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The Theater of Deviance and the Normative Boundaries of Society: Lessons from the Rabbinic Interpretations to the Biblical Law of Sotah

Published online by Cambridge University Press:  24 April 2015

Shivi Greenfield
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A widely held view on the purpose of criminal law is that it is designed to maintain social order. Assuming this view to be correct, how does criminal law achieve its purpose? The standard answer is by deterring crimes through the threat of penalties, and by incapacitating or rehabilitating criminals so that they cannot or will not engage in future crimes. Sociologists, however, have a somewhat different answer: criminal law maintains social order by branding deviant behavior as criminal. Society, it is argued, is constructed through opposition and contrast: it creates and preserves its identity, its distinct structure and unique shape, by emphasizing the differences between its own characteristics and practices and the characteristics and practices of the Other, the deviant. Deviance, in this view, is essentially a relative phenomenon. The definition of deviance, which changes from era to era and from place to place, is just that characteristic which society designates to establish, through it and in contrast to it, its identity and boundaries. Whatever the society, the deviant in that society is one who “represents the forces excluded by the group's boundaries,” informing society “as it were, what the evil looks like, what shapes the evil can assume.” In doing so, the deviant shows society “the differences between kinds of experience which belong within the group and kinds of experience which belong outside it.”

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Journal of Law and Religion , Volume 28 , Issue 1 , January 2013 , pp. 105 - 142
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Copyright © Center for the Study of Law and Religion at Emory University 2013

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References

1. Throughout this article, I follow Henry Campbell Black's definition of criminal law as “the body of law defining offenses against the community at large, regulating how suspects are investigated, charged, and tried, and establishing punishments for convicted offenders.” See Henry Campbell Black, Black's Law Dictionary 403 (8th ed., Thomson West Group 2004)Google Scholar. Note that this definition considers criminal procedure as a subfield of criminal law, consisting of the steps that are followed from the criminal incident (violation of the law) through punishment (or release) of the offender.

2. See Holmes, Oliver Wendell Jr., The Common Law 49 (Dover 1991, cl881)Google Scholar; McLean, Kevin G., Comment, The Propriety of Imposing Joint and Several Restitutionary: Liability as a Condition of a Criminal Offender's Probation, 51 Brook L. Rev. 809, 837 (1985)Google Scholar: “The primary purpose of the criminal law is to maintain social order through the prevention of conduct that society regards as harmful”; Walker, Nigel, Punishment, Danger and Stigma: The Morality of Criminal Justice 18 (Blackwell 1980)Google Scholar, quoting Devlin, Patrick, The Enforcement of Morals (Oxford Univ. Press 1965)Google Scholar: The criminal law should aim to further the “smooth functioning of society and the preservation of order.”

3. This view is by no means uncontroversial. Retributivists, for example, maintain that the purpose of criminal law is to achieve retributive justice by punishing “all and only those who are morally culpable in the doing of some morally wrongful action” regardless of whether or not such punishment is required to preserve social order, for example, to “deter future crime, incapacitate dangerous persons, educate citizens in the behaviour required for a civilized society, reinforce social cohesion, prevent vigilante behaviour …” and so on. Moore, Michael, Placing Blame: A General Theory of Criminal Law 35, 153 (Oxford Univ. Press 19971)Google Scholar. In any event, in this article I assume that the “maintaining-order” view is correct, namely, that the primary (though perhaps not exclusive) purpose of criminal law is to maintain social order. For an overview of the various perspectives on the purpose of criminal law, see Alschuler, Albert W., The Changing Purposes of Criminal Punishment: A Retrospective on the Past Century and Some Thoughts About the Next, 70 U. Chi. L. Rev. 1 (2003)Google Scholar; Dressler, Joshua, Understanding Criminal Law (4th ed., LexisNexis 2006)Google Scholar; Christopher, Russell L., Deterring Retributivism: The Injustice of “Just” Punishment, 96 NW. U. L. Rev. 843 (2002)Google Scholar; Frase, Richard S., Punishment Purposes, 58 Stan. L. Rev. 67 (2005)Google Scholar; Dignan, Jim, Normative Constraints: Principles of Penality, in Principled Sentencing 199 (Hirsch, Andrew von & Ashworth, Andrew eds., 3d ed., Hart Publ'g 2009)Google Scholar; Ristroph, Alice, Desert, Democracy, and Sentencing Reform, 96 J. Crim. L. & Criminology 1293 (2006)Google Scholar; Robinson, Paul H. & Darley, John M., The Utility of Desert, 91 Nw. U. L. Rev. 453 (1997)Google Scholar.

