The Talmud against Foucault: The Status and Significance of Judicial Confession in Jewish Criminal Law

In his lectures to the radical jurists of Louvain, Wrong-doing, Truth-Telling (1981), Michel Foucault achieved an archeology of the confession in Western thought. From his investigation, he drew several conclusions, the main one being that the centrality of the confession, both to the justice system and to society in large, comes from the Christian paradigm of the penitential practice. Our claim is that these conclusions allow us to understand the reason behind the confession’s disqualification in Jewish criminal law. The Talmud, for example, rejects the continuity between religious and judicial confession: there is a gap between vidoui, a private act in an intimate process of repentance and hodaa, a public and “dramaturgic” act of self-incrimination. According to Foucault, the judicial confession stands at the frontier between the traditional accusatory procedure and the inquisitorial quest. It is therefore an ordalic remnant integrated into the very foundation of Western criminal law. The repudiation of the confession in dinei nefashot could as well correspond to a nullification by the Sages of Talmud of the biblical ordeal residues. The confession is also an act whose effectiveness is at the root of the punitive system: it endorses the “punitive pact” by the accused, and gives meaning and legitimacy to the punishment. The Talmud deliberately chooses to establish the rules of criminal evidence on a breach: the absence of the “confessing subject” and consequently on a lack of proper legitimation. We propose a theological and philosophical interpretation of this void.