!he jeuish Ioliti.al !

raoitiou
riirors Michael Walzer
Menachem Iorberbaum
Noam |. Zohar
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!he |evish
Political
Tradition
voitxr i Authority
riirors
Michael Walzer
Menachem Iorberbaum
Noam |. Zohar
coriiror
\air Iorberbaum
Yale |ui:ersity Iress
Nev Haven and Iondon
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Published vith assistance from the Castle lund, endoved by |ohn K. Castle to
honor his ancestor the Reverend |ames Pierpont, one of \ales original founders,
and administered by the Program in Lthics, Politics, and Lconomics at \ale
University.
Copyright :ooo by \ale University.
All rights reserved. This book may not be reproduced, in vhole or in part,
including illustrations, in any form (beyond that copying permitted by
Sections o; and o: of the U.S. Copyright Iav and except by revievers
for the public press), vithout vritten permission from the publishers.
Designed by Sonia I. Shannon. Set in Bembo type by Tseng Information
Systems, Inc., Durham, North Carolina. Printed in the United States of
America by Ldvards Brothers, Ann Arbor, Michigan.
The Iibrary of Congress has cataloged the hardcover edition as follovs
The |evish political tradition editors, Michael Walzer, Menachem Iorberbaum,
Noam |. Zohar.
p. cm.
Includes bibliographical references and indexes.
Contents v. . Authority.
isix o-oo-o;:::-o (alk. paper)
. |evsPolitics and government. :. |udaism and politics. . |udaism and
state. . IeadershipReligious aspects|udaism. I. Walzer, Michael.
II. Iorberbaum, Menachem, ,:. III. Zohar, Noam.
iso .J; :ooo
:o'.o::':,odc: ,,-o,;
A catalogue record for this book is available from the British Iibrary.
The paper in this book meets the guidelines for permanence and durability of
the Committee on Production Guidelines for Book Iongevity of the Council
on Iibrary Resources.
isix o-oo-o:o- (pbk. alk. paper)
o , : ; o :
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. . . ve see it as in a dream.Psalm :o
To the halut:imthe pioneersvho paved the roads connecting
dream and reality
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Couteuts
!a|le oj Couteuts jor 1olumes II1 xi
Ioreuoro xiii
i:vi i n:rrx:x
Ireja.e auo A.luouleogmeuts x:i
Iutroou.tiou. !he jeuish Ioliti.al !raoitiou xxi
xi cn:ri w:izrr
!he 8ele.tiou, !rauslatiou, auo Ireseutatiou oj the !exts xxxii
xrx:cnrx iorirri:tx :xi xo:x J. zon:r
Lau, 8tory, auo Iuterpretatiou. Reaoiug Ra||iui. !exts xxxix
xi cn:ri ri sni:xr
List oj A||re:iatious l:i
Volune I. Authority
Introduction
Chapter :. Co:euaut. Coos Lau auo the Ieoples Couseut ,
Introduction
Biblical Covenants
Covenant and Consent
The Scope of Covenantal Commitment
Chapter .. Re:elatiou. !orah auo Reasou ,
Introduction
Natural Iav, Reason, and Revelation Classical Discussions
Revelation, Morality, and Ritual Modern Struggles
Chapter ,. Kiugs :o:
Introduction
Biblical Vievs of Monarchy
The Constitution of Monarchy
Critiques of Monarchy
The Realm of Torah and the Realm of Politics
vii
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viii Contents
Chapter ,. Iriests :
Introduction
In the Bible Holy Priests
The Second Temple Ruling Priests
lrom Priests to Sages
Chapter ,. Irophets :,,
Introduction
The Prophetic Calling
Prophecy as Political Challenge
Gods Word Truth, lalsehood, and Interpretation
A Medieval Prophet The Abulaa Controversy
Chapter . Ra||is auo 8ages .,,
Introduction
Custodians of the Iav
Beyond Prophecy
Authority of the Oral Iav
Medieval Arguments Karaites and Rabbanites
Modern Concerns Halakhic Innovation and Rabbinic Authority
Chapter . Coutro:ersy auo Disseut ,o
Introduction
Majority and Minority
The Individual Knovledge and Responsibility
The Rebellious Llder Institutional Authority
Iiving vith Disagreement
Medieval Arguments The Value of Uniformity
Modern Disputes The Problem of Authority
Chapter :. !he Cooo Meu oj the !ouu ,,
Introduction
Talmudic loundations
|ustifying the Kahal s Authority Larly Ashkenaz
Restricting the Kahal s Authority Larly Spain
Developed Doctrines of the Kahal
The Kahal and the Rabbi
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Contents ix
Chapter ,. !he Ceutile 8tate ,,o
Introduction
Iegitimacy of Non-|evish Authority
Modern Disputes Civil and Religious Iav
Chapter :o. !he 8tate oj Israel ,,
Introduction
Iegal and Political Continuity
Religious Signicance of the State
A |evish and Democratic State
Clossary oj ^ames ,.,
Clossary oj !erms ,,,
List oj Commeutators ,,,
Iuoex oj Bi|li.al auo Ra||iui. 8our.es ,,
Iuoex oj ^ames ,,
Ceueral Iuoex ,:
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Couteuts jor 1olumes II1
Volune I. Authority
Chapter :. Covenant Gods Iav and the Peoples Consent
Chapter .. Revelation Torah and Reason
Chapter ,. Kings
Chapter ,. Priests
Chapter ,. Prophets
Chapter . Rabbis and Sages
Chapter . Controversy and Dissent
Chapter :. The Good Men of the Tovn
Chapter ,. The Gentile State
Chapter :o. The State of Israel
Volune II. Menbership
Chapter ::. Llection
Chapter :.. Social Hierarchy
Chapter :,. Gender Hierarchy
Chapter :,. Converts
Chapter :,. Heretics and Apostates
Chapter :. Gentiles
Volune III. Connunity
Chapter :. The Communal Bond
Chapter ::. Husband and Wife
Chapter :,. lamily
Chapter .o. Welfare
Chapter .:. Taxation
Chapter ... Communal Government
Chapter .,. Lnforcement and Coercion
Chapter .,. The Courts
xi
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xii Contents for Volumes IIV
Volune IV. Politics in History
Chapter .,. Iand
Chapter .. War
Chapter .. Lxile
Chapter .:. Politics Without Sovereignty
Chapter .,. Redemption
Chapter ,o. The Value of Political Iife
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Ioreuoro
The quest for spiritual meaning is often identied vith a leap of
the alone to the Alone, vith the religious experience of lonely men and
vomen of faith. The biblical roots of the |evish tradition, hovever, point
tovard a dierent conception, in vhich the central focus of spiritual life is on
community. The covenant vith God is mediated through a collective drama,
the story of a nation deprived of freedom and dignity for generations, de-
livered from its bondage, and brought into a covenant vith God. Only by
participating in the collective liberation from Lgypt can the individual grasp
the meaning of a life rooted in the revelation at Sinai.
History and collective memory are denitive categories in the bib-
lical tradition. The covenant is enacted day after day through the ethical,
ritual, and political forms of community.
Israels loss of sovereignty and its exile from the land did not mean
the end of this community. Rabbinic |udaism developed a comprehensive
vay of life mediated by explicit and precise legal norms that sustained the
collective thrust of |udaic spirituality. Prayers vere formulated in the plural;
important segments of religious vorship vere conditioned upon a quorum
of ten; the celebration of the Shabbat and the festivals vas simultaneously
familial and communal. The lahal provided both a site and a structure for
the common life.
In response to this strong collective orientation, many modern |ev-
ish religious thinkers sought to rescue and reinstate the individual by infus-
ing |udaic spirituality vith an existentialist passion. Their aimvas to shift the
focus of the |evs religious imagination from Mosesthe prophet as politi-
cal and legislative leaderto Abraham and the patriarchs, that is, to religious
gures vho could mediate the intensity of the individuals experience before
God.
But vith the establishment of the state of Israelthe third |evish
commonvealth|evish thinkers have to address again the central issues of
collective existence. Their challenge is to formulate a spiritual vision suited
xiii
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xiv lorevord
to the nev social realities of sovereignty in the vorld. The complexity of the
ethical and political issues that surface vithin the emerging Israeli democracy
require a language rooted in the historical experience of the |evish people
but capable also of shaping the common life of a modern state.
Because of national reneval and empoverment, |evs are no longer
living metaphors for the other, the stranger, the eternal victim. They nov
vield pover in a sovereign state, and so they cannot conceal their moral
failures by blaming others. The rebirth of Israel provides the |evish people
vith a public arena vhere they themselves must take charge, draving on the
strength of their tradition to give a direction to political life and a content
to popular aspiration. Nov |evish values must come to grips vith |evish
pover.
|udaism isnt conned to the privacy of the synagogue, the family,
or the academy of learning. It is novbeing tested in the public square and the
political assembly, vhere the hard questions that face self-governing nations
cannot be ignored. There is no escaping to the privacy of the inner soul or to
some spiritual sanctuary separated from the mundane issues of everyday life
poverty, social velfare, unemployment, relations vith strangers, tolerance,
pluralism, security, and justice. Given the compromises that a full political
life requires, hov can |evs retain a compelling moral vision
If public life in Israel cannot derive moral strength and critical in-
sight from the tradition; if the private and public domains, the vorlds of the
individual and the citizen, are totally isolated from one another, then the
|evish people vill lose their sense of history and identity. If the language of
politics is void of personal meaning, and the language of private life void of
political idealism, ve vill forfeit a historic opportunity to build a society that
overcomes the modern tendency to separate self-realization and communal
commitment.
These volumes on the |evish political tradition ll a pressing need
they aim to retrieve a |evish political discourse concerned vith issues like
authority, distributive justice, membership, and velfare. They help correct
the mistaken notion that the |evish tradition vas concerned only vith ritual
celebration, lavs of purity, daily vorship, the study of Torah. They make the
political arguments that have gone on for more than three millennia acces-
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lorevord xv
sible, so that readers can gain a nev appreciation of the traditional meaning
of covenantal engagementvhich encompassed not only the life of vorship
but also the building of a just and compassionate community.
Da:io Hartmau
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Ireja.e auo A.luouleogmeuts
!he jeuish Ioliti.al !raoitiou has its origin in a conference on |ev-
ish philosophy, religion, and politics, sponsored by the Shalom Hartman In-
stitute in |erusalem, that has been convened every year since ,:. Its par-
ticipants are political theorists, philosophers, lav professors, and historians
brought together vith scholars of the Talmud and of |evish literature gen-
erally. The discussions have ranged videly, but have come back again and
again to political questions of the sort that ve have tried to engage in these
volumes. The idea of a reader vith commentaries arose out of the con-
ference discussions, vhere ve read texts together and argue about vhat the
texts mean and vhat value their arguments have. lrom the beginning, the
project has had strong supportintellectual, nancial, and logisticalfrom
the faculty and sta of the Hartman Institute. We are especially grateful for
David Hartmans guidance and encouragement.
The rst, rough proposal for a book on |evish political thought
vas circulated by Michael Walzer in ,:;. Menachem Iorberbaum joined in
launching the project in ,:, and played the major role in eshing out the
proposal and producing the rst long list of readings; he is responsible for
the translations of our medieval and modern texts. Noam Zohar has vorked
on the project since ,,, helping to revise, supplement, and reorganize the
list and undertaking the translation of all our talmudic and midrashic texts.
\air Iorberbaum has been involved since ,, in further revisions and re-
organizations. The introductory essays for all the chapters vere drafted by
Michael Walzer and then revritten vith the benet of comments and criti-
cisms from the other coeditors. Headnotes and footnotes vere the primary
responsibility of Menachem Iorberbaum and Noam Zohar; the glossaries
vere the primary responsibility of \air Iorberbaumin all cases, vith the
advice and criticism of the others. The choice of commentators vas a joint
responsibility. We are grateful to Michael lishbane for vriting one of the
introductory essays to the vork as a vhole.
Originally recruited as a translator of medieval texts, Ari Ackerman
has also functioned as a key adviser on many other textual matters and has
xvi
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Preface and Acknovledgments xvii
taken responsibility for the consistency of all our translations. Ahost of other
friends and colleagues have helped vith advice and criticism, telling us about
their favorite texts, advising us on editorial matters of all sorts. We mention
here only a fev vhose support vas critically important to us Menachem
Brinker, Moshe Halbertal, and Sidney Morgenbesser.
The project has required and received a great deal of nancial sup-
port. The Institute for Advanced Study in Princeton, vhere Michael Walzer
is a professor, provided funds to bring each of the coeditors to Princeton for
tvo or three years of residence and research. A grant fromthe Gladys Delmas
loundation sustained our vork for a critical year. The National Lndovment
for the Humanities paid for most of the translations and a good deal of the
nal editing of the texts. The Castle lund at \ale University provided a sub-
sidy for the publication of all four volumes of !he jeuish Ioliti.al !raoitiou.
We are deeply indebted to the men and vomen vho manage these insti-
tutions and funds, a number of vhom have taken a sympathetic interest in
our vork; vithout them ve could not have seen it through to completion.
We can single out only tvo of them here Patricia Iabalme of the Delmas
loundation and Ian Shapiro of the Castle lund committee at \ale.
We are honored by the participation of the commentators vhose
critical essays appear in these volumes. Their contributions express a strong
commitment to our larger enterpriseto make this tradition of political
thought vivid and accessible, a subject for engagement as vell as study.
We are also the appreciative beneciaries of the \ale |udaica Series,
vhose ne translations ve have used vhenever they vere available. Ivan
Marcus, general editor of the series, has even permitted us to publish trans-
lations in progress, vith the agreement of the translators.
Grateful acknovledgment is made for permission to reprint selec-
tions from the folloving books and journals
Albo, |oseph. Bool oj Iriu.iples, trans. Isaac Husik (Philadelphia, ,:,); re-
printed vith the permission of the |evish Publication Society.
Barak, Aharon. The Iegal Revolution Protected lundamental Rights (He-
brev), Mishpat uMimshal (Haifa University Iav and Government Re-
viev), ,,:.
Bergman, Samuel Hugo. The Absolute Duty to God. In Dialogi.al Ihilosophy
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xviii Preface and Acknovledgments
jrom Kierlegaaro to Bu|er (Albany State University of Nev \ork Press,
,,); rst published in Hebrev by the Bialik Institute, |erusalem, in
,;, under the title HaIhilosophyah HaDialogit meKierlegaaro ao Bu|er,
and printed here vith permission of the Hebrev publisher.
Buber, Martin. Israel auo the 1orlo (Nev \ork Schocken, ,:); reprinted by
permission of the Balkin Agency, copyright ,:, ,o.
Cohen, Hayyim. Issues Relating to the lundamental Iav of Human Dig-
nity (Hebrev), HaIrallit. 8ejer Yo:el (The Iavyer |ubilee Volume),
,,.
Cohen, Herman. Reasou auo Hope. 8ele.tious jrom the jeuish 1ritiugs oj Hermau
Coheu, trans. Lva |ospe (Nev\ork W. W. Norton, ,;); copyright ,;
by the Bnai Brith Commission on Adult Lducation.
Dessler, Lliyahu. Milhta: meLliyahu (Tel Aviv Committee for the Publica-
tion of the Writings of Rabbi L. L. Dessler, ,), vol. ; reprinted vith
the permission of the Committee for the Publication of the Writings of
Rabbi L. Dessler.
Linhorn, David. Responsum on lree Inquiry and Rabbinic Oce. In
W. Gunther Plaut, !he Rise oj Rejorm juoaism. A 8our.e|ool oj Its Luro
peau Crigius (Nev \ork World Union for Progressive |udaism, ,o);
reprinted vith the permission of the publisher.
Llon, Menachem. The Iegal Method in Iegislation (Hebrev), Iyuuei Mish
pat (Tel Aviv University Iav Reviev), ,,; reprinted vith the permis-
sion of Menachem Llon.
Hirsch, Samson Raphael. Colle.teo 1ritiugs ( |erusalem and Nev \ork leld-
heim Publishers, ,,).
|osephus. Agaiust Apiou. In josephus, vol. I, trans. H. St. |. Thackeray (Cam-
bridge Harvard University Press, ,:o); reprinted by permission of the
publishers and the Ioeb Classical Iibrary.
Kook, Abraham Isaac. Crot (,o), Mishpat Coheu (,oo), and Crot haKooesh
(,o) ( |erusalem Mossad Harav Kook).
Ieibovitz, \eshayahu. juoaism, Humau 1alues, auo the jeuish 8tate, trans. Llie-
zer Goldman et al. (Cambridge Harvard University Press, ,,:); vorld
copyright by Schocken Publishing House, Itd., Tel Aviv, Israel.
Ma..a|ees, trans. |onathan A. Goldstein (Garden City, N.\. Doubleday, ,;o);
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Preface and Acknovledgments xix
copyright ,;o by Doubleday; used by permission of Doubleday, a divi-
sion of Bantam Doubleday Dell Publishing Group, Inc.
Maimonides. !he Cuioe oj the Ierplexeo, trans. Shlomo Pines (Chicago Uni-
versity of Chicago Press, ,o); copyright ,o by the University of Chi-
cago.
Mendelssohn, Moses. jerusalem, trans. Alan Arkush (Hanover and Iondon
University Press of Nev Lngland, ,:); copyright ,: by Trustees
of Brandeis University, Brandeis University Press, by permission of the
University Press of Nev Lngland.
Modena, Ieon (attrib.). Kol 8alhal. In Talya lishman, 8haliug the Iillars oj
Lxile (Stanford Stanford University Press, ,,;); reprinted vith the per-
mission of the publishers; copyright ,,; by the Board of Trustees of
the Ieland Stanford |unior University.
Ra||i Meir oj Rotheu|erg, ed. and trans. I. Agus (Hoboken, N.|. Ktav Publish-
ing House, ,;o).
Spinoza, Baruch. !heologi.alIoliti.al !reatise, trans. Samuel Shirley (Ieiden
L. |. Brill, ,,).
!he 1isoom oj Beu 8ira, trans. Alexander DiIella and Margaret Skeham (Gar-
den City, N.\. Doubleday, ,:;); copyright ,:; by Doubleday; used
by permission of Doubleday, a division of Bantam Doubleday Dell Pub-
lishing Group, Inc.
Selections from the folloving texts are reprinted vith the permission of the
\ale |udaica Series and \ale University Press
Llijah ben Moses Basyatchi. Aooeret Lliyahu. lrom Karaite Authology, ed. and
trans. Ieon Nemoy, ,:.
Halevi, |udah. !he Ku:ari, trans. Iavrence Berman and Barry S. Kogan,
forthcoming; used vith the permission of Barry S. Kogan.
Maimonides. !he Cooe oj Maimouioes, Bool Lle:eu. !he Bool oj !orts, trans.
H. Klein, ,.
Maimonides. !he Cooe oj Maimouioes, Bool Iourteeu. !he Bool oj juoges, trans.
Abraham M. Hershman, ,,.
Maimonides. 8ejer haMaooa (The Book of Knovledge), trans. Bernard Sep-
timus, forthcoming; used vith the permission of the translator.
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xx Preface and Acknovledgments
Saadia Gaon. !he Bool oj Beliejs auo Cpiuious, trans. Samuel Rosenblatt, ,:.
Salmon ben |eroham. Bool oj the 1ars oj the Loro. lrom Karaite Authology, ed.
and trans. Ieon Nemoy, ,:.
8ijre ou Deuterouomy, trans. Reuven Hammer, ,:o.
The sta of \ale University Press have been helpful and supportive
ever since ve rst approached them. The Presss readers provided detailed
suggestions, many of vhich ve have adopted. |ohn Covell has been an astute
and kindly shepherd at the Press, and Mary Pasti a vonderfully eective
manuscript editor.
The editors take this joyful occasion to record their debt to the
members of their four families, vho have provided abiding love and steadfast
support for the past many years. Taken together, ve have one living grand-
parent, seven living parents, nine brothers and sisters, four spouses, thirteen
children, and tvo grandchildren. So ve have a strong sense of the familial
character that |evish politics sometimes takes and an even stronger sense that
there is a vorld beyond politics, a vorld of innite human value, vhich good
political arrangements ought to protect. We intend this book to serve all our
generations.
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Iutroou.tiou. !he jeuish Ioliti.al !raoitiou
The association of politics vith the state is pervasive in Western
thought. Without statehood, sovereignty, and coercive pover, there doesnt
appear to be anything like political agency, nor, therefore, any point to the
standard political questions Who are the legitimate and authoritative agents
Where does their authority come from Over vhat group of people does
this authority extend lor vhat purpose, subject to vhat limits, is it exer-
cised One can ansver these questions vith regard to many dierent agents
and groups, from ancient Assyrians to modern Americans. One can ansver
them vith regard to the Israelites of the biblical age and again vith regard to
the citizens of the reestablished Israeli state. But vith regard to the |evs, so
it is commonly believed, no ansvers are possible; the questions dont arise.
After the great revolt against Rome vas suppressed and the Temple destroyed
in ;o c.r., there vas no |evish state for almost tvo thousand years; there
vere no sovereign agents, no coercive povers, no politics to think about
hence, no political thought. lor many vriters, |evs and non-|evs alike, the
apolitical condition of the |evs is, or vas, the most interesting thing about
them.
But politics is pervasive, vith or vithout state sovereignty. The |ev-
ish communities of the diaspora managed to organize a common liferst
in Babylonia, then in Lgypt, Syria, and Rome, then across all of Lurope and
North Africa. They made political choices about the distribution of pover
and inuence; they developed and even enforced a set of lavs, taxed their
members for the sake of security, velfare, religion, and education, and main-
tained relations of one sort or another vith the non-|evish authorities. They
sought to limit the uses of pover by both |evs and non-|evs and to guard
against its corrupting eects. All this required ideas as vell as actions, argu-
ments as vell as decisions. Nor vere the ideas and arguments limited to the
immediate and highly constrained life of the scattered exilic communities.
|evs also remembered their earlier political historyDavids kingdom and
its successors and the priestly regime of the Second Commonvealthand
they dreamed of a messianic reneval.
xxi
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xxii Introduction
So there arose a tradition of thought, theological and legal rather
than autonomously political in form, but political in substance nonetheless.
Its point of departure is alvays the Hebrev Bible, understood as the revealed
vord of God. But since vriters in the diaspora could not recapitulate the
experience represented in that text, they vere forced into a radical reinter-
pretation or, better, a series of reinterpretations, of its meaning. Lmbodied
in the Talmud, in midrashic collections of legends and parables, retellings and
expansions of the biblical narrative, in commentaries on the Bible and the
Talmud, in legal responsa, and only occasionally and incompletely in philo-
sophical treatises, this interpretive tradition never took on the rm shape of
a doctrine or theory. Nonetheless, it does display certain characteristic modes
of thoughtthemes, concerns, tendencies, and internal tensionsand it is
these that ve propose as objects of study and sources of enlightenment.
One of the internal tensions is an ambivalence about politics itself.
Understood as a form of human coping vith physical need, social conict,
and natural disaster, the political enterprise vas already disparaged by the
biblical prophets, vho seem to enjoin radical trust in God as an alternative
to visdom or policy. In exile, this disparagement took a dierent, though
related, form the conviction that politics vas mostly a matter of var and
conquest, killing and being killed, and that God had set Israel apart from
all those hostile and fatal engagements, destined it for a dierent existence.
Politics vas for the gentiles. This argument represented a kind of accom-
modation to, even a justication for, the exile. But it vas never the only or
the dominant viev among |evish vriters, and it vas belied by the every-
day practice of lav and politicsand by the reections on this practice that
make up a signicant part of |evish literature.
What makes this body of vork a distinct and more or less uni-
ed tradition, and vhat marks its limits, is its intertextuality. A long series
of vriters have addressed political questions by referring themselves to the
same authoritative texts and to the critical events on vhich these texts are
focused the exodus from Lgypt, the Sinai revelation and covenant, the vin-
ning of the land, the establishment of the monarchy in the time of Saul
and David, and then the conquests and revolts, the vars and civil vars, that
brought destruction, loss, and exile. And the same vriters, despite their radi-
cal dispersion and the absence of all modern means of communication, refer
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Introduction xxiii
endlessly to one another, agree and disagree vith each others interpreta-
tions of both texts and events. Reference and cross-reference constitute the
tradition, although it is crucial to its unity that these |evish vriters also
have a roughly similar experience of politics until the nineteenth-century
emancipation admitted many of them to citizenship in the lands vhere they
lived, they vere everyvhere noncitizens, subject to gentile rule, locked into
communities that vere subordinate, precarious, and vulnerable.
Writers vho opted out of the referential system and vho avoided
or escaped the common experience are not part of the |evish political tra-
dition, even if they are still |evs vriting about politics. Karl Marx on the
class struggle, Sigmund lreud on transference and political leadership, Lmile
Durkheim on socialism and moral education, Georg Simmel on the phi-
losophy of moneythese texts do not fall vithin the tradition. Baruch Spi-
nozas political theology does, despite his excommunication, for Spinoza
vrites alvays vith the tradition in mind the Hebrev Bible is his rst text;
the greatest of medieval |evish philosophers, Moses Maimonides, is his cru-
cial reference. Modern secular vriters like Ahad Haam (Asher Ginsberg) and
Micha |osef Berdichevsky, schooled in the communities of eastern Lurope,
still knov the tradition and vork vithin it, or at least start from iteven if
one of their purposes is an antitraditionalist critique criticism is a form of
engagement. Many of their successors, by contrast, are largely ignorant and
entirely disengaged.
The tradition as a vhole is our subject in these volumes, and our
purpose vith regard to it is threefold.
lirst, retrie:al. ve vant to make its central texts and arguments
available to nev generations of students and potential participants. \ears of
reading and consultation have gone into this eort ve have sought advice,
studied texts, circulated lists, studied more texts. Never before has the tra-
dition been looked at systematically from this perspective, vith our specic
set of questions about political agency and authority in mind. The resulting
selection is the product, necessarily partial and incomplete, of a process of
discovery, bringing familiar texts into nev contexts, bringing obscure and
neglected texts into the political light.
Second, iutegratiou. ve vant to take this body of |evish thought out
of its intellectual ghetto and to begin an examination of the vays in vhich it
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xxiv Introduction
follovs, parallels, and strains against Greek, Arabic, Christian, and secularist
modes of thought. Begin is the relevant vord here, for it is our intention
that the interpretations and comparisons presented in these volumes be read
as a challenge to further vork.
Third, .riti.ism. ve vant to join the arguments that have character-
ized the tradition and to carry them forvardor, better, to argue among
ourselves and to encourage others to argue about vhich of them can use-
fully be carried forvard under the modern conditions of emancipation and
sovereignty.
|evish vriting about politics commonly takes a legal form. Politi-
cal issues take shape as legal cases and are addressed in the idiom of the lav,
even vhen vhat is at stake is conduct outside the legal frame the necessary
prudence of political leaders, judicial discretion, or action in emergencies.
Theology and, for some vriters, philosophy provide a critical background
for the legal arguments, vithout vhich many of the most interesting can-
not be understood. But the tradition includes very fev treatises explicitly
devoted to political philosophy or political theology. Its most characteristic
genre is the commentary.
The biblical texts already feature a kind of internal interpretive pro-
cess through vhich revealed lav is applied, elaborated, and revised. Because
the lav is divinely revealed, it can never be repudiated or abandoned. But
the radical text-centeredness of the tradition derives only in part from the
centrality of revelation; it has a second source in the loss of every other cen-
ter, the absence for so much of |evish history of a land, a shrine, and a state.
The key texts, Bible and Talmud, function as a surrogate home; they are read
as all-embracing collections of lavs and storiesin constant need, hovever,
of exegesis and renement, as a home might be of refurnishing and repair.
These they receive in reiterated fashion, in successive generations. Certain
commentaries achieve classical status and are commented on in turn; the
continuity of the tradition is manifest in commentary on commentary.
But tvo other genres also gure signicantly in this as in all legal lit-
eratures rst, the .ooe, vhich is mostly an eort to summarize the legal con-
sequences of the commentaries so far (though Maimonides in the fourteen
books of his Mishueh !orah aims to stop the interpretive ovand to present a
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Introduction xxv
denitive account of the lav-as-it-alvays-vill-be); and second, the respousa,
the ansvers of authoritative rabbistheir authority most often derives from
learning and piety, not from any ocial positionto legal questions. Re-
sponsa are applications of the lav and often revisions or modications of it,
and so are likely to gure in the arguments of future commentators and codi-
ers. The thousands of medieval and early modern questions and ansvers
are a major source for the history of exilic political and social life. Historians
vill no doubt nd the questions more interesting than the ansvers, for they
are full of the detail of everyday experience familial disputes; arguments
over inheritance; economic conicts having to do vith loans, partnerships,
and taxes; communal regulations; dealings vith non-|evs, and so on. In these
volumes ve are inevitably focused on the ansvers, vhich often contain gen-
eral statements about hov families are organized, hov far the authority of
the community reaches, and vhat membership means.
Commentaries, codes, and responsa still play a major part in the
modern period, but they are supplemented nov by nev genresessays, arti-
cles, pamphlets, books in the contemporary style. Party publicists, journal-
ists, lay intellectuals, and professors join the ranks of the rabbis and sages.
We include all of them here, alvays subject to the criterion of intertextu-
ality. Still, editorial choices among tventieth-century authors and texts are
very dicult. lor earlier periods, ve are simply recognizing the important
vriters; for our ovn time, ve are participating in the process of deciding
vhich vriters are important. Sometimes ve have looked only for represen-
tative gures vithout primary regard for their reputations or intellectual
strength. But mostly ve have tried to include those gures vhose vork, ve
believe, vill continue to be read (and commented on).
Very fev of the texts reprinted here come from the vast body of
|evish mystical vritings. But this relative absence does not have the usual
reasons. It does not reect a rationalist eort to suppress this part of the tra-
dition, in the style of the nineteenth-century German 1isseus.hajt oes juoeu
tums. It does not derive from a commitment to |udaism as a religion of
reason. We do not mean to deny the central role of mysticism in |evish
history; nor do ve mean to conceal the extent to vhich it is intertvined
vith halakhic (legal) discourse. Many of the vriters presented here as legal
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xxvi Introduction
scholars addressing political questions vere also deeply engaged vith the lit-
erature of mysticism (Kabbalah). Many kabbalists vere, and are, politically
engaged.
\et it is hard to specify the political meaning of these engagements.
On questions having to do vith the community and its everyday problems,
legal vriters friendly to mysticismdo not argue dierently fromlegal vriters
hostile to mysticism. There is as great a range of dierence vithin each group
as betveen themand it is the same range. Nor is it at all common that any-
thing ve can recognize as a political issue is explicitly addressed in a mystical
text. (One important exception to this rule is the argument of nineteenth-
century hasidic vriters about the authority of their charismatic leaders, the
t:aooilim.) It isnt the case that mystical interests or commitments system-
atically pushed people tovard an antipolitical position, or tovard political
quietism, or tovard political radicalism, though each of these possibilities is
realized among some vriters.
With regard to the big issues of |evish political thoughtelection
or chosenness, the holiness of the Iand of Israel, the experience of exile,
and the hope for redemptionmysticism may have inclined people in cer-
tain directions, tovard particular doctrines. Curiously, it may have led some
vriters tovard a biological viev of divine election (as if |evs vere a species
apart) and a material viev of the holiness of the Iand of Israel (as if the soil
itself vere hospitable to prophecy). Vievs of this sort are fully represented in
these volumes. But they are not entailed by mysticism, and their centrality to
the mystical tradition vill surely be disputed, especially by scholars friendly
to the tradition. In any case, insofar as questions about election, say, are ar
gueo, the arguments are most likely to take legal or philosophical forms. So
they commonly do in our textsand, as readers vill quickly see, our ovn
commentaries take these forms exclusively. In a sense, then, these volumes
represent only one part of the tradition. But so far as politics is concerned,
this is surely the dominant part.
Our ovn account of the tradition is organized as an anthology
of texts vith commentaries. The texts are gathered under thirty headings
(chapter titles) that represent a compromise betveen the categories and divi-
sions most appropriate to the tradition and those most familiar to students
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Introduction xxvii
of modern political theoryvith the balance tilted tovard the tradition.
Hence, headings like political obligation or individual rights do not ap-
pear in these volumes, for they vould require an articial and inevitably
suspect extraction of texts from their legal and doctrinal (as vell as their his-
torical) contexts. Writers in the tradition do not address subjects like these
in any direct vay, although questions about obligations and rights gure
obliquely in many of their arguments (the general index can be used to locate
these oblique engagements).
Although a scheme of this kind can be, and should be, historically
sensitive, its primary aim is not historical verisimilitude. The texts are ar-
ranged (roughly) chronologically in each chapter to suggest an ongoing dis-
cussion of the issues at hand. That there actually is a discussion of this kind
is evidenced by the vay the vriters stand self-consciously vithin the tra-
dition and continually refer to its classical vritings. But they also live in a
particular time and place; they are faithful to local customs and practices;
and they are often deeply involved in local political struggles and intellectual
debates. We can only rarely capture these local engagements in a vork of this
sort. They are the province of the historian, and readers interested in them
should consult one of the standard histories. We highlight only the larger,
recurrent issues, the long-term responses (or the ongoing arguments about
hov to respond) to reiterated political and intellectual challenges. This is the
province of the political theorist, vho can also ask vhat characteristic form
these issues and responses take and vhat ve have to learn from them. Hov
should ve engage vith and carry on this tradition of thought What in it
needs to be criticized, or revised, or abandoned
There is another verisimilitude that ve cannot achieve an anthol-
ogy is a collection of excerpts, and there are many vritersperhaps es-
pecially philosophers like Maimonides, Spinoza, Moses Mendelssohn, and
lranz Rosenzveigvhose range and complexity cannot be represented by
passages extracted from the body of their vork. We get their perspective or
opinion on a particular issue; ve miss the intricate connectedness of their
opinions on many dierent issues. In representing the tradition as a vhole,
hovever, excerpts, even very short excerpts, are often entirely appropriate.
Isolated biblical verses and rabbinic aphorisms, stories, legal maxims, conver-
sational exchanges, and questions are the building blocks of traditional dis-
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xxviii Introduction
course, quoted again and again, sometimes to begin an argument, sometimes
to move it along, sometimes as a clinching conclusion. We reprint many of
these texts that have become prooftexts or standard references. They are like
William Blakes grain of sand, in vhich it is possible to nd the vhole vorld.
The number and precision of our headings is obviously articial;
the subjects ve mean to mark o in fact overlap; the best location of a par-
ticular text is sometimes indeterminate. Our frequent cross-references sug-
gest the seamlessness of arguments that ve have been forced to divide. None-
theless, the thirty headings should make sense to students of the tradition,
and the four main groupings (volumes) have strong and sucient reasons.
We begin vith Authority because the tradition itself begins vith
Gods authority, vith divine rule and divine revelation. Lxactly hov much
room there is for human authority and decision making is alvays a question.
Rule by one, or some, or many human beings over all the others is alvays
under a cloudthough there are repeated eorts to bring it into the sun. lor
|evs the clouds vere especially dark after the exile and the long experience
of foreign domination. The typical |evish attitude tovard political authority
is suspicion. But this doesnt lead, as in modern liberal theory, to a defense of
constitutionalism. Iiberal governments are not only limited but also legiti-
mate, and most |evish vriters in exile nd it very dicult to acknovledge
a full-scale political legitimacyfor this can come, and vill come, they be-
lieve, only vith the messianic kingdom. Here and nov, only the authority
of the rabbis escapes suspicion, but that is probably because theirs vas an
authority vithout political poverand it vas the rabbis, and until mod-
ern times hardly anyone else, vho vrote about these questions. In any case,
politics vas never their chief interest. Although Maimonides quotes Aris-
totles Man is a political animal, there isnt much evidence that many |evs
thought of themselves in that vay.
