Discipline and Punish lo hayah v’lo nivra ela mashal haya…

This month, I am learning at Drisha; in Talmud, we are covering the execution procedure for stoning. The post-modern yeshiva is a weird place; the dapei mekorot (source sheets) have included the non-canonical Book of Jubilees, the definitely non-canonical (for Jews) Book of John, and, most recently, excerpts from Michel Foucault’s Discipline and Punish. You might think that Foucault, a post-structuralist social critic, who helped open political science to the study of the human body and to what he called “bio-power,” would clash with the 1500+ year old religious legal code. Yet there are odd resonances, and even odder ironies.

Why bring Foucault to Talmud? Well, first, here’s a brief introduction to Foucault’s work on prisons. I’m not very good at introducing material, but this blog is an attempt to improve that, so you’ll have to suffer through it… if you’re curious, read the book. It’s fun, approachable, and mind-blowing!

Foucault studied the history of criminal punishment in France from the eighteenth century on, and, arguing against the popular thesis that criminal punishment merely became gentler and more humane over time, suggested that in modernity the concept of punishment changed radically. Basically (according to Foucault), pre-modern punishment was violent, was intensely focused on the convict’s physical pain, and attempted to reenact the condemned man’s crime onto his body. Post-Enlightenment punishment, on the other hand, focused on the prisoner’s body as a conceptual entity; the prison, which emerged as the dominant form of punishment, prioritized abstract questions of space (where the prisoners were) and time (their newly rigorous and strict schedules). Modern punishment also drew punishment into a broader network of technological power built into “disciplines” (pun intended or structurally determined) like psychology, educational theory, and penology. The procedural and rational justification of the system replaced the justification in terms of violence against the sovereign’s body. Prisons are thus model modern institutions, which shape human bodies into compliant, rational, “reformed” shapes, facilitating a new form of political domination.

Now oddly, as my Talmud teacher excitedly points out, the account of this change in Discipline and Punish matches closely (in ways) the transformation from the Hebrew Bible (in particular, Leviticus and Deuteronomy) to the Talmud (in particular, Masechet Sanhedrin, of which we’re studying the sixth chapter). An example: when you take a man out to be stoned, you force him to confess his crime, ostensibly so that he attains, through his death atonement for his sins. Note this is after he has been convicted, so you do not need more evidence. Rather, what you’re really doing is getting him to submit to the legal authority of the court. He never leaves the system or becomes an outsider; even when you’re going to kill him, he still takes part in the epistemological, technical game of Jewish law. My mother compares this process to parole boards, which usually require convicts to confess as a necessary (but not sufficient) condition of release. Of course, in the Jewish system, he gets no leniency now, only a share in the world-to-come, but there is a similar project: judicial violence, rather than ostracizing a social pariah, folds someone into the system to the last.

Further, while the Rabbis had no DNA evidence or expert testimony (Foucault has lots of fun exploring how “scientific expert testimony” grows and grows in legal trials, becoming within the law an autonomous discourse that is supposedly apolitical and neutral), they sure had a heck of a technical procedure, involving a bizarre process of questioning witnesses and totally ridiculous requirements for execution (two visual witnesses who warned the perpetrator, plus evidence that he committed a capital offense not for heteronomous reasons, as it were, but so as to break a capital crime, plus…) such that “a court that killed every seven years was called bloody.” This procedure is sacrosanct: the judges have virtually no flexibility, and must adhere to it even when they sense a miscarriage of justice. The attempt to establish a neutral, apolitical regime of technological rationalism seems clear.

Now, probably Foucault devotees will quibble with details: is this really technological, is it discipline, is there really bio-power? They have to do so: the Talmudic parallel clearly suggests that Foucault’s attempt at a grand theory of modernity won’t work, unless modernity includes the Jewish Babylonian sages circa 500. But here we come to the cool irony (if you didn’t think the rest was cool, you probably didn’t get this far). If they start arguing history, they’ll quickly run into a problem: Foucault’s a lousy historian. He deals with anecdotes as if they were general principles, he ignores countries and times that don’t fit his paradigm, he uses some questionable data, and so on. If you’re interested, do a jstor search for reviews, and read all the criticism. The point is that Foucault is ultimately what he, echoing Nietzsche, calls “critical history”–that is, history intended to aid in liberation from oppression. Social theory, philosophy, great, great. Historicity? That’s not even his objective–as my summary should suggest, Foucault is suspicious of “objective, scientific” truth claims, and believes that such discourse serve one form of power.

Now, that’s where my title comes from: there’s a famous discussion in another part of the Talmud as to whether Job really existed, or whether “Job lo haya v’lo nivra ela mashal haya” (Job never was and never was created, rather he was a parable). Now, Foucault seems to me best read as somewhere between emet (truth) and mashal (parable); part of his project is to trouble the firm boundary between those two.

Here’s the kicker: the laws of masechet sanhedrin are also of questionable historical status. While they are described as if they really happened frequently, the fact is we have little to no evidence of Jewish courts actually carrying out capital punishment. Further, given Roman law, it seems unlikely that in the post-second temple period, these executions ever happened. On the other hand, who knows exactly? Scholars have wildly different opinions on the extent to which we’re reading something like a real, enforced legal code, and to what extent we’re readin something like Plato’s Republic. So what do we do with fifty-odd pages (roughly half the tractate) on capital punishment? I think we read them as we read Foucault: somewhere between mashal and emet, troubling the distinction itself.