4. See Igielski, Christopher T., Note, Washington Defendants' New Right of Pre-Trial Flight, 19 Seattle U. L. Rev. 633, 633–34 (1996) (asserting that “from a historical and practical viewpoint, a foremost purpose of criminal law is to serve the interest of the state in maintaining an ordered society and deterring future crime”)Google Scholar; and Rychlak, Ronald J., Society's Moral Right to Punish: A Further Exploration of the Denunciation Theory of Punishment, 65 Tul. L. Rev. 299, 320–21 (1990)Google Scholar, noting that:

[t]o maintain order in society, the legal system must not only provide for a safe society, it must also provide for a society that is satisfied with the workings of the system. The law-abiding populace must be assured that those who have done wrong are punished, and those who are innocent are protected.

5. See Schur, Edwin M., The Politics of Deviance 3, 25ff (Prentice-Hall 1980)Google Scholar; Hills, Stuart L., Demystifying Social Deviance 38–39 (McGraw Hill Book Co. 1980)Google Scholar.

6. Ben-Yehuda, Nachman, Deviance and Moral boundaries 10-11 (Chi. Univ. Press 1985)Google Scholar:

While “deviance” as a category is universal, a universal content of deviance is nonexistent. Deviance is essentially socially defined and is therefore always culturally relative. Thus, in order to understand a specific type of deviance, we have to understand its context within the social system and, in particular, the system's value structure. … Deviance thus viewed is no longer a peripheral phenomenon, but a central element of any functioning social system. The analysis of social deviance thus becomes a crucial factor in an understanding of the social order itself.

Becker, Howard S., Outsiders: Studies in the Sociology of Deviance 9 (Free Press 1963)Google Scholar: “[D]eviance is not a quality of the act the person commits, but rather a consequence of the application by others of rules and sanctions to an ‘offender.’” For this view, see also Goode, Erich, Deviant Behaviour: The Interactions Approach (Prentice-Hall 1978)Google Scholar; Schur, E.M., Interpreting Deviance (Harper & Row 1979)Google Scholar.

7. Erikson, Kai T., Notes on the Sociology of Deviance, 9 Social Problems 307, 310 (1962)CrossRefGoogle Scholar.

8. See Berman, Paul S., An Anthropological Approach to Modern Forfeiture Law: The Symbolic Function of Legal Actions Against Objects, 11 Yale J.L & Human. 1, 19 (1999)Google Scholar: “[T]he English world ‘law’ derives from Old Norse, where the word not only referred to rules of conduct, but also to the community itself, which shared those laws. Thus, the term ‘outlaw’ originally described someone who had been expelled from the community and therefore literally stood outside the law.”

9. Garfinkel, Harold, Conditions of Successful Degradation Ceremonies, 61 AM. J. SOC. 420, 420 (1956)CrossRefGoogle Scholar. Garfinkel defines “status degradation ceremony” as “[a]ny communicative work between persons, whereby the public identity of an actor is transformed into something looked on as a lower in the local scheme of social types.” Id.

10. Erikson, Notes on the Sociology of Deviance, supra note 7, at 310: “In a figurative sense, at least, morality and immorality meet at the public scaffold, and it is during this meeting that the community declares where the line between them should be drawn.”

11. Erikson, Kai T., Wayward Puritans: A Study in the Sociology of Deviance 13 (John Riley & Sons 1966)Google Scholar.

12. For this point, see Feinberg, Joel, The Expressive Function of Punishment, in Doing and Deserving: Essays in the Theory of Responsibility 95–118 (Feinberg, Joel ed., Princeton Univ. Press 1970)Google Scholar; Anderson, Elizabeth & Pildes, Richard H., Expressive Theories of Law: A General Restatement, 148 U. Pa. L. Rev. 1503 (2000)Google Scholar; Sunstein, Cass R., On the Expressive Function of Law, 144 U. Pa. L. Rev. 2021 (1996)Google Scholar; Hampton, Jean, The Retributive Idea, inForgiveness and Mercy 111–61 (Murphy, Jeffrie G. & Hampton, Jean eds., Cambridge Univ. Press 1988)Google Scholar; Kahan, Dan M., Social Influence, Social Meaning, and Deterrence, 83 Va. L. Rev. 349 (1997)Google Scholar; Kahan, Dan M., What Do Alternative Sanctions Mean?, 63 U. Chi. L. Rev. 591 (1996)Google Scholar; Paul H. Robinson & John M. Darley, The Utility of Desert, supra note 3; Garland, David, Punishment and Society: A Study in Social Theory ch. 11 (Univ. Chi. Press 1990)Google Scholar; Lessig, Lawrence, The Regulation of Social Meaning, 62 U. Chi. L. Rev. 943 (1995)Google Scholar.