Hov to explain the importance of politics, hov to justify the exer-
cise of poverthese are hard questions for |evish vriters. But even if an-
svering such questions vas not for them an urgent task, the ansvers they
provide are often penetrating and valuable. We have highlighted especially
the emphasis on consent, not only because of its contemporary interest but
also because of its early appearance and frequent reiteration in |evish
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Introduction xxix
thought. Lven the authority of Gods lavis often said to rest on a certain kind
of consent. Once again, it is necessary to stress that this claim doesnt press
|evish vriters tovard some version of liberal democracy, but (along vith
monotheism itself and the hatred of idolatry) it does make all the varieties
of political authoritarianism dicult to defend.
Mem|ership is our second major theme. Who is a |ev isnt only a
contemporary question; it has been a central issue in |evish life since the
Babylonian exile of the sixth century i.c.r., vhen the |evsthe name dates
from that timevere rst forced to constitute themselves as a community
of faith, vhich is to say, a community vithout territorial boundaries. lrom
then on, the standard political questions of citizenship and naturalization,
loyalty and treason, take forms appropriate to a religion. It is necessary to
talk of conversion and apostasy, orthodoxy and heresy. But it is a peculiarity
of |evish history that these nev terms still have national and political impli-
cations. Indeed, there is a sense in vhich the loss of state pover gave national
identity an enhanced value. The enhancement is already visible in biblical
textsdating (probably) from the years in Babylonia or the period immedi-
ately afterabout the election and mission of Israel. Both of these required
perseverance in the lav, and the lav required in turn a pattern of commu-
nal organization and a structure of authority that vas as much political as
religious.
The discussion of Commuuity follovs naturally, to explain vhat
members have in common and hov they organize their common life. After
the fall of the Second Commonvealth, |evs lived under the authority of
semi-monarchic patriarchs (in Roman Palestine) and exilarchs (in Sasanian
and Muslim Babylonia), but ve knov almost nothing about hovor
vhetherthis authority vas exercised in everyday life. The most important
political structure of the exile emerged only gradually, in vestern Lurope
and North Africa this vas the lahal, a small autonomous or semiautonomous
community (ordinary lehillot ranged from ten families to a fev hundred in
size, although by the early modern period there vere much larger urban cen-
ters). The miracle of |evish politics is the persistence of this formation over
many centuriesa common regime vith a common legal system, reiterated
across a vide range of countries, in very dierent circumstances, vithout
the benet of (and sometimes in opposition to) state pover.
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xxx Introduction
|evish discussions of velfare, taxation, communal government, and
the judicial process invariably begin from the Bible, and the crucial talmu-
dic rules and regulations reect the political experience of Palestine in the
rst centuries of the Common Lra and of Babylonia during the next four
centuries. But many of the most important arguments on all these issues re-
late specically to the lahal, and ve have focused a great deal of attention
on that political community. The lahal is both historically and symbolically
important; it is the polis of exilic |evrythe actual site of an untheorized
and undervalued politics that is nonetheless vigorously enacted and endlessly
debated. The |evs did not choose, and never celebrated, the decentered poli-
tics of the exile, but, vithin the limits set by their relative poverlessness,
they made it vork. And that achievement is, in our viev, one of the most
compelling features of their political tradition.
Our last theme is the idea of Ioliti.s iu History that gives to all the
debates about authority, membership, and communal life their larger signi-
cance, situating them vithin a vorld-historical perspective. Here the focus
of our study shifts to a politicaltheological understanding of secular time
and eternity, mundane geography and the space of holinessan understand-
ing vhose sources lie in the biblical texts and vhich has been profoundly
inuential for Christianity and Islam as vell as for |udaism. Its crucial terms
(for the |evs) are exile and redemption, and the critical political ques-
tions that it poses are, rst, hovthe |evs, collectively and individually, ought
to accommodate themselves to exilic life and, second, vhether there is any
practical vork incumbent upon them, things that ought to be done, for the
sake of redemption Is there, can there be, a redemptive politics But there
is another question, vhich is not posed vithin the literature of the tradi-
tion but rather by it, and then, more concretely, by recent |evish history Is
there a middle term betveen exile and redemption, a political condition that
avoids both messianic pretension and the undervalued politics of the exile
We ask this last question only at the end of these volumes.
The texts ve have selected and arranged are accompanied, in a style
that ts the tradition ve mean to represent, by commentaries. These vere
vritten by contemporary political and social theorists and moral philoso-
phers and by scholars in |evish studies vith related interests vho vere asked
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Introduction xxxi
to join the arguments of the textsnot simply to describe or contextualize
them. They do this in their ovn historical or analytical fashion; the point
of the commentaries, hovever, is not history or analysis but rather engage-
ment vith a set of issues. We vant to display the tradition as a .outiuuiug
argument. That doesnt mean that every traditional argument varrants con-
tinuation. Traditions survive through a series of partial abandonments and
partial innovationsrejections, revisions, and renevalsas vell as through
faithful perseverance. Our commentaries represent all these possibilities.
Tvo forms of commentary, hovever, are not represented here the
piousapologetic and the scholarlydetached. The reasons for avoiding these
tvo should be obvious fromthe texts themselves. Although both these forms
no doubt make their appearance in traditional literature, they are not domi-
nant there. Writing a commentary is an act of engagement, and this com-
monly is, and alvays should be, a critical engagement, an eort to get or
set things right. lor commentators vho regard the founding texts as reli-
giously authoritative, this critical eort is often indirect. But it is entirely
possible, and often very eective, to address by indirection the questions that
ve have posed to all our commentators Is this a good argument Should it
be continued, elaborated, improved, amended, or discarded Responding to
these questions, they bring all their resources to bear their (very dierent)
knovledge of |evish texts and of modern philosophy, their (very dierent)
political commitments and experiences. So they serve the second and third
purposes of this vork, integration and criticism; they expose the tradition
(as it vas regularly exposed in the past) to the challenge of contemporary
understandings and convictions.
Mi.hael 1al:er
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!he 8ele.tiou, !rauslatiou,
auo Ireseutatiou oj the !exts
To portray the |evish political tradition, ve have gleaned argu-
ments, stories, interpretations, and commentaries frommany dierent vorks
of dierent genres, fev of vhich are dedicated solely to political issues. The
very nature of the |evish traditionand of Rabbinic |udaism in particular
demands close attention to its manifold forms and contexts. The interplay
over many centuries of biblical lav, monarchic epics, and prophetic critiques;
Rabbinic fables, disputes, and legal reinterpretations; medieval communal
ordinances, codes, and philosophical vritings; and the rediscoveries and re-
readings of all these in the course of the modern upheavals of emancipation
and Zionismthis is our subject.
Many of the selections are classics doctrinal statements or argu-
ments that became centerpieces of subsequent discourse and yet are unavail-
able to this day except in the original Hebrev (or a rabbinic admixture of
Hebrev and Aramaic). Others vere chosen because they reect important
themes or institutions; most commonly, they represent (vhat came to be
regarded as) mainstream positions, but frequently they represent salient mi-
nority opinions as vell. In preserving both the vinning and the losing sides
of many arguments, ve follovthe editorial tradition of vhat might be called
a |evish politics of knovledge, as attested in the Mishnah (Lduyot |;;,
:|). Where a similar point is expressed in several texts, ve preferred as a rule
adding another example of the vork of a gure vho has appeared before in
our pages rather than introducing a single text from yet another authorso
that readers vill gain some real familiarity vith at least a fev major authors.
Besides these substantive criteria, there vere considerations per-
taining to the formof the texts. Wherever possible, ve sought to avoid selec-
tions of either extreme brevity or great length. In addition, ve excluded
some important texts that ve judged to be too intricate or cumbersome to
be made accessible in a book of this kind.
xxxii
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Selection of the Texts xxxiii
Ra||iui. !exts
The textual vorld of the |evish tradition is complex and, for the
unaccustomed reader, often more than a little bevildering. A comprehen-
sive orientation is provided belov in Michael lishbanes introductory essay.
At this point, ve oer only a brief overviev of the main texts and their
interrelations.
All |evish traditional discourse relates to the Hebrev Bible as its
canon. Initially, Rabbinic teachings vere expounded and transmitted in con-
nection vith the biblical books. Thus the Melhilta follovs many parts of
Lxodus line by line, just as the 8ijre follovs Numbers and Deuteronomy.
Since the same legal topic is often addressed in more than one biblical loca-
tion, there vas a need to organize the material according to subject, inde-
pendently of Scripture. The Mishnaha concise collection of Rabbinic legal
teachings (and arguments)vas redacted by Rabbi |udah the Prince early
in the third century c.r., organized in six orders, vhich are further divided
into tractates, chapters, and individual clauses (each of vhich is also called a
mishnahnot capitalized).
The Mishnah became the core document of Rabbinic |udaism, and
its redaction marks the end of the era of the tauuaim. Asupplementary collec-
tion of the teachings of the tauuaim, the Tosefta, as vell as both the |erusalem
and the Babylonian Talmuds, follovs the order of the Mishnah. The talmudic
discussions (sugyot, sing. sugya) take the mishnaic clauses as their point of de-
parture but often also revolve around independent statements and traditions
of the amoraim. Unlike the Mishnah, vhich focuses almost exclusively on
halalhah, the Talmud also incorporates much aggadic material. In talmudic
times aggadic collections vere also compiled for many books of the Bible
primarily the Miorash Ra||ah series for the Pentateuch.
Subsequent generations continued to study the Bible directly and to
produce commentaries thereon, although they often consulted and quoted
talmudic interpretations. The halakhic tradition focused, hovever, on the
Babylonian Talmud (BT), vhich vas considered authoritativeyet vhose
sugyot rarely conclude vith decisions in the myriad controversies that they
record and elaborate. Initially the intricate Hebrev-Aramaic talmudic dis-
cussions vere barely decipherable even by the learned, and rulings based on
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xxxiv Selection of the Texts
the Talmud vere rendered centrally by the Babylonian Geonim, the heads of
academies. By the eleventh century, hovever, the |evish vorld had become
strongly decentralized. Rashis classic line-by-line commentary nally made
the talmudic text videly accessible. Much of medieval talmudic scholarship
vas vritten in the form of commentaries or novellaethat is, nev in-
terpretive insights and discussionsrelating to the talmudic text. Rashis
contemporary \itzhak Alfasi produced the rst major code of talmudic lav.
Alfasis abridgement of the Talmud still closely folloved the talmudic trac-
tates. It vas Maimonides Mishueh !orah (MT) that rst provided an indepen-
dent reordering of Rabbinic halalhah, restated vith all arguments resolved,
in fourteen books. Another such scheme, including only the sections of
halalhah that apply in these times (i.e., in exile), vas designed by |acob b.
Asher in his lour Columns (!ur, pl. turim); this scheme vas also adopted
by |oseph Karo in his inuential 8hulhau Arulh.
These various codes themselves became focuses of study and com-
ment. Karos code, for example, is based on his ovn extensive commentaries
on both Maimonides Mishueh !orah (Kesej Mishueh) and the !ur (Bet Yosej ).
Lven halakhic vorks not directly addressing the clauses of the codes, such
as the numerous collections of responsa, are normally loosely organized ac-
cording to the four columns of the !ur.
The vorks mentioned in this overviev, as vell as many others, con-
stitute the rabbinic (vith a small r) tradition. We have reserved the capitalized
adjective Rabbinic for the classical period of the tauuaim and amoraim, col-
lectively the Rabbis. The generic (lovercase) rabbis refers, accordingly,
to the agents of the tradition over the generations.
!he !rauslatious
Many of the selections are from vorks not yet translated into Ln-
glish (nor, as a rule, into any other language). This is true especially of the re-
sponsa literature, vhich is the main repository for legal and constitutional
|evish vriting, both medieval and modern, and for the bulk of the medieval
codes. Of the ve classical codes (Alfasi, Maimonides, Rosh, !ur, and 8hulhau
Arulh), only Maimonides Mishueh !orah and the 8hulhau Arulh have been
partially rendered into Lnglish, and this vithout their accompanying com-
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Selection of the Texts xxxv
mentaries. The same holds true for all medieval commentaries and novellae
on the Talmud.
With regard to medieval philosophical tracts, the situation is gen-
erally better many of the basic texts have already appeared in Lnglish. We
have used reliable Lnglish versions vhenever they are available. Indeed, ve
are fortunate to have been able to choose passages from the excellent trans-
lations of the \ale |udaica Series, including (vith the agreement of the
translators and the assistance of the editor of the series, Ivan Marcus) some
translations not yet published. In all these cases, ve have omitted the transla-
tors footnotes and added our ovn so that the annotation of texts is consistent
throughout the book.
Although many translations exist of Rabbinic vorks, they are often
not readily usable for our vorkfor tvo main reasons.
. The quality of the published translations is not alvays acceptable.
The pioneering Soncino translation of the Talmud (the rst volumes ap-
peared in ,) provides an Lnglish text that sounds ponderous and avkvard
to the contemporary ear and, more problematically, contains numerous in-
exactitudes or outright mistakes. Never translations, all of them incomplete
at this time, oer a more contemporary and readable Lnglish, but their loy-
alty to the exact vording or sense of the original is uneven. lor a vork like
this one, vhich concentrates on a relatively fev selected texts, loose or free
translations are not helpful; ve need something closer to a strict accounting
of the original.
:. Because the picture ve drav in each chapter depends on the
interconnections among component selections, there is a crucial issue of ter-
minological consistency. The texts constitute a tradition (so ve argue) in
the sense that their authors constantly refer to earlier texts and to their ovn
contemporaries, and they do so both by explicit citation and by implicit allu-
sions in their choice of vords. Much, perhaps most, of this interplay vould
be hopelessly obscured by mixing passages from dierent translations of the
vorks on vhich ve drav. With respect to the Soncino Talmud, again, there
are innumerable inconsistencies in translating the same term as it appears in
dierent placesdue mostly to the independent vork of the scholars en-
trusted vith the various tractates.
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xxxvi Selection of the Texts
Apart from the importance of cross-referencing for appreciating
both the details and the larger picture, inconsistent translations often render
an argument totally incomprehensible. Where a commentators interpreta-
tion or the legal point of a responsum depends on a specic connotation or
turn of phrase, a compatible translation of the primary text is indispensable.
But nev translations of rabbinic material come at a price they dif-
fer from the complete editions readily available to the larger public. We have
therefore made use of existing translations and standard editions vhenever
possible most importantly, the \ale |udaica Series editions of the 8ijre and
the Mishueh !orah and the nev |evish Publication Society translation of the
Hebrev Bible (,:), but also many other texts, medieval and modern. The
cost is an occasional sacrice of consistency. A partial remedy is provided by
the glossary of terms, vhich oers the range of meanings carried by some
protean Hebrev vords. A complementary tool is the general index, through
vhich the reader vill be able to trace signicant appearances of some im-
portant Hebrev concepts (e.g., tilluu olam).
In rare cases, ve have altered the translation of a particular vord;
in such instances, our departure from the published translation is explicitly
noted.
Ireseutatiou oj the !exts
Rabbinic texts are both condensed in substance and elliptical in
style. In our translations ve have striven to reect this character of the origi-
nals. At the same time, ve have provided some minimal expansion, alvays
in brackets vithin the translated text. In doing so ve follov the traditional
mode of studying the Talmud one nger on the talmudic text and one nger
on Rashis commentary, vhich since the rst printing of the Talmud (Venice,
:o:) has appeared alongside the text and vhich has guided our ovn ex-
pansions and annotations. Occasionally ve have inserted a line or tvo from
Rashi directly into the text, in brackets, as follovs |Rashi. . . . |. Where ve
have used existing translations, brackets indicate additions by the translators;
any additions ve have made are marked as editors notes (Lds.).
Individual selections are preceded by headnotes. These serve to pro-
vide background information (historical, legal, and conceptual) and to sug-
gest connections among the texts. Biographical information on particular
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Selection of the Texts xxxvii
authors and on the more important persons or groups mentioned in the
selections may be found in the glossary of names. Where particular points in
the text or the translation require elaboration, this is oered in accompany-
ing footnotes. As a rule, the notes serve simply to clarify the texts. Citations
in the introductions and commentaries are given in parentheses.
In some cases, ve preserve the original Hebrev term (sometimes
the Aramaic term) in transliteration, either beside or instead of an Lnglish
equivalent. Non-Lnglish vords are italicized (in lovercase), and recurring
terms are explained in the glossary of terms. We have resorted to translitera-
tion in cases vhere the Hebrev term is in common use and vhere it carries
multiple meanings. In these latter cases an Lnglish translation vould neces-
sarily involve distinct terms, and the thread of the tradition vould be lost. In
addition, transliteration of the Hebrev sometimes dravs the readers atten-
tion to signicant semantic links betveen key terms; these are elaborated in
the glossary. In transliteration ve generally follov the (nonscientic) form
adopted in the Lu.y.lopeoia juoai.a. Hebrevnames are reproduced as precisely
as possible. lor both terms and the names of some individuals, hovever, ve
depart from this practice if another form is in common Lnglish usage. Ref-
erence to certain gures is often by acronym. We transliterate the Hebrev
acronym and regard it as a proper name, capitalizing only the rst letter.
All omissions are indicated by three ellipsis points. Brackets indi-
cate all manner of additions to the original. Parentheses are used to indicate
references (for example, to biblical texts) and sometimes to mark o a phrase
in the original language, vhen this is the best vay to convey the authors
meaning. This practice is in line vith our more general practice of adding
punctuation, mostly absent in ancient and medieval texts.
Citations are given to specic editions vhen appropriate. We con-
sulted standard critical editions vhere available, as listed
Me.hilta DRa||i Ismael, ed. H. S. Horovitz and I. A. Rabin ( |erusalem Wahr-
mann, ,;o, :d edition).
Melilta DeRa||i Ishmael, ed. and trans. |. Z. Iauterbach (Philadelphia |evish
Publication Society, ,).
Miorash De|arim Ra||ah, ed. S. Iiebermann ( |erusalem Wahrmann, ,;,
d edition).
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xxxviii Selection of the Texts
8iphre D|e Ra| ]^um|ers, :d edition, ed. H. S. Horovitz ( |erusalem Wahr-
mann, ,oo).
!he !osejta, ed. S. Iiebermann (Nev \ork |evish Theological Seminary of
America, ,::).
!osephta, ed. M. S. Zuckermandel (Trier, ::).
Many traditional vorks, fromthe Mishnah to rabbinic responsa and
novellae, are available in numerous editions (including electronic versions),
and ve sav no reason to refer the reader to one edition and its pagination
rather than to another. Instead, ve follov the practice that is common for
biblical citations, providing references by section (and subsection, vhen ap-
propriate) in accordance vith the original or traditional division of a vork.
As a rule, the original subdivisions of a text are reproduced in the body of
the readings. We depart from this rule only for the biblical readings, for in-
cluding the verse numbers vould detract too much from the natural ov of
the texts. But here, too, ve remain true to the Hebrev, for in the traditional
scrolls there is no division into chapters or verses.
!he !rauslators
The vork of translation in this volumeas for the project as a
vholehas been a collective eort. The contributions of those vho trans-
lated texts from various languages and of experts vho helped verify specic
translations are acknovledged in notes to the relevant texts. linal editing
of all translations vas done jointly by Menachem Iorberbaum and Noam
Zohar.
Ancient Rabbinic texts vere translated mostly by Noam Zohar. On
many matters of Rabbinic usage, ve had the privilege of consulting vith
Shlomo Naeh. Modern texts and medieval responsa vere translated mostly
by Menachem Iorberbaum. Rabbinic commentaries vere translated mostly
by Ari Ackerman, vho also translated some of the responsa. In addition,
Ari Ackerman helped in verifying the consistency of language and form
throughout.
Meua.hem Lor|er|aum auo ^oam j. 2ohar
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Lau, 8tory, auo Iuterpretatiou.
Reaoiug Ra||iui. !exts
The guiding framevork of rabbinic practice is a political order
founded upon a divine covenant and its obligations. This covenant, of bib-
lical origin, establishes the community as a sacral fellovship under God. All
legitimate actions have coherence and integrity vithin this order, vhereas
illegitimate actions disrupt and desacralize the polity. According to Scrip-
ture, the prophet Moses rst mediated betveen the divine and human realms
as a founding legislator; in due course rabbinic tradition proclaimed itself
the heir of this legislation, and has deliberated its contents for more than tvo
millennia. Tradition is therefore the cumulative construction of belief and
practice that actualizes the founding revelation for the ongoing community.
Indeed, tradition is the evolving shape (or shapes) of the ancient covenant,
embracing every sphere of life and placing it under divine dominion.
With the historical unfolding of |evish life from biblical times to
the present, the ancient covenant has been challenged by changing values
and circumstances. Nev actions and rulings vere developednaturally, as
life vas lived in uid faithfulness to covenantal regulations, and deliberately,
as the biblical text vas explicated in light of living circumstances and legal
gaps. The result of the natural development vas customary practice, all or
part of vhich could be legitimated by Scripture. The result of the deliberate
development vas an accretion of commentaries and regulations that could
serve as expressions of tradition in dierent circles and times. Lach type pro-
duced distinct genres of rules and practices. The tradition is the accumulation
of these genres, and often their agglutination and harmonization. In addi-
tion to the Hebrev Bible, the foundation document of the covenant, there
are the scriptural expositions of legal and homiletical Midrash, the abstract
rulings collected in the canonical Mishnah or in extra-canonical collections
like the Tosefta, as vell as the collation of all such materials in the tvo Tal-
muds ( |erusalem and Babylonian). The analytical syntheses of talmudic rules
by the tosasts, the abstract or annotated codes of Sephardic and Ashkenazic
legists, the novellae of jurists and theorists, and the ongoing ansvers (re-
xxxix
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xl Reading Rabbinic Texts
sponsa) to halakhic queries are typical of activities continuing through the
Middle Ages to the present time.
The details of this literary corpus are voluminous, vibrant testimony
to the enduring self-consciousness of |evs as a covenantal community. With
practical visdom, if no little irony, the principle that the halalhah (or legal
norm) follovs the latest authorities kept the scales of jurisprudence tipped
tovard the present. But this vas hardly an evasion of tradition, for the latest
authorities vere alvays the heirs of an earlier visdom. The products of rab-
binic education and values, these sages tried to regenerate tradition from
vithin, being alvays attentive to its spirit and letter in nev times. A classi-
cal homily by Rabbi Lleazar ben Azaria (vho ourished tovard the end of
the rst century c.r.) attests to the antiquity and probity of the process. He
expounded as follovs on Lcclesiastes :, vhich reads The vords of the
vise are like goads, and like nails vell planted are the |vords of | masters of
assemblies, vhich are given by one Shepherd.
Why are the vords of the Torah likened to a goad To teach you
that just as this goad directs the heifer along its furrov in order to
bring life to the vorld, so the vords of the Torah direct those vho
study themfromthe paths of death to the paths of life. But |lest you
think| that just as the goad is movable so the vords of the Torah are
movable |and hence impermanent|, therefore the text says nails.
And |should you also think| that just as the nail |does not| diminish
and does not increase, so too the vords of the Torah |do not| dimin-
ish and do not increase; therefore the text says vell planted just as
a plant is fruitful and increases, so the vords of the Torah are fruit-
ful and increase. The masters of assemblies these are the disciples
of the vise vho sit in manifold assemblies and occupy themselves
vith the Torah, some declaring |a matter| unclean and others de-
claring |it| clean, some prohibiting |a matter| and others permitting
|it|, some disqualifying |a person from giving testimony or acting
as a priest| and others declaring |that same one| t |to serve|.
Novshould one say Given all this, hovshall I learnTorah
Therefore the text says All of them are given from one Shepherd.
One God gave them; one leader uttered them from the mouth of
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Reading Rabbinic Texts xli
the Iord of all creation, blessed be He, for it is vritten And God
spoke all these vords (Lxod. :o). In like manner should you
make your ear like a hopper and get a perceptive heart to understand
the vords of those vho declare unclean and the vords of those vho
declare clean, the vords of those vho prohibit and the vords of
those vho permit, |and| the vords of those vho disqualify and the
vords of those vho declare t. (BT Hagigah b)
This exegetical passage articulates the very basis of covenantal the-
ology the nature and authority of Torah and the nature and authority of
its exposition. It does so through a reinterpretation of Lcclesiastes :
and Lxodus :o. Indeed, this conjunction of dierent verses is the essence
of classical midrashic homilies, vhich regularly open vith a verse from the
Writings (often the Psalms or the visdomtexts) and use it to give nevmean-
ing to a passage fromthe Torah portion prescribed for a given Shabbat. In the
present instance, verse from Lcclesiastes : is explicated to unfold the ide-
ology that Torah is one, despite its great diversity of content and commen-
tary. And just this truth is presumed to inhere in the pentateuchal proclama-
tion that God spoke all these vords at Sinaiboth the vords of Scripture
and all their subsequent meanings.
One may sense that Rabbi Lleazar had more than theory in mind.
The parsimony and ambiguity of Torah readily lent itself to diverse exe-
getical possibilitiesvithout vhich the text could become a dead letter but
vith vhich the student vas set loose from authoritative restraint. In this
homily the danger of exegetical chaos is doubly circumscribed, rst by a the-
ology that held the vords of Scripture to have multiple meanings and then
by a daring anthropology of probity and goodvill. Only thus could the un-
alterable vords of Torah nurture nev fruit, and only thus could the vork
of culture be transformed into covenantal labor. The result vas a notion of
revelation as xed and unchanging, yet full and total, and of tradition as
uid and open, yet alvays partial and contradictory. In the dynamic betveen
revelation and tradition, dierence is an inherent feature of human meaning-
making. In Rabbi Lleazars viev, such diversity need not destroy Torah or its
study; it may, in fact, even be vaunted as necessary for understanding all
Gods vords. In this sense, debate is for the sake of heaven.
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xlii Reading Rabbinic Texts
Rabbinic literature is grounded in the Hebrev Bible in theory and
in fact. Indeed, Scripture provides the foundational framevork for the Rab-
bis teachings of lav and theology. It is the canonical text of instruction, at
vhose core is the vritten Torah (called oraita)believed to be divine revela-
tion in every respect. Lverything else is oral tradition, hovever ancient and
hovever related to the vritten revelation at Sinai. The chain of tradition
therefore begins vith Moses and his rst disciple, |oshua, continues through
the elders and prophets to Lzra and the Men of the Great Assembly (after the
Babylonian exile), and goes on from them to the sages and their disciples,
and the disciples of their disciples, to the present day. In this ideal formula-
tion there are no gaps, only stages in the realization of the tradition of the
Rabbis (called ra||auau).
Iav and narrative are the tvo main genres of the biblical founda-
tion. Both are traditional, edited genres and part and parcel of the ancient
Near Lastern vorld. This is particularly so for the legal texts found in the
Torah, collected over centuries and vith dierent emphases and formula-
tions. They are rooted in Mesopotamian legal traditions vith respect to lit-
erary forms and many of the specied cases; yet they are also the fruit of an
internal Israelite tradition of topics and concerns, one that vas successively
revised and supplemented in dierent circles during a half-millennium and
more. This diversity of collections and content attests to the vitality of the
biblical tradition, yet it also left legal gaps, ambiguities, and duplication of
content. |ust hov vas one to observe the Sabbath day, and vhat vas no
manner of vork Was the purchase and sale of a slave (vhether native or
foreign) administered by the courts or privately And vhat about conict-
ing rules of the Passover sacrice, or the apparent brutality and injustice of
the ancient lavof taliou (retribution, an eye for an eye) Clearly, much vas
left to (oral) judicial discretion and (unvritten) popular custom.
As the traditions of ancient Israel vere collected into canonical
units, and the units into an authoritative anthology, these sorts of issues de-
manded theoretical and practical resolutionthrough the direct explication
of Scripture (Midrash), through more abstract formulations of rules (vith
and vithout scriptural support), and through customary action. The concur-
rence of these processes vas the natural outgrovth of a living legal culture,
giving rise to the vealth of traditions and practices that ve largely knov
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Reading Rabbinic Texts xliii
about fromlater sources. The schools of sages entrusted vith the more formal
vork of interpretation and adjudication gradually produced a series of exe-
getical rules, as vell as exemplary collections of discussions and regulations.
The norms vere named and nuanced, and the evolving result constituted
|udaism for those vho folloved this school or that, one group or another.
Alongside the lav and often encasing it are literary units that give
expression to the theological and ideological values of the covenant. This
pertains particularly to such matters as divine authority and communal obli-
gation, but also to legislative intent (as in making the polity holy) and
contractual consent (enunciated as ve shall do and obey) (Lxod. :;). It
should be added that these vital considerations are not expressed abstractly
but in the course of the historical narration; even matters concerning, for
example, the nature of the person, the dangers of sedition, or the motiva-
tions for compassion or largesse are formulated in and around specic lavs,
rarely as formal principles for general application. lor the late, post-exilic
strata of biblical literature (after : i.c.r.), this ideological content even in-
cluded observations on the spiritual or transformative character of the lav.
The result vas the reinforcement of the legal norms by covenantal values,
and the generation of cultural ideology by living lav. In this vay, the Torah
provided a vast store of pedagogy for the faithful.
The ancient rabbis deal vith legal and theological issues in accor-
dance vith oral tradition, stylistic convention, and diversity of opinion; the
biblical sources are not alvays given, depending on genre, and even vhen
they are, they do not alvays represent the chief features of the formulation.
Primary among the classical genres are the Mishnah, Midrash, and Gemara.
The Mishnah is the quintessential collection of tannaitic case lav,
reecting legal traditions of the rst tvo centuries of the Common Lra; it
vas edited by Rabbi |udah the Prince in the early third century c.r. Its lapi-
dary formulations, attributed to named or unspecied sages, are expressed in
abstract terms, vith reference to typical situations, and through a hierarchy
of topics. Some of the issues and their sequence clearly derive from the bibli-
cal legal sources, vhile others may only be inferred from them but may have
arisen independently. Characteristically, these formulations are not linked to
Scripture as either derived or justied lav; in addition, dierences of opinion
are simply listed, not compared or justied (although the sequence of pre-
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xliv Reading Rabbinic Texts
sentation often points to the preferred opinions). In the process of collation
and publication, a great mass of contemporary material vas excluded from
the Mishnah. Some of the extraneous teachings (called |araitot, sing. |araita)
are collected in a corpus called the Tosefta, vhich also includes expansions
or clarications of mishnaic rules.
The Midrash includes legal and homiletical genres (miorash halalhah
and miorash aggaoah, respectively). In the legal Midrash of the tannaitic and
amoraic periods (rst to second and third to fourth centuries c.r., respec-
tively), the topics are linked to passages in the Torahrst, because these
texts collect traditions around the sequence of biblical verses; and second,
because dierent opinions and proofs are adduced in the course of the re-
ported discussions. The discussions sometimes start from a xed point of
tradition (itself not clearly related to Scripture) and proceed to debate alter-
natives vith scriptural arguments. In other cases the scriptural formulation
is justied by other scriptural rules or potential inferences. The reasoning on
vhich the discussions rest is variously formulated in terms of hermeneutical
rules. These include procedures for reasoning a fortiori, from the simple to
the complex or the specic to the general (and vice versa), and by analogy
(thematic or verbal). The materials are transmitted either in the name of spe-
cic sages or anonymously by the editor. Disagreements are not necessarily
resolved.
The Gemara is the third major genre of classical |evish literature.
This is the term for the collection of learning found in the Babylonian Tal-
mud, on the topics of the Mishnah, the Midrash, and the extraneous or
non-canonical traditions. Built formally around the tannaitic Mishnah, and
including a vealth of tannaitic and amoraic citations and discussions, this
material extends in named traditions to the late fth century c.r. and, in sub-
sequent redactional layers knovn as stammaitic and saboraic, for about tvo
centuries more. The stammaitic contribution is particularly important, be-
cause the so-called anonymous (teacher), or stam, is the editorial voice of the
received collection. Indeed, given the importance of the Babylonian Talmud
in the curriculum of the rabbinical academies for fteen hundred years and
its impact on subsequent codes and precedents, it is no exaggeration to say
that this anonymous person (or peoplefor smaller pericopes, called sugyot,
vere edited in dierent schools) is the formative teacher of |evish tradition
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Reading Rabbinic Texts xlv
tout .ourt. The voluminous corpus far exceeds in cultural impact the shorter
and more imperfectly transmitted |erusalemTalmud (the Talmud of the Iand
of Israel).
A preliminary characterization of the Gemara must take note of its
more formal features. These include, rst and foremost, the citation of the
Mishnah as the source for discussion, together vith a patient and often pains-
taking inquiry into its implied biblical sources (to construct the scriptural
authority of the ruling) and the legal ramications to be deduced therefrom.
As the mishnaic phrase is analyzed, hypothetical possibilities are broached
and their implications veighed, and all this is regularly synthesized (through
dialectical reasoning) vith diverse traditions bearing on the clarication or
harmonization of the subject. Hypothetical cases test the solidity of a pro-
posed legal construction and often vork to expand or contract the scope of
the lav, justify a given ruling, or establish nev concepts for gray areas of
concern.
The stam editorially coordinates this discourse and brings the opin-
ions of sages and traditions far removed in time and place into one interactive
study session. By adroitly adducing opinions and contradictions or assess-
ing the strength of a rebuttal, he constructs (even reconstructs) models of
textual reasoning of theoretical and practical use to legal students or future
theorists. The rhetorical tone moves sviftly and often obscurely betveen
the named traditions and the interlocuting stam, creating a rich intergen-
erational discourse. Accordingly, if there is a mind in the Talmud, it is the
mind of the stam, vho thinks through the traditions, citing and criticizing
them through other voices and deliberating their implications vith respect
to religious actionfor all behavior has a legal dimension in the covenantal
polity of |udaism. In this respect, the stam is the ideal student capacious in
knovledge, probing in analysis, and careful to protect the lav or to synthe-
size it vhere necessary. The stamthinks vith the tradition and its tradents and
thereby oers a cognitive model of covenantal hermeneutics. The medieval
tosasts build on this method in their conceptual and comparative analyses
of the talmudic traditions as a vhole.
To gain a concrete sense of Rabbinic hermeneutics in its diverse
forms of expression and to appreciate the exegetical patterns of thought in
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xlvi Reading Rabbinic Texts
their thick textuality, the folloving examples are instructive. They have the
particular value of displaying the complex interactions betveen lavand ide-
ology in the Rabbinic sources. Given that Rabbinic culture is constructed
and justied through its cases, the examples provide a vindov into its vorld
of meaning-making. Here is the rst.
By all standards, the biblical assertion that God made man in His
ovn image (Gen.:;) has been of fundamental importance for |evish con-
ceptions of the nature of the person and for issues bearing on agency and the
value of life. In itself, the meaning of the vord image is obscure and has
led to any number of interpretations in ethical, philosophical, and mystical
thought. Ideas range from an insistence on the unique creaturely status of
the human person to an emphasis on human rationality or on the mythic
character of the human form. This aside, the notion of the divine image is
employed as a Cruuouorm (not itself requiring justication) that establishes a
hierarchy in vhich human life is the supreme valuethe pivot of the vhole
legal system of civil and capital cases.
The rst reuse of the principle is an instance of inner-biblical exe-
gesis. It occurs at the end of the ood narrative, in vhich restored humanity
is blessed and promised fertility and vorldly pover in terms directly bor-
roved from the creation account chapters earlier; the major revision to be
noted is the extension to humans of the right to eat animal esh in addition
to the original diet of grains and greens (see Gen. ,; compare ::o).
This permission to eat every creature that lives is itself qualied only by a
categorical prohibition not to eat esh vith its life blood in ita further
taxonomy of edible creatures is not yet provided. The topic of life blood
evokes an additional regulation But for your ovn life blood I |God| vill
require a reckoning I vill require it of every beast; of man, too, I vill re-
quire a reckoning for human life, of every man for that of his fellov man'
Whoever sheds the blood of man, by man shall his blood be shed; for in His
image did God make man (Gen. ,o).
