On the heels of finishing the manuscript for my next book, Behind Ancient Bars, we’re taking a much-needed Thanksgiving break in Mendocino. The breathtaking vistas and calm atmosphere are an opportunity to rest, lift, swim, play, and read at a different pace, one I have missed lately while working and studying full time.
One thing I’m doing on this break, whenever some downtime is available, is reading. From an actual book, not from a screen. It is a sensation I have missed and longed for, and yet it feels unfamiliar and not as easy as it was in my childhood. A few times during my GTU journey we were encouraged by our professors–and rightly so–to print out the materials and read them on paper or to purchase the books in hardback or paperback. I’m sorry to say I didn’t always take them up on their invitation to engage with the text in a more tactile way, for a simple reason: I commute by bicycle and train and carrying a lot of books or printed paper with me is much more of a chore than carrying a MacBook Air. It’s true that reading from a screen opens the door to online distractions, and even though I use software that locks down the worst offenders, the temptation nags at me. Believe me, the irony of typing about this onscreen for people to read onscreen, and also the irony of teaching using an electronic casebook, have not escaped me, but the convenience can’t be beat–nor can the price, in the case of multiple hefty textbooks.
While here, though, I’ve started to read Maryanne Wolf’s Reader, Come Home, about the impact that digital reading and engagement has on our cognitive process. She focuses mostly on children, because they don’t have the analog background that us “olds” do, but honestly, after decades of working on a screen, I know exactly what she’s talking about. It feels like the synapses in my brain have changed to accommodate a completely new way of thinking, and I miss some aspects of my old cognitive ways. I’m finding the printed page challenging to engage with. My mental acuity, focus, and concentration are not what they were, and it’s probably not just aging–it’s aging while living digitally.
There are a bunch of things that remind me that I’m aging. Layers of superfluous stuff are being shed. Comfort in my own skin takes precedence. My faith in knowing The Truth (or that it can even be known, or held exclusively by one group or one side) has eroded, and I’m more comfortable asking questions and listening. Chronic conditions and issues start amassing, things that need attention. More and more precious people are gone, more lights are dimmed, and a lot of new stuff fades into irrelevance. Alongside these things comes an urgency to preserve and improve my mental acuity, and a big part of that is to learn to read again off a printed page, redevelop long-term concentration, and choose what and how I read intentionally and with care.
I’m especially enjoying reading new takes and angles on classic works that have accompanied my life. Being a big lover of Jane Austen, I Appreciated Ruth Wilson’s The Austen Remedy, and I now enjoy engaging with works that expand and challenge my view of the classics: Jo Baker’s Longbourn, which tells the Pride and Prejudice story from the perspective of the servants, and Claudia Gray’s mystery series featuring the second generation of some Austen characters. Along the same lines, I’m enjoying Percival Everett’s James, which retells the Huckleberry Finn story from the wry, witty, and compassionate perspective of Jim, the enslaved man who is so infantilized and ridiculed in the original. Same deal with Barbara Kingsolver’s Demon Copperhead, which sheds a Dickensian light on some of the poor of this land (my new book engages with Bleak House and with Oliver Twist, so I have a new fondness for seeing how these perennial stories play out in different times and places). Charles Finch’s mystery novels are a delight to revisit. And I’m enjoying revisiting the flawed and complex heroes at the heart of Ann Cleves’ mystery novels: the Matthew Venn and Vera Stanhope series. I’m also enjoying reading about natural history–especially about trees and mushrooms–and about the impact of music, exercise, art, the outdoors, etc., on the human mind and body.
It was interesting to think about reading on page and off page when taking the Dead Sea Scrolls class. Most of my classmates, who are not native Hebrew speakers, challenged themselves–and did admirably–with the Hebrew text (with no nikud). To take on an equivalent challenge, I tried to read each scroll in the original, which is to say, from a digital imaging of the original papyrus. It’s still a screen, of course, but it made some of the experience palpable in the sense that it provoked the excitement of looking at words that another person wrote by hand. I want to invite that challenge, and that pleasure, back into my cognition this year.
I’m not sure yet how to balance this with the convenience (and ecological prudence) of reading things offscreen without printing them out. Perhaps I can resolve to read on paper whenever I read for pleasure or whenever a book is assigned (and will purchase the physical book, rather than its Kindle rendition).
This month I’m very lucky to be taking a demo class at Hebrew Union College with the awesome AJ Berkowitz, whose research focuses on Jewish life between the Alexander the Great conquests (ca. 332 BCE) and the rise of Islam (ca. 622 CE). The course, called The World of the Rabbis, examines rabbinical engagement with the surrounding cultures and narratives. Which is how I came across a wacky, offensive medieval book called Toledot Yeshu (“the chronicles of Jesus”).
Toledot Yeshu is a mockery of the gospels, and it’s an instructive exercise to compare it to, say, Matthew. It is by no means the first example of a counternarrative designed to offend and undermine people of a different faith; Prof. Berkowitz reminded us of Apion’s revisionist history of the Exodus, as an example. What stands out immediately is how Toledot Yeshu revisits Jesus’ parentage and birth story. This undermines a crucial aspect of the Gospels – the whole story revolves around Jesus’ divinity, the virgin birth, etc. Instead, Joseph–an affectionate stepfather who refrains from approaching Mary intimately once she becomes pregnant–is recast as a vile rapist by deceit, Mary is morally blemished, and Jesus is a bastard who is (properly, apparently) ostracized. The whole thing seems carefully calculated to be as offensive as possible to Christians.
Knowing that Toledot Yeshu is likely a medieval text is helpful in understanding how and why someone would go to such lengths to produce such an aggressive refutation of the heart of Christian doctrine. I think this business is best understood against the backdrop of medieval Christian antisemitism and the Christian/Jewish polemic. The oppression and persecution of Jews in medieval Europe focused on Christian readings of the Hebrew Bible (the Old Testament) as a prelude to the arrival of the new messiah, viewing Judaism as made obsolete by Christianity. Worse, Jews are cast in Matthew as Christ’s killers (my choir, and many others worldwide, include a historical note/disclaimer in the program when performing Bach’s St. Matthew’s Passion for this very reason), the basis for various blood libel permutations. Confronted with daily hatred, discrimination, and violence, pre-modern Jews might have found the aggressive refutation of Christianity in Toledot Yeshu comforting, as it seeks to undermine the basis for their plight.
It’s worth noting, though, that there are more constructive examples of interreligious polemics in Jewish texts, my favorite of which is Yehuda Ha-Levi’s Sefer Ha-Kuzari. The book is structured as the imaginary journey of the king of the Kuzari people who, troubled by prophetic dreams, is looking for a new philosophy to live by. He talks to a Greek philosopher, an Edomite (= Christian), an Ishmaelite (=Muslim), and finally to “the friend,” who represents Judaism and is a proxy for Ha-Levi himself. Despite the fact that the work clearly posits Judaism as superior to all other philosophies, it is quite respectful to the other worldviews. Ha-Kuzari, as my hippy-dippy friends would probably phrase it, “vibrates from a much higher place” than Toledot Yeshu, and is an approach I want to believe that I would find considerably more appealing, but that’s easy to speculate, of course, from the standpoint of a 21st-century person with appreciation for free speech and the marketplace of ideas that would hardly be a factor in medieval Europe.
Thing is, the strategy of, not to put too fine a point on it, pissing on what is holiest to your adversary is still alive and well around us. One of the things I learned from my teacher and mentor Malcolm Feeley is that there is nothing new under the sun. Malcolm is a master of identifying thinking patterns and ideas across time and place, such as his masterful comparison between convict transports in the 17th century and electronic monitoring in the 21st. It is a mark of the many years I spent working with Malcolm and learning from him that I enjoy spotting these repetitive thinking patterns, and whenever I do, it makes me happy because it reminds me that I’m “Dumbledore’s man through and through.”
Anyway, it looks like some folks in current archaeological circles seem to vibrate from the same low place as Apion and the author of Toledot Yeshu. Archaeologist Brett Kaufman, whose work I’ve mentioned here before, has written a pretty depressing compendium of all the ways in which folks in his field who really should know better have been pretzeling themselves to deny Jewish indigeneity since October 7. It’s not just that the academic dishonesty and fabrication are shameful (though they are: archaeologists denying irrefutable material culture are making a mockery of their profession)–what I marvel at is the fact that people seem to feel that the current conflict and the massive suffering it is wreaking on all sides of the border should be resolved based on the kindergarten notion of “who was here first.” Nina Paley has expressed this grim ideology in this incredible animation:
Nina Paley, “This Land Is Mine”
[This wacky reasoning, in turn, reminds me of something I wrote about a long time ago: the way pro- and anti-same-sex marriage folks look for ideological support in biology. Every time a fruit fly is found to exhibit some sexual variation it’s weaponized as an argument for same-sex marriage; other evidence from the animal world is marshaled against it. Same story looking for sexual presentation in the animal kingdom. Why can’t the argument on behalf of same-sex marriage (which, by the way, CA voters will be invited to constitutionally affirm this week, and I hope you will, by voting “yes” on Prop 3) be made, simply, that we respect other people’s choices and lives, without getting into the question whether they are innate or predetermined? Why the preference for etiology over practicality? What difference does it make whether something is an “orientation” or a “lifestyle” if the people involved, in practice, on the ground, are happy and not hurting anybody else? But I digress.]
My frustration with the who-came-here-first answer to the current war is not just with the bad archaeologists who lie and twist. It’s also with the folks who have their history right but believe that ancient history should determine the conflict one way or the other. The idea that what seems right to you, or your birthright, or your God-given right, prevails over the realities on the ground, is terribly misguided. The situation right now is that there are multiple people with investment in, and claims to, the land, who must somehow learn to peacefully coexist if we don’t want the whole region to go up in smoke (it is already halfway there, to my great horror and sorrow).
This is what I would probably say to the Toledot Yeshu author: you can mock the virgin birth story all you like, defile your neighbors’ holiest figure, and draw some comfort from that as they defile your own history and heritage, but the endgame here is that everyone ends up filthy and disgraced. Or you can try to figure out a way to coexist with other people without hurting them or stepping all over them. The only question is who makes the choice to “vibrate from a higher place”, and how to make the benefits of putting an end to the besmirching outweigh the costs.