13. On the theatrical aspects of law or law as performance, see Rogers, Nicole, The Play of Law: Comparing Performances in Law and Theater, 8 Queensland U. Tech. L.J. 429 (2008)Google Scholar; see also Peters, Julie Stone, Legal Performance Good and Bad, 4 Law, Culture & Human. 179 (2008)Google Scholar; Balkin, J.M. & Levinson, Stanford, Law as Performance, in Law and Literature 729 (Freeman, Michael D.A. & Lewis, Andrew D.E. eds., Oxford Univ. Press 1999)Google Scholar; Balkin, Jack M., Idolatry and Faith: The Jurisprudence of Sanford Levinson, 38 Tulsa L. Rev. 553 (2003)Google Scholar; Hibbitts, Bernard J., Coming to Our Senses: Communication and Legal Expression in Performance Cultures, 41 Emory L.J. 873 (1992)Google Scholar; Hibbitts, Bernard J., Making Motions: The Embodiment of Law in Gesture, 6 J. Contemp. Legal Issues 51 (1995)Google Scholar.

14. Stone Peters, Legal Performance Good and Bad, supra note 13, at 180-81:

[T]he central events of law—trials—(it is observed) are normally performed before live audiences by those specially trained to shed their own identities and “represent” others. Trials are the re-enactment of a conflict (an agon), whose essential narrative form is dialogue. They exploit iconic props as crucial clues to the unfolding of the narrative, and often rely on space, staging, costume, and spectacle in an attempt to bring back to life the dramatic event they are attempting to recount.

15. Garland, Punishment and Society, supra note 12, at 254: “In the late twentieth century, as in the eighteenth, the moment of sentencing is understood as ‘an occasion for addressing the multitude’ and there is seldom a newspaper which appears without carrying an account of some judge's remarks and the circumstances which prompted them.”

16. A good example of how punishment serves a communicative function is shaming punishments, which involve the deliberate public humiliation of the offender (for example, requiring offenders to stand in public spaces with signs describing their offenses, ordering convicted burglars to allow their victims to come into their homes and take anything they want, requiring offenders to apologize for their crimes, publishing the names of offenders in newspapers or on billboards listing the names and the offenses, requiring thieves to wear T-shirts announcing their crimes, etc). The function of shaming punishments is essentially communicative in that, by having the offender publicly display his/her criminal status, and by allowing citizens to directly criticize and cast shame upon him/her, society expresses its condemnation of the offender's conduct and sends a clear message as to where the boundaries of society are located. For a discussion of the purpose of shaming punishments, see Kahan, Dan M. & Posner, Eric A., Shaming White-Collar Criminals: A Proposal for Reform of the Federal Sentencing Guidelines, 42 J.L. & Econ. 365 (1999)Google Scholar; Kahan, Dan M., Punishment Incommensurability, 1 Buff. Crim. L. Rev. 691 (1998)Google Scholar; Kahan, Dan M., Social Meaning and the Economic Analysis of Crime, 27 J. Legal Stud. 609 (1998)Google Scholar; Kahan, What Do Alternative Sanctions Mean?, supra note 12.

17. Lev 20:10, translation from The Holy Scriptures According to the Masoretic Text (Jewish Publication Soc'y Am. 1960)Google Scholar: “And the man that committeth adultery with another man's wife, even he that committeth adultery with his neighbour's wife, both the adulterer and the adulteress shall surely be put to death.”

18. Num 5:11-31. The ritual described in these verses has clear parallels to the “ordeal of the waters” of the Hammurabic Code (§ 129). For a discussion of these parallels, see Horowitz, George, The Spirit of Jewish Law 3 (Central Book Co. 1953)Google Scholar; Smith, J.M. Powis, The Origin and History of Hebrew Law 121–22 (Univ. Chi. Press 1931)Google Scholar.

19. The name sotah is derived from Numbers 5:12 based on the word , to “stray” from the path of righteousness.

20. The Mishnah, redacted in approximately 220 A.C in the name of Rabbi Judah the Prince (hana ‘si), represents the earliest rabbinic interpretation of sotah. The authors of the Mishnah devoted an entire tractate to this topic. The tractate, named Sotah, is the fifth of seven tractates in Seder Nashim (Order of Women), which is the third of six books that comprise the Mishnah. Seder Nashim consists of seven tractates, the fifth of which is tractate Sotah. The later rabbinic texts of the Tosefta and the Jerusalem (Palestinian) and Babylonian Talmuds, redacted between the third and fifth century, follow the organizational schema of the Mishnah and devote an entire tractate to the sotah ritual. Other rabbinic writings that include interpretations of the sotah ritual include the halakhic midrashim of Sifre Numbers and Sifre Zutta and the aggadic midrashim of Tanhuma-Yelamdenu and Numbers Rabbah.

