Participating fully in the world while keeping faith with a specific, non-universal set of spiritual values and cultural standards is not that simple a job to undertake, nor will Jewish Americans struggling to walk the narrow line between integration into their nation’s culture and allegiance to the covenant that binds the House of Israel to its God expect it to be. When put that way, it sounds as though this must be an issue thrust on moderns by modernity itself. That isn’t really the case however and, indeed, one of my favorite passages in the Mishnah relates how an otherwise unknown fellow named Proclus once noticed Rabban Gamliel washing up in the “Bath of Aphrodite” bathhouse in Akko which had that specific name because it was adorned with statues of the naked goddess. Seeing an opportunity to embarrass a man widely revered as the living exemplar of Jewish piety, Proclus asked him if it was proper for a Jew—and a rabbi, at that—to bathe in a place filled with idolatrous statuary. Rabban Gamliel at first declined to respond, noting that one only discusses issues of Torah with one’s clothes on. But then, once he was all dressed, he did address the issue and he addressed it seriously and thoughtfully. First of all, he said, referring to Aphrodite herself, she was the one who had come to him and not he to her. (In other words, Rabban Gamliel had apparently already been frequenting this particular bathhouse long before someone installed the statuary and didn’t see any reason to change his well-established custom of bathing in that place merely because the interior had been refurbished in the Greek style.) Second of all, he pointed out that the situation wasn’t that the bathhouse had been built as a shrine to the goddess but just the opposite—the goddess’s statue had been installed, presumably by the owners, to lend the establishment a bit of Hellenic class and for no other reason. This was, he meant to say, therefore not a temple at all and thus not a place the law required him to avoid. And third—and best—of all, Rabban Gamliel added the acidulous observation that if the bath had been a real shrine to the goddess, men stopping by to bathe would hardly stand around naked and urinate into the trough that had indecorously been installed directly before her marble image. That sounds about right to me!
So there’s that approach. But other Talmudic texts are more severe and consider a wide range of Gentile customs with an eye towards determining which of them a Jew might reasonably adopt and which the law requires the faithful to avoid because they are in effect idolatrous practices even if they seem merely to be superstitious silliness. And there are a lot of them.
In our American culture, Jews have generally become adept at knowing which parts of secular culture must be avoided and which can reasonably be embraced. But what of the deeper, more serious questions that surround participation in activities that involve, or potentially involve, violating the strictest of prohibitions? What sounds simple enough when the discussion is about going to a ball game or participating in a Thanksgiving dinner suddenly becomes exponentially more difficult to negotiate. Several examples of issues like this are currently on the table for Jewish Americans to negotiate, but none is more vexing than the question of whether an observant Jewish person can, may, or should participate in the criminal justice system when the accused faces the death penalty. We say, perhaps just a bit too often, that the underlying principle is dina d’malkhuta dina, that the law of the land is the law that its citizenry must observe. But what if obedience to the law of the land—answering a summons to serve on a jury in a death penalty case, for example—involves the possibility of being personally responsible for someone’s execution? The Torah unambiguously prohibits murder. And it unambiguously permits capital punishment. But to avail ourselves of that permission without also accepting the myriad strictures that same Torah places upon the process that could conceivably lead to an execution…is that just one more application of the dina d’malkhuta principle? Or is it participating in murder?
Just this last week, the Committee on Jewish Law and Standards of the Rabbinical Assembly, the international organization of Conservative rabbis of which I have been a member for thirty-five years, voted unanimously to accept as legally binding a responsum authored by my colleague and friend, Rabbi Jeremy Kalmanofsky, the rabbi of the Ansche Chesed Synagogue on West End Avenue in Manhattan. The questions he addressed are chilling even to read. May a Jew participate in capital criminal cases in the American legal system? May a Jew serve as judge in a capital trial or as prosecutor seeking the death penalty? May a Jew testify in a trial in which the defendant could be sentenced to execution? And may a Jew serve on the jury which could sentence a defendant to death? Clearly, these are all legal things for American citizens to do. One could even reasonably define jury duty as a civic obligation, thus as something one should undertake willingly. But playing the game means playing by the rules of the game you’re playing, not the rules that pertain to some other game you wish you were playing. And that was exactly the question Rabbi Kalmanofsky took it upon himself to answer: can the criminal justice system as it exists today can be actively participated in by people who wish to remain faithful to the strictures of halakhah, of Jewish law if the possibility exists of the accused being sentenced to death.