At the urge of many friends, I watched a few episodes of the new Netflix show Nobody Wants This, which centers around the romantic relationship between a (male, presumably Reform) rabbi and a non-Jewish woman. This adds up to the fairly small corpus of film and TV works I’m familiar with that seek to highlight the lives of Jews in America: early Woody Allen (especially Annie Hall), some episodes of The Wonder Years, the Charlotte-Harry relationship in Sex and the City, The Marvelous Mrs. Maisel and, most recently, You’re So Not Invited to My Bat Mitzvah.
I watch these things in part to make up for a considerable gap in my Jewish experience. I was raised in a secular home by a secular mom and a dad with Orthodox religious background and studied quite a bit of Talmud and Jewish law in infancy with dad, in school, and at university. I’m studying Jewish Studies at the Graduate Theological Union and I’m a rabbinical student. That’s not where the gap is: the more I encounter folks who grew up as American Jews (as opposed to Israeli Jews) the more I realize that an American Jewish upbringing is a subculture of its own, with a wealth of its own institutions, trappings, and tics: Jewish schools, shul programming, Jewish summer camps, Hebrew school, very particular ways of celebrating Bar or Bat Mitzvah, etc.
This, in itself, is not remarkable, and as I explained elsewhere, it is delightful to me that people look back at these experiences with nostalgia, as formative elements of their personhood. That’s great! And I’m sure it is owed, at least in part, to the prominence of Reform congregations. The US is a big country, and being Jewish will look and feel different in different places, to different people, but congregations that are welcoming to kids, that make outreach efforts, and that feel meaningful and cool are such a gift. It is because of these progressive denominations that the American Jewish kids I run into have experienced plenty of female and queer rabbis, connections between halakha and socio-political issues that are interesting to them, and other ways that make their Judaism relevant to their spiritual and moral development. In fact, I suspect that the marginalization of Reform Judaism in Israel, given the hegemony of the Orthodox rabbinate and its stranglehold on the government, is a big reason why so many Israelis feel completely alienated from their own spiritual culture.
Still, while watching Nobody Wants This I found myself puzzling over some of the depictions of U.S. Jewish culture. I didn’t get particularly hung up on the stereotyped and somewhat insulting depiction of Jewish women, though some folks understandably found offense there. Rather, I was somewhat surprised at two parallel things: first, the utter and complete ignorance of Judaism and Jewish culture by the non-Jewish characters in the show (who were apparently unfamiliar with the word “Shalom” and ignorant of the concept of Shabbat) and the stunning insularity of the Jewish cast of characters. Judy Berman, in her review for Time Magazine, comes close to this when writing that the show feels “short on insight into the realities of Jewish-gentile relationships in the 21st century”:
[That Noah’s environs pressure him not to date a gentile woman] is all believable enough within the context of Noah’s vocation. What feels less realistic, considering how cool and easygoing he’s supposed to be, is the homogeneity of his personal life. All of his friends seem to be Jewish couples . . . He and Sasha play on a recreational basketball team called the Matzah Ballers.
There’s a fine line between exploring Jewish identity and essentializing it, and Foster [the show’s creator, who converted – H.A.] sometimes crosses into dubious territory. Noah’s ruminations on theology and tradition can be lovely, and they feel true to his pensive character. But when Esther sends Sasha to the schvitz, where his dad spends all day every Sunday, to request a promotion at the family company, so that she can print his impressive new title on their daughter’s bat mitzvah announcement? It starts to seem as though nothing ever happens with Noah or his family that isn’t explicitly about being Jewish. Meanwhile, unlike just about any real person of her generation raised in a major metropolis, Joanne has never so much as heard the word shalom.
Perhaps Berman is right that this insularity makes sense (if barely) in the context of Noah’s vocation, and perhaps this is supposed to depict a very particular kind of Jewish community; maybe rich Jews in LA are as much of a representation of the overall U.S. Jewish experience as Cher and her friends in Clueless were a representation of the overall U.S. teen experience. Still, the insularity beggars belief. My professional and social environment has lots of U.S. Jews in it, raised on both coasts. These are all people who work and socialize with non-Jews, who participate in activities with non-Jews, who marry non-Jews and raise multifaith children in ecumenical homes.
True, some friends converted to Judaism before marrying Jews, and other friends married someone who converted in the context of their marriage. This is not my personal cup of tea for various reasons, and it would never occur to me to ask for something like this, but the folks I know who did it are happy with their choice. Good for them! None of them thinks it’s the one and only choice for Jews in the 21st century, and I know plenty of folks who made a different choice–including the composition of my own family. According to a 2020 Pew survey, 42% of all currently married Jewish respondents indicate they have a non-Jewish spouse. Among those who have gotten married since 2010, 61% are intermarried. True, intermarriage is very rare among Orthodox Jews, but Orthodox Jews are a mere 10% of the U.S. Jewish population. The idea of anti-miscegenation, or “marrying outside the faith”, is obviously part of Jewish history, but hey, Hebrew Union College now ordains reform rabbis who are in interfaith relationships. It’s been a change long in the making, and it reflects a realistic understanding that, given the statistics, to reject Jews who are married to non-Jews, not just as congregants but also as potential spiritual leaders, is to eject them, effectively, from communal Jewish life. HUC’s president Andrew Rehfeld explained that “a prohibition around Jewish exogamy … is no longer rational because intermarriages can result in engaged Jewish couples.” Still, I want to believe that this long-overdue wisdom doesn’t reflect merely utilitarian considerations, but also the more profound understanding that reaching deeply and intrusively into people’s loving relationships and intimate lives can be traumatic and destructive (see Ezra 10 for what I consider a particularly ugly, albeit perhaps historically understandable, example of such religious insularity).
If this were just about a show that depicts Jewish insularity in an archaic light (even if it’s wildly popular and overall well received) I wouldn’t bother. My concern, though, is in what this depiction of insularity says about possible growing trends in U.S. Judaism in the last year. You see, the many Jewish people around me who have, for many years, been at the forefront of progressive political goals, active in politics, in human rights, in equality work, in animal rights, and in environmental protection, participate in these efforts precisely because they don’t see the world through an insular lens. The young Jewish men who were murdered alongside Black men trying to register people to vote in Mississippi did it because, to them, blocking people from voting was not just a “Black issue”: it was a political issue that needed to concern everyone. For decades I’ve worked on issues involving correctional conditions and animal rights, not because there’s something particularly Jewish about these causes, but because I am a human being with a conscience who tries to live a moral life, and I care about everyone‘s wellbeing, not merely about the particular folks who share my demographic slice. I’m far from being alone in this.
Thing is, as more and more areas of intellectual, political, and artistic life in the U.S. shut down to Jews, and as people are stunned to wake up and see their friends, colleagues, mentees, and beneficiaries turn on them with horrific viciousness and stunning ignorance, many Jewish people are looking for new avenues for their world-improving energy. It’s not ridiculous to forecast that these efforts are going to be directed more inward from now on. Heck, I’m doing the same myself by looking to pivot professionally into Jewish spiritual leadership. Folks who discover that they have supremely shitty friends are going to look for better, more supportive friends, and where might those be found? in the Shul, in Jewish learning environment, in Jewish organizations and nonprofits. As The Godfather‘s Michael Corleone says to Kay when they reunite after he comes back from Sicily: “I’m working for my father now, Kay.”
My fear, therefore, is not that this Netflix show falsely depicts Judaism as insular (though it probably does). My fear is that the current climate will have life imitate art in the sense that more and more Jewish people will choose insularity–socially, professionally, politically–not to be exclusive or superior, but rather because, as individuals and as a people, we have to respond to this really, really difficult moment by reinventing ourselves.
Among the Dead Sea Scrolls is a short and puzzling one, referred to as 4QMMT–found in Cave 4 of Qumran, and titled Miqtzat Ma’asei Torah (“some deeds of the Torah.”) It was compiled from hundreds of tiny fragments found in six manuscripts. The text is very incomplete, but it seems to be addressed from the local sect (whose leader, the “righteous teacher,” is described in other scrolls, such as Pesher Habakuk) to a rival sect (whose leader is described elsewhere in the scrolls as the “wicked priest.”) There is animosity and sectarianism, with references of “we” and “you”. Early commentary on this scroll identified the authors as the Essenes, described in Josephus Flavius’ writings, but now there are other understandings of the scroll, which identify the authorship as Sedducean. The scroll reflects preoccupation with the calculation of the Jewish calendar and the holidays, particularly in the context of purity laws (which makes sense; remember, these folks liked to bathe a lot and kept lots of vessels for ritual dinners, which suggests preoccupation with issues of ritual purity.) The text we have is pretty sparse–only 121 rows have been assembled and deciphered–and most texts and translations I’ve seen online add words to enhance the readers’ understanding.
Which is where our story, which appears to be torn out of the pages of a Dan Brown thriller, begins.
When the scrolls were originally discovered, Qumran was under Jordanian authority. The Jordanian government entrusted the study and interpretation of the scrolls to a small cadre of archaeologists, historians, and theologians. When the area of Qumran passed into Israeli hands during the Six-Day War, the Israeli government kept to this arrangement. Alongside the massive national effort to procure the many scrolls that had been stolen or sold into private hands, the smallish group of scholars continued to hold somewhat of a monopoly over studying the scrolls. One of these scholars was Prof. Elisha Qimron of Ben Guryon University, who would win, many years later, the Israel Prize for Jewish Studies. Qimron was a relatively young scholar at the time, and partnered with Prof. John Strugnell of Harvard in working on the scroll (Strugnell would later blemish his own legacy through antisemitic slurs). He gave his first paper on 4QMMT in 1984, at the first Biblical Archaeology Society’s (BAS) annual meeting, but his work on deciphering the scroll took eleven years.
It’s hard to overestimate the amount of work invested in this grand project. Out of the hundreds of fragments, Qimron assembled 60-70 bigger fragments, and then pored over them to figure out the logic of the scroll. Because the text was so sparse, this took a while, and the versions you can find now in fascimile and annotated versions often add words that are not visible in the original fragments, but that help understand the context and reflect deep familiarity with the historical context of the scrolls in general and of the sectarian scene in particular. Toward the end of the project, in 1990, Qimron and Strugnall reached an agreement for publishing the text, translations, and scroll copies, with Oxford University Press
What happened next was wild. As Qimron (mostly) and Strugnell made headway with the scroll, they shared their work with some colleagues to obtain feedback and commentary. One of these folks was Hershel Shanks, a lawyer and one of the editors of the Biblical Archaeology Review. In November of 1991, before Qimron and Strugnell published their findings, and without obtaining their success, Shanks published a book on the scroll with BAS, edited by James Robinson and Robert Eisenman. The book includes photos of the fragments. The introduction to the volume, authored by Shanks, included an appendix: the Qimron cypher of 4QMMT – unsigned and unattributed. The book sold several hundred copies worldwide.