21. The sotah law has been a recurrent interest within non-rabbinic writings as well. Thus, Philo discusses it in The Special Laws, Book 3, § 52-63; and Josephus gives a version in Jewish Antiquities Book 3, § 270-73. References to the sotah rite are found also within the Targumim (the Aramaic translation of the Hebrew Bible) and Septuagint (a collection of Greek translations of the Bible). Both contain a translation of Numbers 5:11-31.

22. The changes are presented in the order in which they appear in the Mishnah, tractate Sotah. It should also be noted that all three changes are introduced at a time when the ritual had long ceased to be performed. I will return to the significance of this point later.

23. Most recent scholarship on rabbinic interpretations of sotah is oriented toward concerns of gender. See, e.g., Rosen-Zvi, Ishay, The Rite that Was Not: Temple, Midrash and Gender in Tractate Sotah ch. 8 (Magnes Press 2008) (Hebrew)Google Scholar; Wegner, Judith Romney, Chattel or Person?: The Status of Women in the Mishnah 175–81 (Oxford Univ. Press 1988)Google Scholar; Peskowitz, Miriam, Spinning Fantasies: Rabbis, Gender, and History 133–37 (Univ. Cal. Press 1997)Google Scholar; Peskowitz, Miriam, Spinning Tales: On Reading Gender and Otherness in Tannaitic Texts, in The Other in Jewish Thought and History: Constructions of Jewish Culture and Identity 99–120 (Silberstein, L.J. & Cohn, R.L. eds., N.Y. Univ. Press 1994)Google Scholar; Biale, Rachel, Women and Jewish Law: An Exploration of Women's Issues in Halakhic sources 183–89 (Schocken Books 1984)Google Scholar; Bach, Alice, Good to the Last Drop: Viewing the Sotah as the Glass Half Empty and Wondering How to View It Half Full, in New Literary Criticism and the Hebrew Bible 26–45 (Exum, J. Cheryl & Clines, David J.A. eds., J. Study Old Testament Press 1993)Google Scholar; Haberman, Bonna Devora, The Suspected Adulteress: A Study of Textual Embodiment, 20 Prooftexts 12 (2000)Google Scholar; Hauptman, Judith, Rereading the Rabbis: A Woman's Voice 15–29 (Westview Press 1998)Google Scholar; Satlow, Michael L., Tasting the Dish: Rabbinic Rhetorics of Sexuality 155–69 (Scholars Press 1995)Google Scholar; Satlow, Michael L., ‘Texts of Terror’: Rabbinic Texts, Speech Acts, and the Control of Mores, 21 AJS Rev. 273 (1996)Google Scholar; and Boyarin, DanielWomen's Bodies and the Rise of the Rabbis: The Case of Sotah, in Jews and Gender: The Challenge to Hierarchy 88 (Frankel, Jonathan ed., Oxford Univ. Press 2000)Google Scholar.

24. In this respect and in terms of contemporary ritual theory, my argument is that the Tannaitic discussion presents a functionalist-structural understanding of the sotah ritual. According to the functional-structural approach, ritual is always a “means of regulating, or controlling, the structures, processes, and relations of society … by giving normative patterns for maintaining order and constructive patterns for restoring that order when it has been lost.” Gorman, Frank H. Jr., The Ideology of Ritual: Space, Time and Status in the Priestly Theology 28–29 (Sheffield Acad. Press 1990)Google Scholar; see also Radcliffe-Brown, Alfred R., The Social Anthropology of Radcliffe-Brown ch. 8 (Routledge & Kegan Paul 1977)Google Scholar; Turner, Terence S., Transformation, Hierarchy and Transcendence: A Reformulation of Van Gennep's Model of the Structure of Rites de Passage, in Secular Ritual 63 (Moore, S.F. & Meyerhoff, B. eds., Van Gorcum 1977)Google Scholar; Rappaport, Roy A., Ecology, Meaning, and Religion 193–97 (N. Atl. Books 1979)Google Scholar. While the functionalist-structural approach regards all rituals as instruments of order, my argument in this article is restricted to the sotah ritual. That is, I do not claim that the rabbis view all rituals as means of regulating and controlling societal order. Rather, I only claim that they understand the sotah ritual this way. Perhaps they understand other rituals as serving a distinctly different purpose. For an overview of the different ways of understanding rituals, see Bell, Catherine, Ritual: Perspectives and Dimensions 3–88 (Oxford Univ. Press 1997)Google Scholar.

