Politics and the Limits of Law: Secularizing the Political in Medieval Jewish Thought

POLITICS AND THE LIMITS OF LAW

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Nostalg ia Jew ishness is a lullaby for old men gumming soaked white bread.  .         ,

CONTRAVERSIONS JEWS AND OTHER DIFFERENCES

DANIEL BOYARIN, CHANA KRONFELD, AND NAOMI SEIDMAN,

EDITORS

The task of “ The Science of Judaism” is to g ive Judaism a decent bur ial.                    , founder of nine tee nth-ce ntur y philolog ical Jew ish Studies

moder nist Yiddish poe t

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POLITICS AND THE LIMITS OF LAW secularizing the political in medieval jewish thought

MENACHEM LORBERBAUM

Stanford Universit y Press • Stanford, Califor nia

Stanford University Press Stanford, California ©  by the Board of Trustees of the Leland Stanford Junior University Printed in the United States of America on acid free, archival-quality paper. Library of Congress Cataloging-in-Publication Data Lorberbaum, Menachem Politics and the limits of law : secularizing the political in medieval Jewish thought / Menachem Lorberbaum. p. cm. — (Contraversions) Includes bibliographical references and index.  --- (alk. paper) . Judaism and politics—History—To . . Maimonides, Moses, ‒—Contributions in political science. . Nissim ben Reuben Gerondi, ?‒—Contributions in political science. I. Title. II. Contraversions (Stanford, Calif.) .   .''—dc  Original printing  Last figure below indicates year of this printing:           Typeset by James P. Brommer in /. Minion and Copperplate

ACKNOWLEDGMENTS

     has benefited from the generosity of many individuals and institutions, and I would like to express my gratitude for the friendship and encouragement I have received. David Hartman created the Shalom Hartman Institute in Jerusalem, a spiritual community where the ideas I have written about could freely be explored and discussed. I thank him for his nurture and support and for showing me that honesty is the condition for commitment. Moshe Halbertal and Noam Zohar, my colleagues at the Shalom Hartman Institute, have always been there for me, reading my work and never tiring of my formulations and reformulations. Most of this book was written at the School of Social Science of the Institute for Advanced Study at Princeton, where I was privileged to have Michael Walzer as a teacher and a friend. His guidance and tutelage have been inspiring. This book is one of the fruits of our collaborative efforts to revitalize the tradition of Jewish political thought. No atmosphere could be as conducive to this work as that of the Institute for Advanced Study. An earlier version of this work was submitted as a Ph.D. dissertation to the Hebrew University of Jerusalem. My thesis adviser, Aviezer Ravitzky, has been a constant source of encouragement in its maturing into a book. Gerald Blidstein, Yaron Ezrahi, Warren Zev Harvey, Allan Silver, and Israel Tashma read early versions of this work; their insights and comments were most helpful.

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The Department of Jewish Philosophy at Tel-Aviv University provided a superb scholarly framework within which to develop my ideas. I am grateful to my colleagues for their support. Parts of this work were presented at seminars and colloquiums, and I have benefited from the comments of Sara KleinBraslavy, Shlomo Biderman, and Yael Tamir. The late Jacob Levinger and the late Gershon Weiler actively participated in those encounters. The work on this book was completed while on sabbatical from Tel-Aviv University. The Koret Jewish Studies Publications Program generously subsidized the publication of this book. My editor, Nessa Olshansky-Ashtar, has worked tirelessly to make this a better book. Philosopher, critic, and editor, she has been the best reader an author could hope for. Finally, I wish to thank Daniel Boyarin, editor of the Contraversions series; Helen Tartar of Stanford University Press; and my copyeditor, Robert Burchfield, for their dedicated work.

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ACKNOWLEDGMENTS

CONTENTS

 xi INTRODUCTION: DIVINE LAW AND SECULAR POLITICS 1

The Polity, 3; Biblical and Talmudic Background, 6; Synopsis, 13

PART 1: MAIMONIDES 1 THE NATURAL FOUNDATIONS OF POLITICS 17 “Man Is Political by Nature,” 18; Modern Interpretations, 24; Polity and Society, 25; Medieval Interpretations, 28; Naturalizing Divine Law, 30

2 THE INSUFFICIENCY OF LAW 35 Maimonides on Law, 35; From Law to Politics, 41

3 THE CODE ON THE PRIORITY OF POLITICS 43 Monarchy—A King Must Be Appointed and Honored, 44; The King and the Sanhedrin, 47; The King’s Right to Command, 51; The King’s Right to Punish, 55; Royal Law, 61; Consent, 65; The Maimonidean Monarchy— Instrumental or Natural?, 67 ix

4 CONSTITUTIONAL CRISIS AND MESSIANIC RESOLUTION 70

The Maimonidean Polity, 70; Politics and Religion, 72; Tension, 75; The Messianic Polity, 77; The Utopian Vision, 83; The Messianic Age and the Utopian Vision, 87; Conclusion, 89

PART 2: GERONDI 5 THE KAHAL AS A POLITY 93 The History of Public Law, 95; Communal Authority, 100; Nahmanides, 106; Solomon ibn Adret (Rashba), 112; Conclusion, 122

6 THE AUTONOMY OF POLITICS 124 Politics, 127; The Structure of the Polity, 134; Divine Law, 138; Impasse, 143 CONCLUSION: SECULARIZING POLITICS 151

Turning to Modernity, 156  163  193   209   213

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CONTENTS

PREFACE

  is often neglected by students of political theory. Yet some of the questions that engage them are precisely those that engaged the medieval philosophers—for example, the relationship between religion and state. Medieval philosophers’ attempts to understand religion and the polity can provide new perspectives on the viability of an accommodation between revelation and legislation, the holy and the profane, the divine and the temporal. The separation of religion and state has long been a central theme in Western political history and thought. Since the Enlightenment, this separation has served to uphold the individual citizen’s freedom of conscience. In medieval political thought, the doctrine of the separation of religion and state played a different role. On the one hand, it served to maintain the integrity of religious law—whether canon law, Islamic law, or Jewish law—visà-vis the monarch; on the other, it upheld the autonomy of the monarch and the autonomy of human political agency against theocratic claims of divine sovereignty and clerical authority. This book explores the emergence and elaboration of the fundamental political concepts of medieval Jewish thought, primarily concepts related to political agency, political life as a distinct domain of human activity, and constitutional politics. I will analyze the two basic institutions of the Jewish polity as the thinkers in question envisioned it: monarchy and the law.

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The very notion of Jewish political thought may seem paradoxical. The Jews were exiled from their country upon the failure of the Great Rebellion ( ): what politically relevant wisdom can be culled from the thought of a people in exile whose sovereign power has been suspended? There is, however, no need to assume that political insight is essentially linked to the exercise of sovereignty, for the exercise of sovereignty does not exhaust the range of politically meaningful activity. Further, the question displays a misreading of medieval Jewish life. Jewish communities in the Middle Ages both enjoyed a wide degree of political autonomy and, as I hope to show, understood themselves through a political discourse they shared with contemporary Christians and Muslims. The medieval Jewish conception of politics grew out of the fertile encounter of a religious tradition emphasizing the role of law with two very different influences: Greek philosophy as appropriated by Islamic philosophers and the reality of life in communities situated within Christian and Muslim empires. Scholars and philosophers who found themselves at this cultural crossroads reformulated the meaning of divine law and its relation to human political life. Medieval Jewish thinkers assumed, of course, the existence of a revealed law. They saw themselves as expositors of revealed truths rather than creators of new ones. Much of their philosophical creativity was expressed in exegetical commentary on the revealed law, that is, the Bible and the Talmud, whose legitimation they in turn sought. Attention to such interpretation is thus fundamental to penetrating their thought. I hope to show that there is unquestionably a tradition of Jewish political discourse, a tradition based on the canonical sources of Jewish law but incorporating elements from the Greek philosophical tradition as well. Although the classics of Jewish political thought were formulated more than half a millennium ago, there is much in the corpus of Jewish political writing that remains vital today and has a great deal to contribute to the ongoing constitutional debate on church/state relations and to the theory, increasingly relevant, of theocratic societies.

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PREFACE

POLITICS AND THE LIMITS OF LAW

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INTRODUCTION: DIVINE LAW AND SECULAR POLITICS

Josephus was the first to brand the constitution of the Mosaic law a theocracy. In contrast to other known regimes—monarchy, oligarchy, and democracy—the regime of the law of Moses, he argues, is a theocracy, the rule of God.1 Similar characterizations were put forward by later writers, both Jewish and Gentile. In Leviathan, Thomas Hobbes describes the regime of the Jews as the Kingdom of God—“a reall not a metaphoricall Kingdome.”2 According to Hobbes, by the Kingdome of God is properly meant a Common-wealth, instituted (by the consent of those which were to be subject thereto) for their Civill Government, and the regulating of their behaviour, not onely towards God their King, but also towards one another in point of justice, and towards other Nations both in peace and warre; which properly was a Kingdome, wherein God was King, and the High priest was to be (after the death of Moses) his sole Viceroy, or Lieutenant.3 John Locke, too, in his Letter concerning Toleration, describes the Jewish religion as a theocracy. For the commonwealth of the Jews, different in that from all others, was an absolute theocracy; nor was there, or could there be, any differ-

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ence between that commonwealth and the church. The laws established there concerning the worship of one invisible Deity were the civil laws of that people, and a part of their political government, in which God himself was the legislator.4 According to Josephus, Hobbes, and Locke, then, the political regime prescribed by the Jewish religion is theocracy. The characterization of Judaism as straightforwardly theocratic is echoed in the twentieth century by various Jewish philosophers, some approving, others critical. In Kingship of God, Martin Buber describes premonarchic Israel as a holy anarchy. According to Buber, God’s reign precludes the concentration of power and authority in human hands, thus creating an egalitarian society.5 On the other hand, in Jewish Theocracy, Gershon Weiler argues that divine rule, as practiced by God’s worldly representatives, creates a society inherently inimical to the modern democratic polity. Theocracy, on his account, precludes human political autonomy.6 All these thinkers assert that a political dimension is integral to the Jewish religion and, further, that the political regime they envisage is one in which God is sovereign. Politics is ultimately a divine prerogative. The theocratic conception of politics is undeniably rooted in the Bible. However, the worldview of rabbinic Judaism, expressed in biblical exegesis, legal codes, and philosophical treatises—especially as it developed in the Middle Ages—embraces the secularization of politics, affirming human, as opposed to divine, political agency. Indeed, it does so after giving careful consideration to the theocratic critique of politics. This critique, going back to the Bible, is based on two main arguments, one theological, the other moral. The theological argument claims that the realm in which human initiative discharges itself is that of observing God’s law and obeying God’s commandments, while in the political arena, human initiative is an illusion, lacking any true efficacy. The moral argument is that power corrupts, and hence, were individuals to be granted sovereignty, that is, to be crowned monarchs, they would subjugate rather than serve their compatriots. The rabbinic tradition does not even consider theocracy as a form of government. Its foundational text, the Mishnah, speaks of a monarchic regime and implicitly distinguishes between law and human politics. The medieval authorities elaborate on this theme, arguing that human nature necessitates the existence of secular temporal politics.

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INTRODUCTION

The Polity In the Jewish religion, divine law as revealed to humankind is presented in a text known as the Torah, also known as the Five Books of Moses, or Pentateuch. The law thus set forth and its oral explication are referred to as the “path,” the halakhah. The halakhah is a system of norms directing the lives of both the individual and the community. It thus seeks to order the public domain, mandating specific social and political institutions and offices, among them, institutions intended to ensure compliance with the law.7 This study considers two important questions raised by the juxtaposition of law and political life. What is the place of politics in a community that defines itself as bound by divine law? And what might the constitutional arrangements of a polity designed for such a community be like? I will inquire into the particulars of these legal and political institutions and the relations between them: between the monarchy and the Sanhedrin, the highest juridical institution; between the kahal, the community, and the rabbi, the community’s religious authority.8 But I will also probe beyond these basic social and political arrangements to assess the considerations about the nature and goals of political association upon which they rest. Of course, any legal system is at the mercy of political power. But the question of the adequacy of the provisions made by a system of law for the existence of a viable political regime remains. I will examine the limits that Jewish law, halakhah, imposes upon itself vis-à-vis political power for the sake of social order and the consequences of this self-limitation for political justice. To facilitate this investigation, I will explore the political tradition that emerged in medieval Jewish Spain, focusing primarily on two thinkers, R. Moses b. Maimon, Maimonides (‒), and R. Nissim Gerondi, known by the acronym Ran (c. ‒). I first examine the political thought of Maimonides, then the later developments, for which Maimonides’ ideas provided the conceptual basis, in the area of public law governing Jewish communal life. The most important attempts to articulate the theory of public law are those of Nahmanides (c. ‒), his student Solomon b. Abraham ibn Adret (Rashba) (c. ‒), and their Barcelona school, which flourished in the thirteenth and fourteenth centuries. The tradition of public law receives its fullest theoretical exposition in Gerondi’s sermonic essay on politics. Maimonides needs no introduction. His monumental codification of the

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law in the Mishneh Torah (henceforth, Code) and his philosophical exposition of Judaism in The Guide of the Perplexed are the preeminent classics of Jewish thought. Maimonides views the Torah as the sole law governing society but proposes a monarch with broad powers to legislate and punish independently of it. Although committed to the law’s authority and a proponent of the view that in messianic times the law and political life will be in harmony, his conception of the law is such that politics in the realm of the actual precedes the law, and justice may at times be sacrificed for the sake of political stability. All work on Maimonides’ conception of politics and law is indebted to the great achievements of Maimonidean scholarship in the twentieth century. Leo Strauss initially demonstrated the political quality of Maimonides’ work, both in terms of its content and in terms of its exposition. Strauss’s Maimonides is a political philosopher. Strauss inquired into the relation between philosophy, law, and the multilayered quality of Maimonides’ writings with this characterization in mind yet did not examine Maimonides’ legal writings. His neglect of Maimonides’ legal work is in part a matter of principle, intended to underscore the greater dignity Strauss’s Maimonides accords philosophy. In part, it is a matter of a pragmatic division of labor in Maimonidean scholarship between research requiring expertise in philosophy and that calling for expertise in Jewish law. The important critics of the bifurcation of Maimonides into philosopher and jurist are David Hartman and the late Isadore Twersky. Their work, however, focuses on the overall relation between philosophy and law in Maimonides’ oeuvre and not on Maimonides’ politics.9 Gerald Blidstein’s Political Concepts in Maimonidean Halakha is an attempt to fill this gap. It provides a detailed and highly useful commentary on the Code’s Laws concerning Kings and their Wars. It does not aspire, however, to provide an integrated account of the two salient components of Maimonides’ political theory—the philosophical, and the legalistic. One of the goals of my study is to fill this lacuna. Another goal is to place Maimonides in a tradition of secularizing attitudes to politics in Jewish law. Rooted in the Bible and Talmud, this tradition continues after Maimonides in the elaboration of the communal law that guided the political lives of Diaspora Jewry. Although much scholarly attention has been devoted to the political history and legal codes of medieval Jewish communities, hardly any studies have been conducted on the political

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INTRODUCTION

theory that emerged from the experience of Jewish political existence. The work of Nahmanides, Adret, Gerondi, and their students attests to a fascinating incorporation of the themes of classical political science into halakhic discourse and decision-making on matters of public law. Because political science, unlike theology and metaphysics, was not perceived as dangerous to the integrity of faith and the authority of religion, the Barceloneans, despite antiphilosophical leanings, were willing to incorporate its concepts and insights into their work as interpreters of Jewish law. The Barcelona school went on to have critical impact on the development of Jewish law, the dissemination of Kabbalah, and the emergence of a critical attitude to philosophy—particularly, Maimonidean philosophy—in Jewish culture. Gerondi represents a widespread tradition of thought and practice. Gerondi’s sermon on politics, which sketches the constitutional contours of an envisioned Jewish monarchy, constitutes the fullest theoretical exposition of the tradition of public law. Whereas Maimonides cautiously undertook to balance the official authority of divine law, the one law of the polity, and the de facto predominance of royal decree and legislation, Gerondi is much bolder. He openly speaks of two legal systems, distinguishing between the religious role of divine law and the social role of the monarch, in effect limiting the scope of the former. Divine law loses the political force it possesses in Maimonides’ account and is relegated to a predominantly ritualistic role. Taken together, these traditions, the philosophical Maimonidean and the antiphilosophical Nahmanidean or Barcelonean, suggest a range of possibilities for political activity. This broad scope is made possible by circumscribing the domain of the halakhah. Moreover, the positions articulated by these traditions are not merely speculative but reflect actual juridical practice, and changing perceptions of communal government. Significantly, they represent an explicit commitment to a political realm independent of divine law, that is, to the secularization of politics.10 As I use the term, secularization refers to the setting aside of certain areas of human activity as beyond the purview of religious norms. Politics, the devising of constitutional arrangements, is, in this conception, a worldly activity, not a divine prerogative. This sense of the term differs from that of secularization as the historical process by which Western culture went from being religious to being secular, a fundamental societal transformation. In this latter sense, “secularization connotes emancipation from the authority of the Church . . . and the emergence of independent values, norms, pat-

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terns of authority, behavior and knowledge.”11 This process also includes the transfer of religious values and concepts to secular culture.12 I am not claiming that the two types of secularization are causally linked —that modern secular culture has its roots in the more restricted secularization of politics in the Middle Ages. And obviously I am not claiming that the thinkers in question should be interpreted as in any way championing secularization in the broader sense, as prophets or harbingers of the radical secularization of Jewish culture and society that has occurred in the twentieth century.13 Indeed, even in its narrow sense, as used here, these thinkers did not possess the concept of secularization. They view their conceptions as falling squarely within the parameters of the rabbinic tradition. Nonetheless, their interpretation of the sources on these matters is, from our perspective, clearly recognizable as secularizing.14 Hence, the term is useful as an analytic concept. While the views of Maimonides and Gerondi have been mobilized in support of various camps in present-day debates on the religious meaning of the Jewish state, my concern here is not the relevance of the theories in question for current problems. On the contrary, to penetrate the significance of these medieval solutions in their own context, I attempt to distance myself from the contemporary debate. Yet this is by no means an abdication of responsibility for thinking about current issues. It is my hope that in gaining an understanding of how the great medieval thinkers strove to harmonize the realities of human existence with the ideals of divine law, we will also gain insights that may be useful in working through present-day constitutional conflicts in Israel, which are, in essence, conflicts between different visions of the best realizable order. Further, arriving at an understanding of these theories in their own context makes it possible to situate them in the tradition of political thought in general. In the concluding chapter, I relate the positions of Maimonides and Gerondi to those of such early modern conceptualizers of politics: Machiavelli, Hobbes, and Spinoza.

Biblical and Talmudic Background The medieval Jewish thinkers worked within the conceptual framework of halakhah, the body of Jewish law. Their understanding of politics was de-

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INTRODUCTION

fined in terms of this system, and it is within the context of exploring this system that awareness of the space for politics arises. The question of the relation between politics and law has deep roots in the Bible and the Talmud, the foundational texts of Rabbinic Judaism. Two discussions in these sources, in particular, are pivotal: the discussion in tractate Sanhedrin of the Talmud about whether the king is subject to judgment by the Sanhedrin and the biblical debate over the monarchy. The former sets out the institutional structure within which the relations between politics and the law are manifested; the latter raises the more general question of the theological valuation of human political autonomy. I will briefly sketch the contours of these classic exchanges in order to lay the groundwork for our analysis of the medieval thinkers. Tractate Sanhedrin comes closest to what might be considered a Mishnaic constitutional document. It assumes a monarchic form of government. The basic governmental institutions are the Sanhedrin, which is judicial and legislative;15 the monarchy, which serves an executive function; and the priesthood, which is sacerdotal. However, only one paragraph is devoted to the high priest (:) and less than a chapter to the king (:‒), while discussion of the Sanhedrin and its functions takes up most of the other ten chapters of the tractate. The effect of this distribution is to present the monarchy and priesthood as fitting into the framework of the highest legal institution; as the name of the tractate attests, in the eyes of the Mishnah, the Sanhedrin is the predominant institution. The various national institutions are subject to the law, while the reverse is not the case. Halakhah is not the law of a king, a people, a state, or a temple, it is God’s law. The law serves as the context within which all other institutions are defined. The Sanhedrin, the institution charged by the law with its interpretation and application, is preeminent. This interpretation is strengthened by the order of the tractates following tractate Sanhedrin. Tractate Makkot, originally part of Sanhedrin, continues to expound the penal code and discusses the laws of testimony and evidence. Tractates Shevu’ot and Horayot deal with legal procedure, and Eduyot and Avot establish the authority of the rabbinic tradition of legal interpretation. The fact that whole tractates of the Mishnah are devoted to a detailed account of the judicial system and its responsibility and authority to enforce the law attests to the preeminence of the law in the Mishnaic worldview.16 Thus the following paragraph is quite striking:

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The king neither judges, nor is he subject to judgment; he neither testifies, nor is testimony heard against him. (Sanhedrin :; JPT, p. ) The monarch is placed outside the reach of the law, and the law, in turn, is out of the reach of the monarch. What is the import of this division between political and legal functions? Does it reflect a kind of executive immunity designed to protect monarchs from legal suits that would undermine their ability to function, or is it a pragmatic assessment of political reality, namely, the inability to control monarchic power? The Babylonian Talmud leans to the latter interpretation. In its discussion of this paragraph, it quotes Rav Yosef, who restricted its application to the kings of Israel, that is, to non-Davidic kings. In his view, kings of the House of David both judge and are subject to judgment. This distinction follows a tragic historical experience with non-Davidic kings. The Talmud relates that King Yannai had a slave who was accused of having committed a murder. Shimon b. Shatah held the king responsible for his slave’s action and called to the Sages: “Set your eyes upon him, and let us judge him” (BT Sanhedrin a). Following negotiations carried out through messengers, Yannai finally agreed to appear in court for trial: He came and took a seat. Shimon b. Shatah said to him: “King Yannai, stand on your feet and hear the testimony against you; and it is not before us that you stand, but before Him who spoke and brought the world into being.” . . . [Yannai] answered, “Not as you say, but as your colleagues say!” He turned to his right, and they pressed their faces to the ground; he turned to his left, and they pressed their faces to the ground. Then Shimon b. Shatah said to them: “You possess thoughts; let the Master of Thoughts come and take revenge upon you!” Immediately, [the angel] Gabriel came and knocked them to the ground, and they died. At that point it was established that “The king neither judges, nor is he subject to judgment; he neither testifies, nor is testimony heard against him.” (a‒b; JPT, p. )17 According to the Talmud, the Mishnaic rule is rooted in actual political experience. Yet the precise nature of this bad experience is in need of further elaboration. Is the passage indeed to be read as a story about a tyrannical king, that is, about a tyrant who could not be controlled by the judicial es-

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INTRODUCTION

tablishment? Or does it tell us about the failure of the Sanhedrin to stand up to tyranny and support Shimon b. Shatah? Either interpretation is plausible, and each may be correct. The story may well be about both the abuse of political power and the weakness of those charged with guarding the law. The Talmud concludes, in any case, not with delegitimation of the monarchy but with accommodation. To avoid conflict, expectations are lowered—the king is relieved of accountability to the law. This lowering of standards for actual practice is accompanied by the cultivation of the image of an ideal Davidic king who will “Render just verdicts, morning by morning; rescue him who is robbed from him who defrauded him” (Jer. :). While the Mishnah seems to assume a clear distinction between the realms of politics and law, without connection to the behavior of the monarch, the Babylonian Talmud regards the functional division as a response to the flawed character of specific kings. Alternatively, the Talmud’s apprehension may be an echo of biblical reservations about the monarchy from its inception.18 The biblical debate is not merely about the merits of monarchy as a form of government: an established tradition views the political enterprise in general as tantamount to idolatry. Although the Mishnah takes monarchy for granted, other positions are recorded in the rabbinic literature: “Like all the nations that are round about me” (Deut. :)—Rabbi Nehorai says: They demanded a king only so that he might lead them into idolatry, as it is said, “That we also may be like all the nations; and that our king may judge us, and go out before us, and fight our battles” (I Sam. :). (Sifre, Deut. ) The idolatrous element in politics is twofold. First, the story of the creation of the monarchy is one of Israel’s assuming political agency at its own initiative, severing its dependence on divine direction by opting to be ruled by man rather than by God. The desert period and the period of the Judges had been characterized by the immediacy of divine political activity, with God directly responsible for and the provider of law and security. In requesting a king, Israel is opting for human political autonomy: “that our king may judge us, and go out before us, and fight our battles” (I Sam. :). Undeniably, there is a biblical voice that expresses a critical view of human political agency. It is particularly manifest in the prophetic invective re-

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garding Israel’s self-delusion as to its power to conduct foreign affairs, in the prophetic rejection and condemnation of the realpolitik of various kings.19 The high politics of the prophets is a function of the prophetic theology that sees God as acting in history, indeed, as the only real political agent. God, says the prophet Isaiah, will punish the majestic pride and overbearing arrogance of the king of Assyria. For he thought, “By the might of my hand have I wrought it, By my skill, for I am clever: I have erased the borders of peoples; I have plundered their treasures, And exiled their vast populations.” ... Does an ax boast over him who hews with it, Or a saw magnify itself above him who wields it? As though the rod raised him who lifts it, As though the staff lifted the man! (Isa. :‒) Human political agency is only apparent. These verses do not simply reject prudential considerations in politics; they deny the relevance of human will to the course of political action and deny any rational access to the true guidelines for such action by those not endowed with prophetic knowledge of divine intentions. The second idolatrous aspect of politics is the concentration of power in human hands that comes with political organization. Power is a divine prerogative; it is allocated by God, not achieved by humans: “Remember that it is the Lord your God who gives you the power” (Deut. :). This theme has been forcefully developed by Buber. Buber maintains that the pursuit of statehood is the classic political expression of idolatry. He argues that giving up the “holy anarchy” of the Judges for a centralized form of government and replacing the charismatic judge moved by the immediacy of the divine spirit with an institutionalized hereditary monarchy is a forsaking of theocracy—God’s rule—for human power. As God tells Samuel: “For it is not you that they have rejected; it is Me they have rejected as their king” (I Sam. :).20

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INTRODUCTION

A consequence of human appropriation of power is the subjugation of one individual to another. Samuel’s description of “the law of the king” vividly portrays the servitude that the nation, in demanding the change of regime, is choosing. The king will take their sons as soldiers to fight his wars and as workers to till his land. He will take their daughters as servants to keep his house and prepare his food. Instead of the king’s belonging to the people, the people will belong to him: “and you shall become his slaves” (I Sam. :).21 But note that the controversy over the monarchy goes on record as a debate. Although the request for a king is portrayed in the Book of Samuel as an evil request (I Sam. :‒), God does grant it. The treatment of this highly charged controversy is quite unusual. Typically, the Bible handles such disputes in one of two ways. Sometimes dissent is simply not acknowledged. Camouflaged by means of artful editing, divergent opinions and interpretations are inserted into the biblical text as inconspicuously as possible. Indeed, the art of biblical criticism consists in part in the reconstruction of these independent voices. In other cases, dissenters are presented as rebels against God and their opinions as heresy, as, for example, in the story of Korah’s attack on the priesthood—Korah and his followers are swallowed alive by the earth (Num. ). In the matter of the monarchy, by contrast, the different views are not concealed, nor are any of the parties to the dispute easily branded as heretics. This openness may be indicative of the fact that human political autonomy is exercised through deliberation about the lessons of past experience and the viability of various future courses of action. The debate is not merely a distinct stage that precedes and possibly launches political existence, but rather the debate over the formation of the polity is an integral part of political agency and is recorded in the Bible as such. Indeed, it constitutes the quintessential political activity—the founding of a regime. Contra Buber, the Book of Judges, read as the work of the pro-monarchic school, offers a devastating critique of the absence of organized political life in ancient Israel, closing with the words: “In those days there was no king in Israel: everyone did as he pleased [literally: that which was right in his own eyes]” (Judges :). The loose tribal federation described in the Book of Judges could not provide the inner stability needed to prevent the breakdown of social order, nor could it adequately respond to the growing external security threat posed by the Philistines. In response to this sorry state, the monarchists proposed to change the form of government.22

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The kinds of fears that concern the prophets are allayed by tailoring the monarchy to address these anxieties: the king of Israel is part of the natural order, he is neither a god nor a demigod.23 The king is human and subject to both God and the law: When he is seated on his royal throne, he shall have a copy of this Teaching [torah] written for him on a scroll. . . . Let it remain with him and let him read in it all his life, so that he may learn to revere the Lord his God, to observe faithfully every word of this Teaching as well as these laws. Thus he will not act haughtily toward his fellows or deviate from the Instruction [mitzvah] to the right or to the left. (Deut. :‒) Thus it is God who chooses the king and, as in the case of Saul, removes him when the king fails to abide by God’s commands. Although the pro-monarchists could, of course, provide no guarantees that the idolatrous aspects of politics would not come to plague an Israelite monarchy, their eventual success revolutionized Israel’s religion and left a lasting mark on its ideals and aspirations. Monarchic government continued in Israel for centuries, and upon the loss of political sovereignty, its restoration became the focus of national aspirations. Jewish political language and symbols were, to a great extent, forged in the monarchic tradition. The monarchy centralized worship in the capital city of its own creation, Jerusalem. It generated a new theology in which God’s covenant with Israel passes through the king, who is held responsible for the people’s behavior.24 The later prophets articulate their messianic aspirations through the monarchy. Moshe Weinfeld has argued that the revolutionary innovations introduced during the reigns of David and Solomon, in the course of time became acceptable religious ideals which through the prophets became fundamentals in Jewish and Christian eschatology. . . . the election of a king like all the other nations gave birth to the idea of a light to the nations, and the temple and king’s palace . . . became a house of worship for all peoples, a world center for peace.25 But perhaps the most important legacy of the debate over the monarchy is the very fact that it was preserved, ensuring that constitutional debate

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would remain an ongoing feature of the Jewish tradition.26 Furthermore, the debate between the theocratic and the secular conceptions of politics has never been finally resolved. Particular thinkers or canonical works have at different times leaned toward one of these options, but when considering the tradition as a whole, it is the ongoing debate itself over the question of whether politics is holy or profane, theocratic or worldly, that is characteristic of Jewish thinking about politics.

Synopsis Although discussion of politics in the Jewish tradition is characterized by an ongoing tension between theocratic and secularizing tendencies, the rabbinic literature inclines to the latter. This is particularly apparent with regard to its approach to the constitutional arrangements of the polity. In that they are in agreement with this general rabbinic understanding, Maimonides and Gerondi are not innovators. Their contribution lies in their explicit theoretical and legal elaboration of this viewpoint. As noted, the commitment to a secularizing approach to politics cuts across the main currents of medieval Jewish thought, the philosophical and the antiphilosophical. In the first two chapters, I examine Maimonides’ views on political questions—the ruler, the law, and the polity as formulated in his philosophical works. Maimonides, I argue, views the Torah as the one law of the polity, but advocates a powerful monarchy. In Chapter , I offer an analysis of his legal rulings and codifications on these subjects. Chapter  presents a synthetic analysis of the Maimonidean polity, revealing how very intractable the problem of reconciling divine law and human politics remains. Maimonides’ messianic theory is presented as an attempted solution. The second part of the book, Chapters  and , explores Gerondi’s political theory. Gerondi, I argue, rejects the Maimonidean naturalization of the Torah. In its place, he argues for the autonomy of politics and its separation from divine law. The polity he envisages is characterized by two laws: Torah law and royal law. Chapter  discusses specific historical developments that constitute the background against which Gerondi formulated his views on politics. In particular, it examines the political theories of Nahmanides and his student Solomon ibn Adret in Barcelona and shows how they were used to provide a

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theoretical grounding for the legislative and coercive authority exercised by the Jewish communal self-government. Maimonides’ understanding of the authority of the community, which contrasts markedly with that of the Barceloneans, is discussed as well. Chapter  is devoted to Gerondi’s political theory. The metaphysical assumptions implicit in his theory are explored by contrasting Gerondi’s ideas with those of the philosophical and antiphilosophical streams within medieval Jewish thought, particularly their conceptions of Torah as divine law. The chapter ends by arguing that Gerondi’s constitutional theory is ultimately unable to separate divine and temporal law, much as Maimonides’ formulation is unable to fuse them. A final chapter takes a broader look at the theories, considering both Abravanel’s rejection of the secularizing tradition in favor of an idyllic theocracy and Spinoza’s rejection of Torah law in favor of the sovereign’s supremacy. I conclude by considering the price of secularizing politics from the perspective of the halakhah: first, the question of how to contain political power, and second, that of implications for the feasibility of a halakhic state. The medieval thinkers, I argue, clearly uphold the secularization of politics, rejecting the halakhic polity as untenable.

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PART 1: MAIMONIDES

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1 THE NATURAL FOUNDATIONS OF POLITICS

’ political theory naturalizes politics. In the Guide, political authority is legitimized by an appeal to nature rather than by an appeal to revelation or divine command. Nevertheless, Maimonides’ conception of politics grows out of his understanding of Torah as divine law. He bases his theory of government on the premise that politics is natural and law divine. The coming chapters chart the development of this conception, showing that ultimately Maimonides is unable to resolve the tension between divine and natural. The consistency of particular doctrines through Maimonides’ various presentations in his different works cannot be taken for granted. Indeed, it is much debated in the literature.1 Philosophy and legal codification, however compatible, inhabit distinct realms of discourse. Obviously, there is no simple correspondence between theoretical contentions about any given subject and judicial rulings to which they may be germane. The distinctions between divine law, natural law, and nomos are not paralleled by those between halakhah, Noahide law, and dina demalkhuta dina (the law of the kingdom is law); the distinction between Davidic kings and Israelite kings cannot be viewed simply as a particularization of the distinction between the rule of wisdom and the rule of law. But while the meanings and application of these concepts differ significantly, these differences do not preclude the possibility

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of comparison, they merely mandate meticulousness. Maimonides himself, it should be noted, presented philosophical discourse as “the science of the Law in its true sense” (Guide, Introduction, p. ). I will, therefore, separate Maimonides’ treatment of the questions at hand in the Guide from their treatment in the Code. Ultimately, this methodological stricture will serve to illustrate the fact that the two are fundamentally compatible.

“Man Is Political by Nature” It has been explained with utmost clarity that man is political by nature and that it is his nature to live in society. He is not like the other animals for which society is not a necessity. —Guide :, p. 

These lines from the Guide, echoing Aristotle on human political nature, are found at the heart of Maimonides’ discussion of prophecy.2 After explaining that “the call to the Law followed necessarily” only from Moses’ prophetic understanding (:, p. ), Maimonides addresses the nature of the Torah as divine law. Yet the Aristotelian terminology may obscure rather than illuminate Maimonides’ position.3 It is characteristic of the Islamic philosophic tradition Maimonides draws upon to downplay the differences between Plato and Aristotle and, in effect, to Platonize Aristotle. This is especially so with regard to politics.4 Aristotle’s Politics was not known to philosophers of the early Middle Ages, although Al-Farabi may have had access to an abridged version. Plato’s Republic, Laws, and Statesman were the basic texts in light of which Aristotle’s Ethics was read. The import of the proclamation that “man is political by nature” is not self-evident. Let us consider the passage. Maimonides first states that human beings’ political nature “has been explained with utmost clarity.” There appears to be no other passage in the Guide where Maimonides claims that an assertion has been explained “with utmost clarity.” Throughout the Guide, Maimonides takes the role of explicator. Although the person to whom the book is addressed does not join in the dialogue, the speaker/explicator assumes his presence. The many subtle variations in the manner in which the speaker addresses his reader are integral to the course of the argument.5 The

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speaker points out familiar assumptions (for example, :, :, and :) and at times exhorts the reader to pay particular attention to something (for example, :, , , and ). But generally, as noted, the speaker assumes the role of explainer. Many chapters end with the exhortation “know this” or “understand this,” and many of the book’s arguments close with the formula “the matter has thus been explained.” In :, however, Maimonides seems to be using this phrase to introduce a new premise rather than to indicate that a proposition has been proven. Where and by whom has it been explained that “man is political by nature”? Maimonides may be referring to Greek or Arab philosophers who made similar assertions.6 But it is more likely that he is referring the reader to remarks he himself makes earlier in the Guide in : and : apropos discussion of other matters. That is, he is calling upon the reader to recall these earlier remarks, which support the opening pronouncement of :. The ensuing discussion then ties the two passages together, clarifying their wider significance. In : Maimonides presents man as a microcosm, a model for comprehending the structure of the universe. Maimonides points out that although such a comparison could have been drawn using any animal, since all animals are organic unities, humans are chosen as the analogue because only humans possess a rational faculty by virtue of which they are able to govern their lives. This rational capacity is closely linked to their being a social and political animal. Both elements of the Aristotelian definition of human beings as “rational animals” are important: we can ignore neither man’s basic animal nature and needs nor his rationality. To understand human nature it is necessary to compare human beings to other animal species. Whereas many other animals can live solitary lives, the human’s very existence demands a political life: Let us suppose the case of an individual belonging to the human species that existed alone, had lost the governance of its conduct, and had become like the beasts. Such an individual would perish immediately; he could not last even one day except by accident—I mean if he should happen to find something he might feed on. For the foods through which he exists require the application of some art and lengthy management that cannot be made perfect except through thought and perspicacity, as well as with the help of many tools and

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many individuals, every one of whom devotes himself to one single occupation. For this reason one is needed who would rule them and hold them together so that their society would be orderly and have continued existence in order that the various individuals should help one another. (:, p. ) Maimonides stresses that individuals cannot achieve material self-sufficiency; subsistence calls for collaborative effort. The need for a ruler arises from this condition. Maimonides does not explain here how it is that the ruler would “hold them together,” but presumably the element of holding a society together makes this individual more than just a manager; it makes this person a ruler. And it is because human society has a ruler that it is distinctively political. Maimonides then further develops the idea that the human species’ capacity to battle the elements can be perfected only through “thought and perspicacity”: Because of this one finds in man the rational faculty in virtue of which he thinks, exerts his perspicacity, works, and prepares by means of various arts his food, his habitation, and his clothing. Through it he rules all the parts of his body in such a way that the ruling part acts in the way it does and the ruled part is governed the way it is ruled. Because of this a human individual who, according to a supposition you might make, would be deprived of this faculty and left only with the animal faculties, would perish and be destroyed immediately. (:, p. ) Man’s rational faculty and political capacities are intimately connected.7 Both involve the ability to rule and order subordinate elements for the sake of concerted effort. The sociopolitical and rational aspects of human beings are virtually interchangeable in Maimonides’ discussion: political rhetoric is used to describe and explicate the function of practical reasoning. Maimonides refers to both politics and rationality as the capacity to govern conduct. The other reference to man’s political nature precedes : and is found in :. In discussing the difference between direct and indirect knowledge of God, Maimonides offers the following parable:

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For instance, if someone asks you, Has this country a ruler? you shall answer him, Yes, undoubtedly. And if he asks you, What proof is there for this? you shall tell him, This proof is to be found in the fact that while this money-changer is, as you see, a weak and small man and this great amount of dinars is placed before him, this other big, strong, and poor individual is standing in front of him and asking him to give him as alms a carob-grain and that the money changer does not do this, but reprimands him and drives him off by means of words. For, but for his fear of the ruler [sultan], the poor man would have been quick to kill him or to drive him away and to take the wealth that is in his possession. Accordingly, this is a proof of the fact that this city has a king. (:, p. )8 The distinctive achievement of the king, that which proves his presence in the city, is the fact that asymmetry of individual physical strength does not undermine social order. The fear instilled by the king ensures the binding power of social rules. Chapter : invokes these two elements—man’s social nature and the role of rulers in maintaining order and peace. Taken together, they explain the transformation of an aggregate of human beings into a political society. In the opening lines of the chapter, Maimonides attributes to human nature two characteristics: it is political and it is social. Assuming the reader’s prior knowledge, he does not explain why humans are social but simply asserts that this is so. He then moves forward from these premises to address the structure of the polity. Maimonides begins by noting the tension between the diverse personality traits of individuals and the societal nature of man: Because of the manifold composition of this species . . . you can hardly find two individuals who are in any accord with respect to one of the species of moral habits, except in a way similar to that in which their visible forms may be in accord with one another. . . . Nothing like this great difference between the various individuals is found among the other species of animals. . . . For you may find among us two individuals who seem, with regard to every moral habit, to belong to two different species. Thus you may find in an individual cru-

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elty that reaches a point at which he kills the youngest of his sons in his great anger, whereas another individual is full of pity at the killing of a bug or any other insect, his soul being too tender for this. (:, pp. ‒) This tension is resolved through politics: Now as the nature of the human species requires that there be those differences among the individuals belonging to it and as in addition society is a necessity for this nature, it is by no means possible that his society should be perfected except—and this is necessarily so—through a ruler. (:, p. ) Politics, via the institution of ruling, the mastery of one human being over others, is the necessary response to the inner tension arising from human beings’ natural diversity of character, which jeopardizes the possibility of social life. Although the ruler wields power in order to achieve certain ends, it is the ruler’s own will and power that hold society together.9 It is presumed that the ruler possesses power, which is a natural endowment. God “put it into [the human species’] nature that individuals belonging to it should have the faculty of ruling” (:, p. ). It is the ruler who gauges the actions of the individuals, perfecting that which is deficient and reducing that which is excessive, and who prescribes actions and moral habits that all of them must always practice in the same way, so that the natural diversity is hidden through the multiple points of conventional accord and so that the community becomes well ordered. (:, p. ) Miriam Galston has argued that the rules Maimonides has in mind at this stage are “traditions” that “lack the formal character of promulgated laws.” She understands Maimonides as referring to a prepolitical community: “a community or association—not a city.”10 However, although Maimonides does not speak of law at this stage, this is not because it is prepolitical. On the contrary, Maimonides speaks of the necessity of a ruler in the course of explicating man’s political nature. He is characterizing the original form of the city and not a lower form as Galston suggests. The point is not that the

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community is prepolitical but that it is prelegal. Maimonides presents the model of political rule that precedes the giving of law. Here he follows both Plato and Al-Farabi, according to whom the wisdom of a live ruler is superior to the rule of law. Maimonides’ description echoes the Platonic preference for the “rule of wisdom” as opposed to the “rule of law.”11 Indisputably, however, there are two aspects to ruling. Its goal is the ordering of society, a goal achieved through the correct use of power. There are, therefore, two complementary political roles: that of legislator and that of king. In the initial description they appear to be filled by one and the same person: “A ruler who gauges the actions of the individuals . . . and who prescribes actions and moral habits that all of them must always practice in the same way” (:, p. ). But nature usually endows different people with these qualities: There is the one to whom the regimen mentioned has been revealed by prophecy directly; he is the prophet or the bringer of the nomos. Among them there are also those who have the faculty to compel people to accomplish, observe, and actualize that which has been established by those two. They are a sovereign [al-sultan] who adopts the nomos in question. . . . (:, p. ) When Maimonides speaks about the role of the ruler in exercising power, he usually uses the word sultan, as in the quoted passage from :, rather than the more general mudabber, which can also refer to the prophet (as, for example, in :). Power is crucial to politics because it is through power that the king holds society together. This power may or may not be exercised in accordance with the law. Politics in the narrow sense simply means wielding power—“the faculty to compel people.”12 It is clear that as there must be punishments, it is indispensable to have judges distributed in every town. There must be testimony of witnesses, and a ruler [sultan] who is feared and held in awe and who uses all sorts of deterrents and fortifies the authority of the judges and in his turn draws strength from them. (:, p. ) In its fullest sense, politics is the ordering of a society through the exercise of power according to law. A polity is an ordered association of people where

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the power of the ruler and the order of law bond and regulate the divergent elements of society.