As is evident, this nal formulation shifts the focus from food rules
(and permissible killing) to capital oenses (and their categorical prohibition
by animal or human agency). A clear hierarchy is established, vith animal
life belov all forms of human life and available for consumption vithout
penalty. Moreover, like humans, animals are culpable for killing humans
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Reading Rabbinic Texts xlvii
and this is because of the principle that human beings are created in the
divine image. Because the passage opens vith the divine legislator speaking
in the rst person (I vill require) but shifts in its justication clause to
the third person (for in His image did God make man), it is clear that the
author has cited the theological assertion of Genesis :; and applied it as
a principle to legal cases. The older narrative is nov reembedded in a later
one, vhose concerns reect a complex social order.
Biblical and Rabbinic lav go on to qualify the degrees of culpable
agency (for animals and persons) and to explicate the penalties (and permis-
sible substitutions) that may be assessed after judgment. Rabbinic lav also
takes this Cruuouorm and applies it (vith nev scriptural sources) in varnings
to vitnesses about to testify in capital cases. The exegetical justications for
these varnings are striking, and shov hov a legal narrative may incorporate
values fundamental to the polity. The text is found in Mishnah Sanhedrin
(), dealing vith courts and procedures.
Hov do |the judges| admonish the vitnesses in capital cases They
vould bring them in and admonish them |thus| Perhaps you are
about to oer |testimony| based on supposition, hearsay, or vhat
one vitness told another; or |you vould say,| We have heard it from
a reliable person; or perhaps you do not knov that ve shall even-
tually subject you to a thorough interrogation and investigation.
\ou should |therefore| knovthat the lavs governing property cases
|mamouot| do not |extend| equally to capital ones. In property cases a
person makes payment and |thereby| achieves atonement, |vhereas|
in capital cases |guilt for| the blood |oam, of the falsely convicted
person| and his |unborn| ospring is held against |the vitness| for
all time. lor so ve nd in the case of Cain, vho killed his brother,
as it is said The bloods of your brother cry (Gen. o). It does
not say The |looo |oam| of your brother but The |looos |oemey| of
your brother|that is,| his blood and the blood of his ospring for
all time. . . . Therefore Adam vas created alone, to teach you that
vhoever destroys a single life is deemed by Scripture as if he had
destroyed a vhole vorld; and vhoever saves a single life is deemed
by Scripture as if he had saved a vhole vorld.
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xlviii Reading Rabbinic Texts
Three components of this legal extract are immediately obvious
the concise, lapidary formof mishnaic expression; the rhetorical, homiletical
form of midrashic argumentation; and the multivoiced, embedded quality
of the tradition. To begin vith the last, one must note the levels of direct
and indirect speech. The mishnah is in the voice of the scholastic redactor
addressing himself to judges vho vill appraise the vitnesses of their task
and its implications. The redactor gives vords to the judges and imagines
(through indirect speech) the thinking of a vitness, and then cites Scripture,
vhose authoritative voice is made applicable through midrashic exegesis. The
instructive tenor of the primary voice is then gradually and fundamentally
subsumed by the didactic voice of the judges, vho drav their conclusions
vith a direct voice (Therefore Adam vas created alone, to tea.h you).
The mishnaic account is characteristically formulaic and precise.
The terminology is completely Rabbinic, even vhen dravn from biblical
prototypes. The reference to interrogation and examination (oerishah :e
halirah) is a case in point. These nouns reect the development of abstract
legal concepts in rabbinic jurisprudenceeven though they ultimately de-
rive fromverbal usage in Scripture. Both terms occur in Deuteronomy ,
in connection vith the investigation of reported apostasy; only the rst
is found in Deuteronomy ,,, though signicantly in the context of
a regulation requiring the investigation of vitnesses. Clearly the mishnaic
procedure has a biblical past, even though the precise biblical procedures are
unknovn.
One may further observe that this varning to vitnesses before their
examination establishes testimony as a legal act vith consequences. By in-
forming them of the factors bearing on unacceptable evidence, the judges
make the vitnesses responsible for their statements. Such fundamental cate-
gories as agency and foreknovledge are often embedded in the judicial pro-
cedures themselves, and their scope and meaning must be explicated from
these sources. The deduction and testing of such abstractions is the vork of
talmudic reasoning.
The midrashic component of the judges varning demonstrates
other features of interest. Primary among them is the invocation of a scrip-
tural source to support the theological assertion about the long-term eects
of a death caused by false testimony. In making the point, the judge func-
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Reading Rabbinic Texts xlix
tions as a homilistrst asserting his theological claim and then justifying
it through exegesis. The hermeneutical procedure used here is straightfor-
vard. It rst observes a lexical or stylistic anomaly in Scripture, then, instead
of explaining it avay as mere metaphor or rhetorical excess, treats it literally
and, by this unexpected move, arms the theological point. In this case the
initiating oddity is the use of the plural noun bloods in the case of Cains
murder. Since it is unlikely that the idea of transgenerational guilt is spon-
sored by this tenuous exegesis, one may assume that the idea came rst and
its justication second. In the conclusion to the admonition, a related theo-
logical claim is made that each person is created alone in order to shov that
vhoever saves or destroys an individual saves or destroys a vhole vorld.
This assertion is apparently linked to the same piece of scriptural exegesis.
The main dierence betveen the tvo teachings is that nov the positive as-
pects of true testimony are stressed it may in fact save a life, even a vorld.
Remarkably, this broad admonition vas subsequently parochialized. In some
sources, the formulation a single Israelite life replaced a single life, and this
version is nov found in printed editions of the Mishnah.
The concern for moral probity emphasized by the judicial instruc-
tion puts the potential vitness in mind of the moral implications of his ac-
tions. The point is pivotal. After a series of supplementary explanations as to
vhy a person is created singly, the judges admonition continues vith the
theme of civic responsibility.
And perhaps you |vitnesses| vould |further| say Why should ve
|get involved in| this trouble Has it not already been vritten, He
being a vitness, vho has either seen or knovn of the matter, if he
does not give report, then he shall bear his iniquity (Iev. ) And
if perhaps you vould |also| say, Why should ve become account-
able for this |convicted| persons blood |oam| has it not already
been vritten, When the vicked perish there is rejoicing (Prov.
o)
As earlier, vhen the judge stressed the need for probity in deal-
ing vith capital cases, so nov the conscience of the vitness is appealed to.
A member of the community cannot evade involvement in dicult cases
either because of a desire to avoid sticky issues or because of the moral veight
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l Reading Rabbinic Texts
that such duties impose. Indeed, covenantal politics requires the individual
to transcend self-interest and serve the system of justiceif not initially on
the basis of eager compliance, then at least because of the authority and as-
surances of Scripture. In these cases the sources are simply cited. No further
explanation is necessary.
As a living guide to judges, this mishnah simultaneously conveys
deep cultural values. What is particularly striking is the explicit evocation
of fundamental norms of the lav the unique value of each human life, and
the responsibility of each person to bear true and active vitness to this ideal
vithin the community. The judges uphold these norms, but the sources of
the norms lie deeper, in the vords of Scripture as cited and interpreted by
the sages. This is the ultimate basis of the political theology of |udaism.
A second example takes us in a dierent hermeneutical direction.
As the guardians and teachers of Scripture, the Rabbis vere often faced vith
authoritative but noxious or outmoded rulesand this required bold re-
interpretation. Indeed, in many respects, classical Rabbinic lav emerges as
a massive reinscription of Scripture. The lav of taliou is a case in point. It
has long been a crucial but dicult topic, bearing as it does on the rationale
for retributive justice. At issue is the principle and practice of compensa-
tion for bodily injury, the measure of just exchange for death and damages.
Biblical lav provides a drastic formulation. Surely the language of life for
life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn,
vound for vound, bruise for bruise (Lxod. :::) seems to leave little
room for reinterpretationparticularly if one regards this list as literal and
comprehensive or as literal and paradigmatic. So construed, it articulates a
series of vicious penalties that vould sorely test the limits of social restraint
(vhere administered through self-help) or judicial pover (vhere adminis-
tered through the courts); and it seemingly oers no mitigating mechanisms
for accident, third-party involvement, double jeopardy, and the like.
Perhaps in part for these reasons, and also because of the highly rhe-
torical style of the list, one might suppose that the biblical rule vas never
intended to be taken literally, but rather enumerates a rhetorical list of bodily
injuries (x for x, y for y) to suggest that all torts must be suitably compensated
for, and in a vay corresponding to the degree or eect of the specic vound
involvedfor example, the loss of a foot vould require compensation for
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immediate and long-range economic loss due to the permanent disability
and for such other medical or social matters (like stigmatization) as may be
pertinent. Nov there is no vay to determine hov the rule vas read and ap-
plied in ancient Israel, but it is fair to say that some such construction of its
meaning vould seem to underlie the folloving mishnah, in vhich injuries
are clearly and vithout qualication rectied by the assessment of nancial
penalties.
One vho injures his fellov is liable on ve counts Damage, Pain,
Cure, Idleness, and Shame.
What is the |liability for| Damage If he blinded his eye,
or cut o his hand, or broke his leghe is considered as though he
vere a slave on sale in the market, and is assessed hov much vas
he vorth, and hov much is he vorth |nov|
Pain If he burned him vith a skever or |stabbed him|
vith a nail, even upon his ngernail, vhere no bruise is produced,
they estimate hovmuch a person such as this vould vant to receive
in order to endure such pain.
Cure In the vake of the injury, he must cure him. . . .
(Mishnah Bava Kama :)
This excerpt is sucient to shov the shift in style and substance
betveen the biblical rules and the Rabbinic regulations. In particular, the
mishnah is formulated as a list that gives advice to judges; therefore, typi-
cal issues are mentioned in the dierent cases, and there is no attempt at
a comprehensive formulation. Nor is everything in the vefold list of pos-
sible indemnications mentioned in Scripture. Whereas damage to limbs or
other bodily parts is covered by the biblical rule of taliou, and the categories
of medical costs and loss of income (cure and idleness) are biblical as vell
(Lxod. :,), the issues of pain and shame (or indignity) are Rabbinic inno-
vations. In any event, Scripture is not quoted in this excerpt in support of the
rules (although it is adduced later in connection vith indirect injuries), and
there is no justication vhatever for the use of monetary compensation in
all cases of injury. The fact that just assessments have their ovn diculties
particularly in the slippery cases of indignity, vhere the compensation varies
according to both the person causing shame and the person shamedis
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lii Reading Rabbinic Texts
another matter. Clearly, regulating the conditions of bias or fairness vas
deemed of lesser diculty than regulating taliou itself.
The almost complete absence of explicit scriptural justications of
mishnaic rules might lead one to suppose that the vritten lav (Torah) and
the Oral Iav (tradition) vere separate, and that the authority of Rabbinic
lav lay solely vith the jurists. The fact that most of the topics of the Mish-
nah are indebted to Scripture does not change this point in principle. What
is striking in this regard is that vhen the sages (in legal Midrash and in the
Gemara) justify a mishnaic regulation on the basis of Scripture, their pro-
cedure is often speculative and its results diverse. lixed and acknovledged
links are not the rule. This is also and notably the case in connection vith the
arguments adduced from Scripture to justify compensation for injuries. All
the pyrotechnics of Rabbinic hermeneutics are necessary to turn the trick.
One may also observe a concern to establish regulatory principles. Portions
of the opening discussion may suce to give a sense of the rhetoric involved
and of the struggle to justify the received mishnah through scriptural proof.
Being avare of this concern also helps explain the often arbitrary choice of
one argument over another in a given sugya (pericope).
Iet us rst reviev the folloving discussion, vhich opens the Ge-
mara and comes right after citation of the foregoing mishnah on injuries.
Why so |pay compensation| Lye for eye is vhat Scripture says;
perhaps it is really an eye' No, that is untenable. As has been taught
Can it be that if he blinded his eye, he blinds his eye; if he cut o
his hand, he cuts o his hand; if he broke his leg, he breaks his leg
We learn from vhat is vritten, one vho strikes a person and one
vho strikes a beast (Iev. :;:). |ust as he vho strikes a beast
makes payment, so he vho strikes a person makes payment.
If you prefer, it can be argued |thus| Scripture reads, \ou
may not accept a ransom for the life of a murderer vho is guilty of
a capital crime (Num. ). lor the life of a murderer you may
not accept a ransombut you may accept a ransom for |even| im-
portant limbs that vill not recover. . . .
What |creates the need for| If you prefer . . . The tauua
|teacher| vas yet concerned over the retort, What grounds have
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Reading Rabbinic Texts liii
you for learning from one vho strikes a beast Why not learn from
one vho strikes a person |i.e., a murderer| Well, |against that| one
may argue that the inference should be from damages to damages,
not from death to damages. Conversely |one may argue that| the
inference should be from human to human |victim|, not from beast
to human. That is vhy he teaches |further|, If you prefer, it can
be argued |thus| Scripture reads, \ou may not accept a ransom for
the life of a murderer. . . .
But is that |verse| not required to pronounce that ve may
not take money from him and let him olor that it vould be
sucient to vrite \ou may not accept a ransom for |one| vho is
guilty of a capital crime; vhy |add| the life of a murderer This
implies, lor the life of a murderer you may not accept a ransom
but you may accept a ransom for |even| important limbs that vill
not recover. (BT Bava Kama :b)
This initial portion of an extensive sugya deals vith the central ques-
tion raised by the mishnah Hov could rabbinic tradition formulate rules
about nancial compensation vhen divine vrit seems to require physical re-
taliation The stam steps in and immediately oers a counterargument from
the tradition itself (as has been taught), in vhich a verbal analogy in Scrip-
ture (strikesstrikes) is invoked to drav conclusions from the case of
striking animals (vhere compensation is the rule) to that of smiting persons.
This argument seems reasonable enough, and the just . . . so formulation
brings the point to rhetorical closure. Nevertheless, the discussion turns to
another proposal (if you prefer), draving large implications regarding in-
juries from a rule prohibiting ransom for a murderer. The rhetorical logic
is even more tenuous in this second case (putting special emphasis on vhat
is statedno ransom for one guilty of murderin order to drav the infer-
ence that payment is permitted for bodily injury); and this time only one
biblical text is adduced. The double proof underscores the concern of Rab-
binic tradition to prove from Scripture that the literal meaning of taliou is
untenable.
In a characteristic vay the sugya proceeds to examine the demon-
strations, testing the reasonableness and implications of the arguments as
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liv Reading Rabbinic Texts
vell as the force of the scriptural formulations. As can be observed from
the foregoing citation, one line of speculation vas to query vhy a second
proof vas necessary at all and vhy a biblical verse vas chosen that empha-
sizes only human beings (Num. ). The proposition is put forth that the
supplementary proof vas invoked to counter a potential veak spot in the
rst proof, vhich is grounded in an analogy comparing animals and humans.
To that retort ve hear a voice claiming that the passage from Numbers really
seems to have a dierent legal bite, and that is to prevent the manslayer from
giving a payment of money to the victims kin and going scot-free. This
reading of the verse makes inherent good (and literal) sense, but it is rejected
in a vay that reinforces the earlier proof. The interlocutor says that if Scrip-
ture (i.e., the divine legislator) vished simply to prohibit a murderer from
paying his vay out of capital punishment, the language of the rule vould
have been formulated vith that point in mind. As it is, the vording seems
redundantvhy |does Scripture add| the life of a murderer The ansver
given is that the lav vished us to drav an inference about compensation,
namely, that a ransom is prohibited in cases of murder but is permissible in
cases of damage to limbs. The assumption of this resolution is that the lav is
formulated in a precise and careful vay and that it is the task of tradition to
penetrate the intention of the Iegislator and drav the proper generalizations
and principles for noxious or impenetrable cases.
The tenuous nature of these arguments and assertions is obvious,
for every solution is subject to further analysis. In addition, numerous other
proposals are considered. They too are sensible and ingenious by turns
invoking in some instances the need for a unied principle of compensa-
tion against the potential injustice of physical retribution. Indeed, says Rabbi
Dostai, to argue for literal and equal retribution can lead to absurdities or
make the lav vholly unvorkable. Where vould justice lie in a case vhere
the eye of one person vas big and that of another smallhov could one
apply the principle of eye for eye Rabbi Shimon bar \ohai even presents
the problem of a blind tortfeasor vho puts out the eye of his neighbor, and
of an armless person vho cuts o the arm of another person. If the rule of
taliou be taken literally, hov should one act in such case And on and on
but vithout either certain resolution or conclusive scriptural varrant.
One may conclude that the entire sugya functions at best as a com-
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Reading Rabbinic Texts lv
pendium of scholastic solutions in vhich a defense of tradition is the goal. In
fact, the display of tradition at vork to justify itself may be its real pedagogi-
cal purpose. The culture thus bears vitness to its ovn passion for justice by its
repeated attempt to establish fair procedures and rules and to its legal mind
by the rigorous scrutiny of its ovn arguments and assumptions. The stam
serves here as the mind and voice of past generations and as the hermeneu-
tical model for future students vho vould learn hov to think traditionally.
This is arguably the greatest gift of Gemara to the culture.
This hermeneutical diversity brings us back to the pointed query of
Rabbi Lleazar ben Azaria, Hov can one learn Torah if there are many solu-
tions and no nal judge The ansvers of the rabbinic legal tradition may
vary, but they all depend on the virtues of probity and patience and the vill
to knov. These virtues produce a culture of exegetical intensity and debate,
of conicts and contradictions. By producing texts that display its paideia
in full viev (the interpretations, the debates, and the conicts), the literary
tradition demonstrates publicly the nature and limitations of its exegetical
solutions and the vay dierent exegetical procedures justify diverse models
of the person and society. The covenantal polity of |udaism is thus shaped
by the expansion and contraction of the Torahthrough the expansion and
contraction of ongoing tradition.
Mi.hael Iish|aue
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A||re:iatious
; chapter; used to refer to chapters in !he jeuish Ioliti.al
!raoitiou
selection; used to refer to selections in !he jeuish Ioliti.al
!raoitiou
b. benbar (= son of )
BT Babylonian Talmud
Chron. Chronicles
: Chron. : Chronicles
Dan. Daniel
Deut. Deuteronomy
Lccles. Lcclesiastes
Lxod. Lxodus
Lzek. Lzekiel
Gen. Genesis
Hab. Habakkuk
Hag. Haggai
Hos. Hosea
Isa. Isaiah
|er. |eremiah
|on. |onah
|osh. |oshua
|PS |evish Publication Society
|T |erusalem Talmud
|udg. |udges
Iam. Iamentations
Iev. Ieviticus
Macc. Maccabees
Mal. Malachi
Mic. Micah
MT Mishueh !orah (The Code of Maimonides)
Nah. Nahum
lvi
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Abbreviations lvii
Neh. Nehemiah
Num. Numbers
Obad. Obadiah
Prov. Proverbs
Ps. Psalms
R. RabbiRav
Sam. Samuel
: Sam. : Samuel
Song of Sol. Song of Solomon
\|S \ale |udaica Series
Zech. Zechariah
Zeph. Zephaniah
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!he jeuish Ioliti.al !raoitiou
voitxr i Authority
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Iutroou.tiou
|udaism is a God-centered and then a text-centered religion, vhich
is to say that it starts vith the boldest and most far-reaching of all authority
claims. An omnipotent God has delivered a sacred text. God speaks or at
least has spoken; the text can be read. What more is necessary in the vay of
authority In fact, God and text are only the beginning, for God requires
this is the |evish understandinga people prepared to listen to and obey
his vords; and the text in vhich those vords are preserved must be inter-
preted, elaborated, and applied mere reading is not enough. Hov is this
people to be organized and led Who vill speak for God in its courts, assem-
blies, and schools What structure of human authority is required by divine
and textual authority These are the questions that ve vill address in this
rst volume of !he jeuish Ioliti.al !raoitiou. they are quintessentially political
questions.
We begin vith the acceptance of the text by the people, vithout
vhichso it appearsGod vould have gone unheard in the vorld. Given
Gods omnipotence, there are many diculties about this acceptance, amply
revealed in the stories and arguments reprinted here. Nonetheless, much
hangs on the dramatic moment at Sinai vhen the people said, We vill do
and ve vill obey. Here the idea of consent enters |evish thought, vhere
it plays a large and ongoing partbut not the only part. The moral lavs of
the Torah are not only re:ealeo (and freely accepted); they are also, for many
|evish vriters, ratioual (hence, necessarily accepted). The precise character of
this rationality and vhether or hovit characterizes the ritual lavsthese are
questions much debated. But lav has in any case a double authority, vhich
is explored in our rst tvo chapters.
After that, ve consider the various human agents vho have claimed
at dierent points in |evish history to exercise political or legal authority.
Our interest is in the claims; although the chapters follov a rough chrono-
logical order, ve do not oer a history of authority relations. The agents
themselves are best grouped for our purposes into tvo categories, those vho
claimto represent, as it vere, God and the lav, and those vho claimto repre-

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sent the people or the community. Priests, prophets, and sages fall into the
rst category; ancient kings (some of the time), the good men of the tovn,
and the democratically elected rulers of contemporary Israel fall into the
second. The rst set of agents speak for a religious interest, the second, at
least potentially, for a secular interest. One critical question, reiterated in dif-
ferent versions in ancient, medieval, and modern texts is vhether or, more
realistically, hov and hov far a religious tradition can accommodate secular
authority.
Tvo chapters are anomalous. In our discussion of gentile rulers (;,),
ve do not present or examine their ovn claims to rule over their exiled and
dispersed |evish subjects but rather the account of their authority and of the
limits of that authority given by |evish vriters. (The chapter on the gen-
tile state is closely connected to Chapter :;, in Volume IV, on the idea of
exile.) And ve have doubled our discussion of the sages. Because they ruled
by arguing among themselves about the meaning and application of the lav
(as priests and prophets rarely did, at least in public), ve have added a chapter
(;) on the extent of permissible argument. Readers can get some sense from
the texts reprinted there of the critical connection betveen textual authority
and interpretive pluralism.
It is important to stress in advance that there is no single maxim
governing authority relations in the |evish vorld. There is no single court
of appeal vhen authority is disputed. Popular agreement is alvays impor-
tant, though it is as often a limit as it is a foundation. But biblical kingship
and priesthood vere hereditary; the prophets vere divinely called; the sages
vere, in modern jargon, meritocrats; the good men vere most often oli-
garchs. The question of hov vriters vho took the Sinai covenant as their
starting point made sense of all this requires a complex and nuanced ansver.
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Coos Lau auo the Ieoples Couseut
Introduction
Biblical Covenants
A..eptau.e oj the !orah
. Lxodus ,;:o:
!he Co:euaut at 8iuai
:. Lxodus ::, ::
!he Co:euaut at Moa|
. Deuteronomy :,, ,::; o:o
!he Co:euaut at 8he.hem
. |oshua :::
!he Ior.eo Co:euaut
. Lzekiel :oo, o::, o:
Ileogiug a Reueueo Co:euaut
o. Nehemiah ,:, ::o, o;; oo
Commentary. Bernard M. Ievinson, The Sinai Covenant
The Argument of Revelation
Covenant and Consent
Crouuos oj C|ligatiou
;. Melhilta Dera||i Yishmael, Bahodesh , o
A Ior.ejul Dis.laimer Regaroiug the !orah
:. BT Shabbat ::a

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Coos Bouuo 8u|je.ts
,. 8ijre ^um|ers
Commentary. Michael |. Sandel, Covenant and Consent
Ceriug the !orah to the ^atious
o. 8ijre Deuterouomy
lhe Scope of Covenantal Connitnent
Iuoi:ioual Respousi|ility
. BT Sotah ;ab
!he Co:euaut. Meauiug auo Iuteutiou
:. BT Shevuot :,ab
Iuture Ceueratious
. Isaac Abravanel, Commeutary ou the Ieutateu.h, Deuteronomy :,
Ireeoom auo ^e.essity
. |udah Ioev (Maharal of Prague), !ijeret Yisrael, Chapter :
Co:euaut as 8o.ial Coutra.t
. Baruch Spinoza, !heologi.alIoliti.al !reatise, Chapters and ;
Iutroou.tiou
Many of the central issues of modern consent theory are already
posed in biblical and Rabbinic literature. Reading these texts, one has to keep
reminding oneself that their authors vere not consent theorists and that a
covenant vith God is not the same thing as a social contract. Contract and
convenant indeed have similar eectscreating political unity and moral
obligationand at least some of the vriters represented in this chapter seem
to believe that the obligation to obey Gods lavderives, and can only derive,
from the peoples consent. But God is no equal or near equal, like all the
other parties to the social contract; nor do the people, vhen they consent,
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give the lav to themselves (as in Rousseaus version of contract theory)
they accept the lav as God gives it. And hov free can their acceptance be,
vhen the divine lavgiver is absolute and omnipotent
In the dierent midrashic elaborations of the Sinai story, only sam-
pled here, God is sometimes seen persuading the people to accept his lav
(the prophet Hosea describes him vooing Israel like a lover) and sometimes
threatening and coercing them. The rst is the more attractive account; the
second is theoretically more interesting, for the Rabbis, or some of them,
recognize that coerced consent is not morally or legally binding. So they are
driven to look for some later occasion vhen consent is given voluntarily
and they nd this only in the next to last chapter of the book of Lsther,
vhere the acceptance of the lavs of Purim by the exilic community of Per-
sian |evs is taken as a general acceptance of the lav itselffor all future time
(see Lsther ,:;). But they surely dont imagine that Israel vas uncommit-
ted and vithout obligation from the days of Moses to those of Ahasuerus. If
that vere the case, the prophetic condemnations of Israel for failing to live
up to the Sinai covenant vould make no sense.
In any case, vhether or not God vaits upon Israels consent at Sinai
or at any other time, it is clear that he need not vait at all if he does not
choose to do so he can guarantee consent by inscribing his lav not on stone
tablets but directly on the human heart, as |eremiah says he vill do in the days
to come (). Similarly, although this is not taken up in our texts, he can
guarantee rejection, as he apparently has in the past, hardening the heart,
for example, of Lgypts pharaoh. And He can compel obedience vhether his
commandments have been accepted or rejected, as Lzekiel makes clear in
the text reprinted belov. In a vorld of absolute pover, consent is alvays
problematic.
Nonetheless, it is a matter of considerable importance that Gods
revelation, according to many vriters, must be received and accepted before
it is morally binding. In the biblical account, this viev is fairly clear, but
at Sinai there is also an epiphanya sudden, overvhelming, and irresistible
manifestation of divine pover. In the midrashic parables, the Sinai events
take on a rather dierent character. In one midrash, for example, ve have
God bringing the Israelites out of Lgypt and providing vater in the desert to
vin their gratitude they agree to obey his lav because he has proven him-
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self a good king. In another, by contrast, ve have God carrying his lav from
one nation to another; he is a lavgiver vho nds no takers until he comes
to Israel (but vhy is Israel so far dovn his list). And yet another midrash de-
scribes the people assembled at the foot of the mountain to listen to a reading
of the lavnot just the Ten Commandments but the vhole of the Torah
before they accept it. The moment is certainly solemn, but nov the epiphany
is omitted entirely; Gods frightening pover is hidden, as if the people can
deliberate only in its absence, vhich is exactly vhat consent theory vould
require.
The most striking feature of this |evish understanding of consent is
its historical specicity. Israel does not accept Gods lav in some imaginary
state of nature but at a precise moment in its history and in a real place. To
be sure, this moment (after the deliverance from Lgyptian bondage) and this
place (an uninhabited vilderness) anticipate many of the features of the state
of natureas Spinoza points out. Israel has neither a regime nor a territory,
so it is uniquely situated for a freely enacted construction of the political
vorld. But the point of the biblical narrative is that the people are really
there; the construction is something that really happened. The peoples con-
sent is in no sense hypothetical; it is not the sort of consent that any rational
person vould give in idealized circumstances; it is the consent that a par-
ticular group of men and vomen actually did give.
They are bound only because they gave it. But they then face the
precise diculty that hypothetical consent is designed to avoid Hov can
they be sure that subsequent generations vill nd their consent compre-
hensible and justied and so reiterate it The Deuteronomic account of the
covenant reneval in Moab just before the crossing of the |ordan into Canaan
species that the participants include those vho are standing here vith us
this day . . . and |also| those vho are not vith us here this day (:,).
The latter group presumably includes the unborn, all the future children of
Israel. But hov can they be bound by their parents consent (or their great-
great-grandparents) Avare, perhaps, of this diculty, the biblical vriters
describe periodic renevals of the covenant, not only in Moses time but also
in |oshuas and |osiahs and, at Lzras instigation, after the return fromBabylo-
nia. The importance given to these events testies to the centrality of consent
in the biblical and then also in the Rabbinic imagination.
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But hov is this consent to be reneved and the obligation sustained
after Israels exile, vhen no such collective covenanting is possible This is
the question posed by Isaac Abravanel in a time of persecution and mass con-
version, vhen Spanish |evry endured a second exile, and then by Maharal
of Prague ( |udah Ioev) in the late sixteenth century, vhen the memory of
the Spanish disaster vas still fresh. The ansvers they gavelegalistic in the
rst case, metaphysical in the secondreveal the long-term eects of state-
lessness on |evish political thought. Although consent may still play a part
in the life of the scattered communities of the diaspora, large-scale delib-
eration and action in common are no longer possible for Israel as a vhole.
(It is vorth noting that consent theory emerged in the West only vith the
appearance of the modern state.) Perhaps |evish vriters could have vorked
out an individualist account of consent, focusing on the ritual celebration
of holidays like Passover and Simhat Torah or on the acceptance of benets
like the lav itself and the satisfaction its observance brings in daily life. But
Israels covenant is collective from the beginning, generating obligations not
only betveen God and humankind but betveen every Israelite and every
other, and an individualist account of this mutuality does not seem possible.
Abravanel is avare of all these diculties, and his statement of the
problem (though not his proposed solution) is a vonderfully explicit and
sophisticated expression of consent theory. He isnt very convincing, hov-
ever, vhen he goes on to argue that consent doesnt matter very much after
all, since Israel is the slave of God, liberated from the pharaoh only for the
sake of divine service. If that is so, vhy did Moses himself, and |oshua,
and |osiah, and Lzra, again and again assemble the people and seek their
agreement
Maharals argument from the necessity of the Torah for cosmic
order looks back to the more problematic features of medieval philosophy
only a fev decades before Hobbes and Spinoza set out on a nev path. Argu-
ments of this sort are very hard to understand today (ve are too far along that
nev path). Does Maharal mean that the cosmos is somehov constituted by
Israels acceptance of the lavvhich cannot therefore be contingent But
he recognizes at the same time that the acceptance must appear contingent,
and therefore voluntary, to the people themselves if they are to be bound
by it. Mysteriously, it is both necessary and contingent. Hov, then, are ve
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to account for the frequent disobedience of the biblical Israelites or for the
fact of apostasyamong Spanish |evs, for examplevhere cosmic necessity
seems to fall avay entirely
This chapter closes vith Spinozas modernist reinterpretation of the
Sinai covenant. lor Spinoza, the covenant vith God is purely theoreti-
cal, for each Israelite retains an equal right to consult God and interpret
his commands. The kingdom of God is something very close to anarchy
(see |udg. ::, discussed in ; Lveryone did as he pleased). God cant
have subjects of his ovn, for they vould never knov for certain, or at least
they vould never agree on, vhat he had commanded them to dounless
his vords vere delivered by some authoritative human being, vho vould
then be their actual sovereign. Israels polity, therefore, is eectively founded
only vhen the liberated people transfer their rights to Moses as the rec-
ognized bearer of Gods vord. After that, individual Israelites are bound
to obey Mosesand his successors. Spinoza carefully traces the succession,
vhich lapses vhen political independence is lost. It vould seem to follov
from this analysis that there is no obligation at all in the conditions of the
exile. Spinozas argument accounts, obviously, for his ovn behavior, but it
leaves the conviction of his |evish contemporaries that they still bear the
burden of the lav spectacularly unaccounted for. Are they bound because
they believe themselves bound That vould indeed be a kind of consent,
though not quite the kind suggested by that extraordinary moment at Sinai
vhen the people, standing together, committed themselves to God and to
one another.
Bi|li.al Co:euauts
!he jouuoiug .o:euaut at 8iuai is .oustituteo |y re:elatiou auo .ouseut, the gi:iug oj
the !orah |y Coo auo its a..eptau.e |y the people. Iu the rst oj our sele.tious, Coo
prououu.es the !eu Commauomeuts, iu the se.ouo, Moses .ou:eys to the people all
the .ommauos oj the Loro auo all the rules. Iu |oth, laugi:iug is pre.eoeo |y mutual
a:ouals oj .o:euautal .ommitmeut, uith Moses a.tiug throughout as meoiator.
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A..eptau.e oj the !orah
. Lxodus ,;:o:
Moses came and summoned the elders of the people and put before
them all that the Iord had commanded him. All the people ansvered as one,
saying, All that the Iord has spoken ve vill do' And Moses brought back
the peoples vords to the Iord. And the Iord said to Moses, I vill come to
you in a thick cloud, in order that the people may hear vhen I speak vith
you and so trust you ever after. Then Moses reported the peoples vords
to the Iord, and the Iord said to Moses, Go to the people and varn them
to stay pure today and tomorrov. Iet them vash their clothes. Iet them
be ready for the third day; for on the third day the Iord vill come dovn,
in the sight of all the people, on Mount Sinai. \ou shall set bounds for the
people round about, saying, Bevare of going up the mountain or touching
the border of it. Whoever touches the mountain shall be put to death no
hand shall touch him, but he shall be either stoned or shot; beast or man, he
shall not live. When the rams horn sounds a long blast, they may go up on
the mountain.
Moses came dovn from the mountain to the people and varned
the people to stay pure, and they vashed their clothes. And he said to the
people, Be ready for the third day do not go near a voman.
On the third day, as morning davned, there vas thunder, and light-
ning, and a dense cloud upon the mountain, and a very loud blast of the horn;
and all the people vho vere in the camp trembled. Moses led the people
out of the camp tovard God, and they took their places at the foot of the
mountain.
Nov Mount Sinai vas all in smoke, for the Iord had come dovn
upon it in re; the smoke rose like the smoke of a kiln, and the vhole moun-
tain trembled violently. The blare of the horn grev louder and louder. As
Moses spoke, God ansvered him in thunder. The Iord came dovn upon
Mount Sinai, on the top of the mountain, and the Iord called Moses to the
top of the mountain and Moses vent up. The Iord said to Moses, Go dovn,
varn the people not to break through to the Iord to gaze, lest many of them
perish. The priests also, vho come near the Iord, must stay pure, lest the
Iord break out against them. But Moses said to the Iord, The people can-
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not come up to Mount Sinai, for \ou varned us saying, Set bounds about
the mountain and sanctify it. So the Iord said to him, Go dovn, and come
back together vith Aaron; but let not the priests or the people break through
to come up to the Iord, lest He break out against them. And Moses vent
dovn to the people and spoke to them.
God spoke all these vords, saying
I the Iord am your God vho brought you out of the land of Lgypt,
the house of bondage. \ou shall have no other gods besides Me.
\ou shall not make for yourself a sculptured image, or any likeness
of vhat is in the heavens above, or on the earth belov, or in the vaters under
the earth. \ou shall not bov dovn to them or serve them. lor I the Iord
your God am a jealous
1
God, visiting the guilt of the parents upon the chil-
dren, upon the third and upon the fourth generations of those vho reject
Me, but shoving kindness to the thousandth generation of those vho love
Me and keep My commandments.
\ou shall not svear falsely by the name of the Iord your God; for
the Iord vill not clear one vho svears falsely by His name.
Remember the sabbath day and keep it holy. Six days you shall labor
and do all your vork, but the seventh day is a sabbath of the Iord your God
you shall not do any vorkyou, your son or daughter, your male or female
slave, or your cattle, or the stranger vho is vithin your settlements. lor in
six days the Iord made heaven and earth and sea, and all that is in them, and
He rested on the seventh day; therefore the Iord blessed the sabbath day and
halloved it.
Honor your father and your mother, that you may long endure on
the land that the Iord your God is assigning to you.
\ou shall not murder.
\ou shall not commit adultery.
\ou shall not steal.
\ou shall not bear false vitness against your neighbor.