In January 1992, Qimron sued Shanks, Robinson, Eisenman, and BAS, for violating his copyright. The case found its way to the Israel Supreme Court, which you can read here (in Hebrew.) It brings up some fascinating questions of intellectual property and academic integrity that go to the heart of the concept of creativity.
While Shanks et al come off as, not to put too fine a point on it, loathsome plagiarists, they did not perceive themselves as such, and their argument that that the scroll scholarship’s playing field was rigged from the very beginning has some merit. As I mentioned above, both the Jordanian and the Israeli governments curtailed scholarly access to the scroll by allowing only a small group of scholars access to the original materials. Shanks saw himself as an activist for academic freedom and saw the publication of the BAS book as an important first step in expanding access to the scrolls beyond what he considered a “research cartel.” As someone who is studying the scrolls in 2024 with my fellow students at the GTU under James Nati’s terrific tutelage, I’d be the first to agree that our understanding of these mysterious texts really benefits from a plurality of perspective, especially when the surviving manuscripts are so fragmentary. But these noble intentions are somewhat marred by the main defense argument brought forth by Shanks & Co., namely, that Qimron’s work is nothing more than the work of a kid putting together a jigsaw puzzle, and thus not something that a modern scholar can hold intellectual property rights to.
The reason I find this claim so fascinating is that it echoes the questions of ownership, authority, and creativity that scholars are raising about the scrolls themselves. Among the scrolls found in the caves are multiple copies of several works of scripture. The Temple Scroll, for example, considerably overlaps with Deuteronomy (several versions of which are present in the Qumran corpus), and some modern scholars are challenging the notion that these are merely “copies” of some existing canonical version of Deuteronomy from that time. In the Temple Scroll, as opposed to the original text, the Deuteronomistic edicts are not pronounced from Moses’ mouth, but from God’s mouth (he’s the “I” of the text)–is this a fluke? A literary choice? A more fundamental statement that the scribe/author of the scroll is closer to the original intent of the laws than the mainstream folks who held a monopoly over the temple, presumably in the Moses tradition? Some of the most interesting Dead Sea controversies involve the question of the scribes’ creativity and originality. I find it striking that the same questions emerge in modern litigation with regard to the work of the people piecing together the scrolls.
Here’s how the Supreme Court tries to make sense of the intellectual property question (my translation – H.A.):
[The deciphered text has two components]. The first component is the physical, palpable “raw material”: the fragments of a scroll created about two thousand years ago and found in Qumran; the second component is what made the assorted fragments into a deciphered text through the physical assembly of the fragments, their ordering, deciphering the scripture upon them to the extent that deciphering was necessary, and completing the gaps between the fragments. In other words, the art of breathing life and soul into the fragments is what made them into a living, meaningful text. Indeed, the scroll fragments themselves are now in the public domain and belong to everyone in the sense that anyone who wishes to assemble and interpret them may do so. But the fact that the “building blocks,” the materials the creator used for his work, are in the public domain, is unrelated to the question whether the creator possesses intellectual property in his creation.
What, therefore, is the crux of the intellectual property question? Some cases espouse the view that creativity is the key factor, while others highlight the importance of expending effort, time, and/or talent on the part of the creator. Selecting and editing can be proper subjects of intellectual property, but because of their curatorial nature, courts look at the extent to which original contributions were part of the editorial process.
This issue of original contribution was at the heart of the defense’s argument. This sounds paradoxical and, to be fair, pretty callous, but it essentially goes like this: The fact that Qimron put a lot of philological and contextual firepower into his completion of the fragmentary text ironically undermines his own claim to originality. In other words, if Qimron now argues–by virtue of the careful philology and history he used to complete the text–that his version is the “true” text of 4QMMT, then what is his original contribution to the scroll? what he has produced is basically a printout of the text of the scroll, whatever work he did melts into the scroll, and nothing here is “owned” by Qimron himself.
Thankfully, the court rejected this argument. By examining the work Qimron had done on the scroll, the judges concluded:
The court below carefully examined Qimron’s work process, intending to examine the level of originality in the process, not merely because they thought that his time investment was sufficient to acquire intellectual property. This process, which ended in the assorted fragments becoming a whole text with content and meaning, included several layers of creation. . . in this case, the layers of the creative process are interwoven and connected, dependent upon each other and impacting each other. So, the deciphering of the writing impacts the ordering of the “islands” of fragments in a particular way; the ordering of the “islands”, in turn, impacts the possible meanings of the text, its structure, its content, and the ways in which one completes the gaps. One cannot separate these layers, and they should be seen as one creative work. Examining it as a whole creation exposes undeniable originality and creativity. Qimron’s work was not, thus, technical, mechanical, like simple manual labor whose results are preordained. His spirit, the soul he imbued in the scroll’s fragments, which turned the fragments into a living text, were not merely the investment of human resources, effort, and sweat. They were the fruit of a process in which Qimron used his literacy, his expertise, and his imagination, exercised judgment, and picked among several choices.
Again, this view of Qimron’s creative process corresponds nicely with some modern understandings of the creative process employed by the scroll scribes themselves, two thousand years before Qimron first laid eyes on the fragments. It’s easier to see the creativity in a scroll like Pesher Habakuk, which explicitly use the original biblical text and then expound with their own original interpretations and implications of the text, but even choosing to tell the Deuteronomy text through a fresh perspective is a creative intellectual choice. Whether or not Qimron’s ancient counterparts took pride in their scholarship–or even considered it scholarship–is one of the many mysteries we will never be able to unpack. But the Supreme Court’s decision that assembling and completing the text is creative work might well echo some of our thinking about the creative process behind authoring these texts in the first place.
Shanks & Co. brought up two additional arguments which, I think, the court rightly rejected. The first was that awarding Qimron intellectual property would be seen as upholding the monopoly he and a handful of selected others had on the text; the second was that publishing Qimron’s text without attribution reflects common academic customs. Everything we know and believe about how the academic process does and should unfold requires an unambiguous rebuttal of these arguments. The first argument, taken ad absurdum, would suggest that people should not be rewarded for doing good scholarly work, because the more authoritative their perspective, the less room there is for others to offer alternative perspectives. Where, then, is the incentive behind putting one’s expertise and talent into speculative work that is persuasive and authoritative? And don’t we all benefit from the fact that any work that refutes someone else’s solid effort must be solid as well?
Similarly, taking the second argument ad absurdum would deter people from widely circulating and sharing their work before publication. There are many good reasons for having other experts take a look at your stuff before you embarrass yourself in public (remember this? Wouldn’t you want to avoid such mortification?). When I think about a scholarship area I’m a little bit more familiar with–epidemiological innovation–the world lost precious lives because of labs keeping their findings and innovations close to their chest due to inflated egos and competition, and saved lives when universities and labs set aside their egos and collaborated. To ensure collaborative behavior, we have to mutually agree to give credit where credit’s due, rather than assume that rumors in the field do enough to respect each person’s contributions.
Finally, to get a sense of the work invested in bringing these manuscripts to life, be your own hero: try to read the original scrolls and see how much edited and interpreted editions add to (or detract from) your understandings of these mysterious, ancient texts.
This fall I have the great joy of auditing James Nati‘s excellent course on the Dead Sea Scrolls, which were discovered in Qumran in the late 1940s and led to a huge quest to procure the corpus, which dispersed into a variety of hands in the following decades. One of the most successful quests to obtain the archaeological artifacts and bring them back, the scrolls have now been digitized, and we read the primary text and some commentary on it in class. To challenge myself, I try to read it out of the original papyrus, imagining myself touching and smelling the manuscripts.
It’s been particularly intriguing to read this stuff as someone who knows next to nothing about the cults at the time, but knows quite a bit about movements, sects, etc., in the 1960s and 1970s. When I studied Israelite/Jewish history in middle and high school, it was common to lump the Dead Sea folks together and refer to them as the Essenes (a term that comes from Josephus and Philo) and assume that they were a bunch of hippies in white robes who liked to bathe a lot. I’m finding out that newer historians and theologians now believe that the scrolls are not necessarily the work of one isolated sect, but rather of people who might have had considerable ties to the outside; the Community Rule includes some references to behavioral norms when outside of the compound. Also, the Yahad people, to whom the Community Rule refers, and the composers of the Damascus Document might have been two different groups.
Stuff like this makes me wish I could time-travel and see how that scene differed from what I saw when I looked at the cults and new movements of the 1960s with all their eccentricities and splintering. The idea that these folks would have to at least trade with the outside world makes a lot of sense to me, because they lived in the desert and would have had to procure food somehow, at the very least. Also, the idea that their splintering might be about personal ego clashes as much as about theological differences resonates with what I know about the 1960s. The eschatological stuff reminds me a lot of the narratives of various cultish sects even today, who assume that at some point all the wrongdoers will perish while the righteous folks will remain or be taken to the heavens. Do we have, as a species, some sort of cult blueprint that repeats itself in various groups?
A couple of decades ago I came across Isaac Bonewits’ tool for evaluating cults. I wish we had a good enough picture of the Yahad people and/or the Damascus Document people to apply the tool and figure out what was really happening there. The eschatological stuff reminds me a lot of the narratives of various cultish sects even today, who assume that at some point all the wrongdoers will perish while the righteous folks will remain or be taken to the heavens. Moreover, it certainly seems that a big part of the righteousness is about strict norms and regulations (e.g., what to do on the Sabbath, ritual and meal planning, hierarchy, personal and spiritual cleanliness) that far exceed those that presumably were practiced in mainstream society. One has to wonder: do we have, as a species, some sort of cult blueprint that repeats itself in various groups? Is there anything new under the sun?
One of the major assumptions of modern penologists is that prison, as an artifact of modernity, came to replace other forms of punishment: executions, maiming, etc. Overall, I think there are three main approaches that support this idea:
The legalistic approach
Some punishment scholars—primarily those who study incarceration from a formal, doctrinal perspective—rightly point out that the legal definition of prison differed greatly in antiquity and in modernity. The modern conceptualization of criminal punishment adheres to the Enlightenment-Era logics regarding the rule of law: laws forbidding undesirable behavior must be preemptively enacted, universal in their verbiage, fairly and impartially applied by an independent judicial entity, and prescribe the minimal amount of set punishment that satisfies retributive and/or utilitarian goals. Descriptions of incarceration in antiquity (and, in particular, in the bible) rarely, if ever, conform to this model: determination of guilt is not a necessary precursor to incarceration, and when it occurs, it does not necessarily reflect what modern doctrinalists would regard as a fair, impartial judicial trial. Sentences, if meted at all, are not necessarily determinate in length. The entry and exit points of ancient confinement facilities are not always well defined and, as we will see, often reflect erratic, casuistic decisionmaking by monarchs in the throes of whims and dreams.