He begins by citing texts suggestive of the rabbinic ambivalence about the death penalty—Rabbi Akiba and Rabbi Tarfon are cited in the Mishnah as saying that if it were their call to make no one would ever be executed—and then goes on approvingly to cite the opinion written by Rabbi Ben Zion Bokser for the CJLS more than half a century ago in which he unequivocally comes out against capital punishment and affirms that God alone has the right to take a life. But the fact is that the United States does have capital punishments in many jurisdictions…and the fact that there is no other country in the world with a significant Jewish population that also has capital punishment puts American Jews in a bind that their co-religionists elsewhere do not face. Let me cite the issue as Rabbi Kalmanofsky himself frames it:
Given that the death penalty exists at the federal level and in 32 states, what should Jewish citizens do when called to play roles in capital cases? Should Jewish judges and prosecutors refuse to play their parts in what Justice Harry Blackmun called “the machinery of death?” Should Jewish citizens refuse to serve on juries that might send a person to execution? Should witnesses withhold testimony that might help send someone to death row? Or, alternatively, does halakhah consider it within a government’s legitimate authority to execute criminals, though based on values we would argue that they should elect not to exercise that power? If this is the case, then Jewish citizens could take part in capital cases, albeit reluctantly or under protest. Certainly Jews are generally bound to obey the laws of the land, even those laws they oppose. Yet some laws may be so incompatible with our norms that Jews should refuse to follow them, by civil disobedience or conscientious objection. In which category does capital punishment belong? Is it beyond the bounds of what Judaism can tolerate? Or might it be bad policy, but not prima facie illegitimate?
My regular readers know that I am a subscriber to the Innocence Project newsletter, which is something that I believe all citizens who feel certain that they support the death penalty should force themselves to read from time to time. (You can subscribe directly from their website by clicking here. It is chilling to read the stories of people—more than three hundred of them—who were wrongly convicted, but a thousand times more so to read the stories of the eighteen people, each now fully exonerated, who were sentenced to death and who would have been executed had their convictions not been overturned.) So that is part of the context in which I read Rabbi Kalmanofsky’s specific way of framing the issue: we are not talking about theory here, but about the system as it exists today and in which citizens like ourselves are regularly called upon to participate.
The responsum is a kind of tour de force, referencing all sorts of sources from different epochs and places. In the end, though, although the weight of Jewish tradition is surely opposed to capital punishment philosophically, Rabbi Kalmanofsky produces text after authoritative text that suggests that the use of execution by secular governments to maintain order and to discourage violent crime is not something a Jew needs oppose. Nor is the very existence of a secular criminal justice system something negative, the rabbis having long ago taught that among the handful of commandments imposed on the survivors of the great flood in Noah’s day was the obligation to establish a justice system that would discourage wrongdoing and punish wrongdoers without there being any expectation that the courts established by those survivors’ descendants would conform to the halakhah as it would later be drawn forth by our Jewish sages from principles set forth in Scripture.
From there, Rabbi Kalmanofsky moves on to analyze a number of Talmudic stories about rabbis who cooperated with the secular justice system in Roman Judea and who were praised for their efforts, or at least not condemned for them. And then he considers the distinctly more thorny issues surrounding the question of m’sirah, the act of turning Jewish citizens over to the Gentile authorities for punishment or judgment. It’s a long discussion, one with strong arguments on both sides, and one I recommend particularly to my readers.
The second half of the responsum deals with the reality of the death penalty in America. In some specific ways, I found the numbers both surprising and vaguely re-assuring: after all these years reading the Innocence Project newsletter, it was calming to realize that there were in our country only seventy-eight death sentences in 2012, down from 224 in 2000 and 315 in 1996. (Those numbers need to be considered in light of the fact that more than 16,000 homicides occur in the United States every year. So the vast majority of murderers are neither sentenced to death nor, needless to say, executed.) But there is a lot more than to consider and I strongly urge my readers to find Rabbi Kalmanofsky’s responsum and read it thoughtfully and carefully. (It has been posted on the public side of the Rabbinical Assembly website and can be accessed by clicking here. Otherwise, go to www.rabbinicalassembly.org and you’ll find a tab for the CJLS on one of the drop-down menus at the top of the page.) In the end, Rabbi Kalmanofsky’s conclusion that “objection to the death penalty is not halakhic grounds to refuse to participate as judge, prosecutor, juror, police or witness in capital trials” follows logically from the evidence adduced. I was surprised to find myself so easily in agreement, but he writes very persuasively and compellingly. I personally feel that a system that cannot guarantee that no innocent citizen will ever be convicted in error should only impose sentences on the convicted that can be reversed should such an error later on come to light. But I also came away feeling convinced that participation in death penalty cases is halakhically acceptable behavior from which Jewish citizens need not flee.
Writing like this—clear, compelling, well-documented, thoughtful, and persuasive—exemplifies at its best the rabbinic mission to make our ancient Torah into a guide for moderns seeking to live moral lives in an imperfect world. To feel challenged by unfamiliar arguments, then convinced of their validity, is both humbling and intellectually satisfying. I recommend Rabbi Kalmanofsky’s work to all my readers…and I think you will find yourselves as impressed as I myself was by the quality of the writing and the persuasiveness of the argument.