At any rate, I think it’s fun to see the unexpected concurrence of Foucault and the Babylonian Talmud! Both would hate the comparison: the Rabbis, because the project of critical history fundamentally attacks their legitimacy and reads the most apparently benign aspects of their system as an attempt to achieve domination, Foucault, because if his reading works for late antiquity, his attempt to pin down what’s uniquely modern falls apart. A post for another day: what does it mean sociologically and in terms of intellectual communities that these texts are being learned together (lehavdil, to separate–just because we read both in one class does not mean we treat them the same way). A long post for much later: if we accepted Foucault’s critique of scientific rationality, how would we arbitrate between competing histories?

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4 Responses to Discipline and Punish lo hayah v’lo nivra ela mashal haya…

  1. invisible_hand says:

    not to be a buzz-kill, but a full foucauldian analysis of the talmud and the death penalty was the precise subject of beth berkowitz’ “Execution and Invention: Death Penalty Discourse in Early Rabbinic and Christian Cultures.”
    i hope your teacher cited her, since the stuff you are referencing seem pretty similar to what she wrote in the book.

  2. Not at all a buzz-kill: I appreciate the citation, which I will pass along to my teacher. I don’t claim at all to be the first to note this stuff, and I’m happy to have fuller treatments provided.

    Though I have not read her work, I do wonder if my concerns and hers are identical; ultimately, I’m not so much interested in the historical, political, or social questions as the hermeneutic ones–what does it mean to read the Talmud alongside Foucault and why is that kind of a funny thing to do?

    Thanks for commenting!

    • yitz'l says:

      Raphi! It’s great to hear that you’re learning at Drisha, and even better to see that you’re blogging about it.

      Interesting post. I’m not so familiar with Foucault on this topic yet but I have a couple of comments on the purely Talmudic side of things:
      Here’s the mishnah in Makkot concerning the “bloody court” (1:10):
      סנהדרין נוהגת בארץ ובחוצה לארץ. סנהדרין ההורגת אחד בשבוע נקראת חובלנית, רבי אליעזר בן עזריה אומר: אחד לשבעים שנה. רבי טרפון ורבי עקיבא אומרים: אילו היינו בסנהדרין לא נהרג אדם מעולם רבן שמעון בן גמליאל אומר אף הן מרבין שופכי דמים בישראל:
      -The thrust of the mishnah itself (perhaps unlike the brief sugya in the bavli on 7a) is to even further “limit” the sanhedrin’s ability to inflict capital punishment (I put it in parentheses because it isn’t an Halakhik decree). This “limitation” is something which the Rabbis themselves are interested in- they are against capital punishment. But more than that, they are to use their legal creativity to exonerate those on trial. Does that mean that they don’t have flexibility?
      -The mishnah admits that there is no longer much significance at all: a. the sanhedrin can only function in the land of Israel; b. the statement by Rabbi Akiva and Rabbi Tarfon points to the “fact” that capital punishment is no longer possible in the 2nd-3rd gen. of tannaim (“אילו היינו”) since the institution of the sanhedrin was already dissolved. Why do you think the bavli still picks up the topic if it’s no longer really applicable?

      One more thing about legal flexibility. I think there is still a huge amount of space according to the bavli and beyond for court-deciders to move around within the normal halakhic framework. The most amazing proof for this is the concept of “שודא דדייני”, which basically just allows for judges in certain cases to do whatever they want.

      keep blogging

  3. Thanks for this–there’s a lot to think about. A couple of thoughts:
    a) There’s a difference between the flexibility of those setting up the system of justice (including the intense scrutiny of witnesses and the impossible standards for conviction, which to me seem to be crucial to limiting executions) and the flexibility of the dayanim, the judges. Rambam, to extend my analysis a-historically, is quite clear on dayanim having more or less total purview in dinei mamanot (money cases) whereas in dinei n’fashot (capital cases) they have very little flexibility. While obviously he has his own agenda, historical situation, etc., it seems to me he’s picking up on something in the Gemara–in particular, note the story given on 44b, in which a man who the Sages clearly seem to think is innocent is executed because all the proper procedure has been followed.

    b) Probably more importantly, the Talmud is, I think most people agree, some type of hybrid discourse, with an approach to ethics that is not “systematic” or “absolute” in any sense of the word. Obviously, you’ll find contrasting, even opposite positions, but more importantly, there may be something inappropriate about using an to ethics, politics etc. where general truths generate local consequences. Rather, in the talmud, local intuitions become broader paradigms only when it’s practically necessary to explain a problem. Today, in talmud, we covered the mishna which describes Shimon ben Shetach (Pharisee advisor to Hasmonean king) killing 80 women, and then the gemara saying if “the hour needs it,” a man can be executed for sleeping with his wife or (under Greek rule) riding a horse on Shabbos. I have a hard time reconciling this sugya with anything else in Sanhedrin I’ve learned.

    c) As to why this discussion happens at all, given the complete lack of executions (I think)–well, I don’t really know. There’s so much I don’t know about talmud, even before we get to the point of the issues that noone knows, that I’m not even sure which category this question falls under.

    d) I hope to see you soon!

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