If the argument dismissing incarceration in antiquity relies on legalistic comparisons, it is seriously undermined by the fact that the study of incarceration in modernity has long ago transcended such formal categories. For decades, scholars have been studying the function of legal institutions on the ground, unlimited by the rational or articulated goals of said institutions. The entire field of law and society is concerned with the gaps between “law in the books” and “law in action,” often identifying the ways in which the actual operations of institutions deviate from their legal definitions. More specifically, current scholarship about the modern carceral state applies to an entire body of institutions, facilities, and practices, of a dazzling variety of shapes and sizes, and encompassing multiple goals and functions. Adopting a limiting, legalistic project of studying incarceration would miss out on a wealth of scholarship about pretrial detention, immigration detention, bail, electronic monitoring, parole conditions, and postrelease supervision, as well as on illuminating comparisons between correctional facilities and other forms of extractive confinement, such as cattle towns and private sector surveillance.
In other words, save for when stating the obvious—that confinement systems looked different and served different purposes thousands of years ago—clinging to formalism is not particularly instructive when studying the incarceration experience.
The arc-of-enlightenment approach
By contrast to the legalistic approach, some sociological pioneers have examined penal changes over the longue durée, attributing the emergence of incarceration as the most salient form of punishment to large-scale social transformation. In his classic text The Division of Labor in Society, Emile Durkheim analyzes the shift from simple societies, in which collectivity is a function of sameness and conformity, to complex ones, based on diversification and socio-economic exchange. This shift manifests in numerous ways, one of which is the emblematic penal regime. In a later essay, titled The Two Laws of Penal Evolution, Durkheim observed that punishment would change as societies became more complex: laws designed to address transgressions through repression would shift toward restitution, and corporal punishment would shift toward incarceration. Durkheim, then, tied incarceration to social complexity, which he identified with modernity.
Setting aside the many critiques of Durkheim’s identification of “simple” and “complex” societies, which exceed the framework of this book, it is notable that prison symbolized, for him, a progressive step. Other sociologists were even more explicit in identifying prison with progress. In The Civilizing Process, Norbert Elias advances the idea of a gradual reduction in interpersonal violence as a political and cultural shift. Post-medieval times, Elias argues, saw a top-down trickling of new standards regarding violence, sexual behavior, bodily functions, table manners, etc., from courtier society to lower societal strata, reflecting sublimation and self-restraint. The formation of this more rarified etiquette paralleled the emergence of the modern state. As monarchs amassed and consolidated power, Elias argues, they assumed a monopoly over legitimate physical violence, centralizing the infliction of punishment and eliminating violent forms of dispute resolution between individuals.
Elias’ observations are echoed in the work of other people who documented long-term trends in crime and punishment. V.A.C. Gattrell notes a decline in bloodthirstiness and delight at spectacles of public savagery in Early Modern England. Robert Nye documents the increasing regulations and limitations on, and eventually decline in and disappearance of, dueling as the modern state assumed a monopoly on punishment. And Pieter Spierenburg notes the gradual disappearance of more savage forms of punishment and the turn toward confinement. In The Spectacle of Suffering, Spierenburg painstakingly documents the gradual disappearance of public executions and the emergence of penal restraint. Importantly, these scholars, especially Spierenburg, shy away from praising these trends as an unqualified good, describing them in neutral language.
The neutrality seems appropriate, given a considerable flaw in Durkheim’s take on the evolution of punishment: the transition from repression to restitution is a premise that careful historical observation does not bear out, and even if plausible, it would not necessarily dovetail with a transition from corporal punishment to incarceration. As Leon Sheleff has observed, social complexity often generates repressive forms of punishment, and as Martin Killias’ careful study of dozens of historical and modern societies shows, a rise in incarceration often occurs alongside repressive efforts.
Moreover, the extent to which these works, which focus on the emergence of the Early Modern European state, can offer useful insights about punishment in antiquity, is very limited. Durkheim and Elias were inspired by dramatic social transformations that occurred in their time and place—the long industrialization process—and likely did not give much thought to their application to a completely different setting. If the emergence of centralized state power represses savagery and interpersonal violence, one might wonder what these big-picture sociologists and historians would make of ancient empires, including those reflecting great levels of sophistication and social complexity, such as ancient Egypt, Babylonia, Persia, Greece, and Rome. It is hard to responsibly draw comparisons between these empires and the emergence of the European modern state, and even harder to speak of penological parallels, but there are indications that Fourth century Athenians, for example, believed that institutionally channeling anger through formal punishment was beneficial.
The body-to-soul approach
A more sinister take on the emergence of the prison in modernity is Michel Foucault’s influential Discipline and Punish. Foucault observes the emergence of “great confinements” in hospitals, military barracks, schools, and prisons, as a new form of governmentality. At the outset of the book, Foucault contrasts a scene of royally prescribed torture for a regicide, culminating in drawing and quartering the condemned, with a monotonous daily schedule for inmates at a juvenile facility. The shift from the former to the latter, Foucault argues, reflects a turn from centralized, dramatic displays of governing power focused on the body of the condemned to something much more pervasive: a vague but widespread web of institutions designed to produce changes in the soul through surveillance and supervision. As his central metaphor for the carceral, Foucault relies on Jeremy Bentham’s famous prison design: the panopticon. Housed in cells organized in a circle, facing a central tower, inmates have no way of knowing whether they are being watched, and thus begin to control and modify their own behavior to comply with the institutional standards, internalizing them.
Plenty of works about the emergence of the modern prison have adopted Foucault’s observations, finding evidence that control and fear increasingly shape behavior in societies with mass incarceration, identifying carceral features in many settings and areas of life beyond physical prisons, and focusing on the growing classification of people according to risk. There is also evidence that certain punishments, such as the death penalty, are increasingly regulated, medicalized, and removed from the public eye. But importantly, just like Durkheim and Elias, Foucault focuses on the transition from a European court society to the modern state, and the applicability of his framework for understanding antiquity is limited.
When Foucault identifies incarceration with modernity, he is describing a very particular form of incarceration: one that is highly regulated and operates on a massive scale, according to the government and administration principles of Weberian formal rationality. The basic premise of Foucault’s analysis does not discount the possibility that ancient societies might have had a very different sort of prison, one that exhibits some common features with the “gloomy festival of punishment” era.
Another challenge to Foucault’s observations, as well as those of the other two approaches, has to do with the classification of incarceration as categorically distinguishable from other forms of punishment, often referred to as corporal punishment. And I have to say, the more I think about the history of punishment over the longue durée, the more I realize that the boundary between incarceration and corporal punishment is false. Not only, as I’ve said many times before, is prison itself corporal punishment, but it often comes hand in hand with corporal mortifications of various kinds. People on death row, for example, are incarcerated. People put to hard labor are incarcerated. People awaiting deportation are incarcerated. People awaiting public humiliation are incarcerated.
In other words, incarceration and other forms of punishment do not have the sort of see-saw correlation that simplistic accounts of penology would have us believe. One does not necessarily rise when the other one falls. What throws us off is that the scale of incarceration in modernity is so immense that it dwarfs the other accompanying things. But that doesn’t mean that incarceration wasn’t always there.
Samson Captured by the Philistines
Today’s example of this is Samson, whom, as I’ve just realized, I haven’t yet discussed in the context of the book. The story of Samson’s capture, incarceration, and suicide, is told in Judges 16. If the Joseph/Daniel/Esther trio can be classified as exilic fantasy/folktale and Jeremiah as political thriller, Samson is definitely in the action/adventure category, and while we have plenty of evidence for the existence of the Philistines (though their ethnicity is debated, see here, here, and here), the Samson stories are superhero fiction. By contrast to other judges, characterized by their wisdom, righteousness, and/or military strategic acumen, Samson is, first and foremost, a man of astounding physical force. David Grossman’s terrific reimagining of the Samson story casts him as a man of contradictions: his blessing is his curse, he is a terrifying antagonist of the Philistines but is fatally attracted to Philistine women, and his desire for vulnerability and openness is his undoing.
What leads to Samson’s incarceration is his disclosure to Delilah that his physical prowess stems from his long hair. Once he falls asleep, she cuts his tresses, and begins to torture him. Interpreters differ in how they understand this torture: some believe she called someone else to cut Samson’s hair, and some believe that she started taunting him physically to test whether, indeed, his power has dissipated. Then she calls out that the Philistines are upon him, and they charge, and immediately inflict horrific torture: they gauge out Samson’s eyes. They then take him to Gaza, place him in “beit ha-asurim” (literally: the house of prisoners), where he is put to work at the grinding mill. Rabbi Steinzaltz explains that the grinder works in a circle, so Samson did not need his eyesight to engage in this labor: it was well fitted for his new disability. Radak posits that prisoners had to earn their keep and therefore ground the mill.
But Radak offers an additional, and more sinister, take on Samson’s forced labor: he sees “grinding” as a euphemism for sexual slavery. According to Radak, Samson, not to put too fine a point on it, was put to stud, to impregnate Philistine women (one wonders why: did they still believe that he possessed some special supernatural powers and was therefore a valuable progenitor?) Generally, this reading dovetails with what I saw in some medieval readings of Esther: really unsavory sexual undertones and a fleshing out of the power differential stuff, which suggests that these commentators might have read the Biblical material through the lens of medieval punitive savagery. Which is not to say, of course, that sexual slavery was not within the realm of the imaginable in antiquity (we have plenty of examples). What is interesting about the Samson story is the emasculation of Samson but the preservation of his manliness for the utility of his captors (I’ve read a couple of queer readings of the Samson story that make a lot out of this stuff.)
In any case, the Philistines hold a big party at their temple, and they bring in Samson to mock him in his weakness. Unbeknownst to them (and this is a truly genius literary device from the author of this tale, I think) Samson’s hair has begun to grow back while at the prison, and when he is brought to the temple, he asks the youth who minds him to place him between the columns of the temple. He begs for God to restore his power so that he can avenge one of his eyes, and calling out “Let me die with the Philistines!” he demolishes the temple, slaughtering more Philistines than he had killed in his life. This, by the way, is often a spectacular moment in operatic productions of Samson and Delilah.
