Developing a Jewish Theology Regarding Torture

The Torah-the first book of Jewish instruction-mandates the Sabbath as, among other things, an act of remembrance: remembrance of creation and remembrance of the Exodus. Deuteronomy 5:12-14 reads:

Observe the Sabbath day and keep it holy, as the Lord your God has commanded you. Six days you shall labor and do all your work, but the seventh day is a Sabbath of the Lord your God, you shall not do any work-you, your son or your daughter, your male or female servant, your ox or your ass, or any of your cattle, or the stranger in your settlements so that your male and female servant may rest as you do. Remember that you were a slave in the land of Egypt and the Lord your God freed you from there with a mighty hand and an outstretched arm; therefore the Lord your God has commanded you to observe the Sabbath day.1

Remember your own history of oppression, so that you learn not to oppress others.

In this telling of the fourth commandment, the motive for the Sabbath is so that the least of you may have some rest. The reason why all work must stop is that if it did not, you might be able to arrange for your own rest-you would take off from work whenever you needed to-but the least among you, the servant, might be given the work that you are not doing. The Sabbath then is instituted to protect the poor and powerless who might otherwise never be given rest. This is the condition of slavery that you once experienced; oppressive, unceasing labor. What you should have learned from that experience is how easily abused the powerless are. In the Torah, it is consistently the memory of slavery in Egypt and the Exodus from Egypt that serve as the warrant for the care of the poor and the stranger.

Interestingly, the story of the Exodus, to which the Sabbath is intimately connected, in fact begins with the following verses:

A new king arose over the land of Egypt who did not know Joseph. And he said to his people, "Look, the Israelite people are much too numerous for us. Let us deal shrewdly with them, so that they may not increase; otherwise in the event of war they may join our enemies in fighting against us and rise up from the ground." (Exod 1:8-10)

So the slavery of the Jewish people begins with: first, defining a people as "other"; second, seeing them as potential enemies; and finally, enslaving this "other" and defining it as self-protection.

Note the prescience of these verses. Over and over, Jews would be persecuted on the same grounds: Suspicion of their otherness allowed people to define Jews as outside of the "pale," and then as enemies of the state, so that in the end, having been declassified from the protections of citizenship, Jews were persecuted, enslaved, and not infrequently tortured. Grisly records exist of torture by the Inquisition, of pogroms perpetrated by Russians, Ukrainians, and Poles, and of twentieth-century horrors committed by Germans and their allies. These persecutions all had the same quality: First, the larger culture defined a group of people as other, then they were seen as enemies, and finally all was permitted in the war against them. The Nazis did not begin with the slaughter of Jews but with the cultural creation of otherness and enmity. The Jew had to be defined outside of the human family before the slaughter could begin, before all could be permitted. And we must never forget that the Inquisition and Nazism had at least this in common: Both of them thought that they were engaging in heroic work to bring a better future.

In speaking about torture in our synagogue in Amherst over the High Holy Days, I once read a portion of a transcript from a torture session of the Spanish Inquisition. In this passage, a female victim of the Inquisition keeps on repeating again and again-she is in obvious pain as the inquisitor keeps on ordering one turn of the screw and then another-"Tell me what you want me to say. I will say anything you want, señor." A woman in our congregation later protested against my sermon because she said that it had upset her fourteen-year-old son. It is human nature to want to suppress that which is painful. But if we are part of a culture inflicting suffering, then we are commanded to remember-to remember our own painful stories and to keep in mind the knowledge of the suffering of others.  Remember.

The other remembrance the Sabbath asks us to engage in is the remembrance of creation: The version of the Decalogue in Exodus offers as the reason for the observance of the Sabbath that it re-creates the pattern of creation. We are to live with the knowledge that all of life is a gift and that each person is created in the image of God.  The Mishnah, that first great compendium of rabbinic teaching, teaches as follows:

Why was Adam created singly: to teach you that if anyone destroys one soul, scripture considers it as if a whole world was destroyed, and if anyone save a person's life then scripture considers it as if a whole world was maintained. Also, for the sake of peace between peoples, that no person could say my ancestry is greater than yours and so that no one should say that there is more than one creator. How great is the Holy One, for a person creates many coins from the same mold and they are all similar to each other, but the sovereign of the universe, the Holy One, forms each human in the mold of that first person but no human being is like another. Therefore every human being must say: the world was created for me.2

Interestingly, the context of this dictum in the Mishnah is the warning that the court is to give to witnesses in a capital case to take care with their words, because a life is at stake. What is being argued for here is the sacredness of the life of the suspected criminal. This person who is on trial is in the image of God. It was for this person that the world was created. In Jewish readings of the text of Genesis, that sense of the sacredness of each human being is not simply confined to some inner being-the soul of a person-but the very body of the person. And so it is not surprising to read the following command regarding the criminal: "If a person is guilty of a capital offense and is put to death, and you impale the person on a stake, you must not let the corpse remain on the stake overnight, but must bury the corpse the same day. For an impaled body is an affront to God: You shall not defile the land the Lord your God is giving you to possess" (Deut 21:22-23).