25. It is generally accepted in the literature that the Mishnaic discussion is not historical but conceptual or theoretical. That is to say, that the issue under discussion is not the ritual as it had been performed in the days of the Temple, but the ritual as it is theoretically conceived. Or in other terms, as it should ideally be performed, regardless of whether or not it had been performed this way in reality. (See, e.g., Rosen-Zvi, The Rite that Was Not, supra note 23, at 161-68. For an understanding of the discussion as (at least partially) historical, see Epstein, Y.N., Introductions to the Literature of the Tannaim 399 (Magnes 1957) (Hebrew)Google Scholar; Ilan, Tal, Jewish Women in Greco-Roman Palestine 136–41 (Peabody 1996)Google Scholar; Hauptman, Rereading the Rabbis, supra note 23, at 15-29. In terms of my analysis, the question is not how (if at all) the ritual had been used in the past to regulate and control societal order, but rather how (if at all) the ritual should be performed if the sole purpose of its performance is to regulate and control societal order. For the main differences between this interpretation of the question and the common interpretations advanced in the literature, see the discussion infra in Sect. I.E of this article.

26. The following English translations have been used for Biblical and rabbinic citations. Biblical citations: The Holy Scriptures According to the Masoretic Text (Jewish Publication Soc'y Am. 1960)Google Scholar; The Mishnah: A New Translation (Neusner, J. ed. & trans., Yale Univ. Press 1988)Google Scholar; The Babylonian Talmud (Epstein, I. ed. & trans., Soncino Press 1936)Google Scholar; The Jerusalem Talmud (Guggenheimer, H.W. ed. & trans., Walter de Gruyter 2004)Google Scholar; Sifre to Numbers (Neusner, J. ed. & trans., Univ. Press Am. 2001)Google Scholar; The Tosefta (Neusner, J. ed. & trans., Ktav 1977–1986)Google Scholar.

27. Num 5:12-28.

28. Mishnah, Tractate Sotah 1:1-2.

29. See Halbertal, Moshe, Interpretive Revolutions in the Making: Values as Interpretive Considerations, in Midrashei Halakhah 69 (Magnes Press 1997) (Hebrew)Google Scholar; Hauptman, Rereading the Rabbis, supra note 23, at 17-19.

30. Mishnah, Tractate Sotah 4:2.

31. See Babylonian Talmud, Tractate Kethuboth 18b.

32. Mishnah, Tractate Sotah 6:2.

33. Mishnah, Tractate Yebamot 16:7.

34. Mishnah, Tractate Sotah 1:5-6.

35. Tosefta, Tractate Sotah 3:3.

36. Sifre to Numbers, 11.

37. As Haberman comments, The Suspected Adulteress, supra note 23, at 24: “the composure of the mishnaic text ruptures abruptly into violent eroticism.” Satlow, Tasting the Dish, supra note 23, at 176, similarly describes the Mishnah as a “rhetoric of violence and humiliation.”

38. For a roughly similar analysis of these gestures, see Rosen-Zvi, The Rite That Was Not, supra note 23, at 83.

39. Some have suggested that the intent of these gestures is to expose the truth about women in general, not merely accused women standing trial. See, e.g., Satlow, Texts of Terror, supra note 23. I am not convinced by this interpretation, mainly because, as Rosen-Zvi remarks, The Rite That Was Not, supra note 23, at 229, 235, the perception of women as “evil temptresses” is uncharacteristic of Tannaitic culture.

40. Hos 4:14; Mishnah, Sotah 9:9.

41. For a detailed discussion of the tannaitic literature on the relation between the cancellation of the sotah ritual and moral decline, and its parallels in Greco-Roman literature, see Grushcow, Lisa, Writing the Wayward Wife: Rabbinic Interpretations of Sotah 252–56 (Brill 2006)Google Scholar; Grushcow, Lisa J., The Case of the Disappearing Ritual: Theology, History, and Halakhah, 61 Conservative Judaism 44, 48–51 (2009)Google Scholar.

42. The ritual had most probably ceased to be performed long before Rabban Yohanan b. Zakkai cancelled it. See Alon, Gedalyahu, Studies in Jewish History in the Times of the Second Temple, the Mishna and the Talmud, Vol. 1, 56 (HaKibutz HaMe'uchad 1957) (Hebrew)Google Scholar; Epstein, Introductions to the Literature of the Tannaim, supra note 25, at 400; Rosen-Zvi, The Rite That Was Not, supra note 23, at 160. Its cancellation by Rabban Yohanan b. Zakkai is thus more of a symbolic gesture than an actual policy change (“we would have cancelled the ritual even if it was still being performed”).

43. See Grushcow, The Case of the Disappearing Ritual, supra note 41, at 45.

44. Jerusalem Talmud, Sotah 9:9.

45. Babylonian Talmud, Sotah 47b.

46. For a similar interpretation, see Rosen-Zvi, The Rite that Was Not, supra note 23, at 178-79.

47. To be sure, no one, as far as I can tell, has suggested that they are motivated by the same concern.

48. See, e.g., Hauptman, Rereading the Rabbis, supra note 23, at 15-21; Haberman, The Suspected Adulteress, supra note 23, at 23; and Halbertal, Interpretive Revolutions in the Making, supra note 29, at 94.