\ou shall not covet your neighbors house you shall not covet your
neighbors vife, or his male or female slave, or his ox or his ass, or anything
that is your neighbors.
. Nev |PS impassioned.
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All the people vitnessed the thunder and lightning, the blare of the
horn and the mountain smoking; and vhen the people sav it, they fell back
and stood at a distance. \ou speak to us, they said to Moses, and ve vill
obey; but let not God speak to us, lest ve die. Moses ansvered the people,
Be not afraid; for God has come only in order to test you, and in order that
the fear of Him may be ever vith you, so that you do not go astray. So
the people remained at a distance, vhile Moses approached the thick cloud
vhere God vas.
!he Co:euaut at 8iuai
z. Lxodus ::, ::
Then He said to Moses, Come up to the Iord, vith Aaron, Nadab
and Abihu, and seventy elders of Israel, and bov lov from afar. Moses alone
shall come near the Iord; but the others shall not come near, nor shall the
people come up vith him.
Moses vent and repeated to the people all the commands of the
Iord and all the rules; and all the people ansvered vith one voice, saying,
All the things that the Iord has commanded ve vill do' Moses then vrote
dovn all the commands of the Iord.
Larly in the morning, he set up an altar at the foot of the moun-
tain, vith tvelve pillars for the tvelve tribes of Israel. He designated some
young men among the Israelites, and they oered burnt oerings and sac-
riced bulls as oerings of vell-being to the Iord. Moses took one part of
the blood and put it in the basins, and the other part of the blood he dashed
against the altar. Then he took the record of the covenant and read it aloud
to the people. And they said, All that the Iord has spoken ve vill faith-
fully do' Moses took the blood and dashed it on the people and said, This
is the blood of the covenant that the Iord nov makes vith you concerning
all these commands. . . .
The Iord said to Moses, Come up to Me on the mountain and vait
there, and I vill give you the stone tablets vith the teachings and command-
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ments vhich I have inscribed to instruct them.
2
So Moses and his attendant
|oshua arose, and Moses ascended the mountain of God. To the elders he had
said, Wait here for us until ve return to you. \ou have Aaron and Hur vith
you; let anyone vho has a legal matter approach them.
When Moses had ascended the mountain, the cloud covered the
mountain. The Presence of the Iord abode on Mount Sinai, and the cloud
hid it for six days. On the seventh day He called to Moses from the midst of
the cloud. Nov the Presence of the Iord appeared in the sight of the Israel-
ites as a consuming re on the top of the mountain. Moses vent inside the
cloud and ascended the mountain; and Moses remained on the mountain
forty days and forty nights.
!he |i|li.al uarrator .learly :ieueo the .o:euaut origiually maoe at 8iuai as requir
iug periooi. reiteratious auo reueuals. !he rst tuo oj these tale pla.e a geueratiou
ajter 8iuai, at tuo oj the uatious jormati:e momeuts. just |ejore euteriug iuto the
lauo ( ,) auo upou apportiouiug the lauo at the .ou.lusiou oj the .ouquest ( ,). Ajter
the oestru.tiou oj the Iirst Commouuealth early iu the sixth .eutury ..., some oj
the juoeau exiles iu Ba|ylouia appareutly oou|teo the .outiuueo :alioity oj the .o:e
uaut auo sought assimilatiou. Iu respouse, the prophet L:eliel ( ,) pro.laimeo Coos
uu.ompromisiug .ommitmeut to upholo his .o:euaut uhether the people agreeo or uot.
!he Co:euaut at Moa|
. Deuteronomy :,, ,::; o:o
Moses summoned all Israel and said to them . . .
\ou stand this day, all of you, before the Iord your Godyour
tribal heads, your elders and your ocials, all the men of Israel, your chil-
dren, your vives, even the stranger vithin your camp, from voodchopper
to vaterdraverto enter into the covenant of the Iord your God, vhich
the Iord your God is concluding vith you this day, vith its sanctions; to the
:. Deut. o makes explicit reference to Ten Commandments.
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end that He may establish you this day as His people and be your God, as He
promised you and as He svore to your fathers, Abraham, Isaac, and |acob. I
make this covenant, vith its sanctions, not vith you alone, but both vith
those vho are standing here vith us this day before the Iord our God and
vith those vho are not vith us here this day.
Well you knov that ve dvelt in the land of Lgypt and that ve
passed through the midst of various other nations; and you have seen the de-
testable things and the fetishes of vood and stone, silver and gold, that they
keep. Perchance there is among you some man or voman, or some clan or
tribe, vhose heart is even nov turning avay from the Iord our God to go
and vorship the gods of those nationsperhaps there is among you a stock
sprouting poison veed and vormvood. When such a one hears the vords
of these sanctions, he may fancy himself immune, thinking, I shall be safe,
though I follov my ovn villful heartto the utter ruin of moist and dry
alike. The Iord vill never forgive him; rather vill the Iords anger and jeal-
ousy
3
rage against that man, till every sanction recorded in this book comes
dovn upon him, and the Iord blots out his name from under heaven.
The Iord vill single them out from all the tribes of Israel for mis-
fortune, in accordance vith all the sanctions of the covenant recorded in
this book of Teaching |torah|. And later generations vill askthe children
vho succeed you, and foreigners vho come from distant lands and see the
plagues and diseases that the Iord has inicted upon that land, all its soil
devastated . . . just like the upheaval of Sodom and Gomorrah, Admah and
Zeboiim, vhich the Iord overthrev in His erce angerall nations vill
ask, Why did the Iord do thus to this land Wherefore that avful vrath
They vill be told, Because they forsook the covenant that the Iord, God of
their fathers, made vith them vhen He freed them from the land of Lgypt;
they turned to the service of other gods and vorshiped them, gods vhom
they had not experienced and vhom He had not allotted to them. So the
Iord vas incensed at that land and brought upon it all the curses recorded in
this book. The Iord uprooted them from their soil in anger, fury, and great
vrath, and cast them into another land, as it is this day.
4
. Nev |PS passion.
. Nev |PS is still the case.
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Concealed acts concern the Iord our God; but vith overt acts, it
is for us and our children ever to apply all the provisions of this Teaching
|torah|. . . .
Surely, this Instruction |mit::ah| vhich I enjoin upon you this day
is not too baing for you, nor is it beyond reach. It is not in heaven,
5
that
you should say, Who among us can go up to heaven and get it for us and
impart it to us, that ve may observe it Neither is it beyond the sea, that
you should say, Who among us can cross to the other side of the sea and
get it for us and impart it to us, that ve may observe it No, the thing is
very close to you, in your mouth and in your heart, to observe it.
See, I set before you this day life and prosperity, death and adversity.
lor I command you this day, to love the Iord your God, to valk in His vays,
and to keep His commandments, His lavs, and His rules, that you may thrive
and increase, and that the Iord your God may bless you in the land that you
are about to enter and possess. But if your heart turns avay and you give no
heed, and are lured into the vorship and service of other gods, I declare to
you this day that you shall certainly perish; you shall not long endure on the
soil that you are crossing the |ordan to enter and possess. I call heaven and
earth to vitness against you this day I have put before you life and death,
blessing and curse. Choose lifeif you and your ospring vould liveby
loving the Iord your God, heeding His commands, and holding fast to Him.
lor thereby you shall have life and shall long endure upon the soil that the
Iord your God svore to your ancestors, Abraham, Isaac, and |acob, to give
to them.
!he Co:euaut at 8he.hem
. |oshua :::
|oshua assembled all the tribes of Israel at Schechem. He summoned
Israels elders and commanders, magistrates and ocers; and they presented
themselves before God. Then |oshua said to all the people, Thus said the
. Nev |PS the heavens.
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Iord, the God of Israel In olden times, your forefatherTerah, father of
Abraham and father of Nahorlived beyond the Luphrates and vorshiped
other gods. But I took your father Abraham from beyond the Luphrates and
led him through the vhole land of Canaan and multiplied his ospring. I
gave himIsaac, and to Isaac I gave |acob and Lsau. I gave Lsau the hill country
of Seir as his possession, vhile |acob and his children vent dovn to Lgypt.
Then I sent Moses and Aaron, and I plagued Lgypt vith the von-
ders that I vrought in their midst, after vhich I freed youI freed your
fathersfrom Lgypt, and you came to the Sea. But the Lgyptians pursued
your fathers to the Sea of Reeds vith chariots and horsemen. They cried out
to the Iord, and He put darkness betveen you and the Lgyptians; then He
brought the Sea upon them, and it covered them. \our ovn eyes sav vhat
I did to the Lgyptians.
After you had lived a long time in the vilderness, I brought you
to the land of the Amorites vho lived beyond the |ordan. They gave battle
to you, but I delivered them into your hands; I annihilated them for you,
and you took possession of their land. Thereupon Balak son of Zippor, the
king of Moab, made ready to attack Israel. He sent for Balaam son of Beor
to curse you, but I refused to listen to Balaam; he had to bless you, and thus
I saved you from him.
Then you crossed the |ordan and you came to |ericho. The citi-
zens of |ericho and the Amorites, Perizzites, Canaanites, Hittites, Girgashites,
Hivites, and |ebusites fought you, but I delivered them into your hands. I
sent a plague ahead of you, and it drove them out before you| just like|
the tvo Amorite kingsnot by your svord or by your bov. I have given
you a land for vhich you did not labor and tovns vhich you did not build,
and you have settled in them; you are enjoying vineyards and olive groves
vhich you did not plant.
Nov, therefore, revere the Iord and serve Him vith undivided
loyalty; put avay the gods that your forefathers served beyond the Luphra-
tes and in Lgypt, and serve the Iord. Or, if you are loath to serve the Iord,
choose this day vhich ones you are going to servethe gods that your fore-
fathers served beyond the Luphrates, or those of the Amorites in vhose land
you are settled; but I and my household vill serve the Iord.
In reply, the people declared, lar be it from us to forsake the Iord
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and serve other gods' lor it vas the Iord our God vho brought us and our
fathers up from the land of Lgypt, the house of bondage, and vho vrought
those vondrous signs before our very eyes, and guarded us all along the vay
that ve traveled and among all the peoples through vhose midst ve passed.
And then the Iord drove out before us all the peoplesthe Amoritesthat
inhabited the country. We too vill serve the Iord, for He is our God.
|oshua, hovever, said to the people, \ou vill not be able to serve
the Iord, for He is a holy God. He is a jealous God; He vill not forgive your
transgressions and your sins. If you forsake the Iord and serve alien gods, He
vill turn and deal harshly vith you and make an end of you, after having
been gracious to you. But the people replied to |oshua, No, ve vill serve
the Iord' Thereupon |oshua said to the people, \ou are vitnesses against
yourselves that you have by your ovn act chosen to serve the Iord. \es, ve
are' they responded. Then put avay the alien gods that you have among
you and direct your hearts to the Iord, the God of Israel. And the people
declared to |oshua, We vill serve none but the Iord our God, and ve vill
obey none but Him.
On that day at Shechem, |oshua made a covenant for the people and
he made a xed rule for them. |oshua recorded all this in a book of divine
instruction. He took a great stone and set it up at the foot of the oak in the
sacred precinct of the Iord; and |oshua said to all the people, See, this very
stone shall be a vitness against us, for it heard all the vords that the Iord
spoke to us; it shall be a vitness against you, lest you break faith vith your
God. |oshua then dismissed the people to their allotted portions.
!he Ior.eo Co:euaut
. Lzekiel :oo, o::, o:
In the seventh year, on the tenth day of the fth month, certain
elders of Israel came to inquire of the Iord, and sat dovn before me. And
the vord of the Iord came to me
O mortal, speak to the elders of Israel and say to them Thus said
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the Iord God Have you come to inquire of Me As I live, I vill not respond
to your inquirydeclares the Iord God.
Arraign, arraign them, O mortal' Declare to them the abhorrent
deeds of their fathers. Say to them Thus said the Iord God
On the day that I chose Israel, I gave My oath to the stock of the
House of |acob; vhen I made Myself knovn to them in the land of Lgypt, I
gave my oath to them. When I said, I the Iord am your God, that same day
I svore to them to take them out of the land of Lgypt into a land oving
vith milk and honey, a land vhich I had sought out for them, the fairest of
all lands. . . .
I brought them out of the land of Lgypt and I led them into the
vilderness. I gave them My lavs and taught them My rules, by the pursuit
of vhich a man shall live. Moreover, I gave them My sabbaths to serve as a
sign betveen Me and them, that they might knov that it is I the Iord vho
sanctify them. But the House of Israel rebelled against Me in the vilderness;
they did not follov My lavs and they rejected My rulesby the pursuit
of vhich a man shall liveand they grossly desecrated My sabbaths. Then
I thought to pour out My fury upon them in the vilderness and to make
an end of them; but I acted for the sake of My name, that it might not be
profaned in the sight of the nations before vhose eyes I had led them out.
Hovever, I svore to them in the vilderness that I vould not bring them
into the land oving vith milk and honey, the fairest of all lands, vhich I
had assigned |to them|, for they had rejected My rules, disobeyed My lavs,
and desecrated My sabbaths; their hearts folloved after their fetishes. But I
had pity on them and did not destroy them; I did not make an end of them
in the vilderness.
I varned their children in the vilderness Do not follov the prac-
tices of your fathers, do not keep their vays, and do not dele yourselves
vith their fetishes. I the Iord am your God lollov My lavs and be care-
ful to observe My rules. And hallov My sabbaths, that they may be a sign
betveen Me and you, that you may knov that I the Iord am your God.
But the children rebelled against Me they did not follov My lavs
and did not faithfully observe My rules, by the pursuit of vhich man shall
live; they profaned My sabbaths. Then I resolved to pour out My fury upon
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them, to vent all My anger upon them, in the vilderness. But I held back
My hand and acted for the sake of My name, that it might not be profaned
in the sight of the nations before vhose eyes I had led them out. . . .
Nov say to the House of Israel Thus said the Iord God If you de-
le yourselves as your fathers did and go astray after their detestable things,
and if to this very day you dele yourselves in the presentation of your gifts
by making your children pass through the re to all your fetishes, shall I re-
spond to your inquiry, OHouse of Israel As I livedeclares the Iord God
I vill not respond to you. And vhat you have in mind shall never come to
passvhen you say, We vill be like the nations, like the families of the
lands, vorshiping vood and stone. As I livedeclares the Iord GodI vill
reign over you vith a strong hand, and vith an outstretched arm, and vith
overoving fury. With a strong hand and an outstretched arm and over-
oving fury I vill bring you out from the peoples and gather you from the
lands vhere you are scattered, and I vill bring you into the vilderness of
the peoples; and there I vill enter into judgment vith you face to face. As
I entered into judgment vith your fathers in the vilderness of the land of
Lgypt, so vill I enter into judgment vith youdeclares the Iord God. I
vill make you pass under the shepherds sta, and I vill bring you into the
bond of the covenant. I vill remove from you those vho rebel and trans-
gress against Me; I vill take them out of the countries vhere they sojourn,
but they shall not enter the Iand of Israel. Then you shall knov that I am
the Iord.
Ileogiug a Reueueo Co:euaut
. Nehemiah ,:, ::o, o;; oo
!he ual .o:euaut re.oroeo iu the Bi|le is that oj the exiles uho returueo jrom Ba|ylou
auo uouassem|leo iu jerusalem (s.holarly guesses a|out the oate oj the assem|ly mostly
jo.us ou the mioole years oj the jth .eutury ..., uheu juoah uas uuoer Iersiau
rule). Although its uormati:e .outeut is |aseo upou earlier .o:euauts, this .o:euaut is
uuique iu that it is iuitiateo |y humaus. It tales the jorm oj a mutual pleoge (ama-
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nah) oj the .ommuuity oj Israelites touaro Coo rather thau the jorm oj a .o:euaut
(berit) preseuteo |y Coo to humaus.
On the tventy-fourth day of this month, the Israelites assembled, fasting,
in sackcloth, and vith earth upon them. Those of the stock of Israel sepa-
rated themselves from all foreigners, and stood and confessed their sins and
the iniquities of their fathers. Standing in their places, they read from the
scroll of the Teaching of the Iord their God for one-fourth of the day, and
for another fourth they confessed and prostrated themselves before the Iord
their God. On the raised platform of the Ievites stood |eshua and Bani, Kad-
miel, Shebaniah, Bunni, Sherebiah, Bani, and Chenani, and cried in a loud
voice to the Iord their God. The Ievites |eshua, Kadmiel, Bani, Hashabniah,
Sherebiah, Hodiah, and Pethahiah said, Rise, bless the Iord your God vho
is from eternity to eternity May \our glorious name be blessed, exalted
though it is above every blessing and praise'
\ou alone are the Iord. \ou made the heavens, the highest heavens,
and all their host, the earth and everything upon it, the seas and everything
in them. \ou keep them all alive, and the host of heaven prostrate them-
selves before \ou. \ou are the Iord God, vho chose Abram, vho brought
him out of Ur of the Chaldeans and changed his name to Abraham. lind-
ing his heart true to \ou, \ou made a covenant vith him to give the land of
the Canaanite, the Hittite, the Amorite, the Perizzite, the |ebusite, and the
Girgashiteto give it to his descendants. And \ou kept \our vord, for \ou
are righteous. . . . The sons came and took possession of the land \ou sub-
dued the Canaanite inhabitants of the land before them; \ou delivered them
into their pover, both their kings and the peoples of the land, to do vith
them as they pleased. They captured fortied cities and rich lands; they took
possession of houses lled vith every good thing, of hevn cisterns, vine-
yards, olive trees, and fruit trees in abundance. They ate, they vere lled, they
grev fat; they luxuriated in \our great bounty. Then, defying \ou, they re-
belled; they cast \our Teaching behind their back. They killed \our prophets
vho admonished them to turn them back to \ou; they committed great im-
pieties. . . . \ou bore vith them for many years, admonished them by \our
spirit through \our prophets, but they vould not give ear, so \ou delivered
them into the pover of the peoples of the lands. Still, in \our great com-
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passion \ou did not make an end of them or abandon them, for \ou are a
gracious and compassionate God.
And nov, our God, great, mighty, and avesome God, vho stays
faithful to His covenant, do not treat lightly all the suering that has over-
taken usour kings, our ocers, our priests, our prophets, our fathers, and
all \our peoplefrom the time of the Assyrian kings to this day. Surely \ou
are in the right vith respect to all that has come upon us, for \ou have acted
faithfully, and ve have been vicked. Our kings, ocers, priests, and fathers
did not follov \our Teaching, and did not listen to \our commandments or
to the varnings that \ou gave them. When they had their ovn kings and
enjoyed the good that \ou lavished upon them, and the broad and rich land
that \ou put at their disposal, they vould not serve \ou, and did not turn
from their vicked deeds. Today ve are slaves, and the land that \ou gave our
fathers to enjoy its fruit and bountyhere ve are slaves on it' On account
of our sins it yields its abundant crops to kings vhom \ou have set over us.
They rule over our bodies and our beasts as they please, and ve are in great
distress.
In viev of all this, ve make this pledge and put it in vriting; and
on the sealed copy |are subscribed| our ocials, our Ievites, and our priests.
On the sealed copy |are subscribed| Nehemiah the Tirshatha son
of Hacaliah and Zedekiah, Seraiah, Azariah, |eremiah, Pashhur, Amariah,
Malchijah, Hattush, Shebaniah, Malluch, Harim, Meremoth, Obadiah,
Daniel, Ginnethon, Baruch, Meshullam, Abijah, Mijamin, Maaziah, Bilgai,
Shemaiah; these are the priests.
And the Ievites |eshua son of Azaniah, Binnui of the sons of Hena-
dad, and Kadmiel. And their brothers Shebaniah, Hodiah, Kelita, Pelaiah,
Hanan, Mica, Rehob, Hashabiah, Zaccur, Sherebiah, Shebaniah, Hodiah,
Bani, and Beninu.
The heads of the people Parosh, Pahath-moab, Llam, Zattu, Bani,
Bunni, Azgad, Bebai, Adonijah, Bigvai, Adin, Ater, Hezekiah, Azzur, Ho-
diah, Hashum, Bezai, Hariph, Anathoth, Nebai, Magpiash, Meshullam,
Hezir, Meshezabel, Zadok, |addua, Pelatiah, Hanan, Anaiah, Hoshea, Hana-
niah, Hasshub, Hallohesh, Pilha, Shobek, Rehum, Hashabnah, Maaseiah, and
Ahiah, Hanan, Anan, Malluch, Harim, Baanah.
And the rest of the people, the priests, the Ievites, the gatekeep-
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ers, the singers, the temple servants, and all vho separated themselves from
the peoples of the lands to |follov| the Teaching of God, their vives, sons
and daughters, all vho knov enough to understand, join vith their noble
brothers, and take an oath vith sanctions to follov the Teaching of God,
given through Moses the servant of God, and to observe carefully all the
commandments of the Iord our Iord, His rules and lavs.
Namely We vill not give our daughters in marriage to the peoples
of the land, or take their daughters for our sons.
The peoples of the land vho bring their vares and all sorts of food-
stu for sale on the sabbath dayve vill not buy from them on the sabbath
or a holy day.
We vill forgo |the produce of | the seventh year, and every out-
standing debt.
We have laid upon ourselves obligations To charge ourselves one-
third of a shekel yearly for the service of the House of our God. . . .
We have cast lots |among| the priests, the Ievites, and the people,
to bring the vood oering to the House of our God by clans annually at set
times in order to provide fuel for the altar of the Iord our God, as is vritten
in the Teaching |torah|.
And |ve undertake| to bring to the House of the Iord annually
the rst fruits. . . .
We vill bring to the storerooms of the House of our God the rst
part of our dough, and our gifts |of grain|, and of the fruit of every tree,
vine and oil for the priests, and the tithes of our land for the Ievites. . . .
We vill not neglect the House of our God.
Connentary. The Sinai Covenant The Argument of Revelation
Ancient Israelite authors almost never vrote propositionally; in-
stead, they employed narrative, lav, and other conventional literary genres
to express their ideas. Lven vhen biblical vriters sought to express nevcon-
ceptions of religion, social structure, or human values, their ideas assumed
the forms of historical narrative and legal stipulation rather than appearing
as the propositional formulations familiar to modern readers. Commentary
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on the Bible thus becomes an exercise in the recovery of meaning not only
the scholarly task of explaining older language and custom through history,
linguistics, and archaeology but also the eort to give the ancient vriters
their intellectual due by shoving hov any given text represents an intel-
lectual position. This means reconstructing the argument of the text in its
ovn terms and then engaging it not merely as an ancient but also as a con-
temporary armation. With the narrative of \ahvehs revelation at Mount
Sinai, vhere an argument for a nevconception of authority and community
is shrouded in the metaphor of a mountain as the site of divine revelation
a mountain itself shrouded in smoke, re, and cloudthese issues are most
acute.
To begin vith, vhat is striking in the biblical account of the Sinai
covenant is that the promulgation of lav is embedded in a larger narrative,
vithout vhich it is incomplete the covenant exists in history. Although
the revelation is situated in literary terms as a foundational moment in the
history of the nation, from the vantage point of most scholarship, the ter-
minology and concept of covenant (|erit) more likely represent the per-
spective of later vriters associated vith the Deuteronomic movement of the
seventh century i.c.r. lor these vriters, the narrative of the Sinai covenant
represents an ex post facto statement of rst principles. The claim is that
Israel vas constituted as a people at Sinai vhen \ahveh revealed himself
as the God vho enters into a covenantal relationship vith his people. The
divine proclamation of covenantal lav is as much a moment of creation as
vhen God spoke to bring the vorld into being in Genesis . It is through the
Sinai covenant that the nation gains its identity and history, both its past as a
people redeemed from slavery and its future, vhich is given in the mandate
to minister to the vorld \ou shall become for me a kingdom of priests and
a holy nation (Lxod. ,o; my translation).
This originary momentthe moral and legal constitution of Israel
is completely separated from the beginning of the narrative vithin vhich
it is contained the account of creation in Genesis . Neither the nation nor its
lavs existed fromthe beginning of time. The election of the nation, vhereby
it vas brought into a special relationship to God, derives from history, not
from cosmological destiny. With these premises the ancient Israelite author
proposes a very dierent model of lavand national existence than is evident
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Biblical Covenants :
in the older literature of ancient Babylon, for example, vhich provides prob-
ably the closest parallel to the biblical material and vhich Israelite scribes
almost certainly knev, directly or indirectly. Iike the account of Sinai, the
Iavs of Hammurabi (c. ; i.c.r.) vere embedded in a literary frame that
explains their origin and authority but there, the election of Babylon, vith
its temple, and the appointment of Hammurabi, its king, represent divine
destiny decreed from the beginning of time, independent of human history
or agency. All that is assumed as absolute in this ancient Near Lastern lit-
erary text is implicitly called into question by the biblical author, vho be-
gins vith universal history rather than national ideology, vho removes des-
tiny from history, vho vrites Israel out of creation. This vriters account
of Sinai entails the radical and utopian argument that the existence of the
nation is conditional upon the peoples assent and ongoing commitment to
the covenant
Thus shall you say to the House of |acob and tell the House of Israel
\ou have seen vhat I have done to Lgypt, hov I have borne you
upon the vings of eagles and brought you to me. Nov, if you truly
obey me and observe my covenant, then you shall become to me
more treasured than all the other peoples, for the entire earth is
mine. Indeed, you shall become to me a kingdom of priests and a
holy nation' These are the vords that you shall speak to the Israel-
ites. (Lxod. ,o; my translation)
Lverything hangs upon that introductory if (im). What is left un-
said is telling the consequences of disobedience. Perhaps the metaphor of
Israel as a vulnerable edgling carried upon \ahvehs back accounts for the
disinclination, in this moment of intimacy, to spell out the if not. But that
alternative is no less present for being unspoken. It is remarkable that the
very text that sets forth the idealized beginnings of the nation in divine elec-
tion simultaneously places that concept under critical scrutiny. The nations
existence is not an absolute end in itself but is contingent upon obedience to
moral lav. The founding moment is a fragile moment that already contains
an implicit challenge and varning. The texts authors, even in their myth
of origins, incorporate a notion of critique that seeks to avert chauvinism.
Almost certainly, later editors have cast the promise of election in light of
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:o Covenant
the vicissitudes of history. But there is a larger point to be made. The assent
necessary for participation in the covenant cannot simply be that onetime
original agreement emphasized by the narrator The eutire people ansvered
simultaueously, saying All that \ahveh has spoken, ve shall do (Lxod. ,:;
my translation). Assent must continue for each generation vithin ancient
Israel and must nally include the assent of the reader, vho is invited to enter
the narrative of election and vho, in the direct address of the Decalogue, is
summoned to participate in the covenant.
History is revealed as covenantal and existence becomes a moral
postulate. There is no precedent in the literature of the ancient Near Last for
an entire nation to be directly addressed by a deity. Although the literary
representation of a theophany accompanied by natural phenomena like the
trembling of the earth and the quaking of mountains vas not original to an-
cient Israel, any more than the literary genre of lav vas, an entire cluster of
features distinguish Lxodus ,:o from Ugaritic or Babylonian exemplars.
Unique in the Sinai narrative is the conception of a god vho reveals him-
self publicly to an entire nation, cutting across boundaries of class, gender,
and ethnicity. The divine revelation takes the form of a direct address to
the people in vhich God proclaims his vill as the lav that constitutes the
terms of the covenantal relationship betveen nation and deity. The form is
the content the direct address to the people requires a human response to
the divine initiative. The content is the form \ahveh reveals the covenant
as the structure of human community.
The literary structure of the Decalogue (Lxod. :o:;) is remark-
able. In the divine proclamation of the covenant, God, speaking as I, di-
rectly addresses each Israelite as Thou, ungrammatically using the intimate
singular form rather than the expected plural. Lach addressee thereby knovs
himself or herself to be directly addressed by God. Within the narrative
structure, each former slave, vho previously lacked all sense of history and
community, acquires an I at Sinai. The transformation of the slave into a
person in narrative terms points to the direct address as requiring a personal
responsethe creation of a moral selfon the part of the reader or hearer.
But that self is not conceptualized as existing only in a relation of service
to the deity. Indeed, there is no mention of the deity in the second half of
the Decalogue, vhich stipulates rather the addressees duties to other mem-
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Consent :;
bers of the community. The covenant creates the neighbor just as it creates
the self. Adherence to the covenant brings into being a community of moral
agents. The moral agent is also a historical agent the future of the nation
hangs upon hov I treat my neighbor.
The radical argument of this text is that there exists neither fate
nor chance history is contingent upon moral action; there is no theology
vithout history, no duties to God vithout duties to the neighbor, no self
except one that is construed in and through relationships to God and neigh-
bor, no community or polity vithout covenant and revelation. The dialec-
tical relationship betveen deity and people fundamental to the notion of
covenant carries vith it a clear risk of becoming broken, absolutized either
into unconditional heteronomy (passive dependence upon the vill of God,
understood as entirely other, vhereby agency and history are lost) or into
unconditional agency, vhich is to say, tyranny (the absolute self independent
of all commitment to the other). The repeated reformulations and renevals
of the covenant throughout the Bible emphasize hov central it vas to an-
cient Israels political and religious discourse. That it provides the structure
of mutualityfor placing self and other in a relationship and for conceiving
the polity as a communityvarrants the attention of modern readers.
Beruaro M. Le:iusou
Co:euaut auo Couseut
Crouuos oj C|ligatiou
). Melhilta Dera||i Yishmael, Bahodesh , o
!his miorash oes.ri|es the uegotiatious |etueeu Coo auo Israel leaoiug up to the 8iuai
.o:euaut. It employs the para|le.ommou iu Ra||iui. literatureoj Coo as a liug
auo pro:ioes typi.al grouuos jor esta|lishiug o|ligatiou to a so:ereigu.
() I the Iord am your God (Lxod. :o:). Why vere the Ten Command-
ments not proclaimed at the beginning of the Torah A parable vhat is this
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:: Covenant
like Iike a human king vho entered a province |meoiuah| and said to the
people Shall I reign over you They replied Have \ou conferred upon us any
benet that you should reign over us What did he do |then| He built the
city vall for them, he brought in the vater supply for them, and he fought
their battles. |Then| he said to them Shall I reign over you They replied
\es, yes. Similarly, God brought the Israelites out of Lgypt, parted the sea
for them, sent dovn the manna for them, brought up the vell for them,
brought the quails for them |and| fought for them the battle vith Amalek.
|Then| He said to them Shall I reign over you They replied \es, yes. . . .
(o) \ou shall have no other Gods besides Me (Lxod. :o). . . .
A parable A human king entered a province |meoiuah|. His servants said to
him Issue decrees upon the people. He ansvered No' Once they have ac-
cepted my reign I shall issue decrees upon them. If they do not accept my
reign, vhy should they accept my decrees
Similarly, God said to Israel I the Iord am your God vho brought
you out of the land of Lgypt. \ou shall have no other gods. He |thus| said
to them Am I He vhose reign you have accepted in Lgypt They replied
\es; |so He vent on|Nov, just as you have accepted My reign, accept
My decrees.
A Ior.ejul Dis.laimer Regaroiug the !orah
8. BT Shabbat ::a
!he ois.ussiou here iutroou.es the |olo propositiou that Israels iuitial a..eptau.e oj the
!orah uas .oer.eoauo therejore uot |iuoiug. !his latter impli.atiou is expresseo |y
the term modaa (ois.laimer), orauiug au aualogy to a oo.umeut assertiug that .oer.i:e
pressure has |eeu applieo, uhi.h ser:es to auuul a oeeo oj sale sigueo uuoer ouress (.j.
B! Ba:a Batra ,:|).
. . . And they took their places at the foot of the mountain
6
(Lxod. ,;)
Rabbi Avdimi b. Hama b. Hasa said, this teaches that the Holy One held the
o. Iiterally, under the mountain.
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Consent :,
mountain over them like an |overturned| tub and told them If you accept
the Torahvell and ne; othervise, you vill be buried right there.
Rav Aha b. |acob said This furnishes a poverful disclaimer |mooaa|
regarding the |acceptance of the| Torah. |Rashi. So if He arraigns them, de-
manding Why have you failed to observe that vhich you accepted they
can respond that the acceptance vas coerced.|
Rava said Nevertheless, they rearmed its acceptance in the days
of Ahasuerus, as vritten, The |evs conrmed and accepted (Lsther ,:;)
they conrmed that vhich they had already accepted.
Coos Bouuo 8u|je.ts
. 8ijre ^um|ers
!his miorash agaiu tales the jorm oj a royal para|le auo, orauiug upou L:eliel (,),
.hara.teri:es the .o:euaut as a relatiouship oj su|je.tiou. Its poiut oj oeparture is the
last :erse oj the |i|li.al text .ommauoiug the ueariug oj ritual jriuges, uhi.hlile
mauy other .ommauomeutseuos |y rejerriug to the Lxoous.
Thus you shall be reminded to observe all My commandments and to be
holy to your God. I am the Iord your God, vho brought you out of the
land of Lgypt to be your God I, the Iord your God (Num. o).
Why is the Lxodus mentioned in connection vith each and every
mit::ah |commandment|
Aparable vhat is this like Iike a king vhose friends son vas taken
captive. When he redeemed him, he did not redeem him as a freeman but
as a slave, so that if the king issues |decrees| and the son resists, he can say
to him \ou are my slave' When they came into the city, |the king| in-
structed him Put my sandals on my feet; carry my garments before me to
the bathhouse' The |friends| son started pulling avay; he then produced
the deed and said to him \ou are my slave'
Similarly, vhen the Holy One redeemed the seed of Abraham, his
friend, He did not redeem them as freemen but as slaves, so that if He issues
|decrees| and they resist, He can say to them \ou are My slaves' When they
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o Covenant
emerged into the desert, he issued to them some minor mit::ot and some
major mit::ot, such as the Sabbath, incest, fringed garments, and phylacter-
ies. Israel started pulling avay; He then said to them \ou are My slaves' It
is on this condition that I redeemed youthat I shall issue |decrees| and you
obey.
I, the Iord your GodWhy is this repeated Is it not vritten
already, I am the Iord your God, vho brought you out of the land of
Lgypt Why vrite again, I, the Iord your God So that Israel should not
say, What vas the point of God commanding usvasnt it so that ve ob-
serve |His commandments| and receive a revard Iet us neither observe |His
commandments| nor receive a revard' |ust as Israel asked Lzekiel |Certain
elders of Israel came to inquire of the Iord (Lzek. :o)| If a slave is sold
by his master, is he not then outside his pover He ansvered \es. They
said to him Since God has sold us over to the nations of the vorld, ve are
outside His pover. He ansvered them If a slave is sold by his master on
condition that he be returned |after a time|, is he outside his pover
And vhat you have in mind shall never come to passvhen you
say, We vill be like the nations, like the families of the lands, vorshiping
vood and stone. As I livedeclares the Iord GodI vill reign over you
vith a strong hand, and vith an outstretched arm, and vith overoving
fury (Lzek. :o:). With a strong handthat is the plague, as vritten,
The hand of the Iord vill strike (Lxod. ,). And vith an outstretched
armthat is the svord, as vritten, Adravn svord in his hand outstretched
against |erusalem ( Chron. :o). And vith overoving furythat is
starvation. Once I have brought upon you these three calamities one after
another, I vill reign over you against your villthat is vhy it is repeated,
I, the Iord your God.
Connentary. Covenant and Consent
At Sinai the people of Israel made a covenant vith God to obey
his lav. But vhy vas their consent necessary Why didnt God simply hand
dovn the lav Social contract theory suggests a possible ansver. Obligation
arises fromconsent; people are bound to obey only those authorities and lavs
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they choose for themselves. Since every man is master of himself, Rousseau
argues, no one can, under any pretext vhatever, place another under sub-
jection vithout his consent (8o.ial Coutra.t IVii). As Hobbes vrites, there
is no obligation on any man, vhich ariseth not from some act of his ovn
(Le:iathau, chap. :).
