Review of Etan Levine, Marital Relations in Ancient Judaism (original) (raw)
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Divine Justice in Rabbinic Hands final as submitted
2005
Divine Justice in Rabbinic Hands: Talmudic Reconstitution of the Penal System Michelle Hammer-Kossoy New York University September 2005 Advisor: Professor Lawrence Schiffman Abstract The tannaim and amoraim greatly restricted the practical applications of biblical punishments. At the same time, the rabbis were not opposed to the notion of punishment, as seen through a set of alternative sanctions they invented that lack roots in biblical mandates This dissertation examines the development of rabbinic criminal punishment in the tannaitic literature and Talmudim, focusing on rabbinic power-conferring rules that permit punishment against Torah law and create a special royal jurisdiction, as well as three specific penalties of rabbinic origin: imprisonment (kipah), rabbinic lashes, and the ban. A close examination of the sources reveals an uneven development of the sanctions. Tannaim boldly laid out broad power-conferring rules, but amoraim restricted them or left them undeveloped. Similarly, tannaim prescribe kipah for a range of uses and offenses, but amoraim severely limited it. On the other hand, a number of cases of lashes are reported in the Talmudim, while the ban is developed and reported even more extensively. This unbalanced development advances the state of research about the historical role of the rabbis in the larger Jewish community. The bold creation of capital and corporal penalties by the tannaim reflects their ivory-tower approach and detachment from governing reality. However, the amoraim utilize sanctions in inverse proportion to the amount of bureaucratic infrastructure they require. This suggests that amoraim in Palestine and even more so Babylonia were making a play for power in the public arena but had to rely largely on charismatic power via the ban and occasional lashes because they lacked the administrative infrastructure to implement imprisonment or systematically use lashes. As a study in rabbinic thought, this dissertation shows that the rabbis are comfortable holding life and death power—every rabbinic penalty contains some form of capital component, either symbolic or theoretical. Furthermore, the rabbis of the talmudic period created a system of punishment that grants individual judges discretion over which sanction to impose, if any, thereby shunning the mandatory sentencing that characterizes biblical punishments. Punishments vary from locality to locality and are dependent on the identity of the offender.
Notre Dame journal of law, ethics & public policy , 2024
This article investigates the purposes of punishment in Jewish law, a subject that has been contentious in recent scholarly discussions. It scrutinizes whether these punishments align with religious, educational, or conventional punitive principles like deterrence, retribution, rehabilitation, and prevention. A historical examination shows that contemporary punitive goals such as retribution, deterrence, prevention, rehabilitation, compensation, and atonement have roots in Hebrew law throughout various epochs. Notably, each advocated objective faced counterargument in a certain era, with none achieving supremacy. The article posits that the theoretical underpinnings of punishment in Hebrew law are fundamentally akin to those in general punitive theory. This similarity extends to the nature of the queries posed, the challenges encountered, the argumentative styles, and the fragmented and inconsistent answers offered. Consequently, the pursuit of a unique punitive theory within Hebrew law is deemed unproductive, as no such distinctive framework exists or has existed. Modern theories of punishment, akin to their historical Jewish law counterparts, are plagued by inherent paradoxes that appear unresolvable. Jewish legal texts add to the complexity and disarray in categorizing punitive objectives, as different goals frequently conflict. This mirrors the larger domain of penal theory policies, which constantly grapple with reconciling opposing objectives to find an appropriate equilibrium in each case.