Modern Interpretations Both medieval and modern interpreters of Maimonides have tended to underestimate the distinctively political quality of Maimonides’ position. Consider two contemporary interpretations suggested for the proclamation that “man is political by nature.” One of these, put forward by Lawrence Berman, focuses on its moral significance and disregards its political implications. A different approach is taken by Gershon Weiler, who is aware of the specific political import this statement may have and seeks to undermine it. Berman was the first to follow Strauss’s suggestion that Maimonides’ political thought be read against the background of his Islamic predecessors and contemporaries. Berman’s interpretation is given with a view to the ethical question of what constitutes the good life: is the contemplative or the political life to be pursued? He examines Maimonides’ position on this question through an investigation of the two Islamic philosophers who exerted the greatest influence on Maimonides’ philosophy, Abu Nasr Muhammad Al-Farabi and Abu Bakr Muhammad ibn Bajja. Ibn Bajja argued for the possibility of human beings’ union with the active intellect and for the pursuit of the contemplative life. But Maimonides, Berman argues, follows Al-Farabi in upholding the ideal of imitatio dei (imitation of God), which implies political activism—a commitment to found and rule an ideal polity.13 Just as God created the world through reason, the philosopher creates a polity by the use of reason. According to Berman, the import of Maimonides’ proclamation of man’s political nature is primarily moral: the good for man is determined by the fact that he is politically situated. However, the degree of Maimonides’ commitment to political activism is questioned by many scholars, as is the degree of Al-Farabi’s. When the issue of which virtuous path a person should choose arises, Maimonides speaks in conflicting voices, and this ambivalence is reflected in the interpretive controversies. Berman’s focus is too narrow, and the import of man’s political nature is by no means restricted to its moral ramifications.14

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Weiler’s Jewish Theocracy offers a different sort of deficient reading of Maimonides on man’s political nature. Weiler weakens Maimonides’ notion of the political, making it more or less synonymous with the social. According to Weiler, Maimonides rejects the Aristotelian notion of the political as that which pertains to a polity whose members “share in the civic life of ruling and being ruled in turn.”15 Weiler claims that since Maimonides rejects Aristotle’s democratic conception of ruling, he must also reject Aristotle’s conception of politics. Therefore, Weiler maintains, Maimonides cannot intend the dictum “man is political by nature” in its plain meaning. In making this declaration, Weiler argues, Maimonides really means “social.” Humans are social animals in that they require a society to fulfill their material wants, and they are not self-sufficient.16 Although Maimonides is not interested in cultivating an Aristotelian citizenry, this certainly does not imply that Maimonides lacks a notion of politics. Weiler construes politics as synonymous with the Aristotelian concept of citizenship. He views political life as coterminous with democracy, more particularly, the type of democracy exemplified by the Athenian democracy. However, this reduction is unwarranted. Weiler’s larger agenda is to articulate the dangers posed by Jewish law to the democratic participatory character of the present-day Israeli polity.17 But Weiler conveniently disregards here what he remarks on earlier, namely, that Maimonides follows Plato on many issues pertaining to political philosophy. According to Plato, nature requires that the intelligent and prudent rule over the ignorant.18 But even according to Aristotle, not everyone is naturally fit to be a citizen.19 Human beings are among those species that submit to a ruler.20 In maintaining that it is the necessity of government that makes human society a “political association” (Guide :), Maimonides is in agreement with Aristotle, and with Plato, on this point.

Polity and Society Weiler’s view notwithstanding, the distinction between the social and the political is nonetheless important. It will be useful to elucidate this distinction by examining how it was understood by Maimonides’ predecessors and how it in turn influenced his medieval interpreters. I begin with Judah Halevi and

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Maimonides’ older contemporary Abraham ibn Daud, both of whose works Maimonides probably knew.21 Halevi contrasts divine law with rational-social laws: the rational laws, being the basis and preamble of the divine law, preceding it in character and time, and being indispensable in the administration of every human society. Even a gang of robbers must have a kind of justice among them if their confederacy is to last. (Kuzari :) This last sentence shows that Halevi does not have a distinctively political association in mind. Any community needs standards of behavior. Judah ibn Tibbon translated “society” as kehillah and “gang” as kahal. Both capture the nonpolitical flavor of Halevi’s point. However, the issue goes beyond semantics. His notion of society is a general one, which is reflected in his presentation of the basic laws of society: The social laws [al-shara’i’ah al-siyasiyah, ha-torot ha-minhagiyot, literally: the laws of governance or administration] are such as the following: “Thou shalt not murder,” “Thou shalt not commit adultery, steal, give false testimony against thy neighbour,” “Honoring thy parents,” “You shall love the stranger,” “You shall not speak untruth and not lie”; such as concern the avoidance of usury, the giving of correct weights and measures; the gleanings to be left, such as the forgotten grapes, the corners, etc. (Kuzari :) Indeed, his notion is much like the modern idea of society as an organized entity apart from or preceding the polity. In The Exalted Faith, ibn Daud speaks of “political actions” (hanhagot mediniyot) and “political nomoi.”22 He opens the third chapter with these remarks: The telos of practical philosophy is to achieve happiness. This will be accomplished by, first, perfecting the virtues; second, ruling the household; and third, the political nomoi. And we will explain that this is to be found in our Torah to the utmost perfection. (p. ) He goes on to explain the sense in which Torah law leads to a better “political” order:

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Concerning political actions, the Torah has obligated us to the most perfect among them. The first being to love one’s friend as one’s soul, [then] faithfulness in business transactions, just weights and measures, forgoing usury and mortgaging of the poor, returning lost objects [and so on]. (p. ) Although the terms used are clearly political, the designated norms lack genuine political content. It is telling that none of the manifestly political commandments, such as appointing a king or establishing a judicial system, are mentioned. The key commandment on the list is, rather, that of loving one’s neighbor. Torah law perfects communal life by emphasizing fellowship and the obligations that grow out of mutual affection. Ibn Daud, like Halevi, explains the necessity of nomoi by referring to a gang of robbers who need rules, as they, too, are a community. Although he uses the term political, ibn Daud actually has in mind a distinctively nonpolitical communal ethic. Halevi, and maybe ibn Daud as well, has a broad, nonpolitical conception of society. It is not surprising to see such a notion of community and society developed by medieval Jewish thinkers who lived in a polity they could not consider their own. Their own society—the Jewish community—was conceptualized as an inner community parallel to the polity that encompassed it. But as I will demonstrate, Maimonides’ notion of politics is a far more comprehensive conception; his idea of society, accordingly, is much more limited.23 The distinction between the political and the social is central to modern democratic political theory, its role being to set limits on political authority by designating certain areas as social and therefore neutral with respect to government. Civil society is a check on politics. Strauss explains the contrast between the classic and contemporary notion of politics and argues that in the polis the two aspects are inseparable: When we speak today of “state,” we understand “state” in contradistinction to “society,” yet “city” [polis] comprises “state” and “society.” More precisely, “city” antedates the distinction between state and society and cannot therefore be put together out of “state” and “society.”24 Maimonides’ conception of politics draws on the classical notion of political life as comprehensive.

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Medieval Interpretations Recall that Maimonides speaks of human society as a “political association” (Guide :). Samuel ibn Tibbon, Maimonides’ younger contemporary who translated the Guide from Arabic to Hebrew, translates Maimonides’ “political association” as ha-kibbutz ha-medini. The biblical word medinah can mean locality or province, but there are verses in which it means polity.25 There are also several rabbinic and medieval passages where the term is used in a distinctly political sense, most notably by Joseph ibn Migash, teacher of Maimonides’ father.26 But it is through Maimonides’ articulation of the role of politics that the term medini gains theoretical significance by virtue of designating the political as a distinct domain of thought and action. Ibn Tibbon’s choice of the adjective medini was a natural one. Not only is the word medinah found in traditional texts, but the Arabic word for political—madani—is the same. The Arabic term madinah means city and is the word used to translate the Greek polis.27 Goitein has argued that “the concept of state [medinah] is alien to the political glossary of both Islam and Judaism. It is a loan word, a translation from the Greek polis or politeia, and was naturalized in Arabic and Hebrew only after Greek philosophy had gained a foothold in Islam and consequently in medieval Judaism.”28 Once it did gain entry, however, it was embraced by Jewish philosophers and became an integral part of the vocabulary of political discourse. Samuel ibn Tibbon appends an “Explanation of Foreign Terms” to his translation of the Guide, finding such a glossary necessary to elucidate the linguistic innovations he has devised to overcome the absence of scientific terminology in Hebrew. One of the terms in it is medini: An adjective from medinah. His saying: “man is political [medini] by nature”—means: he must dwell in a medinah, or in a place where he will associate [yitkabbetz] with others of his species in a medinah, and not remain solitary in the wilderness or wherever he may chance.29 He assumes that the reader is familiar with the use of the term medinah for polity. As we saw, his father, Judah ibn Tibbon, used it in this sense in his translation of Halevi. But although Samuel ibn Tibbon clearly senses that the term needs explanation, his definition does not succeed in capturing the

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full sense of the concept of politics Maimonides is referring to in arguing that man is political. Specifically, it does not allude to the elements of law and government. A similar inadequacy is apparent among later medieval commentators on the Guide. Profiat Duran, known by his pseudonym “Efodi,” explains Maimonides’ proclamation in the following way: For he needs many activities and preparations and if there would not be any association [kibbutz] man would lose all his days preparing his essential needs and would not achieve the perfection of his soul. (:) Efodi’s account stresses the human lack of self-sufficiency, but his exposition, too, fails to identify the distinctively political element.30 However, another commentator, Shemtov ibn Falaquera, retains some of the political character of Maimonides’ discussion. In Falaquera’s understanding of Maimonides, the problem of the human condition runs deeper than the lack of self-sufficiency. Man is in need of a process of socialization in order to transform his original wilderness instincts. This socialization is achieved through a combination of education, legislation, and political rule. For it is known that with respect to his soul “man be born like a wild ass’s colt” (Job :). That is to say, every man is like a wild ass who is of the desert by his nature, and were it not for habituation and training, would be like the dangerous animals of the forest.31 Clearly echoing Maimonides, Jacob Anatoli (Samuel ibn Tibbon’s son-inlaw) argues that because the natures of human beings are different and their wills clash, were it not for the rule of [memshelet] one [of their number] over them, there would be no accord and much strife. Therefore we are commanded to appoint judges, police, and a king over the people to rule [limshol] over them and provide just counsel.32 Anatoli utilizes Guide : to justify government and its institutions: “judges, police, and a king.”

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Naturalizing Divine Law Maimonides makes the proclamation concerning man’s political nature in speaking of the law. The intent of “man is political by nature” is to lead us to an analysis of the meaning of divine law, about which he states, “although it is not natural, [it] enters into what is natural” (:). The naturalness Maimonides attributes to politics has significance beyond acknowledging the need for specialization of labor and prevention of brutality. First, there is a basic need for political authority. The domination of one person over another is a natural necessity. To quote Maimonides, it is natural that some individuals belonging to the human species “should have the faculty of ruling” (:). This in turn implies that those individuals not so endowed are by nature to be ruled. Thus Maimonides’ claim is far stronger than that of Efodi, who stresses the impossibility of individual self-sufficiency but does not mention government and ruling. Unlike Falaquera, Maimonides does not conceive of human beings as essentially anarchic. Maimonides grounds the need for authority in the need to overcome differences rather than in the need for socialization. An account of the Torah as law must begin by locating it politically because, “the Law, although it is not natural, enters into what is natural.”33 The subject of : is the meaning of the Torah as law. This subject is situated at the heart of the discussion of prophecy because the prophet is understood as a lawgiver, and as we have seen, the prophet-lawgiver is the king’s counterpart. This is again apparent in :, where in the chapters introducing the reasons for the commandments, Maimonides reiterates the political dimension of the law. The Law as a whole aims at two things: the welfare of the soul and the welfare of the body. As for the welfare of the soul, it consists in the multitude’s acquiring correct opinions. . . . As for the welfare of the body, it comes about by the improvement of their ways of living one with another. . . . This cannot be achieved in any way by one isolated individual. For an individual can only attain all this through a political association, it being already known that man is political by nature. (:, pp. ‒) Saying that the Torah enters into what is natural means that like other systems of law, nomoi, it is law because it relates to man’s political character.

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It is not law because it is God’s positive command but because it applies to human beings who need political rule. According to Maimonides, all legal systems are based on the same presupposition about human beings’ political nature, namely, that people must live in a society ordered by a ruler. The essential difference between divine and nondivine law is in their visions of the good. Nomoi characteristically aim exclusively toward the ordering of the city and of its circumstances and the abolition in it of injustice and oppression; and . . . no heed is given to the perfecting of the rational faculty, and no regard is accorded to opinions being correct or faulty—the whole purpose of that Law being, on the contrary, the arrangement, in whatever way this may be brought about, of the circumstances of people in their relations with one another and provision for their obtaining, in accordance with the opinion of that chief [al-ra’is], a certain something deemed to be happiness. (:, p. ) Such law is contrasted to divine law: If, on the other hand, you find a Law all of whose ordinances are due to attention being paid, as was stated before, to the soundness of the circumstances pertaining to the body and also to the soundness of belief —a Law that takes pains to inculcate correct opinions with regard to God, may He be exalted in the first place, and with regard to the angels, and that desires to make man wise, to give him understanding, and to awaken his attention, so that he should know the whole of that which exists in its true form—you must know that this guidance comes from Him, may He be exalted, and that this Law is divine. (:, p. ) Maimonides does not argue that what makes a law divine is its source; rather what makes it divine is its purpose and content,34 just as the character of the prophet—his saintliness—is what determines his trustworthiness.35 Maimonides utilizes political science to create a framework for understanding Torah as a system of law. Claiming that the Torah is divine does not have a mystifying effect, because this framework embraces both the natural and the divine aspects of the Torah.36 It is a mistake to contrast “divine” and

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“natural,” for it is through locating the Torah in nature that we can understand the significance of ascribing divinity to it. The parallel Maimonides draws between law and nature in : is, as Joseph Stern argues, “not a parallel between two different domains but within one domain. Just as knowledge of God’s attributes of action, His governance of nature, is attained through study of natural science, so one understands . . . why and how the Mosaic commandments came to be legislated, by studying their natural causes.”37 The unity of God implies the unity of creation and commandment. Locating the Torah in a class of phenomena, namely, that of legal systems, reveals its character and enables a comparison with other members of that class. Yet such a comparison reveals that the Torah is not merely a legal system like any other. Torah law aspires to a perfection of humans beyond that demanded by natural necessity. While the Torah enters into the natural insofar as it is presented in the form of a law of a polity addressing human beings’ political situation, this natural political aspect does not exhaust the content of the Torah, which seeks to develop rational perfection, a nonpolitical need. The naturalization of divine law is not readily palatable to many commentators, medieval or modern. These commentators offer readings of Maimonides’ characterization of the Torah as “not natural but entering into what is natural” in what they deem a more pious fashion. Such readings follow two strategies. They either impose upon Maimonides concepts foreign to the discussion or try to construe the thesis itself in a way that weakens its radical thrust. Asher Crescas’s interpretation evidences both strategies: “Enters into what is natural.” What this means is, because it is a divine nomos measured with the greatest accuracy and balance. Its intention being that men be led to follow this order and not depart from it, and from constant adherence, the matters arranged in the religion will be rendered as if they were natural. And as everyone follows those opinions, the Torah is, as it were, for all those who follow it, a natural matter. This is because of their great and studious adherence to that correct and just order arranged by God, may He be blessed, who gave it. (:) The pious concern is clear. In Crescas’s interpretation, “natural” is not an attribute of the Torah. The Torah becomes second nature to its followers, who

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internalize its order. This reading is based on a characterization of the Torah as a law that, unlike nondivine nomos, is “measured with the greatest accuracy and balance.” Maimonides, however, does not share the goal of turning Torah into second nature, that is, making it habitual, but rather stresses the importance of moral motivation.38 Furthermore, although Maimonides does describe the laws of the Torah as “equibalanced” (:), the contrast with nomos does not revolve around this point. It is Halevi who argues that precise measurements, even as they pertain to the rational and social laws, are revealed by God alone, and Crescas uses this conception of precision to reread Maimonides.39 But Maimonides stresses that it is due to man’s political nature that he regards the Torah as having a natural dimension.40 Taken together, the natural necessity of domination and the political constraints motivating both divine law and nomos suggest that certain nonideal legal systems and political rulers may be naturally legitimate. Much of the study of Maimonides’ political theory focuses on his vision of the ideal polity or ruler and on ranking political arrangements accordingly. In Philosophy and Law, for example, Strauss argues that “‘politics’ and ‘political’ are to be understood in the Platonic sense . . . [which] is not a matter of a state in general, but of the state directed to the specific perfection of man, the ‘excellent state,’ the ideal state.”41 But this approach diverts our attention from Maimonides’ politics of the actual—what he considered acceptable or, at any rate, tolerable, political activity. And any adequate characterization of his ideal polity and ruler calls for prior understanding of his account of political activity in general. Maimonides’ conceptualization of politics postulates a gradation of perfections that the polity seeks to promote: Know that as between these two aims, one is indubitably greater in nobility, namely, the welfare of the soul—I mean the procuring of correct opinions—while the second aim—I mean the welfare of the body—is prior in nature and time. The latter aim consists in the governance of the city and the well-being of the states of all its people according to their capacity. This second aim is the more certain one, and it is the one regarding which every effort has been made precisely to expound it and all its particulars. For the first aim can only be achieved after achieving this second one. (:, p. )

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Maimonides thus asserts the priority of politics in the achievement of human perfection. In the coming chapters I will examine how this precedence accorded to politics translates into royal power in the Maimonidean monarchy. I will begin with the implications of politically situating the Torah for the relationship between rulers and the rule of law. Before turning to that question, however, I would like to return to the suggestion that nonideal polities can be legitimate. In his definition of nomos, Maimonides introduces an element not present in his account of the original polity. The social order is arranged so that people can obtain “a certain something deemed [by the chief] to be happiness.” This suggests three types of polity: a. The natural polity, indifferent to human ends, not informed by divine law, and focused solely on social order. b. The nomoitic polity, whose laws promote certain non-rational goals, for example, happiness. c. The divine polity, whose laws promote rational perfection.42 The latter two types of polity are naturally legitimate to the degree they partake in the first. From the perspective of compliance with divine law, the first is clearly deficient, but this does not imply that it has no legitimate authority. Indeed, the legitimacy of the ideal polity is based on the very principle that sanctions the natural polity. The nomoitic polity will be deficient to the extent that the happiness it promotes detracts from attaining true human perfection.43

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2 THE INSUFFICIENCY OF LAW

  is a society in which there is a ruling element. Ruling has two aspects: power, or the capacity to compel subjects and instill in them deterring fear; and law, the reasoned ordering of society. The relation between these two aspects of government, however, is unclear. Maimonides’ initial description of the polity spoke of a ruler who combined them within himself. But this synthesis may not be embodied in a single individual, necessitating more than one ruler. The question of the proper balance between the two elements then arises: power without law is blind, just as law without enforcement is empty. In this chapter, I will examine Maimonides’ conception of the proper scope and boundaries of the law; in the following chapter, I will explore what he considered an acceptable balance between political power and law.

Maimonides on Law The Torah was given in the form of law, and this structural mode has specific consequences. Maimonides sees law as a body of rules in accordance with which disparate individuals are united in a polity. In the process of ordering a polity,

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some individuals will necessarily lose out. The individual and the particular must, to some extent, be overlooked: Among the things that you likewise ought to know is the fact that the Law does not pay attention to the isolated. The Law was not given with a view to things that are rare. For in everything that it wishes to bring about, be it an opinion or a moral habit or a useful work, it is directed only toward the things that occur in the majority of cases and pays no attention to what happens rarely or to the damage occurring to the unique human being because of this way of determination and because of the legal character of the governance. (Guide :, p. ) Rules are general; they are directed “only toward the things that occur in the majority of cases.”1 Laying down rules requires that contingencies of time, space, and individuals be overlooked. “Matters that are primarily intended in the Law ought not to be dependent on time or place. . . . only the universal interests, those of the majority, are considered in them” (:, p. ). Thus the “legal character of the governance” entails that laws will be framed in general terms and of necessity will not accommodate exceptional cases. This discussion calls to mind Aristotle’s views on justice and equity. Aristotle defines equity as “a correction of legal justice” (EN b) or “a correction of law where it is defective owing to its universality” (EN b‒): All law is universal but about some things it is not possible to make a universal statement which shall be correct. In those cases, then, in which it is necessary to speak universally, but not possible to do so correctly, the law takes the usual case, though it is not ignorant of the possibility of error. And it is none the less correct; for the error is not in the law nor in the legislator but in the nature of the thing, since the matter of practical affairs is of this kind from the start. (EN b‒)2 According to Maimonides, the important political implication of this feature of the law is that the polity as a whole takes precedence over the individual: Governance of the Law ought to be absolute and universal, including everyone, even if it is suitable only for certain individuals and not suit-

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able for others; for if it were made to fit individuals, the whole would be corrupted. (Guide :, p. ) It is to the whole, and not merely the majority, that Maimonides refers. Politics and law aim at cultivating a whole. As a system of general rules, the legal system is structured in terms of the whole.3 This feature of the law is not arbitrary, however, as it is grounded in nature. In creating a lawful polity, the law is imitating nature: For the Law is a divine thing; and it is your business to reflect on the natural things in which the general utility, which is included in them, nonetheless necessarily produces damages to individuals.4 . . . In view of this consideration also, you will not wonder at the fact that the purpose of the Law is not perfectly achieved in every individual and that, on the contrary, it necessarily follows that there should exist individuals whom this governance of the Law does not make perfect. For not everything that derives necessarily from the natural specific forms is actualized in every individual. (:, p. ) This naturally grounded hierarchy determines the precedence of the whole over the individual. The same constraints that apply to nature apply to the law, and “the contrary of this is impossible” (:, p. ). The logical character of the law’s structure is to be distinguished from the content of the law, which can be good and/or just. In defining these terms, Maimonides provides important terminology for evaluating the law. The goodness of a law is determined by the ends it seeks to achieve. Just as the good and excellent action is that accomplished by an agent aiming at a noble end, I mean one that is necessary or useful, and achieves that end. (:, p. ) So, too, every commandment and prohibition in these Laws is consequent upon wisdom and aims at some end, and . . . all Laws have causes and were given in view of some utility. (:, p. )

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The goodness of the law relates to the ends it seeks to promote, and as we saw in discussing the distinction between nomos and divine law in the previous chapter, Maimonides offers a gradation of legal systems according to their relative goodness.5 But is the law just? The word sedaqah is derived from sedeq, which means justice;6 justice being the granting to everyone who has a right to something, that which he has a right to and giving to every being that which corresponds to his merits. (:, p. )7 Overriding individual rights due to general considerations, the law cannot always accommodate the just desserts of individuals. Maimonides’ argument for the system’s giving precedence to the whole over the individual only justifies what Aristotle refers to as “legal justice.” Remedies are needed to reconcile the constraints of the legal system with the just desserts of individuals.8 In : Maimonides does not address such remedies. His remarks on the limitations of law with respect to achieving full justice are made in his discussion of the reasons for the commandments. The limitations of law are presented as a premise for that discussion rather than as a problem to be worked out. Elsewhere in the Guide, however, Maimonides mentions two avenues that might suggest remedies for the consequences of legal justice.9 Although they apply not only or even primarily to this problem but to the wider discretionary responsibility of courts to determine the course of action that best furthers the ends of the law, the effect of these avenues as remediating the constraints of legal justice is not thereby diminished. The first such avenue is legislative acts by the Sanhedrin, the supreme judicial-legislative body. The giving of the Torah was a canonical act in that it ended all acts of primary legislation. Only God, mediated through Moses’ unique prophetic ability, is a legislator in the full sense, that is, a creator of law. All rabbinic legislation is thus of a secondary, corrective nature. Inasmuch as God, may He be exalted, knew that the commandments of this Law will need in every time and place—as far as some of them are concerned—to be added to or subtracted from according to the diversity of places, happenings, and conjunctures. . . . He permitted the

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men of knowledge of every period, I refer to the Great Court of Law [Sanhedrin], to take precautions with a view to consolidating the ordinances of the Law by means of regulations in which they innovate with a view to repairing fissures. (:, pp. ‒) The law is aware of its limitations, so to speak, and provides procedural means for overcoming them by way of secondary legislation. The second avenue Maimonides mentions is the discretionary power of jurists, which supplements the law in its actual application: “they were permitted in certain circumstances or with a view to certain events to abolish certain actions prescribed by the Law or to permit some of the things forbidden by it” (:, p. ). The discretionary prerogatives of the jurists fall under the heading of “temporary decisions” (hora’at sha’ah). Maimonides clarifies the different functions of law by comparing law and medicine: It also will not be possible that the laws be dependent on changes in the circumstances of the individuals and of the times, as is the case with regard to medical treatment, which is particularized for every individual in conformity with his present temperament. (:, p. ) Judicial activity is geared to contingency. Application of the law calls for weighing alternatives and weighing the relations between means and ends. In the Code, the doctor is used as a model for discernment in applying the law: Even as a physician will amputate the hand or the foot of a patient in order to save his life, so the court may advocate, when an emergency arises, the temporary disregard of some of the commandments, that the commandments as a whole may be preserved. (Laws concerning Rebels :) Invoking emergency measures mandates that the courts be discerning as to the needs of a particular case: “the needs of the hour.”10 Whereas in creating law the needs of particular “hours” must be overlooked, its practical application mandates sensitivity to the contingent. Some have argued that the similarity between Maimonides and Aristotle

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on law and equity is only superficial. Rosenthal claims that Aristotle maintains that the law is binding only on those to whom it applies—the majority—whereas Maimonides maintains that the law is binding even on the minority to whom it does not. According to Rosenthal, Aristotle is really arguing against the ability of law to order society adequately and, consequently, for the precedence of philosophical prudence over law. Rosenthal presents Aristotle’s position by weaving together the various formulations of the principle of equity found in the Aristotelian corpus: Aristotle thus reveals his opinion that the heteronomous law must be “corrected” [“correction of law” (EN b)] in accordance with autonomous morality. I.e., the science of law, jurisprudence, must be subjected to philosophy. “Equity”—that “sort of justice” which is not only “better than the just” but even the “very best”—is, in truth, representative of philosophy—of “the truth”—which serves, albeit camouflaged in various “pieties” in the royal court of the law. . . . But in the words of our Rabbi [Maimonides] there is no hint of this. His “Torah”—in contrast to the nomos of Aristotle—needs no correction.11 I agree with Rosenthal’s assessment that Aristotle is proffering a critique of law. This is apparent from the literary structure of Book V of the Nicomachean Ethics, specifically, the recurring contrast Aristotle draws between justice and law. It is also true that Maimonides does not speak of “correcting” the law. However, as noted, Maimonides envisages two avenues of remedial activity broad enough to allow that the differences between Maimonides and Aristotle may be more semantic and rhetorical—that is, more a question of the aptness of the term correction—than substantive/legal. Even if we accept the claim that these remedies do not pertain to individuals, the implications for the role of the judiciary vis-à-vis the law are not altered. To summarize, the law’s generality makes it suitable for the needs of government. Law is the rule that orders the polity, and legislation is formulated with a view to the whole. Hence, it overlooks the needs of contingency: of particular times, places, and individuals. It is not arbitrary, because the whole, by nature, takes precedence over its parts. The law, however, does try to address local infringements and violations of justice by means of procedures that enable judges, when applying the law, to take into account specific needs. The effectiveness of these remedies will determine the law’s justice.

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From Law to Politics We saw that Maimonides is sensitive to the limitations of law with respect to justice for individuals. He is also keenly aware of the technical limitations of legal procedure that at times may bar the courts from bringing a criminal to justice, limitations that may diminish the ability of the law to order society effectively. Hence, not only is the Sanhedrin accorded discretionary power, but the king has such powers as well. The king may exercise discretionary power when the courts, bound as they are by legal procedure, are incapable of convicting a killer: If the court does not sentence him [a murderer] to death, the ruler [sultan] will kill him; for he may kill on the grounds of a presumption. (:, p. ) Maimonides does not accord the king a role in the judicial or legislative processes; the king becomes involved only after the judicial procedure has taken its course. What are the grounds for the king’s involvement? We saw earlier that the king was presented as the agent responsible for the enforcement of law (:). But no enforcement can be effected if an offender cannot be convicted. We may then look to the king, as the agent responsible for social order, of which law enforcement is only a part. What are the king’s responsibilities and prerogatives in this regard? Does Maimonides sanction a procedure for ordering society that is independent of the rule of law? Maimonides speaks time and again of the king as the one “compelling” (:) or deterring the masses and inspiring “fear” (:) in them. There is no doubt that power is crucial to his role in securing social order and external peace. In The Virtuous City, Al-Farabi declares: Rulership requires two conditions: (a) he should be predisposed for it by his inborn nature, (b) he should have acquired the attitude and habit of will for rulership which will develop in a man whose inborn nature is predisposed for it.12 Maimonides, however, is alarmingly silent about the sources of the king’s power, in contrast to his treatment of the king’s authority to use it. Maimonides’ description of the king as the ultimate power ensuring so-

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cial order, taken together with his conception of the king’s role as the polity’s generator and cohesive force, points to the possibility that the king’s political power precedes the rule of law. No doubt the constitutional role of the king is determined by the degree to which the law tolerates his independence, the amount of legitimate space assigned to him outside the confines of the law and the Sanhedrin. But in the Guide, Maimonides’ discussion is limited to general statements. To assess the respective roles of the king and the law in maintaining social order we must turn to the Code for a fuller description of the king’s authority.

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3 THE CODE ON THE PRIORITY OF POLITICS

   of Maimonides’ understanding of the role of the king and his understanding of the polity draws on legal material, primarily the Code’s Laws of Kings. Though part of a multivolume work, it is also a self-contained treatment of political rule. I will therefore focus on this volume and refer to Maimonides’ other works only insofar as they illuminate it. The Laws of Kings can be divided into three main parts. The first four chapters cover laws concerning the king, his qualifications, his appointment, and his authority. The middle section, chapters ‒, considers laws concerning war, its conduct, and the status of prisoners. The last two chapters deal with laws concerning the messianic king and the messianic era. My principal focus here will be the first part of the Laws of Kings; in the next chapter, I will discuss Maimonides’ conception of the messianic era. A second methodological principle I have adopted addresses another problem associated with the Code: that of distinguishing between Maimonides’ statement of the Talmud’s position on a given matter and his own view. In interpreting the law, Maimonides’ subjective input is most apparent in the way he reframes and paraphrases talmudic dicta and in the way he chooses to order the various laws in his codification. Alertness to these nuances allows for sensitivity to implicit premises and values not articulated directly. Hence, in analyzing key laws from the Code in this chapter, I generally cite the tal-

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mudic clause as well as Maimonides’ restatement of it; I also attend to Maimonides’ decisions regarding the ordering of laws within a given chapter. My primary interest is to demonstrate how Maimonides’ rulings and codification decisions provide insight into his views on desirable constitutional arrangements. Naturally, these in turn reflect his conception of the nature and goals of political association. We saw that the king and the law function in complementary ways in ordering society, though the king has a certain precedence, since his power creates the primary social bond. In Maimonides’ words, it “hold[s] them [the individuals in a society] together” (:, p. ). This respect for the institution of monarchy is reflected in Maimonides’ rendition of the biblical laws of kings.

Monarchy—A King Must Be Appointed and Honored

Maimonides as a Monarchist [] If, after you have entered the land that the Lord your God has assigned to you, and taken possession of it and settled in it, you decide, “I will set a king over me, as do all the nations about me,” [] you shall be free to set a king over yourself, one chosen by the Lord your God. Be sure to set as king over yourself one of your own people; you must not set a foreigner over you, one who is not your kinsman —D   . :‒

These biblical verses provide the theme for the first chapters of the Laws of Kings. Chapter  reads verse  as a command to appoint a king and elaborates upon the procedure of appointment. This understanding of the verse is not self-evident: the verse can also be taken as granting permission to appoint a king rather than commanding Israel to do so. Indeed, the controversy over whether appointing a king constitutes one of the  commandments has no clear resolution.1 Since, even as late as the time of Maimonides, the meaning of this verse and the legal status of monarchy were still open questions, his ruling that the appointment of a king is a commandment is highly significant and should be understood as his taking a position rather than merely recording an existing tradition. In other words, Maimonides is a monarchist by conviction.2

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The King as Sovereign The king is the pinnacle of the political hierarchy, and this position informs his relationship with God. In the rabbinic literature, the king’s status is expressed through the interpretation of Leviticus , which deals with sin offerings. The sacrificial offerings mandated by biblical law vary according to the status of the party bringing them. Our Rabbis taught: “A ruler” [nasi] might signify the ruler of a tribe, like Nahshon the son of Aminadab, hence it was stated, “Of all the things which the Lord his God hath commanded” (Lev. :). [Now] further on it [is] stated, “That he may learn to fear the Lord his God” (Deut. :). As [further on in Deuteronomy] the reference is to him who has none above him save the Lord his God, so in the case of the “ruler” the reference is to him above whom there is none save the Lord his God. (BT Horayot a‒b) God is related to the monarch in a way that is unique, a way that does not characterize God’s relationship to the monarch’s subjects. Only the king stands before God as a completely free agent. His subjects all have a dual loyalty: they are subjects of both the king and God. Only the king is a subject of God alone. With the biblical and talmudic sources before us, let us now turn to Maimonides’ treatment of the monarch. In the Code, Maimonides explicitly adopts the Sages’ definition of sovereignty: Who is the Nasi [ruler] spoken of in the Law? He is the king, over whom no man in Israel has authority [reshut] and above whom in his kingdom there is none save the Lord his God. (Laws concerning Transgressions through Error :) This notion of sovereignty finds fuller expression in the Laws of Kings, Maimonides’ main exposition of his constitutional theory. Chapter ’s theme is the midrashic rendering of the command to appoint a king: Having already said, “Thou shalt in any wise set a king over thee,” why does the verse say again “shalt thou set a king over thee”? In order that the fear of him should be upon you. (Sifre, Deut. )

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The midrash reads the verse enjoining that a king be “set . . . over thee” as an emphatic command: to “set” means to ensure he is “over thee”—the king is to be feared by his subjects. The midrash reiterates the spatial metaphor of “being above” used in the definition of sovereignty. Maimonides interprets this midrash as indicating that awe and honor are due the king, specifying in detail how this esteem is to be expressed. The safeguarding of his personal privacy—bodily and emotional—is scrupulously detailed. His personal hygiene, like his public demeanor, is governed by considerations of honor and office (Laws of Kings :‒). The elevated position accorded the king in the Talmud and in the Code’s Laws concerning Transgressions through Error is also mandated in the Laws of Kings but with certain qualifications. Maimonides is aware of the complexity of the relationship between the king and his subjects, particularly as this relationship is complicated by the existence of another powerful institution—the polity’s judicial/legislative body, the Sanhedrin: It is incumbent upon the king to give honor to students of the Torah. When the members of the Sanhedrin and Sages of Israel visit him, he shall rise before them and seat them at his side. . . . This humble attitude becomes the king in the privacy of his home only, when none but he and his servants are there. He may not act thus in public, he may not rise before any man, nor be soft of speech, nor call anyone but by his name, so that his fear be in the hearts of all. (:) Maimonides stipulates that the public must regard the king as higher in the political hierarchy than the halakhic authorities. The public understanding must be that the king rules over the Sanhedrin. This notion of the king as ruling over the Sanhedrin is powerfully reinforced in Maimonides’ reworking of the well-known discussion in tractate Horayot about who takes precedence when there is a possibility of saving lives or redeeming someone from captivity. The Mishnah states that “the bastard [mamzer] scholar takes precedence over the ignorant high priest” (Horayot :; JPT, p. ). Torah study carries greater weight than lofty status. The Talmud extends the Mishnah’s radical reordering of values to the political realm:

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Our Sages taught: . . . A scholar takes precedence over a king of Israel, for if a scholar dies there is none to replace him, while if a king of Israel dies, all Israel are eligible for kingship. (BT Horayot a) In the Commentary on the Mishnah, Maimonides responds to this turn: The Sages’ saying that, “A scholar takes precedence over a king, a king [takes precedence] over a high priest and a high priest [takes precedence] over a prophet,” is much restricted. This is so because the precedence of a scholar over a king is theoretical only: [in principle] the utility of a scholar to the nation is greater than that of the king. But in practice, no man should supersede the king’s honor, even if the king is an ignoramus, as has been stated regarding him, “Thou shalt in any wise set him king over thee” (Deut. :). (CM Horayot :) In the Code, Maimonides does not mention this distinction between theory and practice. He also omits the talmudic dictum about the precedence of the scholar. These omissions are telling. It is the king who holds the polity together and therefore, we may infer, takes precedence over the scholar in cases where lives are at stake and not everyone can be saved.3 Let us now examine how this position is reflected in the concrete institutions of the king and the Sanhedrin.

The King and the Sanhedrin

The Heredity Principle Maimonides describes a complex interplay of functions and authority between the king and the judiciary. The Sanhedrin participates, along with a prophet, in appointing the first king of a dynasty (Laws of Kings :), but this is an exception to the general principle, governing all public offices, that heredity determines entitlement. The heredity principle fortifies the king’s sovereignty by placing his ascent to power beyond the reach of the representatives of the law. By clearly deciding the succession, and thereby eliminating

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the vacuum or conflict that might otherwise ensue upon the death of an official, societal equilibrium is maintained. Maimonides tries to avoid the problems often associated with hereditary succession by emphasizing that only morally worthy and pious individuals are to be appointed to the office of king: Provided that the son is entitled to fill the vacancy by reason of wisdom and piety. If he is qualified to take his father’s place by reason of piety, but is not his father’s equal in wisdom, he is appointed and given additional instruction. But if he is wanting in piety, he is not appointed to any office, be his knowledge ever so great. (:) Only moral and religious inadequacy, not political incompetence, are put forward as disqualifying the candidate. But these reservations are not wholly satisfactory. Although they limit the range of candidates for the position, they do not affect the political meaning of the heredity principle itself. Furthermore, if an inappropriate candidate is, in fact, instated, the appointment is apparently nonretractable, and the authority of the official in question remains binding. The heredity principle of office forestalls all kinds of questions as to the successor’s personal fitness, replacing such queries with established rules of succession determining who is entitled to assume office.

War The Sanhedrin must also give its consent before a “permitted,” that is, nonessential, war is waged: For a war waged for a religious cause, the king need not obtain the sanction of the court. He may at any time go forth of his own accord and compel the people to go with him. But in case of an optional [reshut, permitted] war, he may not lead forth the people save by a decision of the court of seventy-one. (:)4 But who decides how to categorize a given war—the king or the Sanhedrin? The consultation is not formalized in any clear way. However, given law :,

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quoted earlier, it is reasonable to assume that the Sanhedrin must present itself to the king upon his summons.5

Accountability and Legitimacy According to Maimonides, the Sanhedrin exercises little immediate control over the king and his policies, even if he breaks the law. Yet the Tosefta explicitly states that if the king “transgresses a positive or negative commandment, or any other commandment, he is as a commoner for all purposes” (Sanhedrin :). Maimonides, however, makes no mention of this ruling. He follows the Babylonian Talmud in reading the story of King Yannai, quoted in my introduction, as a cautionary tale: Although the kings of the House of David may not be given seats on the Sanhedrin, they judge others and are judged in a suit against them. But the kings of Israel may neither judge nor be judged, because they do not submit to the discipline of the Torah. [To sit in judgment on them] might lead to untoward consequences. (Laws concerning the Sanhedrin :) In view of the fact that there is a rabbinic precedent available to Maimonides, his decision to ignore this precedent and read the Yannai story as he does is an interpretative choice. Maimonides chooses to override a precedent establishing the obligation to bring wayward kings to trial. Bringing kings of Israel to justice is a dangerous matter, and it is best to refrain from doing so.6 But it is not only a matter of expediency. The fact that a wayward king is nonetheless considered legitimate indicates that a certain conception of political accountability is at work here. Consider the following law: If a sage grown old in wisdom, a Nasi, or Ab-Beth-Din, committed a grave offence, he is under no circumstances to be publicly excommunicated, unless he acted like Jeroboam, the son of Nebat and his confederates. But if he committed other sins less heinous, he is punished with stripes privately . . . even if he stumbled, conceal it as in the darkness of the night. And we also say to him, “Save your self-respect and

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stay at home” (II Kings :). (Laws concerning the Study of the Torah :) Public accountability threatens the stability of authority; hence, transgression is punished only under cover of darkness. We will see later that what constitutes a transgression remains a moot point.7 Indeed, Maimonides emphatically affirms the legitimacy of Israelite kings: Who is the Nasi [ruler] spoken of in the Law? He is the king, over whom no man in Israel has authority [reshut] and above whom in his kingdom there is none save the Lord his God, whether he is of the house of David or of any other tribe of Israel. And if there are many kings, none of them subject to the other, each one of them “shall bring for his offering a goat” (Lev. :) because of his error. (Laws concerning Transgressions through Error :) I have already noted that the sacrificial offerings mandated by biblical law vary according to the status of the party bringing them. As they bring the same sacrificial offering for transgressions, Davidic and non-Davidic kings are equal in terms of sovereign status. Further, Maimonides here acknowledges the possibility of a number of coexistent Israelite polities. The criterion of individuation—and legitimacy —is that of the independence of the ruler. Presumably, each kingdom would have its own legal and legislative system. In fact, Jeroboam understood that an independent kingdom requires an independent temple and priests, and Scripture never forgives him for acting accordingly.8 Would Maimonides accede to two high courts in Israel? The Sanhedrin thus exercises no significant institutional control over the king. Yet though the Sanhedrin does not control the king, it does control the law and, in that respect, the polity. The king does not participate in the legal process, and even Davidic kings who may judge cannot sit on the Sanhedrin (Laws concerning the Sanhedrin :‒). The definition of sovereignty, the arguments for the king’s precedence in honor and life over the Sanhedrin and scholars, and the legitimacy of Israelite kings all reflect the same basic attitudes we encountered in the Guide: The king is a ruler whose task is to inspire awe and fear and to ensure compliance. To consolidate his rule, the establishment of order must take prece-

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dence over the rule of law. Maimonides believes that without a powerful monarch, social order cannot prevail. In line with this attitude, Maimonides is willing to make room for the king as an authority independent of the halakhah. He accords the monarch an extensive range of extralegal powers, including penal authority beyond that sanctioned by the law’s official penal code and legislative powers that bypass the recognized judicial-legislative body, the Sanhedrin. This mandate does not permit the king to interfere with the Sanhedrin’s rulings on divine law, which remains impervious to such extralegal measures, preserving its integrity, but it does reinforce the monarch’s rule of the polity.

The King’s Right to Command

Royal Decree Setting out to investigate the “Original of Political Power” at the beginning of his Second Treatise of Government, Locke suggests the following definition: “Political Power . . . I take to be a Right of making Laws with Penalties of Death” (chapter , ). The focus of power in a polity is located in the agent empowered to put people to death and to make law. The Maimonidean king is such an agent: The king is empowered to put to death anyone who rebels against him [literally: whosoever rebels against a king of Israel, the king is permitted to put to death]. Even if any of his subjects is ordered [gazar] by him to go to a certain place and he does not go, or is ordered to stay home and fails to do so, he is culpable, and the king may, if he so decides, put him to death, as it is written: “Whosoever he be that shall rebel against thy commandment . . . shall be put to death” (Josh. :). (Laws of Kings :) This law establishes the king as an authority independent of Torah law. The idea of legal “extralegal” activity is paradoxical. The king may command, presumably judge, and punish independent of the law’s criminal and procedural prescriptions. Now Jewish law has a very detailed penal code, including laws of evidence, procedure, and punishment. While it is indeed this very

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code that sanctions the king’s further activities, it is nonetheless important to characterize them as extralegal or, to use the halakhic term, “not warranted by the law” (she-lo ka-din).9 Given that such activities are sanctioned by the law, why are they at the same time considered extra or nonlegal? The point is that although the law, formally speaking, governs a certain range of activities, it relinquishes control over their execution. In sanctioning the king’s extralegal activities, the law accepts the risk that its own canons, and underlying vision of justice, may be abrogated, as they need not inform the king’s decisions. Yet we might question whether the Maimonidean king is really sovereign, given the fact that even his extralegal activity is in some sense dependent on the sanction of the law. Legal positivists argue that the sovereign’s right to command is what law is all about. We see that in contrast, in Maimonides’ conception, as presented in the Code, the sovereign’s right to command is ordered by law. The law limits its own jurisdiction by legitimizing the rule of the king. Let us now take a closer look at the legitimate extralegal jurisdiction granted the king. To what degree does Maimonides distinguish between formal laws and arbitrary royal commands, between legislating and ruling by fiat? The law just quoted begins boldly—“whosoever rebels against the king of Israel.” Maimonides wants to illustrate the extent of the king’s reach: even should the king make an arbitrary demand, ordering someone to go or remain, the command must be complied with, and failure to do so is considered an act of rebellion. But the import of the example of rebellious conduct that follows is unclear. Although Maimonides speaks as if he is citing a hypothetical case, his example is based on the biblical story of Solomon’s command to Shimei: “Build yourself a home in Jerusalem and stay there— do not ever go out from there anywhere else. On the very day that you go out . . . you can be sure that you will die” (I Kings :‒). The background here, namely, Shimei’s role in the Absalom rebellion and Solomon’s consolidation of power upon ascending the throne, is significant. The example may point to the rebellious nature of the act, implying that only such a dramatic act of rebellion, an attempted coup d’etat, and any related acts of disobedience are punishable by death at the king’s behest. However, it may be intended to show that the king’s authority to command applies not only to injunctions addressing the polity as a whole but also to particular, and perhaps

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arbitrary, directives issued to specific individuals, directives that must be followed on pain of death. The context of this law points to the latter, broad reading of the king’s power to command. It is, in fact, a pivotal law in the range of monarchic powers enumerated in chapters  and  of the Laws of Kings, as we will see.