It might be objected that the covenant vas no ordinary social con-
tract. Were the people of Israel really free to accept or reject Gods lav
And even if their consent vas freely given, did the act of consent .reate the
obligation to obey, or did it recognize and arm a preexisting obligation
The Rabbis struggle vith these questions, but not in a vay that reveals a
fundamental dierence betveen Gods covenant vith Israel and other social
contracts. To the contrary, their commentaries highlight a tension endemic
to consent theorybetveen consent as a source of obligation and consent
as a vay of acknovledging an obligation that exists independently of the
contract. Their attempts to account for the moral force of the covenant illus-
trate a paradox that besets all contract arguments The more compelling the
grounds for consenting to a lav or political arrangement, the less true it is
that the act of consent creates the obligation to obey.
The notion that obligation depends on consent underlies the dis-
pute, in BT Shabbat ::a, about vhether Israels acceptance of the Torah vas
invalid due to coercion. The Talmud tells us that God secured the agreement
of the people by holding the mountain over their heads and threatening to
destroy them. Rav Aha b. |acob argues that this act of coercion undermines
the obligation to keep the commandments. |ust as a commercial contract
signed under duress does not bind, neither does a coerced covenant vith
God. Rava accepts the premise but nds a vay out. The |evs rearmed their
acceptance in the days of Ahasuerus, he suggests, vhen they vere not in the
shadov of the mountain. In voluntarily adopting the mit::ah of reading the
megillah (a mit::ah God did not command), they implicitly accepted the en-
tire Torah. Whether or not Ravas solution is convincing, both Rabbis seem
to assume that, absent an act of genuine consent, Gods lav does not bind.
Other commentators reject the consent-based theory of obligation.
In 8ijre ^um|ers , the obligation to keep the mit::ot has nothing to do
vith the covenant, but arises instead from the conditions under vhich God
redeemed the |evs from slavery in Lgypt. On this account, the Lxodus is not
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a journey from slavery to freedom but a journey from one master (pharaoh)
to another (God). Since God redeemed the |evs as slaves, not as freemen, the
issue of consent never arises. He retains the right to issue decrees and they
have the obligation to obey.
In Melhilta, Bahodesh , o, the covenant plays a role but not as
the source of obligation. Rather than creating the obligation, it expresses
or recognizes an obligation to God that preexists (and motivates) the act of
consent. The obedience that Israelites ove God arises from all that he has
done for themdelivered them from Lgypt, divided the sea, sent manna
and quails, fought the battle vith Amalek, and so on. When he asks to be
their king, the people reply, \es, yes. But their obligation to himderives less
from the fact of their consent than from the considerations that inform their
consent. God is not a vorthy sovereign because the people consent to his
rule; rather, the people consent to his rule because he is a vorthy sovereign.
Gratitude for great deeds is not the only reason for accepting Gods
lav. Another is the intrinsic justice or importance of the lav itself. Maha-
ral, a sixteenth-century scholar from Prague, invokes the ultimate version of
this argument ( ). More than a just scheme of lav, the Torah is necessary
to the perfection of the universe; in its absence, he maintains, the universe
vould revert to chaos. Hovever implausible this metaphysical claim may be,
it nicely illustrates the paradox of consent theory by oering a limiting case.
If no less than the survival of the cosmos is at stake in Israels acceptance of
the Torah, then tvo consequences follov for the covenant. One is that the
people have the most veighty reason imaginable to give their consent. The
other is that, given the stakes, their consent is more or less beside the point.
The moral importance of free choice pales in the face of the considerations
that point to a particular choice. Unlike Rav Aha, Maharal is not troubled
in the least by the coercion that God employed vhen he held the mountain
over the people. lar from undermining the moral force of the Torah, this
act of coercion expressed Gods viev that the acceptance of the Torah vas
necessary, not contingent on a voluntary act.
Maharals insight into the limits of consent theory can be detached
from his metaphysical assumptions. Consider a lav of undisputed moral im-
portance, such as a prohibition against a grave violation of human rights. The
moral importance of such a lav gives people a strong reason to consent to it
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(as part of their constitution, say, or bill of rights). But it also gives grounds
to obey such a lav (and perhaps also to force others to obey it) indepen-
dent of any act of consent. The veightier the reasons for consenting to a lav,
the less the obligation to uphold it derives from consent. Nations that fail
to accept human rights conventions can nevertheless be held responsible for
violating them. And if they protest that they have not given their consent,
there may be a case for holding a mountain over their heads until they do.
Mi.hael j. 8auoel
Ceriug the !orah to the ^atious
o. 8ijre Deuterouomy
8ijre. A !auuaiti. Commeutary ou the Bool oj Deuterouomy, translated by Reuven Hammer,
\ale |udaica Series (Nev Haven \ale University Press, ,:o), pp. :.
Ij the maiu poiut oj 8ele.tiou is that Coos .o:euaut .auuot |e rejuseo, the argumeut
here suggests that it .au |eauo a.tually uas.
And he said The Iord came from Sinai |and rose from Seir unto them|
(Deut. :). When God revealed Himself to give the Torah to Israel, He
revealed Himself not only to Israel but to all the nations. He vent rst to
the children of Lsau
7
and asked them, Will you accept the Torah They
replied, What is vritten in it He said to them, Thou shalt not murder
(Lxod. :o). They replied that this is the very essence of these people and
that their forefather vas a murderer, as it is said, But the hands are the hands
of Lsau (Gen. :;::), and, By thy svord shall thou live (Gen. :;o). He
then vent to the Ammonites and the Moabites and asked them, Will you
accept the Torah They replied, What is vritten in it He said, Thou shalt
not commit adultery (Lxod. :o). They replied that adultery is their very
essence, as it is said, Thus vere both the daughters of Iot vith child by their
father. |And the rst-born bore a son, and called his name Moab . . . and the
;. Othervise named Seir, hence the midrashic rendering of the opening verse.
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younger, she also bore a son . . . the father of the children of Ammon| (Gen.
,o:). He vent next to the Ishmaelites and asked them, Will you accept
the Torah They replied, What is vritten in it He said, Thou shalt not
steal (Lxod. :o). They replied that theft is their very essence and that their
forefather vas a thief, as it is said, And he shall be a vild ass of a man (Gen.
o:). And thus it vas vith every other nationHe asked them all, Will
you accept the Torah as it is said, All the kings of the earth shall give Thee
thanks, O Iord, for they have heard the vords of Thy mouth (Ps. :).
One might think |from this verse| that they heard and accepted |his oer|;
therefore Scripture states elsevhere, And I vill execute vengeance in anger
and fury upon the nations, because they hearkened not (Mic. ). It vas
not enough for them that they did not hearkenthey vere not even able to
observe the seven commandments that the children of Noah had accepted
upon themselves,
8
and they cast them o. When the Holy One, blessed be
He, sav that, He surrendered them to Israel.
9
A parable A man took his ass
and his dog to the threshing oor and loaded the ass vith a letel |of grain|
and the dog vith three seah. The ass vent along |easily|, but the dog began
to pant, so the man took o a seah and put it on the ass, and so too vith the
second and third seah. So also Israel accepted the Torah, vith all of its expla-
nations and details, as vell as the seven commandments vhich the children
of Noah had not been able to observe and had cast o. Therefore it is said,
. . . the Iord came from Sinai, and rose from Seir unto them.
!he 8.ope oj Co:euautal Commitmeut
Iuoi:ioual Respousi|ility
. BT Sotah ;ab
!he Bi|le oes.ri|es a .eremouy oj rearmiug the .o:euaut that iu.luoes a pu|li. pro
uouu.emeut oj |lessiugs auo .urses uith respe.t to the o|ser:au.e oj oetaileo mitz-
:. See the discussion of the Noahide lavs in ;o.
,. This is an attempt to justify the legal privileges granted to |evs over idolaters; see ;o.
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vot auo the !orah geuerally (see Deut. .). !he !almuo assumes that this tool pla.e
repeateoly auo aoos together the :arious .o:euauts auo the oiereut .ommitmeuts eu
taileo, startiug jrom the origiual eua.tmeut at 8iuai auo euoiug uith the .eremouy
jollouiug the eutry iuto the Lauo oj Israel. !o this uum|er some ra||is aoo the .o:euau
tal uuoertaliugs oj ea.h Israelite regaroiug his ouu o|eoieu.e auo also as a guarautor
jor his jellous. !here are uou au astouishiug uum|er oj .o:euauts.
Our rabbis taught Blessed in general, blessed in particular; cursed in
general, cursed in particular; to study and to teach, to keep and to do
these are four by four . . . vhich makes for sixteen. The same |took place
also| at Sinai, and at the plains of Moab. . . . Thus there vere forty-eight
covenants for each mit::ah of the Torah. . . .
Rabbi Shimon b. \ehudah of AkkoVillage said in the name of Rabbi
Shimon With regard to each and every mit::ah of the Torah, there vere en-
acted forty-eight covenants by oo,o |people|.
10
|Rashi. lor each one, as
each became a guarantor on behalf of all his brothers.|
Rabbi | |udah the Prince| said |This implies further that| for each
and every Israelite, there vere oo,o |covenants|.
What is the issue Rav Mesharshia said, They disagree vith respect
to a guarantor for a guarantor. |Rashi. Rabbi is arguing that, according to
Rabbi Shimon, vho seeks to enumerate the covenants of guarantee . . . each
of the ooo,ooo accepted |also| ooo,ooo covenants on account of the guaran-
tees that his brothers had oered for their fellovs.|
!he Co:euaut. Meauiug auo Iuteutiou
z. BT Shevuot :,ab
!ra.tate Shevuot is oe:oteo to oaths oj :arious liuos. Iu the ois.ussiou |elou, the
questiou is raiseo uhether au oath |iuos |y the o|je.ti:e meauiug oj its uoros or |y the
o. This is the number reported in the census in Num. o. Belov in the passage Rashi employs
the more conventional number of ooo,ooo as reported in Lxod. :;.
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spealers su|je.ti:e iuteutiou. !he !almuo .ites a miorashi. oes.riptiou oj the .are that
Moses tool uheu aomiuisteriug the oath oj the .o:euaut to Israel, this seems to shou
that oaths uormally |iuo a..oroiug to su|je.ti:e iuteutious.
Come and hear When Moses administered the oath to Israel, he told them,
Note that I am administering this oath to you not in accordance vith your
determination, but in accordance vith Gods determination and mine.
Why so Iet him say to them, Accept that vhich God commands'
Is it not because they might intend that as referring to an idol
No, it is because idols too are called gods, as vritten, gods of
silver . . . gods of gold (Lxod. :o:o).
Then let him say to them, Accept the Torah' |But this might be
construed as| |only| one Torah |excluding the oral Torah|.
Then let him say, Accept the tvo Torahs' |But this might be con-
strued as, e.g.,| the Torah |instruction| concerning the hattat and the Torah
concerning the asham.
11
Then let him say, Accept the entire Torah' |But this might be
construed as a commitment to refrain only from| idolatry, of vhich it has
been said Idolatry is most grievous, for one vho denies it arms the entire
Torah (BT Nedarim :a). . . .
Then let him say, Accept all of the mit::ot: |But this might be
construed as a commitment to observe the commandment to vear| fringes
|upon ones garment|, of vhich it has been said The fringes are equivalent
to all of the mit::ot (cf. BT Menahot b).
Then let him say to them, Accept the six hundred and thirteen
mit::ot:
Well, and on your viev |i.e., even if it is subjective intention
that counts|, let him say, |only| in accordance vith my determination; vhy
|add|, in accordance vith Gods determination Rather, |his aim vas| that
they should have no possibility of annulment.
. The sections concerning these various sacricial rites are introduced by the term torah,
teaching, in Iev. o;e.g., this is the torah of the hattat (o:).
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Iuture Ceueratious
. Isaac Abravanel, Commeutary ou the Ieutateu.h, Deuteronomy :,
!ouaro the euo oj the jteeuth .eutury, the jeus iu 8paiu uere jor.eo to .hoose |e
tueeu .ou:ertiug to Christiauity auo |eiug expelleo jrom the .ouutry. !his agoui:iug
.hoi.e auo the argumeuts it o..asioueo |rought a reueueo examiuatiou oj the ougoiug
:alioity oj the .o:euaut. A|ra:auel, oue oj the mauy uho .hose juoaism auo expulsiou,
here pro:ioes (iu the .ourse oj his |i|li.al .ommeutaries, uritteu iu Italiau exile) au ex
ample oj the oe|ates that ueut ou iu those last years oj jeuish .ommuual lije iu 8paiu.
A|ra:auels .ommeutary is uritteu iu a s.holasti. style oj questious auo ausuers.
Lighteen problems arise upon a reasoned examination of this portion. The
rst and greatest of themall, vhich has occasioned an intense struggle among
contemporary scholars in the Kingdom of Aragon, concerns the issue of the
covenant and the vords of Scripture I make this covenant, vith its sanc-
tions, not vith you alone, but both vith those vho are standing here vith
us this day before the Iord our God and vith those vho are not vith us here
this day.
Who gave authority to the desert generation vhose feet stood at
Sinai to obligate those succeeding them by proclaiming We vill faithfully
do, and to bring them |the folloving generations| into the covenant of the
Iord, may He be blessed, their God, or to impose upon them an oath vhich
vill never be annulled |Hovcould they| obligate the folloving generations
to comply vith the entire Torah and the covenant they established, causing
them to be liable for punishment lor this seems to be the import of these
verses, and of all those instances vhere the sages employ the argument He
is already under oath from Mount Sinai (BT Shevuot :b).
12
This is, hovever, completely unreasonable. lor the argument from
the nature of fathers and sons |i.e., that they are one and that the under-
takings of the fathers obligate the sons| does not hold. lor the body |of the
son|, in vhose being the father has a part, vas not present there |at Sinai| ex-
:. Concerning, e.g., an individual vho takes an oath to act against the Torah. Such an oath is
void, because the person is already bound by his or her prior oath at Sinai (see ;o, ;).
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cept in a potential form exceedingly remote from actual existence. And it is
clear that it is not through potential that a man vill prevail
13
in binding his
children by oath for all generations. This is certainly true so far as the rational
soul is concerned, in vhich the father has neither part nor connection.
Thus ve nd the vords of the prophet Lzekiel
What do you mean by quoting this proverb upon the soil of Israel,
lathers eat sour grapes and their sons teeth are blunted As I
livedeclares the Iord Godthis proverb shall no longer be cur-
rent among you in Israel. Consider, all souls are Mine; the soul of
the father and the soul of the son are both Mine. The soul that sins,
only it shall die. (Lzek. ::)
This shovs that they stand equally before Him, may He be blessed,
vithout any partnership. Therefore, the soul that sins, it only shall dieby
its ovn iniquity and not by the iniquity of its fathers. And the vhole chapter
in Lzekiel shovs this. The prophet |eremiah too has said so. It therefore fol-
lovs that no punishment should be visited upon the soul of the son because
of the actions of his fathernot to speak of his vords' And need it be said
for all subsequent generations
The Rabbis have already said, A minor convert undergoes immer-
sion under the auspices of the court . . . |but| vhen they come of age, they
can protest |and annul the conversion| (BT Ketubot a see ;). Iet us rea-
son a fortiori If in a case vhere the body vas present he may |nevertheless|
protest because he vas a minorhov much more so if he vas not present
at all' Clearly he should not be obligated by that vhich the forefathers de-
termined for themselves.
We should not be appeased by vhat our ancients have said (e.g., in
the Midrash Tanhuma)
14
that all the souls vhich vould ever exist to the end
of all generations vere present at that convention, and that they all estab-
lished this covenant and accepted it upon themselves by a curse and an oath.
This is dicult for the mind to believe. Hov vere those disembodied souls
. Abravanel is making a pun on the verse lor not by strength shall man prevail ( Sam. :,)
the biblical vord for strength (loah) took on, in medieval usage, the additional meaning
of potential.
. See Miorash !auhuma, edited by Solomon Buber (Vilna, ::), Nitzavim :, p. o.
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|bound| to the mit::ot vhich are obligatory only for that combination of
soul and body called Man It is vritten \ou shall keep My lavs and My
rules, by the pursuit of vhich man shall live (Iev. :)the dead, hov-
ever, are free (BT Shabbat oa), for vhen body and soul are separated they
are no longer Man. lurthermore, the mit::ot are bodily obligations, and a
person cannot become obligated |to obey them| vithout being present. . . .
I vill nov interpret the verses in a manner that vill resolve these
problems. It is true that according to the lav, A person can be beneted
vithout being present, but cannot be obligated vithout being present (BT
Ketubot a). . . . Surely, hovever, if a man receives a loan, the obligation
to repay it falls upon him and his sons forever. |ust as the sons benet by in-
heriting their fathers property, so too are they obligated to repay both their
ovn and their fathers debts, even those incurred before their birth. On simi-
lar grounds, the subjugation of a Canaanite slave transfers to his sons . . . for
the slave, like other possessions, is purchased vith money.
Nov it is vell knovn that God, may He be blessed, acquired a
right in Israel, inter alia because He released them from the iron furnace
of Lgypt, from the abode of slaves; their persons, their cattle and possessions,
vere granted by Him and vere vithin His domain, as vritten, lor it is to
Me that the Israelites are slaves; they are my slaves, vhom I freed from the
land of Lgypt (Iev. :). He |thus| acquired their bodies, as if they vere
Canaanite slaves, and He also acquired their souls, since he granted them
spiritual perfection through giving them His Torah. . . .
That is vhy, in establishing the |Sinai| covenant, they declared, All
that the Iord has spoken ve vill faithfully do' (Lxod. :;), meaning, With
our bodies ve shall do and serve as slaves unto their master; and vith our
souls ve shall faithfully believe, like students unto their teacher.
And because God, may He be blessed, vished nov to grant them
a further benet, namely, possession of the holy land, it vas necessary that
they enter a nev covenant. lor the rst |covenant| relates to the subjection
of their bodies and the binding of their beliefs, vhile the second concerns
possession of the land. The latter signies that they did not conquer land by
their svord nor inherit it from their fathers. Rather, God gave it to them,
not as a gift but as a loan, as vritten The land shall not be sold vithout
reclaim, for the land is Mine (Iev. ::). They |thus| became obligated to
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serve the master of the land, and not to serve a God beside Him, for this
vould constitute high treason against Him. . . .
The sons obligation and inclusion in the parents covenant is based
on the body, on the soul, and on the land in vhich they dvell. It is not a
function of the oath they |the parents| took but of the bondage they ac-
cepted vhen He released them from Lgypt, the Torah they accepted, and the
chosen land they received as a loan. . . . No doubt at all can arise regarding the
obligation of the covenant. Were this covenant like one made betveen tvo
friends, a covenant of love and loyalty, this great insoluble problem vould
obtainnamely, hovcan sons not yet existing be obligated by it This cove-
nant and oath is, hovever, an absolute obligation subjugating their bodies
and their land, too. Hov then is it conceivable that their ospring should
repudiate it Can the sons of Canaanite slaves release themselves from the
slavery vhich they vere born into and inherited from their fathers This is
the foundation of the covenant and oath vhich can never be nullied.
15
. . .
Nov, since the entire foundation of the covenant and of the eternal servi-
tude is the Lxodus, it is alvays mentioned by God and His prophets. And all
the holidays of God are in memory of the Lxodus, vhich signies eternal
servitude.
Ireeoom auo ^e.essity
. |udah Ioev (Maharal of Prague), !ijeret Yisrael, Chapter :
!he themes oj uatural oroer, the ele.tiou oj Israel, auo the uature oj exile auo reoemp
tiou per:aoe Maharals uorls. Here, iu a sele.tiou jrom Tiferet \israel, uritteu iu
the early :,:os, he .riti.i:es the .ouseut mooel oj the .o:euaut auo oers iusteao a
metaphysi.al argumeut jor a uou:olitioual uuoerstauoiug. it uas ue.essary that Israel
a..ept the !orah. Maharal e:oles the religious .ou:i.tiou, oeeply rooteo iu the traoitiou,
that the !orah is uot merely a |ooy oj lau |ut also the :ery jouuoatiou oj the .osmos.
. Abravanel goes on to quote Lzek. :o::, cited in .
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He iuterprets the talmuoi. passage a|out Coo holoiug the mouutaiu o:er the peoples
heaos ( :) as a metaphori.al expressiou oj this projouuo religious truth. Maharal .ites
the passage auo .outiuues as jollous.
The tosasts have asked Had |Israel| not already said, |All that the Iord
has spoken| ve vill faithfully do (Lxod. :;). And they ansvered |God
vas concerned that| vhen they beheld the great re |of the theophany| they
might recant.
These statements seembaing. Would Israel recant their acceptance
of the Torah, vhich is an everlasting distinction and credit What distinc-
tion do they merit if you say that perhaps they vould recant lurthermore,
should not God have placed the mountain over them if and vhen they re-
canted rather than |vhen they had already accepted| . . .
Hovever, God held the mountain over them so that Israel vould
not say We accepted the Torah on our ovn, and had ve not villed it ve
vould not have received the Torah. This vould not have suited the elevated
status of the Torah. lor the entire universe is dependent upon the Torah, and
if the Torah did not exist, the universe vould revert to chaos.
16
It is therefore
untting that the acceptance of the Torah should be Israels choice. Rather,
the Holy One, Blessed be He, obligated and coerced themto accept the Torah.
It could not be othervise, lest the universe revert to chaos.
And do not reply that ultimately the lifting up of the mountain vas
redundant, for they had already said, We vill faithfully do. This poses no
diculty, for the principle of the matter vas not to ensure that they vould
not recant. Indeed, vhy should they recant vhen they had already said they
vould faithfully do The lifting up vas necessary in and of itself, for hov
can the Torah, vhich is the |completion and| perfection of the entire uni-
verse, depend on the fact that Israel chose to accept it Could the perfection
of the universe depend on the contingency that they may or may not accept
He therefore held the mountain over them like an overturned tub so that if
they did not accept, there vould be their burial.
o. Maharal uses the Hebrev idiom tohu :a:ohu, unformed and void, from the story of cre-
ation in Gen. :. His interpretation follovs the continuation of the talmudic discussion in
BT Shabbat ::a ( :).
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It may also be said that God held the mountain over them . . . so
that Israel vould not say that there might beHeaven forbidan annul-
ment of the acceptance of the Torah. |lor one might argue that| since Israel
voluntarily accepted the Torah, they can be released from it, for it vas not
done of necessity but vas contingent they may or may not have accepted.
He therefore held the mountain over them . . . as if to say that they must
necessarily accept the Torah, and vhatever is necessarily so, has no release or
annulment, because it is necessary.
17
. . . |Nov,| Rav Aha said that this furnishes a poverful disclaimer
regarding the |acceptance of the| Torah, for, after all, the acceptance . . .
vas forced. It vas therefore not a complete acceptance, for the acceptance
of the Torah ought to be voluntary. . . . Regarding this |concern, the Talmud
continues| Nevertheless, they rearmed its acceptance in the days of Aha-
suerus, etc. The explanation of this matter is that in the days of Ahasuerus
they voluntarily accepted one mit::ah. God, may He be Blessed, did not de-
cree this for them; rather, they accepted it of their ovn accord |by enacting
it|, and the Holy One, Blessed be He, concurred. . . . Accepting the reading
of the megillah is a voluntary acceptance of one of the mit::ot of the Torah . . .
and thus constitutes the voluntary acceptance of the entire Torah. lor if they
accepted this latest mit::ah of reading the megillah of their ovn accordfor
vho forced themto accept thisthen hovmuch more so the earlier |body|
of mit::ot: It too vas voluntarily accepted. Hence, it is as though the origi-
nal acceptance of the Torah vas voluntary too, for the |ultimate| conclusion
proves the original |intention|.
This vill suce to explain that the Torah vas voluntary on the part
of Israel but necessary on Gods part, may He be Blessed. It is tting that all
things vhich complete and perfect the universe be necessary and not con-
tingent, as vas explained.
;. The Hebrev vord helhrah can mean both necessity and compulsion. Maharal plays on
these dual meanings.
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Co:euaut as 8o.ial Coutra.t
. Baruch Spinoza, !heologi.alIoliti.al !reatise, Chapters and ;
!ra.tatus !heologi.oIoliti.us, translated by Samuel Shirley (Ieiden L. |. Brill, ,,), pp. ,
:o.
8piuo:a oers here au aualysis oj the .o:euaut as a politi.al a.t, the jouuoiug mo
meut oj the Israelite state. It jollous, theu, that iu the apoliti.al .ouoitious oj exile auo
statelessuess, this politi.al .o:euaut is uo louger |iuoiug. Lile A|ra:auel auo Maha
ral, 8piuo:a urites iu the ajtermath oj the 8pauish expulsiou. Yet he uot ouly oisseuts
jrom their :ieus |ut preseuts his ouu iu a ueu .riti.al auo philosophi.al style. 8piuo:a
|egius his re.oustru.tiou oj the au.ieut Israelite theo.ra.y |y rejerriug to au argumeut
he males earlier iu the |ool, iu .hapter ,, ex.erpteo |elou, that the ritual laus uere
|iuoiug auo oj pra.ti.al :alue ouly uhile their state existeo (see ;., ). 1e |egiu
|y .itiug this argumeut.
Chapter
That the Hebrevs are not bound to practise their ceremonial rites
since the destruction of their state is clear from |eremiah, vho, vhen he sav
and proclaimed the imminent ruin of the city, said that God delights only
in those vho knov and understand that he exercises lovingkindness, judg-
ment and righteousness in the earth, and so thereafter only those vho knov
these things are to be deemed vorthy of praise (see | |eremiah| ,:). This
is as much to say that after the destruction of the city God demanded no
special service of the |evs and sought nothing of them thereafter except the
natural lav by vhich all men are bound. . . . lor vhen they vere led avay in
captivity to Babylon after the rst destruction of the city, they straightavay
abandoned their observance of ceremonies. Indeed they turned their backs
on the entire Mosaic Iav, consigned to oblivion the lavs of their native land
as being obviously pointless, and began to be assimilated to other nations,
as Lzra and Nehemiah make abundantly clear. Therefore there is no doubt
that, since the fall of their independent state, |evs are no more bound by the
Mosaic Iav than they vere before their state came into being. lor vhile
they vere living among other nations before the exodus from Lgypt, they
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had no special lavs to themselves; they vere bound by no lav other than
the natural lav, and doubtless the lav of the state in vhich they dvelt, in so
far as that vas not opposed to the natural Divine Iav.
Chapter ;
We have already said in chapter that, after their departure from
Lgypt, the Hebrevs vere no longer bound by the lavs of any other nation,
but vere free to establish nev lavs as they pleased, and to occupy vhatever
lands they vished. lor after their liberation from the intolerable oppression
of the Lgyptians, being bound by no covenant to any mortal man, they re-
gained their natural right over everything that lay vithin their pover, and
every man could decide afresh vhether to retain it or to surrender it and
transfer it to another. linding themselves thus placed in this state of nature,
they hearkened to Moses, in vhom they placed the greatest condence, and
resolved to transfer their right not to any mortal man, but to God alone.
Without much hesitation they all promised, equally and vith one voice, to
obey God absolutely in all his commands and to acknovledge no other lav
but that vhich he should proclaim as such by prophetic revelation. Nov
this promise, or transference of right to God, vas made in the same vay
as ve have previously conceived it to be made in the case of an ordinary
community vhen men decide to surrender their natural right. lor it vas by
express covenant and oath (Lxod. :;) that they surrendered their natural
right and transferred it to God, vhich they did freely, not by forcible coer-
cion or fear of threats. lurthermore, to ensure that the covenant should be
xed and binding vith no suspicion of deceit, God made no covenant vith
themuntil they had experienced his vonderful pover vhich alone had saved
them, and vhich alone might save them in time to come (Lxod. ,).
lor it vas through this very belief, that Gods pover alone could save them,
that they transferred to God all their natural pover of self-preservation
vhich they probably thought they themselves had hitherto possessedand
consequently all their right.
It vas God alone, then, vho held sovereignty over the Hebrevs, and
so this state alone, by virtue of the covenant, vas rightly called the kingdom
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of God, and God vas also called the king of the Hebrevs. Consequently, the
enemies of this state vere the enemies of God; citizens vho aimed to seize
the sovereignty vere guilty of treason against God, and the lavs of the state
vere the lavs and commands of God. So in this state civil lavand religion
vhich ve have shovn to consist only in obedience to Godvere one and
the same thing; the tenets of religion vere not just teachings but lavs and
commands; piety vas looked upon as justice, impiety as crime and injustice.
He vho forsook his religion ceased to be a citizen and by that alone be-
came an enemy, and he vho died for his religion vas regarded as having died
for his country. In short, there vas considered to be no dierence vhatso-
ever betveen civil lav and religion. Hence this form of government could
be called a theocracy, its citizens being bound only by such lav as vas re-
vealed by God. Hovever, all this vas a matter of theory rather than fact, for
in reality the Hebrevs retained their sovereign right completely, as vill be-
come clear vhen I describe the manner and method of the government of
this state, vhich I nov intend to set forth.
Since the Hebrevs did not transfer their right to any other man,
but, as in a democracy, they all surrendered their right on equal terms, cry-
ing vith one voice, Whatever God shall speak, ve shall do (no one being
named as mediator), it follovs that this covenant left them all completely
equal, and they all had an equal right to consult God, to receive and inter-
pret his lavs; in short, they all shared equally in the government of the state.
It vas for this reason, then, that on the rst occasion they all approached
God on equal terms to hear vhat he vished to command. But on this rst
appearance before God they vere so terried and so thunderstruck at hear-
ing God speak that they thought their last hour had come. So, overvhelmed
vith fear, they vent to Moses again, saying, Behold, ve have heard God
speaking in the midst of the re; nov therefore vhy should ve die lor this
great re vill surely consume us; if again ve are to hear the voice of God,
ve shall surely die. Go thou near therefore, and hear all that our God shall
say. And speak thou (not God) to us. All that God shall speak unto thee, ve
shall hear and do (Deut. ::).
By this they clearly abrogated the rst covenant, making an absolute
transfer to Moses of their right to consult God and to interpret his decrees.
lor at this point vhat they promised vas not, as before, to obey all that God
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should speak to them, but vhat God should speak to Moses. (See Deut. after
the Decalogue, and :o.) Therefore Moses vas left as the sole lavgiver
and interpreter of Gods lavs, and thus also the supreme judge, vhom no one
could judge, and vho alone acted on Gods behalf among the Hebrevs, that
is, held the supreme kingship, since he alone had the right to consult God,
to give Gods ansvers to the people, and to compel them to obey. He alone,
I say, for if anyone during Moses lifetime sought to make any proclamation
in Gods name, even if he vere a true prophet he vas nevertheless guilty of
claiming the supreme sovereignty (Num. ::).
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!orah auo Reasou
Introduction
Natural Lav, Reason, and Revelation: Classical Discussions
Compreheusi|le auo Mysterious Laus
. BT \oma o;b
Commentary. Noam |. Zohar, Gods ReasonWhat Should Not
Be Doubted
Re:elatiou auo Reasou
:. Saadiah Gaon, !he Bool oj Beliejs auo Cpiuious, Introductiono;
:
8o.ial ^omoi auo Di:iue Laus
. |udah Halevi, !he Ku:ari ;,; :o,; ;,
!he Luos oj Di:iue Lau
. Maimonides, !he Cuioe oj the Ierplexeo , :o:;
!hree Kiuos oj Lau
. |oseph Albo, Bool oj Iriu.iples ;:
Commentary. Hilary Putnam, Iav and Reason
Revelation, Morality, and Ritual: Modern Struggles
Di:iue Lau Is Morality
o. Baruch Spinoza, !heologi.alIoliti.al !reatise, Chapters
Re:elatiou auo Ritual. Beyouo |ui:ersal Morality
;. Moses Mendelssohn, jerusalem, Section II
;
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Lau auo Lthi.s
:. Hermann Cohen, Anities Betveen the Philosophy of Kant and
|udaism
Commentary. Susan Neiman, Cohen and Kant
!he Biuoiug oj Isaa.. Mit::ah 8uperseoes Morality
,. \eshayahu Ieibovitz, Religious Praxis The Meaning of
Halakhah
Reje.tiug the 8uspeusiou oj the Lthi.al
o. Samuel Hugo Bergman, Tvo Texts on the Binding of Isaac
Commentary. Avi Sagi, Betveen Obedience and Autonomy
Iutroou.tiou
At a certain point in the history of most revealed religions, theo-
logical understandings of revelation and history come under philosophical
scrutiny. Sometimes the scrutiny is internally produced, as appears to be the
case in BT \oma o;b, vhere the normal conversation of the sages leads them
to the question of revelations content and meaning (although even here,
among themselves, they imagine skeptical non-|evish interlocuters Satan
and the nations). Sometimes the scrutiny is externally driven, as in the case
of Saadiah Gaon, vho vrote under the inuence of Arabic and Greek phi-
losophy. But the problems posed are alvays the same Hov much of vhat
God reveals, hov much of vhat his prophets and priests teach, could human
beings learn on their ovn, autonomously, through rational inquiry If much
of revelations content turns out to be rationally accessible and veriable,
hov does one explain or justify vhat seems vholly irrational And if one
feels the need to provide such explanations, isnt reason, and not revelation,
the ultimate authority These questions open the vay for a deeply subversive
interrogation of revealed religion. If revelation is (mostly) rational, vhy is it
necessary What is the advantage of having stood at Sinai and received the
Torah from God directly if other men and vomen, anyvhere, at any time,
can discover the same lavs by themselves Why bother vith a historical nar-
rative if all one needs is a philosophical argument
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Introduction ,
Despite this potential subversiveness, it is not an easy matter to deny
the rationality of Gods lav. Indeed, the Bible itself, in the Deuteronomic
account of revelation, takes pride in the Torahs rationality, describing it in
terms of a cosmopolitan visdom for that vill be proof of your visdom
and discernment to other peoples, vho on hearing of all these lavs vill say,
Surely, that is a great nation of vise and discerning people (o). If the
visdom of the Torah is thus universally recognizable, is it also universally
accessible The Deuteronomist dravs no such conclusion, but it is surely a
possible meaning of this passage that ordinary human reason is sucient for
a righteous life. Why, then, are the Israelites singled out in the biblical nar-
rative In vhat sense is the Torah theirs
The texts presented in this chapter oer a variety of ansvers to these
questions. lor analytical purposes, ve shall divide these ansvers into tvo
sets, tvo ideal-typical accounts of revelation and reason. Obviously, no par-
ticular text ts either account exactly, but the division vill be apparent in
the selections that follov. On the one hand, |evish vriters x limits on rea-
sons reach for the sake of Israels singularity; on the other hand, they make
Israels Torah into reasons singular fulllment.
The rst account follovs the intimation of \oma, draving a line
betveen rational social and moral lavs and nonrational or mysterious ritual
lavsfor example, circumcision, sacrices, lashrut, the prohibition of cer-
tain mixtures, holidays, and halit:ah (the lists vary; some of them are highly
restricted). The social and moral lavs are indeed universally accessible and
universally binding; they are included in the more extended versions of the
Noahide Code (see the discussion in ;o). Israel is not singled out vhen it
is given these lavs, for no human society can exist vithout them. Platos
vell-knovn argument for their necessity, repeated by Augustine, is repeated
again by |udah Halevi Lven a band of robbers cannot avoid adhering to jus-
tice in vhat is |simply| betveen them. Othervise, their association vould
not last (Ku:ari ::). But this sort of reason and this sort of justice do not
make for a holy nation. Israels specic connection to God is established by
the ritual lavs by means of vhich the bounty of the divine order reached
them. These are not universally accessible or binding; they cant be discov-
ered by thinking about lav or divinity or even holiness; circumcision, as
Halevi vryly says, has little to do vith philosophy.
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The covenantal doctrine described in our rst chapter may vell
be assumed in the texts presented here, but it isnt emphasized. Writers like
Halevi seem to imagine something closer to a divine capture or conscrip-
tion of Israel, a miraculous, mysterious bonding. Obeying the ritual lavs is a
vay (the vay) of enacting this bond and expressing a sense of connectedness
to God. Reason has no place here; its place is logically and chronologically
priorpreceding the ritual lav |both| in nature and in time, as Halevi says.
