In the talmudic system of criminal justice—which had ceased to be operative by the time the Talmud was redacted—the standards of evidence for a capital conviction are extremely high. Thus, in one case, a rabbi reports having seen one man chase another into a building while waving a sword; when the rabbi entered, he found the first holding a bloody sword, standing over the other’s corpse. The rabbi lamented that there were no grounds for convicting the murderer. Sarah Zager comments on how the talmudic sages addressed what they saw as a flaw in their own system:
Though many contemporary readers of the rabbinic tradition champion the rabbis’ strict legal procedures, the rabbis themselves also criticize it harshly. . . . The rabbis explicitly describe what is supposed to happen when it is clear that a murder has been committed, but the legal requirements for conviction cannot be met. “Someone who murders a person without witnesses is taken into the domed chamber and is fed meager bread and scant water.” [Then], the criminal should be . . . “fed barley until his intestines explode.” . . .
This is a strange . . . kind of judicial self-restraint indeed. But that doesn’t mean that it is devoid of all ethical insight; nor does it undermine the conventional reading of rabbinic legal procedure. Instead, the text gives voice to a powerful moral impulse. . . . The rabbis have seen someone shed blood, and, with their hands tied, they imagine (it’s unclear that they ever actually carried out this procedure) what they would want to happen to the person who so brazenly transgressed a deeply held moral norm. . . .
Just as we can learn from the Talmud’s demand for moral outrage, we can also learn something from the form that it takes. The possibilities that the Talmud explores for extrajudicial punishment are extraordinarily violent, perhaps even more violent than the ones that rabbinic law sanctions explicitly. . . .
The rabbis’ response to [their sense of outrage at the thought that the guilty would go unpunished] was to use their rich imaginations to devise a form of revenge that would settle the moral accounts and to include those narratives alongside their legal discussions. We can follow their example by making space for moral disgust in our public discourse, even if that disgust is [part of] a shared public discourse that occurs outside the courtroom.
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