Royal Governance and the Rule of Law In the second part of chapter  (laws ‒) and throughout chapter , Maimonides outlines the king’s right to punish and to impose taxes, that is, his right to engage in governmental activities, some of them of a decidedly legal character, outside the purview of the Sanhedrin and Torah law. Before articulating the king’s prerogatives, however, Maimonides expounds, in the first part of chapter , the laws designed to constrain the king’s character. Commands against accumulating wealth, horses, and women are framed by and interspersed with details that accent the king’s submission to the law. The king must be educated in the law: “As soon as the king ascends the throne, he must write a scroll of the Law for himself, in addition to the one which his ancestors have left him” (:). He must regard the Sanhedrin as the authorized interpreter of the law: “He is to have it corrected by the court of seventy-one from the scroll in the Temple Court.” He must manifest awareness of the law at all times, and if he transgresses any of the commandments regulating his accumulations he is liable to flogging. “Scripture lays particular stress on (the danger) of his heart being turned away from God . . . for his heart is the heart of the whole of the congregation of Israel. Therefore Scripture exhorts him more than any other Israelite to cleave to the Law” (:).10 Law  of chapter  both ends the exhortation of submission to the law and begins the outline of the king’s governing prerogatives. It is a radical turn. This law opens by stressing the submission of Davidic kings to the rule of law but repeats the Talmud’s counsel against enforcing the law in the event of the noncompliance of Israelite kings, “because they are arrogant . . . and the cause of religion would suffer” (:). Such recalcitrant kings are nonetheless legitimate. Law  stresses “whosoever rebels against a king of Israel,” indicating that not only Davidic kings but also kings of Israel, who typically do not submit to the law, are nevertheless sovereigns, and one who rebels against them may be put to death. Although there is an explicit rabbinic source stating that “whosoever rebels against the kingdom of the house of David is li-

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able to be put to death” (Tosefta Terumot :), Maimonides, following the discussion in BT Sanhedrin a, uses a prooftext from the Book of Joshua in order to widen the law’s scope to include rebellion against “a king of Israel.”11 Law : has a general formulation indicating that all the kingly prerogatives that will be mentioned in the ensuing discussion of “the king” refer back to this original formulation and can be exercised by a king of Israel as well.12 According to Maimonides, all kings, whether Davidic or Israelite, enjoy these prerogatives, which are constitutive of monarchy. Law :, then, stresses the monarch’s role and power: the king is invested with the authority to command as he sees fit and to punish insubordination by death. It is true that Maimonides immediately qualifies this authority, asserting that it cannot be exercised to transgress Torah law: Whoever disobeys a royal decree because he is engaged in the performance of a religious command, even if it be a light command [mitzvah kallah], is not liable, because (when there is a conflict) between the edict of the Master (God) and the edict of the servant (the king), the former takes precedence of the latter. It goes without saying that if the king issues an order annulling a religious precept, no heed is paid to it. (:) This law distinguishes between the king’s commands and those mandated by divine law, God’s commands. But to which divine commands is Maimonides referring? From the following passage, where Maimonides goes on to state that some transgression of the law is tolerated, as the king is essential to maintaining the social order, it would appear that Maimonides is implicitly making a distinction between commands that govern ritual behavior and those that govern civil behavior: If a person kills another and there is no clear evidence, or if no warning has been given him, or there is only one witness, or if one kills accidentally a person whom he hated, the king may, if the exigency of the hour demands it, put him to death, in order to ensure the stability of the social order [le-takken ha-olam]. He may put to death many offenders in one day, hang them, and suffer them to be hanging for a long time, so as to put fear in the hearts of others and break the power of the wicked. (:)

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Ordinarily, in cases such as those mentioned, because conditions stipulated by the law with respect to the prosecution process cannot be met, the offenders are not punished; the punishments sanctioned here thus contravene Torah law.13 It appears that Maimonides is tacitly distinguishing between social and ritual law. The examples he offers involve instances where a murderer cannot be punished due to legal technicalities, all of which fall under the category of social law. It seems, then, that the king has discretionary authority only with regard to laws that directly protect the social order. In this respect his power is no different than that of the Sanhedrin, which also enjoys extralegal powers. But Maimonides fails to clarify the precise procedure for bringing an offender to justice: does the king intervene only after due process has taken its course, to compensate for technical limitations of the law that bar it from executing justice? Yet even here, the law’s procedural provisions, especially those concerning valid evidence, are not easily dismissed as mere formalities. If an individual has not been proven guilty by the recognized legal procedure, it has not been established that the individual has committed a crime.14 Maimonides also fails to explain how the king’s discretionary powers relate to those of the Sanhedrin. The king’s powers seem to be very broad. The permission granted “to put to death many offenders in one day” is not necessarily connected to the problem of acquitted “murderers” and may be an independent component of the king’s discretionary powers.15 I now turn to examine the range of these powers.

The King’s Right to Punish

Capital Offences A closer look at the laws regarding royal prerogative (Laws of Kings : and Laws concerning Murder and the Preservation of Life :‒) provides an important example of Maimonides’ editorial work, which, as noted, generally serves to indicate his own views on the matter at hand. Maimonides’ understanding of the king’s authority to remedy the problems arising from the limitations of the Torah’s criminal law guides his reformulation of the talmudic dicta.

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The Mishnah states: One who commits murder without witnesses is placed in a cell and [forcibly] fed “bread of adversity and water of affliction.” (BT Sanhedrin b) The Talmud asks: “How do we know [that he committed murder]?” A number of answers are proposed: Rav said: On “disjoined” evidence.16 Shmu’el said: Without a warning.17 Rav Hisda said in Abimi’s name: Through witnesses who were disproved as to the minor circumstances [of the crime], but not on the vital points. All three positions maintain that the clause “without witnesses” in the Mishnah does not mean without any testimony. Rather, they argue that in such cases, while the suspect must be spared capital punishment by the court due to the circumstances of the evidence, the testimony’s basic credibility is not undermined. The three requirements are independent of each other— one could, for example, view the demand that witnesses see the crime together as a technicality yet maintain that warning is essential for establishing culpability.18 In the Laws concerning Murder and the Preservation of Life, Maimonides presents his reading of the matter: [] If one commits murder without being seen by two witnesses at the same time, although they did see him one after the other; or if one commits murder in the presence of witnesses without first receiving a warning; or if the witnesses contradict each other in the crossexamination but not in the primary investigation—the rule in all such cases is that the murderer is put into a cell and fed on a minimum of bread and water until his stomach contracts and then he is given barley so that his stomach splits under the stress of sickness. [] This, however, is not done to other persons guilty of crimes involving the death penalty at the hand of the court; rather, if one is condemned to death, he is put to death, and if he is not liable, he is allowed to go free. For although there are worse crimes than bloodshed, none causes such

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destruction to civilized society [hashhatat yishuvo shel olam] as bloodshed. Not even idolatry, nor [sexual] immorality nor desecration of the Sabbath, is the equal of bloodshed. For these are crimes between man and God, while bloodshed is a crime between man and man. (:‒)19 Maimonides interprets the talmudic positions of Rav, Shmu’el, and Rav Hisda as three different cases falling under the category of “commit[ting] murder without witnesses.” He thus makes an important interpretive choice here. The Talmud provides three solutions to its query; ordinarily, when the Talmud provides a number of solutions, it is because they are in some way incompatible, and only one represents the correct interpretation. However, Maimonides, who seeks to broaden the range of the king’s extralegal activities, prefers to present them as three distinct situations in which such prerogatives can be exercised. This reading of the talmudic discussion is by no means self-evident.20 Although the king is not mentioned here as the agent of justice, in an earlier passage, chapter  of the Laws concerning Murder, Maimonides does mention the king: [] If, however, one hires an assassin to kill another, or sends his slaves to kill him, or ties another up and leaves him in front of a lion or another animal, and the animal kills him, and, similarly, if one commits suicide, the rule in each of these cases is that he is a shedder of blood, he has committed the crime of murder, and is liable for death at the hand of Heaven; but there is no capital punishment at the hands of the court. . . . [] Regarding any of these or similar murderers who are not subject to being condemned to die by verdict of the court, if a king of Israel wishes to put them to death by royal decree [din ha-malkhut] for the benefit of society [takkanat ha-olam], he has a right to do so. Similarly, if the court deems it proper to put them to death as an emergency measure, it has the authority to do as it deems fit, provided that circumstances warrant such action. (:, ) This law is pertinent to our concerns for several reasons. First, a number of locutions and concepts used here are very close to locutions used in the law we have been examining (:‒) (“murderers,” “destruction of society” versus “benefit of society”). Generally, linguistic similarity of this nature sup-

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ports inference from one law to another, suggesting that the king may punish in the cases mentioned in chapter , too. According to law :, the demands of social order empower the king to punish in many more cases than the talmudic passage in Sanhedrin indicates. The problematics in these cases do not pertain to the adequacy of testimony but rather arise from the fact that because the agent did not personally kill the victim, the crimes in question do not fall under the strict definition of murder. Yet despite this, the king is empowered to consider them instances of murder.21 Note also that the king in question is a “king of Israel,” implying that even non-Davidic kings share in the responsibilities and prerogatives of keeping social order. Finally, it is significant that Maimonides speaks here of royal law, din malkhut, which includes a penal code.22 Maimonides refers again to din malkhut in the Laws concerning Murder and the Preservation of Life : and in the Laws concerning the Sanhedrin :, both of which address the king’s power to execute offenders. Medieval and modern scholars have interpreted this category broadly. Menachem Meiri, a thirteenth-century Provençal commentator, following Maimonides, elaborates: The king is permitted to put to death whoever rebels against him and whoever transgresses his command, or whoever his laws call to be executed even though this is not included in Torah law. For it is written, “whosoever he be that doth rebel against thy commandment, and shall not hearken unto thy words in all that thou commandest him, he shall be put to death” (Josh. :).23 Among contemporary scholars, Saul Lieberman argues that the earlier rabbinic term din ha-malkhut refers to a body of law once extant, only remnants of which have reached us.24

Tikkun Olam—‘The Good Order of Society’ Against this background, let us now reexamine law : of the Laws of Kings. Here, too, as I noted, Maimonides speaks of the king as being charged with the ordering of society (le-takken olam). The law presents an extension of liability for capital punishment to cases where the evidence is problematic, an extension that seems disturbingly broad. Even a sole witness is accepted,

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despite the explicit scriptural warning, “he must not be put to death on the testimony of a single testimony” (Deut. :), often interpreted literally.25 Although the king is described in : as having the general right to enforce his commands on pain of death, it is only with regard to murder cases that we find explicit meddling with the outcome of the legal process. The severity of the crime of murder—the destruction of civilized society—calls for the king to take action in order to mend the world (tikkun olam). Maimonides justifies the resort to royal prerogative in the Laws concerning Murder and the Preservation of Life :‒ and the Laws of Kings : by means of the concept of tikkun olam. The use of tikkun olam in this context is a Maimonidean innovation. Blidstein remarks that the king’s intervention in the legal process in murder cases “clearly reveals the tension between the ideal halakhic justice and the demands of the ‘social’ halakhah.”26 Postulation of such a discontinuity between “ideal” and “social” halakhah, however, betrays a basic misunderstanding of Maimonides’ worldview. For Maimonides, law is intrinsically social in that it seeks to order society (tikkun olam), which is why Maimonides rejects the Tannaitic attempts to “idealize” the law by eliminating capital punishment. The distinction between real and ideal is a temporal one: it means that there are certain circumstances termed “ideal,” under which a certain conception of the law becomes applicable, whereas under ordinary circumstances it is inapplicable. This is not Maimonides’ claim. Maimonides instead asserts that human nature is stable, and therefore all kings always have the possibility of recourse to their extralegal powers. The messianic king, as we shall see, is no different in this respect. It is only hoped that his recourse to such powers will not undermine the basic authority of the Torah as the one law of society. Maimonides’ use of tikkun olam is distinctive.27 In his construal, the concept of addressing the needs of the social order is the principle that motivates political activity and its ensuing social regulation in the halakhic framework. While Maimonides uses tikkun olam to ground extralegal penal activity, it does much more than that. In fact, it is through tikkun olam that politics and prudential, pragmatic decisions, as opposed to legal ones, become possible. According to Maimonides, addressing the needs of the social order is essentially the justification for all rabbinic legislation (Laws concerning Rebels :). In addition to citing tikkun olam to justify discretionary activity on the part of both the king and the court in capital cases, Mai-

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monides also speaks of preventing the destruction of civilized society (hashhatat yishuvo shel olam).28 With its emphasis on royal power and authority to ensure social order, Maimonides’ monarchic constitution is decidedly authoritarian. The rule of law, though an important ingredient in achieving this end, must be buttressed by an independently powerful monarch. Maimonides’ constitutional politics, then, embody an authoritarian conception of the monarchy motivated by concern about the law’s adequacy for protecting the social order. This characterization of Maimonides’ politics is reinforced when we consider his views on the death penalty. The Mishnah records the following controversy: A Sanhedrin that puts one man to death in a week of years is called “destructive.” Rabbi Eleazar b. Azariah says: Or one in even seventy years. Rabbi Tarfon and Rabbi Akiva say: Had we been in the Sanhedrin none would ever have been put to death. Rabban Shimon b. Gamaliel says: They would even have multiplied the shedders of blood in Israel. (Makkot :) Maimonides’ authorization of the putting to death of many offenders in a single day (Laws of Kings :) may echo the attitude he expresses in his Commentary on the Mishnah: Concerning the abating of imposition of the death penalty—it is commendable that the Sanhedrin have this intention by patiently sitting in judgment. But if they cannot, and the testimony against the man worthy of death has been validated, then they must put him to death. And even a thousand people day after day if it so occurs and the law demands it. (Makkot :) Maimonides clearly favors Rabban Shimon b. Gamaliel’s position. Indeed, Maimonides’ position in the Code is actually more severe than that expressed in the CM, because it is not the law but rather the king’s perception of the needs of social order that suffices to warrant these harsh measures. Maimonides does not engage in any apologetics regarding the extensive discretionary power he grants the king in allowing him to put to death non-

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prosecutable murderers. His views here are quite consonant with his overall attitude on judicial discretion; he is skeptical about the ability of recognized legal procedure to establish truth29 and does not tend to regard the defendant’s innocence as a constitutive presumption of every criminal procedure that must be undermined for conviction.30 Maimonides is committed to the rule of law and hence to the strict rules of evidence of the halakhic penal code, rules that could conceivably allow a criminal element to undermine social order. His solution is to grant the monarch extensive discretionary powers. He also grants the monarch legislative powers, to which I now turn.

Royal Law In the previous section, we saw that Maimonides recognizes a royal law, din ha-malkhut, in the area of criminal law.31 In chapter  of the Laws of Kings, Maimonides speaks of the king’s “laws” (dinav) with reference to tax law. Royal law thus covers matters of person and property. A close examination of chapters  and  of the Laws of Kings reveals that :, which articulates the king’s right to command and punish, marks a subtle transition: Maimonides moves from detailing laws based on the Deuteronomic laws constraining the king to an exposition of laws based on the “law of kings” found in I Samuel , laws that in the main set out the king’s political and military prerogatives. The king’s power to decree (ligzor) referred to in : is exercised not only through his right to impose the death penalty but also via his legislative power. The king’s commands occasion a notion of law that countenances laws that cannot be described as just but are nevertheless binding. Maimonides follows the talmudic position that it is the king’s prerogative “to exercise all the authority set forth in the section relating to the king” of the Book of Samuel, where Samuel threatens the people with a “law of kings” that will make the people the king’s slaves.32 The Hebrew word avadim can mean both servants and slaves, an ambiguity crucial to the text. In chapter  of the Laws of Kings, Maimonides provides his reading of just what these prerogatives are, tempering them with his own conception of law. The first law is the most significant from our perspective:

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It is within the province of the king to levy taxes upon the people for his own needs or for war purposes. He fixes the customs duties, and it is forbidden to evade them. He may issue a decree that whoever dodges them shall be punished either by confiscation of his property or by death, as it is written: “And ye shall be his servants” (I Sam. :). Elsewhere it is said: “All the people found therein shall be tributary unto thee, and shall serve thee” (Deut. :). From these verses we infer that the king imposes taxes and fixes customs duties, and that all the laws enacted by him [dinav] with regard to these and like matters are valid [literally, are law, din]. (:) Maimonides first presents a midrashic interpretation of avadim,33 interpreting the verb “serve” in Deuteronomy : to mean “be subject to financial imposition” by connecting it to the literal meaning of “tributary.”34 This is then taken to indicate that the verse in Samuel grants the king the right to impose taxes. Maimonides next makes this right contingent on its meeting certain legal standards. The laws enacted by kings must comply with the minimum criteria for lawfulness (“all the laws enacted by him . . . are valid”). The taxes must therefore be “fixed” taxes. Even though the taxes are “for his own needs,” they are legitimate as long as they are fixed. Maimonides’ discussion of the rabbinic maxim dina demalkhuta dina— the law of the kingdom [Maimonides: king] is law—is illuminating here.35 This maxim expresses recognition of the binding authority of non-Jewish governments over Jews living within their jurisdictions. Maimonides, following the Mishnah and Talmud, discusses this in the Code’s Laws concerning Robbery and Lost Property. The distinction between legitimate and illegitimate takings by a king is that between justice and robbery or loss. The crucial issue is whether the king is to be deemed a robber: The same rule applies to cases where a king imposes as a tax on the citizenry, or on each person individually, a fixed annual amount, or imposes a fixed amount on each field, or decrees that if one breaks a specified law, he shall forfeit all his property to the palace, or decrees that if one is found in a field at harvest time, he shall pay the tax due on it whether he is the owner of the field or not, or makes some similar regulation. None of these cases is deemed robbery. (:)

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The similarity of : to law : of the Laws of Kings is striking. In both contexts Maimonides formulates his description of the king’s prerogatives in distinctly legal language. Both use the concept of law (din) and refer to the legitimacy of taxing for the king’s personal needs; both refer to taxes as an example of the king’s authority to enact “similar regulations” (“these and like matters”); and both mention fixed rates. In his discussion of just and unjust royal takings, Maimonides goes on to state that the principle governing whether takings are legitimate is that there must be a known and recognized rule; the content or purpose of the injunctions decreed by the king is irrelevant. The general rule is: any law promulgated by the king to apply to everyone and not to one person alone is not deemed robbery. But whatever he takes from one particular person only, not in accordance with a law known to everyone but by doing violence to this person, is deemed robbery. (Laws concerning Robbery and Lost Property :) It is not surprising that Maimonides does not use the concept of justice here. According to his definition in the Guide, justice demands that each person be granted “that which he has a right to and . . . that which corresponds to his merits” (:, p. ). Justice implies rights and deserts, but the king’s law is informed by nothing of the kind. From the point of view of its content, the king’s law can be totally arbitrary: an injunction such as “if one is found in the field at harvest . . . whether he is the owner of the field or not” (:), for example, is acceptable if generally applied. The law of the king is not subject to the scrutiny of justice; on the contrary, it is pointedly free of such scrutiny. Maimonides is defining a minimum, a threshold for the legitimacy of royal law, anything under which is deemed robbery. The area between robbery and justice is the space for law, for rule-governed general behavior. This has not been appreciated by all students of Maimonides. For instance, Blidstein argues that “the central standard is the idea of equality. . . . The law of the kingdom is subject to the idea of justice which is explicated in the sense of equality and its attendant implications.”36 But Maimonides is not arguing for equality—he is citing the far weaker notion of generality with respect to process, a notion that simply articulates properties analytic to the concept of law and a notion so weak that it is essentially no more than

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the formal definition of law. A law decreed by the king must “apply to everyone” and be “known to everyone.” Thus the only constraints Jewish law imposes on non-Jewish law for it to be recognized as valid are those analytic to the notion of law itself. Indeed, there is no “idea of justice” here—to say that we are all treated equally arbitrarily is to undermine the moral import of equality. The purpose of Maimonides’ discussion of the maxim “the law of the king is law” is to delineate the area of legitimate takings. Similarly, the immediate background of : of the Laws of Kings, which specifies the king’s right to tax, is the restriction mentioned at the end of the preceding chapter concerning the king’s right to punish: He may not, however, expropriate the property of an offender. If he does, he is guilty of robbery. (Laws of Kings :) The discussion assumes that the king has a right to tax, hence the need to distinguish between expropriation and taxation. The distinguishing character of legitimate takings is that they are guided by standards of law, that they are rule governed. Taxation must be governed by general and public principles. “If one avoids paying such a tax, he is a transgressor, for he steals the king’s property, whether the king be a heathen or an Israelite” (Laws concerning Robbery and Lost Property :). Tax evasion is an act of robbery because the king has a rightful claim to the tax. In effect, the law enables the king to modify property rights within the polity and is in line with Maimonides’ proto-Hobbesian conception of the state of nature described in chapter . The Laws concerning Original Acquisition and Gifts begins with a sketch of the origin of property: Whoever takes possession of ownerless property [hefker] acquires . . . it. Thus also in the case of deserts, rivers, and streams, [and] whatever is in them, as for example, plants, trees, and the fruits of the trees of the woods, [all have] the status of ownerless property, and whoever is first to take possession of them acquires . . . them. (:) Ownerless property and the act of possession form the background of the discussion of property. The king, however, has the right of promulgating rules for acquisition and property rights:

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This rule applies only where there is no established law of the land [mishpat yadu’a la-melekh, literally: a law promulgated by the king]. But where there is an established law [din . . . ha-melekh u-mishpato, literally: a king’s law] to the effect that only he who writes a deed or pays the price or does anything similar acquires title to real property, we follow the law of the land [mishpat ha-melekh, the king’s law] because in all such matters we abide by the law of the land [literally: we judge in accordance with the king’s laws (dinei ha-melekh) in monetary matters]. (:) The king’s laws impose a form upon an ownerless state of nature and dictate obligatory procedures for establishing claims of ownership and property rights. There is considerable disagreement among scholars as to whether the rule of “the law of the kingdom is law” applies to a king of Israel as well as to a non-Jewish king and over Maimonides’ position on this. I concur with those who maintain that the dictum indeed applies to kings of Israel.37 In fact, applying the legal principle of “the law of the kingdom is law” to a king of Israel serves to moderate and constrict his exercise of power by explicitly linking it to the concepts of law and popular consent. But it seems that, in regards to takings, Maimonides considers it vital to distinguish between commands and law and to insist that the monarch’s commands take the form of law if they are to be considered legitimate. Overall, however, this is but one element in the wide range of powers and prerogatives with which, according to Maimonides, the monarch is endowed by “the law of kings” of I Samuel and other halakhic sources, and this does not undermine the essentially positivistic spirit of the Maimonidean monarchy.

Consent As a control over governmental and judicial powers, Maimonides’ monarchy allows only for the passive input of his subjects’ tacit consent, in contrast, for example, to constitutional monarchies where the people exercise their own legislative power through active participation. Maimonides ends his discussion of “the law of the kingdom is law” by adding the following condition for legitimacy:

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All the above rules apply only to a king whose coins circulate in the localities concerned, for then the inhabitants of the country have accepted him and definitely regard him as their master and themselves as his servants. But if his coins do not circulate in the localities in question, he is regarded as a robber who uses force, and as a troop of armed bandits, whose laws are not binding. Moreover, such a king and all his servants are deemed robbers in every respect. (Laws concerning Robbery and Lost Property :) Accepting the king’s coinage is equivalent to or, at the very least, indicative of tacit acceptance of his sovereignty. It is tacit because it is not institutionalized in a covenantal or contractual pact prior to the king’s ascent to the throne but rather revealed ex post facto by the manner in which the populace regards his rule. He is acknowledged as master, and the people are his servants. This tacit consent legitimizes his rule and decrees. Whether this constraint applies to a king of Israel turns on the question of whether the general dictum of “the law of the kingdom is law” applies to a king of Israel. Both Shilo and Blidstein emphasize that an Israelite king’s sovereignty is grounded in the divine command that a king be instituted by a prophet and the Sanhedrin. This implies that the king’s legitimacy is independent of popular consent. There are, however, a number of arguments that suggest otherwise. The talmudic sources of Maimonides’ ruling on consent seem to indicate that the criterion of tacit consent applies to Israelite kings as well as to foreign kings. Law : is based on two talmudic discussions. The first is from tractate Shevu’ot: Rav Papa said to Raba: Which of them [King Shapur or Caesar] is greater? He replied: Do you eat in the forest?! Go forth and see whose authority is greater in the world [literally: whose coin (tiva) is plentiful in the world]. (BT Shevu’ot b) This passage maintains that the use of a king’s coin demonstrates whom the people regard as the ruling power. It does not claim any normative force for this criterion, but a passage in tractate Megillah does assert that it possesses normative force. The Talmud retells the biblical story of David and Abigail

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(I Sam. ). Abigail intercepts David, who is on his way to kill Nabal, and, to save her unworthy husband, confronts him: Are capital cases tried at night? He said to her: He [Nabal] is a rebel against the king, and no trial is necessary for him. She replied: Saul is still alive, and your coin has not yet spread. (BT Megillah a‒b) The normative argument attributed to the biblical characters puts forward two important claims. First, consent to the coinage is a criterion applicable to kings of Israel, such as Saul. One could argue that this criterion applies to Davidic kings only, but the fact that Maimonides uses the story with reference to the authority of non-Jewish kings in the Laws concerning Robbery and Lost Property implies that it holds for kings in general, whether Davidic, Israelite, or Gentile. Second, the exercise of the king’s power to punish rebels depends upon this consent. This talmudic discussion supports my reading of Maimonides, which postulates a role for tacit consent serving to limit royal power in the case of Israelite kings. But is there a contradiction between this view and the contention of Shilo and Blidstein that the divine precept of appointing a king implies that his legitimacy is independent of popular consent? In fact, there is no incompatibility here. The divine precept of appointing a king refers to monarchy as an institution, which must be distinguished from the authority of a particular individual to serve as king. The criterion of consent applies only to the latter. I have already noted the distinction between ascent to the throne, which need not call for the people’s consent, and the monarch’s subsequent rule, where demonstration of tacit consent by his subjects may well be relevant.38

The Maimonidean Monarchy—Instrumental or Natural? In his book on Maimonides’ political theory, Blidstein puts forward two main arguments, a general argument about the role of politics and a specific argument about the relation between the king and the law. Blidstein maintains that politics and political arrangements such as the monarchy are intended to make possible the realization of the nation’s spiritual destiny. That

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is, they are of instrumental value only, and not ends in themselves.39 Maimonides does indeed see the polity as purposeful, but the notion that politics is merely a tool to be discarded after it has outlived its usefulness is precisely the position he seeks to counter. The meaning of the claim that “man is political by nature,” which resonates throughout Maimonides’ philosophical and legal writings, is that being situated in a polity is an inescapable feature of human life. Radical transformation of the human condition and the world’s natural resources must take place for it to be otherwise. Throughout history, the polity has defined the parameters of human life, and the Torah relates to this situation; it is this world that the Torah regulates. Certainly, the Torah, though anchored in the political, also points to the possibility of its messianic transformation and transcendence. But in the world as it is, politics cannot be discarded. This position is supported by the correspondence between the king’s laws and Noahide law, a correspondence that has not gone unnoticed by Maimonidean scholars. Thus, for example, the Noahide laws define “murder” more broadly than the classic halakhic definition, allowing a murderer to be executed on the basis of the testimony of a single witness; unlike Mosaic law, they permit execution only by decapitation.40 Noahide law is the minimal substantive core of law expected of human beings. Torah law incorporates the Noahide law, going far beyond it but never completely overshadowing it. Royal criminal law reverts to this minimal standard demanded of all human beings in their political existence.41 Blidstein’s second argument pertains to the relation between the king and the law and concerns the king’s discretionary powers. He claims that “along with the widening of the king’s authority there is also an effort to draw its boundaries and to prevent its becoming a parallel system competing with the normative legal system.”42 Maimonides does indeed present the king’s discretionary powers as compensating for limitations of the judicial system and stresses the importance of the integrity of Torah law. But the breadth of extralegal authority he accords the king is so wide it is more than merely an auxiliary mechanism intended to support the halakhic hegemony. The king’s power to command on pain of death, to tax, to conscript, and to regulate political life by his decrees makes the king’s law a system that fully encompasses the political life of society. The king legislates, punishes insubordination, and has a broad range of

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governmental powers. Not only does he enforce his own decrees, he is ultimately responsible for the enforcement of Torah law as a whole. I am, however, willing to accept Blidstein’s later description of Maimonides as espousing a “two-tiered” system of law: This theory speaks of ideal law for an ideal society, and realistic law for a real society. Ideal law is our familiar revealed law, the classical law known in both principles and details, and is appropriate for an ideal society. Real law, on the other hand, derives its authority from the initial revealed law, but its actual content will be devised so as to guarantee social order in times of disorder, that is to say, in human history as we know it.43 Blidstein is closer to the mark in this later characterization; however, it is still far from exact. While Maimonides does indeed postulate two distinct “tiers” of law, the divine and the political, they cannot be construed as ideal and real, respectively. It is also important to realize the limits of the king’s rule. The king rules the polity but not religion and ritual. The king is not a sacral figure. Individuals have a right not to comply with royal commands in the realm of religion.44 And although Maimonides does point to the importance of consent, it is never institutionalized. Finally, Maimonides never mentions tyrannicide, resistance, or rebellion.45 How then does Maimonides resolve the dichotomies—which he has so clearly acknowledged—between justice and law, between law and power, and between that which is subject to compromise and that which is absolute? Armed with knowledge of both the need for and the mechanics of the polity as envisaged by Maimonides, I now turn to address this problem.

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4 CONSTITUTIONAL CRISIS AND MESSIANIC RESOLUTION

 ,   tendered an exposition of Maimonides’ theoretical position as reflected in the Guide and considered how his theory is reflected in the law based on his presentation of a political system in the Code. Although the Code, unlike the Guide, employs a number of political concepts that are generated not by Maimonides’ political theory but by the rabbinic tradition (tikkun olam, din ha-malkhut, and so on), the basic thrust is the same. In both works, politics is a fundamental dimension of human life. Having established that the Guide and the Code are compatible and moreover espouse the same basic politics, I will now present an integrated account of the two dimensions of Maimonides’ thought.

The Maimonidean Polity A central feature of Maimonides’ theory of politics is the definitive role of the ruler. Monarchic rule is presented as the key to social order: the king’s power to ensure compliance constitutes the cohesive force that makes society possible. This conception of monarchy is reflected in the extralegal prerogatives accorded the king, which, in effect, threaten to create two systems of law: Torah law and royal law. We saw that Maimonides adduces two standards for judging law—justice 70

and goodness. Justice pertains to the manner in which law orders society, the form it gives society by means of its rules of distribution. Following Aristotle, Maimonides defines just law as law that seeks to balance the needs of individuals relative to each other, with a view to the interests of the polity as a whole, by giving to each that which each deserves. The lowest kind of law is that of a tyrannical state guided only by the will of the king. It is legitimate rule if the king’s decrees apply to everyone and are publicly known. Less than this is deemed robbery. This lowest threshold of law reflects the minimal analytic notion of law as a general rule: although it is law and hence binding, it is not just. The willingness to tolerate a wide space between this lowest threshold, a state scarcely better than robbery, and justice proper is an expression of the priority Maimonides accords politics in maintaining social order. The goodness of a system of law is related to the end to which it guides a society. Nomos seeks to bring about order, material prosperity, and wellbeing, while the objective of divine law is the inculcation of true belief. A legal order can also be indifferent to the good, promoting only social order, as in the case of the natural polity. The Noahide laws are an example of the law of a natural polity. We can speculate as to Maimonides’ ranking of possible political regimes. Ideally, Maimonides would prefer a ruler who unites power and wisdom. Preference for this combination is deeply rooted in the traditions Maimonides draws upon: in the image of Moses, the prophetic legislator, and that of the Platonic philosopher-king. The possibility of such a combination is raised in the initial presentation of the polity in chapter : of the Guide. A general preference for the rule of wisdom is also apparent in the precedence Maimonides accords judicial and monarchic discretion over legal procedure. This tendency stems from a sense of the limitations of law and possibly from the unarticulated assumption that, structurally, a polity whose ruler combines political power with living wisdom could achieve the greatest possible centralization and ultimately social order.1 But the combination of talents necessary for such a ruler is seldom found and therefore not a premise of the Maimonidean code. It seems that Maimonides favors a mixed monarchy, specifically, a monarchy ruling alongside an aristocracy—the Sanhedrin, an aristocracy of learning. The division between them is essentially functional, with the monarch exercising the polity’s executive functions and the Sanhedrin its judicial/

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legislative functions. Maimonides, however, never fully explains the relation between the king and the Sanhedrin. The precise lines of demarcation remain dangerously unclear given the existence of royal law and the king’s penal prerogatives. When there is no king, the aristocracy rules alone, authorized by emergency rules to use whatever power is at hand to ensure compliance with the law. Maimonides adopts this form of rule as a model for Jewish selfgovernment in exile. The lowest form of rule would be democracy, a conception not developed by Maimonides. Even the more neutral concept of “townspeople,” which was subjected to much elaboration and analysis by other medieval commentators, is downplayed by Maimonides, who contemplates rule by the townspeople only in the absence of any distinguished scholar who might order society.2

Politics and Religion For Maimonides, religion is political in the sense that religion is a kind—indeed, the best kind—of political endeavor. Leo Strauss argues that the medieval philosophers understood religion “not as a ‘field of validity,’ nor as a ‘turn of consciousness,’ least of all as a ‘field of culture,’ but as law.”3 Indeed, in the Guide, the prophet is defined as “the one to whom the regimen mentioned has been revealed” (:, p. ). It is impossible to express the now taken-for-granted religion/politics dichotomy in the terminology of the Code. The word dat, used for “religion” in modern Hebrew, is used by Maimonides for “law” or “regimen”: The general rule is: any law [din] promulgated by the king to apply to everyone and not to one person alone is not deemed robbery. But whatever he takes from one particular person only, not in accordance with a law [she-lo ka-dat] known to everyone but by doing violence to this person, is deemed robbery. (Laws concerning Robbery and Lost Property :) The words dat and din here both refer to law; this usage of the terms is the norm among medieval writers. In his Hebrew lexicon, s.v. dat, David Kimchi

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(c. ‒c. ) writes: “the meaning . . . is the Torah and the law [hok].”4 In Book of Roots (), Joseph Albo provides the following definition: The term “law” [dat] applies to every guidance or governance [hanhagah] that comprises a large association [kibbutz] of people, regardless of whether it comprises many commands (as in: “All that knew law and decree [dat va-din]” [Esther :]), or a single command (as in: “And a law [dat] was given in Shushan” [Esther :]); regardless of whether it is divine (as in: “At his right hand was a fiery law [esh dat] unto them” [Deut. :]), or conventional [nimusit, nomoitic], like the laws of Media and Persia.5 Albo goes on to distinguish three kinds of law: natural, conventional, and divine. This categorization differs from that of Maimonides, who, as we saw in Chapter , distinguishes between natural and nomoitic polities. Albo refers to all three as categories of dat. Maimonides also uses dat when referring to the Mosaic law as a particular instantiation of divine law. In the Code, Maimonides states: It is clearly and explicitly set forth in the Torah that its ordinances will endure for ever without variation, diminution or addition. . . . Hence the inference that a prophet is forbidden to make innovations in the Torah. . . . Since this is so, why is it said in the Torah, “I will raise them up a prophet from among their brethren, like unto thee” (Deut. :)? The answer is that the prophet here referred to, will come, not to found a religion [la’asot dat], but to charge the people concerning the words of the Torah and exhort them not to transgress it. (Laws concerning the Foundations of the Torah :‒) Moses’ unique prophetic calling resulted in the creation of a system of law, but later prophets are barred from the legal process.6 Similarly, in a complementary law in the Laws of Kings that deals with the case of a heathen who studies Torah or observes the precepts without converting, Maimonides writes: It is needless to state that he merits death if he makes a new festival for himself. The general principle is: none is permitted to introduce inno-

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vations into religion [le-hadesh dat] or devise new commandments [la’asot mitzvot]. (:) Dat is prophetic law expressed in the form of divine commandments. From the point of view of Jewish law, religion is inseparable from law.7 Contrary to the arguments of antirationalist critics, defining dat in terms of law is not a reductive position, identifying religion with politics at the expense of its spiritual moment.8 Maimonides is not accounting for the phenomenology of religious experience but rather for the fact that in the Jewish conception, the human relationship with God is mediated by, and institutionalized through, a law, the Torah. Maimonides sees the institutional organization of religion around the law both as rooted in political realities and as making possible the achievement of a political and religious ideal—a community devoted to attaining human perfection. It is instructive to contrast the position of Maimonides on this point with that of Spinoza, a theme I return to in the final chapter. Spinoza, following Hobbes, upholds the supremacy of the sovereign. He sees religious institutions as subservient, as instruments for furthering the sovereign’s rule: When I said that the possessors of sovereign power have rights over everything, and that all rights are dependent on their decree [TTP, pp. ‒], I did not merely mean temporal rights, but also spiritual rights; of the latter, no less than the former, they ought to be the interpreters and the champions . . . religion acquires its force as law solely from the decrees of the sovereign. God has no special kingdom among men except in so far as He reigns through temporal rulers.9 The primacy Maimonides accords monarchy is something very different from the supremacy that characterizes Spinoza’s sovereign. Maimonides defines the king’s constitutional role in relation to a divine law not of his making and does not seek to undermine the integrity of the Sanhedrin. A corollary of Spinoza’s conception of sovereignty is the view that politics uses ritual to instill obedience. For although “inward worship of God and piety in itself are within the sphere of everyone’s private rights, and cannot be alienated,” nevertheless, “the rites of religion and the outward observances of piety should be in accordance with the public peace and wellbeing, and should therefore be determined by the sovereign power alone.”10

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In Maimonides’ conception of divine law, however, the centrality of politics to religion does not imply the subordination of ritual to politics.11 According to Maimonides, ritual is intended to instill and promote true belief, and true belief is the goal of human life. Since the mandated ritual behavior focuses on attaining this goal, ritual is an integral part of the law and not merely a tool of the sovereign.

Tension The fact that the law is rooted in revelation creates deep constitutional tensions in Maimonides’ polity. As noted, although Maimonides is committed to the Torah as the one law of the polity, there are, in fact, two legal systems operating in the Maimonidean polity. The king has extensive power to legislate, judge, and punish outside the recognized legislative and judicial bodies of the halakhah. The critical flaw in Maimonides’ edifice is its failure to address the questions of how royal law can actually coexist with Torah law and how the king’s discretionary powers can coexist with those of the Sanhedrin. The incommensurability of the two sources of sovereignty is, of course, a theoretical problem, but were the Maimonidean polity to be instantiated, it would also emerge as a very real incompatibility between the two legal systems. Do they operate side by side? Are tax cases tried by the king and ritual cases by the court? What about criminal cases? Or are they arranged hierarchically? It does not suffice to dismiss any possible conflict by insisting that since the halakhah not only recognizes royal law but is in some sense the source of the king’s legitimacy, it obviously takes precedence in case of conflict. That is, it does not suffice to argue that should there be any disharmony between halakhic and temporal demands, the latter would necessarily be sacrificed, thereby preempting any real conflict and demonstrating that the two systems are at most distinct components of a single order ultimately governed in accordance with divine requirements. If royal law is a body of regulations, the formulation of which is not guided by the precedents, institutions (legislative and judicial), and statutes of the halakhah but rather by the king’s will, then it is an alternative system. If the king’s law guides tax law and criminal law, then civil society is, to all intents and purposes, governed not by divine law but by a different law. Given this situation, even a polity arranged according to the dictates of di-

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vine law whose members abide by these dictates—a society that submits to the adjudication of the Sanhedrin and its leaders and whose king is appointed by the Sanhedrin—cannot be considered a halakhic polity in any substantive sense. Individuals, possibly all the individuals in the polity, would comply with the halakhah’s ritualistic regulations, but the political life of the community would be governed by another law. Thus there is no “halakhic polity,” and the term itself is an oxymoron. Maimonides tries to downplay and even obscure the problem. As we saw, formally the king’s powers are articulated and legitimized by the halakhah itself. Furthermore, Maimonides never presents the principle of “the law of the kingdom is law” as the basis for a comprehensive legal system. The king’s decrees must be lawlike, he insists, but they are not presented as constituting a body of law encompassing tax law, torts, criminal law, and commercial law. Maimonides leaves royal law, din ha-malkhut, uncomfortably vague and takes care not to mention either the principle or the concept in the Laws of Kings. This evasiveness and vagueness are prompted by the fundamental tension pervading Maimonides’ political theory. While a king’s unique power is his power to command, unless his commands take the form of law they remain arbitrary declarations of will and the ruler no more than a brigand. Monarchy requires law. Maimonides’ edifice is thus premised on the existence of royal law. Yet there is another law in the kingdom, a law that derives its authority not from the king—indeed, the reverse is true—but from God. There is therefore an inescapable conflict between the two sovereignties implicit in his account—royal law and Torah law. Modern republics divide sovereignty by separating the basic powers of government. But the division between the monarch and the Sanhedrin in the Maimonidean polity cuts across function—both legislate and both punish. Unless addressed, this “clash of sovereignties” will ultimately lead in one of two directions: to attenuation of the legitimacy of the monarchy or to the monarch’s adopting a Hobbesian/Spinozistic conception of monarchic supremacy.12 Weiler identifies this constitutional quandary: “Maimonides is basically inconsistent [only] if he is taken to speak of a sovereign state.” He suggests resolving it by interpreting Maimonides as positing less than complete monarchic dominion: “a consistent reading of what he said is possible only on the assumption that he is not speaking of a sovereign kingdom but of a holy community.”13 Weiler contends, then, that Maimonides’ polity is no more

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than an apolitical spiritual community, that Maimonides ultimately rejects politics. But nowhere does Maimonides so much as hint at this alleged solution, which clearly contravenes his explicit statements on politics. Rather, we must live with the fact that Maimonides was unable to formulate a consistent constitutional theory perfectly harmonizing the political and the halakhic. The theory he produced embodies an intractable tension. It is of profound importance that we recognize this fundamental constitutional crisis for what it is because it will be an ongoing source of conflict. Maimonides upholds the king and prophet/lawgiver as political officers without taking into account that each inspires an independent sovereignty, so that conflict between the two sovereignties is inevitable. The fact that an original ideal ruler may have united both functions does not ensure that these sources of law will be commensurable in the ordinary course of events.14 Maimonides’ insistence on the precedence of politics highlights this incommensurability. Even if we attempt to de-emphasize the constitutional crisis by arguing that the king is primarily an enforcer of the law (as in Guide :), a concrete question would remain: how is the law to be enforced against the king? Maimonides is committed both to the rule of halakhah and to a strong monarchy but fails to provide a constitutional solution to bridge the gap between them. Maimonides does not make explicit statements about either the problem of practical compatibility or that of theoretical commensurability. He was aware of the problems but did not have the constitutional tools to adequately solve them. The solution he arrives at, as I argue later in this chapter, is effected through an individual rather than an institutional arrangement. The Maimonidean polity attempts to balance two conflicting needs: preservation of the integrity of divine law and political rule, which Maimonides sees as necessitating a monarch. The relation between the two remains fraught with tension because the king’s law is likely to diverge from God’s law.

The Messianic Polity Maimonides’ messianic doctrine and notion of the Davidic king can be conceived as attempts to cope with this constitutional crisis. Thus far, I have fo-

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cused on what Maimonides would have considered legitimate and acceptable political practice. But the character of a political theory is formed not only by a conception of the actual and its constraints but also by its aspirational turn to the future. The real and the ideal are intimately related: the ideal both helps shape the real and grows in relation to it. To understand Maimonides’ politics fully we must understand not only its lower bound, the difference between legitimate politics and robbery, but also its upper bound, the difference between a legitimate regime and the best realizable regime and the difference between the best realizable regime and the utopian vision that transcends politics.15 I now turn to the question of how the constitutional import of Maimonides’ messianic doctrine informs his concept of politics.16 A clear distinction should be made between Maimonides’ views on the messianic polity and his views on “utopia.” In the messianic polity depicted at the end of the Code’s Laws of Kings, political power is still a crucial ingredient for ordering society. However, utopia, portrayed in the discussion of theodicy in the Guide, is a state wherein politics and domination are no longer necessary and no longer structure the human quest for perfection.17 Maimonides, of course, does not use the term “utopia,” but it serves as a descriptive concept that is helpful in formulating his political theory. Each of the two visions, the political-messianic and the utopian, raises questions that touch on the foundations of Maimonides’ political theory. The vision of the messianic polity leads us to reconsider his theory of government: Is the messianic regime realizable? If not, what is the difference between the messianic polity and the realizable polity? The utopian vision leads us to reconsider the political foundations of the Torah: Does a vision of overcoming politics invalidate Maimonides’ own pronouncements concerning man’s political nature? Does the overcoming of politics imply the overcoming of law?