49. See Halbertal, Interpretive Revolutions in the Making, supra note 29, at 94. In the words of Haberman, The Suspected Adulteress, supra note 23, at 23, the legal procedures are meant to protect women against the “potential ravages of jealousy.”

50. As Hauptman puts it, Rereading the Rabbis, supra note 23, at 18, the legal procedures protect women by “sharply reducing] the number of instances in which a man could subject his wife to the ordeal of the bitter waters.”

51. In an attempt to explain this tension between the two changes, some scholars have argued that the first change (legalization) is essentially a response to the second (theatricalization), reflecting the rabbis’ discontent with the treatment of the accused woman. In Hauptman's words, Rereading the Rabbis, supra note 23, at 15-19, the rabbis were concerned with the ritual's “immorality and discriminatory nature,” (19) and therefore introduced legal regulations in order “to eliminate a practice that confounded their notions of justice and morality.” (15) For a similar point, see Ilan, Jewish Women in Greco-Roman Palestine, supra note 25, at 136-41. But the problem with this reading, as Rosen-Zvi points out, The Rite that Was Not, supra note 23, in ch. 1, § 1, is that the first change was most likely introduced before the second change, and hence cannot be understood as a response to it.

52. For this explanation, see Haberman, The Suspected Adulteress, supra note 23, at 30.

53. For this explanation, see Satlow, Tasting the Dish, supra note 23, at 182; Peskowitz, Spinning Tales, supra note 23, at 135-36.

54. Halbertal, Interpretive Revolutions in the Making, supra note 29, at 108, offers this explanation on the basis of a passage from the Jerusalem Talmud, tractate Sotah, 17a.

55. Remember that a sizable portion of the humiliating acts (changing her clothes, removing her jewelry and exposing her nakedness) take place even before she drinks the bitter water, that is, before it is proved that she was unfaithful.

56. See Halbertal, Interpretive Revolutions in the Making, supra note 29, at 108-10.

57. See Rosen-Zvi, The Rite That Was Not, supra note 23, at 179; Neusner, Jacob, Development of a Legend: Studies on the Traditions Concerning Yohanan Ben Zakkai 50–51 (Brill 1970)Google Scholar; Grushcow, Writing the Wayward Wife, supra note 4\, at 248-49.

58. See especially Rosen-Zvi, The Rite That Was Not, supra note 23, at 236-38; Satlow, Texts of Terror, supra note 23. There are important differences between Rosen-Zvi's and Satlow's arguments. In this paragraph 1 attempt to capture the essence of these arguments.

59. As Satlow puts it, Texts of Terror, supra note 23, at 275, 295-96: “If we accept the premise that the rabbis in late antiquity had limited juridical power, then the only way by which they could have promoted their values and norms would have been through rhetorical persuasion.” The second change should thus be understood as an attempt of “a juridically weak (if not powerless) group with an apparently limited following … to coerce and persuade men and women into sanctioned sexual activities and liaisons[.]”

60. For similar analyses of Mishnaic texts as “speech acts,” see Alexander, E. Shanks, Casuistic Elements in Mishnaic Law: Examples from M. Shevuot, 10 Jewish Stud. Q. 189 (2003)Google Scholar; Schwartz, Michael, Ritual about Myth about Ritual: Toward an Understanding of the ‘Avodah’ in the Rabbinic Period, 6 J. Jewish Thought & Phil. 135 (1997)Google Scholar; Berkowitz, B.A., Execution and Invention 18 (Oxford Univ. Press 2006)Google Scholar.

61. Foucault also discusses this mechanism in the context of sexual norms (what he defines as “technologies of sex”). However, his study of public executions provides, I believe, the clearest example of the mechanism's operation. See Foucault, Michel, The History of Sexuality, Vol. 1, ch. 4 (Random House 1980)Google Scholar.

62. Foucault, Michel, Discipline and Punish: The Birth of the Prison 47 (Random House 1979)Google Scholar.

63. See Coleman, Kathleen M., Fatal Charades: Roman Executions Staged as Mythological Enactments, 80 J. Roman Stud. 44, at 45-49 (1990)CrossRefGoogle Scholar.

64. Foucault, Discipline and Punish, supra note 62, at 48.

65. Smith, Philip, Executing Executions: Aesthetics, Identity, and the Problematic Narratives of Capital Punishment Ritual, 25 Theory & Soc'y 235, 241 (1996)Google Scholar.

