Spielberg's 'Pre-Crime' in the World of the Rabbis

Spielberg’s ‘Minority Report’ depicts a terrifying future in which individuals are arrested and punished for murders they have not (yet) committed (‘pre-crime’). The police believe that they can foresee these terrible crimes with absolute certainty, yet what of free choice? Can the future really be read like a book? Few people realise that this terrifying system forms a central part of Jewish law; while in Spielberg’s world the potential murderers are put in suspended animation, the only rabbinic punishment for pre-crime is death. Our story begins in this week’s parasha of Ki-Teze, with the laws of the ‘Wayward and Defiant Son’,

¹⁸ If a man has a wayward and defiant son (‘ben sorer umoreh’), who does not heed his father or mother and does not obey them even after they discipline him, ¹⁹ his father and mother shall take hold of him and bring him out to the elders of his town at the public place of his community. ²⁰ They shall say to the elders of his town, "This son of ours is disloyal and defiant; he does not heed us. He is a glutton and a drunkard." ²¹ Thereupon the men of his town shall stone him to death. Thus you will sweep out evil from your midst: all Israel will hear and be afraid. (Deut. 21.18-21)

The first question facing the reader of this shocking text[1] is, what crime precisely has the son committed? At first (v. 18) it seems that the crime is disobeying his parents, whereas when his parents stand before the elders they add that “he’s a glutton and a drunkard” (v. 20). The rabbis, selecting the latter of these two options, conclude that the son is punished specifically for being ‘a glutton and a drunkard’; they reason that it is morally unthinkable that the Torah could allow a son to be put to death for disobeying a simple parental instruction[2]. However, even by dodging the bigger moral problem, the rabbis find the alternative, no less problematic:

Rabbi Jose the Galilean said: Because he ate a Tarteymar of meat and [a mere] 0.17 litres of Italian wine the Torah said he will go out to the court and be stoned!? Rather, the Torah concluded [according] to the future actions of the wayward and rebellious son, for in the end, [once] he finishes off his father’s funds, seeks [resources to continue] his addiction and doesn’t find them, he will go out to the crossroads and rob people[3].

The rabbis refuse to believe that the act of eating some meat and drinking some wine[4] could possibly warrant the death penalty, even if that is exactly what the Torah says (by their reading); according to their moral compass the punishment simply does not fit the crime. It is out of desperation at this conundrum that the rabbis launch themselves into the world of pre-crime: if the son steals[5] happy-meal size[6] amounts of meat and wine from his parents, this demonstrates a pattern of behaviour that will repeat itself over and over, until he can no longer support his addiction stealing from his parents’ pockets and becomes a highway robber. The rabbis are so confident that they can predict his future actions with certainty that they are willing to have him executed on the second occasion that this moderate booze-up occurs[7]!

All of this may sound rather far-fetched, but the reality may be even more shocking. During the crusades, many Jewish families committed suicide out of fear that they would be butchered by Christian mobs and their children converted; parents felt compelled to slit their own children’s throats. For hundreds of years afterwards, authorities on Jewish law struggled with these events; some tried to justify the actions of these parents, while others condemned them. One authority justified their actions based on the passage we have just read:

…They relied on this [source] to kill their children at the time of the decree [i.e. times of emergency during the crusades] for [the children] cannot distinguish between good and evil. We are afraid lest they settle amongst the gentiles of their nation as they grow up; better that they die innocent and not die guilty, for thus have we found concerning the Defiant and Wayward Son, that because his future actions would be to rob people and transgress Sabbaths, he is [put to death] with stoning…[8]

This is a very weak analogy indeed; the transgression of Sabbaths (not found in our passage) constitutes no threat to society whatsoever and as such cannot be considered within the rabbinic pre-crime framework (see below). Thus, this twist on our passage seems unacceptable from a legal standpoint, whatever it was used to justify. In fact, today we know that most of these parents probably justified their actions by comparison with the events at Masada as recounted by the medieval ‘Yosippon’ (a frum reworking of Josephus), which they regarded as an authoritative work of Jewish law/lore[9]. However, the rabbinic pre-crime enterprise did not stop with the ‘Wayward and Defiant Son’ and is basic to a number of well-known laws, such as the laws of Rodef (‘the pursuer’). The main pre-crime corpus is found in the 8^th chapter of Mishnah Sanhedrin,

(5) The Wayward and Defiant Son is judged according to his future actions. He should die innocent and not die guilty, for the death of the wicked is good for them and good for the world and that of the righteous is bad for them and bad for the world…

(7) These are they whose souls we save: one who pursues (‘rodef’) his fellow (to murder him), the male [to rape him] or the engaged woman [to rape her].

