93, 96 Robinson, Francis, 84 “Role of Punishment in Jewish Criminal Law, The” (Kirschenbaum), 45 Rome (ancient), 9 arena, 156, 158, 167–70, 175 execution in, 16, 153–79 gladiators, 84, 87, 153, 156, 157, 167– 69, 175, 194 imperialism, 11, 16, 153, 154, 161 mourning in, 137–38 power of, 17, 161 punishment in, 10, 18, 96, 153–54 theaters, 155–56, 158 Rosett, Arthur, 51 Rothman, David, 26 Roy, Parama, 10 Rubin, Nissan, 133, 134, 136, 139

347

Sabbath, 107 sacriﬁce, 54, 65, 87, 88 Sadducees, 48, 143, 144 sages/Sages, 6, 36, 67, 76, 142–52, 159– 65, 170–72, 176 salutation, 139 Sanhedrin, 12–15, 33, 35, 39, 47, 48, 50, 211 Sanhedrin, 21, 57, 62, 139, 149, 209 See also Mishnah Sanhedrin Sarat, Austin, 4, 76, 77 Saul of Tarsus. See Paul scapegoating, 88 Schoedel, William R., 198 scholarship. See literature; speciﬁc texts and authors Schu¨rer, Emil, 28–29, 47 Schwartz, Joshua, 15 Scott, James, 10, 154, 161, 162–63, 164, 178, 179 secondary burial, 129–35, 140 Second Temple, 5, 6, 59 Segal, Arthur, 155 Segal, Peretz, 53–54, 61 Sejanus, 137 Seneca, 19, 167 Septimius Severus, 173 Sermon on the Mount, 182, 183, 202 sexuality, 160, 170, 176 Sharpe, A.J., 84, 92 she’ilat shalom, 139–40 Shema, 94, 128, 139 Shemesh, Aharon, 53, 57–59, 60, 61, 63 Shetah, Shimon ben, 14, 142–47, 150, 152 Shimon, Rabbi, 158, 174, 176, 205–6 Shulkhan Arukh, 33 Sifre, 80–81, 166 Sifre Deuteronomy, 101–2, 104–6, 113–16, 120, 160, 172, 205 Sifre Numbers, 81, 82, 98–103, 105, 106, 112, 114–17 Sifre Zuta, 115 silence, 10, 70, 83 Silence of the Lambs, The (movie), 87 Simon, Rabbi, 122 Simon Magus, 190 Simpson, O.J., 50 sin, 37, 40, 46, 58–59, 81, 82, 85, 91 Smith, Brian, 76, 77, 88 Smith, Philip, 84, 96

348

subject index

Smith, Susan, 50 Smyrna, 193, 194 social context, 26, 174–75 Soloveitchik, Joseph, 50 spectacle, 9, 110, 168 speech, 10, 70, 78–86, 93 Spierenburg, Peter, 84, 98, 102, 151 Spirit of Jewish Law, The (Horowitz), 35 Spitz, Elie, 51, 61 stadium ox, 173, 174 stay of execution, 82–83 Steinmetz, Devora, 18, 59–61, 126 Stephen (martyr), 188–89, 190 stoning, 174, 177 Babylonian Talmud on, 14 Benny on, 32 in Bible, 5, 48 Cohn on, 42, 63 community’s role in, 108–9, 111–17 Halbertal on, 55 location of, 66, 72–75, 78, 93 Lorberbaum on, 57 in Mishnah, 48, 68, 116–17, 122 and nakedness, 170, 171, 172 as ritual, 66–68, 169 as spectacle, 168 in Torah, 176 Tosefta on, 121–25, 170 strangulation, 37, 42, 49, 55, 57, 58, 60, 124, 159, 174 stripping, 68, 85, 88, 169–71 study house, 158 Suetonius, 137–38 suffering, 67, 132, 197, 202, 207 Susanna (biblical ﬁgure), 12, 13 sword, 161–62, 164 synagogue, 158 Tacitus, 137, 138 Talmud accessibility of, 42–43 Block on, 52 and Bryan v. Moore, 38 criminal jurisprudence in, 27–31 executions described in, 33, 37 humanitarianism of, 28, 29, 33, 36 and Jewish status, 10 place in Western culture, 42, 43 See also Babylonian Talmud; Palestinian Talmud

Tannaim, 6, 44, 54, 56, 99–103, 106, 116– 18, 120, 121, 125, 126, 142, 147, 173, 176 tannaitic era, 6, 17 Tarfon, Rabbi, 4, 33, 39, 45, 50 testimony, 196 theaters, 155–58 theodicy, 207, 208 theology, 29, 61 theurgical theosophy, 56 Third Reich, 25 Tiberius, 137, 138 Titus, 154–55 To Polycarp (Ignatius of Antioch), 199– 200 Torah, 41, 149 and capital punishment, 33, 37, 40 criminal law of, 45 distractions from, 156, 157 list of capital crimes, 58 on murder, 100 patterns of continuity and change, 51 punishments in, 176 rabbis’ interpretations of, 54 relationship to forbidden behavior, 18 Tykocinski on, 39 torture, 8, 16, 95, 153 Tosefta, 21, 133–34, 136 blood-avenger in, 100 confession in, 147–48 execution of enticer in, 15, 151 “hand of the witnesses,” 121–22, 126 on nakedness, 170, 173 and performance of execution, 142, 144, 147–50 and public execution, 110–11, 116–18, 168 on rabbinic mimicry, 163 on Roman theaters, 156, 157 on stoning, 121–25, 170 To the Ephesians (Ignatius of Antioch), 198, 200, 201 To the Philadelphians (Ignatius of Antioch), 199 To the Trallians (Ignatius of Antioch), 201 Tractate Sanhedrin. See Mishnah Sanhedrin treason, 138 Trial of Jesus, The (anthology), 48

subject index Tsadoq, Rabbi, 151 tselem Elohim, 32, 39, 46, 50, 55–57, 61 Twelve Tables, 166 Tykocinski, Yehiel M., 38–41 Ulpian, 138 urbanization, 155 values, 28, 54 vengeance, 97–107, 122 violence, 70, 71, 76, 78, 108 Virgil, 164 Visotzky, Burton, 184 Volkskunde, 25, 26 Waldenberg, Eliezer, 40 Weiss, Isaac Hirsch, 28 Weiss, Zeev, 155

349

Wellhausen, Julius, 47 White, J.B., 70 widows, 205 Wiedemann, Thomas, 162 Williams, Sam, 197 Wistrand, Magnus, 19 witnesses, 109, 111, 112, 118, 120–26, 142– 45, 148, 194 women, 157, 160, 170–73 world to come, 90–91, 94 “Yesodot Ba-Mishpat Ha-Plili Ha-Ivri” (Enker), 46 Yishma’el, Rabbi, 158, 160, 205–6 Yosi HaGlili, Rabbi, 104–5, 106, 132, 160 Yuval, Israel, 184 Zohar, Noam, 46–47