66. See Rosen-Zvi, The Rite That Was Not, supra note 23, at 235-36; Satlow, Texts of Terror, supra note 23, at 292.

67. Satlow, Texts of Terror, supra note 23, at 278.

68. Hegel, G.W.F., Phenomenology of Spirit (Clarendon Press 1977)Google Scholar.

69. Levi-Strauss, Claude, The Savage Mind (Weidenfeld & Nicolson 1972)Google Scholar.

70. Levi-Strauss, Claude, Structural Anthropology (Basic Books 1963)Google Scholar. See also Bourdieu, Pierre, Outline of a Theory of Practice 124 (Cambridge Univ. Press 1977)Google Scholar: “To bring order is to bring distinction, to divide the universe into opposing entities.”

71. Durkheim, Emile, The Division of Labor in Society 70–110 (Free Press 1965)Google Scholar.

72. Durkheim, Emile, The Rules of Sociological Method 67 (Free Press 1938)Google Scholar.

73. See id. at 70.

74. Erikson, Wayward Puritans, supra note 11, at 4, 13.

75. Foucault, Michel, Madness and Civilization: a History of Insanity in the Age of Reason (Routledge 1989)Google Scholar. For other historical examples, see Erikson, Wayward Puritans, supra note 11, at 137-53 (analyzing the witchcraft accusations in Salem in 1692); Zablocki, Benjamin, The Joyful Community (Penguin Books 1971)Google Scholar (analyzing the reactions to patterns of deviance in the Bruderhof); Bergesen, A.J., Political Witch Hunts: The Sacred and the Subversive in Cross National Perspective, 42 AM. Soc. Rev. 220 (1977) (analyzing the reactions to assumed deviance during the Soviet purges)Google Scholar.

76. James, Robert, Dictionnaire Universel de Médecine 972 (Paris 1746–1748)Google Scholar, quoted in Foucault, Madness and Civilization, supra note 75, at 94.

77. Foucault, Madness and Civilization, supra note 75, at 202.

78. Mercier, Louis-Sébastien, Tableau de Paris 233–34 (Amsterdam 1783)Google Scholar, quoted in Foucault, Madness and Civilization, supra note 75, at 202-03.

79. Ben-Yehuda, Deviance and Moral Boundaries, supra note 6, at 20: “Deviance is the mirror-image of conventional morality and therefore of existing boundaries.”

80. But see also Foucault's analysis of “discourse” in The Order of Discourse, in Language and Politics 108–28 (Shapiro, Michael ed., Blackwell 1984)Google Scholar; Pierre Bourdieu's analysis of “doxa” in The logic of Practice ch. 3 (Stanford Univ. Press 1990)Google Scholar; Outline of a Theory of Practice, supra note 70, ch. 4.

81. See, e.g., Lev 18: 22, 24-27:

Thou shall not lie with mankind as with womankind, because it is an abomination. …. Defile not yourselves with any of these things with which all the nations have been defiled, which I will cast out before you. And with which the land is defiled: the abominations of which I will visit, that it may vomit out its inhabitants…. For all these detestable things the inhabitants of the land have done, that were before you, and have defiled it (emphasis added).

82. See, e.g., the Babylonian Talmud, tractate Kiddushin 82b: “R. Judah said: An unmarried man must not tend cattle, nor may two unmarried men sleep together under the same cover. But the Sages permitted it. [What is the reason?] It was taught: They said to R. Judah: Israel is suspected of neither pederasty nor bestiality.”

83. Bourdieu, Outline of a Theory of Practice, supra note 70, at 159-71.

84. Garfinkel, Conditions of Successful Degradation Ceremonies, supra note 9, at 423.

85. Berman, An Anthropological Approach to Modern Forfeiture Law, supra note 8, at 37.

86. By “actual practice” I mean when actually performed. The rabbis, in this respect, are not concerned with a “textual” ritual, as some scholars have suggested (see Sect. I.E supra), but with an actual ritual that is intended to be performed in practice.

87. I follow here Peter Goodrich's discussion of the relationship between theater and law in Europe in America: Grammatology, Legal Studies, and the Politics of Transmission, 101 Colum. L. Rev. 2033, 2070 (2001)Google Scholar, and in his entry on Law, in The Encyclopedia of Rhetoric 417–26 (Sloane, Thomas O. ed., Oxford Univ. Press 2001)Google Scholar.

88. As Stone Peters puts it, Legal Performance Good and Bad, supra note 13, at 183: “theatricality calls attention to itself, preens itself in the viewer's gaze, effectively waves to the spectator and says, ‘look at me!’”

89. My analysis here of course assumes that the ritual is performed in front of the public. To be sure, the Biblical passage relating to sotah does not mention any audience, and it is questionable whether the ritual, in its historical form, was indeed open to the public. However, the Mishnaic discussion, to repeat again, is concerned not with how the ritual had been performed, but with how it should be performed. In this case, since the purpose of the ritual is to inform the public about where the boundaries of society are located, it must necessarily be performed in front of them. Otherwise, it will fail to fulfill its function.