Samson and Delilah production at the Metropolitan Opera
The Samson story is instructive in several important ways. First, it offers an example of incarceration that goes hand in hand with torture, humiliation, and forced labor. Second, it offers some notions of what would have been imaginable to those reading and interpreting what was surely a work of complete fiction in terms of the scope of carceral torture. And third, this story–not unlike the Jeremiah incarceration story–does a terrific job capturing the deep rage and desire for revenge by someone treated so cruelly by his captors.
This week saw two federal district court decisions against Harvard and UCLA, respectively, regarding their failure to protect their Jewish and Israeli students from antisemitic discrimination, which you can read in their entirety here and here. Both complaints have a run-through of the upsetting facts we saw at play in many college campuses last year. I’ve already seen some coverage of the decisions and, as expected, it is understandably politically inflamed (as is some of the language in the briefs and the decisions.) What I hope to contribute to the discussion is a concise run-through of the legal arguments made by the plaintiffs and the defendants, which may illuminate the issues that are likely to come up in future litigation on this topic in the fall.
The Harvard case is a ruling on a motion by Harvard University to strike a complaint, based on the Civil Rights Act, by Students Against Antisemitism (SAA), against the university for its failure to rein in antisemitic behaviors and actions that targeted Jewish and Israeli students. The court dismissed in part and granted in part. The Title VI case based on a deliberate indifference claim will go through, whereas the case based on direct discrimination will not.
Harvard raised two preliminary hurdles to the SAA lawsuit, the first of which involved SAA’s standing to bring it forth. There are three conditions for granting standing to an association: at least one member of the association must have standing to sue individually (members of SAA were affected and targeted by the litany of antisemitic events described in the lawsuit), the interests involved in the lawsuit are germane to the org’s purpose (in this case, fighting antisemitism), and the claims and types of relief sought do not require the participation of individual plaintiffs (which SAA can represent).
The second issue was that the lawsuit was unripe: Harvard argued that it was still in the process of formulating its response to antisemitism on campus. The court, however, rejected this argument, asserting its authority to rule on incidents that already happened. The lawsuit would examine whether actions Harvard had taken before the lawsuit was filed had been adequate and whether they will be adequate going forward.
On the merits, the court acknowledged that SAA brings a valid Title VI case on the basis of deliberate indifference. It has provided a prima facie showing that (1) SAA members suffered harm that (2) hindered their educational opportunities, (3) that the school knew of these deprivations, (4) that the deprivations were related to school programs and activities, and (5) that the school exhibited deliberate indifference toward the denial of these opportunities. Harvard argued that some steps to remedy the situation had been taken, but the court disagreed, characterizing the university response as “indecisive, vacillating, and at times internally contradictory.”
By contrast, the court did not find that SAA’s direct discrimination claim was valid. When arguing that discrimination has taken place, plaintiffs have to offer the right comparators: X is discriminated against while Y is not. The examples offered by SAA were diffuse and insufficient to show discrimination: they argued that Harvard canceled speakers who were trans-exclusionary radical feminists (TERFs) but not antisemitic speakers. In the broader context of the culture wars, if one is hell-bent on viewing all political questions as lying on a right-to-left axis, this argument might make sense: it shows a progressive bias in speaker invitations. But I think the court was right in discouraging this way of thinking about things, because it is crucially important to disaggregate how people think about various questions of social, political, and economic interest. Take a look, for example, at this interesting story in the Stanford Review. Overall, yes, there’s a proliferation of leftiness on campus, but when one digs into the nuances of student opinions, one finds rich diversity on questions of foreign policy, domestic civil rights, and fiscal policy. Students and faculty who are deprived of a say in the invitation of speakers on Israel/Gaza/Hamas/Palestine might not be deprived of a say in gender policies. I also think that the association of “rightthink” on gender matters and “rightthink” on the Middle East is misguided at best and poisonous at worst, for reasons that should be obvious to any thinking person on either side of both issues. I like that the court decided not to conflate this stuff.
The UCLA case that resulted in a preliminary injunction revolved around the university’s failure to dismantle an encampment at the Royce Quad, which barred students for entering for failing to dismantle an encampment. The injunction prohibits UCLA from offering any educational programming to which Jewish students do not have access, and from colluding in preventing Jewish students from attending programs on campus in the future where other students can do so.
The plaintiffs in this case, by contrast to the Harvard case, were three Jewish students, who argued that they were prevented from accessing the Royce Quad, including the library, because of an encampment whose members would confront them about their opinions about Israel. Despite the fact that the plaintiffs were directly affected, UCLA argued lack of standing, making the point that there was no proof that such hindrances would be in place in the future. The court, clearly incensed about the antisemitic incidents at UCLA, rejected this logic, expressing concerns about how the fall semester would unfold given the university’s paltry response to the spring encampment.
Another argument brought about by UCLA was lack of causation, which I think is best understood as a “wrong defendant” argument. The protestors, it is claimed, were private students and entities, and the university itself did not contribute to what happened with the encampments. The court swiftly did away with this arguments as well, finding that UCLA continues to offer educational opportunities knowing that the Jewish students cannot avail themselves of these opportunities (including physical access to campus areas and buildings).
There are three conditions for obtaining a preliminary injunction: (1) likelihood of success, (2) irreparable harm to the plaintiffs should the injunction not be granted, and (3) a balance of equities. It looks like the federal judge thought that this lawsuit would eventually succeed, that the students’ education would be hampered were the injunction not to be granted, and that the discomfort, such as it is, to UCLA in having to grant equal access to its programming to all students did not outweigh the injury to the plaintiffs.
A few general observations are in order. First, while not all the facts in these cases were germane for the disposition of these preliminary matters (the actual lawsuits could drag on for years), they do paint a distressing picture of the daily life on campus. The images from Columbia are, of course, in the news today due to their president’s resignation, but the stuff quoted in these lawsuits is profoundly upsetting and dovetails with things I’ve heard from clients and colleagues about other campuses. I’m left wondering whether the emotional effect of the real-time unfolding of these events will wear out as the lawsuits go on. That the judges in both cases were deeply disturbed is evident in both decisions, though the Massachusetts judge uses more measured tones.
The second observation has to do with the proverbial “incident of the dog in the nighttime”–an issue that some might have expected to be brought up, but does not come up in either case, which surprised me because of its centrality to the Brandeis lawsuit against Berkeley Law–namely, whether Zionism is germane to Judaism to the point that hostile action against people for adhering to Zionist worldviews counts as religious discrimination. It simply did not come up at all in either case. The UCLA decision identifies the plaintiffs as “three Jewish students who assert they have a religious obligation to support the Jewish state of Israel,” taking their nexus between religion and political opinion at face value. The Harvard decision summarily acknowledges the proper basis for discrimination: religion (against Jews) and national origin (against Israelis.) It looks like both judges were not interested in the minutiae of how this debate unfolds in the intellectual communities which they examined, such as: can you disaggregate Zionism from Israeliness, can you disaggregate it from Jewishness, can you disaggregate it from support of, or objection to, the Israeli government, and other hairsplitting typologies and dichotomies in which academics are profoundly interested but judges and lawyers are not. It might be that the judges simply concluded what many of us also have: if it walks and quacks like a duck, that’s what it is, regardless of the verbal pretzeling around who might be a Jew and nevertheless pass muster with the protestors. It’s also a valuable lesson for potential plaintiffs and defendants in these cases of what to focus on. I’ve recently observed that what seems of high importance to academic (e.g., the particulars of why this or that expression is an antisemitic dogwhistle given the history and semantics of bigotry) is of little importance to people more worried about concrete examples of physical violence, vandalism, blocking entrance, etc. What I take away from this is the following: plaintiffs can and should grow thicker skins and focus on clear, discrete examples of discrimination and administrative inaction, while defendants should not prepare to expound on why they were violent and vicious toward someone because of quality A but not quality B. Looks like, when things come to court, no one cares.
In the last few weeks I’ve been sharing snippets from my new book in progress, Behind Ancient Bars. Chapter 2 of the book will be devoted to the Hebrew Bible’s most illustrious prisoner, Joseph. You can find the full story in Genesis 39-41. Briefly, Joseph is thrown in prison following a false rape accusation by the wife of Potiphar, to whom Joseph had been sold as a servant. The biblical story offers us a rather rich account of Joseph’s carceral experience, including his responsible role in prison management while a prisoner himself and his interaction with two fellow inmates (the chief cupbearer and the chief baker). We also learn of his unsuccessful efforts to have the chief cupbearer curry favor for him with Pharaoh and of his eventual release, and auspicious rise, when his dream interpretation skills are needed.
Medieval midrashists found Joseph a fascinating subject, but tended to focus on his dreams, the salacious story with Potiphar’s wife, and Joseph’s later reconciliation with the brothers who sold him to the Ishmaelites. But one also finds quite a bit about his prison journey there, and the expanded stories tend to adhere to two important messages. The first is a concerted effort to frame the entire incarceration journey—in terms of time as in terms of content—as orchestrated by God for specific purposes, suggesting God’s interest not only in the people of Israel but also in geopolitical matters. I see examples of this in other biblical incarceration stories, but it is especially pronounced here. Second, and relatedly, there is an idea I’ve already discussed in the context of Daniel, Esther, and Jeremiah: the notion that Joseph undergoes a penological transformation within confinement that prepares him for his prophetic leadership after reentering Egyptian society.
I’ve recently come across Nicholas Reid’s excellent book Prisons in Ancient Mesopotamia. In his analysis of primary sources, Reid urges us to use a wide lens when discussing prisons in antiquity, similar to what we now do in modern incarceration studies. He says this, with which I’m wholeheartedly in agreement:
When thinking of a history of prisons and imprisonment, one must look beyond the stated goals and stated functions of the prison to the actual practice. . . since prisons are multifunctional, the historical investigation into imprisonment should not revolve solely around the question of punishment. . . the adaptability of limiting corporal movement through imprisonment to meet numerous social goals and handle numerous social ‘problems’ has deep roots in history, even though direct connections and linear developments do not exist.
Even though Joseph was not sentenced to a prescribed period behind bars, and even though biblical punishment is usually retributive in nature, there is enough in the biblical descriptions and the midrashim to point to a message eerily similar to the one parroted in rehabilitation programs and parole hearings today: that incarceration is a “rock bottom” point in a prisoner’s journey that is an essential part of his or her coherent life story, that one goes down in order to go up, and that one develops important prosocial and other skills in confinement that set him or her up for a pivotal historical role postincarceration. In light of this, I decided to rewrite the Joseph story as a parole hearing transcript, relying heavily on the medieval midrashim. Here’s a short snippet:
PHARAOH: Okay, since we’ve moved to the inmate’s C-file, let’s see how he did in prison. From what I see from the record, you haven’t had many visitors in the twelve years you’ve been inside.
