Ken Roth’s “Anti-Jewish Slur”

by Kevin Jon Heller

In his most recent post, Professor Bell quotes Ken Roth’s comment in the New York Sun that Israel’s behavior in the Israeli-Hezbollah conflict reflects an “[a]n eye for an eye – or more accurately in this case twenty eyes for an eye — [which] may have been the morality of some more primitive moment.” Professor Bell then asserts that “[w]hether Mr. Roth is an anti-Semite in fact is a question I cannot answer, but the remark itself certainly sounds like an anti-Jewish slur.”

Putting aside the clever rhetoric of the first clause — denying knowing enough to decide whether Mr. Roth is anti-Semite in order to leave open the possibility that he is — the second clause is deeply troubling.

To begin with, Professor Bell makes no attempt to explain why Mr. Roth’s statement “sounds like an anti-Jewish slur,” even though he asks Professor Brooks in the comments to explain how “the context of Mr. Roth’s eye-for-an-eye comment makes it less of” one. I presume that he’s troubled by Mr. Roth’s use of the term “primitive,” reading it as a statement about Judaism in general, instead of as a statement about the morality of Israel’s eye-for-an-eye military strategy. That was the New York Sun‘s interpretation; in response to Mr. Roth, it wrote that “[t]o suggest that Judaism is a ‘primitive’ religion incompatible with contemporary morality is to engage in supersessionism, the de-legitimization of Judaism, the basis of much anti-Semitism.”

If that is Professor Bell’s position, I think he’s mistaken. Mr. Roth did not describe Judaism as primitive; he referred to the morality of an eye-for-an-eye as a “primitive moment.” His point is clear: although societies might once have viewed killing those that have wrongfully killed as morally just, they do not — or at least should not — any longer. In that sense, Mr. Roth’s criticism of Israel’s military strategy simply reflects Human Rights Watch’s long-standing committment to the idea (manifested most specifically in its tireless campaign to abolish the death penalty) that state-sanctioned killing of any kind is never justified.

To be sure, Mr. Roth minced no words when he criticized Israel’s military strategy as indicative of a less advanced moment in human history. But no amount of semantic gymnastics can turn that criticism into an anti-Jewish slur.

First, Mr. Roth directed his criticism toward the Israeli government, not toward Jews or the Jewish religion in general. That’s a critical difference: criticizing the Israeli government’s policy is not the same thing as criticizing Judaism, as even the most cursory glance at Israeli politics indicates — there are plenty of Israeli Jews (and non-Israeli Jews, whose views also matter) who believe that the Israeli government’s military strategy has led to the commission of numerous war crimes against Lebanese civilians. L’etat ce n’est pas moi.

Second, given that Mr. Roth understands that the Israeli government and the Jewish religion are not one and the same, it seems obvious that his comment is actually complimenting Judaism, not criticizing it — by implying that Judaism is better than the simplistic military strategy that the Israeli government is currently pursuing. As this BBC article points out (and I apologize for not having time to discuss the issue in more detail), Judaism has always questioned the the legitimacy and utility of an eye-for-an-eye morality:

Someone who reads the Old Testament list of 36 capital crimes might think that Judaism is in favour of capital punishment, but they’d be wrong. During the period when Jewish law operated as a secular as well as a religious jurisdiction, Jewish courts very rarely imposed the death penalty. The state of Israel has abolished the death penalty for any crime that is now likely to be tried there.

The classic Old Testament texts quoted to justify capital punishment are these:

“… life for life, eye for eye, tooth for tooth …”
Exodus 21 :23-24

“A man who spills human blood, his own blood shall be spilled by man because God made man in His own Image”
Genesis 9:6

Although they seem clear these texts are commonly misunderstood.

To really understand Jewish law one must not only read the Torah but consult the Talmud, an elaboration and interpretation by rabbinical scholars of the laws and commandments of the Torah.

The rabbis who wrote the Talmud created such a forest of barriers to actually using the death penalty that in practical terms it was almost impossible to punish anyone by death.

The rabbis did this with various devices:

  • interpreting texts in the context of Judaism’s general respect for the sanctity of human life
  • emphasising anti-death texts such as the commandment “thou shalt not kill”
  • interpreting texts to make them very narrow in their application
  • refusing to accept any but the most explicit Torah texts proposing the death penalty
  • finding alternative punishments, or schemes of compensation for victims’ families
  • imposing procedural and evidential barriers that made the death penalty practically unenforceable

The result of this is that there are very few examples of people being executed by Jewish law in rabbinic times.

In 1954, Israel abolished capital punishment except for those who committed Nazi war crimes.

In the 54 years that Israel has existed as an independent state, only one person has been executed. This person was Adolf Eichman, a Nazi war criminal with particular responsibility for the Holocaust.

The near absence of capital punishment from Jewish law — past and present — makes clear that the “primitive moment” to which Mr. Roth referred has never been part of Judaism. That absence, in fact, is what gives Mr. Roth’s comment its rhetorical force: it accuses the Israeli government of betraying the compassion and humanity that has always been integral to the Jewish religion.

An “anti-Jewish slur,” indeed!

http://opiniojuris.org/2006/09/03/ken-roths-anti-jewish-slur/

2 Responses

  1. the BBC article is mostly wrong, as is most contemporary understanding of the death penalty in Jewish law, based as it is on misrepresenations propagated by opponents of capital punishment and others who are not familiar with the texts.

    First of all, the line in the Hebrew in the Ten Commandments is “you shall not murder,” not “you shall not kill.” And, as the Talmud relates in its discussion of “Eye-for-an-eye” etc., that verse refers only to injuries short of death, for which monetary penalites are imposed. Second, the elaborate procedural barriers to the death penalty were lifted when times warranted, as when the rabbis permitted the execution of someone for riding his horse on the sabbath and a couple for copulating in public, even tho’ the procedural guarantees had not been met (e.g., no forewaring) because respect for the law had declined so greatly at that time. Third, even in cases where the procedural guarantees prevented someone from being executed by the four prescribed means, the rabbis would permit an accused person to be locked in a small cell and starved to death. Fourth, even when the rabbinical courts could not execute someone, the secual authorities were permitted to execute someone on the basis of the need to maintain public order. Fifth, it is simply not true that few people were executed. Indeed, in an interesting and ironic example of the view toward capital punishment, the Sanhendrin absented itself from the Chamber of Hewn Stone in the Temple, thus depriving itself of jurisdiction, where it normally sat just because it was concerned that it was in fact executing too many people. Of course, on the one hand that means the rabbis didn’t like capital punishment, but on the other hand it shows that they were in fact executing people. Furthemore, both the rabbis in Bablyonia in the Talmudic times allowed excutions, calling themselves agents of the Sanhedrin for that purpose, and communities in Jewish Spain throughout the middle ages performed executions.

  2. Larry,

    I think your historical gloss is largely true as far as it goes, but would you not agree that rabbinic authorities today rarely, if ever, endorse capital punishment? Indeed, have not Reform and Conservative traditions explicitly come out against capital punishment? Even in Orthodox Judaism the strictures associated with applying the death penalty are such that it effectively renders this punishment otiose. Indeed, Oral Torah progressively elaborated such strictures in a manner that appears to have had in mind the effective elimination of the death penalty in Judaism, even if, doctrinally or theoretically speaking, Judaism sanctions such a penalty. It seems this exegetical exercise is analogous to the manner in which the messianic idea has changed over time to mean, for many Jews, that the hope for peace and justice will one day be effectively redeemed or realized, a far cry from something on the order of expecting a messiah in the lineage and manner of King David.

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