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

Shivi Greenfield, Hazan Center for Social Justice and Democracy, Van Leer Jerusalem

Abstract

This Article focuses on a fundamental problem inherent to the functioning of criminal law as an instrument of order, and on the possible ways to address this problem as can be learned from ancient rabbinic literature. It is assumed that, as an instrument of order, the function of criminal law is to reinforce the normative boundaries of society by degrading those who deviate from them, reclassify them as Others who stands at a place opposed to the legitimate order. When society prosecutes the deviant as a criminal it is making a public statement about the nature and placement of its normative boundaries. A statement which is directed not only to offenders, but mainly to the public at large, informing them – by means of theatrical rituals performed in front of them such as prosecution and trial, announcement of verdict and punishment – ‘what the evil looks like’. By doing so criminal law indicates for the public where the line is drawn between behavior that belongs in the special universe of -society and behavior that does not. Paradoxically however, this feature of criminal law, which makes it of utmost importance for maintaining social order, also constitutes sever threat to this very order. It increases the salience of deviance, publicly confirming, one may say, its ordinariness as an integral feature of social reality. As a result, rather than reinforcing the normative boundaries of society, criminal law may have the effect of undermining them by leading the public to regard deviance as normal. This Article examines a special case of this problem, as it has been identified and addressed some 2000 years ago in the rabbinic literature on the biblical law of Sotah, the ‘suspected adulteress’. Although framed in terms of Sotah, this rabbinic discussion, the Article argues, is of much relevance for the general problem raised by criminal law, presenting three ingenious methods for addressing it. The aim of the Article is not to present these three methods as practical solutions for the problem as experienced by modern criminal law. Rather, it is to illustrate possible venues of dialogue with ancient ‘religious’ texts concerned, according to my analysis, with this very problem of deviance; drawing inspiration from their unique treatment of the problem and perhaps even discovering new cultural possibilities implicit in it.