Jewish Justice

The Contested Limits of Nature, Law, and Covenant

David Novak

• Editorial: Baylor University Press
• Año: 2017
• ISBN:
  9781481305310
• Categoría: Theology & Religion
• Categoría: Jewish Theology

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

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

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

Chapter 1

Can Capital Punishment Ever Be Justified in the Jewish Tradition?

The Death Penalty and Moral Responsibility

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

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

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

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

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

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

The Death Penalty for Ordinary Murder

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

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

It is important to note that the legal situation of the Jews today, especially when it comes to our relation to what the tradition mandates concerning the death penalty, has not changed essentially. That is, even though Jewish political sovereignty has been regained in the State of Israel, the State of Israel is not governed by traditional Jewish law, and certainly not by traditional Jewish criminal law, by which the death penalty is prescribed. Such is not the case in the Jewish state, and even less so in the worldwide Jewish diaspora. On the one and only occasion the State of Israel ever judicially executed anybody—and that “anybody” was Adolf Eichmann—it was not done according to the governance of Jewish law (Halakhah). Nevertheless, even though we Jews have no jurisdiction for the specific application of the Jewish law of capital punishment, we are able to look to the Talmud more selectively for guidance in how the death penalty should or should not be applied where there is such jurisdiction. That guidance should function in the form of rational persuasion. Moreover, unlike the Jews of the talmudic period, we Jews who live in secular democracies like the United States and Canada are not just offering guidance from our tradition to societies in which we are essentially outsiders. Instead, because of our full citizenship and cultural presence, we are in a position to offer guidance to our own societies in areas of law where we are both subjects and objects of the overall political process, of which law is the most authoritative part.

Before we come to the rabbinic speculation on the death penalty that can be most directly applied to the events of September 11, we must see how the rabbis looked at the death penalty in more ordinary circumstances, which are when one private citizen murders another private citizen. Only after looking at what is ordinary can we better appreciate rabbinic speculation on what is clearly much more extraordinary. We must understand the legal reaction to homicide before we can understand the legal reaction to genocide. In some ways they are similar; in others different. By his declaration of a war of extermination on Jews qua Jews, Americans qua Americans, and Christians qua Christians, Osama bin Laden and his close associates have taken responsibility for what is in our eyes—but not in his—the crime of genocide.

In the context of dealing with ordinary homicide, no traditional Jewish thinker could be opposed to capital punishment in principle, since it is clearly mandated by Scripture. To all humankind Scripture mandates, “Whosoever sheds human blood, by humans shall his blood be shed” (Gen 9:6). To Israel (that is, what came to be solely identified as the Jewish people) Scripture mandates, “Whoever strikes a man dead, he shall be put to death” (Exod 21:12), and “Whosoever kills another human being, he shall be put to death. There shall be one penalty for the alien and the native” (Lev 24:21-22). Nevertheless, there is debate in the rabbinic tradition as to how widely applicable these laws are, especially the laws applying to Jewish murderers in a Jewish polity.

Despite the scriptural mandate for capital punishment, certainly for premeditated murder, there is a great debate regarding the extent to which this mandate could be put into actual practice. Thus, two of the most influential sages of the second century of the first millennium, Rabbi Tarfon and Rabbi Akivah, stated that had they been in the Sanhedrin—the Jewish supreme court—when Jews did have the political power to administer capital punishment in their own community, no one would have ever been executed because almost none of them could be executed according to the law.5 Clearly, for theological reasons, these rabbis could not justify this opinion by declaring their opposition to the scriptural mandates of capital punishment. Scriptural mandates may never be repealed because the law of God cannot be corrected by humans; it can only correct them.6 Instead, later sages explained their opinion by arguing that they would have interpreted the laws of evidence so strictly that, in fact, if not in principle, it would never be possible to officially sentence anyone to death.7 In other words, being stricter regarding the laws of evidence de jure enables one to be more lenient regarding the death penalty de facto. In effect, then, they would make the mandate for capital punishment a null class, which is a legal fiction. And, if anyone asked why Scripture would mandate what is in effect a null class, they could answer that the purpose of the law is moral instruction about the gravity of the crime of homicide. As was said about another such law—one involving the death penalty for a juvenile delinquent—where some rabbis also argued for a null class, stating “it never was applied and never will be,” the purpose of the law is theoretical— namely, that those who study it are to “be rewarded for ethical reflection about it” (darosh ve-qabbel sekhar).8

It is important to connect the legal views of Rabbi Akivah especially, who was the most prominent of the early rabbis, with his theology. One of the cardinal points of his theology is the essence of humanness, in which humans are created in the “image of God” (tselem elohim), which seems to mean that there is a sacred dimension to human life itself: human beings are the objects of particular divine concern or providence.9 So, even though the victim of homicide is designated by Scripture to be made “in the image of God” (Gen 9:6), and that is the reason his murderer is to be executed, the murderer too is no less made in the image of God. As such, even the execution of the murderer, to use the words of Rabbi Akivah in another vital context, is “as if one diminished (k’ilu me’et) the divine likeness.”10

Moreover, if Kant’s second formulation of the categorical imperative—namely, that a person always be treated as an end-in-himself-or-herself (Zweck an sich selbst)—is taken as a secular version of the doctrine of the image of God (imago Dei), then we would certainly have to dispense with the most frequently cited reason for the death penalty.11 The reason is that by executing one murderer now, we deter many would-be murderers from murdering i...

Índice

• Cover
• Title Page
• Copyright Page
• Contents
• Acknowledgments
• Introduction
• Chapter 1. Can Capital Punishment Ever Be Justified in the Jewish Tradition?
• Chapter 2. The Elimination of Mutilation and Torture in Rabbinic Thought and Practice
• Chapter 3. Natural Law, Human Dignity, and the Protection of Human Property
• Chapter 4. Land and People: One Jewish Perspective
• Chapter 5. Jewish Marriage and Civil Law: A Two-Way Street?
• Chapter 6. Jewish Marriage: Nature, Covenant, and Contract
• Chapter 7. Divine Justice/Divine Command
• Chapter 8. The Universality of Jewish Ethics: A Rejoinder to Secularist Critics
• Chapter 9. The Judaic Foundation of Rights
• Chapter 10. Social Contract in Modern Jewish Thought: A Theological Critique
• Chapter 11. Toward a Jewish Public Philosophy in America
• Chapter 12. Defending Niebuhr from Hauerwas
• Chapter 13. Is Natural Law a Border Concept Between Judaism and Christianity?
• Notes
• Abbreviations and Bibliography
• Credits
• Index