The Crown and the Courts

David C. Flatto

• Publisher: Harvard University Press
• Year: 2020
• ISBN:
  9780674249585
• Topic: Jura
• Subtopic: Rechtsgeschichte

A scholar of law and religion uncovers a surprising origin story behind the idea of the separation of powers. The separation of powers is a bedrock of modern constitutionalism, but striking antecedents were developed centuries earlier, by Jewish scholars and rabbis of antiquity. Attending carefully to their seminal works and the historical milieu, David Flatto shows how a foundation of democratic rule was contemplated and justified long before liberal democracy was born.During the formative Second Temple and early rabbinic eras (the fourth century BCE to the third century CE), Jewish thinkers had to confront the nature of legal authority from the standpoint of the disempowered. Jews struggled against the idea that a legal authority stemming from God could reside in the hands of an imperious ruler (even a hypothetical Judaic monarch). Instead scholars and rabbis argued that such authority lay with independent courts and the law itself. Over time, they proposed various permutations of this ideal. Many of these envisioned distinct juridical and political powers, with a supreme law demarcating the respective jurisdictions of each sphere. Flatto explores key Second Temple and rabbinic writings—the Qumran scrolls; the philosophy and history of Philo and Josephus; the Mishnah, Tosefta, Midrash, and Talmud—to uncover these transformative notions of governance. The Crown and the Courts argues that by proclaiming the supremacy of law in the absence of power, postbiblical thinkers emphasized the centrality of law in the people's covenant with God, helping to revitalize Jewish life and establish allegiance to legal order. These scholars proved not only creative but also prescient. Their profound ideas about the autonomy of law reverberate to this day.

Part One

Second Temple Literature

1

Postbiblical Jurisprudence

The two strands of biblical jurisprudence examined in the Introduction resurface throughout late biblical and postbiblical literature.¹ Given the centrality of the royalist strand in the Bible, its recurrence in subsequent strata is to be anticipated. By contrast, the strong resonance of the Deuteronomic tradition in postbiblical literature eclipses all expectations. What constitutes a marginal strand in the Bible becomes the dominant form of jurisprudence in these later corpora.

This chapter opens with a pair of contrasting Second Temple texts,² which respectively accentuate the two strands of jurisprudence that recur in postbiblical literature. Whereas the Psalms of Solomon (PS) extol the ideal reign of an absolutist king who promotes justice, Hecataeus proclaims the Jewish rejection of kingship³ and the adoption of the leadership of priestly judges. So while PS follow the regnant scheme, Hecataeus presents a stark opposition between two modes of administration, and situates Jewish tradition on the nonroyalist side of the divide. Often considered a perplexing account, Hecataeus in fact portends the direction of much of postbiblical jurisprudence.

Propelling this surprising jurisprudential turn in subsequent phases is the decisive exegetical choice to build upon Deuteronomy 17 (the Hecataeus passage itself has no clear biblical antecedents). The next section in this chapter surveys the afterlife of this biblical source in the writings of Philo, Qumran, Josephus, and the rabbis, and serves as a portal into their broader jurisprudential ideas that will be analyzed throughout this book. Unlike the categorical formulations of PS and Hecataeus, these latter writings revise and transform Deuteronomy’s teaching, and span a hermeneutic spectrum. Yet they each amplify essential aspects of Deuteronomy’s unique juridical vision, and significantly advance its broader conception of law’s autonomy.

Two Strands in Second Temple Literature

Psalms of Solomon

Among a collection of psalms composed in the wake of the Roman invasion of Judea in the first century BCE,⁴ PS 17 offers an extended supplication for a Davidic messiah. The particulars of this psalm express a sweeping and spectacular royal ideology.⁵ What should be underlined in this context is how the psalmist associates the future scion’s flourishing rule with (a unique mode of) legal supremacy. In the psalmist’s vision, the exalted sovereign will embody righteousness and accordingly execute justice throughout the land.⁶

After decrying the sinfulness of the people of Jerusalem who usurped the Davidic throne and installed a prideful imposter (17:5–6), and attesting to the latter’s ouster by an alien empire led by a rogue king and disobedient judge (17:19–20),⁷ the psalmist petitions for a different kind of leader: “See, Lord, and raise up for them their kin, the son of David, to rule over your servant Israel” (17:21). The next verses beseech God to endow the messianic king with ideal spiritual qualities in order to lead the righteous and vanquish the wicked. “Undergird him … in wisdom and in righteousness to drive out the sinners from the inheritance; to smash the arrogance of sinners like a potter’s jar; to shatter all their substance with an iron rod; to destroy the unlawful nations with the word of his mouth … and he will condemn the sinners by the thoughts of their hearts. He will gather a holy people whom he will lead in righteousness” (17:22–26). After purging society of its sinners and vices, the king will assume the supreme role of a judge-ruler, “and he will judge the tribes of the people that have been made holy by the Lord their God. He will not tolerate unrighteousness (even) to pause among them, and any person who knows wickedness shall not live with them.… He will judge peoples and nations in the wisdom of his righteousness” (17:22–29).