JOSEPH: No, Your Majesty. I believe only in the early days, when Zulycah still visited me.
AMHOST: I’m not sure I understand: The woman whom you claim falsely accused you of rape visited you in prison?
POTIPHAR: Your Priestly Eminence, since I oversee the prison, she can come and go as she pleases, and she even helps me with the logistics.
PHARAOH: And when she visited you, what did you talk about?
JOSEPH: She was trying to persuade me to give in to her. You know, “How long wilt thou remain in this house? do but listen unto my voice, and I will release thee from thy prison.” Like that. I had to keep saying: It is better for me to remain in this house, than to listen unto thy words, and transgress against God.[1]
AMHOST: I guess we keep things nice and cushy for you in Thebes. Some people would easily mistake you for a prison administrator, rather than an actual prisoner, and think Potiphar just moved you to another job to put some distance between you and his wife.[2]
MERITAMUM: It’s not like that, Your Grace. The write-up about the visit documents that the inmate was repeatedly threatened by his accuser. She was overheard saying, “if thou wilt not do my wishes, I will put out thine eyes, and I will put additional chains upon thy feet, and I will surrender thee into the hands of such as thou hast not known, neither yesterday nor day before yesterday.”
HAT: Looks like it was even worse. I have the 128 write-up that she put in his file, and it says that, while they were setting the table at chow hall, cleaning the drinking glasses and all that, she would say to him: ‘In this matter, I mistreated [ashaktikha] you. As you live, I will mistreat you regarding other matters.’
MERITARIUM: Oh, but he gave as good as he got. Basically played her at her own game. Like she said “ashaktikha,” so he would say to her: ‘[God] “Performs justice for the oppressed [laashukim].”’ (Psalms 146:7) [She would say:] ‘I will reduce your sustenance.’ He would say to her: ‘[God] “Provides food for the hungry.”’ (Psalms 146:7) [She would say:] ‘I will shackle you.’ He would say to her: ‘“The Lord frees the imprisoned.”’ (Psalms 146:7) [She would say:] ‘I will cause you to be bent over.’ He would say to her: ‘“The Lord straightens the bent.”’ (Psalms 146:8) [She would say:] ‘I will blind your eyes.’ He would say to her: ‘“The Lord opens the eyes of the blind.”’ (Psalms 146:8)[3]
PHARAOH: Dear Maat. How far did all of this go?
MERITARIUM: We’re not entirely sure, because there’s a lot of hearsay in prison intelligence. Rav Huna said in the name of Rabbi Aḥa, you know, that sort of thing. But rumor was that she placed an iron bar beneath his neck until he would direct his glance toward her and look at her. Nevertheless, he would not look at her. That is what is written: “They tortured his legs with chains; his body was placed in iron.” (Psalms 105:18)[4]
PHARAOH: Nice facility you run there, Potiphar.
POTIPHAR: I can’t possibly screen my own wife from the list of visitors, Your Majesty.
PHARAOH: Why would you let her do it? Did you think he was guilty?
POTIPHAR: Oh, no, I knew he was innocent. Even my kids knew.
PHARAOH: What?
POTIPHAR: We all knew. My kid kept saying, “stop beating on him, my mom is lying.”[5] Even on the way in, when I was booking him, I said to him, “Joseph, I know you didn’t do this, but I’m locking you up so I will not attach stigma to my children.”[6]
MERITAMUM: And even so, Your Majesty, when she visited him in prison, it didn’t seem to faze the Inmate. He was overheard replying, hold on, it’s hard to read the hieroglyphs, “Behold the God of all the earth, he is able to deliver me from all that thou wouldst do unto me. For he giveth sight to the blind and he freeth the captives and he preserveth the strangers that are in the land they never knew.” Eventually she gave up and stopped coming.
PHARAOH: Do we have any laudatory chronos in the file?
MERITAMUM: Yes, Your Majesty. The inmate was charged, de facto, with the functioning of the entire administration.
PHARAOH: You entrusted. The entire prison administration. To a prisoner.
POTIPHAR: The whole thing. Eating, drinking, binding people, releasing them, torturing them, giving them a rest. He would call the whole thing and whatever he said, went.[7]
HAT: It says in this chrono, “the minister did not have to see anything he put in the inmate’s hand.” I’m not sure what this means.
POTIPHAR: It means I didn’t have to supervise him, because God helped him succeed in prison as well as on the outside. It’s a kal vahomer.
HAT: A what?
POTIPHAR: A kal vahomer. Argument a fortiori. They have to say he was successful in prison, because success on the outside would be self-evident.[8]
HAT: See, I read it differently. I read it that you didn’t see anything fishy or poorly performed.[9]
POTIPHAR: You know these prison write-ups. You can read them seventy different ways.
HAT: Mr. Jacobson, do you feel that you were treated fairly in prison?
JOSEPH: To be honest, I did end up feeling relieved. Back home, whenever we ate, my father would give me the choice portions, and I always had to look over my shoulder lest my brothers take revenge. And I confess that here in prison I could breathe a bit easier. But God likes to give me a challenge, so I figure he’ll sic a bear on me anytime soon.[10]
HAT: Not sure I understand what the bear’s got to do with any of this.
JOSEPH: It’s got to do with the grain.
AMHOST: What grain?
JOSEPH: You’ll see.
[1] Sefer HaYashar (midrash), Book of Genesis, Vayeshev 19
My new project Behind Ancient Bars looks at several prominent incarceration stories in the Hebrew Bible. One that is often missed is Esther’s stint at Ahasuerus’s harem. Because most of the story is a bedroom farce, and some of it a bloodthirsty schadenfreude fest, many commentators skip over Esther’s confinement before she is taken to the king, which you can find in Chapter 2. But this short vignette illuminates not only commentary about empire in general (and probably Persian empire in particular), but also about the multiple forms of vulnerability of women and the ways in which governmental systems are crafted to exploit these vulnerabilities. This paints the festive Esther story a much darker, more sinister hue.
Seeing the Esther story as an incarceration story to begin with requires doing what modern penologists do on the regular: expanding our definition of incarceration. I find it interesting that people who happily read Foucault and Goffman, seeing obvious parallels and symmetries among total institutions and across the carceral archipelago, suddenly adopt a hyper-legalistic approach to punishment in antiquity, forcefully arguing that there is no incarceration in the bible because it is not listed as a sanction for a criminal conviction in Deuteronomy or in Hammurabi’s law. If incarceration scholarship in modernity can look at pretrial detention, immigration detention, and even cattle towns–because those are carceral experiences–then incarceration scholarship in antiquity can and should encompass political detention and shady government programs for locking up and reeducating children. And indeed, some commentary on the Book of Esther moves away from the entertaining popular presentations of beauty pageants to identifying incarceration elements.
How much of this represents true carceral practices, or is a realistic portrayal of royal harems, is hotly debated. Summarizing the literature for and against a reading of Esther as fiction, Adele Berlin opines that the story, like the Daniel story, dates to the Hellenistic period, and reflects stereotypical Athenian perceptions of Persia: “luxury, hierarchy, bureaucracy, wine drinking, the postal system, imperial law, bowing down, eunuchs, impalement, a royal garden, and a sexually virtuous queen.” But at least some of this fed commentators who used it to glean more about imperial Persian governmentality.
The background to the Esther story is well known: during a royal feast with his courtiers, an inebriated king orders his queen, Vashti, to appear before the courtiers. She refuses, angering the king, and is either banished or executed, which results in a vacancy. The king’s servants propose that all good looking virgins in the kingdom be gathered at the “women’s house” in Shushan, the capital, under the supervision of Hege, the king’s eunuch, so that the king may pick whichever one pleases him to be his queen in lieu of Vashti.
Julia Schwartzmann points out that the details of Esther’s arrival in the harem can be disturbing to modern readers, because of Mordechai and Esther’s “ambiguous uncle/niece relationship, the way Mordechai hands over Esther to the king’s harem, and his manipulative handling of his silent and passive niece.” Not only modern readers: Two important medieval commentators, Abraham Ibn Ezra and Immanuel of Rome, propose that Mordechai planned, as a foster parent, to marry his beautiful charge, a-la Dickens character John Jarndyce (his charge in the book, you’ll remember, is also called Esther!) One can only imagine many young women and girls in similarly precarious situations who would end up swept into the harem–a rather hopeless prospect, as only one girl would be officially crowned queen, and as no girl, per Ibn Ezra, would be available for marriage or any life outside the harem after having bedded the king–with girls like Esther, without parents and with guardians who have agendas beyond their charges’ best interests, more vulnerable to apprehension and lockdown.
The pageant story will have us believe that the girls gathered at the capital out of their own free will, but some commentators see this more as a coercive executive action. Shelom Esther draws the readers’ attention to the large number of officers and bureaucrats involved in the concubine-gathering operation, which had to visit each house to prevent parents from hiding their daughters. Joseph Ibin Yahya adds that Mordechai hid Esther, and that she was taken against his will and against hers.
The administration of the harem, as we saw in the Daniel court stories, is given to eunuchs. The word “saris” (eunuch) might be used differently in different biblical contexts, and could be a reference to a high government official rather than to the sexuality of these personages, but what we know of various empires–especially the Persian empire–suggests that, at least in some contexts, the meanings converge. Last week, at our archaeology course, Brett Kaufman told us that it was common to entrust military commands in imperial armies to eunuchs because they would have no dynastic aspirations and thus would not attempt to usurp the throne. But it makes sense that confinement operations, where sexual exploitation is a serious risk, would be entrusted to sexually inactive supervisors, as 19th century commentator Malbim very explicitly explains.
Even if sexual abuse was not a risk, there were other ways to render the eunuchs’ charges pliable and docile. Much is made in chapter 2 of the issue of cosmetics (“tamrukim”). Some commentators, like Ibn Yahya, interpret these in a straightforward way as beauty-enhancing products, while others, like Immanuel of Rome, thought these could be medications, including first-aid supplies. What is interesting is that the sole purveyors of these items were the eunuchs, which Malbim shrewdly interprets as part and parcel of the king’s power play which, in turn, reflects the lessons learned from the Vashti episode:
He feared that [the girl he would choose] would not want to marry him, and [his advisors] said that after they examined those who came willingly and did not find an appropriate wife for him, then he will appoint officers and they will round up all the girls with a strong arm, (and they even shrewdly said that he should appoint new officers, so that it would be someone who has not been bribed to ignore the rich people’s girls), and against the fear based on his memory, and the concern that [the prospective bride] would do as Vashti did, they advised to gather the girls around Hege, and that they must not bring their own cosmetics from home, but rather only receive them from the eunuchs, and from this side will always be submissive toward the Eunuch and not uppity as Vashti was.
