Most of Devora Steinmetz's Punishment and Freedom: The Rabbinic Construction of Criminal Law is devoted to the proposition that rabbinic law is an expression of a positive law—as opposed to natural law—jurisprudence. That is, the rabbis understood Torah to derive its authority from its having been commanded, and this conception determined their legal discourse and practices. Chapter 1 argues that the rabbinic assignment of ḥenek as the default mode of execution is motivated by the dual convictions that this most closely approximates “death by the hand of heaven” (the loss of breath reversing the divine process of animation) and that such a death is appropriate because the transgressor has knowingly violated a divine command. In Steinmetz's words, “intentional violation of God's command is tantamount to relinquishing life” (17). Chapter 2 contrasts Sinaitic and Noachide laws, suggesting that the latter are anchored in a natural law jurisprudence (because they predate Sinai and are aimed at all humanity, rather than Israel alone). As a result, the rabbis do not impose the requirement of hatra'a (warning) on a Noachide as they do on a Jew, and they assign—at least in some sources—hereg (execution by sword) rather than ḥenek as the mode of execution for Noachide transgressions. Chapter 3 proposes that brother–sister intercourse offers insight into rabbinic jurisprudence because it is prohibited for Jews but not for Gentiles, and can thus “serve as the source for a striking array of principles of criminal law” (40). Chapter 4 deals with the rabbinic response to murder.

There is much to admire in this book. The arguments offered are, without fail, based on close readings of the rabbinic sources and give fresh and often thought-provoking interpretations of the passages. The book's dialogue with jurisprudential theory, enlightening in its own right, is carried out in a scope and consistency that is rare in rabbinic scholarship. It is a pity so much of the theoretical engagement is relegated to the endnotes.

However, there are some substantive issues that call into question Steinmetz's claim that rabbinic jurisprudence is positivist. For one thing, a number of her readings move too quickly toward a unified jurisprudential interpretation at the expense of other considerations. How, the reader of Chapter 1 may ask, can the rabbis be concerned with “preserving the person's dignity” and “trying to avoid disgrace” in execution (9), when the burning procedures include lowering the condemned into knee-deep feces? Further, the argument that ḥenek constitutes a reversal of God's life-giving process is at best ambiguously alluded to in rabbinic sources (it may be the meaning of “a death that leaves no mark,” though this is certainly not the only or most obvious understanding of the phrase), and it is an unlikely candidate to serve as a key article in support of any jurisprudential ideology. Moreover, it is not clear why ḥenek is indicative of a positivist approach: Could one not argue that a death that undoes the natural process of creation reflects a natural law position? That the violation of Torah law is an undoing of the natural order, and so the transgressor's place in creation is, as it were, revoked? The connection to positivist law is more evident in the rabbinic requirement of hatra'a, that a person who is about to commit an offense be warned that the act is prohibited by God—a requirement presumably unnecessary in a natural law system. But this idea, sometimes formulated as a general obligation, sometimes in strict judicial form, is widely attested in Second Temple sources, including some (1QS 6.1) whose authors do not appear to adhere to a positivist understanding of law (James Kugel's important discussion of these sources, “On Hidden Hatred and Open Reproach: Early Exegesis of Leviticus 19:17,” is not cited).Footnote ¹

In the following chapters, too, suggestive insights are made to bear more weight than they can easily carry. The prohibition against brother–sister intercourse is described as an act “that is a violation of positive law but not of natural law” and thus “represents a convergence of critical substantive and procedural elements of the rabbinic conception of rabbinic law” (51). But the rabbinic sources cited are very clearly struggling with the biblical assertion that it is ḥesed for a man to see the nakedness of his sister (Leviticus 20:17), and proposing that ḥesed refers to the necessary act of incest that allowed Adam and Eve's children to continue the human race. Without detracting from Steinmetz's sharp observation concerning the special legal status of this act, its infrequent citation and evidently exegetical motivation calls into question the assertion that it plays a constitutive role in rabbinic jurisprudence. This difficulty is all the more apparent when read in conjunction with Chapter 4, which deals with the legal response to murder, a crime the rabbis understand as “fundamentally a violation of natural law … [yet] still situated squarely within the rabbinic system of criminal punishment and procedure” (65). Perhaps, then, rather than assign brother–sister incest a foundational role in rabbinic jurisprudence and then be forced to explain a presumably paradigmatic crime such as murder as an exception, it would be preferable not to claim a single rabbinic approach. Rather, different rabbinic discussions express different jurisprudential positions.

In addition to the main argument concerning the positivism of the rabbis, Chapter 5 offers a largely independent discussion of the philosophies of punishment underlying the Pauline and rabbinic interpretations to Habakkuk 2:4 (“the righteous shall live by his faith[fulness])” and Leviticus 18:5 (“and you shall keep my statutes … and live by them”). At one point, Steinmetz asserts that “Paul's solution, as I have shown, is to set up justification through faith over against justification through works” (97). This statement is incontrovertible evidence of how entrenched the “new perspective” on Paul has become, as it is only against the backdrop of the new perspective that Steinmetz's point constitutes an argument. Most “old-perspective” Paul scholarship would consider this statement self-evident. And, indeed, it is uncontroversial that there are passages in Paul's epistles that assert the superiority of faith to works. The controversy surrounds how best to understand these passages within the broader context of Paul's message, whereas Punishment and Freedom suggests that they simply are Paul's message, ignoring in the process many of the issues raised in interpreting these passages. To cite just one example, Galatians presents a polemic response to rival missionaries proclaiming “a different gospel” (Galatians 1:6)—by general consensus, a gospel that combines faith in Christ with some degree of halakhic observance. If so, it is possible that the “anti-works” passages in Galatians are rhetorically elevated attempts at countering a rival ideology, whose addressees are all pagan. (The anti-Pauline criticism by the Pharisaic members of the Jerusalem congregation suggests that Paul did not preach that Jews abandon the Torah, at least not at the time; see Acts 15). Rather than address these possibilities, Steinmetz reaches, too quickly I think, for broad conclusions in seeking “to pinpoint what I think is the fundamental difference between the Pauline and rabbinic views of human nature and human action” (99). At the very least, one should acknowledge that the rabbis' discussion of the importance of works, that is, the commandments, are not concerned with universal “human nature” so much as with a specifically and exclusively Jewish covenantal obligation. This is a pity, because the overgeneralizations distracted me from an interesting and innovative comparison between the positions enunciated in the rabbinic and Pauline texts, respectively, and Herbert Morris's distinction between “guilt morality” and “shame morality.”

In summary, Punishment and Freedom is an interesting and stimulating work of scholarship, marred, in my opinion, by a desire to draw conclusions that are broader and more systematic than the evidence allows. None of this, however, detracts from the close and patient engagement of rabbinic sources (the Bavli first and foremost) on display throughout. The readings are consistently interesting, often innovative, and always stimulating, and to fully appreciate them, one need only read the book as a series of discrete studies rather than as chapters unfolding a single theme.