Before there can be a holy nation, there must be a nation vhose members
observe the social and moral lavs. But here, too, consent is no longer in the
foreground, for social and moral lavs require only our understanding, not
our agreement.
But if this understanding is natural and universal, the question arises
again, Why vere the social and moral lavs included in the Sinai revelation
Why not just the ritual lavs, intended for Israel alone Saadiah, vho ac-
cepts something like the division of morality and ritual, argues that the social
and moral lavs vere a divine giftgratuitous, because obedience vould be
due in any case, and redundant, because human reason could have discov-
ered these lavs vithout divine assistance. But, Saadiah says, the discovery
vould have taken a long time (and ve vould probably not have gotten things
exactly right); revelation is a shortcut and in that sense the gift of a gra-
cious God. Israel is saved the pain of self-education and is brought, at one
stroke, to the full perfection of moral understandingthough not of moral
performance that is left in the uncertain hands of the people.
The second account of revelations meaning can be read as an ex-
panded and inclusive version of this argument of Saadiahs. Nov the division
of the lav into tvo vholly separate parts is rejected. All the lavs have their
reasons, though ve see some of these more clearly than others, and ve see
themonly ajter the lavs have been revealed. The Torah is an integrated vhole,
a complex and complete legal system, superior throughout to vhat other
nations provide for themselves. Larly on, in Hellenistic Alexandria, Philo in-
terpreted the ritual lavs in symbolic and allegorizing terms and so turned
them into practical, everyday means of teaching morality and reinforcing
moral habits. Maimonides probably had a similar viev, treating even the sac-
rices as educational performances. His is the supremely rational account of
the Torah o commandments (the standard number), each one useful to the
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Introduction
men and vomen vho obey it. God can hardly be imagined to impose use-
less lavs on his chosen people. What appear mysterious or nonrational in the
Torah are only the specic distinctions and designations that are necessary
in any legal system, and arbitrary in all of them. But some commentators
vould deny arbitrariness even here the detailed distinctions and designa-
tions are exactly right, they claim, although human reason vould have been
incapable of getting them right on its ovn. This is the vievof Albo, vho ar-
gues that divine lav is superior to the precepts of the greatest philosophers
(Plato and Aristotle).
We can recognize in this second set of arguments the source or,
more accurately, the earliest manifestation of the modern apologetic descrip-
tions of the ritual commandments. Mostly, these aim at the radical subor-
dination of ritual to moral lav, as in Mendelssohn and Hermann Cohen,
turning the concrete practice of religion into a mnemonic device for uni-
versal morality or an everyday expression of monotheistic faith (and making
monotheism itself into moralitys ultimate guarantee). It is vorth noting
although ve vont represent them heremore direct claims for the ratio-
nality of ritual, as in tventieth-century descriptions of lashrut as a primitive
public health code. Obviously, the rationalism of Maimonides and his fol-
lovers, and of Mendelssohn and Cohen, is more serious than this, for they
still mean to insist on and inspire strict obedience to the lav, vhereas many
contemporary apologists mean to make the lav look reasonable vhile at
the same time making obedience unnecessary (ve nov have better public
health codes). The latter aim is almost certainly better achieved by the more
forthright Spinozan argument that the ritual lavs are relevant to and only
obligatory in the polity founded by Moses. Mendelssohn and Cohen vrite
in opposition to this viev, Spinozas heresy, vhich must have seemed even
more plausible after the collapse of |evish communal autonomy.
It is probably in reaction to the modern rationalizations of religious
practice that some |evish vriters, folloving Kierkegaard (vho responded to
Christian apologetics of a similar sort), insist that the Torah is often irrational
and is most authentically divine vhen it has no social or moral reason at all.
What serves as a focus of this modernist argument, hovever, is not the ritual
lav but the aleoah (the near sacrice of Isaac). Here Gods incomprehensible
and even, from a human perspective, immoral villfulness is most dramati-
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: Revelation
cally revealed. The commandments to avoid certain foods or certain mixtures
are, by contrast, morally neutral. Not so the commandment to kill a child.
It may be that in both cases the faithful obey, if they obey, for no other rea-
son than that God commands them. But obedience is innitely harder in the
second case, vhich therefore tests, as Ieibovitz argues, their absolute subor-
dination to Gods authority. If they protest, even by invoking other divine
commands, they claim a right to choose the occasions of their obedience,
even an obligation to choose according to reason. Samuel Hugo Bergman
argues in the last of our selections that this claim implies the existence of a
rational moral standard external to the lavby reference to vhich ve judge
the lav itself as vell as all additional revelations of Gods vill.
Bergman points to the political meaning of legal rationalism. Hov-
ever hard individual vriters vork to construct favorable judgments of divine
revelation, they appeal nonetheless to an external standarda |evish version,
perhaps, of natural lav. And this lav cannot be Israels alone; it is universally
knovable. The claim that the Torah meets this external standard uniquely
vell, earlier and better than any other legal system, is the claim to be a light
unto the nations (Isa. :ove have retained the traditional translation).
The counterclaim that some part of the lav is mysterious, given only to
Israel, is a claim to singularity and specialness, made on behalf of a people
that dvells apart (Num. :,)
^atural Lau, Reasou, auo Re:elatiou. Classi.al Dis.ussious
Compreheusi|le auo Mysterious Laus
. BT \oma o;b
!he .outext oj this reaoiug is the talmuoi. ois.ussiou oj a .eutral elemeut oj the temple
ritual ou the Day oj Atouemeut. seuoiug the hegoat iuto the uiloeruess .arryiug all
the iuiquities auo trausgressious oj the Israelites (Le:. :..: ];,, ,). !he Ra||is
uo this rite greatly pu::liug auo list italoug uith se:eral other lausamoug Coos
mysterious hukkim ]eoi.ts, .outrasteo uith the more reasoua|le mishpatim ]oroi
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uau.es. !his tuojolo .lassi.atiou oj Coos .ommauomeuts |e.ame .eutral iu meoie:al
ois.ussious a|out !orah auo reasou.
Our Rabbis taught \ou shall follovmy ordinances (Iev. :)|this refers
to| things vhich, had they not been laid dovn, ought to have been laid
dovn, such as idolatry, incest, bloodshed, robbery, and blasphemy.
1
. . . And keep my edicts|this refers to| things vhich Satan
2
and the nations disparage, such as |not| eating pork, |not| vearing shaatue:
|a mixed garment of vool and linen|, releasing the levirate by halit:ah |a
ceremony enabling a vidov to marry someone other than her husbands
brother|, the purication rites of the leper, and the he-goat sent into the
vilderness.
\ou might think these are senseless deeds; therefore it is vritten, I
am the IordI, the Iord, have issued these edicts; you have no permission
to doubt them.
Connentary. Gods ReasonWhat Should Not Be Doubted
The hullim have no apparent reason. They are characterized as
edicts, to be observed simply on Gods authority. \et the nal paragraph
leaves us vondering \ou might think these are senseless deedsbut are
they, in fact, senseless
Perhaps, indeed, Satans ridicule (and that of the nations) is di-
rected not merely tovard the strange lavs but tovard their author. The
giver of Torah is depicted as an arbitrary force; and the Hebrev tohutrans-
lated here as senselessmay be an allusion to the dark, primordial chaos
of Genesis .
Our texts retort to this accusation can be read in tvo very dier-
. This list corresponds to the bulk of the Noahide lavs, vhich the Rabbis dened as binding
all humanity; see ;o.
:. Some texts read instead the evil inclinationa substitution not uncommon in Rabbinic
literature.
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ent vays, depending on the nature of the forbidden doubtor, conversely,
the nature of the requisite faith. On one reading, it is precisely the sense
of these edicts that ve must not doubt; rather, ve should trust in the per-
fect sense of God, vho enacted them. Another reading, hovever, taking the
emphasis on authority much farther, vould see the very quest for sense as
constituting illicit doubt and disloyalty. On this reading, ve dier vith Satan
not in assessing the (ir)rationality of the hullim but in our attitude to their
divine author, vhom ve faithfully love and obey. The hullim may be the
most sublime part of Torah, vhere faith transcends understanding.
On the rst viev, by contrast, the hullim are no more than a re-
sidual category, those commandments vhose sense ve have (as yet) failed to
appreciate. It is this reading that seems more consonant vith the bulk of the
talmudic tradition, vhere determining the sense of Gods commandments
and the reasoned vorking out of their details are the main order of the day.
Talk of Satanic disparagement, rather than pointing (paradoxically) tovard
sublime transcendence of reason, vould seem to express Rabbinic frustration
vith the rare instances of commandments vhose sense is elusive.
The main body of the Torah may, then, be characterized as mish
patim. things vhich, had they not been laid dovn, ought to have been
laid dovn. The Hebrev phrase for this ought is oiu, vhich here means
reason; the notion that independent reasoning (oiu) can and does produce
norms beyond those revealed in Scripture is commonplace in most midra-
shic discourse. So if God had not legislated these norms, they still vould
have been called for by reason. Would reason tell us that this is Gods vill
or perhaps simply that this is hov ve, as humans, must live The Rabbis do
not seem to address this question; indeed, their theistic vorldviev may have
denied the contrast betveen the tvo possibilities. If reason informs us that
idolatry and robbery are evil, then clearly God forbids them'
^oam j. 2ohar
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Re:elatiou auo Reasou
z. Saadiah Gaon, !he Bool oj Beliejs auo Cpiuious, Introductiono; :
!he Bool oj Beliejs auo Cpiuious, translated from the Arabic and the Hebrev by Samuel
Rosenblatt, \ale |udaica Series (NevHaven \ale University Press, ,:), pp. , .
Iu the iutroou.tiou to The Book of Beliefs and Opinions, 8aaoiah rst raiseo the
.eutral questiou oj the relatiou |etueeu reasou auo re:elatiou jor meoie:al jeuish phi
losophy. His |eliej iu the |asi. .ompati|ility |etueeu the tuo is expresseo iu his theory
oj mitzvot. 8aaoiah oi:ioes the .ommauomeuts iuto those oi.tateo |y reasou auo those
touaro uhi.h reasou is iuoiereut.
Introductiono
Inasmuch as all matters of religious belief, as imparted to us by our
Master, can be attained by means of research and correct speculation, vhat
vas the reason that prompted |divine| visdom to transmit them to us by
vay of prophecy and support them by means of visible proofs and miracles
rather than intellectual demonstrations
To this question ve should like to give, vith the help of God,
exalted be He, an adequate ansver. We say, then, |that| the All-Wise knev
that the conclusions reached by means of the art of speculation could be
attained only in the course of a certain measure of time. If, therefore, He
had referred us for our acquaintance vith His religion to that art alone, ve
vould have remained vithout religious guidance vhatever for a vhile, until
the process of reasoning vas completed by us so that ve could make use of
its conclusions. But many a one of us might never complete the process be-
cause of some av in his reasoning. Again, he might not succeed in making
use of its conclusions because he is overcome by vorry or overvhelmed by
uncertainties that confuse and befuddle him. That is vhy God, exalted and
magnied be He, aorded us a quick relief from all these burdens by sending
us His messengers through vhom He transmitted messages to us, and by let-
ting us see vith our ovn eyes the signs and the proofs supporting themabout
vhich no doubt could prevail and vhich ve could not possibly reject. Thus
He said \e yourselves have seen that I have talked vith you from heaven
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o Revelation
(Lxod. :o,). lurthermore He addressed His messenger in our presence, and
made it an obligation to believe him forever, as He said That the people
may hear vhen I speak vith thee, and may also believe thee forever (Lxod.
,,).
Thus it became incumbent upon us immediately to accept the reli-
gion, together vith all that vas embraced in it, because its authenticity had
been proven by the testimony of the senses. Its acceptance is also incumbent
upon anybody to vhom it has been transmitted because of the attestation
of authentic tradition, as ve shall explain. Nov God commanded us to take
our time vith our speculation until ve vould arrive thereby at these self-
same conclusions. We must, therefore, persevere in this standpoint until the
arguments in favor of it have become convincing for us, and ve feel com-
pelled to acknovledge Gods Torah |that has already been authenticated| by
vhat our eyes have seen and our ears have heard.
So, then, even if it should take a long time for one of us vho in-
dulges in speculation to complete his speculation, he is vithout vorry. He
vho is held back from engaging in such an activity by some impediment
vill, then, not remain vithout religious guidance. lurthermore vomen and
young people and those vho have no aptitude for speculation can thus also
have a perfect and accessible faith, for the knovledge of the senses is com-
mon to all men. Praised, then, be the All-Wise, vho ordered things thus.
Therefore, too, dost thou often see Him include in the Torah the children
and the vomen together vith the fathers vhenever miracles and marvels are
mentioned. . . .
It behooves us also to believe that even before the era of the chil-
dren of Israel, God never left His creatures vithout a religion fortied by
prophecy and miraculous signs and manifest proofs. Whoever vitnessed the
latter in person vas convinced of their authenticity by vhat he had perceived
vith his sense of vision. He, again, to vhom it vas transmitted, vas con-
vinced by vhat he had grasped by means of his sense of hearing. Thus the
Torah says about one of these |vho lived before the rise of a |evish nation|
lor I have knovn him, to the end that he may command his children (Gen.
:,).
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Natural Iav ;
Chapter :
Nov it is tting that I proceed rst to the discussion of the rational
precepts of the Torah. I say, then, that divine Wisdom imposed a restraint
upon bloodshed among men, because if license vere to prevail in this mat-
ter, they vould cause each other to disappear. The consequence vould be, in
addition to the pain experienced by the victims, a frustration of the purpose
that the All-Wise had in mind vith regard to them. lor their murder vould
cut them o from the fulllment of the function for vhich He had created
them and in the execution of vhich He had employed them.
lurthermore |divine| Wisdom forbade fornication in order that
men might not become like the beasts vith the result that no one vould
knov his father so as to shov him reverence in return for having raised him.
|Another reason for this prohibition vas| that the father might bequeath
unto his son his possessions just as the son had received from his father the
gift of existence. |A further reason vas| that a human being might knov the
rest of his relatives, such as his paternal and maternal uncles, and shov them
vhatever tenderness he vas capable of.
Theft vas forbidden by |divine| Wisdom because, if it vere per-
mitted, some men vould rely on stealing the others vealth, and they vould
neither till the soil nor engage in any other lucrative occupation. And if
all vere to rely on this source of livelihood, even stealing vould become
impossible, because, vith the disappearance of all property, there vould be
absolutely nothing in existence that might be stolen.
linally, |divine| Wisdomhas made it one of its rst injunctions that
ve speak the truth and desist from lying. lor the truth is an assertion about
a thing as it really is and in accordance vith its actual character, vhereas tell-
ing a lie is making an assertion about a thing that does not correspond to
vhat it really is or to its actual character. Then vhen the senses, perceiving
it, nd it to be constituted in one form vhilst the soul, reasoning about it,
asserts that it is constituted othervise, these tvo contrary vievs set up in
the soul vill oppose each other, and, on account of their mutual exclusion,
the thing vill be regarded by the soul as something grotesque.
Iet me say next that I have seen some people vho are of the opinion
that these four principal vices that have been listed above are not at all ob-
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: Revelation
jectionable. Only that is objectionable in their viev vhich causes them pain
and vorry and grief, vhilst the good is vhat aords them pleasure and rest.
This thesis vill be refuted by me at considerable length in the fourth treatise
of this book, in the chapter on justice. I shall, hovever, cite a portion of
that refutation here. . . .
I say, then, that the slaying of an enemy is an act that gives plea-
sure to the slayer but pain to the slain. Iikevise, the taking of another mans
possessions or his vife gives pleasure to the robber but pain to the robbed.
In the opinion of those vho hold this viev, hovever, each of these tvo acts
vould have to be regarded as visdom and folly at one and the same timeas
visdom because it aords pleasure to the murderer or the thief or the adul-
terer, and as folly because it inicts pain on his opponent. Nov, any theory
that leads to such internal contradiction and mutual exclusion must be false.
In fact, there are instances in vhich tvo such contrary things can both befall
one and the same person, as vhen he eats honey into vhich some poison has
fallen. This is something that gives pleasure and also causes death, and vould
consequently, according to their theory, have to be considered as visdom
and folly at one and the same time.
Iet me proceed further novand discourse about the second general
division of the lavs of the Torah. This division consists of acts vhich from
the standpoint of reason are optional. \et the Iav has made some of them
obligatory and others forbidden, and left the rest optional as they had been.
They include such matters as the consecration of certain days from among
others, like the Sabbath and the festivals, and the consecration of certain
human beings from among others, such as the prophet and the priest, and
refraining from eating certain foods, and the avoidance of cohabitation vith
certain persons, and going into isolation immediately upon the occurrence
of certain accidents because of delement.
But even though the chief reason for the fulllment of these prin-
cipal precepts and their derivatives and vhatever is connected vith them is
the fact that they represent the command of our Iord and enable us to reap
a special advantage |i.e., future lifeLds.|, yet I nd that most of them have
as their basis partially useful purposes. I see t, therefore, to note some of
these motivations and discuss them, although the visdom of God, blessed
and exalted be He, is above all that.
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Natural Iav ,
Nov among the benets accruing from the consecration of certain
seasons, by desisting from vork on them, there is rst of all that of obtaining
relaxation from much exertion. lurthermore, it presents the opportunity
for the attainment of a little bit of knovledge and a little additional pray-
ing. It also aords men leisure to meet each other at gatherings vhere they
can confer about matters of their religion and make public announcements
about them, and perform other functions of the same order.
Some of the benets accruing from consecrating a particular per-
son from among others are that it makes it possible to obtain more knovl-
edge from him and to secure his services as an intercessor. |It| also |enables
him| to imbue his fellov-men vith the desire for righteousness so that they
might thereby attain something like his ovn eminence. linally |it permits
him| to concern himself vith the moral improvement of humanity, since he
is qualied for such a task, and other things of this nature.
Among the advantages, again, that result from the prohibition
against the eating of |only| certain animals is the prevention of any compari-
son betveen them and the Creator. lor it is inconceivable that God vould
permit anything resembling Him to be eaten or, on the other hand, that
|the eating of such a being| could cause delement to man. This precept
also serves to keep man from vorshiping any of these animals, since it is not
seemly for him to vorship vhat has been given to him for food, nor vhat
has been declared unclean for him.
As for the advantages accruing from the avoidance of cohabitation
vith certain vomen, those derived from observing this ruling in regard to a
married voman are such as ve have stated previously. As far as the mother,
sister, and daughter are concerned, since the relationship vith them is nec-
essarily intimate, the license to marry them vould encourage dissoluteness
on their part. There exists also the danger, if this vere permitted, that men
vould be fascinated by those of their female relatives vho have a beauti-
ful gure, vhile those possessing homely features vould be spurned even by
strangers, since the latter vould see that the male relatives |of these vomen|
do not desire them.
Some of the benets accruing from the observance of the lavs of
uncleanliness and cleanliness are that man is thereby led to think humbly of
his esh, that it enhances for him the value of prayer by virtue of his being
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oo Revelation
cut o therefrom for a vhile during the period of delement, that it en-
dears to him the Temple vhich he vas prevented from entering in the state
of impurity, and nally that it causes him to dedicate his heart to the fear of
God.
Similarly, if one vere to follov up most of these revealed precepts,
one vould discover that they are, to a large extent at least, partially justied
and possess much utilitarian value, although the visdom and the viev that
the Creator had in mind in decreeing them is far above anything that men
can grasp, as Scripture says lor as the heavens are higher than the earth, so
are My vays higher than your vays (Isa. ,).
8o.ial ^omoi auo Di:iue Laus
. |udah Halevi, !he Ku:ari ;,; :o,; ;,
!he Ku:ari. !he Bool oj Rejutatiou auo Irooj ou Behalj oj the Despiseo Religiou, translated
by Iavrence Berman and Barry S. Kogan; forthcoming in the \ale |udaica Series (\ale
University Press).
Iu The Kuzari, juoah Hale:i, jormulates au autiratioualist .ritique oj philosophi
.al religiou. It tales the jorm oj a oialogue |etueeu the pagau liug oj the Kha:ars
seeliug the true religiou auo represeutati:es oj Christiauity, Islam, Ihilosophy, auo
juoaism, iu uhi.h the jeuish sage qui.lly |e.omes the liugs sole iuterlo.utor. The
Kuzaris .ritique oj philosophy uos expressiou iu its .ou.eptiou oj prophe.y as .eu
tral to jeuish ioeutity (.j. ;::), auo iu its theory oj the .ommauomeuts. Ior Hale:i,
uhat oistiuguishes religiou is the quest jor the oi:iue oroer (literally, oi:iue thiug,
inyan ha-elohi iu the He|reu trauslatiou oj Hale:is Ara|i.).
(;,) The sage said Certainly the things that are t to receive the divine
inuence are not vithin the capacity of human beings |to grasp|, nor is it
possible for themto determine their |specic| quantities and qualities. More-
over, even if people vere to knov their essential natures, they vould not
knov their |proper| times, places, circumstances, and the means of prepar-
ing for them. lor that, one vould need consummate divine knovledge, ex-
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plained thoroughly by God. Someone to vhom this instruction has come
and vho conforms to it in accordance vith its |specied| limits and condi-
tions, vith pure intent, is the faithful person. But someone vho has tried to
modify things in order to receive that |inuence| by means of |his ovn| in-
genuity, reasoning, and opinions |dravn| from vhat is found in the books of
the astrologers |vith respect to| summoning the inuence of spiritual beings
and making talismans is the rebel, because he oers sacrices and burns in-
cense on the basis of reasoning and conjecture. Thus, he does not knov the
true character of vhat is necessary, |nor| hov much, in vhat vay, in vhich
place, at vhat time, through vhich person, hov it should be handled, and
many |other| circumstances, vhich it vould take far too long to describe.
He is like the fool vho entered the pharmacy of a physician |vho
vas| vell-knovn for his eective medicines. The physician vasnt there, but
people vould come to that pharmacy seeking help |anyvay|. The fool |in
turn| vould dispense |the contents| of the vials to them vithout knov-
ing the medicines |they contained| nor even hov much |of each| medicine
should be dispensed to each individual. Therefore, he killed people by means
of the very medicines that might have helped them. Nov, if it happened by
coincidence that one of them derived some benet from |the contents of |
one of those vials, the people took a liking to it and said that that |one| vas
the most benecial |medicine| until it failed them or |until| they acciden-
tally came to regard something else as benecial, |so that| they also took a
liking to it. They didnt knov that vhat is benecial in itself is only the ad-
vice of that learned physician vho had prepared those medicines |in the rst
place|, had dispensed them properly, and vould instruct the patient to pre-
pare himself vith the most appropriate regimen for |taking| each medicine,
such as |the right| food, drink, exercise, rest, sleep, |time| avake, air, seda-
tion, and other such things. So, too, people before Moses, except for a fev,
used to be deceived into |folloving| astrological and natural nomoi, going
from nomos to nomos and from deity to deity. Sometimes they vould cling
to several of them |at once| and forget the One vho prepares them and dis-
penses them. They used to believe |those nomoi and deities| to be the cause
of |all kinds of | benets, vhen in themselves they are the cause of |all kinds
of | harm, depending on their disposition and preparation. Hovever, vhat
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is |truly| benecial in itself is the divine order, and vhat is harmful in itself
is its absence.
(:o) The sage said . . . Do you think that coming close |to God| is
simply a matter of being submissive and abasing oneself and |doing| vhatever
else follovs along the same line
(:;) The Khazar said \es, vith justice, that is exactly vhat I
think. I have read it in your books, just as it vas taught |in Scripture| What
does \HWH, your God, demand of you Only this To revere \HWH, your
God, etc. (Deut. o:), and What \HWH requires of you |only doing jus-
tice and loving mercy, and to valk modestly vith your God| (Mic. o:),
and there are many other |passages| besides those.
(::) The sage said These and similar such things are the intel-
lectual nomoi |lavs|. They are the preparation and preamble to the divine
religious Iav and precede it |both| in nature and in time. They are indis-
pensable for governing any group of human beings, no matter vhat |it may
be|, so that even a band of robbers cannot avoid adhering to justice in vhat
is |simply| betveen them. Othervise, their association vould not last. Nov,
vhen Israels rebelliousness got to the point that they disregarded |even| the
intellectual |and| governmental lavsvhich are |as| indispensable for |the
existence of | every group as certain natural things are indispensable for every
individual, like eating and drinking, moving and resting, and sleeping and
being avakebut nevertheless held fast to the |various| acts of vorship per-
taining to the sacrices and other divine commandments, vhich are based
on hearing |i.e., revelation alone|, He became satised vith less from them.
Hence, they vere told If only you kept the lavs that |even| the least and
lovest groups accept as obligatory, such as adhering to justice and vhat is
good and also acknovledging Gods bounty' lor the divine religious Iav
can only be fullled completely after perfect |adherence to| the governmen-
tal and intellectual lav |has been achieved|, and included vithin the intel-
lectual lav is |both| adhering to justice and acknovledging Gods bounty.
Accordingly, hov is it |acceptable| for someone vho neglects this
|to oer| sacrices, and to observe the Sabbath, and circumcision, and other
things of that sort that the intellect neither requires nor rejects They are
the |divine| lavs by means of vhich Israel vas singled out, |constituting|
an addition to the intellectual ones, and by means of vhich the bounty of
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the divine order reached them. But then, they did not knov hov these lavs
vere obligatory, just as they did not knov hov it happened that the glory of
\HWH descended among them, |hov| the re of \HWH consumes their
sacrices, hov they heard the Iords address to them, and hov everything
that happened to them took place vith respect to the |various| things that
|peoples| intellects cannot bear to think possiblevere it not for direct ex-
perience and the personally attested spectacle |they sav|, vhich cannot be re-
jected. Thus, it vas because of |a situation| like this that they vere addressed
|vith the vords| What does \HWH require of you (Mic. o:) and Add
your burnt oerings to your other sacrices ( |er. ;:) and other |passages|
resembling these. Is it possible for the |true| Israelite to conne himself to
doing justice and loving mercy (Mic. o:), vhile treating circumcision, the
Sabbath, and the rest of the |divine| lavs as superuous, but |still| prosper
(:,) The Khazar said Not according to vhat you set forth earlier.
|lor| according to the philosophers opinion, he only becomes a virtuous
man and does not care about vhich vay he |takes to| come close |to God|,
vhether by becoming a |ev, or a Christian, or something else, or by |follov-
ing| vhat he |merely| invents for himself. But nov ve have really gone back
to engaging in intellectual speculation, syllogistic reasoning, and arbitrary
judgment, vhereby all people begin striving to be in accord vith religious
lavs of their ovn making, insofar as their reasoning has led them to it. But
this is absurd.
(;) The sage said The governmental actions and the intellectual
nomoi are the things that are knovn. But the divine |ones|, vhich are added
to these in order to be realized vithin |the| religious community of |the|
living God vho governs it, are not knovn until they come from Him in an
explicated |and| detailed manner. Indeed, even if the essential characteristics
of those governmental and intellectual ones vere knovn, their precise deter-
mination is not knovn; for ve knov that giving charity and sharing |vhat
ve have| are obligatory, and that training the soul by means of fasting and
obedience is obligatory. |We also knov that| deceit is disgraceful, and pro-
miscuous behavior vith vomen is disgraceful too; as is having intercourse
vith some |of ones| relatives, vhereas honoring |ones| parents is obligatory
and vhatever |else| resembles that. Hovever, dening |all| that and deter-
mining it |in detail| so that it is appropriate for everyone belongs only to
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God, exalted be He. As for the divine actions, they are outside the scope
of our intellects; but they are also not rejected by the intellect. Rather, the
intellect vill follov them unquestioningly, just as a person vho is sick vill
follov the physician unquestioningly vith regard to his medicines and pre-
scriptions. Dont you see hov far circumcision is from syllogistic reasoning
and |hov| it has no connection vith governance Still, Abraham submit-
ted himself to it, despite the diculty of the command from the standpoint
of nature, vhen he vas one hundred years old, |both| for his ovn sake and
for the sake of his child. It became a sign of the covenant so that the divine
order might attach itself to him and to his progeny, as |Scripture| says I vill
establish My covenant betveen Me and you, and your ospring to come, as
an everlasting covenant through the ages to be God to you, etc. (Gen. ;;).
() The sage said The superior man among us observes these
|specic| divine lavs, I mean, circumcision, the Sabbaths and festivals and
their |various| concomitants, vhich are legislated by God, the observance
of |the commandments dealing vith| illicit sexual relations, mixed kinds in
relation to plants, clothes, and animals, the seventh year and the jubilee year,
avoidance of idolatry and all that pertains to it. . . . He complies vith vhat-
ever is incumbent upon him for every transgression |he commits, vhether|
unintentional and intentional, by |oering| a sacrice. . . . In general, he
vill observe vhatever he possibly can of the divine orders |given him| so as
to be truthful vhen he says, I have neither transgressed nor neglected any
of \our commandments (Deut. :o), quite apart from the vovs, free-vill
oerings, and sacred gifts of greeting. . . . These things and others like them
are the divine lavs, and complete observance of most of them is possible
only through the service of the priests |in the Temple|.
Nov, the governmental lavs, for example, consist |in the follov-
ing| \ou shall not murder; \ou shall not commit adultery; \ou shall not
steal; \ou shall not bear |false vitness| against your neighbor; honor |your|
father and mother (Lxod. :o:); Iove your neighbor |as yourself |
(Iev. ,:); \ou too must befriend the stranger (Deut. o,); \ou shall
not deal deceitfully or falsely |vith one another| (Iev. ,); having noth-
ing to do vith usury and |charging| interest (Iev. :o), striving to have
honest scales, honest veights . . . as vell as leaving behind the gleanings, the
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fallen fruit, and the corners |of ones elds| (Deut. :,:), and vhatever
|else| resembles this.
!he Luos oj Di:iue Lau
. Maimonides, !he Cuioe oj the Ierplexeo , :o:;
!he Cuioe oj the Ierplexeo, translated vith an introduction and notes by Shlomo Pines
(Chicago University of Chicago Press, ,o), pp. ::, oo:.
Iu the .hapters |elou, Maimouioes preseuts the priu.iples oj his teleologi.al theory oj
the ratiouality oj the .ommauomeuts. Maimouioes :ieus religiou as a politi.al euoea:or,
auo oi:iue lau as the lau jor the most perje.t polity. Ceutral to this theory is a oistiu.
tiou (oe:elopeo iu Guide ..,o, .j. ;,o) |etueeu tuo types oj lau. uomos auo oi:iue
lau. !he jormer aims solely at the oroeriug oj so.iety, uhereas the latter seels also to
.ulti:ate ratioual perje.tiou .ulmiuatiug iu the luouleoge oj Coo. Maimouioes goes
ou to pro:ioe a oetaileo expositiou oj the .ommauomeuts iu light oj these priu.iples
(Cuioe ,.,,,,).
() There is a group of human beings vho consider it a grievous thing
that causes should be given for any lav; vhat vould please them most is that
the intellect vould not nd a meaning for the commandments and prohi-
bitions. What compels them to feel thus is a sickness that they nd in their
souls, a sickness to vhich they are unable to give utterance and of vhich
they cannot furnish a satisfactory account. lor they think that if those lavs
vere useful in this existence and had been given to us for this or that rea-
son, it vould be as if they derived from the reection and the understanding
of some intelligent being. If, hovever, there is a thing for vhich the intel-
lect could not nd any meaning at all and that does not lead to something
useful, it indubitably derives from God; for the reection of man vould not
lead to such a thing. It is as if, according to these people of veak intellects,
man vere more perfect than his Maker; for man speaks and acts in a man-
ner that leads to some intended end, vhereas the deity does not act thus,
but commands us to do things that are not useful to us and forbids us to do
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things that are not harmful to us. But He is far exalted above this; the con-
trary is the casethe vhole purpose consisting in vhat is useful for us, as
ve have explained on the basis of this dictum lor our good alvays, that He
might preserve us alive, as it is at this day (Deut. o:). And it says Which
shall hear all these statutes |hullim| and say Surely this great community is
a vise and understanding people (Deut. o). Thus it states explicitly that
even all the statutes |hullim| vill shov to all the nations that they have been
given vith visdom and understanding. Nov if there is a thing for vhich
no reason is knovn and that does not either procure something useful or
vard o something harmful, vhy should one say of one vho believes in it
or practices it that he is vise and understanding and of great vorth And
vhy should the religious communities think it a vonder Rather things are
indubitably as ve have mentioned every commandment from among these
six hundred and thirteen commandments exists either vith a viev to com-
municating a correct opinion, or to putting an end to an unhealthy opinion,
or to communicating a rule of justice, or to varding o an injustice, or to
endoving men vith a noble moral quality, or to varning them against an
evil moral quality. Thus all |the commandments| are bound up vith three
things opinions, moral qualities, and political civic actions.
(:o) |ust as there is disagreement among the men of speculation
among the adherents of Iav vhether His vorks, may He be exalted, are
consequent upon visdom or upon the vill alone vithout being intended
tovard any end at all, there is also the same disagreement among them re-
garding our Iavs, vhich He has given us. Thus there are people vho do not
seek for them any cause at all, saying that all Iavs are consequent upon the
vill alone. There are also people vho say that every commandment and pro-
hibition in these Iavs is consequent upon visdom and aims at some end,
and that all Iavs have causes and vere given in viev of some utility. It is,
hovever, the doctrine of all of usboth of the multitude and of the elite
that all the Iavs have a cause, though ve ignore |i.e., are ignorant ofLds.|
the causes for some of them and ve do not knov the manner in vhich they
conform to visdom. With regard to this the texts of the Book are clear
righteous statutes |hullim| and judgments (Deut. :); The judgments of
the Iord are true, they are righteous altogether (Ps. ,o).
About the statutes designated as hullimfor instance those con-
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cerning the mingled stu, meat in milk, and the sending of the goat|the
Sages|, may their memory be blessed, make literally the folloving statement
Things vhich I have prescribed for you, about vhich you have not the per-
mission to think, vhich are criticized by Satan and refuted by the Gentiles
(BT \oma o;b ||). They are not believed by the multitude of the Sages
to be things for vhich there is no cause at all and for vhich one must not
seek an end. lor this vould lead, according to vhat ve have explained, to
their being considered as frivolous actions. On the contrary, the multitude
of the Sages believe that there indubitably is a cause for themI mean to
say a useful endbut that it is hidden from us either because of the inca-
pacity of our intellects or the deciency of our knovledge. Consequently
there is, in their opinion, a cause for all the commandments; I mean to say
that any particular commandment or prohibition has a useful end. In the case
of some of them, it is clear to us in vhat vay they are usefulas in the case
of the prohibition of killing and stealing. In the case of others, their utility
is not clearas in the case of interdiction of the rst products |of trees| and
of |soving| the vineyard vith diverse seeds. Those commandments vhose
utility is clear to the multitude are called mishpatim | judgments|, and those
vhose utility is not clear to the multitude are called hullim |statutes|. They
alvays say vith regard to the verse lor it is no vain thing (Deut. :;)
And if it is vain, it is because of you ( |T Peah b); meaning that this legis-
lation is not a vain matter vithout useful end and that if it seems to you
that this is the case vith regard to some of the commandments, the de-
ciency resides in your apprehension. \ou already knov the tradition that is
videspread among us according to vhich the causes for all the command-
ments, vith the exception of that concerning the red heifer,
3
vere knovn to
Solomon, and also their |the RabbisLds.| dictum that God hid the causes
for the commandments in order that they should not be held in little esteem,
as happened to Solomon vith regard to the three commandments vhose
causes are made clear.
4
. . . What everyone endoved vith a sound intellect
ought to believe on this subject is vhat I shall set forth to you The gener-
. See Num. ,. In some Rabbinic sources this commandment is listed among the mysterious
hullim (cf. ).
. Cf. BT Sanhedrin :b, vhich refers to the three commandments in the lav of kings (Deut.
;o; |;, |).