But, one who pursues the animal [to bestialise it], who violates the Sabbath or who engages in foreign worship: we do not save their souls[10].

This passage conjures up a host of new theological questions: are we killing off the Wayward and Defiant Son for the good of ‘the world’ or for his own spiritual welfare, so that ‘he should die innocent and not die guilty’? In the second section of our passage, whose soul is it we are ‘saving’ exactly: that of the pursuer (so that he should die innocent) or that of the pursued (so that he should not die at all)? For several reasons[11] it seems more likely that the phrase ‘save their souls’ here refers to the pursuer (other sources differ[12]); the rabbis were willing to kill in order to keep people’s souls clean. The salient point of this passage, however, is that pre-crime only applies when a person’s actions will significantly harm another person or society as a whole; the rabbis do not apply pre-crime in cases where a person wishes to harm only themselves (e.g. by bestiality, the transgression of the Sabbath, or idol worship). The similarity to John Stuart Mill’s ‘Harm Principle’[13] here, a foundational principle of modern liberal democracies, is especially striking.

Amongst this rabbinic framework of pre-crime we have uncovered, readers will still be most distressed by the case of the Wayward and Defiant Son: whereas in all of our other cases the threat is so immediate that the label ‘pre-crime’ barely applies, the case of the Wayward and Defiant Son involves the prediction of patterns of behaviour many years down the line - no exact science! Arguably the redactor of the Mishnah deliberately juxtaposed it with the others precisely to make it seem more reasonable! One thought, however, is comforting; from the very earliest strata of rabbinic law[14] there is a tendency to restrict the circumstances under which the law is applied to the point of making a conviction impossible, effectively ‘ruling the law out of existence’.

What does [the Mishnah] mean when it says [that the son cannot be convicted if his mother is] ‘not suitable’ [to his father]?...It means that they must be equal. Such has also been taught in an external tradition:

‘Rabbi Judah says: “If his mother is not equal to his father in voice, height and appearance, he is not convicted as a Wayward and Defiant Son”. What is the reason [for this restriction]? Scripture states “He does not heed our voice”, due to the fact that their voices must sound the same [because it states “our voice”] so too must their appearance and height be the same’.

Whose approach does this external tradition exhibit? [It exhibits the same approach as that seen in the following external tradition:]

The case of the Wayward and Defiant Son never occurred and never will occur. Why then was it written [in the Torah]? Expound it and receive reward!’…

Rabbi Jonathan said, “I saw [the Wayward and Defiant Son convicted] and sat on his grave”![15]

Rabbi Judah’s impossible restrictions on the parents of the Wayward and Defiant Son deliberately make the law impossible to implement; this is recognised by the narrator who associates him with the position that ‘the case of the Wayward and Defiant Son never occurred and never will occur’. A plain law of Deuteronomy is turned into a scholarly curiosity but not only because it is deeply troubling on the moral plain[16]; just as Spielberg’s ‘Minority Report’ concludes that the future is difficult to predict with certainty, so did (many of) the rabbis.

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Thanks go to my havruta Jesse Marglin alongside Rabbi Dudi Goshen, Bethany Boyd, Steve Slater and Hannah Sassoon, for teaching me these sources over many early mornings, long afternoons and late nights. I am also significantly indebted to Prof. Moshe Halbertal’s Revolutions in Exegesis as They Came to Be: Values as Exegetical Factors in Midrash Halakha (Heb) for much of what follows.

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[1] This text may be shocking to us but it is not shocking at all within the larger biblical picture, it might even be considered relatively tame. Early biblical theology posited familial collective responsibility: children could be punished for the sins of their forbears (Exodus 20.3-5, 34.5-7) and children could be incinerated as a result of their fathers’ crimes (Joshua 7.24-25). What we might call the ‘right to life’ was not considered innate but rather flowed from the individual’s membership of the family unit, thus in three distinct biblical cases the patriarch of the family orders/permits the killing of one of their subordinate family members (Genesis 31.32, 38.24, 42.37). This is reinforced by the prohibition in Exodus (21.17) against cursing one’s father and mother; disrespect to those whom one owed one’s ‘Right to Life’ to was punished by death. Our text of the Wayward and Defiant Son already represents a departure from this early biblical theology; it demands a full judicial procedure including a trial before the ‘elders of his town’ and that the sentence be carried out by the ‘men of his town’, a far cry from the expected summary execution. In a further development to the theology expressed in Exodus, Deuteronomy does not permit children to die for the sins of their forbears (Deuteronomy 24.16 and so too Jeremiah 31.28-29; Ezekiel 18.2-4; 2 Kings 14.6).