Delving into Fundamentals: Biblical Justice and Protocols of Judicial Authority
This research delves into the world of Talmudic and pretalmudic literature, shedding light on the genre of Etiquette for Judgeship, known as Adab al-qāḍī in Arabic, resonating within Judaism and finding expression in Islam. The study suggests that the roots of this genre extend into the ancient world of biblical and rabbinical literatures, challenging the notion that medieval genres arise in isolation. To understand the evolution of the genre, it is essential to illuminate the creative contributions of the Geonim, establishing a link between the ancient world and the pre-modern medieval era. Within both biblical and Rabbinic literature, a recurring motif emerges—using literature as a catalyst for moral, ethical, or political change. This lecture aims to demonstrate that reference books, often perceived as technical, transcend their apparent purpose. These texts are philosophical, historical, and religious, bearing an educational agenda. They carry objectives and ideologies, functioning as guides that influence and transform their audience. The lecture challenges the notion of manuals as purely technical documents, contending that these manuals, including the Bible itself, serve a multifaceted purpose. They are not only repositories of technical information but also jurisprudential treatises and historical documents. The lecture aims to underscore that these texts, by providing guidelines for living, actively contribute to the preservation and development of a particular ideology. In essence, this exploration suggests that the Bible, as a comprehensive literary work, operates as more than a religious scripture—it is a guidebook for better holy life, offering insights into moral conduct, ethical considerations, and political ideals. The research towards the roots of this halakhic genre invites a reconsideration of how these ancient texts continue to shape and influence human behavior and societal norms across cultures and epochs.
Encircling the Law: The Legal Boundaries of Rabbinic Judaism
Jewish Studies Quarterly, 2009
There are a great many things which cannot withstand the implacable, bright light of the constant presence of others on the public scene; there, only what is considered to be relevant... can be tolcrated, so that the irrelevant becomes automatically a private matter. This, to be sure, does not mean that private concerns are generally irrelevant; on the contrary... there are very relevant matters which can survive only in the realm of the private."1 Jewish law has been an unmistakable presence in American legal scholarship. In her comprehensive and incisive article, "In Pursuit of the Counter-Text: The Turn to the Jewish Legal Model in Contemporary American Legal Theory,"2 Suzanne Last Stone traces and accounts for this phenomenon, attributing it to, among many other factors, the reception of Robert Cover's "tour de force,"3 which represents a "significant turning point in the growth of this new literature in American law and Judaism" and which "made it respectable to draw on the Jewish tradition in public discourse."4 Cover's work may be seen as a cornerstone of the "law and literature" movement with its emphasis on the central role of narrative in the construction of the nomos-and it has not only drawn
The article centers on a set of rabbinic principles—ve‘asita ha-yashar ve-ha-tov (“you shall do that which is upright and good”), kofin ‘al middat sedom (“we [=a court] may coerce regarding the ways of Sodom”), le-ma‘an telekh be-derekh tovim (“so that you shall walk in the way of the virtuous”), and lifnim mi-shurat ha-din (“[going] within the line of the law”)—which establish a heightened standard of moral behavior in the sphere of private law. It is argued that these principles were developed and systematized mainly in the context of the Babylonian (rather than Palestinian) branch of rabbinic legal culture and are, therefore, reflective of the distinctive cultural and jurisprudential environment of the Syro-Mesopotamian Near East. It is mainly in this context that moral principles and values are said to establish fully-normative, justiciable, and enforceable standards of behavior in excess of the strict law. The rabbinic principles are contextualized with the adjacent East Syrian Christian and Iranian legal traditions, focusing in particular on Īšōʿbōxt’s taxonomy of moral and legal categories. It is argued that the category of “uprightness” (triṣūtā) informs the rabbinic principles of performing that which is “upright and good” and avoiding the “measure of Sodom,” which require good faith and fair dealing, and seek to prevent unconscionable behavior and abuse of rights, whereas the category of acting in excess of the law or short of the law (yatīrūt / hasīrūt dinā) informs the rabbinic principles of acting “within the line of the law” and “walking in the path of the virtuous,” which require altruistic and supererogatory behavior—to the extent of incurring financial loss—and involve a dimension of distributive justice.
The Overcoming of Biblically-Mandated Violence in Rabbinic Judaism
The Jewish tradition — technically speaking, the rabbinic tradition that establishes what is called “Judaism” and which is known in emic terms as “the Oral Tradition” — might be described as a courageous and even audacious attempt of the ancient rabbis to read and implement the Bible in a manner consistent with their own ethical ideals. This, even when doing so required them to assert readings that clearly contradicted the plain sense of Scripture. In this lecture, I explore the ways in which rabbinic morality and commitment to the sanctity of human life led to the neutralization of biblically-mandated violence.