Maimonides’ solution to this constitutional crisis is not institutional but individual: the pious and virtuous king who, in his person, unites loyalty to God with the capacity to rule. Before considering it, a recapitulation of our discussion of the Maimonidean concept of the king will be useful. An impious king is he above whom in his kingdom there is none save himself, while

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the pious king is he “above whom in his kingdom there is none save the Lord his God” (Laws concerning Transgressions through Error :). In the absence of significant institutional checks on the king’s power, a structural feature of the monarchic polity, the nature of the polity hinges primarily on the king’s character. Obviously, in any political system the course of the polity is determined by the moral character of those who hold power. But given the concentration of sovereignty in his person, the king’s education and virtues carry special weight in determining the character of the polity as a whole. Maimonides summarizes the Deuteronomic regulations: Scripture lays particular stress on (the danger) of his heart being turned away from God, as it is said “that his heart turn not away” (Deut. :); for his heart is the heart of the whole congregation of Israel. Therefore Scripture exhorts him more than any other Israelite to cleave to the Law [torah]. (Laws of Kings :) It is largely a matter of luck whether the natural candidate for the throne in a hereditary monarchy will be morally or temperamentally fit for ruling. We have already seen Maimonides’ (arguably unsuccessful) attempt to minimize the role of chance by providing a procedure for eliminating unfit candidates. Nevertheless, despite this contingent element, we can still affirm that the ascent of a pious and virtuous Davidic or Israelite king is a realizable political goal, the achievement of which requires no extraordinary activities. The good king will be characterized by submission to the law, as the rule of law in the polity depends on the degree of the king’s submission. Hence, the centrality of the study of Torah for the king: “He shall be occupied day and night with the study of the Law and the needs of Israel” (:). The king’s piety and virtues will guide him: Whatever he does should be done by him for the sake of Heaven. His sole aim and thought should be to uplift the true religion, to fill the world with righteousness [tzedek], to break the arm of the wicked, and to fight the battles of the Lord. The prime reason for appointing a king was that he execute judgment [mishpat] and wage war. (:) Bad kings manifest the opposite disposition: “they are arrogant, and (if they be treated as commoners [and brought to judgment]) the cause of religion

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[ha-dat] would suffer” (:). Maimonides’ central concern here is the king’s attitude toward dat, the divine law. On the basis of this characterization, let us consider the messianic king. The messiah, according to Maimonides, is a king defined in relation to three sets of expectations: personal, national, and prophetic. As an individual, he has the virtuous character of a Davidic king: If there arise a king from the House of David who meditates on the Torah, occupies himself with the commandments, as did his ancestor David, observes the precepts prescribed in the Written and Oral Law, prevails upon Israel to walk in the way of the Torah and to repair its breaches, and fights the battles of the Lord, it may be assumed that he is the Messiah. (:) Thus the messianic king is portrayed as possessing the same characteristics as the pious Davidic king. The messiah submits to the law and enforces it in turn, upholding justice and waging war in the name of the Lord. But the apparent messiah surpasses the virtuous king in the degree of his success in realizing national aspirations: If he does these things and succeeds, rebuilds the sanctuary on its site, and gathers the dispersed of Israel, he is beyond all doubt the Messiah. (:) Messianic rule is identified conclusively by the reestablishment of the nation and the Torah, re-creating the success of the original King David.18 But if he does not meet with full success, or is slain, it is obvious that he is not the Messiah promised in the Torah. He is to be regarded like all the other wholehearted and worthy kings of the House of David who died. (:, Uncensored Version)19 It is thus the fulfillment of the second set of expectations, those that can be characterized as national aspirations, that makes the king a messiah. The messianic polity is one in which all Israel’s national institutions are revitalized and the Torah is the guiding law.20

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There is, however, a third set of expectations associated with the messiah, expectations I term prophetic. The messiah is associated with the universal mission of the prophets and emulation of Moses, the original prophetlegislator. Maimonides ends law  by characterizing Jesus of Nazareth and Mohammed, on the one hand, as false messianic contenders and, on the other, as contributing to the realization of the universal visions of the great prophets: [They] served to clear the way for King Messiah, to prepare [perfect] the whole world to worship [u-le-takken ha-olam kullo la-avod] God with one accord, as it is written: “For then will I turn to the peoples a pure language, that they may all call upon the name of the Lord to serve Him with one consent” (Zeph. :). Maimonides returns to theme of tikkun olam, repairing the world, but endows it with a different meaning. Earlier in the Code the term is used for perfecting one’s society. But here, repair, tikkun, is connected to another concept, that of serving the Lord; instead of simply “the world,” olam, we have “the whole world,” meaning all societies. The messianic king is involved in much more than just ordering, and thereby enabling, civilized society—he perfects the entire world for the service of God.21 In addition to this universal return to the true religion, the person of the messiah is elevated. Endowed with the holy spirit, the messiah is compared to Moses: The King who will arise from the seed of David will possess more wisdom than Solomon and will be a great prophet, approaching Moses, our teacher; he will teach the whole of the Jewish people and instruct them in the way of God; and all nations will come to hear him. (Laws concerning Repentance :) After Moses, the messianic king comes closest to combining political leadership, legislative wisdom, and prophetic ability yet does not encroach on or undermine the constitutive role of Mosaic prophecy in Jewish law. At the end of the Laws of Kings, Maimonides describes the prophetic and legislative activities of the messianic king:

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In the days of the King Messiah, when his kingdom will be established and all Israel will gather around him, their pedigrees will be determined by him through the Holy Spirit which will rest upon him. . . . the genealogy of those considered to be of good lineage will be traced by means of the Holy Spirit, and those found to be of good birth will be made known. The descent of the Israelites will be recorded according to their tribes. (:) But Maimonides adds a proviso: He will announce: “This one is of such-and-such a tribe.” . . . But he will not say concerning those who are presumed to be of pure descent: “This is a bastard [mamzer]; this is a slave.” For the rule [din] is: once a family has been intermingled with others, it retains its status.22 Endowed with the holy spirit, the messianic king can resolve factual questions of genealogy in accordance with the prosaic halakhic decision-making rules, specifically, the rules of presumption.23 In other words, the normative strictures of the law retain their power even in the messianic days. In light of Maimonides’ declaration that the revival of national institutions identifies the king as the messiah “beyond all doubt,” it is clear that the third set of prophetic expectations is not definitive of the messiah but simply articulates certain national yearnings associated with the messianic image.24 The purpose of Maimonides’ discussion is to distinguish valid hopes from unfounded predictions. Articulation of our aspirations serves to define regulative ideals toward which our political efforts can be directed. Maimonides’ distinction is an attempt to control messianic fantasy and its possible effects upon political thought and imagination. We may hope for messianic transformation, but we cannot predict what those days will be like. In the final chapter of the Laws of Kings, Maimonides addresses these expectations. Whereas the expectations regarding the future of the nation (chapter ) will “beyond all doubt” be fulfilled by the messianic king, the final expectations (chapter ) are presented simply as conjectures as to what “seems” plausible. After asserting that in messianic times there will be no transformation of nature, he turns to the interpretation of conjectures found in the prophetic writings, cautioning his readers:

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But no one is in a position to know the details of this and similar things until they have come to pass . . . neither the exact sequence of those events nor the details thereof constitute religious dogmas. (:) These messianic hopes, unlike the previously expressed expectations of the messianic age, are not religious precepts. Only the first two sets of expectations are normative, describing what must obtain as part of the realization of the divine polity. Yet these nonnormative messianic visions are presented as emerging from the realization of the national political agenda I referred to as the second set of expectations: Said the Rabbis: “The sole difference between the present and the messianic days is delivery from servitude to foreign powers” (BT Sanhedrin b). (:) The messiah’s political achievements make all other hopes possible. The rabbinic statement Maimonides quotes is usually interpreted as an antiapocalyptic declaration stressing the natural character of messianic times.25 But it is also a statement about the exile, the Diaspora: exile is not a metaphysical condition but a political one, the loss of political sovereignty and independence. In exile, “the Gentiles’ power is predominant” (Laws concerning Idolatry :).26 The principal difference between nonmessianic and messianic times is the return of Israel to full political life.

The Utopian Vision How Maimonides’ utopian vision differs from the messianic is apparent in the different interpretations he provides for the following verses from Isaiah chapter : 1

But a shoot shall grow out of the stump of Jesse, A twig shall sprout from his stock. 2 The spirit of the Lord shall alight upon him: A spirit of wisdom and insight,

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A spirit of counsel and valor, A spirit of devotion and reverence for the Lord. 3 He shall sense the truth by his reverence for the Lord: He shall not judge by what his eyes behold, Nor decide by what his ears perceive. 4 Thus he shall judge the poor with equity And decide with justice for the lowly of the land. He shall strike down a land with the rod of his mouth And slay the wicked with the breath of his lips. 5 Justice shall be the girdle of his loins, And faithfulness the girdle of his waist. 6 The wolf shall dwell with the lamb, The leopard lie down with the kid; The calf, the beast of prey, and the fatling together, With a little boy to herd them. 7 The cow and the bear shall graze, Their young shall lie down together; And the lion, like the ox, shall eat straw. 8 A babe shall play Over a vipers’ hole, And an infant pass his hand Over an adder’s den. 9 In all of My sacred mount Nothing evil or vile shall be done; For the land shall be filled with knowledge of the Lord As water covers the sea.27 Chapter , the final chapter of the Laws of Kings, begins and ends with quotations from Isaiah. It begins: Let no one think that in the days of the Messiah any of the laws of nature will be set aside, or any innovation be introduced into creation. The world will follow its normal course. The words of Isaiah: “And the wolf shall dwell with the lamb, and the leopard shall lie down with the kid” (Isa. :) are to be understood figuratively, meaning that Israel will live securely among the wicked of the heathens who are likened to wolves and leopards, as it is written: “A wolf of the deserts doth spoil

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them, a leopard watcheth over their cities” (Jer. :). They will all accept the true religion [dat ha-emet], and will neither plunder nor destroy, and together with Israel earn a comfortable living in a legitimate way, as it is written: “And the lion shall eat straw like the ox” (Isa. :). (:) Maimonides’ interpretation of Isaiah  connects the animal metaphors (verses ‒) to the achievements of the messianic king (verses ‒) and the political fulfillment of Israel. The chapter ends with an interpretation of Isaiah :, linking it to the description of the messianic king in verses ‒: In that era there will be neither famine nor war, neither jealousy nor strife. Blessings will be abundant, comforts within the reach of all. The one preoccupation of the whole world will be to know the Lord. Hence Israelites will be very wise, they will know the things that are now concealed and will attain an understanding of their Creator to the utmost capacity of the human mind, as it is written: “For the earth shall be full of the knowledge of the Lord, as the waters cover the sea” (Isa. :). (:) The political success of the messianic king will result in material abundance and the relief of scarcity. The justly ordered world will flourish, and prosperity will in turn create the conditions for devotion to God. Knowledge of God is the result, and not the cause, of this peace. The ideal polity is the polity in which justice and prosperity create the conditions that bring forth knowledge. Maimonides’ Code, a formulation of the law of the divine polity, ends with a vision of its realization in history. Yet Maimonides presents a different reading of Isaiah in his discussion of theodicy in part  of the Guide. Significantly, Maimonides omits any mention of verses ‒, which portray the messianic king, and focuses solely on the vision of knowledge of God tendered in verses ‒. He justifies neglect of verses ‒ by reading this knowledge of God as the cause of the miraculous events of verses ‒ and not as resulting from the process described in verses ‒. In the Guide’s rendering of Isaiah , not justice, but the transformative power of knowledge, differentiates the messianic era from previous history. The evils that human beings perpetrate upon one another, Maimonides argues, “derive from ignorance . . . from a privation of knowledge”:

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Just as a blind man, because of absence of sight, does not cease stumbling, being wounded, and also wounding others, because he has nobody to guide him on his way, the various sects of men—every individual according to the extent of his ignorance—does to himself and to others great evils from which individuals of the species suffer. If there were knowledge, whose relation to the human form is like that of the faculty of sight to the eye, they would refrain from doing any harm to themselves and to others. For through cognition of the truth, enmity and hatred are removed and the inflicting of harm by people on one another is abolished. (:, pp. ‒) The parable is significant: we saw that even in the messianic polity the ruler orders society through power exercised in accordance with a regimen. In contrast, utopia is a vision of harmony through individual attainment of knowledge.28 This hope is reflected in Maimonides’ interpretation of Isaiah’s prophecy: It holds out this promise, saying: “And the wolf shall dwell with the lamb, the leopard shall lie down with the kid,” and so on. “And the cow and the bear shall feed,” and so on. “And the sucking child shall play,” and so on. Then it gives the reason for this, saying that the cause of the abolition of these enmities, these discords, and these tyrannies, will be the knowledge that men will then have concerning the true reality of the deity. For it says: “They shall not hurt nor destroy in all My holy mountain; for the earth shall be full of the knowledge of the Lord, as the waters cover the sea.” Know this. (:, p. ) Knowledge of God has a transformative effect upon human beings because, having experienced this knowledge, one’s sense of priorities is radically changed: The term “wisdom” [hokhmah] used in an unrestricted sense and regarded as the end, means in every place the apprehension of Him, may He be exalted . . . [the apprehension] that the possession of the treasures acquired, and competed for, by man and thought to be perfection is not a perfection; and that similarly all the actions prescribed by the Law—I refer to the various species of worship and also the moral

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habits that are useful to all people in their mutual dealings—that all this is not to be compared with this ultimate end and does not equal it, being but preparations made for the sake of this end. (:, p. ) Worldly treasures and accomplishments, such as political power, bodily strength, moral virtues, and even the commandments themselves—the law— pale before the highest ideal, knowledge. What engenders this transvaluation is not only the knowledge of God that is acquired but also the acquisition itself, because of all human endeavors, the acquisition of knowledge is the only one that individuals can truthfully call their own. It is “a perfection belonging to him alone; and it gives him permanent perdurance; through it man is man” (:, p. ). The Guide’s interpretation of the vision of Isaiah  transforms it from a messianic to a utopian aspiration. The omission of the verses alluding to the Davidic king and the focus on verse  highlight the longing to transcend the need for politics by achieving knowledge of the divine. Given that the Torah is the law of a polity, it is implied that the overcoming of politics entails the overcoming of law as well. This conclusion is strengthened by connecting chapter : with the understanding of human perfection in chapter :, where law and morality lose their significance in the face of knowledge of the divine. It points to a human community of faith rather than to a political association.29 Scholem maintains that there is “an anarchic element in the very nature of Messianic utopianism.”30 Given Scholem’s interest in Sabbataean versions of anarchic antinomianism, it is not surprising that he equates antinomianism with anarchy. However, this identification is misplaced in describing Maimonides’ utopian position. On the contrary, in Maimonides’ understanding of rationality as a ruling power (Guide :), the acquisition of knowledge of God involves an internalization of order that renders external law unnecessary. Individuals would be governed by their own reason.31

The Messianic Age and the Utopian Vision The reign of the messianic king is, as I have stressed, distinct from this utopian state of liberating knowledge. Maimonides views the messianic king as a political figure who operates within the halakhic framework. What, then,

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is the relation between the Guide’s utopian vision and the messianism of the Code? This is not merely another opportunity for us to explore the relation between the two works, for the problem exists even if the Guide is considered alone. What is the relation between the utopian vision of : and the declaration that “man is political by nature” in :?32 In the literature, not surprisingly, there are numerous readings of the utopian doctrine. Literal readings have Maimonides envisioning the actualization and emergence of an eternal peace for a contemplative humanity. Less literal interpretations maintain that utopia is a state of affairs that, given the innate diversity of human abilities and inclinations, cannot be achieved in practice. It is an “unnatural” event. The utopian vision is not a possible outcome but only a regulative ideal, in the Kantian sense: a guiding end that in principle cannot be achieved. My own view is that the messianic and utopian visions need not be construed as incompatible. Earlier, I suggested a political reading of the very last law in the Laws of Kings that permits a resolution while acknowledging persisting tensions: In that era there will be neither famine nor war, neither jealousy nor strife. Blessings [literally, goodness] will be abundant, comforts within the reach of all. The one preoccupation of the whole world will be to know the Lord. Hence Israelites will be very wise, they will know the things that are now concealed and will attain an understanding of their Creator to the utmost capacity of the human mind, as it is written: “For the earth shall be full of the knowledge of the Lord, as the waters cover the sea” (Isa. :). (:) This law describes the natural achievements of the ideal polity, emphasizing that only through the complete success of politics can politics be overcome. The successful polity will alleviate scarcity to such a degree that people will have the leisure needed for the pursuit of knowledge.33 The possibility of reading chapter : of the Guide as a mythic or otherwise alternative vision remains; but the explicit connection made at the end of the Laws of Kings, the final volume in the entire Code, between the success of politics and the spread of knowledge suggests a reading of Guide : that takes the realization of the Code’s messianic polity as its starting point. Accordingly, the glossing over of the political material—reference to the

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“root from the stem of Jesse”—in the Guide assumes the fulfillment of the messianic polity described in the final law of the Code and then proceeds to depict the transformative impact of knowledge on the human condition.

Conclusion The ideal polity’s goal is to one day bring about its own overcoming. But until its realization, Maimonides’ messianic doctrine teaches the importance of politics in its ordinary sense. Maimonides’ messianic doctrine complements his concept of politics, because messianic success begins with the success of ordinary politics. The primacy of politics is underscored by the messianic doctrine, since it is a king who will make the Torah-governed polity a reality. As we saw, the first identifying condition of the messiah is framed in terms of the adequacy of his domestic politics. This returns us to the central constitutional problem of Maimonides’ polity, that of the relation between politics and the rule of divine law. The Maimonidean polity is not premised on the existence of an ideal king. Thus the question of conflict between monarchic and divine authority remains.

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PART 2: GERONDI

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5 THE KAHAL AS A POLITY

’  for the precedence of politics over the law rests on his naturalizing account of the Torah that seeks to establish the political foundations of divine law. In contrast, Gerondi severs the link between Torah and nature, embracing a more literal understanding of the divinity of the Torah. Torah law, in his view, embodies absolute justice and provides the sacramental instruments through which the divine influence dwells in Israel. Yet Gerondi nonetheless goes beyond Maimonides in arguing for the precedence of politics, espousing the radical autonomy of politics. According to Gerondi, the polity governed by the Torah will have two legal systems operating side by side: royal law, ensuring social order, and Torah law, ensuring the “divine” standards of the polity. Gerondi’s political position is rooted in changes in the halakhic attitude to communal legislation that took place in Christian Spain over the thirteenth and fourteenth centuries. Much of this chapter is devoted to charting these shifting attitudes, which will set the stage for the detailed examination of Gerondi’s principal discourse on politics that will be the focus of the following chapter.1 This discourse, the eleventh Sermon, reflects Gerondi’s theological convictions as well as his thoughts on politics, and it illuminates his conception of the relation between divine law and nature, a conception very different from that of Maimonides. During his lifetime, Nissim b. Reuben Gerondi was the leading halakhic

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figure in Catalonia and a preeminent figure in the Nahmanidean school of talmudic exegesis that flourished in Barcelona. He was also a community leader: after the Black Plague and the anti-Jewish riots that erupted in its wake, he helped restore the yeshivah in Barcelona to its former prominence. His position was comparable to that of two of his most renowned predecessors, Nahmanides and Adret, whose influence on Gerondi’s halakhic work is marked. Nahmanides’ novellae on the Talmud, characterized by distinctive analytical acumen, set a new standard for subsequent study of the Talmud in Spain. Adret’s responsa covering the entire range of halakhic concerns, many hundreds of which are extant, determined the character of the Spanish tradition of legal decision-making. Nahmanides and Adret are undoubtedly the central members of the Barcelona school of halakhic exegesis, the importance of which parallels that of the Tosafists in France and Germany. In addition, many other scholars associated with the school, such as Jonah Gerondi (c. ‒) and Aaron Halevi (c. ‒), produced works of great depth and originality. The talmudic novellae of such scholars as Yom Tov Ishbili (Ritba), a student of Aaron Halevi, and Gerondi and his student Joseph Habiba, were prompted by questions and themes found in Nahmanides’ work. The Spanish center and the Tosafists were by no means in competition. The Spanish center developed after the zenith of the Tosafist era and very much under the influence of its work.2 Nahmanides stands at a cultural crossroads: he helped transmit Ashkenazic (Franco-German) halakhah to Spain, integrating the methods and concerns of the Tosafists into the classic Andalusian tradition, and went on to forge new approaches to the analysis of talmudic material.3 Another powerful presence on the horizon of the Catalonian school was Maimonides’ Code. This singular presentation of the entirety of the law significantly influenced their positions. Even when they disagreed with Maimonides’ view, whether on a point of law or theology, he remained a central cultural interlocutor through whom they defined their own positions.4 I now turn to the political background to Gerondi’s statement, that is, the important medieval developments in the laws of communal government and particularly the fact that these developments were articulated in the thirteenth and fourteenth centuries via an emerging political theory.

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The History of Public Law The legal authority of the townspeople to decree and enforce statutes is already established in Tannaitic sources. The Mishnah states: They [the townspeople] compel him [to share] in [the cost of] building a wall and gates for the town [ir]. (Bava Batra :; JPT, p. ) The Tosefta, quoted in the Babylonian Talmud, moves beyond coerced participation in public works to legislative authority: Townspeople [benei ha-ir] are authorized to stipulate [le-hatnot] regarding prices, measures, and the pay of laborers. Townspeople are authorized to pronounce, “Anyone seen at X’s shall pay thus and so”; “Anyone seen [dealing with] the authorities [malkhut] shall pay thus and so”; “Anyone whose cow grazes amid the seedlings shall pay thus and so.” And they are authorized to enforce their decree. (Bava Metzia :; JPT, p. ) But the Mishnah and Tosefta only state that such authority exists and do not cite the grounds for this authority. Medieval rabbinical authorities attempted to identify the source of this authority, as this would permit them to demarcate its scope and the conditions governing its exercise. Over a period of five hundred years, from the mid-tenth to the fifteenth century, there accumulated a series of rulings by rabbinical authorities in France, Germany, Spain, and North Africa that essentially created public law as a distinct body of law. This development encompassed both the conceptualization of the community as a unique legal entity and the creation of special legal procedures governing its transactions.5 Of course, the wide range of social and economic conditions in the various Diaspora communities led to differentiation in these legal arrangements. But from the overall perspective of the halakhah, such arrangements had the cumulative effect of generating a new legal domain—public law. This development can be clearly detected by comparing the relevant talmudic terminology with that used by the medieval theorists. As we saw, the Talmud speaks of benei ha-ir, townspeople. Given that Greek was a spoken

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language in second- and third-century Palestine, it is possible that the Hebrew term benei ha-ir is the literal equivalent of the Greek politai, citizens of the polis.6 But the Tannaitic material does not reflect any assimilation of Greek political norms and practices. In the early Middle Ages we find a preference for the term kahal or ha-kahal ha-kaddosh, holy community. The term kahal is biblical and means congregation of worship. It has both religious and political appeal, and it enabled medieval Jewish communities scattered throughout the world to forge a compelling identity for themselves. Baer viewed the term as an expression of the “metaphysical feeling of the local kehillah [community] unifying all its populace, young and old, and connecting the local kehillah with the whole of Israel [kelal yisrael].”7 The shift from benei ha-ir to kahal expresses the search for a term that captures the charismatic quality of a congregation of Israelites. During the thirteenth and fourteenth centuries, the development of communal law reached its zenith, particularly in the responsa of Adret in Spain and of Meir of Rothenburg (c. ‒) in Germany.8 Let us now survey a number of areas in which the changes in the halakhic conception of community are vividly demonstrated. Most will be illustrated by citing the responsa of Spanish rabbinical authorities of this period; the opinions of later authorities will be mentioned in the notes to allow the reader to get a sense of the Spanish authorities’ influence on the future development of Jewish law.

Acquisition Scriptural and talmudic law require a symbolic act of appropriation to validate an exchange between parties. This may take many forms (money, deed, and so forth). If, however, the kahal is a party to the transaction, no such symbolic action is needed: “Concerning whatever matter the kahal, or the good men of the town who were appointed by the kahal, have enacted, there is no need for an act of acquisition or deed. Their words are tantamount to writing and handing over.”9 The commitments of the kahal are as good as done.

Declaration of Sale Guardians who sell off the property of their charges must, to ensure the best price, publicly declare the sale. However, when selling public property,

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officers of the kahal are exempt from issuing a declaration of sale: “Whenever the townspeople are authorized [to sell], whether the property belongs to the poor or whether it belongs to the townspeople, they may sell without [prior] declaration, because it is considered their money.”10 The distinction made here between the officers of the kahal and regular guardians is a major factor in creating the concept of public funds, a concept not explicitly found in the talmudic sources.

Interest Torah law forbids collecting interest on loans between individuals, but according to some authorities, interest may be taken by the community officers from an endowment donated to the public and invested in the funds of the kahal: In line with the strict law, it would seem that there is [no prohibition] of interest in such a case. For the Torah only prohibited interest coming from the borrower to the loaner . . . while this principal has no owner and the [kahal’s] treasurer does not take the money for himself. It is akin to the case of a donation to the temple, where interest is not prohibited [because it is not considered a case of “your neighbor”].11 Public funds do not belong to any particular individual, and the treasurer is a public officer. Officers of the kahal are recognized as officers rather than as individuals; their actions are therefore binding even after they die or leave office: “The public [tzibbur] does not die.”12

Diverting Funds and Bankruptcy Money collected and given to charity is usually considered the property of the poor. But in the case of collection through communal taxation, funds may be diverted on the strength of a prudential recommendation by the community council. The officers of the kahal may divert funds intended for the poor because a kahal does not go bankrupt13 and is not suspected of criminal intent.14

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Testimony Interested parties are ordinarily barred from giving testimony. But in the case of a grievance between the kahal and one of its members, the testimony of other members is accepted: “Know this: it is not the custom to bring witnesses who are not townspeople on such occasions.”15 The community is the all-inclusive framework of its members’ lives, and in order for its autonomy to be maintained, grievances must be settled internally: “For if you do not say so, you void all the takkanot of the communities; and the customs [minhagam] of the communities are Torah. On such occasions one must say ‘custom [minhag] voids [mevatel] halakhah.’”16

These developments illustrate the process of the creation of the kahal as a distinct legal persona. Perhaps the most important jurisdiction granted to the kahal, from the perspective of its emergence as an autonomous political unit, is the right to enact ordinances (takkanot) and enforce them through a penal code. Before I turn to this aspect of the kahal’s function, comparison with non-Jewish Europe is instructive. In Christian Europe, feudal kingdoms were not monolithic states that centrally controlled law, government, and the military but rather were corporate polities. Berman notes that in twelfth- and thirteenthcentury Europe, legislation was, to a great degree, the province of specific sectors: Legislative and executive activities were to a considerable extent merged with judicial activities and were conducted by an institution called a court. . . . the manorial courts, like the papal court and the royal, seigniorial, urban, and mercantile courts, had wide legislative and executive powers within their respective jurisdictions.17 In this setting, the activities of such judicial/legislative bodies were “the central modality of political power.”18 The Jewish community fits this paradigm well. The communities’ legislative authority had two sources: the local non-Jewish ruler and the contemporary rabbinic authorities. The unique political character of the kahal was de-

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termined by the interplay between these two sources of authority. Let us first consider the former. In granting writs of authority to the communities, local rulers were guided primarily by pragmatic considerations. However, the jurisdiction they delegated to the Jewish communities was not absolute: “Although autonomy was generally respected . . . a broad reservation was intended for the supremacy of royal justice.”19 Despite this dependent aspect of its authority, this lack of true sovereignty, its comprehensive legal and institutional autonomy made the kahal a “state within a state.” The kahal carried out both executive and deliberative functions. Legislative injunctions (takkanot) enacted by the communities covered all areas of life: fiscal affairs, zoning laws, welfare, education, taxation, marriage, guard duty, and more. In Jewish SelfGovernment in the Middle Ages, Louis Finkelstein provides a slightly romanticized but nonetheless apt description: The term “Self-Government” may properly be applied to the Jewish institutions of the Middle Ages, because whether de jure or de facto, the communities were autonomous entities. The decrees of the synods were obeyed, often with far greater rigor than those of the state government. The judiciary was organized to such an extent that courts of appeal were differentiated carefully from courts of original jurisdiction. The rights of the members of the communities as such against the communities were defined with precision. Such an arrangement can hardly be called anything less than a system of “self-government.”20 As to the contemporary rabbinical authorities, the rabbis realized, quickly in France and Germany and more gradually in Spain,21 that it was imperative to promote communal autonomy, because if Jews had no option but to appeal to the local Gentile courts to conduct their daily affairs, they would quickly assimilate into the surrounding culture.22 The granting of communal legislative and judicial authority thus was not perceived as a rabbinical concession to the laity but rather as a necessary measure undertaken to preserve the community.23 While the divine commandments, though subject to human interpretation and application, are permanent and cannot be added to or abrogated, Jewish law delegates secondary legislative responsibility to judicial bodies such as the Sanhedrin and to lay bodies such as communal officers and

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councils. Their province is the enactment of ordinances, takkanot. Aharon Nahlon has defined an enactment of the kahal as a proper legal norm . . . and not merely a matter of morals; the kahal may coerce an individual to comply with it, even if he did not give it his prior consent. The takkanah is a norm belonging to the realm of public law, because its authority is independent of the consent of each individual, the majority being authorized to decree its enactment.24 The weight of such enactments is apparent not only in the fact that they can be enforced but also in the fact that they may at times override primary law. Jewish existence in the Diaspora was safeguarded not only by the law but also by restriction of the law in favor of communal legislation.

Communal Authority Earlier, in Muslim Spain, rabbis had been reluctant to recognize too great a range of communal authority. Shalom Albeck has argued that according to Alfasi (c. ‒), his student ibn Migash (‒), and later Meir Abulafia (c. ‒), “the community is not a legal persona distinct from its members, but rather a partnership of individuals.”25 This does not mean that the community could be dissolved at any given moment but rather that the precedence of the community over the individual was not taken for granted. While Nahlon maintains that, according to Maimonides, “the local community possessed great powers which it was accustomed to exercise independently,”26 the reluctance to recognize the community as an independent body is apparent in Maimonides’ writings as well. Maimonides generally placed himself within the tradition of Alfasi and ibn Migash. Moreover, given the passivity of the people in Maimonides’ political doctrine, it is not surprising that the Code does not recognize the kahal as an autonomous political entity capable of legislating. This lack of recognition reflects the Code’s authoritarian and centralist tendencies and is philosophically congruent with Maimonides’ conception of the multitude.27 As in previous chapters, here, too, I will preface my examination of Maimonides’ rulings with analysis of the relevant talmudic material. That is, I

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will consider the talmudic laws pertaining to townspeople before engaging in a detailed analysis of the language of Maimonides’ rulings in the Code, particularly his paraphrases and juxtapositions of various parts of talmudic dicta. Maimonides expresses his reluctance to grant communal authority through his decision to follow the editorial work of the Mishnah rather than that of the Tosefta in organizing the various laws pertaining to community. There is considerable divergence between the discussions of the laws of the townspeople in the various Tannaitic sources. The Mishnah discusses the townspeople in two places. Tractate Megillah (:) mentions their right to sell sanctified land and holy articles, and tractate Bava Batra (:) mentions their right to coerce individuals for public works. The context of the discussion in Bava Batra is a general treatment of the laws of neighbors. The last chapter of the tractate that precedes it, Bava Metzia (Bava Metzia is the “middle gate” and Bava Batra the “last gate” of what was originally a single unit, a tractate Nezikin, torts), deals with claims arising from proximity and the dependence of one property on another, for example, the second story of a house upon the first. The opening chapter of Bava Batra deals with partnership, specifically, claims one neighbor has toward another when splitting a courtyard they previously owned as partners. What is the connection? The townspeople are not recognized as a social organization essentially different from that of the courtyard. The town is simply another mode of partnership, yielding another set of mutual claims. A court needs a fence and a gate, while a town needs a wall and gate. The difference is quantitative, not qualitative. The Tosefta, Bava Metzia, organizes the material differently than does the Mishnah. The material that the Mishnah divided into two distinct chapters is brought together in the Tosefta, creating a sense that the material is arranged in terms of progressively more complex forms of social organization. Laws ‒ deal with dependency resulting from proximity; laws ‒ deal with rights of usage of neighboring public and private property. Perhaps the second half of , parallel to Bava Batra : of the Mishnah, and certainly  deal with dividing a partnership and thus serve as a preface to the laws governing courtyards. The courtyard is common property, and laws ‒ are concerned with private use of common property by one of the partners. In the middle of , the discussion shifts to the alleyway that links a number of courtyards. But

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the context of the discussion changes as well, from rights of use to legitimate claims that can be made and enforced upon an individual by the “alleywaypeople,” “courtyard-people,” or “townspeople.” Laws ‒ move between these different levels of social organization. On the surface, it would seem from this latter group of laws that here, too, the distinctions are quantitative: an alley is a series of connected courtyards and a town a series of connected alleyways. However, laws ‒ and ‒ alter this impression. The scope of activity in a town makes it a public arena with a qualitative difference. The townspeople are empowered to make ordinances controlling and regulating prices, measures, and wages. Guilds of laborers exist in towns. Moreover, this mode of social organization necessitates a certain degree of religious organization to enable the building of synagogues and the acquisition of ritual objects. Thus, whereas in laws ‒ the “public domain” (reshut ha-rabbim) primarily means an area of land that belongs to no one and is open to all, in the latter half of the chapter, laws ‒, “public” means that area where the townspeople experience their communal life. The discussion in the Tosefta is denser than that of the Mishnah. It brings together laws that the Mishnah keeps separate (law  in the Tosefta parallels the Mishnah in Megillah). Mishnah , the final mishnah of Bava Batra, chapter , implies that there is no essential difference between a town and the partnership of a private yard. The Tosefta moves this mishnah, placing it in the discussion of private partnership. In so doing, the Tosefta creates a sense of increasing complexity in the modes of social organization described and in their respective coercive rights vis-à-vis individual residents. It ends with a strong sense of public life at the organizational level of the town. Maimonides was clearly familiar with the various stages of social organization leading up to the city and state. In his early Treatise on Logic, he divides political science into four parts: governance of the self, the household, the city, and “the large nation or of the nations.”28 In the Guide, Maimonides explains that a son who smites his parents is punishable by death by order of a court of law “because of the great impudence of the thing and its destroying the good order of the household, which is the first part of the city” (:, p. ). He groups the case of the rebellious son with that of the rebellious elder in the Code’s Laws concerning Rebels, as both threaten the hierarchy upon which ordered society depends. Despite this awareness, Maimonides only considers “the large nation or of the nations” ruled by a king and not the family or city-town to be a truly

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political association. Al-Farabi also states that “the most excellent good and the utmost perfection is, in the first instance, attained in the city, not in a society which is less complete than it.”29 Let us now examine Maimonides’ rendering of the talmudic material in the Code. Maimonides devotes chapter  of the Laws concerning Neighbors to claims arising from proximity. Chapter  is divided into two parts. The first, laws ‒, deals with partnership in a courtyard; the second, laws ‒, concerns the larger grouping of the alleyway. Chapter  moves on to the town. At first sight, then, it would seem that Maimonides is following the Tosefta’s structure. However, when we look at the order of the laws within chapter  and scrutinize the laws Maimonides omits and moves elsewhere, the picture changes. Maimonides, following the Mishnah, appears to conceive the town as merely a large collection of courtyards and alleys. Laws ‒ of chapter  deal generally with the town. Laws  and  concern the courtyard and the alleyway, as do laws ‒. (Laws ‒ deal with a different matter altogether, that of mixed properties.) This movement between the different units of organization undercuts any sense that the town is essentially different from the courtyard and the alleyway: the differences, it is implied, are solely differences of scale. The town is merely a collection of courtyards and alleyways. Granted, since it is large, it has its own needs. A town requires public works of broader scope: it needs walls, roads, water supplies, and synagogues. Maimonides limits his discussion to these facilities and does not discuss any legislative powers a town might require: not seizing on the Tosefta’s precedent, he does not utilize this discussion to create a compilation of “laws concerning the town.” This interpretation is strengthened when we examine Maimonides’ editing of specific laws and especially his treatment of communal legislation. Law , chapter  of the Laws concerning Neighbors, reads: The residents of a city [benei ha-ir] can compel one another to help build the wall, the gates, and the bolt for the city, to help build a synagogue, and to help buy a scroll of the Law, Prophets, and Hagiographa so that anyone [min ha-tzibbur, any member of the public] who wishes to read them may do so. The first half of this law is taken from the Mishnah (Bava Batra :), quoted previously; the second half is from the Tosefta:

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Townspeople can compel each other to build themselves a synagogue, and to purchase scrolls of the Torah and prophets for themselves. Townspeople are authorized to stipulate regarding prices, measures, and the pay of laborers. Townspeople are authorized to pronounce, “Anyone seen at X’s shall pay thus and so”; “Anyone seen [dealing with] the authorities shall pay thus and so”; “Anyone whose cow grazes amidst the seedlings shall pay thus and so.” And they are authorized to enforce their decree. (Bava Metzia :; JPT, p. ) Maimonides cites only the first sentence of this law and disregards the section on legislation. It is shifted elsewhere, as we will soon see. The important talmudic precedent for determining the range of communal legislation is the story of two butchers who made an agreement concerning marketing rights. The penalty for violating the agreement was that the animal skins of the offender would be torn. When this penalty was enforced, a suit was brought against the enforcers: The case came before Rava, and he ordered them to repay him. Against this, Rav Yemar b. Shlamia cited: “And they may enforce their decree”; Rava offered no reply. Said Rav Papa: He appropriately offered no reply. That applies only where there is no prominent person [adam hashuv]; where there is a prominent person, they cannot unilaterally make decrees. (BT Bava Batra a; JPT, pp. ‒) This passage, much debated by medieval scholars, plays a central role in medieval communal law, as the powers of the community and the scholar hinge upon its interpretation. Does “prominent person” mean a scholar,30 or does it refer to a prominent layperson?31 Some argue that even if it does refer to a scholar, the right to repeal an ordinance is restricted to ordinances stipulated by guilds but does not apply to an ordinance stipulated by the community.32 Maimonides uses the story as the focal talmudic source for the authority to issue ordinances. The fixing of rates and measurements is discussed in the Code’s chapter , Laws concerning Sales. The chapter opens by stating that it is the court’s obligation “to fix market prices and put officers in charge thereof, to the end that each merchant should not make all the profit he desires” (:). The local courts are the institution charged with fixing the market rates.33 Al-

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though the townspeople “may agree among themselves to fix a price on any article they desire, even on meat and bread, and to stipulate that they will inflict such-and-such a penalty upon him who violates the agreement” (:), Maimonides, following the precedent of the story of the butchers, qualifies this right: All this applies in a city [medinah] without a prominent scholar [hakham] to order civic affairs [le-takken ma’aseh ha-medinah] and to bring about excellence [le-hatzliah, to succeed, perhaps to achieve happiness]34 in the activities of its inhabitants. If, however, it has a prominent scholar, their stipulation has no effect whatever. They may not then punish or cause loss to one who disregarded the stipulation, unless he had joined in it and it was done under the scholar’s auspices. Anyone who caused loss [upon a purported violator] of a stipulation not [adopted] under the scholar’s auspices must pay compensation. (:; JPT, p. ) The law expects courts to fix rates and the “prominent scholar” (note the shift from “person” in the Talmud) to “order” (le-takken) the affairs of the city and guide the polity to happiness. The scholar alone has the authority to engage in these regulatory activities.35 The townspeople may make stipulatory (conditional) agreements among themselves but are not authorized to issue decrees, and the stipulations they do make are subject to the scholar’s endorsement. Maimonides clearly wants to downplay any legislative role the townspeople might seek to fill. He therefore distinguishes between the town’s need for public works, which he presents as on a continuum with the courtyard and alleyway in the Laws concerning Neighbors, and the right to issue ordinances, permissible only in the absence of a distinguished sage or in accordance with the sage’s opinion. In any case, the Laws concerning Sales makes it clear that legislation governing commercial practice is the province of the courts, not the townspeople. In fact, Maimonides omits the right of the townspeople to decree that “anyone seen at X’s shall pay thus and so,” which is part of the Tosefta and thus should appear in the Laws of Neighbors : as well. This omission is deliberate: Maimonides seeks to minimize the townspeople’s political power. Nahlon, who maintains that Maimonides grants significant authority to

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the townspeople, focuses on those laws that prima facie empower the community (Laws concerning Neighbors :, ) but fails to acknowledge the larger philosophical context of Maimonides’ position and his editorial reworking of the sources.36 The Code’s politics is monarchic and centralist, recognizing only the authority of kings and the higher courts. General participation in local public life is not conceived as a political activity worthy of cultivation. Maimonides, relegating the consent of the multitude to a passive, ex post facto role, downplays the precedents for public legislation and the exercise of political power by townspeople.

Nahmanides Nahmanides’ attitude is very different. It is possible that this change is connected to the growing Ashkenazic influence on halakhists in Spain. Nahmanides was very instrumental in disseminating the Ashkenazic tradition in Spain, a process enhanced in the following generation with the arrival in Spain of Asher b. Yehiel (c. ‒), a student of Meir of Rothenburg. In Mishpat ha-Herem, Nahmanides discusses the main legal technique used to make communal charters and enactments binding—the ban, or herem.37 Originally, the herem was an oath taken when a communal charter was drawn up, but later it came to be used to ensure compliance even after the charter was in place. This parallels a similar process in Christian society: The new cities and towns of the eleventh and twelfth centuries were religious associations in the sense that each was held together by religious values and rituals, including religious oaths. Many of them were sworn communes. . . . To stress the religious character of the cities and towns is not to say that they were ecclesiastical associations. They were wholly separate from the church, and in that sense they were the first secular states of Europe. . . . [They] were also legal associations, in the sense that each was held together by a common urban legal consciousness and by distinctive urban legal institutions. In fact, it was by a legal act, usually the granting of a charter, that most European cities and towns came into being; they did not simply emerge but were founded.38

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Nahmanides analyzes the ban as a category of oaths. One kind of ban is that mentioned in Leviticus : concerning a person who vowed to consecrate certain goods unto God. Another is that which is binding though the individual neither utters nor accepts it; indeed, the individual need not be present at all. For example, in Mishpat ha-Herem Nahmanides states that a court can decree a herem by saying: “Whoever performs a certain deed, or ‘breaches the fence’ concerning a certain matter, shall be under a ban” (p. ). Such a ban, “although it is not found in the Torah of Moses our teacher, peace be with him, but is known from tradition” (p. ), is binding on the individuals to whom it is addressed.39 Unlike oaths that are binding only if an individual expressly takes them on, the ban is a binding oath that can be imposed upon an individual by an external body. It thus came to serve the courts as a means of issuing binding decrees. Nahmanides bases the court’s authority here on the biblical precedent of Nehemiah’s actions against mixed marriages of Judeans with Gentiles (Neh. :). In his capacity as a political leader of Judea, Nehemiah took steps in order both to enforce the law and to punish. This authority was later transferred to the courts. Nahmanides returns to the political sphere in which this authority originates—the townspeople, and not just courts, are empowered to impose a herem: This too is the law concerning the townspeople, if they agreed, unanimously or by majority, in the presence of the good men of the city and imposed a ban. Because “they are authorized to enforce their decree” (Tosefta, Bava Metzia :) and to impose a ban, their ban binds all those obligated to follow their enactments. Therefore, any townsman who transgresses their rules also transgresses a ban, and is like one who transgresses an oath, which penetrates his  limbs and “destroys his trees and stones,”40 and he is excommunicated from his townspeople. (p. ) The community’s herem is an oath binding on the individual. Failure to keep the oath incurs the penalty of accursedness and ultimately excommunication. Nahmanides views the Tosefta as supporting the right to impose such a ban. As he understands it, the right to impose a ban is derived from the ba-

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sic right of the community to enforce its enactments. But if the community’s general right to legislate and enforce its legislation is already established, why is the ban needed? Notice the rhetoric Nahmanides uses when speaking of the ban. The kahal invests its decrees with religious weight by enlisting the magical power of the oath to enter and destroy the criminal. An effective deterrent, the ban lends religious force to the prudential decisions of the community. The Tosefta sanctions legislative activity by an existent kahal, but the creation of a kahal as a polity calls for a unique sanction. The sanction of excommunication, the threat of loss of citizenship should one “breach the fence” by transgressing the charter and covenant that effect the ordered existence of the kahal, makes the ban an ideal tool for the purpose of forging a binding authority, both at founding moments and for special decrees. By violating its rules and boundaries, offenders put themselves outside the community; excommunication by the community merely completes the process the criminal initiated. The only precondition for imposing such a ban is that it be carried out by a recognized religious quorum of at least ten males, because [less] is not considered a tzibbur [a public], nor are they considered a court which stands for a public. Such a group has no power to impose a ban. It can only demand an oath [which must be verbally accepted] of each individual. (pp. ‒) The quorum requirement underscores the religious character of the herem. It also reinforces the sense of the kahal as a local charismatic unit rooted in, and reflective of, the people of Israel as a whole. Even the court’s authority to impose a ban is described as derived from that of the public. The court “stands for a public.” Nahmanides continues: And if the ban was imposed by a king of Israel or the Sanhedrin, in the presence of the majority of Israel,41 the transgressor is liable to the death penalty, and the king or Sanhedrin is permitted to execute him in whatever manner they choose. That is the rule of Joshua, who tried Akhan as a capital case [for breaching the herem of Jericho, see Joshua ]. (p. )

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In contrast to Maimonides, who sharply distinguishes the handling of local affairs from real—that is, national—government, Nahmanides sees the kahal as a bona fide political structure whose functions parallel those of the king and the Sanhedrin on the national level. In his Commentary on the Torah, Nahmanides discusses the legislative activities of the nation’s political leadership. The Book of Exodus states that Moses “made for them [Israel] a statute and an ordinance” (:) before the giving of the Torah at Sinai. Nahmanides explains the nature of this laying down of laws: In line with the plain meaning of Scripture, when the Israelites began coming into “the great and dreadful wilderness . . . thirsty ground where there was no water” (Deut. :), Moses established customs for them concerning how to regulate their lives and affairs “until they come to a land inhabited” (Exod. :). A custom is called hok. . . . Custom is also called mishpat (judgment or ordinance), because it is something measured out accurately. (pp. ‒) The word “custom” does not connote a spontaneous local or conventional practice in contrast to institutionally legislated law. For Nahmanides, custom is equivalent to legal norm; it is characterized by regularity and accurate measure and enacted by the political leader for the public as a whole. It is therefore interchangeable with “law” and “statute,” hok and mishpat. Similarly, In the case of Joshua it is also said, “So Joshua made a covenant with the people that day and set them a statute and an ordinance [hok umishpat] in Shechem” (Josh. :). Here too the expression does not refer to the statutes and ordinances of the Torah, but rather to the customs and ways of civilized society [hanhagot ve-yishuv ha-medinot], such as “the conditions Joshua made [upon entering the Land],” which the Rabbis have mentioned, and other such similar regulations. (p. ) Joshua, too, joins the people in a covenant, a charter specifying the conditions under which the Israelites as a people agree to settle the Land of Israel. This legislative action yields laws other than those of the existing legal code, the Torah.42 Moses and Joshua both engage in creating norms to suit the spe-

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cific conditions of life of the people, apparently by virtue of their leadership positions. But how broad is this conception of “customs and ways of civilized society”? Nahmanides explains: [Or] it may mean that Moses instructed them in the ways of [hukkei] the wilderness, namely to be ready to suffer hunger and thirst and to pray to God and not to murmur. He taught them ordinances [mishpatim] whereby they should live, to love one another, to follow the counsel of the elders, to be discreet in their tents with respect to women and children, to deal in a peaceful manner with the strangers that come into the camp to sell them various objects. He also imparted moral instructions, i.e., that they should not become like bands of marauders who do all abominable things and have no sense of shame. (p. ) This sounds like a list of moral injunctions through which Moses attempts to impart self-discipline to a nation of slaves. Chavel’s translation seems to read this list as an illustration of the minhagim Moses enacted. But as I indicated in the brackets, Nahmanides begins the passage with the word “or,” suggesting that this list of morals is an alternative understanding of what Moses did and not to be equated with enacted minhagim. The traditional Rabbinic list of Joshua’s enactments better illustrates the legislative activity Nahmanides has in mind. These ordinances, enumerated in BT Bava Kama (b‒a), regulate the ownership of land: the boundaries between public and private property and the occasional overlap of the two. As they concern public space, their promulgation is attributed to Joshua, who sets them as “conditions for inheriting the land” (b): it is the political leader’s responsibility and prerogative to legislate norms that regulate social life.43 The phrase “the customs and ways of civilized society,” hanhagot ve-yishuv ha-medinot, may echo ibn Daud’s “civic actions,” hanhagot mediniyot, and there is no doubt that Nahmanides was well acquainted with Maimonides’ usage of the related terms in the Guide and the Code. In chapter : of the Guide, Maimonides speaks of the relation between the “perfection of the body” (tikkun ha-guf ) and the “perfection of the soul” (tikkun ha-nefesh) and defines the former:

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[This] aim consists in the governance of the city [hanhagat inyenei hamedinah] and the well-being of the states of all its people [tikkun inyenei shokhnehah] according to their capacity. (:, p. )44 But Nahmanides may be continuing the historical halakhic usage of similar terms. The term minhag ha-medinah is found in the Mishnah: If two jointholders would make a partition in a courtyard, they should build the wall in the middle. Where the custom is to build of unshaped stones, or of hewn stones, or of half-bricks, or of whole bricks, so they should build it: everything should follow local use [minhag hamedinah]. (Bava Batra :) Here the term minhag ha-medinah means local custom.45 In his novellae on Bava Batra, Nahmanides understood the Mishnah as an endorsement of local custom: “but certainly if there was a known custom for jointholders—for instance, if the people of the city made a stipulation in the presence of everyone—they compel each other to build according to their known custom” (a).46 In general, Nahmanides recognizes custom as binding. The legislative decree of the kahal publicizes the custom. Legislated customs may even override the halakhah.47 If, then, local custom is referred to in order to decide liability when a dispute arises between jointholders, this is certainly so when the custom is officially decreed and promulgated. Here, too, Nahmanides construes customs as legal norms. Nahmanides may have infused the Mishnaic term minhag ha-medinah with the sense of the explicitly political medieval term hanhagot mediniyot. Reading this meaning into the Mishnaic language would accent its political import and suggest that the political authorities are responsible for extralegal legislative activity intended to ensure social order. Nahmanides may also be following a Spanish tradition. Joseph ibn Migash reports issuing an enactment allowing a ban to be imposed on anyone who accuses a defendant of lying: Because imposition of the aforementioned excommunication [nidduy] does not follow from the law but rather, in our eyes, from political order and government [tikkun ve-hanhagah medinit] . . . we issued

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the enactment years ago in one of the provinces of Andalus for [local] reasons that compelled us to act differently from our practice in our own home. . . . this matter is issued by the court by way of political order and government. (responsum )48 This responsum clearly uses the notion of political government in reference to the judicial activity of enacting ordinances.49 We have seen that Nahmanides developed a notion of political legislation that is contrasted to Torah law. He describes the political leadership of Moses and Joshua in terms of this activity of political legislation. In Mishpat ha-Herem, Nahmanides draws a parallel between communal and national leadership in terms of the legislative powers they have in common but never explicitly uses the term “political leadership” to describe the community’s activities. I now turn to Adret, who did take this step.