[2] ‘He does not heed his father or mother’; it would be possible [to convict him] even if his father and mother [only] told him to light a candle and he did not light it. [The verse] therefore teaches ‘he does not heed’ [a second time] to create an ‘Equation by Association’ (‘Gezerah Shava’). Just as in [the second] ‘he does not heed’ mentioned below ‘he is a glutton and a drunkard’, so too in [the first] ‘he does not heed’ mentioned here ‘he is a glutton and a drunkard’. (Sifre Deuteronomy 218 – Ed. Finkelstein)

This follows the 5^th of Hillel’s Principles of Exegesis (numbered as the 4^th of Rabbi Ishmael’s Principles of Exegesis – see p. 51 in the Artscroll Siddur) which states that in a case where a generalisation is followed by a specification, the rule only applies to that specification. However, in the midrash cited above it is the moral problem that seems to be decisive rather than any exegetical principal.

[3] Midrash Tannaim on Deut. 21.21 (Ed. Hoffman)

[4] The rabbis take ‘a glutton and a drunkard’ to refer specifically to meat and wine due to an inner-biblical midrash found in the book of Proverbs: ¹⁹ Listen, my son, and get wisdom; Lead your mind in a proper path. ²⁰ Do not be of those who guzzle wine, Or glut themselves on meat; ²¹ For guzzlers and gluttons will be impoverished, And drowsing will clothe you in tatters. ²² Listen to your father who begot you; Do not disdain your mother when she is old. (Proverbs 23.19-22) This passage, full of allusions to our text of the Defiant and Wayward Son, portrays meat and wine as the paradigmatic foci of inebriation and gluttony. The specific quantities mentioned here (so too, see Mishnah Sanhedrin 8.2) are selected by the rabbis to represent typical rather than excessive consumption because they are concerned about patterns of behavior that will repeat themselves, as will be explained. The conversion of these quantities ‘half a log’ is notoriously difficult, I have provided the conversion here tentatively as an illustration of the quantities depicted.

[5] Both the Sifre (Deuteronomy 218 – Ed. Finkelstein) and the Mishnah (Sanhedrin 8.3) assume that this is so. What is striking about the Mishnah’s criteria for this theft is its acute awareness of the psychology of addiction. Only theft from parents and consumption amongst others is likely to be reflective of what will ultimately be a socially destructive pattern of behaviour.

[6] See note 4 above.

[7] Mishnah Sanhedrin 8.4

[8] The ‘Smak’ of Zurich – Commandment 6.19 (?), quoted in Halbertal, Revolutions in Exegesis as They Came to Be: Values as Exegetical Factors in Midrash Halakha (Heb) pp. 50-51 f. 15.

[9] Cited as authoritative many times by the classical commentators on the Bible and Talmud, especially Rashi. See Rashi to 2 Kings 20.13; Isaiah 21.4, 39.2; Zechariah 9.14; Daniel 5.1, 8.21, 11.17,18,23,30; 1 Chronicles 11.17. Rashbam to Genesis 36.31. Ramban to Genesis 32.4, 49.31. Radak to 1 Kings 19.2. However, some of these references may have been added by later editors.

[10] M. Sanhedrin 8.5, 7 – The tangent at the end of mishnah 5 was off topic while mishnah 6 was not cited for the sake of brevity. However, note that the tunneller of mishnah 6 provides the link between ‘future actions’ and the immediacy of ‘save their souls’.

[11] Firstly because the subject of ‘these are they whose souls we save’ is most naturally the pursuer and secondly because there is no ‘soul’ of the pursued to save in the second clause of mishnah 7. Thirdly, the introduction of the idea in mishnah 5 that the death of the Defiant and Wayward Son is ‘good for [him] and good for the world’ makes it extremely likely that a parallel sentiment is to be expected in mishnah 7.

[12] The Sifre to Deuteronomy uses the term differently: …‘[but you shall do nothing to the girl. The girl did not incur the death penalty,] for the case is like that of a man attacking another and murdering him’ (Deut. 22.26) - This teaches that all of the rape victims in the Torah are exempt [from punishment] and we save their souls. (Sifre Deuteronomy 243 – Ed. Finkelstein)

[13] http://en.wikipedia.org/wiki/Harm_principle

[14] Such might arguably be seen in Sifre Deuteronomy 218 – Ed. Finkelstein (quoted above, note 2) and is also fairly obvious in the first mishnah on the Defiant and Wayward Son, Mishnah Sanhedrin 8.1.

[15] BT Sanhedrin 71a. Note also the tendency to state that the law, though morally difficult, simply cannot be understood ‘for it is a decree of a king’ (Tosefta Sanhedrin 11.6), along the lines of ‘ours is not to reason why, ours is but to do and die’ (Byron, The Charge of the Light Brigade).

[16] As suggested by many commentators. See Eliezer Berkovits’ classic ‘Not in Heaven’.