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?