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alities of the commandments necessarily have a cause and have been given
because of a certain utility; their details are that in regard to vhich it vas
said of the commandments that they vere given merely for the sake of com-
manding something. . . . The true reality of particulars of commandments is
illustrated by the sacrices. The oering of sacrices has in itself a great and
manifest utility, as I shall make clear. But no cause vill ever be found for the
fact that one particular sacrice consists in a lamb and another in a ram and
that the number of the victims should be one particular number. Accord-
ingly, in my opinion, all those vho occupy themselves vith nding causes
for something of these particulars are stricken vith a prolonged madness in
the course of vhich they do not put an end to an incongruity, but rather
increase the number of incongruities. Those vho imagine that a cause may
be found for such like things are as far from truth as those vho imagine that
the generalities of a commandment are not designed vith a viev to some
real utility. . . .
(:;) The Iav as a vhole aims at tvo things the velfare of the
soul and the velfare of the body. As for the velfare of the soul, it consists
in the multitudes acquiring correct opinions corresponding to their respec-
tive capacity. Therefore some of them |namely, the opinions| are set forth
explicitly and some of them are set forth in parables. lor it is not vithin the
nature of the common multitude that its capacity should suce for appre-
hending that subject matter as it is. As for the velfare of the body, it comes
about by the improvement of their vays of living one vith another. This is
achieved through tvo things. One of them is the abolition of their vrong-
ing each other. This is tantamount to every individual among the people
not being permitted to act according to his vill and up to the limits of his
pover, but being forced to do that vhich is useful to the vhole. The second
thing consists in the acquisition by every human individual of moral quali-
ties that are useful for life in society so that the aairs of the city may be
ordered. Knov that as betveen these tvo aims, one is indubitably greater
in nobility, namely, the velfare of the soulI mean the procuring of cor-
rect opinionsvhile the second aimI mean the velfare of the bodyis
prior in nature and time. The latter aim consists in the governance of the city
and the vellbeing 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 vhich
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every eort has been made precisely to expound it and all its particulars. lor
the rst aim can only be achieved after achieving this second one. lor it has
already been demonstrated that man has tvo perfections a rst perfection,
vhich is the perfection of the body, and an ultimate perfection, vhich is the
perfection of the soul. The rst perfection consists in being healthy and in
the very best bodily state, and this is only possible through his nding the
things necessary for him vhenever he seeks them. These are his food and all
the other things needed for the governance of his body, such as a shelter,
bathing, and so forth. This cannot be achieved in any vay by one isolated
individual. lor an individual can only attain all this through a political asso-
ciation, it being already knovn that man is political by nature. His ultimate
perfection is to become rational iu a.tu, I mean to have an intellect iu a.tu,
this vould consist in his knoving everything concerning all the beings that
it is vithin the capacity of man to knov in accordance vith his ultimate
perfection. It is clear that to this ultimate perfection there do not belong
either actions or moral qualities and that it consists only of opinions tovard
vhich speculation has led and that investigation has rendered compulsory.
It is also clear that this noble and ultimate perfection can only be achieved
after the rst perfection has been achieved. lor a man cannot represent to
himself an intelligible |i.e., an object perceived by the intellectLds.| even
vhen taught to understand it and all the more cannot become avare of it
of his ovn accord if he is in pain or is very hungry or is thirsty or is hot or
is very cold. But once the rst perfection has been achieved it is possible to
achieve the ultimate, vhich is indubitably more noble and is the only cause
of permanent preservation.
The true Iavthen, vhich as ve have already made clear is unique
namely, the Iav of Moses our Masterhas come to bring us both perfec-
tions, I mean the velfare of the states of people in their relations vith one
another through the abolition of reciprocal vrongdoing and through the
acquisition of a noble and excellent character. In this vay the preservation
of the population of the country and their permanent existence in the same
order become possible, so that every one of themachieves his rst perfection;
I mean also the soundness of the beliefs and the giving of correct opinions
through vhich ultimate perfection is achieved.
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!hree Kiuos oj Lau
. |oseph Albo, Bool oj Iriu.iples ;:
8ejer HaIlarim, translated and edited by Isaac Husik (Philadelphia |evish Publication
Society, ,o), pp. ;:::.
Iollouiug Maimouioes a..ouut oj the humau .ouoitiou, uhi.h ue.essitates the politi.al
orgaui:atiou oj so.iety, Al|o, iuueu.eo |y !homas Aquiuas, preseuts a threejolo legal
philosophy, oistiuguishiug uatural, positi:e, auo oi:iue lau. His argumeut iu.luoes a
series oj homileti. expositious oj Isalm :, iu uhi.h the praise oj the !orah jollous a
.ele|ratiou oj Coos uorl iu uature.
(;) . . . There are three kinds of lav, natural, positive or conventional, and
divine. Natural lav is the same among all peoples, at all times, and in all
places. Positive or conventional is a lav ordered by a vise man or men to
suit the place and the time and the nature of the persons vho are to be con-
trolled by it, like the lavs and statutes enacted in certain countries among the
ancient idolaters, or those vho vorship God as human reason dictates vith-
out any divine revelation. Divine lav is one that is ordered by God through
a prophet, like Adam or Noah, or like the custom or lav vhich Abraham
taught men, instructing them to vorship God and circumcising them by the
command of God, or one that is ordered by God through a messenger vhom
He sends and through vhom He gives a lav, like the Iav of Moses.
The purpose of natural lav is to repress vrong, to promote right, in
order that men may keep avay from theft, robbery, and murder, that society
may be able to exist among men and every one be safe from the vrongdoer
and oppressor. The purpose of conventional or positive lav is to suppress
vhat is unbecoming and to promote vhat is becoming, that men may keep
avay from the indecent according to human opinion. Herein lies its advan-
tage over natural lav, for conventional lav also controls human conduct and
arranges their aairs vith a viev to the improvement of human society, even
as natural lav. The purpose of divine lav is to guide men to obtain true hap-
piness, vhich is spiritual happiness and immortality. It shovs them the vay
they must follov to obtain it, teaches them the true good that they may take
pains to secure it, shovs them also real evil that they may guard against it,
and trains them to abandon imaginary happiness so that they may not desire
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it and not feel its loss. And in addition it also lays dovn the rules of right that
the political community may be ordered in a proper manner, so that the bad
order of their social life may not prevent them from attaining true happiness,
vhich is the ultimate end of the human race to vhich they are destined by
God. Divine lav is therefore superior to conventional or positive.
(:) Positive or conventional lav is inferior to divine lav in many
vays. The rst is the one ve mentioned, namely that positive lav controls
human conduct in order to maintain a good political society, but it cannot
impart true theoretical knovledge, as ve shall shov in the sequel, so as to
give immortality to the soul and enable it to return to the land of life from
vhich it vas taken, because positive lav deals only vith the becoming and
unbecoming. Divine lav is adequate for this purpose, because it includes
both parts upon vhich human perfection is based, viz., conduct and theory.
Divine lav embraces the becoming and unbecoming, and it distinguishes
betveen the true and the false, vhich constitutes the theoretical part. That
is vhy David describes it as perfect, vhen he says, The lav of the Iord is
perfect, restoring the soul (Ps. ,:). The meaning is that the positive lav
is not perfect because it does not deal vith true opinions, but divine lav is
perfect because it embraces perfection in morals and perfection in theory,
vhich are the tvo parts upon vhich the perfection of the soul is dependent.
Therefore it restores the soul to God vho gave it, and to the place vhich
vas its original home.
Another point of inferiority of the conventional lav to divine lav
is that the former cannot distinguish betveen the becoming and the unbe-
coming in all cases. lor a thing may seem becoming or unbecoming to us
vithout being so in reality. lor just as it is impossible that a man should
be born perfect in all the practical arts, though he may have a natural apti-
tude for some, so it is impossible that one should be born perfect in all good
qualities and free from all defect, though he may have a greater tendency to
certain qualities than to others. But that he should have all good qualities is
impossible.
It becomes clear nov that it is impossible for any author of a human
code not to shov a natural deciency in some direction, and regard the be-
coming as unbecoming and the unbecoming as becoming. His testimony
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concerning the becoming and the unbecoming vill therefore not be true.
Thus Plato made a grievous mistake, advocating the unbecoming as though
it vere becoming. lor his idea is that all the vomen of a given class should
be held in common by the men of that class. Thus, the vives of the rulers
should be common to all the rulers, the vives of the merchants common
to all the merchants, and similarly the vives of the men of a given trade or
occupation should be common to the men of that trade or occupation. This
is a matter vhich the Torah forbids; even the Noahide lav prohibits it, for
Abimelech vas told, Behold, thou shalt die, because of the voman vhom
thou hast taken; for she is a mans vife (Gen. :o), and his excuse vas that
he did not knov she had a husband. Aristotle, as is knovn, criticized Platos
idea in this matter.
This shovs that no human being is able to dierentiate correctly
betveen the becoming and the unbecoming, and his opinion on this mat-
ter cannot therefore be relied upon. Not to speak of theoretical knovledge,
vhere it is clear that ve cannot rely on a human opinion concerning pro-
found problems, such as the creation or eternity of the vorld, for the human
mind is not adequate to knov this vith certainty. But The testimony of the
Iord is sure, making vise the simple (Ps. ,:), for it gives a reliable state-
ment on the problemof the vorlds origin, and on other important problems,
including morals.
Another point of inferiority in conventional lav as compared vith
divine is that it cannot give full satisfaction to those vho follov its require-
ments. The reason is that vhen a person is in doubt vhether the thing he
does is sucient to lead him to the end intended, he cannot feel satisfaction
in vhat he does. But a person vho follovs the conventional lav is precisely
in this position. He does not knov vhether that vhich the lav denes as
just is really just or only apparently so. Hence he cannot nd satisfaction. He,
hovever, vho lives by the divine lav knovs that vhat is dened therein as
just is really just. Hence he nds satisfaction in his conduct. This is vhy The
precepts of the Iord are right, rejoicing the heart (Ps. ,,).
Another point of inferiority in the conventional lav as compared
vith the divine is this. Conventional lav cannot dene the specic acts
vhich are proper in the several virtues. It can only make general statements
in the same vay as a denition can be given of the general only, vhile the
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particular can not be dened. Similarly, conventional lavcan not dene par-
ticular acts. Thus Aristotle in his Lthi.s says repeatedly in connection vith
the dierent virtues that a virtuous act consists in doing the proper thing at
the proper time and in the proper place, but he does not explain vhat is the
proper time and the proper place. It is clearly a matter vhich not everyone
is capable of determining. Aristotle also says in various places in the Lthi.s
that the proper measure must be maintained in every act, but does not tell
us vhat the proper measure is. It vould seem therefore that his opinion vas
that the determination of this matter must be sought elsevhere.
. . . Again, the author of conventional lav is a human being, and
therefore cannot determine the becoming and the unbecoming at all times.
lor those things vhich pertain to general opinion may change, and that
vhich is nov regarded as becoming may be regarded later as unbecoming
and vice versa. Thus ve nd that in the days of Cain and Abel and the an-
cient times generally, the marriage of a sister vas not thought indecent. The
same thing vas true in the time of Abraham. lor Abraham in excusing him-
self to Abimelech said, And moreover she is indeed my sister, the daugh-
ter of my father, but not the daughter of my mother (Gen. :o:). Iater
the marriage of sisters came to be regarded as indecent. lor this reason, the
aversion from the unbecoming vhich is acquired through the conventional
lav cannot last forever, because it changes vith the times. But the divine
lav, by reason of the fact that it is determined by divine visdom, declares
the becoming and the unbecoming for all time. And therefore the aversion
from the unbecoming that is acquired through the divine lav is not liable
to change or destruction, for it is free from all error and impurity, and can
therefore exist forever like silver vhich is free from all dross, as the Psalmist
says The vords of the Iord are pure vords, as silver tried in a crucible on
the earth, rened seven times (Ps. :;).
Connentary. Iav and Reason
Since the seventeenth century, the central question about reason
and revelation has usually been, Is it possible rationally to prove the exis-
tence of God But that isnt the question that these selections address. All
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these thinkerseven Halevi and Albo, vho express some skepticism about
the reach of philosophyphilosophized vithin a classical tradition in vhich
the possibility of establishing the existence of God, at least the God of the
philosophers, vas assumed. The question they deal vith here is vhat ve are
to do ajter ve have accepted the existence of a supreme being.
Selection , from BT \oma, introduces a distinction that gures in
all our selections, betveen Gods mishpatim(ordinances), especially those that
belong to a rationally defensible (or at least arguable) morality, and Gods
mysterious hullim (edicts), that is, such specically religious or ritual com-
mandments as the lavs of lashrut, the prohibition on vearing shaatue: (mix-
tures of vool and linen), and circumcision. One of the positions represented
here (notably by |udah Halevi) is that vith respect to the latter ve have
to rely entirely on revelation (a rational defense of the hullim is beyond
our povers), vhile our natural intellectual povers do suce to justify the
former. This position is also contested here, notably by Saadiah and Maimo-
nides, vho argue that even the ritual edicts have a largely rational justi-
cation. Hovever, the debates going on vithin these selections and betveen
them concern the pover (or the impotence) of reason in the area of ratio-
nally arguable morality as much as they do the rationality of the ritual com-
mandments. Because the possibility or impossibility of rationally defending
our moral commitments is such a live topic today, I shall begin by discussing
the positions of these thinkers vith respect to that issue.
lirst, let me say a vord about the conception of morality that is
at stake herevhat BT \oma calls things vhich, had they not been laid
dovn, ought to have been laid dovn. In certain vays, that conception is a
fairly modest one. If these selections are not concerned vith the question
Can reason prove the existence of God neither are they concerned vith
the question Why should I be moral (vhich Plato discussed at such length).
When Saadiah argues (in :) against the viev that the good is vhat af-
fords . . . pleasure and rest, he takes it for granted that the advocates of this
hedonistic position are villing to make the maximTreat anything that gives
pleasure and relief as good and anything that gives pain or vorry or grief as
evil a uui:ersal maxim of conduct (in vhat ve vould call a Kantian sense).
In eect, Saadiahs argument appeals to the categorical imperative. Saadiah
is saying that the hedonist maxim cannot be universalized vithout contra-
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diction. A thinker like Platos Thrasymachus (in book I of !he Repu|li.), vho
doesnt set out to defend a universalizable morality is not addressed at all.
The morality that these thinkers describe as accessible to reason
(although they dier on the seriousness of our propensity to make mistakes
about it) is a morality justied, in the rst instance, by its necessity as a means
to a certain endand that end is the maintenance of human society or, more
precisely, the maintenance of a minimal set of social goods. These minimal
goods are the protection of members from the continual disruption of their
lives by violence, theft, fraud, and anarchy, as vell as the securing of cer-
tain positive goods, in particular the maintenance and support of family life.
(Considerations of vhat is necessary for the support of family life are ap-
pealed to, for instance, in the justication or attempted justication of tradi-
tional sexual morality by Saadiah.) A stable society that aords its members
protection (or at least legal redress) against murder, theft, fraud, and the sorts
of sexual improprieties that are supposed to be destructive of family life is
not, hovever, an end in itself for any of these thinkers (this is especially true
of Maimonides, vhose understanding of the role of morality in religious life
is far too complex to be represented in this or any single selection).
Briey, the reason that ve vant a society vhose members do not
have to vorry about being enslaved or svindled or robbed or murdered or
having their families disrupted is that these goodsfreedom from fear of
these things happening and the existence of a supportive and cooperative
family and communityhave to be in place if ve are to aspire to being any-
thing higher than merely successful social animals. These thinkers quite rea-
sonably take it for granted that ve are social animals and that one can say
something about vhat the velfare of human beings qua social animals re-
quires; but they do not think that the vocation of human beings is simply to
be successful social animals. As religious thinkers, they think our vocation is
incomparably higher than that. This thought continues to have considerable
validity today in contemporary language, the preconditions for vhat |ohn
Ravls (in A !heory oj justi.e, ,;) calls a vell-ordered society are goods
that have to be in place if people are to have life projects that give meaning
and dignity to their lives.
Albo (in ) interestingly, hovever, divides vhat I have called ratio-
nally arguable morality into tvo parts a part he calls natural lav, vhich
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seems to consist of simple universal principles (like the seven Noahide com-
mandments)for example, Do not murder, Do not stealvhich are
valid for all societies at all times, and vhat is here translated as conven-
tional lav or positive lav, principles that, vhile having the same rationale
as natural lav, are adapted to circumstances that may vary from society to
society, as vell as principles that concern not only vhat is minimally nec-
essary for social life but also vhat is necessary for its improvement. Both
Albo and Saadiah hold the viev, hovever, that even in the area of rationally
arguable morality, revelation is decidedly superior to unaided reason. The
arguments they give, though not acceptable to a person vho, like myself, re-
jects the idea of revelation as an inerrant source of knovledge of Gods vill,
are not vithout interest. Albo cites disagreements betveen highly intelli-
gent thinkers concerning the best sexual arrangements. Plato, he reminds us,
held that the people of each of the major social classes (in the ideal society)
ought to have vives in common, vhich Albo thinks vas clearly a mistake.
The fact that the vise disagree over vhat is a good positive lav shovs, he
thinks, that positive or conventional lavarrived at by human reason vithout
the aid of revelation vill alvays be marred by serious errors. Of course, an
alternative conclusion, one vigorously defended by |ohn Devey, vould be
that no moral or political code that human beings are able to make up, uith
or uithout the aid of vhat they take to be revelation, can be free of error, any
more than any scientic theory that human beings make up can be entirely
free of error (complete freedom from error is an unreasonable goal). But this
vas not a possible position for our authors.
In Saadiah, vhat one nds is perhaps not as extreme a pessimism
concerning the povers of reason as Albos, but rather an epistemic argument
for the superiority of revelation over reason. Reason may be able to arrive
at rational moral lav by speculation (i.e., metaphysical inquiry), accord-
ing to Saadiah, but this is very slov, and even the best philosopher is apt to
make mistakes. Revelation gives us a quicker path and an error-free path to
vhat speculation could eventually arrive at. The vievs of Albo and of Saa-
diah both presuppose, hovever, that ve possess a revelation vith respect to
morality that is error-free. Those of us vho believe that the human authors
of the Bible (hovever inspired they vere) made mistakes vith respect to
moralityfor example, in their attitudes and legislation concerning vomen,
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their attitudes and legislation concerning gays, and so onhave to reject this
presupposition. But the question they raiseWhat should ve do about the
obvious fallibility of our moral opinionsis still very much vith us.
Ieaving the area of mishpatim or general morality and coming nov
to the hullim, and particularly the ritual hullim, such as lashrut, shaatue:,
and circumcision, here, too, ve nd a range of opinions. It is obvious that
some of the authors, notably Saadiah and Maimonides, vish to give justi-
cations for most, if not all, of the hullim in terms of utility; but the notion
of utility that they employ must not be misunderstood. It is not a ques-
tion of, say, justifying the prohibition on eating pork by arguing that it is a
vay of avoiding trichinosis. Sometimes, to be sure, practical utility is vhat
is at stake, as vhen Saadiah tells us that among the benets accruing from
the consecration of certain seasons, by desisting from vork on them, there
is rst of all that of obtaining relaxation from much exertion. But generally
the utility cited in connection vith obeying a ritual commandment is of a
moral or religious nature. lor example, Saadiah goes on to say that vhen
ve desist from vork on the Sabbath or a holiday, this gives us the oppor-
tunity to obtain knovledge and to do additional praying. Similarly, ve are
told that among the benets accruing from consecrating a particular person
from among others is that it enables that person to imbue his fellovs vith
the desire for righteousness. Maimonides justications for particular mit:
:ot are regularly of this kind. Lhud Benor, in a ne study of Maimonides
philosophy of religion (!he 1orship oj the Heart, ,,), has shovn that the
Maimonidean rationale for the structure of the amioah, the primary daily
prayer, has to do vith the role of prayer in moral and spiritual education.
lor |udah Halevi all such justications fall short. Only God knovs
the true reasons for the ritual commandments, and ve obey them because
|evs are required to do vhat God has commanded and because it is glorious
to obey God. This justication, that they are directly commanded by God,
is one that many modern |evs, even religious |evs (e.g., members of the
Conservative, Reform, and Reconstructionist movements), cannot accept.
Lven vithin Orthodoxy, the Halevi position is an extreme one. David Weiss
Halivni, in his book Ieshat auo Derash (,,), has discerned vithin the tra-
dition a nonmaximalist viev of revelation, according to vhich vhat vas
revealed to Moses on Sinai vas not the details of the hullim but only gen-
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eral principlesand then the detailed lavs and explanations vere vorked
out by human beings on the basis of the principles. And vith respect to
those ordinances that are from the rabbis (oera||auau) rather than directly
fromthe Bible, there is a vell-knovn position according to vhich vhat God
commanded vas that the rabbis vork out the details by majority vote. The
authority of the rabbis to do this is, hovever, still held to be directly be-
stoved by God. But |evs vho belong to the non-Orthodox movements nd
it hard to see even the authority of the rabbinate as literally commanded by
God.
lor such |evs today, even if they cannot accept the details of Mai-
monides justication for this or that mit::ah, the idea of seeing the rituals
that have so long been a part of the |evish religious tradition and of |evish
life in general as also being (like the rituals of every great religious tradition)
a vay of shapiug a parti.ular religious seusi|ility is one that ve can resonate to. So
I can resonate to lranz Rosenzveigs idea in The Builders that just as many
of us can hold on to a (perhaps mystical) sense that there is something to
the idea of revelation vithout associating that something vith infallibility
or the dictation model, perhaps ve can also accept that there is something
to the idea of ritual observance as obeying a command (or a Command),
vhile recognizing that for dierent |evs dierent mit::ot vill have meaning
in this vay.
Hilary Iutuam
Re:elatiou, Morality, auo Ritual. Mooeru 8truggles
Di:iue Lau Is Morality
. Baruch Spinoza, !heologi.alIoliti.al !reatise, Chapters
!ra.tatus !heologi.oIoliti.us, translated by Samuel Shirley (Ieiden L. |. Brill, ,,), pp. o
, :.
Coutrary to Maimouioes auo Al|os .laim that the purpose oj !orah lau is humau per
je.tiou, 8piuo:a .ouues its juu.tiou to politi.al su..ess. Ior him oi:iue lau is eutirely
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oiereut. It is uui:ersally appreheuoeo |y humau reasou, auo o|eoieu.e to it jollous
uaturally jrom our luouleoge oj Coo. Heu.e the ritual .ommauomeuts oeli:ereo
at 8iuai are uo part oj it, they |eloug to a liuo oj oi:iue positi:e lau iuteuoeo jor
Israel aloueauo ouly jor Israel .ou.ei:eo as a polity. Iu maliug this argumeut, para
ooxi.ally, 8piuo:a oraus upou Maimouioes .laim that uorshipiug Coo out oj lo:e is
the pra.ti.e oj truth |e.ause it is the truth (M! Repeutau.e :o..), so it requires uo
uorloly moti:atiou.
Chapter
. . . Since the love of God is mans highest happiness and blessedness,
and the nal end and aim of all human action, it follovs that only he ob-
serves the Divine Iav vho makes it his object to love God not through fear
of punishment nor through love of some other thing such as sensual pleasure,
fame, and so forth, but from the mere fact that he knovs God, or knovs
that the knovledge and love of God is the supreme good. So the sum of the
Divine Iav and its chief command is to love God as the supreme good. . . .
The natural Divine Iavdoes not enjoin ceremonial rites, that is, ac-
tions vhich in themselves are of no signicance and are termed good merely
by tradition, or vhich symbolize some good necessary for salvation, or, if
you prefer, actions vhose explanation surpasses human understanding. lor
the natural light of reason enjoins nothing that is not vithin the compass of
reason, but only vhat it can shov us quite clearly to be a good, or a means
to our blessedness. The things vhose goodness derives only from authority
and tradition, or from their symbolic representation of some good, cannot
perfect our intellect; they are mere shadovs, and cannot be counted as ac-
tions that are, as it vere, the ospring and fruit of intellect and sound mind.
There is no need for me to go further into this matter.
. . . linally, ve see that the supreme revard of the Divine Iav is
the lav itself, namely, to knov God and to love him in true freedom vith
all our heart and mind. The penalty it imposes is the deprivation of these
things and bondage to the esh, that is, an inconstant and irresolute spirit.
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Chapter
In the previous chapter ve shoved that the Divine Iav, vhich
makes men truly blessed and teaches the true life, is of universal application
to all men. Indeed, our method of deducing it fromhuman nature shovs that
it must be considered as innate in the human mind and inscribed therein,
as it vere. Nov ceremonial observancesthose, at least, that are laid dovn
in the Old Testamentvere instituted for the Hebrevs alone, and vere so
adapted to the nature of their government that they could not be practiced
by the individual but involved the community as a vhole. So it is evident
that they do not pertain to the Divine Iav, and therefore do not contrib-
ute to blessedness and virtue. They have regard only to the election of the
Hebrevs, that is, (as ve demonstrated in chapter ) to their temporal and
material prosperity and peaceful government, and therefore could have been
of practical value only vhile their state existed. If in the Old Testament ve
nd them included in Gods lav, this can only be because they oved their
institution to revelation, or to principles revealed therein. Hovever, since
reason, be it of the soundest, carries little veight vith the common run of
theologians, I nov intend to conrm by Scriptural authority vhat ve have
just demonstrated; and then, for greater clarity, I shall go on to shovhovand
vhy ceremonial observances served to strengthen and preserve the |evish
state. . . .
The fact that the observance of ceremonies has regard only to the
temporal prosperity of the state and in no vay contributes to blessedness
is . . . evident from Scripture, vhich for ceremonial observance promises
nothing but material advantages and pleasures, vhile blessedness is promised
only for observance of the universal Divine Iav. In the ve books com-
monly attributed to Moses the only promise made, as I have already said, is
vorldly successhonors or fame, victory, riches, lifes pleasures, and health.
And although these ve books contain much about moral teaching as vell
as ceremonial observance, these passages are not set forth as moral teachings
of universal application to all men, but as commands particularly adapted to
the understanding and character of only the Hebrev nation, and therefore
relating only to the velfare of their state. lor example, it is not as a teacher
or prophet that Moses forbids the |evs to kill or to steal; it is as a lavgiver
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or ruler that he issues these commands. He does not justify his precepts by
reasoning, but attaches to his commands a penalty, a penalty vhich can vary,
and must vary, to suit the character of each single nation, as ve vell knov
from experience. So, too, his command not to commit adultery has regard
only to the good of the commonvealth and state. If he had intended this to
be a moral precept that had regard not merely to the good of the common-
vealth but to the peace of mind and the true blessedness of the individual,
he vould have condemned not merely the external act but the very vish,
as did Christ, vho taught only universal moral precepts (see Matt. ::). It
is for this reason that Christ promises a spiritual revard, not, like Moses,
a material revard. lor Christ, as I have said, vas sent not to preserve the
state and to institute lavs, but only to teach the universal lav. Hence ve can
readily understand that Christ by no means abrogated the lav of Moses, for
it vas not Christs purpose to introduce nev lavs into the commonvealth.
His chief concern vas to teach moral doctrines, keeping them distinct from
the lavs of the commonvealth. . . .
But let us return to our theme, and cite other passages of Scrip-
ture vhich promise for ceremonial observance nothing but material bene-
ts, reserving blessedness solely for the universal Divine Iav. None of the
prophets spoke more clearly on this subject than Isaiah. In chapter :, after
his condemnation of hypocrisy he commends the freeing of the oppressed
and charity tovards oneself and ones neighbor, promising in return, Then
shall thy light break forth as the morning, and thine health shall spring forth
speedily, and thy righteousness shall go before thee; the glory of the Iord
shall gather thee in (Isa. ::). Then he goes on to commend the Sabbath,
too, and for its diligent observance he promises, Then shalt thou delight
thyself in the Iord, and I shall cause thee to ride upon the high places of the
earth, and feed thee vith the heritage of |acob, thy father; for the mouth of
the Iord hath spoken it (Isa. :). So ve see that, in return for the free-
ing of the oppressed and for charity, the prophet promises a healthy mind
in a healthy body, and the glory of the Iord even after death;
5
but in return
for the observance of ceremonies he promises only the security of the state,
prosperity, and material success. . . .
. Spinoza follovs the traditional midrashic rendering of Isa. ::; see 8ijre ^um|ers oo.
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That the Hebrevs are not bound to practice their ceremonial rites
since the destruction of their state is clear from |eremiah, vho, vhen he sav
and proclaimed the imminent ruin of the city, said that God delights only in
those vho knovand understand that he exercises lovingkindness, judgment,
and righteousness in the earth, and so thereafter only those vho knov these
things are to be deemed vorthy of praise (see |er. ,:).
6
This is as much as
to say that after the destruction of the city God demanded no special service
of the |evs and sought nothing of them thereafter except the natural lav by
vhich all men are bound.
Re:elatiou auo Ritual. Beyouo |ui:ersal Morality
). Moses Mendelssohn, jerusalem, Section II
jerusalem, translated by Allan Arkush (Hanover and Iondon University Press of Nev Ln-
glandBrandeis University Press, ,:), pp. :,.
Meuoelssohus politi.al purpose iu |erusalem uas to ao:o.ate equal rights jor jeuish
.iti:eus |aseo ou au argumeut jor the separatiou oj .hur.h auo state. But the .all jor
separatiou iu:ites a .halleuge regaroiug the politi.al .hara.ter oj the Mosai. lau. 1hat
are the laus oj Moses, they asl, ij uot a system oj religious go:erumeut, oj religious
pouer auo rights` (|erusalem, p. ,). Meuoelssohu respouoeo to this .halleuge uith
au argumeut that reje.ts Maimouioes :ersiou oj oi:iue lau uithout espousiug 8pi
uo:as .ritique oj oi:iue positi:e lau. Meuoelssohus positiou |e.ame oue oj the |asi.
jormulatious oj juoaism iu mooeruity. His attempt to ja.e the .halleuge oj the loss oj
jeuish .ommuual autouomy, ou the oue hauo, auo the ueu .ouoitious oj emau.ipa
tiou, ou the other, e.ho through the su|sequeut reaoiugs iu this .hapter. Be.ause oj this
texts pi:otal role auo the resem|lau.e oj its geure to au essay rather thau a traoitioual
text, ue preseut it at leugth. 1e ha:e iu.luoeo here Meuoelssohus ois.ussious oj the
.hara.ter oj the jeuish state auo the rights oj the .ommuuity iu exile rather thau .ut
his argumeut auo mo:e these se.tious to the rele:aut .hapters (espe.ially ;,) |elou.
o. A clear contrast to !he Cuioe oj the Ierplexeo (;o).
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I believe that |udaism knovs of no revealed religion in the sense in vhich
Christians understand this term. The Israelites possess a divine legislatiou
lavs, commandments, ordinances, rules of life, instruction in the vill of God
as to hov they should conduct themselves in order to attain temporal and
eternal felicity. Propositions and prescriptions of this kind vere revealed to
them by Moses in a miraculous and supernatural manner, but no doctrinal
opinions, no saving truths, no universal propositions of reason. These the
eternal reveals to us and to all other men, at all times, through uature and
thiug, but never through uoro and s.ript.
I fear that this may be astonishing, and again seem nev and harsh
to some readers. Invariably, little attention has been paid to this dierence;
one has taken superuatural legislatiou for a superuatural re:elatiou oj religiou, and
spoken of |udaismas if it vere simply an earlier revelation of religious propo-
sitions and doctrines necessary for mans salvation. . . .
I . . . do not believe that the povers of human reason are insu-
cient to persuade men of the eternal truths vhich are indispensable to human
felicity, and that God had to reveal them in a supernatural manner. Those
vho hold this viev detract from the omnipotence or the goodness of God,
on the one hand, vhat they believe they are adding to his goodness, on the
other. He vas, in their opinion, good enough to reveal to men those truths
on vhich their felicity depends, but not omnipotent, or not good enough, to
grant themthe povers to discover these truths themselves. Moreover, by this
assertion one makes the necessity of a supernatural revelation more universal
than revelation itself. If, therefore, mankind must be corrupt and miserable
vithout revelation, vhy has the far greater part of mankind lived vithout
true re:elatiou from time immemorial Why must the tvo Indies vait until it
pleases the Luropeans to send thema fevcomforters to bring thema message
vithout vhich they can, according to this opinion, live neither virtuously
nor happily To bring them a message vhich, in their circumstances and state
of knovledge, they can neither rightly comprehend nor properly utilize . . .
|udaism boasts of no ex.lusi:e revelation of eternal truths that are
indispensable to salvation, of no revealed religion in the sense in vhich that
term is usually understood. Revealed religiou is one thing, revealed legislatiou,
another. The voice vhich let itself be heard on Sinai on that great day did
not proclaim, I am the eternal, your God, the necessary, independent being,
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omnipotent and omniscient, that recompenses men in a future life accord-
ing to their deeds. This is the universal religiou oj mauliuo, not |udaism; and
the universal religiou oj mauliuo, vithout vhich men are neither virtuous nor
capable of felicity, vas not to be revealed there. In reality, it could not have
been revealed there, for vho vas to be convinced of these eternal doctrines
of salvation by the voice of thunder and the sound of trumpets Surely not
the unthinking, brutelike man, vhose ovn reections had not yet led him
to the existence of an invisible being that governs the visible. The miraculous
voice vould not have instilled any concepts in him and, therefore, vould not
have convinced him. Still less |vould it have convinced| the sophist, vhose
ears are buzzing vith so many doubts and ruminations that he can no longer
hear the voice of common sense. He demands ratioual proojs, not miracles. . . .
Anyone vho did not knov this, vho vas not imbued vith these
truths indispensable to human felicity, and vas not prepared to approach
the holy mountain, could have been stunned and overvhelmed by the great
and vonderful manifestations, but he could not have been made avare of
vhat he had not knovn before. No' All this vas presupposed; it vas, per-
haps, taught, explained, and placed beyond all doubt by human reasoning
during the days of preparation. And nov the divine voice proclaimed I am
the eternal, your God, vho brought you out of Lgypt, vho delivered you
from bondage, etc. (Lxod. :o:). A historical truth, on vhich this peoples
legislation vas to be founded, as vell as lavs, vas to be revealed here
commandments and ordinances, not eternal religious truths. . . .
Although the divine book that ve received through Moses is,
strictly speaking, meant to be a book of lavs containing ordinances, rules
of life, and prescriptions, it also includes, as is vell knovn, an inexhaustible
treasure of rational truths and religious doctrines vhich are so intimately
connected vith the lavs that they form but one entity. All lavs refer to, or
are based upon, eternal truths of reason, or remind us of them, and rouse us
to ponder them. Hence, our rabbis rightly say the lavs and doctrines are
related to each other, like body and soul. I shall have occasion to say more
about this belov, and shall content myself here vith presupposing it as a fact,
of the truth of vhich anyone can convince himself if he peruses the lavs of
Moses for that purpose, even if only in translation. The experience of many
centuries also teaches that this divine lav book has become, for a large part
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of the human race, a source of insight from vhich it dravs nev ideas, or
according to vhich it corrects old ones. . . . But all these excellent proposi-
tions are presented to the understanding, submitted to us for consideration,
vithout being forced upon our belief. Among all the prescriptions and ordi-
nances of the Mosaic lav, there is not a single one vhich says you shall |elie:e
or uot |elie:e. They all say you shall oo or uot oo. laith is not commanded, for it
accepts no other commands than those that come to it by vay of conviction.
All the commandments of the divine lav are addressed to mans vill, to his
pover to act. . . .
And nov I am able to explain more clearly my surmise about the
purpose of the ceremonial lav in |udaism. . . . Religious and moral teachings
vere to be connected vith mens everyday activities. The lav, to be sure, did
not impel themto engage in reection; it prescribed only actions, only doing
and not doing. The great maximof this constitution seems to have been Meu
must |e impelleo to perjorm a.tious auo ouly iuou.eo to eugage iu ree.tiou. There-
fore, each of these prescribed actions, each practice, each ceremony had its
meaning, its valid signicance; each vas closely related to the speculative
knovledge of religion and the teachings of morality, and vas an occasion
for a man in search of truth to reect on these sacred matters or to seek in-
struction from vise men. The truths useful for the felicity of the nation as
vell as of each of its individual members vere to be utterly removed from
all imagery; for this vas the main purpose and the fundamental lav of the
constitution. . . .