Malbim on Esther 2: 3: 2
When Julia Schwarzmann marvels at how captivating the Esther story is given its telenovela-like synopsis, I want to add: the power of the story is that both ancient and modern readers would recognize the patriarchal fear of subversive and disobedience, the injured pride, the opportunities for exploitation and exertion of power. But it also points to a source of power and ingenuity on the part of the incarcerated person. We’ve already seen how Daniel, when failing to negotiate his diet with chief Eunuch Ashpenaz, makes a deal with “the waiter” on the sly to receive his special vegan rations. Here, we see Esther realizing that the key to surviving in the harem is to charm Hege, who proceeds to favor her with food and luxury items.
Another aspect of the story that exudes verisimilitude is Mordechai’s concern for Esther’s welfare–whether because of the general situation or because, at his request, she hid her identity from harem management. He is told to come to the harem yard every day to inquire after her, and perhaps one advantage of charming the pants off Hege was the availability of daily reports of her wellbeing.
By contrast to the later story of her tenure as queen, Esther of chapter 2 is described passively: she is beautiful, parentless, young, vulnerable, and puppeteered by her uncle/guardian as well as by the various government officials. But between the lines, one finds glimmers of transformation. Placed in a complicated logistical and social scenario, Esther figures out that personal charm and charisma are useful tools, and that performing modesty and restraint pays off. Both Ibn Ezra and Immanuel of Rome emphasize that her restraint, which earned her the favor of Hege, reflect her intelligence. Ibn Yahya opines that she had the good fortune to be taken to the king in the winter, when one enjoys intimacy and closeness more than in summer, thus improving the odds of being the king’s favorite, but what if Hege, who was in her corner, was the one in charge of the schedule and deliberately scheduled her sexual audition for an auspicious date? The emerging picture is one of strategic thinking, charming the key people responsible for her welfare, and performing royal virtue even prior to her selection (perhaps impressing Hege as “queen material”) which the story does not demonize or regard as duplicitous but rather as an understandable, even commendable, survival strategy.
This is interesting for two reasons. The first is that, regardless of the official goal of incarceration in biblical stories, there is evidence of personal transformation occurring behind bars. Martin Pritkin, who approaches biblical punishment from a more doctrinal perspective, finds evidence of rehabilitative motives amidst the retributive rationales, but I think these stories make a somewhat different point: there’s a difference between the espoused nature of a confinement program and the sociological and psychological features of the experience of going though said program. Second, and relatedly, personal transformations in incarceration stories are a means to an end. Notably, incarceration serves as a cauldron, a crucible, a vehicle, for developing leadership characteristics that predict the protagonist’s success at his or her post-incarceration life. Joseph, for example, is incarcerated as punishment for a wrongful accusation or to allow Potiphar and his household to save face; behind bars, however, he develops not only the administrative and logistics acumen that will later serve him well in Egyptian administration, but also a prosocial approach to dream interpretation and the skills of getting along with different kinds of people (skills he lacked as a youth). Daniel learns some wheeling and dealing and perhaps impresses Ashpenaz and “the waiter” with his initiative. Jeremiah, admittedly a “finished character” by the time of his incarceration, has an opportunity to flex against Zedekiah and to leverage his existing friendship with Ebed Melekh to obtain relief, as well as to forge an important alliance with Nebuchadnezzar that grants him relative freedom in exile. And Esther’s reputation for virtuousness and humility and capacity to marshal personal charm and good looks to make important friendships goes a long way toward earning the favor of the king, both at her audition and later, when her skills are needed at a time of national crisis. The dire straits of incarceration are an essential part of the formulaic, fatalistic narrative. Theologically, they support the idea that the divine jails these people to foster the development of the personal characteristics that will come in handy later. I don’t see this as being much different than the sort of logic I see and here at many a rehabilitation program in prisons–namely, the way people are encouraged to construct and tell a coherent personal narrative, in which the prison journey, the crucible of change, is an essential ingredient on the way up, and support for an “everything happens for a reason” notion of meaning-making.
There are two ways of looking at this–benign and cynical. The benign approach relies on Victor Frankl’s logotherapy to argue that people survive and thrive after suffering–even extreme suffering–by imbuing their experiences with meanings. Shadd Maruna’s Making Good offers many examples for the role that a personal narrative of hardship and redemption plays in desistance from reoffending. The more cynical approach, akin to the one I developed in Yesterday’s Monsters, is that rehabilitative programming becomes sort of a mediocre community play that has to follow a script that prison authorities and parole commissioners recognize and validate: follower-to-leader, toxic-thinking-to-empathy, anger-to-understanding, opacity-to-insight. These scripts have a quasi-theological flavor (in some cases, the programs that encourage them, such as Twelve Steps groups, actually have a religion component.) Whether or not the fatalism and meaning-making project is genuine or artificial, it is a well-recognized story, and so, these incarceration stories feel familiar and similar to each other because they evoke a recognizable, universally familiar trope.
An important question in the sociology of punishment is whether the social reaction to deviance/challenge becomes more ferocious during times of social and political turmoil. This question is often attributed to Emile Durkheim and his concept of anomie. As Bruce DiCristina explains, Durkheim used the term “anomie” in various different ways in his scholarship: insufficient regulation of interactions, insufficient regulation of desires, excessive imprecision and weakening of the collective consciousness, and a decline in morality. Most crime and punishment theorists I am familiar with are interested in whether social control rises when the consensus is challenged: For example, Kai Erikson shows that, in Puritan colonies, repression and swift punishment were at their height during times in which religious authorities felt most challenged and imperiled. Similarly, there is a wonderful article by Martin Killias that compares 47 countries (as of 1972) in terms of their political structure and incarceration rates. Killias finds that countries plagued by dictatorships, high power concentration, unemployment, and unequal income distribution tend to be more punitive. Killias ties these punishment-enhancing factors into the concept of a “legitimation crisis,” which occurs “when rulers cannot meet the standards emanating from their own self-justification and when the power gap between rulers and subordinates grow and power is concentrated among a few.”
This makes a lot of sense: it doesn’t take a lot of heavy theorizing to figure out that a society at risk, in which the leadership faces challenges, lashes out at people and displays punitive power in a last-ditch effort to instill fear, if not earn legitimacy. A classic example of this can be found in Jeremiah, where the biblical authors outdid themselves painting a vivid picture of a city under siege, a king in decline, conflicts, intrigue, and secrets, and the resulting incarceration of a prophet suspected of being an enemy shill.
Harold Wilmington offers a thorough biographical sketch of Jeremiah, from which one learns that his fortunes swung high and low in the last few days of the kingdom of Judah. During the discovery (or the “discovery”) of the Torah under King Josiah’s reign, he served in an official capacity, helping implement religious reforms, but after Josiah was felled in the battle against Pharaoh Necho, Jeremiah fell out of favor with his descendants. The biblical text (as well as Wilmington’s biography) paints a picture of someone well known throughout the Judean kingdom as nobody’s patsy, and certainly someone who provokes strong reactions: steadfast friends and bitter enemies abound.
The text suggests that Jeremiah’s incarceration during the Babylonian siege was not his first time at the rodeo. In Jeremiah 36:5-6, the prophet dictates his prophecy to his scribe, Baruch ben Neriah, instructing the scribe to read the prophecy in public because “I am detained; I cannot go to the house of God.” It’s possible that short-term political detention of a tiresome dissident was a usual government approach during Josiah’s descendants’ reigns; the text, which describes a failed manhunt for Jeremiah and for Baruch, certainly suggests that Jeremiah was acting in the shadow of the law and had to evade capture. But things really come to a head under Zedekiah, the last king of Judea, a puppet monarch instilled by Nebuchadnezzar. Kevin Tolley contextualizes Jeremiah’s imprisonment:
Zedekiah came to the throne at a time of great spiritual, economic, and political turmoil. The previous kings had made “disastrous choices.” The city was caught between two external political powers since both Egypt and Babylon vied for power. Over the past decades, loyalties had shifted and allegiances had waned as Jerusalem was continually controlled by one side or another. Egypt had heavily taxed the people (2 Kings 23:33), and Babylon had pillaged the temple and national coffers and had exiled a portion of the inhabitants, leaving the state in financial ruin (2 Kings 24:13). Zedekiah had witnessed the murder of his father, Josiah, and the exile of his brother Jehoahaz. He had seen his brother Jehoiakim mismanage Jerusalem, which had caused the might of Babylon to come down on the city for a three-month siege, resulting in the death of Jehoiakim and the exile of his son Jehoiachin. Thousands of people were deported, and both the city’s economy and defenses were in shambles. Civil unrest prevailed, and various political groups competed for power. . .
For the next few years, Zedekiah maintained a quiet reign. The Babylonians had successfully cowed him. Few would have dared to question the might of Babylon after their armies had just sacked the city. Over his eleven-year reign, Zedekiah realized he needed to rebuild without provoking the ire of either Babylon or Egypt. Zedekiah was a well-intentioned leader (Jeremiah 38:14–16), but he was weak, vacillating, and fearful of public opinion (Jeremiah 38:5, 19).
Throughout Zedekiah’s reign, various political groups pressured Zedekiah to break his oath of allegiance to Nebuchadnezzar. Rumors began to arise that Egypt would assist in a rebellion against Babylon. News of civil unrest in Babylon reached Jerusalem; Zedekiah gave in to the pressures and joined an alliance with Egypt to rebel against Babylon (2 Kings 24:20). And so the countdown to Jerusalem’s destruction began.
In January 588 BC Nebuchadnezzar caught wind of the rebellion and moved quickly against Jerusalem, laying siege to the city. The blockade ultimately lasted over eighteen months. In the spring or summer of 588 BC, Judah became hopeful when the Egyptians began to march toward Jerusalem (Jeremiah 37:5–7). Nebuchadnezzar briefly left the siege of Jerusalem to smash this Egyptian resistance, and then he quickly returned Jerusalem. Zedekiah was in a desperate situation.