90. Lake and Questier make a similar point in their analysis of public executions in post- reformation England. While the purpose of the public execution is to create order, they argue, it may, paradoxically, create disorder by prompting, if not quite legitimizing, “the symbolic violence of the people.” Lake, Peter & Questier, Michael, The Antichrist's Lewd Hat: Protestants, Papists and Players in Post-Reformation England 274 (Yale Univ. Press 2002)Google Scholar.

91. Consider another legal institution, the Sanhédrin, which for various historical and cultural reasons has ceased to operate. Yet no rabbinical authority has seen fit to abolish it, in the hope that one day it will be appropriate to reinstate it.

92. See id. at 89, n.151.

93. In the words of R. Simlai, Jerusalem Talmud, Tractate Sotah, 17a: “Anywhere one finds whoring, mass destruction comes to the world.”

94. Compare to Alfred R. Radcliffe-Brown's understanding of religious rituals in Radcliffe-Brown, supra note 24, at 125.

95. Grushcow, Writing the Wayward Wife, supra note 41, at 266: “[Tjhe suspected wife becomes the personification of sexual sin in general, and adultery in particular”; see also Rosen-Zvi, The Rite that Was Not, supra note 23, at 68, and ch. 5.

96. To be sure, recently there has been a rise in advocacy of shaming punishments, which involve the deliberate public humiliation of the offender (for example, requiring offenders to stand in public spaces with signs describing their offenses, requiring offenders to apologize for their crimes, publishing the names of offenders in newspapers or on billboards listing the names and the offenses, etc.). The function of shaming punishments (as stated briefly in note 16) is essentially communicative: by having the offender publicly display his/her criminal status, and by allowing citizens to directly criticize and cast shame upon him/her, society expresses its condemnation of the offender's conduct and sends a clear message as to where the boundaries of society are located. For general debate about the justifiability and effectiveness of shaming punishments, see the sources cited in supra note 16; see also Nussbaum, Martha, Hiding from Humanity: Disgust, Shame, and the Law (Princeton Univ. Press 2004)Google Scholar; Garvey, Stephen A., Can Shaming Punishments Educate?, 65 U. Chi. L. Rev. 733 (1998)Google Scholar; Markel, Dan, Are Shaming Punishments Beautifully Retributive? Retributivism and the Implications for the Alternative Sanctions Debate, 54 Vand. L. Rev. 2157 (2001)Google Scholar; Massaro, Toni M., Shame, Culture, and American Criminal Law, 89 Mich. L. Rev. 1880 (1991)Google Scholar; Massaro, Toni M., The Meanings of Shame: Implications for Legal Reform, 3 Psychol. Pub. Pol. & L. 645 (1997)Google Scholar; Whitman, James Q., What Is Wrong with Inflicting Shame Sanctions?, 107 Yale L.J. 1055 (1998)Google Scholar; Braithwaite, John, Crime, Shame, and Reintegration (Cambridge Univ. Press 1989)Google Scholar; Braithwaite, John, Shame and Modernity, 33 British J. Crim. 1 (1993)Google Scholar.

97. Stone Peters, Legal Performance Good and Bad, supra note 13, at 189.

98. Garland, Punishment and Society, supra note 12, at 254. As observed in Auslander, Phillip, Liveness: Performance in a Mediatized Culture (2d ed., Routledge 2008)Google Scholar, “[l]ive performance is, in fact, essential to legal procedure,” at 129, and that “[i]n a mediatized culture, the legal arena may be one of the few sites left where liveness continues to be valued,” at 181. See also Davies, Margaret, Delimiting the Law: ‘Postmodernism’ and the Politics of Law 97–98 (Pluto Press 1996)Google Scholar; Davies, Margaret, Derrida and Law: Legitimate Fictions, in Jacques Derrida and the Humanities: A Critical Reader 218 (Cohen, T. ed., Cambridge Univ. Press 2001)Google Scholar; Kubiak, Anthony, Agitated States: Performance in the American Theater of Cruelty 5, 15 (Univ. Mich. Press 2002)Google Scholar; Schechner, Richard, Performance Studies: An Introduction 71 (1st ed., Routledge 2002)Google Scholar; McVeigh, Shaun, Rush, Peter & Young, Alison, A Judgment Dwelling in Law: Violence and the Relations of Legal Thought, in Law, Violence and the Possibility of Justice 101, 125 (Sarat, A. ed., Princeton Univ. Press 2001)Google Scholar.

99. Erickson, Notes on the Sociology of Deviance, supra note 7, at 310.

100. Stone Peters, Legal Performance Good and Bad, supra note 13, at 180-81.