In the continuation, the psalm lauds the future king’s singular virtuosity, to the point of depicting him as flawless⁸—“he himself (will be) free from sin, (in order) to rule a great people” (17:36). The king’s pure character will drive him to perpetually eradicate evil from his kingdom. “He will expose officials and drive out sinners by the strength of his word. And he will not weaken in his days” (17:36–37). The eschatological king will henceforth reign in glory, instructing and judging the people. “This is the beauty of the king of Israel which God knew, to raise him over the house of Israel. His words will be purer than the finest gold, the best. He will judge the peoples in the assemblies, the tribes of the sanctified. His words will be the words of the holy ones, among sanctified peoples” (17:42–43). Pristine and peerless, the messianic sovereign will dispense wisdom and justice to the world.

The biblical roots of the extraordinary theological-political vision of PS 17 are pronounced. Drawing on passages such as Isaiah 11, Psalms 2 and 72,⁹ PS 17 concentrates some of the most avowedly royalist materials in Scripture. Building upon this scriptural foundation, PS 17 formulates a distinctive response to political realities of the second and first centuries BCE. Deeply critical of the Hasmonean dynasty,¹⁰ the psalmist calls for a restoration of the Davidic dynasty.¹¹ In this respect, PS 17 differs from the principal Qumran opposition to the Hasmoneans, which focuses on transforming the priesthood rather than on reconstituting the monarchy (see Chapter 3). A second factor that informs the political conception of PS 17 is the confrontation of Judeans with Roman expansion and power. Traces of both of these influences can already be detected at the outset of PS 17 in the vehement denunciation of non-Davidic leaders (17:5–10), followed by the protest against the foreign powers who replaced them (17:11–14, 19–20).

The longing for a messianic ruler from the House of David, thus, encapsulates an intense yearning for an alternate religious and political landscape. Tellingly, the psalmist’s redemptive vision encompasses a transformation of the social and legal order. Elaborating upon the primary strand of the Bible’s jurisprudence, the psalmist petitions for a superior king to achieve this dramatic overhaul by reigning through sheer justice.

Hecataeus

A model of Jewish leadership and a jurisprudence that is the polar opposite from the royalism of PS 17 can be found in an excursus on the Jews that appears in the late fourth-century-BCE work “On the Egyptians” by the Greek author Hecataeus.¹² While there is considerable debate about the authenticity and dating of this passage, Bezalel Bar Kochva has recently defended the attribution to Hecataeus,¹³ which would make this the oldest known account of Jewish origins in Greek literature (dating from the beginning of the Hellenistic period). For present purposes, what is of special interest is the passage’s unique description of the political and juridical system of the Jews.¹⁴ Employing standard Greek tropes about colonization and the establishment of institutions to govern the lives of settlers,¹⁵ Hecataeus portrays Moses’s leadership of the Jews who migrated from Egypt to settle Judea in the following terms: “The colony was headed by a man called Moses, outstanding both for his wisdom and for his courage. On taking possession of the land, he founded … Jerusalem. In addition, he established the temple that they hold in chief veneration, instituted their forms of worship and ritual, drew up the laws, and ordered their political institutions.”

Mistakenly attributing a range of actions to the single figure of Moses,¹⁶ Hecataeus describes him as the founder of the polity and giver of the law. Even more curious are his subsequent remarks about the nature of the Jewish polity.

He picked out the men of most refinement and with the greatest ability to head the entire nation, and appointed them priests; and he ordained that they should occupy themselves with the temple and the honors and sacrifices offered to their God. These same men he appointed to be judges in all major disputes, and entrusted to them the guardianship of the laws and customs. For this reason the Jews never have a king, and authority over the people is regularly vested in whichever priest is regarded as superior to his colleagues in wisdom and virtue. (emphasis added)

Notice how Hecataeus depicts the priestly leaders as masters of the law. The excerpt then concludes by describing the high priest, who heads the priestly caste and leads the Jews by way of his supreme legal authority.

They call this man the high priest, and believe that he acts as a messenger to them of God’s commandments. It is he, we are told, who in their assemblies and other gatherings announces what is ordained, and the Jews are so docile in such matters that straightaway they fall to the ground and do reverence to the high priest when he expounds the commandments to them. And at the end of their laws there is even appended the statement: “These are the words that Moses heard from God and declares unto the Jews.”¹⁷

Among several puzzling details in this account, perhaps the most bizarre and intriguing is Hecataeus’s claim that the Jews never have a king, and that instead priestly jurists assume authority over the Jews.¹⁸ The blatant inaccuracy of this remark has disturbed scholars, and several have concluded (for numerous reasons) that this entire passage is a later interpolation.¹⁹ Others have even proposed that a Jewish informant deliberately misinformed Hecataeus for programmatic purposes.²⁰ Hecataeus’s description of Jewish leadership must have also surprised his broader audience. Living during the late fourth century BCE, Hecataeus writes from within a Hellenistic world led by kings.²¹ The importance of Hecataeus’s description, though, lies not in its factual accuracy or wider currency, but instead in his perceptive intuition that Jewish ideology supports a unique form of governance.²² Characterizing Jewish sovereignty as being led by priestly judges in lieu of a king, Hecataeus essentially articulates a version of the stronger thesis described in the Introduction, and thereby anticipates a future strand of Jewish thought that elevates sacral law over and against absolute power.

In this vein, the afterlife of Hecataeus’s account is also noteworthy, as Bar Kochva has pointed out.²³ Preserved ...