Solomon ibn Adret (Rashba) Adret follows Nahmanides’ position on the ban but adds a new dimension to the discussion of communal authority. Here I will explore Adret’s contribution to the development of the concept of politics, focusing on three responsa in which it is particularly pronounced, though Adret wrote many responsa on the subject. Adret was asked about the following case: The kahal agreed to appoint us officers to eliminate sins, and we have taken an oath to do so. And the charter of the mandate [tikkunei hahaskamah] states that we are authorized by the [Gentile] government [shilton ha-medinah] to impose penalties, whether corporeal or fiscal, as we see fit. (:; JPT, p. ) The appointees then ask two questions: Can they hear testimony from the defendant’s relatives or from a woman or a minor, though such testimony is unacceptable according to Torah law? Can they do so if, in their judgment, “there are grounds [amatla’ot]50 for maintaining that the witnesses speak the truth” and even if there is no “clear testimony”?

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Adret responds: These issues seem clear to me: you are authorized to act according to what you judge to be the case [literally, what you see with your eyes]. For those matters which you mentioned concern only a court judging according to the laws of the Torah, such as the Sanhedrin. . . . But whoever is responsible for the ordering of the polity [tikkunei ha-medinah] does not judge according to the actual laws written in the Torah, but rather according to what he must do, given the times, with the [Gentile] government’s license. This opening statement is followed by a detailed exposition of prooftexts, but Adret presents the answer as “clear”—it hardly needs justification. It is axiomatic that individuals responsible for the ordering, the perfecting, of the polity are not bound by the rules of law enforcement stipulated by the halakhah.51 Chapter : of the Guide, in which Maimonides both characterizes politics and establishes its priority to the “perfection of the soul,” is significant for understanding Adret’s argument. Maimonides maintains that although the perfection of the soul is “indubitably greater in nobility,” politics is “prior in nature and time.” The achievement of eternal life is necessarily dependent upon “corporeal preservation, which lasts for a certain duration and which can only be well ordered [yishlam sedder tikkuno] through political association [haskamat anshei ha-medinah, ibn Tibbon: ba-kibbutz ha-medini]” (p. ). This prioritizing may well be reflected in Adret’s claim that the authority of the officers is “clear.” In this interpretation, Adret understands Maimonides’ argument to mean that the needs of ensuring political order may take precedence over the demands of the Torah. Despite this similarity, there are also important differences between Adret and Maimonides regarding the exercise of such authority. Adret’s use of the term tikkunei ha-medinah seems to follow Maimonides’ use of tikkun hamedinah in the Laws concerning Sales.52 However, Maimonides there speaks of a “prominent scholar” who orders civic activities and helps the inhabitants achieve happiness. Adret appropriates the term but instead of referring to a distinguished sage speaks of appointees. He also omits the telos of happiness to which Maimonides refers. As we shall see, social order, rather than

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the pursuit of happiness, is the chief consideration in Adret’s reasoning. Adret’s innovation is to declare that the lay appointees of the kahal assume this authority on explicitly political grounds, citing tikkun ha-medinah.53 The talmudic dictum that “the judge follows only what he sees with his eyes” is intended to fortify the judge’s self-confidence to judge a given situation.54 The judge need not inquire beyond the information presented and is free to speculate on the motivations behind the arguments set forth by the claimants.55 Adret declares that it is the prudential judgment of the appointees, what they see with their own eyes, that determines how enactments are to be applied, just as the prudential judgment of the kahal was the basis for the original institution of the enactments. But why is it so clear that these officers possess this authority? Were it not so, even they [courts judging according to the laws of the Torah] would be unable to impose corporeal or fiscal fines; because [by law] we do not try cases involving fines in Babylon [that is, outside the land of Israel],56 nor do we try unusual cases . . . because these demand . . . expert judges, and we are but commoners. (:) In other words, given the present circumstance of exile, even batei din, halakhic courts of law, technically exceed their mandate. If we are to justify their actions, we must assume an authority stemming from political responsibility. Similarly, unless we assume this, an individual who confesses his own crime cannot be flogged or punished, because according to the law, “a person cannot render himself an evil-doer.”57 And even if there were qualified witnesses he would need prior warning in order to be culpable. . . . Rather, all these conditions pertain only to a court which judges according to the [law of the] Torah. (:) What Adret takes for granted as acceptable practice is striking. He proves the validity of his argument that we cannot be bound by the procedure of Torah law by asserting that otherwise we would be unable to punish criminals as we actually do. The alternative is simply unthinkable. The logical liberties Adret takes in putting forward this circular argument attest to the importance with which he views his rhetorical objective—strengthening the hands

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of the appointees. Adret is assuring them that they need not worry about the legitimacy of their actions, for this exercise of authority has been the common practice of Jewish communities throughout the generations of exile.58 Adret goes on to quote the classic prooftexts concerning extralegal punishment: Do you not know the case of David who slew the Amalekite convert (II Sam. :‒) according to the latter’s confession? Similarly they [the Sages] have said: “we impose stripes and punish not in accordance with the law; not to transgress the words of the Torah but in order to build a fence for the Torah” (BT Yevamot b). (:)59 But do these texts not apply to the discretionary activity of official courts? Adret reads them as pointing to a domain of recognized activity rather than to particular institutions. His argument is that if the courts judging according to Torah law are permitted to act extralegally, How much more so you! Because the whole principle informing your appointment was that you should judge as you see fit, just as it is written in the letter of mandate you mentioned. This is deemed a clear matter both by us and in all places where similar stipulations were enacted. (:; JPT, p. ) Communal agreement carries the weight of law, and where social order is concerned, the officer’s prudential judgment takes precedence over the halakhah. Adret must be affirming that the community’s authority is more basic than the court’s, otherwise it is unclear why communities are “much more” entitled to legislate extralegally than courts ruling according to Torah law.60 In another responsum, the argument about the weight of political responsibility is supplemented by an argument about the limits of Torah law. In this case, too, Adret was asked about appointees who enacted a criminal code that violated Torah law: If the appointees find the witnesses trustworthy, they are permitted to impose monetary fines or corporeal punishment as they see [fit]. This preserves the world. For if you were to restrict everything to the laws stipulated in the Torah and punish only in accordance with the Torah’s

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penal [code], in cases of assault and the like, the world would be destroyed, because we would require two witnesses and [prior] warning. The Rabbis have already said that “Jerusalem was destroyed only because they restricted their judgment to Torah law.” How much more so outside the Land [of Israel], where there is no Torah authority to impose penalties, and the unscrupulous will “breach the fence of the world,” and the world will become desolate. (:; JPT, pp. ‒) The fact that he finds this an acceptable argument in the context of a halakhic ruling and the appeal to common sense are striking. Adret contrasts the preservation of the world with its destruction in the same way Maimonides contrasted the perfecting of the world with the destruction of civilized society.61 In both cases, the purpose of the comparison is the same: to legitimize extralegal penal activity in the name of preserving social order. An effective penal code is a necessary prerequisite for a civilized society; without it, there is no way to deter “the unscrupulous.” Society’s laws are, to borrow the metaphor of the responsum, the mortar of the fence of the world. An effective system of enforcement creates the boundaries of socially acceptable behavior. Adret strengthens his argument with bold rhetorical exegesis of a talmudic dictum about the destruction of Jerusalem. The statement originates in the following talmudic discussion: Rabbi Johanan said: Jerusalem was destroyed only because they gave judgments therein in accordance with biblical law [din torah].62 Were they then to have judged in accordance with untrained arbitrators?— But say thus: because they based their judgments [strictly] upon biblical law, and did not go beyond the requirements of the law [lifnim me-shurat ha-din]. (BT Bava Metzia b) A similar statement in the same tractate reads: Why were the bazaars of Bet Hini destroyed? Because they based their actions upon Scripture [divrei, possibly din torah]. (BT Bava Metzia a)63 In the Talmud, acting in accordance with the strict demands of the Torah, din torah, is contrasted with acting in accordance with the rabbinic interpre-

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tation of the biblical law, which is generally more demanding, or supererogatory actions undertaken by individuals. Appeal to the “original,” biblical law was, as the Talmud explains, an attempt to circumvent these additional demands and to justify laxity of observance. Although Adret does not oppose the talmudic understanding, the meaning he attributes to the saying about the destruction of Jerusalem is very different. Adret introduces the idea that the strict demands of the law may not suffice to order society, and hence it becomes necessary to create new ordinances by suspending the existing Torah law and creating a more effective system of enforcement. Adret cites the classic precedents for extralegal and discretionary penalties. He states time and again that such actions take place “in each and every locale” and “in every generation”: Therefore, the appointees who acted thus, if they saw it to be the need of the hour to impose penalties, whether fiscal or corporal, for the perfection of the polity [tikkun ha-medinah] and for the need of the hour, have acted lawfully. How much more so when they have [non-Jewish] royal authorization. . . . The appointees [however] must carefully consider the matter and act [only] after taking counsel, and their intentions should at all times be for the sake of heaven. (:; JPT, p. ) The nature and purpose of the action undertaken by the appointees are characterized as “for the perfection of the polity.” The “perfection of the polity” is contrasted with the strict application of Torah law. Political enactments are prudential, determined by the needs of the hour, while Torah law, though subject to ongoing interpretation, is fixed. The two types of legislation represent two distinct spheres of authority, each generating different rules of action. Elaboration of these differences is found in a letter Adret wrote to his German contemporary Meir of Rothenburg, concerning an informer who was publicly executed in Barcelona.64 The case clarifies the distinction between Torah law and “the perfection of the polity” and also illustrates the significance of the distinction for actual practice. The brothers Abravalia, who were officers in the royal court, brought the matter of the informer before King Pedro III. The king, who “loved justice,” arrested the informer and sent a royal judge to take depositions from the parties:

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Yet [says Adret], I remained aloof from the whole affair until several communities, together with A’s [the informer’s] relatives, demanded that a royal mandate be obtained empowering the aged Rabbi Jonah of Girona, the nephew of Rabbi Jonah Gerundi, and myself, to become the judges in this case. I refused to become involved in this affair and to mete out strict justice [dineinu], unless I could effect an amicable arrangement [psharah] of the matter. (pp. ‒) Adret contrasts din, law, and psharah, compromise or settlement, an established halakhic dichotomy. As a rule, compromise is the preferred course.65 Adret and Rabbi Jonah procrastinated for a year in an effort to bring about a settlement, but the communities were frightened of the informer’s activities. A request for an audience with the king was refused. The delay in the proceedings incensed the king and he ordered us sent to him in chains . . . if we did not announce our decision. . . . After much labor and great suffering we were forced to give our opinion to the king that according to his own statement and the testimony gathered by the various Jewish courts, A was deserving of death. . . . The king, then, sent our opinion to the royal judge in order that he pass judgment on A in accordance with it . . . the king sent his officer to execute A. (pp. ‒) Adret’s deeds indeed reflect the recommendations he makes in responsum :. There he urges that appointees ponder issues carefully and take counsel before acting. Adret exceeded these demands by taking no judicial action whatever, despite his authority to act as he saw fit, and instead seeking a compromise. To this end he procrastinated for a year, risking arrest, despite pressure exerted by the communities and the informer’s relatives, who feared the outcome of this procrastination. Three years after the death of Joseph Abravalia, Adret tells us, one of the informer’s brothers complained to the king. He claimed that the court’s decision had not been in accordance with the law, since according to Jewish law we had no right to pronounce the death sentence against anyone. He contended that the Jews had forfeited this right long ago according to their own law; that at the time they still ex-

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ercised that right, only a [Sanhedrin] court of twenty-three judges had the right to pronounce the death sentence, and such a court had to order the witnesses to testify in the presence of the accused. (p. ) This individual was eventually silenced. But fearing further challenges to the ruling, Adret sought the approval of other rabbinic authorities for his decision. He lists his reasons for considering A an informer and a pursuer (rodef ) and the grounds for punishing him.66 After recording the relevant talmudic precedents and pointing out that execution of those guilty of such offenses did take place in Aragon, Catalonia, Castile, and indeed throughout the Diaspora, Adret adds a new twist to the discussion: Better than all the previous arguments concerning our case is [the fact] that we did not sit down in judgment [ourselves] but were asked by his majesty the king to use our judgment [literally, see with our eyes] and give him our counsel concerning A’s deeds. And we said that he [the king] may execute him because all the procedures mentioned are scriptural decrees [gzerat ha-katuv] which apply only to trials conducted by a Sanhedrin; but in royal law [dina demalkhuta] no heed is taken of them. (p. )67 Adret argues that he and Rabbi Jonah did not initiate these proceedings; the king did. Adret’s role was therefore not to serve in the capacity of judge in a court of Jewish law but in the capacity of counsel regarding the king’s law. Two points must be noted here. The first is the distinction between the law of the Sanhedrin, that is, the law of a halakhic court, and royal law, dina demalkhuta, which does not proceed according to Jewish law but is recognized by it. The second is the collapsing of the distinction between Jewish and non-Jewish royal law. The term dina demalkhuta is ordinarily understood as referring to the law of the non-Jewish kingdom. But in the present context, Adret employs the term to mean the laws of government in general, the laws necessary for the ordered governing of any polity, in contrast to the positive laws of a specific government. The word “kingdom,” malkhuta, is used here because Adret sees monarchy as virtually synonymous with government. The expression “royal law” thus embraces the kinds of laws kings legislate in order to govern a polity. Hence, dina demalkhuta refers to nonJewish kings and to Jewish kings as well.

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This is clear from the prooftexts Adret cites, which have to do with David and other kings.68 Adret’s attribution of this category to Jewish kings is significant: it means that the distinction between two kinds of law is built into the basic structure of society as envisioned by the halakhah. The existence of royal law as a structural component of the Jewish polity allows Adret to compare Jewish and non-Jewish royal law and to compare royal law to the kahal’s practice of tikkun ha-medinah. Adret considers this argument as better than the previous ones because it makes them redundant. He explains that we do not take heed of the procedures stipulated by Torah law because the king’s law follows only the knowledge of truth and he [the criminal] may be executed on the basis of the testimony of relatives, or a confession, and without prior warning or a [Sanhedrin] court of twenty-three. The king’s law follows only the knowledge of truth. (p. ) The legal distinction between jurisdictions is anchored in an epistemological distinction. Adret contrasts the laborious procedure stipulated by Torah law with the “knowledge of truth.” Like Maimonides, he is wary of these procedures; they are “scriptural decrees,” gzerat ha-katuv, implying resignation to authority when reasoning falls short. The procedures demanded by the Torah cannot be explained. They do not further the knowledge of truth. But is the procedure stipulated by the halakhah not meant to guide us in what we may legitimately consider knowledge for the purpose of trying and convicting an individual? Proof of this is that David executed twice on the basis of the [accused’s] confession. And Solomon executed Joab even though he would not have been executed according to the laws of the Sanhedrin. . . . And a better argument can be found from the case of Abigail, who said to David: “Saul is still alive, and your fame [tivakha, your coin] is not yet spread” (BT Megillah b). . . . But if a king were to ask us we could have answered that he [David] may have lawfully executed him [Nabal] because he transgressed a sin worthy of death. And as this was known in truth, even if the witnesses did not give testimony in his [the accused’s] presence, and it was “special testimony,” nor was there a court of twenty-three.69 Because all these matters do not contribute to the

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knowledge of truth, and royal law [din ha-malkhut] follows only the truth, whoever reports it, whether [the accused] himself, or others in his absence, or before a court. (pp. ‒)70 The procedures demanded by Torah law really do not advance our understanding of the truth of the matter. Adret seems to put great trust in the discretionary and prudential powers of kings, judges, and heads of communities. He does, however, further anchor his legal and epistemic distinctions in what can be described as a political argument: For if you do not say so, but rather base everything on Torah law and the laws of the Sanhedrin, the world would be desolate. Because the murderers and their comrades would multiply in accordance with Rabbi Akiva’s statement: Had I been in the Sanhedrin no man would ever have been killed. And the Sages have said: A Sanhedrin that executed twice is called “murderous.” (p. ) Like Maimonides, Adret finds the societal ramifications of Rabbi Akiva’s position unacceptable, concurring with Shimon b. Gamaliel’s retort: “They would even have multiplied the shedders of blood in Israel” (Mishnah Makkot :). But Adret goes further than Maimonides in seeking a solution. While Maimonides sought to camouflage the king’s law, Adret presents it explicitly as a distinct and autonomous law (din ha-malkhut). It is not conceived of in terms of extralegal activity; it is unqualifiedly law. Adret presents royal law as both epistemically acceptable and pragmatically justified. Furthermore, he is willing to recognize its benefits at both levels of social life, the national and the local. He thus accords parallel powers to lay leaders of contemporary communities; they, too, are responsible for their societies: For whoever is appointed to these matters by the king acts according to the laws of government [mishpetei ha-melukhah], because the king constitutes the world through these laws. (p. )71 This passage grants authority to all so appointed by the king. And as we saw in responsum :, the kahal is also expected to act in accordance with a writ from the king. Adret emphasizes that “this is the common practice in the land of Castille . . . and in the Kingdom of Aragon, and similar cases oc-

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curred in Catalonia both in the previous and in the present generation” (p. ). Like Nahmanides, Adret views the kahal as a recognized political structure parallel to the national institutions of old.72 The need to order society is manifested in the authority of the Jewish king, the non-Jewish king, and the kahal alike. The kahal’s appointees are bound by the dictates of the “charter of the mandate” and at least in that sense are accountable to their constituency. There are other constraints on their actions as well. First, Torah law is limited but by no means annulled. Thus the traditional law remains a source of possible critique of communal legislation.73 Second, good faith is presumed. The kahal is empowered to advance tikkun, order, not kilkul, impairment; to make law, and not to engage in gezel, robbery.74 And although these concepts in themselves do not serve as controls, they do constitute a framework for developing an apparatus for controlling governmental power. Third, individuals with claims against the kahal often turned to leading scholars of the generation to settle their disputes. Although this was not a regulated practice, nor was there any possibility of regulating it, it nevertheless was much used, as is attested by the many extant volumes of pertinent responsa.75 Finally, and most important, the kahal’s authority does not extend to ritual law. This ensures fidelity to the religious character of the community, leaving sufficient scope for the exercise of rabbinical authority.76 This last point, however, also suggests that Adret implicitly distinguishes between laws governing ritual, on the one hand, and civil and criminal law, on the other. Although Torah law encompasses all these areas, its civil and criminal laws are deemed inoperative, and the relevant responsibilities are delegated, in the name of tikkun ha-medinah, to the communal government. This body renders its own civil and criminal enactments. Government, according to Adret, is a “this-worldly” activity best pursued by the lay heads of the communities, who may create law and enforce it.

Conclusion This chapter has charted the development of the concept of politics in medieval Jewish political life. Maimonides, representing the older school of Muslim Spain, whose members were reluctant to recognize the kahal as an inde-

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pendent legal entity and legislative body, does not extend the prerogatives of the king to the kahal. He does not view monarchic politics as a model for communal self-government. His tendency to uphold the rabbinic aristocracy as the relevant source of authority at the local level is apparent in his rulings. An important change is ushered in by Nahmanides that may be related to the influence of the Ashkenazic legal tradition. In addition to ordinances enacted by political leaders in pre-exilic times, Nahmanides clearly recognizes legal ordinances enacted outside established Torah law by the local communities. Although Nahmanides does not justify this activity through an articulated notion of politics, in Mishpat ha-Herem he seeks to give religious and metaphysical weight to the community’s ordinances by means of the ban. Adret’s contribution is his conceptualization of these legislative prerogatives in political terms. Communal self-government is undertaken to promote the ordering of society, tikkun ha-medinah, the quintessential objective of political activity. Society is ordered through determination of the boundaries of the legitimate use of force: the communities’ appointees may legislate and enforce ordinances in accordance with punitive regulations decided on by the community, even if all their specific activities are forbidden by Torah law. Vis-à-vis the law, politics is an autonomous domain. Gerondi’s statement on politics, to which we now turn, further develops this conceptualization of Jewish communal self-government.

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6 THE AUTONOMY OF POLITICS

  , I present Gerondi’s conception of politics and his account of the polity’s constitutional arrangement—two distinct systems of law: divine law (halakhah) and royal law. I demonstrate that this conception is the continuation and culmination of the Barcelonean tradition of communal government. Gerondi’s political theory thus differs from that of Maimonides, although Gerondi’s theory can also be characterized as secularizing. And like Maimonides’ theory, it is plagued by vagueness and inner tension. Let us begin by considering the intellectual environment within which this development took place. Maimonides’ Guide was a towering achievement. Its impact was felt well beyond the realm of philosophy. Indeed, it stirred the entire Jewish intellectual and spiritual community of Spain and Provence and engendered a prolonged controversy that occupied three generations of scholars, Nahmanides and Adret among them. At the heart of the controversy was Maimonides’ conception of the central place of philosophy and rational contemplation in human salvation and the interpretation of Judaism it entailed.1 In response to the Maimonidean polemic, in the course of the thirteenth century philosophy and Kabbalah emerged as the two central medieval Jewish ideologies. Critique of the Guide played a formative role in the crystallization of Kabbalah.2 Yet Kabbalah was not the only antiphilosophical position. Well before the emergence of Kabbalah there existed in Jewish thought a tradi-

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tion, exemplified by the work of Judah Halevi and Meir Halevi Abulafia, critical of philosophy. Its continued existence is attested to, for example, in the thought of Hasdai Crescas, Nissim Gerondi’s friend and student.3 Septimus, speaking of Abulafia, characterizes his religious sensibility: Urbane traditionalism remained an alternative to both rationalism and kabbalah. . . . Even less than rationalism or kabbalah is this traditionalism a pure, uniform, or static type; but its representatives fit a rough common profile: broad learning, conservative sensibility, exoteric spirituality, a tendency to disengage religion from nature, cautiously selective use of the esoteric sciences, and reluctance to enthrone theoretical knowledge or wholeheartedly embrace a contemplative ideal.4 Gerondi fits this description well. Although Gerondi is firmly within the Nahmanidean school of talmudic exegesis, his theology differs considerably from that of Nahmanides. Nahmanides and Adret were Kabbalists, and their school of Kabbalah dominated Jewish spiritual and political life in Barcelona for more than half a century.5 Gerondi, however, was no Kabbalist; indeed, he criticized what he took to be Nahmanides’ overinvolvement in Kabbalah.6 Gerondi articulated his philosophy in a series of twelve sermons known as Derashot ha-Ran and is best placed in the tradition of such informed critics of philosophy as Halevi, his predecessor, and Crescas, his student. Following the demise of Nahmanides and Adret’s Barcelonean school of Kabbalah, this conservative sensibility, deeply rooted in the Geonic-Andalusian tradition going back to Saadia Gaon, seems to displace Kabbalah as the dominant trend in Barcelona during the first half of the fourteenth century. Gerondi’s sermons display a thorough knowledge of contemporary philosophy and science, and if they were publicly given, then we must assume that his listeners had at least a basic grounding in science and philosophy.7 This impression is strengthened by consideration of comparable works, particularly the sermons of Crescas and those of his student Zerahiah Halevi, which were probably delivered to the intellectual elite, and Crescas’s Or haShem.8 In the introduction to the latter, Crescas speaks of the “fellow students” (haverim) to whom he presents his arguments. As Or ha-Shem was conceived as an alternative to Maimonides’ Code, these colleagues must have been well versed in philosophy and halakhah. Gerondi, like Crescas, seems to

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have been active within a group of learned students capable of following both a detailed critique of contemporary Aristotelian science and a sustained analysis of a thorny talmudic passage. Although Gerondi repeatedly speaks in considerable detail of scientific laws and the sermons have a rational flavor, the sermons are nonetheless decidedly traditional and nonphilosophic. Unlike Maimonides, who refers to non-Jewish philosophers throughout the Guide, thereby placing himself in the framework of the universal community of philosophy, Gerondi, reflecting a stricter sense of boundaries, never cites philosophers by name. He mentions the “opinions of the philosophers” (p. ) and their “thoughts” (p. ) in reference to their disbelief in divine providence and characterizes their arguments as bad, perhaps evil, reasoning.9 He refers to “philosophizing” in a derogatory tone (p. ) and contrasts the “words of Torah” with other “sciences” (p. ). This derogatory attitude stands in sharp contrast to his great respect for science and its practitioners and to his frequent quotation of scientific laws, which he prefaces with the phrase “it is known.”10 Gerondi does not disparage the process whereby this knowledge was obtained, a process carried out for the most part by the very people and methods he dismisses as philosophers and philosophizing: “There is no escape from giving some necessary natural cause” (p. ).11 His principal concern is to stress the limitations of scientific knowledge of nature, not to invalidate it. This emphasis on the limits of reason is apparent in his theology, which seeks, on the one hand, to preserve the basic rationality of the world and, on the other, to sever the rationalist link between Torah and natural philosophy. Whereas the Guide de-emphasizes the wondrous elements of the Bible, Gerondi extols them. God’s definitive attribute is God’s will: The foundation upon which the Torah is built is [the fact] that the events in the universe do not follow necessity, but rather follow [God’s] simple will, and [the universe] as a whole is in the hands of God like clay in the hands of the potter. (p. )12 Gerondi’s attempt to retain an ordered concept of nature while defending the absolute autonomy of God’s will yields a theory of the precepts, the divine commandments (mitzvot), as implements for delivering human beings from the rule of nature.13

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The eleventh sermon is an extensive exegetical discussion of the portion “Judges” of the book of Deuteronomy (:‒:), which deals with the Torah’s constitutional law: the appointing of judges in all cities, the pursuit of justice, establishment of the judicial hierarchy, the appointing of a king, the laws of war, and so on. The sermon is an essay on the theory informing these constitutional arrangements of the Israelite polity. I now turn to an analysis of the main components of Gerondi’s political theory, royal law and divine law, after which I consider its coherence, asking whether Gerondi’s conception of divinity and its attendant metaphysics does not undermine the royal law he hopes to establish.

Politics Gerondi first considers the opening verses of the portion: You shall appoint magistrates and officials for your tribes, in all the settlements that the Lord your God is giving you, and they shall govern the people with due justice. You shall not judge unfairly: you shall show no partiality; you shall not take bribes, for bribes blind the eyes of the discerning and upset the plea of the just. Justice, justice shall you pursue, that you may thrive and occupy the land that the Lord your God is giving you. (:‒) The rabbis were troubled by the repetitiousness of the injunctions to do justice. They therefore suggest that the Scripture’s demand that the judges “govern the people with due justice” refers not to the content of the judgment but to the qualifications of the judges: Scripture exhorts us that “the judges who will be appointed must be capable of judging righteously; in other words, they must be righteous and expert judges” (p. ). Gerondi, however, claims that this is not the plain meaning of the text. Rather, the Torah is referring to two different concepts of justice: absolute justice and political justice; these concepts correspond, I suggest, to two different laws: Torah law and temporal law. It is known that the human species needs magistrates to adjudicate among its individuals, for otherwise “men would eat each other alive”

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(Avot :), and humanity would be destroyed. Every nation needs some sort of political order [yishuv medini] for this purpose, since— as the wise man put it—even “a gang of thieves will subscribe to justice among themselves.” Israel, like any other nation, needs this as well. Moreover, Israel needs it for another reason: to uphold the laws of the Torah and punish those who deserve flogging or capital punishment for disobeying these laws, even if their transgression in no way undermines political order. Clearly, these [purposes] give rise to two possible issues: first, the need to punish in keeping with true law [mishpat amiti]; second, the need to punish so as to enhance political order [tikkun sedder medini) and in accordance with the needs of the hour, even if the punishment is undeserved according to truly just law [mishpat tzodek amiti]. (pp. ‒; JPT, p. ) Gerondi begins by stating what he takes to be self-evident, what is “known”— namely, that without a legal system administering justice between individuals and without a political structure to support and enforce the system, the human species could not endure. This axiomatic point of departure echoes Adret’s claim that the authority of those individuals responsible for political order is “a straightforward matter” (:; JPT, p. ). Gerondi may also be elaborating on the Aristotelian/Maimonidean thesis that “man is political by nature.” All humans are equal in this respect, regardless of nationality. Hence, Israelites are no less political than any other people: “Israel, like any other nation, needs this as well”; “the appointment of a king is equally essential for Israel and all other nations requiring political order” (p. ; JPT, p. ). As we saw, this theme of the basic need for political organization for all human communities is developed by both Maimonides and Adret. I also noted the continuum between the Noahide laws and the halakhah and suggested that the norms of Maimonides’ royal law are similar in content to the Noahide norms. In discussing the limits of the principle that “the law of the kingdom is law” (dina demalkhuta dina), Adret argues that just as we have the laws of monarchy [mishpetei ha-melukhah] upon which the king is permitted to act, as [the prophet] Samuel instructed Israel, so do the other nations: kings have publicly known laws [dinin]. It is about such laws that they [the Sages] have stated, their law is law. (:)

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In this responsum, the thrust of Adret’s argument is to validate non-Jewish royal law by appealing to Jewish royal law. Maimonides argues the other way around, modeling Jewish royal law on Noahide law. Both, however, agree that all human communities need royal law for their existence. Without attributing it to Plato, Gerondi quotes Plato’s observation (Republic, c) about the necessity of rules of justice for any human society. His source may be Halevi (Kuzari :), but Gerondi may be quoting the Republic directly. Gerondi also appeals to the Aristotelian theory of the role of justice in ensuring the survival of “the human species.” Gerondi’s opening paragraph resonates with the idiom and ideas of classical political science. To the informed listener or reader, the rhetoric and allusions of this passage evoke a broad coalition backing his initial proclamation—the Torah and the Mishnah, Halevi, Maimonides, and Adret, as well as Plato and Aristotle—endowing Gerondi’s ideas with the authority and respectability of both tradition and science. Gerondi’s claim, then, is that there is a basic human need for a system of adjudication between individuals, a need that is satisfied within a political order whose purpose is the perfection of society, tikkun ha-medinah. Aaron Kirschenbaum has argued that Gerondi’s use of the concept of tikkun hamedinah is best captured by notions that pertain to the royal exercise of authority in crisis situations: “‘the royal prerogative’; ‘the judicial function of the monarch’; ‘emergency powers’; ‘exigency jurisdiction.’”14 Kirschenbaum elaborates: Note that these translations carry no connotation of illegality. Scholars sometimes refer to them as “extrajudicial powers,”“extralegal remedies”—which give the impression that we have here deviations from the law. This perception has its origin in the statement by the tanna, R. Eliezer b. Jacob: “I have a tradition that the court may [when necessary] impose flagellation and pronounce [capital] sentences even where not [warranted] by the Torah; yet not with the intention of disregarding the Torah but [on the contrary] in order to safeguard it” (BT Yevamot b).15 The question here is how are we to view the powers accorded the king: are they merely emergency prerogatives, or do they point to an institutionalized sphere of ongoing activity? I have argued that the latter is the case and thus

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reject Kirschenbaum’s notion of tikkun ha-medinah in favor of a much broader conception that encompasses not only emergency powers and momentary prudential judgments by the king but also a comprehensive body of law premised on the recognition of politics as an autonomous domain of action, encompassing legislation, adjudication, and law enforcement. Accordingly, I also reject his suggested translations for the term and instead prefer the comprehensive “ordering and perfecting of the polity.” Kirschenbaum’s discussion of Gerondi is misleading. He implies that Gerondi’s primary interest is resolution of the problem of the inefficacy of halakhic criminal law. Although this is one of Gerondi’s interests, it is not the primary concern of the sermon. The sermon’s thrust is to elaborate the constitutional arrangements of the Israelite polity. Gerondi attempts a broad characterization of the political realm, which he views as shaping the whole of civil society. Were his main interest the justification of occasional emergency measures, there would be no need for the more fundamental endeavor of providing a constitutional framing of the polity. In this context, criminal law is merely an example, and Gerondi explicitly refers to it as such (p. ). Although Gerondi addresses the monarchy, he is less interested in the vindication of monarchy than in politics in general. Monarchy is a political institution, a form of political organization, perhaps the best form, though he does not argue this explicitly. But the concept of politics and the ordering of political society, tikkun ha-medinah, are more fundamental to his discussion than is the institution of monarchy. In the preceding chapter, I traced the development of the term tikkun hamedinah among Spanish halakhists from the kindred terms minhag hamedinah, takkanot, and hanhagot mediniyot, arguing that it should be understood as the general activity of ordering a polity. Adret’s responsa are replete with descriptions of communal officers meeting in various chambers or the courtyard of the synagogue to engage in tikkun ha-medinah, taking care of such public concerns as law enforcement, determining tax liabilities, and settling public disputes.16 Gerondi also understands the term broadly. Perfet once asked Gerondi about the Saragossa custom of announcing real estate sales on the Sabbath. Gerondi views this as improper, but as the custom was said to have been instituted by the great Aaron Halevi, he attempts to uncover the rationale for this leniency:

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Our Rabbis, of blessed memory, have permitted talk of everyday matters for the sake of public needs, and these are public needs. For every matter that arises frequently—even though its momentary occurrence affects only an individual—is considered a public need. It is thus stated in the Mishnah in tractate Mo’ed Katan [a]: “all public needs are taken care of [during the intermediate days of the festivals].” The Jerusalem Talmud [:] comments: “What are considered public needs? Civil law [dinei mamonot], capital cases, corporal punishment [that is, criminal law], and so on.” These matters are considered public needs because we uphold justice and govern by addressing these matters. . . . Thus we see that all matters that arise frequently and contribute to the order of the polity [tikkun ha-medinah] are considered public needs even though their momentary occurrence affects only individuals. (Responsa , pp. ‒)17 Gerondi’s characterization of the public realm illuminates his understanding of tikkun ha-medinah. The public needs Gerondi identifies with ordering the polity are defined generally as issues that arise frequently and affect the order of society, particularly, civil and criminal law. While tikkun ha-medinah is often used in connection with law enforcement—the statement by Eliezer b. Jacob is cited by Adret (:) and Gerondi as a prooftext for tikkun ha-medinah—this use does not exhaust its meaning. Rather, the notion of tikkun ha-medinah points to the essence of the political, namely, that certain individuals in a society dominate others through the use of power. In the case of Jewish self-government in the Middle Ages, the specific concern is the power exercised by the community, the kahal, over its members. Not many of Gerondi’s responsa have reached us; however, from various remarks in those that have and from his novellae to tractate Bava Batra, we can see that he accepts the basic policy of Nahmanides and Adret, whom he often quotes, on communal authority. Like Nahmanides, he gives much weight to local customs, even against talmudic law.18 Thus, speaking of taxes, Gerondi writes: If we judge the matter according to the custom of the region and the town [minhag ha-medinah ve-ha-ir], the question needs no delibera-

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tion, for certainly concerning tax matters we follow the custom, even if it is [halakhically] unlawful [she-lo ka-din]. (Responsa , p. ) When referring to communal legislative activity, he uses the term “to legislate” (lahkok) and not “to enact” (le-hatkkin). The school of halakhists Gerondi is associated with and indeed Gerondi himself use the term tikkun ha-medinah to refer to the general activity of government, of ordering and perfecting political society. As we saw regarding Nahmanides and Adret, this governance is effected in large measure via enactments pertaining to all spheres of life. Kirschenbaum seeks to identify royal power with the notions of “exigency ruling” or “temporary measure” (hora’at sha’ah), hoping to thereby restrict the range of the king’s authority.19 However, the term hora’at sha’ah as used by most halakhic authorities does not imply a narrow area of activity, carefully delineated, for emergency situations. “Temporary” here does not imply a short period of time; “temporary” instead refers to the legal status of the measure—it does not officially abrogate a Torah law—and not its temporal duration. Both Maimonides and Adret understand the concept of hora’at sha’ah as encompassing everything short of annulment of a Torah law. Maimonides writes: The [high] court may inflict flagellation and other punishments, even in cases where such penalties are not warranted by the law [she-lo kadin] if, in its opinion, religion will thereby be strengthened and safeguarded and the people will be restrained from disregarding the words of the Torah. It must not, however, establish the measure to which it resorts as a law binding upon succeeding generations, declaring, “This is the law [halakhah].” So too, if, in order to bring back the multitudes to religion and save them from general religious laxity, the court deems it necessary to set aside temporarily [le-fi sha’ah] a positive or negative command, it may do so, taking into account the need of the hour. (Laws concerning Rebels :) Maimonides contrasts measures effected temporarily with divine commands, which are eternal. As long as the enactment or ruling is not presented as the law for future generations, it may be considered “for the hour.”20

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Kirschenbaum conflates necessity and exigency. An exigency is an emergency, a unique situation, the extraordinary character of which demands exceptional measures. But Adret and Gerondi, and perhaps the entire secularizing tradition of politics, argue that politics relates to the ongoing necessities of social life. Hence, royal law and its communal equivalent by no means imply the existence of an emergency situation. This is clear from the passages quoted from Adret’s responsa. The needs of the moment are not adduced to justify the punishment of individuals in singular cases but to justify the enactment of a penal code by the community. The connection made by Adret and, following him, Gerondi between temporary rulings and the ordering of society establishes politics as a realm that accommodates social reality in all its breadth and intensity. It legitimizes an ongoing process of civil and criminal legislation by the governing institutions of the polity as a means of ordering the natural turmoil of social life. Among twentieth-century authorities, Rabbi Chaim Ozer Grodzinsky presents an interpretation of Gerondi similar to the one I have put forward: Concerning theft and robbery and criminal law in general, it appears to follow from the responsum [sic] of Ran that there was a separate [system of ] royal law [mishpat melukhah] alongside the court [bet din] administering Torah law. For it would truly impair the order of the polity [takkanat ha-medinah] if a thief would be exempted [from further punishment] by paying double.21 . . . You must necessarily concede that in such cases one must enact ordinances for the polity [letakken takkanot ha-medinah].22 Among contemporary scholars, both Blidstein and Rosenberg understand Gerondi’s position in ways that support my contention, contra Kirschenbaum, that Gerondi is formulating a fundamental constitutional arrangement rather than just a set of emergency rules. Blidstein applies his “two-tier” theory to Gerondi, claiming he posits a temporal political tier quite distinct from that of divine law: “ideal law for an ideal society and realistic law for a real society.”23 Rosenberg argues that Gerondi “does not compare Torah law to equity in the context of deviant cases alone, but rather contrasts two complementary legal systems.”24

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The Structure of the Polity Gerondi contrasts royal law and the social justice accompanying it—“the needs of the hour”—with the “truly just law,” the law of the Torah. Political law is attuned to the immediate needs of social order, while Torah law has a broader perspective yet to be explained: God, may He be blessed, set these two issues apart, delegating them each to a separate agency: [] He commanded that judges be appointed to judge according to the truly just law, as it is written, “And they shall judge the people by just law” (Deut. :). In other words, the verse tells us that He set forth the purpose of their appointment and the scope of their authority: they were appointed to judge the people according to a law that was in itself truly just, and their jurisdiction may not exceed it. [] But since political order [siddur medini] cannot be fully established by these means alone, God provided further for its establishment [hishlim tikkuno] by commanding [the appointment of] a king. (pp. ‒; JPT, p. ) Gerondi does not conceive of Torah law as the sole law of the polity but rather speaks of two distinct kinds of law, Torah law and political law, based on two distinct notions of justice and inspiring two different institutions: the judicial system and the monarchy. When speaking of the monarchy, Gerondi refers explicitly to the laws of the monarchy, mishpetei ha-malkhut (p. ). His constant use of the phrases “inherently just law” and “truly just law” suggests a contrast with law that is only imperfectly just, that is, law relating to the needs of the present hour. Gerondi does not refer to royal law as “partially just law” in the course of the sermon, since his interest is to validate royal authority, not to point to its limitations. He refers to royal law in terms of its positive function, namely, the perfection of the polity. The judicial system deals with the truly just, and its jurisdiction may not exceed this mandate. Although Torah law has an exalted sense of absolute justice, it lacks the serviceability that would enable it to provide the guidelines for actually governing a society. Hence, a political order is required to

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manage the needs of the hour. For this purpose, it, too, is invested with judicial rights. Punishing criminals in this way [requiring warning] alone would completely undermine political order [ha-siddur ha-medini]: murderers would multiply, having no fear of punishment. That is why God ordered the appointment of a king for the sake of civilization [yishuvo shel olam]. . . . The king may impose a sentence as he deems necessary for political association [ha-kibbutz ha-medini], even when no warning has been given. (p. ; JPT, p. ) Punishment without forewarning is cited as an example of the kind of activity in which the king should engage. He has the discretionary authority to annul Torah law or to add and subtract according to his perception of the needs of the polity. In order to be able to order society, the king is released from the requirements of absolute justice. Gerondi states that the difference between the judge and the king is that “the magistrate is more bound to the Torah’s laws than is the king” (p. ; JPT, p. ). In arguing that “murderers would multiply, having no fear of punishment,” Gerondi echoes Rabban Shimon b. Gamaliel’s critique of Rabbi Akiva’s stance on capital punishment. The abolition of capital punishment is not a practical option. But whereas Shimon b. Gamaliel is speaking of the Torah’s criminal law, Gerondi is advocating an external power. It is the king who provides the remedy: If the king annuls any commandment for the sake of addressing [the needs of ] his time, he should have no intention of transgressing against the words of the Torah nor in any way removing the yoke of the fear of God. Rather, his intention should be “to observe faithfully every word of this Teaching as well as these laws” (Deut. :). Anything he adds or takes away, must be done with the intention of furthering the observance of the Torah and its commandments.25 For example, in the case we have cited concerning the execution of a murderer without witnesses or warning, the king’s intention must not be to demonstrate his power to the people by showing that this [the citizen’s very life] too is under his domain. Rather, his intention should be to advance the real-

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ization of the commandment “You shall not murder” (Exod. :) and prevent its disregard. (pp. ‒; JPT, pp. ‒) Gerondi’s king abrogates Torah law, judging in accordance with royal law according to what he deems fit for the sake of ordering the polity. However, his intention should not be to disregard the Torah or flaunt his power but rather to foster the social order necessary for observance of the Torah. The distinction between Torah law and political law is elaborated on by Menachem Meiri, a contemporary of Adret who corresponded with him on halakhic matters.26 Although Gerondi does not refer to Meiri directly, given Meiri’s relationship with Adret, the affinity of his position on the relation between politics and law with that of the Catalonian school, and the fact that during this era Provence and Catalonia had deep cultural connections, the comparison is not unwarranted. Commenting on the passage from Mishnah Avot (:) quoted in the opening paragraph of Gerondi’s eleventh sermon, Meiri states: After admonishing us to honor the sages and fear them, this Sage [Rabbi Hanina] informs us that we must add the honor and fear of the rulers [shiltonim], to the extent that one ought to pray for their welfare. Because human government [hanhagah] is divided into two parts: Torah government, which is given to the sages, and political government [hanhagah medinit], which is given to the rulers and judges. And if the government of sages would be lacking, the political government would not lose on that account, but should the political government be lacking, both would be lost. Because in the absence of a feared government [malkhut], each individual would fear that the other might entrap and attack him, and all his time would pass in worried efforts to save himself. (Bet ha-Behirah, Avot :) The polity Meiri envisages consists of two separate legal systems, one the province of rabbinical authorities, the other that of “rulers and judges.”27 But Meiri’s understanding, like that of Adret as presented in his responsa, provides no account of the purpose of the Torah’s social laws. Recall that Adret regarded the Torah’s provisions as inexplicable scriptural decrees and depicted royal law as the system that establishes truth. If the Torah’s social laws are impractical, why did the Torah mandate them? A complete consti-

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tutional theory for a Jewish polity has to justify this duality, this duplication of laws. Gerondi provides such an account, arguing that the Torah’s laws furnish ideal standards of absolute justice for the polity. The particular example he cites is the demand that, for an offender to be convicted, the accused must have been warned in advance of the severity of the crime about to be committed and the punishment that would follow: We read in the fifth chapter of tractate Sanhedrin: “Our Rabbis taught, [The following questions are asked of a witness:] Do you know him? . . . Did you warn him? Did he confirm your warning? Did he accept his liability to death? Did he commit the murder immediately? etc.” (BT Sanhedrin b). There can be no doubt that this is required by just law, for why should a man be put to death unless he was aware that he is committing a capital offence and [nevertheless] transgressed? Therefore, it is requisite that he confirm and accept a warning. . . . This is the law, intrinsically and truly just, that is entrusted to the judges. (p. ; JPT, p. ) Torah law is described as inherently just law because it demands rigorous proof of the defendant’s state of mind before the person is declared guilty, regardless of the social repercussions of the crime. The rights of the accused carry greater weight in the criminal procedure than do considerations of social order. This account of the absolute justice of Torah law is far different from that of Maimonides. Gerondi agrees with Maimonides on the basic thesis of the precedence of politics, but his formulation of the relation of royal law to Torah law differs considerably. Although Maimonides recognizes a monarch with broad legislative and punitive powers, he insists upon viewing Torah law as the one law of the polity. Gerondi, in contrast, speaks of two legal systems in the polity, apparently hoping this will clarify the concrete relationship between Torah law and royal law left unaddressed by Maimonides.28 Furthermore, according to Maimonides, because the law is typified by general rules, it is the function of the high court to suggest remedies that address “the needs of the hour,” that is, to take into consideration the particular. Gerondi, however, views the case of forewarning as symptomatic of the fact that Torah law is excessively sensitive to the particular: the law is too

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just. The “needs of the hour” are those that ensure the stability of the whole. The high court is not invested with this authority; on the contrary, its authority is limited: “they were appointed to judge the people according to a law that was in itself truly just and their jurisdiction is not to exceed that” (pp. ‒; JPT, p. ). But to propose this limitation of the Sanhedrin’s authority, Gerondi must reinterpret the classic prooftexts for judicial discretionary powers, which seem to imply that the court was appointed to render judgments as the times require [tikkun ha-et ve-ha-zeman]. However, this is not the case: at a time when Israel had both Sanhedrin and king, the Sanhedrin’s role was to judge the people according to just law only and not to order their affairs in any way beyond this, unless the king delegated his powers to them. However, when Israel has no monarchy, the magistrate holds both kinds of power, that of the judge and that of the king. (p. ; JPT, p. ) This passage is one of the boldest in the sermon. Earlier on, Gerondi argued that Torah law depends on the power of the political apparatus for its enforcement. Now he argues that any judicial or legislative authority the Sanhedrin may have beyond enforcing the absolutely just laws of the Torah is dependent on the king. Notice, too, that Gerondi makes no mention of the distinction between Davidic and Israelite kings. Whereas Maimonides creates a monarch with an independent power base but is wary of fully recognizing his sovereignty, Gerondi acknowledges the king as an independent source of legal authority, preceding the Sanhedrin in ordering the polity.