Note again that we are talking here of the body of a criminal. Yet in the biblical account the body of this person is no less sacred that that of any other person. Indeed, Jewish burial practice is derived from this law, and burial for everyone is done as quickly as possible. In other words, the treatment of the criminal becomes the norm of how we treat everyone. Just as the Sabbath was instituted for the protection of the slave, yet becomes the norm for all Israel, so now the treatment of the body of the criminal becomes the norm for all. How we treat the least of society is the standard for how everyone ought to be treated.  The test of law becomes how the least amongst you is treated.

Significantly, the midrash adds the following footnote to the biblical verses we have just read: "This injunction of the Bible is meant to prevent the kind of behavior the government adopts nowadays."3 The midrash is specifically commenting on the Roman practice of a torturous death in which bodies were displayed on posts for days. The rabbis applied the biblical exhortation to respect the person of the criminal in their own opposition and criticism  of governmental practice in their day.

Instead of Roman practice, what the rabbis of the midrash and the Mishnah formulated were behaviors that would honor human beings in both body and spirit. They defined this as a principle of Jewish law: kavod habriot, the need to honor the person of all living beings.

What torture seeks to do is the opposite of the application of this principle. Rather than honoring the prisoner as a fellow human being, the prisoner is to be broken, and the means to do this is the infliction of pain and degradation. Many cases of torture, such as those practiced at Abu Ghraib, are simply committed to humiliate the captive-physically, mentally, sexually, and religiously. Some of what occurred and continues to occur is simply the expression of raw hatred and revenge. Some of it manifests the worst kinds of ethnic and religious bigotry. Muslims or Arabs or Asians are seen as other, as not having the same commitments to life and human dignity that we do; therefore, they need to be treated differently than we would treat Westerners. Whatever the motive, what is intended is the reduction of the other, the captive, the one in my possession, to powerlessness so that he or she and I both know that I am superior.

Torture  by interrogators may be more cold blooded than that exercised by guards or military police, but it has some of the same features. What we seek to do by torturing prisoners is to take away their will, their choice. We wish to rule over them totally so that they will tell us all we want. We want to take over their will, deprive them of choice. We want them to betray themselves, to betray what they most believe in, to betray what they hold sacred, to betray their own sense of honor. We want to shame them. We disorient them by sleep deprivation or by application of heat or cold. We make them beg for food. We use physical pain to make them "go out of their mind." We want to deprive them of their fundamental self-respect, their autonomy, their rationality, their will. We want to take away from them those fundamental aspects by which we define our humanity. Not infrequently, to have been subject to torture is to be harmed for life, because the very meaning of life has been so fundamentally challenged.

There is another way of relating to one's enemies. I was present at a swearing-in ceremony for Israeli soldiers that took place on an army base after basic training. The chaplain who spoke at the service said to these soldiers: "Do not ever refer to the people whom you fight by slang epithets. Do not even refer to them as Arabs, because you are not fighting all Arabs. The people whom you fight are presently your opponents, but you must always believe that one day they may be your friends." It was an extraordinary statement by an army chaplain. It was  extraordinary for soldiers to hear this as they swore to do their duty for their country. .

The contemporary Jewish philosopher Emmanuel Levinas, who was himself imprisoned by the Germans who occupied France, characteristically remarked, "To be able to see in the face of the other, in the face of those who would try to kill me, in the face of the criminal, the face of God, this is the hardest challenge of the religious enterprise."4 Levinas insisted that he had a moral responsibility even toward the Nazi captain who commanded his work camp.

The Jew who observes the Sabbath is taught that there are limits that have to be placed on what he or she wants to do. Indeed, the Jewish commitment to law is fundamentally based on an understanding of the need for limits. Levinas argues that all of Jewish religious law is a way of channeling our raw emotions and directing us toward an appreciation of otherness.

The theological understandings and the historical remembrances that I have outlined here animated the Israeli Supreme Court to outlaw the use of torture in its 1999 decision. Previously an Israeli commission had allowed the use of torture under some extreme circumstances-the ticking bomb, for example. But the Supreme Court found that once exceptions were made, security services used this loophole to apply the exemption more broadly so that torture became widely used in interrogation processes. So the Supreme Court of Israel found it necessary to make its findings absolute and said as much in its decision:

This is the destiny of democracy-it does not see all means as acceptable, and the ways of its enemies are not always open before it. A democracy must sometimes fight with one hand tied behind its back. Even so, a democracy has the upper hand. The rule of law and the liberty of an individual constitute important components in its understanding of security.

Originally published in Theology Today.