Kevin Tolley, “The Imprisonment of Jeremiah in Its Historical Context,” Religious Educator 20(3) 2019, https://rsc.byu.edu/religious-educator/vol-20-no-3-2019
What happens next, vividly described in Jeremiah 37-38, is a veritable political thriller. As the Babylonians lay siege to the city, Jeremiah prophesied the destruction of the city and the temple (presenting Nebuchadnezzar as an instrument of God) and outlined the three options: leave the city by escaping the siege, remain in the city and be ravaged by the Babylonians, or surrender and hope for the best. Jeremiah’s advice to surrender to the Babylonians did not sit well with a group of government officials, who managed to catch Jeremiah when he was dealing with some property matters at the Benjamin Gate. One of them, Irijah, accused Jeremiah of defecting to the Babylonians. Jeremiah said, “lie! I’m not defecting!,” but the denials fell on deaf ears and he was brought to the officials, who beat him up and put him in a place described as “beit ha’asur.”
Religious commentators fault the government officials for this grievous miscarriage of justice, and the classical midrashim, invested in Jeremiah’s image as righteous, all use remarkable linguistic gymnastics to explain how bad of a king Zedekiah was (by “bad” they don’t mean “politically weak, manipulated by the bureaucracy, and speaks out of both sides of his mouth,” but rather, “disloyal to God.”) Agaddat Bereshit 35:2 and Esther Rabbah, Petichta 6 both rely on the fact that Zedeikah is not described as a “king” (a word associated with the righteous), but rather through the verb “to reign” (suggesting that he is unworthy of the descriptive noun). But if one reads this story as a political thriller, rather than a theological morality tale, I think there is enough in the text to suggest that Jeremiah could be reasonably believed to be a Babylonian shill. Not only was he advocating surrender during a stressful time, which could erode everyone’s morale given the siege and resulting hunger, but he is later said to have been released and treated well in Babylonia (perhaps as an expression of Nebuchadnezzar’s gratitude?).
Rembrandt Van Rijn, The Prophet Jeremiah Mourning over the Destruction of Jerusalem, 1630
What sort of prison was “beit ha’asur”? Notably, the text does not speak in plural (‘beit ha’asurim”), and this perhaps strengthens the description of this facility: it is the house of Jonathan the scribe, converted into a makeshift jail, perhaps specifically to hold Jeremiah (was Jonathan in cahoots with Jeremiah’s jailers?) The architecture of this improvised prison is somewhat unclear, and different commentators have different takes on it. Jeremiah was put in “beit habor” and in the “hanuyot”, where he is said to sit for “many days.” The “bor,” translated as a pit, is said by 18th century commentator David Altschuler (“Metzudat David”) to be the worst place in prison (think “down in the hole”). But what are the “hanuyot”? Rashi translates this as “cells,” but Altschuler opts for the literal translation as “stores,” and Medieval commentator Radak explains that these stores were also converted into prison cells, akin to the conversion of Jonathan’s house. What I find interesting about this “hanuyot” business is that it is supported by some of today’s controversies about evidence of incarceration. Last week, as part of my rabbinical program, I attended our summer intensive, during which we took a phenomenal archaeology course with the one and only Brett Kaufman, who told me that some places where locked rooms were found were initially thought to be storage places, only to later be found to evince evidence that people were housed there (I need to dig, pun intended, deeper into this issue of material culture support for confinement structure.)
At this point, we’re thrown into a web of political intrigue to rival Game of Thrones. Zedekiah, who we already know is viewed very unfavorably in this text, gets Jeremiah out and into his own house in secret, asking him for the prophesy. Jeremiah repeats his dire predictions about Babylon, also complaining, “how have I sinned against you, your servants, and this people, that you put me in jail?” Jeremiah points to the fact that, so far, his predictive ability exceeds that of other prophets, who mistakenly (or perhaps buoyed by his brief sojourn in Egypt) prophesied that the King of Babylon would not move against Jerusalem. Jeremiah begs Zedekiah: “Don’t send me back to sit in the house of Jonathan the scribe, so I will not die there.” Zedekiah relents and moves Jeremiah to a place called “hatzar ha’matarah.”
Commentators differ widely on how they perceive this new space, which is obviously better than the “bor” and “hanuyot” area. Malbim says that Jeremiah sat there of his own free will, meaning that it was not a confinement space. Chomat Anakh says that this was a “spacious place, and even though it was still a prison, Jeremiah was not sorry” about the change in his circumstances. Metzudat David says that “incarceration wasn’t so hard there” and adds an important detail: that Jeremiah received bread from the bakeries every day until the bread supply was depleted, from which we learn that hunger and deprivation was beginning to affect everyone on the outside, too. Steinsaltz refers to this place as a “detention camp of sorts,” identifying it with a prior mention of the same place in Jeremiah 32:2. If these two places are not telling of the same incident, this implies that hatzar ha’matarah might have been a permanent detention camp, whereas the “bor” and the “hanuyot” were ad-hoc places with worse conditions, perhaps fashioned specifically for Jeremiah.
The story doesn’t end there, because apparently Jeremiah continues to advocate surrendering to the Babylonians even from his confinement in hatzar ha’matarah. Ministers who hear him speak to the people (unclear whether in person or through a scribe) turn to Zedekiah, asking for Jeremiah to be executed “for he disheartens the solders who remain in this town and the people when he speaks thus to them, because this man does not speak for the benefit/welfare of these people, but for evil.” If one removes the religious, pro-Jeremiah filter from this incident, the ministers’ concern seems valid, especially when mitigated by the lens of a siege and the prospect of destruction. Anyway, Zedekiah gives in, with a heavy implication that these ministers are more powerful than him and he simply does not have the clout to oppose them.
The descriptions of what happens next are horrifyingly vivid. The ministers use ropes to lower Jeremiah into a pit within hatzar ha’matarah, which is said to belong to one of Zedekiah’s sons. The cistern does not have water; it has mire, and Jeremiah sinks into it. But not all his friends have abandoned him. Ebed-melech the Cushite (or the Ethiopian, depending on translation), who was a eunuch in the king’s service, hears of this, and complains to the king that Jeremiah is to unjustly die of hunger. Zedekiah changes course again, ordering Ebed-Melech to take thirty men and pull Jeremiah out of the cistern.
The text offers a detailed description of the mechanics of this liberation effort. Ebed-Melech proceeds to take rags from the treasury and lower them carefully into the cistern using ropes (commentators explain that he does this so as not to drench them in mire.) He then calls out to Jeremiah to wrap these rags under his armpits, between his skin and the ropes. Once Jeremiah pads his armpits, the men pull the ropes, getting him out of the cistern, and returning him to his less constrictive confinement at hatzar ha’matarah.
It’s hard to tell who Zedekiah is more afraid of: Jeremiah, who perhaps he believes is telling him the truth, or the ministers, who can bring him down. Perhaps his concern for Jeremiah’s welfare is part and parcel of his fear of the Babylonians and he, like his ministers, suspects that Jeremiah is in cahoots with them. In any case, he tries to eat the cake and leave it whole. He again brings Jeremiah in, in private, through the third entrance of the House of God, and asks him to tell him the truth. Jeremiah understandably hesitates: “If I tell you, you will kill me for sure, and if I offer advice, you won’t follow it.” After Zedekiah swears he will spare Jeremiah’s life and protect him from his enemies, and Jeremiah repeats his dire predictions about the Babylonian destruction of the city and his advice to surrender so as to save it. Perhaps inspired by his own recent predicament, Jeremiah uses the pit of mire as a metaphor for Zedekiah’s fate. Leslie Allen comments that the “two crises are linked as cause and effect. The rejection of the prophetic message that resulted in Jeremiah’s dire predicament, despite the partial amelioration granted by the king, was to land Zedekiah himself in a comparable predicament. . . Zedekiah rescued Jeremiah from mud, but the king’s friends had abandoned him to it.”
Zedekiah keeps his word: he does not return Jeremiah to Jonathan’s house, but rather to hatzar ha’matarah. He even instructs Jeremiah to lie to the ministers and obfuscate about the true nature of his conversation with the king. Jeremiah manages to effectively deceive the ministers about his royal interview, and as a consequence remains in hatzar ha’matarah until the city falls. Notably, Zedekiah does not actually follow Jeremiah’s advice, and as a consequence sees his sons executed before he is blinded by the conqueror. Jeremiah fares better under the new empire–Nebuchadnezzar orders his captains and eunuchs to set him free, which they do, and he continues to prophesy to the freshly defeated people.
There are several remarkable features to this story. The first is the detailed, quasi-documentary description of the various confinement facilities: a pit, or pits; cells, or makeshift cells from converted storage rooms; a home converted into a makeshift facility as the worst location; an easier detention center. We are provided the minutia of lowering someone to the pit and elevating them from it, including the humane (?) measure of padding their armpits so they are not cut by the ropes. We are also told, akin to what we saw in Daniel’s story, details about food rationing, which are especially important during the miseries of a siege. And, we are offered a window into the use of incarceration as a tool in political conflict and intrigue, in which even the incarcerated person holds some modicum of negotiation power and how that plays into the reversals of fortune in the story.
This story is also a microcosm, a window into Zedekiah’s court. One thing I notice about all these exilic incarceration stories is the way the biblical authors use them: as a good index of quality of governance, akin to the well-known Tolstoy maxim. Lovers of Michel Foucault’s Discipline and Punish will remember his foundational distinction between punishment in antiquity (dramatic, violent, centralized) and punishment in modernity (decentralized, vague, aimed at the soul, normalizing, self-monitored). Foucault saw the prison as the epitome of a modern way of punishment, identifying earlier historical periods with corporal punishment. I think that descriptions of prison in antiquity both strengthen and challenge his framework. On one hand, incarceration stories tend to portray the regimes that run the prisons (Egypt, Persia, Babylon) and jails as capricious, risky, easily swayed by things like dreams or conspiracies, and spiteful. The power of incarceration is centralized and brutal. On the other hand, these are, undoubtedly, prisons. The sources do not make the distinction that modern penologists (including Foucault) make between prisons and corporal punishment. In other words, they support what I’ve come to see as true since we wrote Fester: incarceration IS corporal punishment. It can come in different flavors: it could be a drab, gray, vague experience at a modern juvenile facility that destroys the soul and makes people obedient and docile, or it can be the drama of throwing a particular person into a pit of mire and getting him out. But both are incarceration. We can, and should, revisit Discipline and Punish by decoupling prisons from modernity, and by seeing incarceration modes not as a historical rift, but along a historical continuum.