Divine Law Gerondi’s disagreement with Maimonides, however, runs deeper. Their differences concerning the relation between Torah law and royal law are rooted in a fundamental disagreement about the meaning of divine law. Maimonides defines divine law in political and rational terms: Torah law is divine because it seeks not only to order the polity but also to cultivate rational perfection. Gerondi, true to the antiphilosophical tradition, rejects the Mai-

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monidean identification of divinity with rationality and defines divinity in sacral terms. The Torah provides the ritualistic means that enable the divine influence to reside in Israel: [Unlike] the nomoi of the nations of the world, the laws and commandments of our Torah are unique in that they include commandments that are ultimately not concerned with political order. Rather, their effect is to induce the appearance of the divine effluence [hashefa ha-elohi] within our nation and [to make it] cleave unto us. This [effluence] may be [induced] either by means that are clear to us, such as sacrifices and other Temple activities, or by means unclear to us, such as the laws whose purpose has not been revealed [hukkim]. . . . Our Holy Torah is unique among the nomoi of the nations, which reflect no such considerations and are instead concerned solely with enhancing the affairs of their society. (pp. ‒; JPT, p. ) The Torah has a sacral nature, and its regulations induce the divine to dwell within Israel. Whereas in the Guide Maimonides interpreted rituals—in particular, the sacrificial order of the temple—as educational, as means for furthering the true knowledge of God, Gerondi views rituals as actions that induce the divine influence to dwell in Israel.29 According to Gerondi, the sacrifices are the best example of this sort of efficacious ritual. Gerondi’s critique of the Maimonidean account of Torah touches upon such major theological issues as idolatry, the esoteric teachings of Torah, science, and magic. Maimonides puts forward a philosophical account of Torah as a field of study comprising both law (“lesser matters”) and the esoteric disciplines of physics and metaphysics (“great matters”).30 This account is inseparable from his view that knowledge of God is the highest human aspiration, achieved through the study of God’s work, namely, nature.31 Idolatry, the greatest sin, consists in harboring a mistaken conception of God.32 Maimonides argues that idolatry stems from mistaken reasoning about God. The Code’s Laws concerning Idolatry and the Ordinances of Heathens opens with a historical preamble depicting the human fall to idolatry: “In the days of Enosh, the people fell into gross error, and the counsel of the wise men of the generation became foolish” (:). The people of that time committed a great error with respect to the worthy worship of God. Their error was as follows: “Since God,” they said,

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created these stars and spheres to guide the world, set them on high and allotted unto them honor, and since they are ministers who minister before Him, they deserve to be praised and glorified, and honor should be rendered them. And it is the will of God, blessed be He, that men should aggrandize and honor those whom He aggrandized and honored—just as a king desires that respect should be shown to the officers who stand before him, and thus honor is shown to the king. (:)33 The error was twofold: the argument is erroneously premised on metaphorical reasoning about God, presenting God as a king; its conclusion, that honor should be accorded celestial beings through word and deed, is equally fallacious, since the bestowal of such honor on created beings is a divine prerogative. These mistakes ultimately resulted in the creation of an idolatrous culture: When this idea arose in their minds, they began to erect temples to the stars, offered up sacrifices to them, praised and glorified them in speech, and prostrated themselves before them. (:) In the ninth sermon, Gerondi rejects this Maimonidean account of the human fall to idolatry, finding no fault in the reasoning of the people of the generation of Enosh: I believe that it is speculative thought itself which led them to this. For they held the position of the philosophers, who believe that God has no interest in or providence over creation, and that all being follows necessity. If someone who believes this evil opinion would encounter the opposite position [the belief in divine providence] he would regard it an utter rebellion [against God], attributing to God, whom he believes far transcends this [interest in creation], imperfections. (p. ) Therefore, these people reasoned that the only way they could control their lives was by manipulating the heavenly bodies whose course determined human destiny: “There is no doubt that thought itself would lead man to think thus if the Torah did not enlighten us [otherwise]” (p. ).34 Gerondi inverts Maimonides’ story of humanity’s fall to idolatry. According to Gerondi, it is precisely the philosophic conception of divine perfec-

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tion that is the source of idolatry. Gerondi’s argument echoes the opening arguments of Halevi’s Kuzari (:‒, ‒). For both Halevi and Gerondi, revelation, not creation, is the pivotal religious moment because it establishes certainty as to God’s providence and sovereignty over nature. Gerondi rejects the starting point of the Jewish philosophers as set forth by Saadia in the introductory query of his Book of Beliefs and Opinions: “Inasmuch as all matters of religious belief, as imparted to us by our Master, can be attained by means of research and correct speculation, what was the reason that prompted [divine] wisdom to transmit them to us by way of prophecy and support them by means of visible proofs and miracles rather than intellectual demonstration?”35 Maintaining that unaided reason leads to idolatry, Gerondi disputes the premise that reason can comprehend these matters. Gerondi critiques the Maimonidean conception of the limits of reason. In the twelfth sermon, he widens the scope of natural science to include astrology and magic, arguing that all things operate in one of two ways: natural actions [po’al tivi] or inherently unique actions [po’al seguli]. The unique actions, too, operate within nature. The difference between them is that the necessity of natural actions can be deduced by reason, while the unique actions are rationally possible but not necessary. (p. ) Thus he rejects Maimonides’ blanket prohibition of magic.36 Moreover, in the first sermon he argues that physics and metaphysics, as disciplines worthy of open public teaching, cannot possibly be the esoteric studies the Sages allude to in the accounts of creation and the chariot. The latter refer to bodies of knowledge that can be known only through “divine influence [shefa elohi]” (p. ). These sciences deal with the process of emanation of forms from the divine and the manner in which the divine connects to our world.37 As noted, Gerondi’s critique of philosophy echoes that of Halevi in the opening paragraphs of the Kuzari, and there are numerous points on which their thinking is similar. Consider, for example, Halevi’s remarks on the prophetic edict to “do justice and love mercy” (Mic. :): These are the rational laws [hukkim], being the basis and preamble of the divine law, preceding it in character and time, and being indispensable in the administration [hanhagah] of every human society

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[kehillah]. Even a gang of robbers must have a kind of justice among them if their confederacy is to last. . . . For the divine law cannot become complete till the social and rational laws [ha-torot ha-sikhliyot ve-ha-minhagiyot] are perfected. . . . What has he, who fails in this respect, to do with offerings, Sabbath, circumcision, etc., which reason neither demands, nor forbids? These are, however, the ordinations especially given to Israel as a corollary to the rational laws. Through this they receive the advantage of the Divine Influence [ha-inyan haelohi], without knowing how it came to pass that the “Glory of God” descended upon them. (:) The impression these themes make on Gerondi is clear. Using Halevi’s distinctive concept of divine influence, Gerondi understands the divinity of the Torah in terms of its conduciveness to the residing of the divine influence in Israel, and both thinkers see the social laws as a necessary condition for the “divine” society, citing Plato’s parable of the robbers.38 But Gerondi also disputes many of Halevi’s ideas, particularly his views on the foundation of the Jewish polity and the legal and epistemological status of the laws governing the social order. Halevi argues: The social and rational laws are those generally known. The divine ones, however, which were added in order that they should exist in the people of the “Living God” who guides them, were not known until they were explained in detail by Him. Even those social and rational laws are not quite known, and though one might know the gist of them, their scope remains unknown. . . . The limitation of all these things to the amount of general usefulness is God’s. (:) According to Halevi, revelation informs us of the precise activities necessary for inducing the divine influence to dwell among us. The Torah, he claims, makes a unique social contribution. Human beings can, through reason, comprehend the social and rational laws in a general way only; we may know that robbery is wrong, but we cannot rationally deduce the particular details of the manner in which this moral insight is to be applied. It is the Torah that instructs us regarding these details. This precision makes Torah law ideal yet at the same time eminently suitable for implementation. Gerondi agrees that Torah law is ideal but denies that it is suited for the

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practical needs of society. He maintains, against Halevi, that it is epistemically possible to exercise justice without revelation.39 On both these issues he seems to follow Adret, who argued that Jerusalem was destroyed because the people only followed Torah law and that prudential judgments are necessary for the perfection of the polity.40 Gerondi maintains that the Torah’s social laws are ideal because they are concerned with absolute justice. But rather than view them solely as socially useful, as does Halevi, he adds a sacral dimension to their function: Therefore I maintain—and so one ought to believe—that while the [ritualistic] laws [hukkim] are not relevant at all to the establishment of the political association and are the intrinsic and immediate cause of the divine effluence, the Torah’s laws of social justice [mishpatim] are in fact crucial to it, and it is as if they serve both to bring down the divine effluence and to perfect our public affairs. (p. ; JPT, p. ) The social law of the Torah dispenses absolute justice and, together with the ritual law of the Torah, imparts the divine presence to the polity.

Impasse The strategy guiding Gerondi’s argument for political autonomy is to elevate the Torah to such a degree that it cannot order the mundane; it is neutralized through idealization. But his insistence that the Torah’s social laws are essential for achieving divine presence makes it difficult to understand why royal law should not be regarded as a compromise, a concession to the mundane. This problem, never explicitly addressed by Gerondi, is parallel to the constitutional crisis that arises in the case of Maimonides: the clash of sovereignties between the king and the Almighty, the two sources of law. Let us further examine the problem facing Gerondi. On the one hand, if divine law represents ideal justice and is of paramount sacral significance, why should the effort to implement it not be made? The distinction between divine law and a complementary royal law is rooted in the distinction between ideal and political justice: why should there not be an attempt to instantiate ideal justice? And if divine law remains an independent source of justice in the polity, does it not pose the threat of de-legitimizing royal law

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as a source of justice and, by extension, de-legitimizing the king? Kirschenbaum’s position, which limits the argument to emergency powers, is hardly illuminating: why create a new branch of government that legally precedes the Sanhedrin? Surely the judges of “absolute true justice” are best suited to determine where, when, and what concessions are to be made for the sake of the needs of the hour. On the other hand, if being absolutely and truly just is impractical for a society, in what sense can the Torah’s law be regarded as providing a system of justice? The problem cannot be settled by simply saying that we have an ideal theory that by definition will not be fully realized, because Gerondi does not suggest that divine law is but a regulative ideal. On the contrary, he sees the halakhic judiciary functioning in the polity to implement divine law alongside the king’s law. Here again we must ask: How will cases of conflict between the systems be adjudicated? Is there need for a third law?41 It may be tempting, here, to appeal to the genre in which Gerondi is writing—sermons written for public delivery—as an explanation for his failure to address this question. A book of sermons is not like a philosophical tract, where rigorous inner coherence and consistency is expected. Even if it deals with a philosophical issue, a sermon delivered on a particular occasion is not analogous to a chapter in Maimonides’ Guide for the Perplexed. If the text is indeed a collection of sermons delivered at different times, for different audiences, under different circumstances, the natural unit of analysis is not the collection but the individual discourse. What is most important is not to construct a coherent system of thought from statements uttered in diverse contexts and for varying purposes, but rather to understand what the preacher chose to say on a particular occasion, and how he organized his ideas into an artistic unity.42 Adopting this approach, it could be argued that Gerondi wished to impress upon his audience two points: that the Torah is divine and that social order requires a powerful king. But this is hardly satisfactory, particularly if we assume, as I suggested previously, that Gerondi addresses a learned public and if we locate the sermon in a tradition of similar tracts addressing the intellectual elite. The sermon treats a theoretical problem to which he offers a radical solution. Well

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acquainted with the history of the problem, Gerondi is addressing an issue deeply rooted in his tradition, from Maimonides to Adret, and the influences of previous attempts to resolve it echo throughout the sermon. Further, the sermon does not simply seek to impress upon the listener the greatness of the two sources of sovereignty but clearly and unapologetically puts forward a philosophical thesis as to the role of temporal politics in the halakhic worldview. The constitutional problem comes nearest to conscious expression when, almost as an afterthought, Gerondi adds that the social laws of the Torah may be of less political significance than he originally thought: Perhaps, [indeed], these laws are [also] addressed primarily to the more sublime matters rather than to the perfection of our society [tikkun kibbutzeinu], since our appointed king [has that task]. The purpose of the magistrates and the Sanhedrin, by contrast [to the king], was to judge the people in accordance with true and intrinsically just law, which will effect the cleaving of the Divine [inyan elohi] unto us, whether or not the ordering of the multitude’s affairs has been perfected. This is why some of the laws and procedures of the [Gentile] nations may be more effective in enhancing political order than some of the Torah’s laws. This, however, does not leave us deficient, since any deficiency regarding political order was corrected by the king. Indeed, we have a great advantage over the nations: because the laws of the Torah are inherently just . . . [and] the divine effluence will be induced to cleave unto us. (p. ; JPT, p. ) The passage hints that the Torah is not really overly concerned with questions of political order, its focus being “sublime matters.” This dispels the alleged tension between the two laws: in fact, their objectives are disparate. Torah law can succeed in its sacral purpose regardless of its contribution to social and political order. Hence, we need not be surprised if we find nonJewish laws more conducive to the perfection of political society. Even this low-key formulation goes against the grain of most of the philosophy of the three centuries preceding Gerondi in which much effort was expended in demonstrating that Torah law is the best law for society.43 But Gerondi seems to conclude that society simply cannot be run by Torah law. Then, almost recoiling at the audacity of his thought, he immedi-

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ately returns to his earlier emphasis on the inherently just nature of Torah law. This brings us back to the question raised earlier: If this law is so just, why should we not strive to implement it? Gerondi never asks himself this question. He focuses on another problem: how to balance commitment to the real needs of society, which necessitates royal law, with total commitment to Torah law, which has its own laws for the governance of society. But when Gerondi is pressed as to the precise nature of this “balance,” the edifice begins shaking. Gerondi sees the question of balance as inseparable from that of how to control the king’s power once he has been put beyond the law, a question that looms large in the face of doubt as to the plausibility of a sustainable balance. Consider Gerondi’s understanding of the biblical polemics surrounding the creation of the monarchy. Given his stance on the importance of the king, Gerondi must offer a neutralizing interpretation of the antimonarchist voice in the Bible: I believe [Israel’s] sin [requesting a king] consisted in wanting adjudication between persons to be mainly the charge of the monarchy. . . . Israel was more interested in enhancing their political association. If they had asked for a king by saying simply “appoint for us a king,” or if they had sought a king for the sake of their military affairs, they would have committed no sin. In fact, this would have been [a virtuous act]. Their sin lay in saying, “appoint for us a king to judge us like all the nations.” They wanted adjudication to be the charge of the monarchy, rather than the Torah judges. . . . they preferred to enhance their natural affairs rather than to bring down the divine effluence (inyan elohi) upon themselves. (pp. ‒; JPT, pp. ‒) Gerondi seeks a balance between affirming the needs of the real and recognizing that, in relation to the provisions of absolute justice, they remain but exigencies of the hour. This may explain the fact that while he recognizes that a king’s law is needed and that the king administers justice, Gerondi does not bestow the title of “judge” upon the king and his functionaries. There is a conceptual difference between political justice and true justice.44 Gerondi also seeks to ensure that the rabbinical authorities retain control over the determination of true justice. It is possible that his model here is the relationship of the kahal to the rabbinical establishment, the actual modus

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vivendi of rabbinical and civil leadership in the Catalonian kahal. The kahal has political and legal autonomy, but the rabbis are the arbiters of claims pertaining to justice and religion. This model validates the abstract theory voiced in the sermon by citing a familiar political reality and specific political activities that demonstrate its plausibility. The desire to preserve rabbinical authority may also explain Gerondi’s claim that the sacral nature of the Torah is not only a vehicle for the dissemination of the divine influence within Israel but has the potential to change nature. When Samuel chastised them [the people], they were not dissuaded, but they did amend their request somewhat in that they asked for a king to judge them and to be their military leader as well. . . . For this Samuel reproved them afterwards, saying: “Now stand by and see the marvelous thing that the Lord will do before your eyes. It is the season of the wheat harvest. I will pray to the Lord and He will send thunder and rain” (I Sam. :‒). This means: Know that you have erred in choosing something which, although it appears to you to be correct, [namely] the ordering of natural things, is not truly so. For one who cleaves to the Divine [inyan elohi] can alter natural things at will. (p. ; JPT, p. ) Earlier in the sermon, the natural realm and the divine realm were presented as two harmoniously coexisting realms of being. The sermon begins with an appeal to the natural needs of all human societies. In line with his pro-monarchic position, Gerondi was suggesting a positive interpretation of the Deuteronomic verse “like all the nations” (:). Among antimonarchists, this verse was read as referring to the base ulterior motives informing the people’s request for a king.45 But for Gerondi the phrase is innocent, simply asserting the basic need for political society shared by all nations. However, the present account of Samuel introduces a sense of tension and of the ascendancy of the divine over the natural. Gerondi’s words that “one who cleaves to the Divine can alter natural things at will” call to mind Halevi’s description of the prophet: If we find a man who walks into the fire without hurt, or abstains from food for some time without starving, on whose face a light shines which

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the eye cannot bear, who is never ill, nor ages, until having reached life’s natural end, who dies spontaneously just as a man retires to his couch to sleep on an appointed day and hour, equipped with the knowledge of what is hidden as to past and future: is such a degree not visibly distinguished from the ordinary human degree? . . . This is, indeed, the divine and seraphic degree, if it exists at all. It belongs to the province of the divine influence, but not to that of the intellectual, human, or natural world. (Kuzari :‒)46 Contact with the divine can liberate the individual from the constraints of nature. But if the political implication of such a conception of divinity is, as Gerondi’s interpretation of Samuel’s critique suggests, that requesting a king is a sinful submission to nature, the question returns: What is the ultimate justification of politics? Why make concessions to human beings’ political nature—should we not strive to transcend it? On the supernatural metaphysics Gerondi puts forward here, there is no value in political agency, which operates within the horizons of human beings’ concrete nature. If, through mastery of their will, people can transcend nature, what need is there for politics? Not surprisingly, Gerondi now speaks with suspicion of the king he has championed: Therefore, [Samuel continues,] it is more fitting for you to prefer that which induces the divine effluence amongst you—namely, [to prefer] adjudication by the magistrates, of whom it is written, “And they shall judge the people by just law”—over adjudication by the monarch, wherein he decides according to his own will. For this is the difference between magistrate and king: the magistrate is more bound to the Torah’s laws than is the king. That is why the king was admonished and commanded to keep a copy of the Torah by his side. . . . Since the king sees that he is not bound to Torah laws as the judge is, he must be strongly admonished not to deviate from its commandments “to the right or to the left” [nor to] “act haughtily toward his fellows,” in view of the great power God has given him. The magistrate, however, requires no such admonition, since his power is restricted to the scope of Torah law alone. (p. ; JPT, p. )

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Although the king by definition operates outside the law, Gerondi, despite his misgivings, reiterates his commitment to the king’s autonomy. But in this passage, the existence of the monarch is presented as contingent: the people could have chosen otherwise. Gerondi seems to suggest that political agency is optional. In juxtaposing the king who rules by the dictates of his will to the metaphysical picture of man transcending nature, this passage conveys the dilemma confronting Gerondi: how to square his commitment to the Torah with his conviction that an autonomous monarch is indispensable.47 Gerondi’s political theory is characterized by a radical conception of the autonomy of politics that stresses the urgency of the needs of the present over established halakhah. Gerondi thus proffers a constitutional arrangement of two complementary systems of law: Torah law and royal law. At the same time, Gerondi adheres to an antiphilosophical conception of Torah law as the sacral instrument that imbues Israel with the divine presence and liberates the devout from the shackles of nature. Yet the conception of divine law as a means of transcending nature calls into question the rationale for commitment to secular politics.

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CONCLUSION: SECULARIZING POLITICS

   of classical political science are concerned with the meaning of justice and the nature of the best regime. The explicit formulation of these issues is not typical of the Jewish political tradition. Beginning with the Bible, Jewish thinkers focus primarily on the legitimacy of politics and are concerned with the place of politics in a religious culture. Questions about justice and the best regime are viewed through the prism of this fundamental interest. Two basic positions are espoused: the theocratic and the secular. However, the debate is not between religious and secular positions in the modern sense; it is, rather, an intra-religious debate. The theocratic position denies, or seeks to significantly limit, human political agency. It sees politics as a divine prerogative. The secularizing position sees politics as an arena for autonomous human endeavor. Politics, it insists, is a worldly occupation. The halakhic tradition, insofar as it addresses these issues, can be viewed as endorsing a secularizing attitude to politics. This attitude is encapsulated in the Mishnah’s dictum that “the king neither judges nor is he subject to judgment” (Sanhedrin :; JPT, p. ). Whereas God’s reign is mediated by the tradition and its institutional representatives, the rabbis, politics inhabits the space ceded to the king as his autonomous realm. The secularization of politics is thus a function of the degree of royal autonomy vis-à-vis the halakhah.

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Maimonides, Adret, and Gerondi are the prominent medieval spokespersons for the secularizing of politics. Their conceptualizations of politics and the role of law circumscribe the political structure of the nation that acknowledges God’s reign and the authority of God’s divine law. Together, the theoretical justification of the natural foundation of politics and the constitutional argument for the autonomy and precedence of politics over divine law generate a secular conception of politics. These three thinkers represent both the mainstream of halakhah and the main currents of Jewish thought in medieval Jewish Spain: philosophic, Kabbalistic, and non-Kabbalist antiphilosophic. The commitment to a secularizing conception of politics thus spans the era’s central religious ideologies. Maimonides states that “man is political by nature.” Human beings are not self-sufficient as individuals. To survive and prosper, combined effort is necessary, and one person must necessarily dominate the others. Organized society calls for a ruler to coordinate the efforts of individuals. Politics, grounded in nature, entails both the responsibility to organize social life and the prerogative of using power and domination to achieve this end. In domestic affairs, at least, politics is rationally comprehensible. Law grows out of this reality. In contrast to the classical Jewish tradition, which views the Torah as law because it is God’s will, Maimonides politicizes the Torah. Law is the organized expression of the ruler’s guidelines for regulating this combined human effort. The Torah adopts the form of law and is given by the original prophetic ruler as law, generating a fundamental tension between the inherited wisdom of the Torah as law and the law that future rulers will promulgate. The divinity of the Torah relates to the law’s purpose—to create knowers of God. Unlike the theocratic approach, which seeks to create divine politics, the secularizing tradition views law as divine but politics as worldly. The various accounts of law put forward by the secularizers seek to demonstrate the necessity of politics while maintaining fidelity to the religious ideals of revelation. Adret incorporates the conception of the human condition that necessitates political life into the Jewish self-understanding of its communal organization. In his work, the concept of politics becomes an Archimedean point for interpreting the legislative rights and enforcement powers of the kahal. Torah law, Adret argues, is incapable of adequately regulating social life: “For if you were to restrict everything to the laws stipulated in the Torah and

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punish only in accordance with the Torah’s penal [code] in cases of assault and their like, the world would be destroyed” (:; JPT, p. ). Gerondi proceeds in this direction, articulating a theory of the autonomy of politics that rests on a distinction between two concepts of justice: divine justice and political justice. “God, may He be blessed, set these two issues apart, delegating them each to a separate agency” (p. ; JPT, p. ), that is, to the judges or to the king. Thus, contrary to Maimonides, who views the Torah as the one law of the polity but calls for a powerful monarch, Gerondi creates two systems of law. But true to the antiphilosophical tradition, Gerondi rejects the centrality of nature for understanding Torah. In place of the unequivocal Aristotelian assertion of man’s political nature, with which both were undoubtedly familiar, Adret and Gerondi introduce their positions as “clear” and “known,” apparently relying on common sense to validate the need for politics. Yet in view of the existence of divine directives on social organization, the absence of this anchor leaves the metaphysical grounding, the philosophical rationale, for politics all too vague. The medieval thinkers not only bring arguments justifying politics but a lexicon as well, developing the Talmud’s rudimentary vocabulary into a language serving the ideas of their political theory. The pivotal terms, tikkun olam, re’ut enayim, tikkun, siddur medini, originate in rabbinic sources but acquire new meanings and applications as part of the lexicon of the medieval thinkers. The term tikkun olam refers to the ordering of civilized society. It is normative rather than descriptive: activities are undertaken in the name of tikkun olam. According to Maimonides, the term encompasses a broad range of activity, from rabbinic legislation on matters pertaining to civil and public affairs to the extralegal penal activities of the king. The epistemic grounding of these activities is reflected in Adret’s use of the term re’ut enayim, which refers to the prudential judgment exercised by individuals charged with governing communal life, be they monarchs or officers of the community, the kahal. In affirming this capacity for prudential judgment in government and justice, Adret departs from the classic Spanish antirationalist tradition exemplified by Halevi, who was skeptical about the possibility of morality without revelation. The term tikkun medini has a long history but becomes a pivotal concept only in Gerondi’s theory of the autonomy of politics. For Gerondi, tikkun

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medini not only describes the range of activities associated with governing a polity but also the end of the enterprise, namely, the perfection of the polity. This political language also suggests a criterion for assessing and if necessary curbing political activity—the promotion of tikkun, order and perfection, and not kilkul, impairment and destruction. Maimonides defines two critical terms for evaluating political and legal practice: justice and the good. Of course, the Torah itself uses both in its descriptions of the law. But Maimonides furthers the task of evaluating political and legal decisions in the light of these traditional values by defining these terms. “Justice” refers to the rights the law respects and “goodness” to the values it promotes. Understanding the development of this political language enables us to assess the benefits and dangers attendant on the development of politics as an autonomous activity vis-à-vis the law. While the leaders of the polity are permitted a great range of prudential activities, this power comes at the expense of the rule of law, because political activity is defined as either preceding the law (Maimonides) or independent of it (Gerondi). Either way, politics is defined extralegally. This divide between politics and law enables us to appreciate the kind of conflicts and tensions that would characterize the political life of a community seeking to maintain fidelity to halakhah as its law. First, because the political is by definition extralegal, the halakhic polity qua polity remains an empty category: political life is governed by the king and his wisdom. This medieval interpretation of the sources is often ignored or discounted by those of a theocratic bent, who prefer to believe that the great classical commentators took the same positions they do. Consider the spokespersons for “orthodoxy” who often refer to the “Torah state” as a regulative ideal for contemporary politics. Central to this outlook is the vision of the halakhah as sovereign, as the law of this state. But the medieval tradition of secularizing politics places matters of government squarely in royal, that is, secular, hands. This was perceived by Rabbi Herzog, who declares that according to Gerondi: “there are two kinds of law in Israel, the law of Torah and the law of the state” (JPT, p. ).1 Second, even though it relinquishes control over the political sphere, the halakhah, as the word of God delivered at Sinai, has immense power. Readily appealed to as the ultimate law, the most just law, the definitive law of the society, it retains the potential to challenge the legitimacy of political authority and render politics suspect. This concern is palpable in the constitu-

154 CONCLUSION

tional crises I noted in Maimonides’ and Gerondi’s theories. These constitutional crises are rooted in the uneasy separation between politics and law in the secularizing tradition. Were the modern State of Israel not primarily secular and democratic but religious and halakhic, it would still be plagued by constitutional infirmity. The problem is not that of the structure of the regime (democratic or monarchic) but rather that of the place of politics in Jewish religious culture. Third and most problematic is the price of conceiving politics as outside the society’s normative system. This is reflected most clearly in the case of Gerondi and Adret; Maimonides utilizes the concept of nature to develop a philosophy of politics. Adret and Gerondi, however, reject this path, justifying politics with the argument that politics is necessary because divine law is ill equipped to order the polity adequately. Yet what are the limits of the necessary? Is this argument, a well-known rationalization of injustice, not dangerous? Without adequate answers to these questions, Gerondi may be only a step away from a Machiavellian conception of politics as the duty to do whatever is necessary to preserve the political order. “When the safety of one’s country wholly depends on the decision to be taken,” Machiavelli argues, “no attention should be paid either to justice or injustice, to kindness or cruelty, or to its being praiseworthy or ignominious. On the contrary, every other consideration being set aside, that alternative should be wholeheartedly adopted which will save the life and preserve the freedom of one’s country.”2 Machiavelli’s Prince can be read as an illustration of the kind of politics this advice entails. Neither Adret nor Gerondi provide constraints that would sufficiently rein in such politics. The idealization of divine law does not allow it to curb the claims of necessity. After all, the pious prince is but a faithful servant holding the interests of the community and its pressing “needs of the hour” close to his heart. I am not, of course, arguing that Adret and Gerondi were Machiavellians; rather, I am pointing out the insufficiency of the constraints they provide in carving out the space they deem necessary for politics. When we consider his readiness to legitimize the authority of Israelite kings in the name of social stability, even Maimonides scarcely fares better. The sharp divide between politics and law threatens to create a political realm free of normative constraints. The secularizing tradition thus bequeaths future rabbis a cruel dilemma. They can reject the effort to create an independent royal law and thereby as-

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sume the risk—to society and to themselves—of dealing with tyrants like King Yannai; or they can uphold and strengthen the distinction between civil law and religious law, sacrificing the ideal of an all-encompassing divine law. God’s words in I Samuel, “Heed their demands and appoint a king for them,” suggest the inevitability of this sacrifice. The biblical story of the creation of the monarchy thus leads us to restate the dilemma. The central question of Jewish political theory should not be whether to choose a secular or theocratic state but instead how to draw the line between the secular and the sacred. Acknowledging the role of the secular, however, mandates that we set limits to it via an autonomous constitutional law.

Turning to Modernity The two major heirs to the medieval Hispanic-Jewish tradition in the era following the expulsion of Jews from Spain (), Isaac Abravanel and Spinoza, reject the secularization of politics conceived and articulated by Maimonides, Adret, and Gerondi. The tension between divine law and human politics in Maimonides’ and Gerondi’s theories ultimately proves too much to bear, giving way to theories that make no attempt to balance these conflicting claims. Abravanel reverts to the theocratic tradition, while Spinoza denies divine law any voice in governance. A detailed exposition of their theories exceeds the scope of this study, but by indicating the directions they take, we may gain a clearer perspective on the attempt to balance divine law and human politics. For their theories, and later, the ideas of Moses Mendelssohn, are the sequel to the medieval attempt to internalize the concept of politics in Jewish self-understanding. Abravanel’s political theory is best known for its prorepublican critique of monarchy.3 But this critique is grounded in a more fundamental critique of the role of politics in human life. Abravanel rejects the Aristotelian premise that “man is political by nature.” He contends that politics is an aberration of man’s natural state. Nature, he argues, supplies abundant sustenance for a simple life geared to satisfying our natural needs. The story of the successive human falls after the expulsion from Eden (Cain, Babel, and so on), related in the book of Genesis, is the story of the human inclination to the material and the artificial, the story of the human break with nature. Although Abravanel sometimes implies that man is a social being—that indi-

156 CONCLUSION

viduals are not self-sufficient—he maintains that the state of nature does not necessitate power and domination. Society is compatible with equality and simplicity. Adam and Eve’s three children, Abravanel proposes, represent the degrees of this deviation. Abel stands for the political man; “Abel represented man’s ambition for leadership and honors. He is the father of the class of kings, rulers and counselors, who conduct the people’s affairs for the people’s sake or for glory.”4 Abravanel argues that “the natural and essential is fully satisfying, while the artificial provokes desires that can never be satisfied.”5 Thus politics constitutes a fall. Abel pursues honor and power, which are “vain and illusory.”6 Abravanel here makes a pun on the name “Abel,” in Hebrew “Hevel,” a word meaning “vain and empty, leading nowhere.” Although Maimonides and Abravanel agree that the essence of politics is power and mastery, their assessments of its place in human life are very different. According to Maimonides, politics is not an aberration but is the natural state. Both the tensions among individuals living in society and the political resolution of these tensions through power and law are natural. The power to dominate is a natural endowment necessary for the survival of humankind. Religion is not the attempt to return to a prepolitical state of nature but a political endeavor. Abravanel rejects this conception; his messianic ideal is the return to the pristine state of nature. It is a return to the original equality of all individuals and an end to domination: In the generation of the resurrection there will be no more kings and no ministers among human beings. Rather everyone will be equal as they were at the beginning of the creation, in the generation of Adam. The reason for this is that there will be no need for kings either to fight wars, because there will be peace in the land, nor to sit in judgment, for “the judgment is unto God” (Deut. :), “and God shall be king over the land” (Zech. :).7 The reign of God entails the equality of human beings, and whatever positive functions political domination and stratification may have had in the past, they are now rendered superfluous. In messianic times the hierarchy of the government of human affairs—which Abravanel contrasts with the government of spiritual affairs carried out by the priests and prophets—will be

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abolished.8 The messiah is not a king but a “prince and a shepherd.”9 There will be no need for a Sanhedrin “to try capital cases, nor for the teachings of the Sages,” as “there will be a general consent among the whole of the nation to submit to the fear of God, and to submit to his worship.”10 Earlier, I contrasted Spinoza and Maimonides. Spinoza rejects the Maimonidean model of the precedence of politics, which retains the integrity of the halakhah, and instead upholds the supremacy of politics. According to Spinoza, the precedence of politics entails the supremacy of the sovereign and the subservience of religion. Moses, accordingly, is not a philosopherking but an astute political leader whose genius lies in his perception of the moral infirmity of a multitude of slaves that must be turned into a people. The divine law—insofar as it is understood as political law and not as natural morality—is not a means of human perfection but of subjection. Spinoza rejects Maimonides’ conception of divine law, in which the Torah sets out a political regime that seeks to perfect humans as rational beings. Instead, Spinoza argues that it is hardly likely that men accustomed to the superstitions of Egypt, uncultivated and sunk in the most abject slavery, should have held any sound notions about the Deity, or that Moses should have taught them anything beyond a rule of right living; inculcating it not like a philosopher . . . but like a lawgiver compelling them to be moral by legal authority.11 Spinoza rejects Maimonides’ notion of religion as a political endeavor, putting forward instead a political theology that uses religion to ensure social and political stability. Spinoza, like Hobbes, understands that the sovereign cannot afford to be indifferent to religion.12 But Hobbes and Spinoza go far beyond the secularization of politics. Hobbes’s claim that “there is . . . no other Government in this life, neither of State, nor Religion, but Temporall,” with which Spinoza would concur, signifies the transition to an era in which religion no longer defines the horizons of culture.13 Clearly, these thinkers still fear the powerful political potential of religion, which is why they put forward a political theology rather than separate church and magistrate, as Locke would soon do in his Letter concerning Toleration. But they nonetheless construe religion not as a force that defines its own parameters and the degree to which it relinquishes power to

158 CONCLUSION

the polity, as do Maimonides and Gerondi, but as subservient to the political. Hobbes’s and Spinoza’s conception of politics thus reflects a new context in which the secularization of culture is fast becoming a reality. Abravanel’s and Spinoza’s theories are two polar rejections of the tradition of the autonomy of politics: Spinoza’s interpretation of the precedence of politics calls for the supremacy of royal sovereignty, not merely its autonomy. In contrast, Abravanel, viewing politics as an aberration of human nature, seeks ways to minimize its role in human life. Neither Abravanel nor, of course, Spinoza was a halakhist, and this may account for their critique. The central figures of the tradition of the autonomy of politics were all actively engaged in studying, formulating, and implementing the law. This fact is crucial. Their starting point is allegiance to the law and acceptance of its selfdefined scope; to this they bring realistic perceptions of the limitations of the law. Even Maimonides’ radical politicization of the divine law takes great care to preserve the integrity of halakhah. Abravanel’s starting point, however, seems to be that of the political leader’s pessimistic appraisal of the future of Jewish communal life in exile, while Spinoza broke away from the community and its conception of the divine law. Abravanel and Spinoza thus point to coming trends in Jewish life, responses to the demise of the medieval Jewish political culture: the turn to messianism, on the one hand, and to secularization, on the other.

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REFERENCE MATTER

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NOTES

ABBREVIATIONS

BT CM Code EN JPT JQR JT KC MJC Shenaton TL TTP

Babylonian Talmud Commentary on the Mishnah Mishneh Torah Nicomachean Ethics The Jewish Political Tradition. Vol. , Authority Jewish Quarterly Review Jerusalem Talmud Kinship and Consent The Medieval Jewish Community (Hebrew) Shenaton Ha-Mishpat Ha-Ivri Treatise on Logic Tractatus Theologico-Politicus

INTRODUCTION

. Josephus, Against Apion, II:‒. . Hobbes, Leviathan, p. . . Ibid., pp. ‒. . Locke, Letter concerning Toleration, p. . . See Buber, Kingship of God, p. , and Harvey, “Anarchism and Theocracy.” . Weiler, Jewish Theocracy, pp. ix‒xiv. The need to rethink Jewish political thought is argued by Elazar, “Jewish Political Studies”; Susser, “On the Reconstruction of Jew-

163

ish Political Theory”; and Susser and Don Yihyeh, “Prolegomena to Jewish Political Theory.” Schorsch’s (“On the History of the Political Judgment of the Jew”) critique of the attempts to divest exilic Judaism of a political history has impelled a rethinking of Jewish political history; see Lederhendler, Modern Jewish Politics, pp.  ff.; cf. Funkenstein, Perceptions of Jewish History, pp. ‒, and Biale, Power and Powerlessness, pp. ‒. . For most of the exilic period Jewish communities possessed sufficient legal autonomy to enforce traditional Jewish law. Enforcement was effected by means of a range of sanctions, from capital and corporeal punishments to excommunication and informing on the offender to the gentile authorities; see Assaf, Punishment in Post-Talmudic Times. However, with the advent of emancipation, rabbinic courts lost this judicial autonomy, retaining jurisdiction over civil and criminal matters, if at all, only for those willing to submit to this authority voluntarily. The law ceased to delineate the conduct, indeed, the very identity, of the community. See Elon, Jewish Law, vol. , pp.  ff.; Graff, Separation of Church and State; and Lederhendler, Modern Jewish Politics, pp. ‒. . A millennium had passed since the monarchy, priesthood, and prophets; yet they remained very much alive in the minds of the thinkers we will be studying. Despite this, the medieval thinkers developed their political theories primarily by contemplating the role of the monarchy, with hardly any consideration of the priesthood and prophecy, institutions whose existence had direct bearing on the constitutional structure of the ancient Israelite polity. A complete account of the relationship between Jewish law and politics would address these institutions as well as the monarchy, as they played crucial roles in the political history of Israel. . In Crisis and Leadership, Hartman explores Maimonides’ role as communal leader but does not deal with Maimonides’ political theory. His main concern is the manner in which Maimonides’ awareness of the responsibilities of leadership shapes his halakhic attitudes, interpretations, and rulings. . For a parallel argument in a Christian context see Markus, Saeculum, which analyzes Augustine’s concept of saeculum. . Arieli, “Modern History,” p. . . See Schmitt, Political Theology, pp. ‒; Lowith, Meaning in History, pp. ‒; and Blumenberg, The Legitimacy of the Modern Age, part . . The space Maimonides and Gerondi free up for politics was recognized in modern religious Zionist circles early on. Zionism was a movement of national political revival, and the movement’s founders envisaged a secular state. Religious Zionists faced the problem of reconciling this political agenda with their commitment to halakhah. For the different responses evoked by this dilemma, see Luz, Parallels Meet, and JPT, pp. ‒. . The following Rabbinic exegetical controversy captures both positions. The passage concerns a verse in the book of Daniel that recounts a dream: “As I looked

164 NOTES TO PAGES 3 – 6

on, / Thrones were set in place, / And the Ancient of Days [God] took His seat” (Dan. :). The Talmud asks why the biblical text speaks of “thrones” in the plural. “One was for Himself and one for David: this is Rabbi Akiva’s view. Rabbi Jose protested to him: Akiva, how long wilt thou profane the Divine Presence? Rather, one [throne] for justice, and the other for mercy” (BT Sanhedrin b). The word translated here as “profane” is hol, worldly. . The term legislative must be used with caution. There is a sense in which halakhah can be thought of as exemplifying Weber’s ideal type of “traditional authority”: “In the pure type of traditional authority it is impossible for law or administrative rule to be deliberately created by legislation” (Economy and Society, p. ): only God creates law; the commandments are God’s commands. However, it is clear that rabbinic activity goes well beyond uncovering “documents of tradition, namely to precedents and earlier decisions” (ibid.). The Sages formulate new commandments (e.g., BT Shabbat a), “uproot” divine teachings (e.g., BT Yevamot a‒b), and issue ordinances. Their attitude toward divine commands is not passive—on the contrary, they actively and creatively engage in determining its content. Although the system retains the formal character of God’s law, rabbinic activity is not limited to transmission of a closed corpus of law. The term legislative is used here to convey this broad scope for creative legal activity beyond the judicial, which in no way compromises the divinity of the law. See Elon, Jewish Law, vol. , pp. ‒. . It could be argued that the editor of the Mishnah did not really have much to say about the monarchy. He may have considered the monarchy outside the realm over which the Sages could effectively exercise control and therefore presented only a terse discussion of monarchy apropos the larger discussion of the Sanhedrin. This reading is not necessarily incompatible with my own. . A parallel story is related by Josephus in Jewish Antiquities :, where the slave is Herod, the king Hyrcanus, and the heroic rabbi one Samaias. Efron, Studies of the Hasmonean Period, pp. ‒, analyzes the various versions of the story but is generally doubtful whether any historical reality they might reflect can be adequately reconstructed. Whatever the actual events behind the story, it is sufficient for our purposes that it was canonized by the Babylonian Talmud as depicting the relation between king and Sanhedrin. . Reservations about monarchic power are apparent in other statements in the Talmud; see BT Sanhedrin b; Tosafot on Sanhedrin a s.v. aval; and JT Sanhedrin d and a. On Herod, see BT Bava Batra a; on Agrippa, see BT Sota a‒b. . See the story of Ahab and Ben-Hadad in I Kings . On Israel’s assuming political agency, see Silver, “Kingship and Political Agency,” in JPT, pp. ‒. . See Buber, Kingship of God, pp. ‒. It is possible to agree with the thrust of Buber’s assessment of the theocratic ideal without accepting his reading of the Book of Judges. A Christian antimonarchic approach is developed in Mendenhall, The Tenth Generation. According to Mendenhall, “the incompatibility of the state religion

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with the authentic religion of Israel is illustrated in the whole of biblical history” (p. ), and the Davidic monarchy marks “the dissolution of religion into politics” (p. ). However, while construing the covenant as representing a means of overcoming power relations and constituting a society upon ethical obligation, Mendenhall seems to waver between total rejection of politics and espousal of an alternative politics anchored in the law; see pp. ‒, ‒,  n., . The idolatrous potential of politics is discussed at length in Halbertal and Margalit, Idolatry, pp. ‒. . Contrast Leviticus , especially verses  and . . A positive reading of I Samuel  is already suggested by the Amora Shmu’el in BT Sanhedrin b. Among modern scholars, Talmon, “The King’s Law,” argues for a positive reading of “the law of the king,” connecting the establishment of the monarchy with the logistic burden of creating an Israelite chariot corps. According to Kaufmann, History of the Israelite Faith, the received view that “the tribes of Israel of that time thought monarchy in itself to be sinful” is mistaken. “The opposition to the monarchy at that time was not rooted in a negative assessment of monarchy in itself, but rather in the positive idealistic belief in the advantages of the rule of JudgesSaviors. . . . We therefore see that the opposition to the monarchy disappears with the warranted collapse of confidence in the advantages of government by judges” (vol. , p. ). . The Gentile portrayal of the king as a god is mentioned in the Bible and the midrashic literature; see, e.g., Ezekiel : and Exodus Rabbah :. For a detailed analysis of the contrast between the Israelite notion of the king and the Mesopotamian and Egyptian models, see Frankfort, Kingship and the Gods; Mowinckel, He That Cometh, pp.  ff.; and Halbertal, “God’s Kingship,” JPT, pp. ‒. . See II Samuel  and Psalms . Bright, Covenant and Promise, pp.  ff., argues that the notion of an unconditional covenant originates with monarchic theology. . Weinfeld, “The Transition from Tribal Rule,” p. . . Blidstein, “The Monarchic Imperative,” pp. ‒, surveys the pre-Maimonidean discussion. Antimonarchist views are later expressed by Sforno, especially in his commentary on Deuteronomy, Abravanel (see Strauss, “On Abravanel’s Philosophical Tendency,” and Netanyahu, Don Isaac Abravanel, pp.  ff.), and Rabbi Naftali Tzvi Yehudah Berlin (Netziv), in his commentary on Deuteronomy, reproduced in JPT, pp. ‒.

CHAPTER 1

. See especially: Strauss, Persecution and the Art of Writing, pp. ‒; Hartman, Maimonides, pp. ‒; Twersky, Code of Maimonides, pp.  ff. I subscribe to Hartman’s and Twersky’s integrative approach, which denies any radical discontinuity between Maimonides’ philosophy and his legal work. See Lorberbaum, “Maimonides Letter to Ovadyah,” pp. ‒.

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. This statement, variously worded, appears in: EN b, b (cf. a‒ ); Politics, a; Historia Animalium a‒; see Mulgan, “Aristotle’s Doctrine.” Similar assertions appear in Al-Farabi, ibn Bajja, and Averroes; see Berman, “Ibn Bajjah and Maimonides,” pp. ‒, , and Rosenthal, Political Thought, pp. , . . For example, in “Charakteristik der Ethik Maimunis,” Hermann Cohen maintains that while Maimonides’ ethics appears to be Aristotelian, upon closer examination, it is seen to be Platonic. See also Strauss, Philosophy and Law, pp. ‒, and Schwartzchild, “Moral Radicalism,” pp. ‒. . On the Platonizing of Aristotle, see Guttmann, Philosophies of Judaism, pp. ‒; Walzer in Al-Farabi, The Virtuous City, pp. ‒, ‒; Strauss, “On Abravanel’s Philosophical Tendency,” pp. ‒; and Pines, “The Philosophic Sources,” pp. lxxv‒lxxvi, lxxxvi‒xcii. . Examples abound; see Strauss () for a discussion of the Guide as a dialogue. . Aristotle may be the explicator in :, :, and :, while in : the explicator seems to be Al-Farabi. The case of : is especially interesting, as it is contrasted at the end of the chapter with the opinion of the Torah. . According to Maimonides, morality and language are conventional (Guide :, :, :), which may suggest that they also stem from human social nature. See Harvey, “Maimonides and Spinoza,” and Stern, “Maimonides on Language.” Aristotle links language and man’s distinctive political association; see Politics, a. . Cf. Ecclesiastes :‒. Maimonides may be echoing these verses. . In The Virtuous City, Al-Farabi likens the role of the ruler in the city to that of the heart as ruling organ of the body and states that the ruler is “the cause of the rise of the city and its parts and the cause of the presence of the voluntary habits of its parts and of their arrangement in the ranks proper to them” (p. ). Maimonides uses the heart as a metaphor in the Code, Laws concerning Kings and Wars (henceforth, Laws of Kings) :, and the terminology of Guide : clearly echoes Al-Farabi’s discussion. . Galston, “The Purpose of the Law,” p. . . See Macy, “The Rule of Law,” pp. ‒. Galston acknowledges the possibility of the rule of wisdom in another context; see “Philosopher-King,” p. . In TL, Maimonides mentions only the rule of law, in clear contrast to his sources in Al-Farabi. Berman suggests this means that Maimonides “did not envisage the rule of the active intelligence of the ruler as a real possibility” (“A Reexamination of Maimonides,” p. ). Strauss, too, discussing this chapter, asserts that “the primary kind of government is legislation” (Philosophy and Law, p. ). The rule of wisdom does, however, feature in our text, Guide :, in its description of the prelegal community. The preference for the rule of wisdom recurs in Guide :. . Maimonides can be contrasted with ibn Daud, who asserts that “all ruling is in justice” (The Book of Tradition, p. ). According to ibn Daud, injustice is by defi-

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nition chaotic; hence, it is an analytic truth that government is just. See Cicero’s definition of the republic, which is quite similar, and Augustine’s remarks in The City of God, Book II, ch. , pp. ‒, and Book XIX, ch. , pp. ‒. Maimonides’ understanding of justice is discussed in the next chapter. . Berman, “Ibn Bajjah and Maimonides,” pp. ‒. . Maimonides’ theory of virtues has been the subject of much scholarly debate since the publication of Cohen’s essay, “Charakteristik der Ethik Maimunis”; see note  above. On the question of which virtuous path Maimonides advocates, see Pines, The Guide of the Perplexed, p. lxxxviii; Pines, “The Limitations of Human Knowledge,” pp. ‒; and Kreisel, Maimonides’ Political Thought, pp. ‒. Some scholars are conflicted regarding this question. The controversy parallels that over Aristotle’s position on the question of the good in the Ethics. I bypass this scholarly stalemate and instead focus on a very different question, namely, the meaning of politics for Maimonides. . Aristotle, Politics, b. . Weiler, Jewish Theocracy, pp. ‒. . Ibid., pp. ix‒xiv. . Plato, Laws, b; cf. Republic, a‒a. . See Aristotle, Politics, b‒a. . See Aristotle, Historia Animalium, a‒. . See Pines, The Guide of the Perplexed, pp. cxxxiii‒cxxxiv, and Kreisel, “Judah Halevi’s Influence.” . No longer extant in the original Arabic, from , the work was translated into Hebrew twice, by Samuel ibn Motot in  and by Solomon b. Lavi in . There is a recent English translation by Norbert Samuelson (The Exalted Faith). However, for consistency in terminology I have prepared my own translations, using both Hebrew versions. Pagination follows ibn Daud, Emunah Ramah. . How Maimonides’ theory of communal self-government reflects this conception of society is discussed in Chapter . . Strauss, The City and Man, p. . . See Kimchi, Bibliorum, p. . . These will be discussed in Chapter . . A translation already rendered by Judah ibn Tibbon in Kuzari :. Generally, the medieval rendering of the term connotes “city,” but occasionally it is used to refer to larger entities. One such usage is in TL: “the government of the great people or the peoples” (p. ); see also Berman, “A Reexamination of Maimonides,” p. . . Goitein, Studies in Islamic History, p. . . ibn Tibbon, Glossary of Foreign Words, pp. ‒. . Another possibility is that Efodi is only summarizing what Maimonides states in :, a formulation less explicit than that of :. . Shiffman, “Falaquera’s More Hamore,” p. .

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. Malmad Hatalmidim, p. a; cf. pp. a ff., and Melamed, “The Political Discussion,” pp. ‒. . Galston understands the term “the Law” here as referring to law in general and not to the Torah, generating a tortuous and none-too-coherent interpretation: “It is neither simply natural nor contrary to nature; it is rather grounded in nature . . . inasmuch as the goal is natural while the means transcend nature” (“The Purpose of the Law,” p. ). But Maimonides never speaks of any means that “transcend nature.” Galston’s reading of : is more persuasive because of the explicit contrast Maimonides draws there between law in general and the true law. . Maimonides develops this point in different contexts, quoting Deuteronomy :‒; cf. “Helek,” in Twersky, A Maimonides Reader, pp. ‒. Galston argues that the theme of : is to establish that “revealed law and divine law are not . . . equivalent expressions, and it is not precluded that a nomos may be divine” (“The Purpose of the Law,” p. ). She thus collapses the distinction between divine law and nomos. . See the continuation of : and Code, Laws of the Foundations of the Torah :. . Is there only one ideal law? Both Maimonides and Aristotle think so; see Guide : and :, and EN a‒. But there is an important difference between them. Aristotle is speaking about a type of constitution that can be shared by different polities. Maimonides is speaking about one particular legal system, the Mosaic law. Does Plato’s Laws fit the definition of divine law? Harvey, “Political Philosophy,” p.  n., argues that another divine law is possible as long as it was legislated without any historical connection to the Mosaic law. Galston, “The Purpose of the Law,” p. , argues that the Mosaic law is the best of a class of systems of revealed law and not a species unto itself. See Code, Laws concerning Transgression Through Error : and Laws of Kings :. . Stern, Problems and Parables, p. . “For the Law always tends to assimilate itself to nature, perfecting the natural matters in a certain respect. For nature is not endowed with thought and understanding, whereas the Law is the determining ruling and the governance of the deity, who grants the intellect to all its possessors” (Guide :, p. ). . See Eight Chapters, chapter , in Ethical Writings of Maimonides, and Hartman, Maimonides, pp. ‒. . Halevi, Kuzari :. . Maimonides’ claim has also been misconstrued in other ways. Shem Tov tries to illuminate Maimonides’ point by distinguishing between Torah and natural law in the Thomistic sense, on the one hand, and a basic natural urge to create law, on the other, arguing thus: “The Torah, ‘although it is not natural,’ that is, innate in human nature, as all natural things, ‘enters into what is natural,’ for God wished nature to encompass human existence . . . [and so] instilled the urge to make nomoi and civic actions for the persistence of the species” (Guide :). For contemporary versions of

NOTES TO PAGES 29 – 33 169

this approach, see Paurs (Faur) “The Basis for the Authority of the Divine Commandment,” p. , and Fox, Interpreting Maimonides, p. . However, the comparison with the Thomistic tradition of natural law is predicated upon a shared notion of law, and as Macy, “The Rule of Law,” notes, this is unwarranted. Law, Thomistically conceived, is reified in analogy to the laws of nature, whereas law for Maimonides is written or promulgated political wisdom. The problems that adherents of the natural law tradition struggle with differ from those that concern Maimonides. . Strauss, Philosophy and Law, p. . In Persecution and the Art of Writing, Strauss stresses the importance of the religious myth for ensuring the well-being of the philosopher. However, this reading of Maimonides is not based primarily on Maimonides’ actual statements about politics but on a hermeneutical assumption that the Guide is an example of “political writing.” If my understanding of Strauss is correct, then a refutation of Strauss will entail a wider argument about the way one should read Maimonides’ works. The present discussion considers only Maimonides’ actual statements about politics, and these statements do not support Strauss’s contention. Maimonides’ characteristic usage of the term politics lacks any esoteric undertones. . The TL does not differentiate between types a and b and suggests a wider scope for c: “in these times all the preceding—I mean the regimes and the nomoi— has been dispensed with and men are being governed by divine commands.” Berman interprets this as follows: “The author can hardly have Judaism in mind, since the term ‘men’ is used without any qualification. The simplest explanation, it seems to me, is that Islam and Judaism as well as Christianity are meant, for they claim to govern man through divine commands” (“A Reexamination of Maimonides,” p. ); cf. Kreisel, Maimonides’ Political Thought, p.  n.. . Harvey, “Political Philosophy,” p. , suggests that the nomoitic regime is not legitimate but does not distinguish between the natural and nomoitic polities. My position is closer to that of Galston: “As a consequence of the dignity Maimonides confers on securing mankind’s survival, the founders of communities governed by man-made nomoi are prophetic impostors when measured against their specific and false understandings of the end of man, but are genuine prophets when viewed as contributing to the low but indispensable good of preservation” (“The Purpose of the Law,” pp. ‒).

CHAPTER 2

. Ibn Tibbon, Glossary of Foreign Words: al derekh ha-rov. Maimonides uses both the Arabic and the Hebrew term in legal contexts; see Responsa,  and . For an analysis, see Rosenthal, “For the Most Part.” . According to Aristotle, the justification for considerations of equity is that they present “what the legislator himself would have said had he been present, and would

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have put into his law if he had known” (Ethica Nichomachea, ‒). Equity is “not better than absolute justice but better than the error that arises from the absoluteness of the statement” (‒); cf. Rhetoric, a‒b. . As an example, Maimonides brings the talmudic dictum ruling out exceptions that would make a general standard of conduct impossible: “you have given the matter to [fragmentary] measures” (BT Shabbat b). Maimonides’ concern here is uniformity of religious practice, but this does not detract from the wider import of his observations on the structure of law. . Cf. Guide :. . See Guide : for a ranking of the commandments from the point of view of their ends and : for a classification of the commandments according to their apparent rationality. . Sedeq refers to distributive justice and mishpat to retributive justice: “judgment concerning what ought to be done to one who is judged, whether in the way of conferring a benefit or of punishment” (Guide :, p. ). . There are two other definitions of justice in the Guide: () “Things are similar with regard to this Law, as is clear from its equibalance. For it says: ‘Just statutes and judgments’ (Deut. :); now you know that the meaning of just is equibalanced” (:, p. ). () In : the laws governing the market are described as “rules of justice” (p. ), and : mentions “laws of justice” with regard to ensuring that business transactions “do not deviate from a course of mutual help useful for both parties, lest one of them should aim at increasing his share in the whole and at being the gainer in all respects” (p. ). These rules appear in the Code’s Book of Civil Laws; cf. Code, Laws concerning Sales :, . . See Rosenberg’s description of Maimonides’ situationalism in “‘For the Most Part,’” pp. ‒. In a discussion of Maimonides’ view, Itzhak Englard argues that there are no remedies for such infringements of individual rights. He contends that “there is no connection between the issue of temporary rulings [hora’at sha’ah], which aims at the perfection of the whole, and the problem of equity, which aims at achieving justice for the individual” (“The Problem of Equity,” p. ). Englard’s main argument is that all Maimonides’ illustrations of remedies pertain to the whole and not to individuals. However, this does not mean that such activities on behalf of an individual are impossible. . Another possible corrective is supererogation: acts of equity undertaken by individuals who forgo their own rights for the just claims of others. This is not a course of action normally initiated by legal institutions. Some such actions fall under the ethic of lifnim me-shurat ha-din (actions beyond those demanded by the letter of the law) practiced by the hasid (morally perfected individual); see Code, Laws concerning Character Traits :. In the Guide, Maimonides does not explicitly refer to the category of lifnim me-shurat ha-din, but the description of the hasid is very close to that of the discussion of beneficence (hesed) in :. On the role of lifnim me-shurat ha-

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din as the morally perfected individual’s ethic, see Hartman, Maimonides, pp. ‒, and Kirschenbaum, Equity in Jewish Law, pp. ‒. On the difference between lifnim me-shurat ha-din and equity, see Newman, “Law, Virtue and Supererogation,” pp. ‒. . Medicine is repeatedly invoked by Maimonides as a model for practice. In his ethics, Maimonides utilizes the therapeutic model for the cultivation of dispositions. In chapter  of the Eight Chapters, Maimonides distinguishes between knowing the soul and curing it. The latter is the actual process of improving the moral dispositions. Although the reasoning typical of both medicine and ethics is syllogistic, it differs from reasoning about natural laws; see Rosenberg, “More on ‘For the Most Part,’” n. pp. ‒, and Rosenberg, “‘For the Most Part,’” p. . Maimonides also uses medicine as a model for political practice in his Medical Aphorisms, p. . . Rosenthal, “Al Derekh Harov,” pp. ‒. Notice the intrusion of Kantian rhetoric into the course of the argument. Such rhetoric not only differs from but may well be incompatible with the Maimonidean notion of reason. Relying on Rosenthal’s analysis, Kirschenbaum argues that Maimonides, unlike later Jewish thinkers such as Gerondi, Arama, and Abravanel, has no notion of “correcting” the law: “With the (Aristotelian) idea of the correction of the (divine) law, bringing it in line with the just, the upright and the good, Maimonides, the Jewish theologian, parts ways. . . . Divine law—heteronomous—brooks no correction by man and his autonomous ethic” (Equity in Jewish Law, p. xxx). Kirschenbaum does not explain why these thinkers did not share what he takes to be Maimonides’ sense of theological discomfort at the thought of “correcting” the law. . Al-Farabi, The Opinions of the Inhabitants of the Virtuous City (Ara Ahl alMadina al-Fadila), p. .

CHAPTER 3

. See Blidstein, “The Monarchic Imperative,” and Blidstein, Political Concepts, pp. ‒, for a comprehensive discussion of the controversy. . Both medieval and modern scholars understood Maimonides as taking a position on monarchy here. Commenting on Maimonides’ words in the Guide that “there must . . . be a ruler” (:, p. ), Kaspi remarks: “This led the teacher to determine it as a positive commandment; he interpreted ‘thou shalt in any wise set him king over thee’ (Deut. :) as saying, ‘it is good in My eyes’” (Commentaria Hebraica, p. ). Baron argues: “That Maimuni adopts only those talmudic interpretations which favor monarchy is fully in line with his general political theory advocating strong monarchical government. This attitude could but be fostered by the realities of the Muslim state (especially the Egypt of Saladdin) and the prevalent political doctrines under Islam” (“The Historical Outlook of Maimonides,” p.  n.). . This is a rare case of Maimonides’ rejection of a talmudic precedent. But in the

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absence of an explicit precedent to the contrary, i.e., declaring the king’s priority, on which he can rely, Maimonides omits the entire matter in the Code. The omission therefore indicates that he holds fast to his earlier reasoning, expressed in the Commentary on the Mishnah. . Consent must be given not to the war itself but to general conscription. Presumably, the king may wage a limited war without prior consent of the Sanhedrin; cf. Meiri, Bet ha-Behirah, Sanhedrin a, p. . For a discussion of the categorization of wars, see Walzer, “War and Peace,” and Ravitzky, “Prohibited Wars.” . The king must ratify appointments to the judiciary: “The exilarchs of Babylon stand in the place of the king. They exercise authority over Israel everywhere and sit in judgment over the people, with or without the consent of the latter, as it is said: ‘The scepter shall not depart from Judah’ (Gen. :). This refers to the exilarchs of Babylon. Therefore any competent judge, who has been authorized by the exilarch to exercise judicial functions, may act as judge everywhere, in or outside Palestine, even if the litigants are unwilling to accept him (as judge)” (Laws concerning the Sanhedrin :‒). The last sentence, found in the Amsterdam edition, is absent from the Rome and Constantinople editions but is consistent with similar comments Maimonides makes in other places; cf. Code, Laws concerning the Sanhedrin :, and CM Bekhorot :. But recall the passage in the Guide that assigns a role to both king and judge in criminal law: “It is clear that as there must be punishments, it is indispensable to have judges distributed in every town. There must be testimony of witnesses, and a ruler who is feared and held in awe and who uses all sorts of deterrents and fortifies the authority of the judges and in his turn draws strength from them” (:, p. ). . In CM Sanhedrin :, Maimonides argues that the kings of Israel “usurped the monarchy” and therefore had to resort to brute power to establish their reign. Their lack of confidence in their legitimacy makes them wary of legal constraints on their sovereignty, whereas Davidic kings, confident of their dynastic legitimacy, can afford to be virtuous. . See Maimonides, Responsa, , for a restrictive position on the dismissal of public officials; cf. Tosafot Bava Batra a, s.v. ve-af. . The case of Jeroboam shows that an Israelite kingdom can be created legitimately and not through rebellion and usurpation, even under Davidic reign; see Laws of Kings :. In the Guide, Maimonides indicates awareness of the subversive potential of his position. Explaining the priority of appointing a king over building the temple (Laws of Kings :‒), he states: “so that only one would be qualified to command and quarrels would cease” (:, p. ). Blidstein argues that Maimonides’ willingness to sanction a plurality of kings is simply a concession to historical reality in biblical times and does not follow from his political theory (Political Concepts, pp. ‒). But Maimonides bases this conclusion on more than mere historical precedent. It follows

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from his operational definition of sovereignty: whoever possesses de facto sovereignty is the legitimate ruler. Cf. Spinoza’s understanding of Jeroboam in TTP, author’s note , pp. ‒. . The term she-lo ka-din is ordinarily used by Maimonides in the sense of unlawfulness; see, e.g., Laws concerning the Sanhedrin : and :. However, in Laws concerning Rebels :, Maimonides also uses the term in the context of condoning extralegal measures on the part of the court. . This delicate balancing of private humility and public power reflects rabbinic concerns about the feasibility of the biblical conception of the monarch. While the Deuteronomic law of the king calls for limiting the monarch’s power and mandates humility, “Thus he will not act haughtily toward his fellows” (Deut. :), rabbinic interpretation, wary of possible emasculation of the monarchy, attempts to formulate appropriate reservations in order to preempt this. Thus the king may amass wealth, houses, and chariots, but only in order to create and provision an army; see Mishnah Sanhedrin :. . See Blidstein, Political Concepts, p.  n.. See also BT Shabbat a and Kiddushin a, which state generally, “rebel against the kingdom” but refer to David’s reign. . This reading is strengthened by the fact that Maimonides ends the discussion of the king’s prerogatives in chapter  with a law that returns to the notion of one who rebels against the king. The king’s prerogatives all emanate from his basic right to command. . See Laws concerning Witnesses :, :‒; Laws concerning the Sanhedrin :‒, :; and Laws concerning Murder and the Preservation of Life :, . . In the Guide, Maimonides tries to address this difficulty by citing “presumption” [al-shubh, Hebrew: be-amatla’ot u-ve-de-dami (ibn Tibbon); yadayim mokhihot (Kafih)]. The Hebrew are technical halakhic terms, the former meaning “plausible reason for correcting or retracting an evidence” (Jastrow, A Dictionary of the Targumim), s.v. amatla; the latter, “suggestions beyond doubt” (ibid.), s.v. yad. The king, Maimonides argues, “may kill on the grounds of a presumption” (Guide :, p. ). But this only begs the question: whence the presumption? . See BT Yevamot b and Maimonides’ rendering of this talmudic discussion in the Code’s Laws concerning the Sanhedrin :. Notice the linguistic similarities between this law and : of the Laws of Kings. . That is, the testimony came from witnesses who were not together when they witnessed the act. Under these circumstances, the alleged perpetrator cannot be executed and is instead imprisoned. . In Jewish law, the accused must be forewarned of the legal consequences of his/her action if he/she is to be punished; see Code, Laws concerning the Sanhedrin :‒. . Another distinction must be noted. Exemption from court-ordered capital

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punishment does not imply absolute exemption from the death penalty and other punishments. Punishments are not only meted out for social reasons such as retribution or to serve as a deterrent but may have a sacral/ritualistic dimension as well. Exemption from court-ordered capital punishment (mitat bet din) serves to spare the offender the sacral consequences of the deed but not necessarily the social; see Segal, “Postbiblical Jewish Criminal Law.” . Cf. Code, Laws concerning the Sanhedrin :. . Unlike Maimonides, Perfet, Responsa, , regards these as three distinct talmudic positions, only one of which may be correct. . This widening of the category of culpable murderers is based on a prior distinction Maimonides draws between “murder” and “spilling blood” (Laws concerning Murder :‒). The right and obligation to punish those guilty of the latter are in turn based on the Noahide laws in Genesis :‒. . The term used in the Yale translation, “royal decree,” is definitely misleading here. Maimonides’ source may be the story of Eliezer b. Shimon in BT Bava Metzia b. However, that story can certainly be read as a critique of Eliezer b. Shimon rather than an endorsement, as Maimonides seems to read it. Perfet (Responsa, ) also reads the story as an endorsement. The Talmud uses the term harmena demalka, “royal appointment,” generally used to refer to the permission granted rabbis by a non-Jewish king to try criminal and capital cases. Maimonides infers that granting such authority is within the king’s domain and transfers these powers to Israelite kings. BT Hulin b offers another possible basis for extending the term to Israelite kings as well. Maimonides’ rendering of Tosefta Sanhedrin : in the Laws concerning the Sanhedrin : and Laws of Kings : may constitute another case of such transference, one which is warranted on the strength of the basic continuum between Jewish and non-Jewish kings reflected in the concepts of dina demalkhuta dina and Noahide law. . Bet ha-Behirah Sanhedrin a, p. ; see Sanhedrin b, p. , for a similar formulation. Maimonides’ use of the term din malkhut seems to be more politically oriented than the Islamic siyasa shariyyah, “government in accordance with the revealed law,” which requires a pious ruler as a necessary condition for its implementation; see Coulson, A History of Islamic Law, pp. ‒. According to Maimonides, it is the Sanhedrin that is charged with “strengthening the religion” (Laws concerning Rebels :), not the king (cf. Laws concerning the Sanhedrin :). . Lieberman, Tosefeth Rishonim, vol. , p. , l. . . Rashi, for example, so interprets it, asserting that “one witness is mere libel” (Sanhedrin b, s.v. be-edut). . Blidstein, Political Concepts, p. . . For a detailed treatment, see Lorberbaum, “Maimonides’ Conception of Tiqqun ’Olam.” . Laws concerning Murder :.

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. Ben-Menahem, Judicial Deviation, has convincingly demonstrated that the Babylonian Talmud, but not the Jerusalem Talmud, tends to accept both extralegal considerations and deviation from precedent in the context of halakhic decisionmaking. I contend, however, that Maimonides goes much further than the Babylonian Talmud in sanctioning judicial discretion. While the Bible sees testimony as the basis for judicial reasoning (Deut. :), and even the Babylonian Talmud considers judicial discretion to be complementary to establishing the truth of the matter by testimony, according to Maimonides, the judge’s discretion should be at the core of his reasoning: “In monetary matters, the judge should act in accordance with what he is inclined to believe is the truth when he feels strongly that his belief is justified, though he has no actual proof of it. . . . If this be so, why does the Torah require two witnesses? The answer is: when two witnesses give testimony, the judge is bound to decide on their evidence, although he does not know whether the evidence submitted by them is true or false” (Laws concerning the Sanhedrin :). . Laws concerning the Sanhedrin : and :, and CM Avot : (cf. Yom Tov Ishbili [Ritba], Responsa, ). In Laws concerning the Sanhedrin :, Maimonides argues that capital cases are different in this respect—i.e., the presumption of innocence holds in these cases—and this adds another principle that must be overridden if the king is to administer extralegal punishment. The punitive prerogatives of the policing officials may also take precedence over legal proceedings; see Laws concerning Theft :. See also Blidstein, “Muhtasib and Shoter,” p.  n.. . Maimonides uses the term din ha-malkhut elsewhere in the Code yet does not use it in the Laws of Kings, although here, too, he discusses the king’s punitive powers. In Chapter , I discuss the possible significance of this omission. . BT Sanhedrin b. . This midrashic interpretation is not found in extant rabbinic sources. Even if it is rabbinic, we must remember that it is Maimonides’ decision to recognize extratalmudic Rabbinic sources as authoritative that makes this law binding. See Epstein, “Mechilta and Sifre,” p. ; Finkelstein, “Maimonides and the Tannaitic Midrashim,” p. ; and Twersky, Code of Maimonides, pp. ‒, ‒. . Cf. Laws concerning Robbery and Lost Property :; Laws concerning Slaves :‒; and Rabad’s critique of law . . Maimonides’ translation is: “the law of the king is law.” He uses the word king (melekh) and not kingdom (malkhut) for the Aramaic malkhuta. See CM Nedarim : and Kafih’s n.; cf. Baba Kama :. For discussion, see Shilo, Dina De-Malkhuta Dina, pp. ‒, and Blidstein, Political Concepts, pp. ‒. . Blidstein, Political Concepts, pp. , . . See Shilo, Dina De-Malkhuta Dina, pp. ‒. . Whereas the king’s consent, if called for, is tacit and passive, consent seems to play a greater role with regard to the authority of the law itself. The authority of the Talmud as the binding corpus of the halakhah rests in part upon consent: “For all the

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aforementioned things included in the Talmud have been accepted by all Israel. Moreover, the sages who established [those] ordinances, decrees, or customs, or who drew [those] inferences and taught that the law is such and such, were the entirety or majority of the sages of Israel, and the ones who heard the tradition on the rudiments of the entire Torah [i.e., the  commandments] in direct transmission extending back to Moses” (Code, Introduction; JPT, p. ). . Blidstein, Political Concepts, pp. , . . Cf. Laws of Kings :, , and note the linguistic resemblance to the various laws quoted earlier. For a detailed comparison, see Or Sameah, Laws of Kings :, and Blidstein, Political Concepts, pp. ‒. . This view is strengthened by the passage opening the discussion of the Noahide laws (Laws concerning the Sanhedrin :). The Noahide laws and Torah law are presented as on a continuum, the former being the initial commandments given by God to Adam and the latter the ultimate completion of this legislation by Moses. . Blidstein, Political Concepts, . . Blidstein, “‘Ideal’ and ‘Real,’” . . See Laws of Kings : and Laws concerning Wounding and Damaging :‒. . See Blidstein, Political Concepts, pp. ‒.

CHAPTER 4

. Cf. Abravanel’s description of the pro-monarchist position of Al-Farabi and Maimonides in his comments on Deuteronomy  (Commentary on the Torah, p. a). . In the following chapter, I will amplify on Maimonides’ view that aristocracy, as opposed to rule by the townspeople, is the preferred model for Jewish communal self-government in exile. . Strauss, Philosophy and Law, p. . . Kimchi, Dictionary, p. . Ibn Ganah, s.v. dat, writes, “dat va-din—hok u-mishpat,” and Meir Alguades (d. ), in his Hebrew translation of EN, pp. b‒a, uses dat to translate nomos in the passages from EN, Book , quoted in Chapter . See also Nissim Massilitani, Ma’ase Nissim, pp. ‒. . Albo, Sefer Ha’Ikkarim :. . Cf. :: “It is one of the basic principles of religion [yesodei ha-dat] that God inspires men with the prophetic gift.” Maimonides explains this point in the Guide: “It is known that the fundamental principle of belief in prophecy precedes the belief in the Law. For if there is no prophet, there can be no Law” (:, p. ). . Sometimes Maimonides, using the term dat ha-emet, stresses the uniqueness of Judaism as the true religion; see Kellner, Maimonides on Judaism, pp. ‒, and the references he cites in note . . See Scholem’s description of what he takes to be the historical failure of the Maimonidean account of the law, which he attributes to unwarranted reductionism

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in Major Trends in Jewish Mysticism, pp. ‒. This criticism of the rationalist account of the law is not limited to the kabbalists and is also found in Halevi’s critique of the philosopher at the beginning of the Kuzari (:‒). . Spinoza, A Theologico-Political Treatise, p. . . Ibid. . Galston’s reading in “Philosopher-King,” pp. ‒, has Spinozistic tendencies in this respect. . Ira Lapidus makes the same observation regarding the Islamic caliphate: “Though they headed the community, the religion, and the state, the Caliphs did not inherit Muhammad’s prophethood, nor were they a source of religious doctrine and law. At the core of their executive and symbolic primacy there was a void, for neither the office nor the Caliph himself held the authority from which Muslim religious conceptions and practices derived. The Qur’an, the revealed book, stood apart from the authority of the Caliph, and was available to every believer” (“The Separation of State and Religion,” pp. ‒). . Weiler, Jewish Theocracy, p. . . A parallel situation exists with respect to Islamic law. According to Coulson, this tension is rooted in the fact that Islamic law developed from a law governing the individual standing before God to a law for an entire society; see A History of Islamic Law, pp. ‒. . Earlier, I criticized Blidstein’s use of the real/ideal distinction to argue for the position that politics is a concession to the real and not ultimately legitimate. My use of the term ideal here signifies a messianic vision for the future that does not, I will argue, undermine the legitimacy of a nonmessianic polity—the “real.” . As in the earlier chapters, here, too, I restrict myself to Maimonides’ systematic works, the Guide and the Code. The most important of his other discussions of messianism is in the Epistle to Yemen, an account that cannot be generalized due to its having been written in response to unique circumstances. See Hartman’s critique of Funkenstein, Perceptions of Jewish History, on this point in Halkin and Hartman, Crisis and Leadership, pp. ‒. For a summary of Maimonides’ views on messianism as expressed in his various works, see Blidstein, Political Concepts, pp. ‒. . The contemporary debate on Maimonides’ conception of messianism takes its cue from Gershom Scholem’s seminal “Toward an Understanding of the Messianic Idea in Judaism,” in The Messianic Idea, pp. ‒. Scholem maintains that messianism is not really integral to Maimonides’ philosophy, in contrast to its importance for the apocalyptic kabbalists. It plays no formative role, he maintains, in defining Maimonides’ religious aspirations. Scholem further argues that there is thus a deep affinity between the rationalistic Maimonidean outlook and the tenor of the halakhah, which is fundamentally conservative, being “directed toward the preservation of that which exists and which, in the historical environment of Judaism, was always in danger” (p. ). Funkenstein, Perceptions of Jewish History; Hartman, “Mai-

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monides’ Approach to Messianism”; and Ravitzky, History and Faith, pp. ‒, are critical of this view, arguing that Scholem underestimates the role of messianism in Maimonides’ political vision. Despite their differing interpretations of Maimonides, they agree that messianism is a fundamental element in Maimonides’ thought and that Scholem’s portrayal of Maimonides’ messianic vision is oversimplified. . These tasks are to be carried out in the order of the commandments to be fulfilled by Israel upon entering the land of Israel, as listed in the Laws of Kings (:): appointing a king, destroying Amalek, and building a temple. The destruction of Amalek is not explicitly mentioned in the laws pertaining to the messiah but is presumably covered under the rubric “battles of the Lord” (cf. :). . Twersky, A Maimonides Reader, p. . . Funkenstein’s characterization of the messianic era as “revolutionary” (Perceptions of Jewish History, p. ) is misleading. While the messiah’s achievements will be extraordinary, “revolution” implies changes in political structures and in the natural order and is thus unwarranted. . Maimonides’ use of tikkun olam should be contrasted with the later Lurianic cosmic and theurgic sense of the term. See Scholem, Major Trends in Jewish Mysticism, pp. ‒. . Literally: “A family that has been integrated, is integrated.” This balance between revealing and concealing genealogical status is Maimonides’ resolution of the tension that pervades the first part of BT Kiddushin a‒b. The talmudic discussion reflects the tension between the Palestinian and Babylonian communities over genealogical status, which threatened to undermine marriages between the two communities. Note that Maimonides chose to place this eschatological genealogy in the Laws of Kings rather than at the end of the Laws concerning Forbidden Intercourse, the natural setting for this discussion. . See CM Eduyot :, which suggests that concern for social peace motivates the ruling that an intermingled family retains its status. The Code’s description of the messiah’s qualities in terms of the holy spirit delineates a realm of divinely inspired activity permitted, albeit with restrictions, within the halakhic framework, because it is not, strictly speaking, prophetic: “It consists in the fact that an individual finds that a certain thing has descended upon him and that another force has come upon him and has made him speak; so that he talks in wise sayings, in words of praise, in useful admonitory dicta, or concerning governmental or divine matters—and all this while he is awake and his senses function as usual” (Guide :, p. , “The Second Degree”). . Cf. Ravitzky, History and Faith, pp. ‒. Notice that the final conditional clauses of :, “rebuilds the sanctuary on its site, and gathers the dispersed of Israel,” parallel :, but the earlier clauses, “If there arise a king . . . who meditates on the Torah . . . ,” do not, implying that they are not defining features of the messiah. They serve as a bridge to chapter , which goes beyond the vision of the renewed polity.

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. See, e.g., Hartman, “Maimonides’ Approach to Messianism,” pp. ‒, and Funkenstein, Perceptions of Jewish History, pp. ‒. . Reading “when the people of Israel live exiled among the nations” as synonymous with “when the gentiles’ power is predominant.” Both are contrasted with a time “when Israel is predominant over the nations of the world.” Although Maimonides seems to give a political account of exile, the attendant conception of international politics is bipolar and schematic—Israel either rules or is ruled. . I have replaced the new Jewish Publication Society translation of the Hebrew de’ah (“devotion”) with the previous rendering, “knowledge,” which better reflects the Maimonidean interpretations I discuss later. . Among medieval commentators, Efodi offers a political reading of the chapter: “were the political association [ha-kibbutz ha-medini] to achieve perfection, there would be no fighting, nor quarreling, nor jealousy, nor competition, between them, but they would have one perfect faith And this will come about in the future in the days of the messiah” (Guide :). Shem Tov distinguishes between faith and knowledge. Among the great evils that befall humans, he lists “war, strife and the quest for power, and the evils that follow wicked passions . . . and the great evils that follow the differences of faiths” (:). Even though “faith enables the existence of political society, it is the cause of depravation and discord, for believers will battle one another as if they were members of different species and haters by nature. They are swifter than eagles and stronger than lions to battle one another and kill each other because of the difference of faith” (:). The prophet, however, speaks of a time when knowledge will spread among people and “they will follow the intellect . . . for although divine providence [gave us] faith for the sake of the existence of the human species, this benefit will become a hindrance, and this guide a yoke” (:). My reading of Maimonides is closest to that of Narboni (b), who stresses the causal role of knowledge. . See Twersky, Code of Maimonides, pp. ‒. Ravitzky’s interpretation is quite different. Ravitzky reads : as describing a return to the paradisaical prelapsarian state of human existence. Accordingly, he sees it as mythic in that it refers to the story of time before time. Chapter : is the posthistorical counterpart to the myth of paradise. In this interpretation, then, it has no political significance. However, there is no support for this interpretation in the text, and Maimonides never alludes to the paradisaical state in this discussion. . Scholem, The Messianic Idea, p. . . Maimonides’ account of the utopian state thus differs from that of Plato, who in the Laws speaks of “the natural rule exercised by the law over willing subjects, without violence” (c). Plato keeps the law and banishes political domination, while Maimonides seems to suggest a complete overcoming of political society. . Theorizing about the natural constraints upon the messianic future mandates analysis of Maimonides’ concept of nature; interpreters of Maimonides’ messianic

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doctrine disagree as to its rigidity or plasticity. The debate turns on the relation between form and matter in Aristotelian metaphysics. Funkenstein, on the basis of Maimonides’ critique of Aristotle in Guide :, argues that for Maimonides, matter is “the source of contingency throughout the universe, and not only in the sublunar realm.” The natural world of formed matter “is thus a continuum of instances of the accommodation of divine planning to indifferent if not resilient substrates” (Perceptions of Jewish History, p. ). In contrast to this plastic conception, Ravitzky, based on the discussion of the eternity and necessary givenness of the existing natural order in Guide :‒, maintains that Maimonides had a rigid conception of nature. Ravitzky argues that laws of nature are analytic: “Divine wisdom . . . necessitates the very existence of the cosmos but also its being as it is. . . . This is not the best of all possible worlds, but the only possible world” (History and Faith, pp. ‒). This controversy over the tractability of the laws of nature yields two very different conceptions of the messianic vision. Funkenstein feels comfortable interpreting Maimonides’ messianic vision as revolutionary and miraculous, whereas Ravitzky’s position enables him to see the messianic era as, essentially, a “continuation of the natural order” (History and Faith, p. ). Blidstein argues that the normative components of the messianic doctrine are a clue as to what can be considered naturally possible: “locating normative components of the redemptive process is equivalent to pointing to the naturalistic foundations of the vision” (Political Concepts, p. ). But as “ought” does not exhaust “can,” this provides but a partial indication. The normative components may be pointing only to the barest minimum of that which is naturally possible. And according to the interpretation of the Laws of Kings offered earlier, chapter  is not strictly normative but a description of a possible messianic scenario. . The importance of leisure as a precondition for devotion to knowledge is a salient theme of Code, Laws concerning Repentance ; cf. Guide :.

CHAPTER 5

. Hence, rather than engage in a general analysis of the positions of Moses b. Nahman (Nahmanides) and Solomon ibn Adret (Rashba), I concentrate on responsa that illustrate the evolving understanding of the concept of politics during this period. . See Urbach, The Tosaphists, pp. ‒, and Chavel, Rabbi Moshe Ben Nachman, pp. ‒. . Septimus has argued as follows: “It is precisely the predominance of northern influence in the formation of Nahmanides’ analytical genius that renders so interesting his attempts to limit northern erosion of Spanish halakhic tradition. Although persuasive northern argumentation as well as Nahmanides’ own irrepressible independence can be seen countering the pull of the ‘ancients’ throughout the hiddushim [novellae], devotion to the study and defence of the geonic-Andalusian tradition re-

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mained a major counter-theme in his halakhic career” (“‘Open Rebuke and Concealed Love,’” pp. ‒). . On Maimonides’ emergence as a cultural hero, see Septimus, Hispano-Jewish Culture, pp. ‒, ‒, and ‒. . See Gulak, The Foundations of Jewish Law, pp. ‒; Elon, Jewish Law, vol.  pp. ‒; and Nahlon, “The Communal Enactments,” pp. ‒. This development parallels the emergence in Christian Europe of the concept of corporation, which came to inform both canon law and urban law; see Berman, Law and Revolution, pp. ‒. . In Ptolemaic Egypt, Jewish and other non-Greek ethnic communities were organized in politeumata, civic governing bodies. Tcherikover defines the polituema as “a community founded on an ethnic basis which enjoys certain political rights” (The Jews in Egypt, p. ), and its members saw themselves as politai. Their communal life was close to that of the Greek polis, and they enjoyed limited judicial autonomy and the right to follow the laws of their fathers (ibid., pp. ‒). Indeed, the historical development of Jewish communities is generally intimately connected with the history of the city; see Ben Sasson (MJC). . Baer, “The Origins of Medieval Communal Organization,” pp. ‒. Blidstein argues that the concept benei ha-ir was not deeply rooted in Talmudic Judaism; it is not a Jewish value, and does not bestow an authority based on the values and missions of Judaism. To be a “citizen” is not a Jewish (but rather a Hellenistic) ideal. Thus, many rabbis treated this concept as a secondary tradition, an institution which must seek appropriate axiological support. . . . In the last analysis, the kehillah does not seek to view itself as a society of partners but as a kehilla kaddisha (holy community), an organic unit within the Jewish people which can assure its members a place in the world to come: knesset Israel. (“Individual and Community in the Middle Ages,” pp. , ) I do not believe there is any conscious rejection of possible Greek connotations here. After all, the Mishnah does use the term benei ha-ir. However, as the term benei hair is neutral, with no political overtones, the medieval thinkers preferred to replace it with a more politically suggestive term. . For the early Ashkenazic material see Agus, Urban Civilization, vol. , pp.  ff. . Rosh, Responsa, :. Cf. Meir of Rothenberg, quoted in Mordechai, Bava Metzia ‒; Solomon b. Shimon Duran (Rashbash), Responsa, ; Shulhan Arukh, HM :, :; see also Elon, Jewish Law, vol. , pp. ‒. In his commentary on the Shulhan Arukh, Elijah of Vilna points to Rabbenu Hananel’s remark concerning the townspeople’s right to fix wages as a source for this ruling. The Hebrew verb is le-hatnot, to stipulate a condition, and Hananel remarks “without acquisition.” That is, the townspeople legislate in line with their decisions, issuing decrees without having to draw up

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contracts with each individual for every decision. Elijah of Vilna connects the exempting of public transactions from the procedure of acquisition with the general legislative quality of these actions. Public commitments have the force and stability of law. . Yom Tov Ishbili, Novellae, Bava Batra b (p. ). Cf. BT Ketubot b for other exemptions from declaration. Maimonides explains that these are considered urgent matters; see Code, Laws concerning Creditor and Debtor :. See also Gerondi, Commentary on Alfas, Megillah b, s.v. Ravina in the name of Aaron Halevi. . Adret, Responsa, :, : (cf. :); Rosh, Responsa, :, , ; and the general discussion in Caro, Bet Yosef, Tur YD,  (p. ), s.v. ve-khen; Shulhan Arukh YD :, , and :. . BT Temura b; cf. Blidstein, “Individual and Community in the Middle Ages,” p. . . Joseph Habiba, Nimukei Yosef, Bava Batra b‒a (Alfas pagination) following Gerondi, Novellae, Bava Batra b, s.v. ve-rasha’in; cf. Rashbash, Responsa, . . Nahmanides, Novellae, Bava Batra b (c); see also Responsa, . In this case, Nahmanides and, following him, Adret, Gerondi, and Habiba, all rule according to the Ashkenazic tradition and against the earlier Spanish tradition of Joseph ibn Migash. See Maimonides, Code, Laws concerning Gifts to the Poor :, and the detailed discussions in Tur, YD , and Shulhan Arukh, YD :. . Rosh, Responsa, :; see also ‒. . Adret, Responsa, :; see also :, :; Elon, Jewish Law, vol. , pp. ‒; Maimonides, Code, Laws concerning Evidence :‒, Tur HM  and Bet Yosef, s.v. benei; Shulhan Arukh HM :‒. Concerning earlier Ashkenaz, see Grossman, “The Attitude of the Early Scholars,” p. ; Tashma, Early Franco-German Ritual, pp.  ff.; and Tashma, Custom and Reality, pp. ‒. In this case, too, Adret rules against the old Spanish tradition of Alfasi; see Alfasi’s responsum . . Berman, Law and Revolution, pp. ‒. . Perry Anderson, quoted by Berman, Law and Revolution, p. . . Gutenmacher, “Political Obligation,” p. . . Finkelstein, Jewish Self-Government, p. viii. . Communities in the Islamic world maintained direct connections with the centers in Babylonia up to the eleventh or twelfth century, while the Franco-German communities were far removed from them. Moreover, cities in the Islamic world did not enjoy the autonomous status of those in Christian Europe. Thus conditions in Europe were more congenial to the development of communal autonomy. See BenSasson, The Medieval Jewish Community, pp. ‒. . See Adret, Responsa, :; on Jewish recourse to Catalonian courts, see Assis, The Golden Age, pp.  ff. . Although the laity was generally poorly versed in the law, the role of the rabbinate in granting authority was complex. Some argue that the rabbinate faced its own legitimacy crisis; see Adret, Responsa, :; Meiri, Bet ha-Behirah, Bava Batra

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b (JPT, pp. ‒); Katz, “Rabbinical Authority,” pp. ‒; Finkelstein, Jewish SelfGovernment, pp. ‒; Tashma, “Jewish Judiciary”; and Yuval, Scholars in Their Time, pp. ‒. To this I must add the problem of rabbis appointed by the king; see Adret, Responsa, :; Nahmanides, Pseudo Nahmanides ; and Baer, A History of the Jews, pp. ‒. Most communities of this period did not have a professional rabbi, that is, did not have a permanent regular relationship with a recognized authority who received a salary from the community. Adret was rabbi of Barcelona but was also an independently wealthy businessman; see Baer, A History of the Jews, p. . Maimonides supported himself through a family business and the practice of medicine; see Goitein, “Moses Maimonides,” pp. ‒. Nahmanides also supported himself from the practice of medicine, as did Gerondi; see Feldman, Introduction to Derashot, pp. ‒. . Nahlon, “The Communal Enactments,” p. . . Albeck, “Foundations,” p. . . Nahlon, “Local Legislation,” p. . . Cohen, “Maimonides’ Egypt,” has suggested that Maimonides sought to create a Torah center along the lines of the Babylonian center. This may explain Maimonides’ reluctance to grant too much authority to local lay leaders. On enactments, punishment, and communal authority in the Egyptian community, see Goitein, The Community, pp. ‒, ‒, and , respectively. On the centralized organization of communities under Islamic rule, in contrast to Ashkenazic communities, see Tashma, “Law, Custom and Tradition,” p.  n.. . Lerner and Mahdi, Medieval Political Philosophy, p. . . Al-Farabi, The Virtuous City, p. . . Joseph ibn Migash defines it as a talmid hakham, a scholar, who is appointed a parnas over the public (tzibbur); quoted in Shittah Mekubbetzet, Bava Batra a, s.v. heikha. The second part of this definition is a necessary condition, otherwise there would be no need to mention it. Meiri states that “all other scholars [non-parnasim] have nothing to do with the matter” (Bet ha-Behirah, Bava Batra p. b). Meir Abulafia, Yad Ramah, Bava Batra b, s.v. hanhu () maintains that both qualities are necessary. Rosh, Bava Batra :, defines the distinguished scholar as a scholar like Rava, who was “a head and leader in the town” (rosh u-manhig ba-ir). Notice that none of these commentators use the term rabbi for the public function they have in mind. They speak of the scholar and the parnas, an appointed public officer. Duran, Tashbetz :, speaks of “the elders who are capable of public government [hanhagat ha-tzibbur] and know the law [yodei dat va-din].” See also Duran, Tashbetz, ::, JPT, pp. ‒. However, Nahlon, “The Authority of Communal Enactments,” p.  n., argues that Duran is referring to prominent “laymen,” the “good men of the city.” . Joseph Habiba speaks of a parnas, officer “appointed over the tzibbur,” Bava Batra b (Alfas pagination), s.v. aval. This may be a variant of ibn Migash’s position;

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see Adret, Novellae, Bava Batra a, s.v. ha, and Responsa, :, :, :. See also Gerondi’s vague formulation in Novellae, Bava Batra a, s.v. aval (p. ). . This may be Nahmanides’ position; see Novellae, Bava Batra a, s.v. ha. It is clearer in Yom Tov Ishbili’s Novellae, Bava Batra a, s.v. hanhu (p. ) and in Perfet’s responsum  (JPT, p. ). Meiri, Bet ha-Behirah, Bava Batra a, argues this position explicitly: “seeing that they [the townspeople] can cancel his appointment.” The scholar has no authority independent of his appointment to public office. The public charges him with a responsibility, therefore its authority precedes his own. . Following BT Bava Batra a. . Hatzlahah is used by ibn Tibbon to translate the Arabic sa’adah, happiness, in Guide :. Both terms are used for the Greek eudaimonia. In the TL, Maimonides describes political science as imparting the knowledge of “true happiness” and “the [way of] striving to achieve it” (Lerner and Mahdi, Medieval Political Philosophy, p. ). . Perfet, responsum  (JPT, p. ), restricts this authority to guilds. But in view of Maimonides’ powerful description of the qualities of this scholar, I believe that law  refers back to laws  and . See also Assaf, Geonica, pp. ‒. . See Nahlon, “Local Legislation,” pp. ‒. . This work quickly became a classic and is quoted, under various titles, by all the authorities who discuss these issues; see Nahmanides, Misphat ha-Herem, Introduction, p.  n., and p.  n.. . Berman, Law and Revolution, p. . . In responsum , concerning a herem issued by a group of people who used to pray together, Maimonides writes that “whoever did not answer amen after the ban [was pronounced] is not obligated at all because this ban is not intended to ‘fence a breach’” (p. ). Here Maimonides’ position is similar to that espoused by Nahmanides. However, in responsum , Maimonides states that “what the majority of the people imagine, namely, that if someone pronounces a ban on a matter permitted [by Torah law] . . . all are obligated to accept it . . . is not the case” (p. ). . Zechariah :, interpreted in BT Shevuot a. . I take this to mean that neither the king nor the Sanhedrin is automatically presumed to act for the people. This reading is strengthened by Nahmanides’ statement indicating that the court’s authority is derived from the people. See also Adret, Responsa, :. This last point may be rooted in a deeper conflict concerning the relation between politics and the identity of the people of Israel. According to Maimonides, the essentially natural political law creates the people, but according to Nahmanides, the charismatic identity of the people precedes their acquisition of a political identity. Cf. Nahmanides, Commentary on the Torah, Genesis :, :, and Leviticus :. Nahmanides may be following Halevi, who also stresses peoplehood as the dominant

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factor, preceding its political institutionalization; see Halevi, Kuzari :; Scholem, Origins of Kabbalah, p. ; and Lorberbaum, “Basic Paradigms.” . Nahmanides subscribes to the epistemic possibility of a binding moral code independent of divine law; see his commentary on Genesis :,, Leviticus :, and Deuteronomy :. . In his Responsa, Nahmanides refers to the “laws [dinin] and customs [minhagim] legislated by kings in their kingdoms” (, p. ). Maimonides attributes these enactments to “Joshua and his court” (Laws concerning Damage by Chattels :), thus implying that these enactments were made by Joshua in his capacity as the head of the court and not in any political capacity. That is, he interprets the enactments as judicial enactments. Atlas, Pathways in Hebrew Law, pp. ‒, contests the Maimonidean interpretation, arguing that these enactments, preceding the formation of the society and distinct from judicial activity after its organization, are therefore of a different status. . Nahmanides and other members of his circle probably knew Arabic and were capable of critically evaluating existing translations. He seems to have made much use of the Al-Harizi translation of the Guide, and I have used this translation for the important Hebrew terms. See Jospe, “Ramban (Nahmanides) and Arabic,” and Pedaya, “Possessed by Speech,” pp. ‒. . The Mishnah also uses a slightly different term, hilkhot medinah: “They that guard [gathered] produce may eat thereof according to the customs of the country [hilkhot medinah] but not by virtue of what is enjoined in the Law [torah]” (Bava Metzia :). Albeck, in the notes to his edition of the Mishnah, understands hilkhot medinah as local law in contrast with minhag ha-medinah, local custom (Nezikin, p. ). Indeed, the contrast with Torah law and the use of the term hilkhot suggest that these are local ordinances or customary law, as Nahmanides interpreted minhag ha-medinah. . Alfasi defines custom (minhag) as: “The principal custom that should be followed is that regarding which the majority of the kahal consult with the elders of the kahal and issue a specific enactment. This is the custom; even after years have passed and they do not know how it originated, but it was held to be so and the presumption is maintained” (responsum ). Custom is equivalent to that which is enacted, takkanah; see Tashma, “Jewish Judiciary,” p. . Nahmanides’ responsum  argues that the practical consequence of Alfasi’s definition is the presumption that unless the contrary is known to be true, customs are assumed to originate in enactments. This position seems to originate in a responsum by Hanania Gaon, Shaarei Tzedek ::, quoted in Adret’s responsum : in the name of Sherira Gaon. Adret’s responsum : is an extended discussion of the various categories of custom. . See Novellae, Bava Batra b, s.v. ha. . See Tashma’s discussion of this responsum in “The Literary Work of Joseph Ha-Levi ibn Migas,” pp. ‒.

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. Maimonides’ phrasing of law : of the Laws concerning Sales cited earlier echoes this formulation but restricts such activity to “prominent scholars.” . This term is discussed in Chapter , note . . Adret’s view is thus at odds with that of ibn Migash in responsum , cited earlier, which sees this as applying only to “established judges.” . The term tikkunei ha-medinah may also be a combination of tikkun olam in the Maimonidean sense with hilkhot/hanahgot ha-medinah in the Nahmanidean sense (cf. Adret’s use of takkanat ha-olam in Responsa, :). Taken together, they yield an area of activity the importance and legitimacy of which are “clear”—virtually self-evident. . The verb tikkun means “ordering the polity to promote its perfection.” I have therefore translated it as either “ordering” or “perfecting,” depending on the context. . Tosefta Sanhedrin :; BT Sanhedrin b, Bava Batra b‒a; Maimonides, Code, Laws concerning the Sanhedrin :. . See Maimonides, responsum . See also Code, Laws concerning the Sanhedrin :. Chapter  can be read as an interpretation of this dictum and is a possible source for Adret’s interpretive move. The concept is also found in Adret, Responsa, : and :. . See BT Bava Kama a ff., and Katz, “Rabbinical Authority.” . See BT Sanhedrin b. . On the role of rhetoric in responsa, see H. Soloveitchik, “Maimonides’ ‘Iggeret Ha-Shemad,’” pp. ‒, and Soloveitchik, The Use of Responsa, pp. ‒, ‒. Despite the circularity of Adret’s argument, its recurrence over a number of responsa leads me to take it at face value. . On Adret’s use of “breaching” and “mending the fence,” see Morell, “The Constitutional Limits of Communal Government,” pp. ‒. . Judicial powers were often seen as an appropriate model for communal authority; see Elon, “Authority and Power,” pp. ‒, and Blidstein, Political Concepts, pp. ‒. Adret is clearly aware that using judicial powers as a model entails commitment to the very judicial procedures he is attempting to circumvent. . See Chapter . . The Vilna edition reads din torah, but both the Munich manuscript and the earlier printed edition have an abbreviation, d”t, also found in some versions of BT Bava Metzia a, quoted later, which could stand for divrei torah. I consider din torah the correct rendering because of the contrast with lifnim me-shurat ha-din: law is being contrasted with supererogatory acts not mandated by the law. . See Dikdukei Sofrim, Bava Metzia, p.  n.. . Most of the letter is translated into English by Agus in Rabbi Meir of Rothenburg, pp. ‒. . BT Sanhedrin b‒a; Code, Laws concerning the Sanhedrin :‒. . See BT Sanhedrin a: “The following must be saved [from sinning], even at

NOTES TO PAGES 112 –19 187

the cost of their lives: he who pursues his neighbour to slay him . . . ”; Maimonides, Code, Laws concerning Murder and the Preservation of Life :‒. . The translation is my own; pagination follows Adret, “Responsum on Informers.” . In other responsa, Adret tended to accept the Tosafist position that dina demalkhuta dina does not apply in the land of Israel; see Responsa, :, . Based on responsum :, Shilo, Dina De-Malkhuta Dina, p. , suggests a distinction between the specific halakhic category of dina demalkhuta dina and parallel powers that a king of Israel may acquire through the biblical “laws of kings.” In the Responsum on Informers, there is no use of the phrase dina demalkhuta dina, only of dina demalkhuta. Now, although this latter category may be a different one, Adret applies it equally to Jewish and non-Jewish kings, and the powers it refers to far exceed those ordinarily connected with the former. This anomaly is also apparent in Gerondi’s writings; see responsum , p. , and Novellae, Bava Batra a, s.v. aval. . See BT Sanhedrin b; also quoted in Chapter . . In the introduction to the Eight Chapters, Maimonides uses the phrase “Hear the truth from whoever says it” (Ethical Writings of Maimonides, p. ) to justify quoting non-Jewish philosophers in a halakhic work. . In this context, he is referring to the non-Jewish king, but Adret’s ensuing arguments show that the same holds for Jewish kings as well. . See also :, :, . . See Elon, Jewish Law, vol. , pp. ‒. . Responsa :, , , and cf. Perfet . . On the legal authority of responsa literature, see Lifshitz, “The Legal Status of the Responsa Literature.” . See, e.g., Adret’s responsum :.

CHAPTER 6

. See Silver, Maimonidean Criticism; Septimus, “‘Open Rebuke and Concealed Love,’” pp. ‒; and Halbertal, Between Torah and Wisdom, pp. ‒. . “Maimonides’ systematic works, which imply that Jewish esoteric traditions were lost and that he rediscovered them, forced the Kabbalists to crystallize the pieces of esoteric traditions found in their hands and to formulate them into a more comprehensive system” (Idel, “Maimonides and Kabbalah,” p. ). . This is not to deny any impact of Kabbalah on these thinkers; Harvey, “Kabbalistic Elements,” for example, argues for the impact of kabbalistic themes on Crescas’s thought. An example of a conscious attempt to arrive at some reconciliation, if not synthesis, is the approach of Gerondi’s older contemporary, Yom Tov Ishbili, the Ritba, who studied under Adret. His Sefer Hazikaron is an attempt to refute Nah-

188 NOTES TO PAGES 119 – 25

manides’ critique of Maimonides, while asserting the truth of the former’s Kabbalah and the integrity of the latter’s philosophy; see pp. ‒. . Septimus, Hispano-Jewish Culture, p. ; cf. Silman’s characterization of Halevi’s antiphilosophical position in Philosopher and Prophet, p. . . See Septimus, “Communal Struggle in Barcelona,” pp. ‒, and Septimus, “Piety and Power,” pp. ‒. On the place of Nahmanides and Adret in the Barcelonean school of Kabbalah and their relation to the Geronese school, see Scholem, Origins of Kabbalah, pp. ‒; Idel, “We Have No Kabbalistic Tradition”; and Idel, “Nahmanides.” . As attested to by the following quotation in his name by his student and friend Isaac b. Sheshet Perfet (Rivash): “Nahmanides, of blessed memory, had over-involved himself in his belief in matters of Kabbalah” (, b). See Idel, “We Have No Kabbalistic Tradition,” pp. ‒, and Idel, “Nahmanides,” pp. ‒. It is ironic that Gerondi criticizes Nahmanides for not being conservative enough. . Feldman, Introduction to Derashot, pp. ‒, is undecided about this. Saperstein, Jewish Preaching, p.  n., argues “that they are in a sermonic form is clear, that they influenced subsequent preachers is beyond doubt, yet they contain no indication that they were ever preached in their present form, and may well be merely literary treatises.” Note, however, Gerondi’s fear that “our words on this matter will turn out to be as the rest of the sermons at the time of a wedding” (Derashot, p. ); this seems to imply that the homiletic form is more than just a literary device. Further, Gerondi states: “And I say that the matter at hand today is of relevance and I have therefore opened [the sermon] with this [Torah] portion” (p. ), which also suggests oral presentation. . See Ravitzky, History and Faith, pp. ‒. . Hithakmutam ha-ra. However, Gerondi begins his Commentary on the Bible by arguing against the position of the “greatest of philosophers,” namely, “the Greek [philosophers],” concerning the eternity of the world. Though the term hithakmut has a pejorative sense, medieval sources also use it to denote reasoned thought. See ibn Ezra’s commentary on Exodus : and Judah ibn Tibbon’s translation of Kuzari :, . . Referring approvingly to geometry, physics, and biological science in his Commentary on the Bible, Gerondi speaks of “investigators [hokrim] who have verified the matter” (p. ); see also pp.  and . Rejecting Maimonides’ interpretation of Genesis :, he commends the opinion of “the wise men of the Greeks . . . the Greek philosophers” on the four elements (p. ); he similarly cites the “wise men of the Greeks” (p. ) as proof of certain biological data. Gerondi’s attitude is very similar to that expressed by Adret in responsum :. . Cf. Kuzari :. See the quote from Hippocrates in the Sermons, p. ; Gerondi was a practicing physician.

NOTES TO PAGES 125 – 26 189

. Contrast Adret’s milder formulation at the end of his discussion of prophecy and miracles in Responsa, :. . Cf. Adret, Responsa, :, , ; :. See also Gerondi’s explanation of Deuteronomy : in Derashot, p. ; cf. Adret, Responsa, : (p. b). . Kirschenbaum, “The Role of Punishment,” p. . . Ibid. . In addition to responsa already cited, see the description of the officers in : and the vivid portrait of community governance Adret recommends to Rabbi Jacob Crisp of Toledo in Responsa, :. . Reproduced in Perfet, responsa  (Perfet’s question) and  (Gerondi’s reply). . See Novellae, Bava Batra a, sv. ha-kol, and Feldman, Introduction to Derashot, pp. ‒. . See Kirschenbaum, “The Role of Punishment,” pp. ‒. His position is not altogether without precedent in the halakhic literature. For example, Isaiah Horowitz, arguing that Gerondi’s elucidation of the Israelite constitution is “clearest of all,” focuses principally on hora’at sha’ah; unfortunately, he does not elaborate on its scope (Shnei Luhot ha-Berit, vol. , c‒d). See Rosenberg, “More on ‘For the Most Part,’” p.  n., for a possible interpretation. . See the formulation in Code, Laws of the Foundations of the Torah :. . The biblical penalty for theft: “But if what he stole . . . is found alive in his possession, he shall pay double” (Exod. :). . In a letter to Herzog in Herzog, Constitution and Law, vol. , p.  n.; JPT, p. . . Blidstein, “‘Ideal’ and ‘Real,’” p. . . Rosenberg, “More on ‘For the Most Part,’” p. . . See Deuteronomy :: “neither add to it nor take away from it.” . Meiri, Bet ha-Behirah, Avot, p. . . For Meiri’s understanding of din ha-malkhut as an independent body of law, see Chapter . . That we may question the success of Gerondi’s alternative arrangement does not detract from the innovation of his acknowledgment of two legal systems. . See Guide :, . . Code, Laws of the Foundations of the Torah :, and Guide, Introduction to the First Part, pp. ‒. . See, for example, Code, Laws of the Foundations of the Torah :‒. . Guide :‒; Halbertal and Margalit, Idolatry, pp.  ff. . See Guide :‒, . . Cf. Kuzari :. Adret makes a similar argument in responsum :, contrasting unaided reason (svara) with tradition (kabbalah). He equates the latter with prophetic knowledge, arguing for the primacy of tradition. On the contrast between rea-

190 NOTES TO PAGES 126 – 40

son and tradition in the Nahmanidean school, see Idel, “We Have No Kabbalistic Tradition,” pp. ‒. . Saadia, Book of Beliefs and Opinions, Introduction: , p. . . Guide :. Cf. Adret, Responsa, : (p. b). On Crescas’s reported interest in magic and theurgic activity, see Harvey, “Kabbalistic Elements,” p. . . Gerondi, Sermons, p. . For an analysis of Gerondi’s position, see KleinBraslavy, “Verite Prophetique.” Crescas basically follows Gerondi on this issue, but his work has Kabbalistic undertones; see Harvey, “Kabbalistic Elements,” pp. ‒. . Gerondi, Sermons, pp. , . On this term, see Wolfson, Studies in the History of Philosophy, vol. , pp. ‒; Pines, “Shi’ite Terms and Conceptions,” pp. ‒; and Silman, Philosopher and Prophet, pp. ‒. . Gerondi also disputes Halevi’s understanding of the role of reason in creating and interpreting the halakhah (:); see Sermons, pp. ‒ and ‒, where Gerondi follows Nahmanides’ commentary on Deuteronomy :. . Contrast the critique of the philosopher’s morality in Kuzari :. . Gerondi himself does not make any explicit provision for cases of conflict. Abravanel maintains that according to Gerondi, “the king may void the law of a judge but not vice versa” (Commentary on the Prophets, Judges, Introduction, b). But Abravanel is an antimonarchist and thus has an interest in portraying Gerondi in an objectionable light. . Saperstein, Jewish Preaching, p. . This possibility was also suggested by Borenstein: “The Ran, of blessed memory, did not say this for the purpose of deciding the halakhah, but [presented it] only as a homily, and was not too rigorous about the details” (Responsa Avnei Nezer, :, p. ). . Indeed, in the twentieth century, Chief Rabbi Herzog, though admitting that a constitutional arrangement such as Gerondi’s would solve many of the urgent problems he faced as chief rabbi of the State of Israel, insisted that this conception was altogether untenable. Based on his narrow reading of the king’s penal prerogatives, he declared: “I maintain my position that it is inconceivable that the laws of the Torah should allow for two parallel authorities—like the courts of law and the courts of equity, the latter stemming from the authority of royal law, that operated in the past in England. . . . According to [Torah law], there is no basis for this assumption of the double or parallel jurisdiction of two authorities” (Constitution and Law, vol. , pp. ‒; JPT, p. ). Herzog is also wary of Gerondi’s strategy of elevating the Torah; see Constitution and Law, p. . . This appears as an explicit distinction in Crescas, quoted in Ravitzky, History and Faith, p.  n.. . See Sifre, Deuteronomy . . Kuzari :. . It could be argued that Gerondi did not envisage a harmonious balance between the king’s law and the Torah but rather sought to imbue his polity with per-

NOTES TO PAGES 141– 49 191

manent tension, on the premise that only an ongoing tension between absolute and temporary justice can ensure the healthy functioning of society. This argument undercuts the interpretive assumption I have been employing, in which social order requires a monolithic conception of justice and monolithic legal institutions. But it reflects a distinctly modern approach to political theory, and I am reluctant to attribute this view to Gerondi. If we place Gerondi in the tradition of Halevi, who adopts Plato’s conception of the well-ordered polity as that which has alleviated all tension, each component knowing its place, the modernist interpretation is particularly hard to defend; see Kuzari :‒.

CONCLUSION

. Cf. Katz, A Time for Inquiry, pp. ‒. . Discourses III:, p. . . For an English translation of his critique of monarchy, see JPT, pp. ‒. Baer puts forward a humanistic interpretation of Abravanel (“Don Isaac Abravanel”); this approach to Abravanel is criticized by Strauss, “On Abravanel’s Philosophical Tendency,” especially pp. ‒, and following him Netanyahu, Don Isaac Abravanel, pp.  ff. . Netanyahu, Don Isaac Abravanel, p. . . Abravanel, Commentary on the Torah, Genesis : (a). . Ibid., : (a). . Commentary on the Prophets, Introduction to Isaiah (a). . Abravanel, Commentary on the Torah, Deuteronomy : (a). . Abravanel, Yeshu’ot Meshiho a. . Ibid., a. . TTP, pp. ‒. . See Lorberbaum, “Making Space for Leviathan.” . Hobbes, Leviathan, p. .

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208 BIBLIOGRAPHY

NAME INDEX

In this index “f ” after a number indicates a separate reference on the next page, and “ff ” indicates separate references on the next two pages. A continous discussion over two or more pages is indicated by a span of numbers. Passim indicates a cluster of references in close but not consecutive sequence. Arama, Isaac, n Abravalia, Joseph, f Abravanel, Isaac, , , n, n, n; critique of politics, ff, , n Absalom,  Abulafia, Meir b. Todros Halevi, , , n Adam, , n Ibn Adret, Solomon b. Abraham (Rashba), f, , , , f, , ; conception of politics, ‒, f, , f, n. Works: Responsa :, n; :, , n; :, n; :, n; :, ; :, ff, , , ; :, ‒, ; :, n; “Responsum on Informers,” ‒ Ahab, n Akiva, Rabbi, , , , n Albeck, Hanoch, n Albeck, Shalom,  Albo, Joseph, 

Alfasi, Isaac, , n, n Anatoli, Jacob,  Anderson, Perry, n Aristotle, f, , , ‒ passim, , , nn,, n, n, n; on equity, ‒, n, n, n. Works: Nicomachean Ethics, , ; Politics,  Asher b. Yehiel,  Atlas, Samuel, n Augustine, n, n Baer, Isaac, , n Ibn Bajja, Abu Bakr Muhammad,  Baron, Salo W., n Ben-Hadad, n Ben-Menahem, Hanina, n Berman, Harold J., ,  Berman, Lawrence V., , n, n Blidstein, Gerald, f, f, n, n, n; “two tiers,” , . Works:

209

Political Concepts in Maimonidean Halakhah, , , , n Borenstein, Abraham, n Buber, Martin, , f, n Caesar,  Chavel, Charles B.,  Cohen, Hermann, n Cohen, Mark, n Crescas, Asher, f, nn‒ Crescas, Hasdai, , n Crisp, Jacob, of Toledo, n Ibn Daud, Abraham, . Works: The Book of Tradition, n; The Exalted Faith, f, n David, f, f, , , n Duran, Profiat (Efodi), f, n Duran, Shimon b. Zemah, n Efron, Joshua, n Eleazar b. Azariah,  Eliezer b. Jacob, ,  Elijah of Vilna, n Englard, Itzhak, n Enosh, ‒ Ibn Falaquera, Shemtov, f Al-Farabi, Abu Nasr Muhammad, , f, n, n. Works: The Virtuous City, , , n Finkelstein, Louis,  Funkenstein, Amos, n, n Galston, Miriam, , n, nn‒,, n, n Gerondi, Jonah,  Gerondi, Nissim b. Reuben (Ran), ff, n, n; conception of politics, , f, ‒, , n; critical of Kabbalah, , n; critical of philosophy, ‒, n; and science, f, , n. Works: Commentary on the Bible, nn‒; Novellae, n; Responsa, , f; , ; Sermons (Derashot ha-Ran), ; , , ; , ; , ;

210 NAME INDEX

, , f; , f, ‒, , ‒, ; ,  Gerundi, Jonah,  Goitein, S. D.,  Grodzinsky, Chaim Ozer,  Gutenmacher, Daniel,  Habiba, Joseph, , n Halevi, Aaron, ,  Halevi, Judah, ‒ , , , , , n. Works: Kuzari :‒, , n; :‒, ; :, n; :‒, f; :, , ; :, ; :, ; :, n; :, n Hananel, Rabbenu, n Al-Harizi, Judah, n Hartman, David, , n, n, n Harvey, Zev, n, n, n Herod, n Herzog, Isaac, , n Hippocrates, n Hobbes, Thomas, f, , , , f Horowitz, Isaiah, n Idel, Moshe, n Isaiah, ‒ Ishbili, Yom Tov, , n Jeroboam, f, n Jesus,  Joab,  Johanan, Rabbi,  Jonah of Girona, f Josephus Flavius, f, n Joshua, ff,  Kant, Immanuel, , n Kaspi, Joseph, n Kaufmann, Yehezkel, n Kimchi, David, f Kirschenbaum, Aaron, ‒, , n, n Korah,  Lapidus, Ira, n Locke, John. Works: Letter Concerning

Toleration, ‒, ; Second Treatise of Government,  Machiavelli, Nicollo, . Works: The Discourses, ; The Prince,  Macy, Jeffrey, n Maimonides, ff, n; conception of politics, , , f, , , ff, , ‒, n; as monarchist, , f, , , n; naturalization of politics, ff, , ; as proto-Hobbesian, ; on talmudic precedent, n. Works: Commentary on the Mishnah, Horayot :, ; Makkot :, , ; Sanhedrin :, n; Eight chapters, n, n The Guide of the Perplexed, , ; Introduction, ; :, f, ; :, f, , ; :, n; :‒, n; :, , , n, n; :,ff, ff, ‒, , , , n; :, n; :, ff; :, ; :, , n; :, , , , , f, , n; :, n; :, ‒; :, n; :, , n; :, , , , n, n; :, n; :, n; :, n, n; :, , , nn,; :, f Medical Aphorisms, n Mishneh Torah, ,  Introduction, n Laws concerning Damages by Chattels, :, n Laws of the Foundations of the Torah, :, n; :‒,  Laws concerning Idolatry, :, ‒; :,  Laws of Kings, ; :, n; :‒, n; :, ; :, ; :, ; :, ; :, ; :, , ; :, , ; :‒, ; :, , , , , ; :, ; :, , ff; chapter , ; :, ff; :, ; :, n; :, ; :, ; :, n; :, f, n; :, ; :, ; :, ; :, , 

Laws concerning Murder and the Preservation of Life, :‒, n; :,, , ; :‒,  Laws concerning Neighbors, chapter , ; chapter , ; :, , f Laws concerning Original Acquisition and Gifts, :, ; :,  Laws concerning Rebels, :, , n; :, , ; Laws concerning Repentance, :,  Laws concerning Robbery and Lost Property, :, ; :, f; :, , ; :,  Laws concerning Sales, :, , n; :, ; :, n, , n Laws concerning Sanhedrin, :‒, ; :, ; :‒, n; :, n; :, n, n; :, n Laws concerning the Study of the Torah, :,  Laws concerning Transgressions through Error, :, , ,  Responsa, , n; , n; , n; , n Treatise on Logic, , n, n Meir of Rothenberg, , ,  Meiri, Menachem: Bet ha-Behirah, , , n, n Mendelssohn, Moses,  Mendenhall, George E., n Ibn Migash, Joseph, , , , n, nn‒, n Mohamed,  Moses, , , f, , , n Nahlon, Aharon, , , n Nahmanides, f, , , ‒, ‒, f, n, n. Works: Commentary on the Torah, f; Mishpat ha-Herem, ff, ; Responsa, , n; , n Narboni, Moses, n Papa, Rav, ,  Pedro III, 

NAME INDEX 211

Perfet, Isaac b. Sheshet, , nn,, n, n Plato, , , , , , n. Works: Laws, , n, n; Republic, , ; Statesman,  Rashi, n Ravitzky, Aviezer, n, n Rosenberg, Shalom,  Rosenthal, E. S., , n Saadia Gaon, . Works: Books of Beliefs and Opinions, Introduction:,  Saladin, n Samuel, , , f Saperstein, Marc, , n Saul,  Scholem, Gershom, , n, n Schorsch, Ismar, n Septimus, Bernard, D., , n Shapur, King,  Ibn Shem Tov, Shem Tov, n, n Shilo, Shmuel, f Shimon b. Gamaliel, , , 

212 NAME INDEX

Shimon b. Shatah,  Solomon, , ,  Spinoza, Baruch, , , , , f . Works: TTP, . See also Sovereign supremacy Stern, Joseph,  Strauss, Leo, , , , n. Works: The City and Man, ; Persecution and the Art of Writing, n; Philosophy and Law, , , n Talmon, S., n Tcherikover, V., n Ibn Tibbon, Judah, , , n Ibn Tibbon, Samuel, f Twersky, Isadore, , n Weber, Max, n Weiler, Gershon, . Works: Jewish Theocracy, , ,  Weinfeld, Moshe,  Yannai, King, , ,  Zerhaiah Halevi, 

GENERAL INDEX

Anarchy, ,  Anitnomianism,  Aristocracy, f, 

Criminal law, , , ‒, f Custom, ; and law, ff, f, nn‒ “Custom voids halakha,” , 

Barcelonean school, , , , , n

Dat, ff, , nn,, n; she-lo ka-dat,  Democracy, ,  Destruction of civilized society (hashatat yishuvo shel olam), , ,  Din, f, ; din Torah, ; din ha-melekh / ha-malkhut, f, ‒, , , , , , n, n; and psharah, ; she-lo ka-din, , , n Dina demalkhuta,  Dina demalkhuta dina (“the law of the kingdom is law”), , , , f, , , n, n, n Disobedience, ,  Divine influence, , ‒, ff Divine law. See under Halakhah; Law; Royal law; Torah

Caliph, n Cannon law, xiii Capital punishment, , , , ‒, , , , n, nn, City, , , , n, n, n. See also Town; Townspeople Civil law, , . See also under Law, ritual vs. civil Community, , , ; and corporation, n; of faith, ; holy, , . See also Kahal Consent, ff, , , n Constitution, , ; conflicts and tensions, , ff, , , , ; law, , , ; politics of, xiii; theory of, , , . See also under Monarchy, constitutional; Polity, constitutional arrangements Corporal punishment, , f, , n Courts, f, f, f, ; discretionary powers of, , , , n. See also Sanhedrin

Emergency measures, , , , f, ,  Equality, f, , n Equity, ‒, n. See also under Aristotle Exilarch, n

213

Exile, xiv, , , , , n, n Expulsion from Spain,  Extralegal powers, f, ‒ passim, , , , , , , , , n God, ; law of, , ; as king, , , , f; as political agent, ; as sovereign, . See also Divine law; Theocracy Good men of the city/town,  Government, , f, ff, ‒, , , , ff, ff, , , , ‒ passim; forms of, f, f, , , , , n; self-government, . See also Ruling Halakhah, , , ; Ashkenazic, , , n; ideal and social,  Halakhic polity, , ,  Happiness, , , , f, n. See also Human beings, perfection of Herem (ban), ‒, , , n Holy spirit, , n Hora’at sha’ah (temporary decisions), , , n Human beings: as anarchic, ; lacking selfsufficiency, , ; as microcosm, ; perfection of, , , , , f, , , , , ; as political, , , , , , ; as rational, f, ; as social, , , . See also Happiness Ideal and Real, , , , , , ff, , n Idolatry, , ‒; politics as, f, n Informer, ff Islamic law, xiii, n Jerusalem, ,  Jewish law, xiii, , . See also Halakhah; Torah Jewish Political Thought, xiv, n Jewish State, ; See also State of Israel Judges, Book of, , n Justice, , ‒, f, , , f, , , , , , , nn‒; absolute and political, , , , f, f, f, , , , n. See also Aristotle, on equity

214 GENERAL INDEX

Kabbalah, , f, , n, nn‒, n, n Kahal, ‒, f, n; autonomy of, xiv, f, ; discretionary powers, ‒ passim, ; enforcement powers, f, , ; as legal personsa, ff, ; legislation by, , , , ff, f, , n; as polity, f, f, , , f, f; and rabbi,  Kings: accountability of, , ff; authority of, ; autonomy of, , ; beyond the law, , ; deification of, , n; discretionary powers of, , , , , , ; House of David, f, , f, , , f, , , n, n; of Israel, , , ff, f, ff, , , , , , nn,; limits upon, , ; non-Jewish, ff, , ; prerogatives of, ‒ passim, , , , n; right to punish, , ; right to tax, , ‒; and Sanhedrin, ‒, , f, . See also Monarchy; Royal law; Sovereign supremacy; Sovereignty King’s law, , , f, , , , , n. See also Royal law Knowledge, ‒, nn‒, n Law: analytic conditions of, , ff, ; annulment of, f, n; and commands, , ; commensurability of, ; conventional, ; correction of, , , n; definition of, , , ; as good, , ; grading, ff; ideal, n; as just, ff, , , ; legal systems, , , , , f, , n; limitations of, ‒, , , ; limits of, , , , , , ; and medicine, f, n; and politics, , , , , , f, f, n; preeminence of, ; primacy of, ; rational, , f; revealed, xiv, ; ritual vs. civil, f, , , ; rule of, , , , , , f, , , , n; suspension of, ; true and just vs. political, f, , ff, . See also Halakhah; Royal law; Torah

Legislator, ; prophet as, ,  Legislation, , ‒, , , , ff, , n, n. See also under Kahal Legitimacy, , , f, ,  Magic,  Maxims: Breach the fence of the world, f, , n Even a gang of robbers must have a kind of justice among them, f, ,  The judge follows only what he sees with his eyes,  Man is political by nature, ff, , , , , , , ,  Needs of the hour, , , f, f, ,  A person cannot render himself an evildoer,  Medinah,  Messiah, ‒ Messianic times, , , ; and law, ,  Messianism, ; doctrines of, , ff, n; fantasies, f Monarchy, , ; constitutional, ; creation of, , n; debate over, , , ; end of, ; heredity principle, f; and law, xiii, ; mixed,  Nature, , , n; human, ; state of, f, f Natural law, , , n Noahide law, , , , f, nn‒, n Nomos/ Nomoi, , , f, ff, , , , , nn,. See also under Polity Philosopher-king, ,  Philosophy, , , , f, , , n; anti philosophical, , , , ,  Polis, f, n Political association (ha-kibbutz ha-medini), , , , , n Political agency, xiii, , , f, , n Political language, , f Political science, , , , , , n

Political society, , , , ,  Political theology, ,  Politics, , , , , ; as aberration, ; autonomy of, , , , , , , , , ; conceptions of, , , f, , , , , , ; distinctness of, ; definition of, f, ; justification of, , ; legitimacy of, , ; as natural, , ; necessity of, , , ; political vs. social, ff; and power, ; preceding law, , , , , , , , f; priority of, , ; and rationality, , ; rejection of, n; and ritual, ; as robbery, ‒, ; transcending of, , , n. See also Idolatry; Law; Ruling: Secularization; Theocracy Polity: best regime, ; constitutional arrangements of, , , , , ‒, n, nn,; divine, , , , ; grading of, , ff; ideal, , , f; messianic, ‒, , f; natural, , , ; nomoitic, , , n; as a whole, f, , ,  n. See also Halakhic polity; Medinah Power, f, , , f, , , , , , f, , , , , , , n, n, n, nn,; abuse of,  Presumption, , n Priesthood, , n Prominent person/scholar (adam hashuv), f, , nn‒, nn, Prophet, ,  Prosperity,  Prudence, , , f, , , , f Public, , n; domain, ; members of, ; law, , , ‒; needs, ; works, , , ,  Pursuer (rodef ), , n Rabbinate: professionalization of, n, nn‒ Rationalism, . See also Philosophy Rebellion, ,  Religion, ; and law, ; and politics, , , n; and state, xiiif. See also Dat Republic, , n

GENERAL INDEX 215

Republican,  Rhetoric, , n Ritual, ‒ Royal law, f, f, ‒, f, f, ‒, , ff, , ff, f, , , , , n. See also Kings; Law Ruler, f, , , ,  Ruling, f, , , , . See also Government Sabbatianism,  Sanhedrin, ff, , ‒ passim, , , ff, , f, f, n; and capital punishment, , ff, ; and discretionary powers, ‒, , ,  Scarcity, ,  Secularization: definition of, f; of culture, , ; of politics, , f, f, , , , , , , f, ff, f Sermon, as genre, , n, n Society, f Sovereignty, ff, , , f, , , , ; conflicts of, , ,  Sovereign supremacy, , , , , f State of Israel, , , n, n Sultan, ,  Supererogation, f, n, n Takkanot ha-Kahal. See Kahal, legislation by

216 GENERAL INDEX

Taxation, ‒, f Tax law, ‒ Theocracy, xiii, ff, ; conception of politics, f, f, ; critique of politics, , . See also Buber; Idolatry Tikkun ha-medinah/siddur medini, , ff, f, , , f, ‒, , , , nn‒ Tikkun olam, , ‒, , , , n, n Torah, , ; as law, , ; as divine law, , f, , ; sacral nature of, , , , ; Torah law, f, , , , f, , , f, , , , , f, , ; transgression of, . See also Halakhah; Law; Royal law Tosafists,  Town, , f. See also Kahal; City Townspeople, , ‒, ‒ Tyranny, f,  Utopian vision, , ff War, , f, , , n Warning, , , , , n Wisdom, , ; rule of, , , , n, n Zionism, n

CONTRAVERSIONS jews and other differences

Menachem Lorberbaum, Politics and the Limits of Law: Secularizing the Political in Medieval Jewish Thought Stephen D. Moore, God’s Beauty Parlor: And Other Queer Spaces In and Around the Bible Rela Mazali, Else Where: Maps of Women’s Goings and Stayings Shelly Matthews, First Converts: Rich Pagan Women and the Rhetoric of Mission in Early Judaism and Christianity Gabriella Safran, Rewriting the Jew: Assimilation Narratives in the Russian Empire Galit Hasan-Rokem, Web of Life: Folklore in Rabbinic Literature Charlotte Elisheva Fonrobert, Menstrual Purity: Rabbinic and Christian Reconstructions of Biblical Gender James A. Matisoff, Blessings, Curses, Hopes, and Fears: Psycho-Ostensive Expressions in Yiddish, second edition Benjamin Harshav, The Meaning of Yiddish Benjamin Harshav, Language in Time of Revolution Amir Sumaka’i Fink and Jacob Press, Independence Park: The Lives of Gay Men in Israel Alon Goshen-Gottstein, The Sinner and the Amnesiac: The Rabbinic Invention of Elisha ben Abuya and Eleazar ben Arach Bryan Cheyette and Laura Marcus, eds., Modernity, Culture, and ‘the Jew’ Benjamin D. Sommer, A Prophet Reads Scripture: Allusion in Isaiah – Marilyn Reizbaum, James Joyce’s Judaic Other