In this original constitution, state and religion vere not conjoined,
but oue, not connected, but identical. Mans relation to society and his rela-
tion to God coincided and could never come into conict. God, the Creator
and Preserver of the vorld, vas at the same time the King and Regent of this
nation; and his oneness is such as not to admit the least division or plurality
in either the political or the metaphysical sense. Nor does this monarch have
any needs. He demands nothing from the nation but vhat serves its ovn
velfare and advances the felicity of the state; just as the state, for its part,
could not demand anything that vas opposed to the duties tovard God, that
vas not rather commanded by God, the Iavgiver and Regent of the nation.
Hence, in this nation, civil matters acquired a sacred and religious aspect, and
every civil service vas at the same time a true service of God. The commu-
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nity vas a community of God, its aairs vere Gods; the public taxes vere an
oering to God; and everything dovn to the least police measure vas part
of the oi:iue ser:i.e. The Ievites, vho lived o the public revenue, received
their livelihood from God. They vere to have no property in the land, for
God is their property (Deut. ::). He vho must sojourn outside the land
serves joreigu goos. This |statement vhich occurs| in several places in Scrip-
ture
7
cannot be taken in a literal sense. It actually means no more than that
he is su|je.t to alieu politi.al laus, uhi.h, uulile those oj his ouu .ouutry, are uot at
the same time a part oj the oi:iue ser:i.e.
The same can be said of the crimes. Lvery sacrilege against the au-
thority of God, as the lavgiver of the nation, vas a crime against the Majesty,
and therefore a crime of state. Whoever blasphemed God committed lese
majesty; vhoever sacrilegiously desecrated the Sabbath implicitly abrogated
a fundamental lavof civil society, for an essential part of the constitution vas
based on the establishment of this day. Iet the Sabbath be an eternal cove-
nant betveen Me and the children of Israel, said the Iord, a perpetual sign
that in six days the Lternal, etc. . . . (Lxod. o;). Under this constitu-
tion these crimes could and, indeed, had to be punished civilly, not as erro-
neous opinion, not as uu|eliej, but as misoeeos, as sacrilegious crimes aimed at
abolishing or veakening the authority of the lavgiver and thereby under-
mining the state itself. \et, nevertheless, vith vhat leniency vere even these
capital crimes punished' With vhat superabundant indulgence for human
veakness'
|Here Mendelssohn cites the extensive constraints placed in Rab-
binic lav upon capital and corporeal punishment; see ;:.Lds.|
Moreover, as the Rabbis expressly state, uith the oestru.tiou oj the
!emple, all .orporal auo .apital puuishmeuts auo, iuoeeo, e:eu mouetary ues, iusojar
as they are ouly uatioual, ha:e .easeo to |e legal.
8
Perfectly in accordance vith
my principles, and inexplicable vithout them' The civil bonds of the nation
vere dissolved; religious oenses vere no longer crimes against the state; and
the religion, as religion, knovs of no punishment, no other penalty than the
one the remorseful sinner :oluutarily imposes on himself. It knovs of no co-
;. L.g., Sam. :o,.
:. Cf. BT Bava Kama :ab; for a fuller discussion see ;:.
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ercion, uses only the sta |called| geutleuess, and aects only mind and heart.
Iet one try to explain rationally, vithout my principles, this assertion of the
rabbis'
But vhy, I hear many a reader ask, vhy this prolixity to tell us
something that is very vell knovn |udaism vas a hierocracy, an ecclesias-
tical government, a priestly state, a theocracy, if you vill. We already knov
the presumptions vhich such an institution permits itself.
By no means' All these technical terms cast the matter in a false
light, vhich I must avoid. Invariably, all ve vant to do is to classify, to t
things into pigeonholes. Once ve knov in vhich pigeonhole a thing is to
be placed, ve are content, hovever incomplete the concept ve have of it
may othervise be. But vhy do you seek a generic term for an individual
thing, vhich has no genus, vhich refuses to be stacked vith anything, vhich
cannot be put under the same rubric vith anything else This constitution
existed only once; call it the Mosaic constitution, by its proper name. It
has disappeared, and only the Omniscient knovs among vhat people and in
vhat century something similar vill again be seen. . . .
I have said that the Mosaic constitution did not persist long in its
erstvhile purity. Already in the days of the prophet Samuel, the edice de-
veloped a ssure vhich videned more and more until the parts broke asun-
der completely. The nation asked for a visible king as its ruler, a king of esh
and blood, perhaps because the priesthood had already begun to abuse the
authority vhich it had among the people, as Scripture reports about the sons
of the High Priest, or perhaps because the splendor of a neighboring royal
household dazzled the eyes. In any event, they demanded a king such as all
other peoples have ( Sam. :o). The prophet, aggrieved by this, pointed
out to them the nature of a human king, vho had his ovn requirements and
could enlarge them at vill, and hov dicult it vas to satisfy an inrm mor-
tal to vhom one has transferred the rights of the Deity. In vain; the people
persisted in their resolution, obtained their vish, and experienced vhat the
prophet had threatened them vith. Nov the constitution vas undermined,
the unity of interests abolished. State and religion vere no longer the same,
and a collision of duties vas no longer impossible. Still, such a collision must
have been a rare occurrence, as long as the king himself not only vas of
the nation, but also obeyed the lavs of the land. But let one follov his-
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tory through all sorts of vicissitudes and changes, through many good and
bad, God-fearing and godless regimes, dovn to that sad period in vhich the
founder of the Christian religion gave this cautious advice Render unto
Caesar that vhich is Caesars and unto God vhat is Gods (Matt. :::).
Manifest opposition, a collision of duties' The state vas under foreign do-
minion, and received its orders fromforeign gods, as it vere, vhile the native
religion still survived, retaining a part of its inuence on civil life. Here is de-
mand against demand, claim against claim. To vhom shall ve give Whom
shall ve obey Bear both burdensvent the adviceas vell as you can;
serve tvo masters vith patience and devotion. Give to Caesar, and give to
God too' To each his ovn, since the unity of interests is nov destroyed.
And even today, no viser advice than this can be given to the House
of |acob. Adapt yourselves to the morals and the constitution of the land to
vhich you have been removed; but hold fast to the religion of your fathers
too. Bear both burdens as vell as you can' It is true that, on the one hand,
the burden of civil life is made heavier for you on account of the religion
to vhich you remain faithful, and, on the other hand, the climate and the
times make the observance of your religious lavs in some respects more irk-
some than they are. Nevertheless, persevere; remain uninchingly at the post
vhich Providence has assigned to you, and endure everything that happens
to you as your lavgiver foretold long ago.
In fact, I cannot see hov those born into the House of |acob can in
any conscientious manner disencumber themselves of the lav. We are per-
mitted to reect on the lav, to inquire into its spirit, and, here and there,
vhere the lavgiver gave no reason, to surmise a reason vhich, perhaps, de-
pended upon time, place, and circumstances, and vhich perhaps, may be liable
to change in accordance vith time, place, and circumstancesif it pleases
the Supreme Iavgiver to make knovn to us His vill on this matter, to make
it knovn in as clear a voice, in as public a manner, and as far beyond all doubt
and ambiguity as He did vhen He gave the lav itself. As long as this has not
happened, as long as ve can point to no such authentic exemption from the
lav, no sophistry of ours can free us from the strict obedience ve ove to
the lav; and reverence for God dravs a line betveen speculation and prac-
tice vhich no conscientious man may cross. I therefore repeat my earlier
protestation Weak and shortsighted is the eye of man' Who can say I have
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entered into Gods sanctuary, gauged the vhole system of his designs, and
am able to determine its measure, goal, and boundaries I may surmise, but
not pass judgment nor act according to my surmise. If in things human I
may not dare to act contrary to the lavon the mere strength of my ovn sur-
mise and legal sophistry, vithout the authority of the lavgiver or custodian
of the lav, hov much less may I do so in matters divine Iavs that depend
on the possession of the Iand |of Israel| and institutions governing it carry
their exemption vith them. Without Temple and priesthood, and outside
|udea, there is no scope for either sacrices or lavs of purication or contri-
butions to the priests, insofar as these depend on the possession of the Iand.
But, personal commandments, duties imposed upon a son of Israel, vithout
regard to the Temple service and landed property in Palestine, must, as far
as ve can see, be observed strictly according to the vords of the lav, until
it shall please the Most High to set our conscience at rest and to make their
abrogation knovn in a clear voice and in a public manner.
Lau auo Lthi.s
8. Hermann Cohen, Anities Betveen the Philosophy of Kant and
|udaism
Reasou auo Hope, 8ele.tious jrom the 1ritiugs oj Hermauu Coheu, translated by Lva |ospe (Nev
\ork W. W. Norton, ,;), pp. ;::.
Coheu, au importaut spolesmau jor |oth ueoKautiau philosophy auo li|eral juoa
ism iu late uiueteeuth auo early tueutieth.eutury Cermauy, |riugs the tuo together
here, arguiug jor the .eutrality oj lau auo outy iu the jeuish religiou. Coheus positiou
shoulo |e reao iu part as au argumeut agaiust the reje.tiou oj the role oj lau iu juoaism
|y leaoiug Rejorm ra||is (see ;,).
Maimonides vas by no means the rst . . . to use the Aristotelian rational
principle as a guideline for his religious vritings. Saadiah, too, had already
formulated this rule clearly and distinctly in his Lmuuot :eDeot |Beliejs auo
Cpiuious|. lor Aristotle, all knovledge is based on the most abstract prin-
ciple as vell as on sense perception. (Despite, if not actually because of, this
dualism, he vas more comprehensible to the Middle Ages than Kant proved
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to be to the period immediately folloving his ovn. The great minds of his
ovn time, in vhatever elds of endeavor, had clearly understood him. But
he remained unintelligible to the romanticism that spread soon thereafter
because its obscurantismprevented any real confrontation vith his thought.)
To our ancient thinkers, Aristotles dualism vas rather velcome, though not
because of its theoretical ambiguity. But they themselves alvays emphasize
reason and are not in the least concerned vith the conict betveen rea-
son and sense experience. What matters to them is the distinction betveen
reason and revelation.
This distinction, hovever, by no means implies a conict betveen
those tvo sources of religion. Nor should it lead to the conclusion that reve-
lation has nothing to do vith ethics, or that it concerns merely ritual legis-
lation (vith the possible inclusion of state legislation). Such a conclusion
vould not do justice to the high regard in vhich religious consciousness
holds revelation. And ritual legislation, far from conicting vith ethics, is
understood to serve as its vehicle. (This is vhere Paulinism, today as alvays,
becomes subjective and therefore unjust, no matter hovcorrect its judgment
about the value of all particularistic religious practices might be in principle.)
Ancient |udaism regards the dierence betveen moral and ritual
legislation somevhat like that betveen pure and practical ethics. Subse-
quently, both are seen as legitimate subjects of revelation, as is moral rea-
sonthough the latter is also considered autonomous. And Saadiah signi-
cantly states that no real discussion is possible vith anyone vho asserts that
only the Torah, and not also reason, is a source of ethics. This shovs hov
unreservedly reason is upheld as a controlling principle of the Torah.
Similarly, there is a statement in Bahya ibn Pakudas Duties oj the
Heart to the eect that mans blind acceptance of revelation as the sole source
of knovledge, to the exclusion of his ovn reasoning pover, might vell be
the vork of his evil inclination. Thus, reason, that inexhaustible and indis-
pensable source of all morality, is acknovledged as the inviolable basis of
religion. And it vould not take too much to go on from here to an acknovl-
edgement of the sovereignty of reason, as long as revelation is not assigned
a secondary position and its sovereignty also remains inviolate.
The decisive factor, though, in determining the sovereignty of rea-
son is ones concept of reasons relation to the vorld of the senses. And here
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ve encounter another anity betveen the philosophy of |udaism and that
of Kant.
Kants ethics is characterized, above all, by its rejection of eudae-
monismand all its variations. He contends that all eudaemonic moral systems
contradict the concept of ethics and that the pure vill must never aspire to
any kind of happiness. And since |evish philosophy also unequivocally re-
jects the principle of happinessfromSaadiah to Maimonides and beyond
ve are surely justied to note, at this point, yet another agreement betveen
the |evish and the Kantian viev.
This opposition to any eudaemonic principle is at once a sign of
the |evish minds autonomy and ability to systematize, and a most interest-
ing symptom of biblical thinking. lor it is alvays the Bible that serves these
thinkers as the last criterion by vhich to judge their ovn vievs. Lven con-
cerning the role of reason they invoke the Torah, vhich repeatedly speaks
of knovledge as fundamental to all matters of the human heart, mind, and
volition. Knov this day, and lay it to thy heart . . . (Deut. ,). And in
keeping vith the spirit of the Torah, they consider even scientic knovledge
as a basic requirement for human understanding. lor mathematics, astron-
omy, and ethics all have a common foundation in reason. And as for the
question of eudaemonism, there is an abundance of biblical sources. More
telling than any quotes, though, is that basic tenet of faith, the unity of God,
vhose corollaries are unity of the heart and unity of action.
It vould seem that no language has a more meaningful expression
to convey the concept of mans integrity than this unity of the heart. This
profound and crystal-clear leitmotif taken from the PsalmsMake one my
heart to fear thy name (:o)also informs our prayers vith its harmo-
niousness and enhances our Days of Repentance. Unity of the heart is the
prerequisite for love and veneration of God. Unify our hearts so that ve
may love and venerate \our name
9
had Bahyas Duties oj the Heart disclosed
to us no other concept than that of a unity of heart, action, and veneration
of God, this alone vould suce to make it a vork of considerable value.
Set against the principles of pleasure and happiness is the principle
of reason, that reason of volition vhich overcomes any schismand establishes
,. Taken from the blessings before the reciting of the shema in the morning prayer.
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the unity of the vill. To Kant, hovever, this kind of unity (namely, unity of
heart and mind) vould still be suspect as a merely psychological denition.
lor he seeks to dene the moral vill by objective, conceptual principles. Re-
fusing to accept the pleasure principle as the causative factor of volition, he
posits a logically derived concept as the determining principle of the vill
universal lav. Morality must be regarded as a lav valid for any individual,
vithout exception. True, this lav is seen as derived from the autonomy of
reason; but reasons only relation to the vill is to impose upon it a universal
lav. We must not be volunteers of morality. Kant might have learned this
expression from a |evish philosopher or from the Talmud itself Greater is
the man vho acts in obedience to the commandment than vithout com-
mandment (BT Kiddushin a).
Here, hovever, ve must not overlook an essential dierence be-
tveen the Kantian and |evish positions. In the nal analysis, in Kant, it is
reason itself vhich must create the universal lav anev. But in |udaism, the
One God vould become a useless machine vere He not the eternal source
of moral lav. |udaism simply denies any possible conict betveen the con-
cepts of God and of moral reason. Moral lav must and can be both the lav
of God and the lav of reason.
God and His lav signify as vell as establish a contrast vith the indi-
viduals egotism and self-centeredness, or simply vith his limited horizon.
And this interpretation of lavconstitutes still another anity betveen |uda-
ism and Kant. In the nal analysis, ve have here the ancient idea of mens
equality before God, vhich nds its methodological expression in the con-
cept of a universal lav. This same basic concept underlies the original com-
mandment to love ones fellov man. Maybe its correct translation should
read Iove him; he is like you (Iev. ,:).
Connentary. Cohen and Kant
Cohen rightly sees the conception of reasons relation to the vorld
of the senses as the decisive factor in determining the sovereignty of reason.
\et for all his enormous insight into Kant, |evish philosophy, and the fun-
damental anities betveen them, I believe that Cohen misunderstood both
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philosophies on some aspects of this question. Iet us see hov the confusion
arises.
Cohen vievs the idea of the nonmaterial nature of God as the
fundamental moment in |evish thought. He often quotes Gods ansver to
MosesTell them I am, that I am sent you (Lxod. )as the basic
statement of |udaisms abstract conception of Gods nature. Kant, too, sav
the prohibition on idolatry as the most sublime moment in the lav of the
|evs (Critique oj juogmeut AK :;). It vas clear to Cohen and Kant that the
transcendent character of the divine has far-reaching ethical consequences it
points to the absolute duality of the ideal and the material, the ought and
the is. True ethics demands that these be kept strictly separate. To attempt
to derive vhat ought to be from vhat is, is to abdicate reasons responsibility
to legislate for experience. lor both Kant and |udaism (on Cohens viev),
such abdication contains an element not simply of moral veakness but of
sacrilege.
Any attempt to treat the given vorld as a source, or even a full real-
ization, of value, entails a moment of idolatry, forgetting or denying the ideal
nature of the lav. Pure value cannot be given, it can only be sought. The
human task is an unending attempt to make the real approach the rational.
lail to maintain the distinction betveen the tvo, and the messianic impulse
so crucial for both prophetic |udaismand Kant is lost. Cohen rightly savthat
the metaphysical equation of real and rational had straightforvard political
consequences; his lifelong commitment to socialism, vhich he vieved as the
only legitimate conclusion of both Kants vork and prophetic |udaism, vas
also a rejection of the Hegelianism that treats the rational as already realized
and ends by quietly justifying the Prussian state. lor Cohen, this is a denial
of vhat he regards as the genuine religious impulse, the recognition of the
transcendent element in value.
Cohens position on the relation of moral and divine lav is deep
and brilliant. The identity betveen the lav of reason and the lav of God
is not just a matter of happy accident (or insistent apologetics). Nor could
Cohen, as a rationalist, hold the position that ethics gains any justication
or legitimacy through being derived from Gods vill. The demand that the
moral lavmust be the lavof God has rather, I believe, a logical dimension. A
genuinely ethical lav must be transcendent, deriving from, and embodying,
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the absolute distinction betveen ought and is. The Kantian demand that the
ethical imperative be essentially dierent from all others is, for Cohen, fun-
damentally related to the notion that Gods being must be essentially dier-
ent from all others. Cohens criticism of pantheism and Christianity is based
on their dierent denials of the idea that Gods essence is the very opposite
of nature; this thought is, for Cohen, the basis of both religion and morality.
Because the moral lav must embody the idealthe opposition to vhat is
it can have its source only in pure monotheism.
Cohen vas surely right to see this, perhaps the deepest feature of
reasons relation to the senses, as fundamental to both Kant and many |evish
thinkers. But, poignantly, he develops this feature to a point that, I think,
makes his idealism unnecessarily drastic. lor Cohen, the nature of the split
betveen ought and is entails that the human condition is one of permanent
exile.
This is clearly a strand in the vork of Kant, for vhom the only
truly human fate is perpetually to seek an unconditioned or absolute reality,
vhich it can never attain; and it is equally present in messianic |udaism. But
in neither of these is the metaphysical glorication of exile so unequivocal
as it is in Cohen.
We see this in his statement that both Kant and |evish philosophy
completely reject eudaemonism, the principle that happiness is the goal of
morality. If this rejection means simply that right conduct is independent of,
and prior to, any human idea of the good, Cohens characterization vould
be unobjectionable. But Cohen goes much further than this and fails to rec-
ognize the role played by the idea of the good both in Kant and in |evish
thought. This is evident vhen he uncharacteristically accepts the common
viev that Kants theory of rational faith is the veakest part of his philosophi-
cal system. lor Kant, of course, the right and the good, justice and human
satisfaction, are completely independent of one another; but their very in-
dependence demands that they stand in some relation. Kant marvelously at-
tacks those Stoics vho, like Cohen, seek to collapse the good into the right
by arguing that the only genuine happiness is the consciousness of ones ovn
virtue. Because the right is vithin our pover vhile the good very often is
not, only God can complete the vorld so that virtue and happiness exist in
appropriate relation. (It is this argument that appears in Kants mature vrit-
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ings, not the common interpretationrightly rejected by Cohenthat God
vill correct earthly imbalances in a vorld beyond our ovn.) But the de-
mand that the right be completed by the good follovs from reasons search
for justicenot, as Cohen suggests, from the senses search for pleasure. If
it is reasons right to legislate for experience, independently of vhat is, it is
equally reasons right to hope that experience vill come to meet its demands.
Without more concrete hope of fulllment than that provided by
Cohen, it is hard to imagine hov ve could achieve the integrity he signies
by the expression unity of the heart. lor the point is not simply that ve as
creatures possessing both reason and sense are subject to the claims of each;
rather, given that ve are such creatures, it is a demand of reason itself that
the right and the good, justice and satisfaction, be balanced. (Indeed, the
greatest threat to reason may be posed by violations of justice, vhich have
a great deal to do vith the good but very little to do vith the senses, as the
example of |ob suggests. The bitter injustice of vhich |ob speaksvhether
his ovn misfortunes or those of othersis informed by physical pain but
hardly reducible to it. The outrage experienced at the death of ones children
or the realization of vast inequalities in the lives of rich and poor cannot be
seen as a complaint about a lack of sensual pleasure.) As long as the gap be-
tveen right and good remains as complete as Cohen here suggests, the unity
of vhich he vrites seems unattainable.
The extremity of Cohens idealism leaves us subject to a split vithin
human nature more radical than that foreseen by either of his sourcesthus
the emphasis in traditional |udaism on both physical needs and community
goods blood and semen, vine and vheat, as vell as courts, Torah scrolls,
and political restoration. Kant, too, if sometimes less clearly, vievs the de-
mand for happiness not simply as a concession to veaker elements of human
nature, nor even as a qualied good among others, but as a right of reason,
provided that reason has fullled its ovn lavs.
Kants solution, vhich involves giving God nal responsibility for
the realization of the good, vhile the responsibility for the right remains
vith us, is surely not vithout problems. \et it is not, pace Cohen, an outdated
accident of Kants thought, but a recognition that the proper connection be-
tveen the right and the good is a need of reason itself. No such argument
is found in the stark formulation of the second portion of the shema (Deut.
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:) acknovledge the truth of pure monotheism and the lavs that fol-
lov from it, and the rains vill come in their seasons, bringing corn, vine,
and oil. But the echo betveen Kant and |udaism on just this question is not
one that Cohen heard.
Writing on the book of |ob, Cohen praises its attack on the assump-
tion that sin and suering are connected. In this, Kant vould have been in
full agreement. \et Cohen goes on to conclude that the consequence of bib-
lical monotheism is that suering belongs to the essence of humanity, for
the suering hero |ob represents the ideal of the human (Der Begri oer
Religiou im 8ystem oer Ihilosophie, ,). lor Kant, by contrast, the book of
|ob represents the demand that God, in acknovledging the rightness of |obs
claims, correct the imbalance betveen right and goodand the faith of the
righteous man that he vill indeed do so. In both his religious and politi-
cal vritings, Cohen appealed to the historical optimism that he sav as the
core of |evish messianism. And it should be emphasized that, unlike most
people vho spend their lives as university professors, Cohen deserves to be
called a tragic hero. Despite his precarious position as the rst |ev to be ap-
pointed Professor Ordinarius in Germany, Cohen championed both social-
ism and the rights of east Luropean |evrycauses hardly calculated to en-
dear him to the reigning povers vho had tentatively accepted him. At the
same time he argued poignantly for the recognition of deep and essential
similarities betveen the German and |evish peoples. His death in ,, spared
him the vorst of German responses to his argument; his vidov, vho lived
long enough to be deported to Auschvitz, vas less fortunate. \et Cohens
hope vas not merely historically misplaced; it vas also exclusively ethical
ve are to maintain faith in the progressive moral improvement of human-
kind that is the goal of vorld history. That Cohens failure to emphasize other
kinds of improvement vasnt merely oversight is underlined by vhat he took
to be the fundamental av of the Zionists Those guys vant to be happy.
Reporting the conversation in vhich this remark vas made, Gershom Scho-
lem called it the deepest thing ever said against Zionism. Whether or not
one agrees vith Scholem, it may vell be the deepest thing ever said against
Hermann Cohen.
8usau ^eimau
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!he Biuoiug oj Isaa.. Mit::ah 8uperseoes Morality
. \eshayahu Ieibovitz, Religious Praxis The Meaning of Halakhah
juoaism, Humau 1alues, auo the jeuish 8tate, edited by Lliezer Goldman, translated by Lliezer
Goldman et al. (Cambridge Harvard University Press, ,,:), pp. :o.
Lei|ouit: repeats the liue jrom B! Kiooushiu ,:a quoteo a|o:e |y Coheu, |ut gi:es
it a raoi.ally oiereut meauiug auo so sets himselj agaiust the uhole ratioualist traoi
tiou iu jeuish philosophy. Religious autheuti.ity, he argues, is a.hie:eo |y the oe.isiou
to a..ept the yole oj oi:iue .ommauo auo uot through iuoepeuoeut iu:estigatious oj
Coos lau or the a..eptau.e oj .ertaiu truth .laims.
What is the religious import of |udaisms embodiment in Halakhah Hov
to understand the peculiar nature of the religious faith for vhich Halakhah
is the only adequate expression
The rst mark of the religion of Halakhah is its realism. It per-
ceives man as he is in reality and confronts him vith this realityvith the
actual conditions of his existence rather than the vision of another exis-
tence. Religion is concerned vith the status, the function, and the duties
of man as constrained by these circumstances. It precludes the possibility of
mans shirking his duties by entertaining illusions of attaining a higher level
of being. The religion of Halakhah is concerned vith man and addresses him
in his drab day-by-day existence. The Mitzvoth are a norm for the prosaic
life that constitutes the true and enduring condition of man. Halakhic praxis
is oriented to the usual and persisting, not to the exceptional, momentary,
and fortuitous. The Mitzvoth require observance out of a sense of duty and
discipline, not ecstatic enthusiasm or fervor, vhich may embellish ones life
but do not tell hov to conduct it. Resting religion on Halakhah assigns it
to the prosaic aspects of life, and therein lies its great strength. Only a reli-
gion addressed to lifes prose, a religion of the dull routine of daily activity,
is vorthy of the name. This is not to demean the poetic moments, the rare
occasions vhen a man breaks avay fromthe routine, the experience of rising
above the self spiritually and emotionally, the deeds performed fervently. It
is quite possible that such moments mark the zenith of a human life. None-
theless, the fundamental and enduring elements of human existence are in
lifes prose, not in its poetry. Molires M. |ourdain discovered at the age of
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forty that he had unvittingly been speaking prose all his life. No one ever
claimed to have been talking unvittingly in poetry. Only in full avareness
and intention does one compose poetry, and such avareness and intention
occur only at rare moments. A religion of values and concentrated inten-
tion is the religion of lifes poetry, vhich can only adorn it. The religion of
halakhic practice is the religion of life itself.
The |udaism of the Halakhah despises rhetoric, avoids pathos, ab-
jures the visionary. Above all, it rejects the illusory. It does not permit a man
to believe that the conditions of his existence are other than they really are.
It prevents ight from ones functions and tasks in this inferior vorld to an
imaginary vorld vhich is all good, beautiful, and sublime. Not by chance are
so many of the Mitzvoth concerned vith the body, procreation and birth,
food and drink, sexual life, diseases, and the corpse. The largest section of the
Mishnah, the rst crystallized formulation of the Halakhah, is 8eoer !aharoth,
vhich places man vithin the squalor of biological existence from vhich he
can never extricate himself.
Most characteristic of the Halakhah is its lack of pathos. The Hala-
khah does not depend upon the incidence of religious experience and at-
taches little importance to the psychic urges to perform extraordinary deeds.
It strives to base the religious act, even in its highest manifestations, on the
permanent habit of performing ones duty. Greater is he vho performs be-
cause he has been commanded than one vho performs vithout having been
commanded (BT Kiddushin a). Precisely this nonpathetic attitude hides
a depth of intense pathos. Hov unfounded is the imaginary antithesis of
the inner religious experience and the formalism of the halakhic praxis, an
antithesis so popular amongst the opponents of the religion of Halakhah'
Tvo types of religiosity may be discerned one founded in values
and beliefs from vhich follov requirements of action, the other posited on
imperatives of action, the observance of vhich entails values and intention.
The religion of values and beliefs is an endoving religiona means of sat-
isfying mans spiritual needs and of assuaging his mental conicts. Its end
is man, and God oers his services to man. A person committed to such a
religion is a redeemed man. A religion of Mitzvoth is a demanding religion.
It imposes obligations and tasks and makes of man an instrument for the
realization of an end vhich transcends man. The satisfactions it oers are
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those deriving fromthe performance of ones duty. The religious practitioner
serves his God lishmah |for His ovn sakeLds.|because He is vorthy of
vorship. The tvo types of religiosity may be found vithin all religions,
but religions dier from one another in the extent to vhich one type pre-
dominates. A religiosity of the rst type is characteristic of Christianity. Its
symbol, the cross, represents the sacrice God brought about for the bene-
t of mankind. In contrast, the highest symbol of the |evish faith is the
stance of Abraham on Mount Moriah, vhere all human values vere annulled
and overridden by fear and love of God. The cross represents submission to
human nature. The aleoah (the near-sacrice of Isaac) is mans absolute mas-
tery over his ovn nature. Abrahamrose early in the morning and saddled his
ass . . . and set out for the aleoah. Don Isaac Abravanel, commenting upon
Genesis ::, explains saddled his ass means that he overcame his materi-
ality, that is, his physical naturea pun on the phonetically similar hamor
(ass) and homer (matter). This matter or nature includes all the benevo-
lent sentiments as vell as mans conscience; all the factors in mans makeup
vhich an atheistic humanism regards as good. In the morning benedic-
tions, recited prior to reading the narrative of the aleoah, ve nd the request
Compel our Yet:er |inclination| to subject itself to youa request meant
to apply to our benevolent as vell as to our evil inclinations. This vould be
a banal supplication vere it concerned only vith the evil inclinations. It vas
Abraham vho rst burst the bounds of the universal human bondagethe
bondage of man to the forces of his ovn nature. Not everyone is Abraham,
and not everyone is put to so terrible a test as that of the aleoah. Nonethe-
less, the daily performance of the Mitzvoth, vhich is not directed by mans
natural inclinations or drives but by his intention of serving God, represents
the motivation animating the aleoah. lrom such a standpoint, the question
vhat does religion oer to me must be completely dismissed. The only
proper question is What am I obligated to oer for the sake of religion
In stark contrast to the |evish religion, oriented as it is to the reali-
ties of human existence, stand religions vhich claim to oer the means of
extricating man from the human condition and transporting him spiritually
to a state governed by other categories of merit and obligation, of tasks and
attainments. The Christian vho believes in the event of the year and has
faith in it is redeemed; the very elements of his nature are altered. Among
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other things, he is liberated fromthe bondage of the Iav. Halakhic |udaism
does not recognize such a redemption. The project it sets for man is per-
manent and endless. No religious attainment may be considered nal; the
project is never completed. Observance of the Torah in its entirety is merely
the training of man for continuation of its observance. No religious achieve-
ment can change the human condition or the task.
A tremendous symbolic exemplication of this attitude appears at
the close of \om Kippur. At the end of the Day of Atonement, the culmina-
tion of a period of repentance vhen the people of Israel purify themselves
before their father in heaven and are puried by himat the close of the
Neilah service vith the public utterance of the verse of Shema and the blov-
ing of the Shofarthe rst vords of the veekday evening prayer are uttered
And He is merciful and forgiving of sin. Thus the basic situation of repen-
tant man at the close of the Day of Atonement is exactly vhat it vas the
evening before. His sole achievement consists of the great religious eort in-
vested in this day. Immediately after he must begin his preparations tovard
the next \om Kippur. The cycle continues until the end of ones life. In like
manner ones labor in study of the Torah is not a means for the attainment
of any other goal. This very labor is itself the goal. Until vhat period of
life ought he to study Torah Until the day of his death.
Halakhah, as an expression of a religiosity vhich rejects all illu-
sion, does not entertain man vith the vision of some target at vhich he
may aim and vhich, once attained, constitutes the fulllment of his tasks.
No human achievement aects the regime of religious praxis under vhich
one lives from coming of age until death. Performance of the Mitzvoth is
mans path to God, an innite path, the end of vhich is never attained and
is, in eect, unattainable. A man is bound to knov that this path never ter-
minates. One follovs it vithout advancing beyond the point of departure.
Recognition that the religious function imposed upon man is innite and
never ending is the faith vhich nds expression in the regularity, constancy,
and perseverance in the performance of the Mitzvoth. The circle of religious
praxis rotates constantly about its center. Lvery day they vill appear to you
as nev,
10
for after each act the position of man remains as it vas before. The
o. Cf. Rashi on Deut. .
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aim of proximity to God is unattainable. It is innitely distant, for God is
in heaven and you on the earth (Lccles. ). What then is the substance and
import of the performance of the Mitzvoth It is mans striving to attain the
religious goal.
Halakhic observance as a vay of life, a xed and permanent form
of human existence, precludes conversion of religion into a means to some
ulterior end. Most of the Mitzvoth are meaningless except as expressions of
vorship. They have no utility in terms of satisfaction of human needs. No
man vould commit himself to such a vay of life if he did not regard the
service of God as an end in itself serving no extrinsic purpose. The Halakhah
thus addresses a mans sense of duty rather than his emotions and inclinations.
Reje.tiug the 8uspeusiou oj the Lthi.al
o. Samuel Hugo Bergman, Tvo Texts on the Binding of Isaac
Dialogi.al Ihilosophy jrom Kierlegaaro to Bu|er, translated by Arnold A. Gerstein (Albany
State University of Nev \ork Press, ,,), pp. ::,o; Hashamayim :eHaaret: (Tel Aviv
Shdemot, ,o:), pp. :::.
Bergmaus philosophy stresses oire.t religious experieu.e, the iuoi:iouals meetiug
uith Coo, |ut here he argues jor a .riti.al moral examiuatiou oj all su.h experieu.es,
iu.luoiug, oe.isi:ely, A|rahams seuse that Coo .alleo him to sa.ri.e Isaa.. !hese texts
respouo spe.i.ally to the suspeusiou oj the ethi.alKierlegaaros uotiou|ut their
.ritique exteuos also to the religious argumeut oj Lei|ouit:, a|o:e ( ,).
The Absolute Duty to God
The question arises vhether religion can suspend morality, even
temporarily. If this is possible, the religious paradox limits and reduces the
legitimizing force of ethics. Moreover, if ve vish to be ruled by the divine
pover, ve are forced by religion into solitude, cutting ourselves o from
common understanding and from the mundane vorld. Then, once ve have
succeeded in liberating ourselves by innite resignation from attachment to
the nite and temporal, it is possible that vhatever vas sacriced vill be re-
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turned to us, miraculously. Kierkegaard discusses the problem of return in
his book Repetitiou. Before ve discuss the book . . . ve must express our criti-
cism of the conclusions Kierkegaard dravs from the story of Isaac. There are
great dangers in the concept of a suspension of ethics by religion. In our dis-
cussion of Kierkegaards idea of subjective truth, ve mentioned the danger
of basing truth on mans enthusiasm and feeling, making feeling the crite-
rion of truth. leeling, he said, isolates man and prevents communication and
the creation of community. We must nov return once more to this argu-
ment. Kierkegaard stresses repeatedly that a person vho receives an order
from God is isolated and bound to silence because he has heard vhat others
do not. Walter Kaufmann sharply criticizes Kierkegaard in his book Irom
8halespeare to Lxisteutialism by pointing to the vay the Talmud discusses the
question of the voice of God. In the Talmud a controversy is related betveen
Rabbi Lliezer and other rabbis, in vhich Rabbi Lliezer relied on the voice of
God he heard from heaven
|Bergman here quotes the story of Rabbi Lliezer from BT Bava
Metzia ,b, vhich appears in full, vith commentary, in ;o, o. The story
culminates in the citation of Deuteronomy o: It is not in heaven.
What does this mean asks the Talmud. As the Torah has been given from
Mount Sinai, ve take no heed of a |at lol (heavenly voice)for at Mount
Sinai \ou have already vritten in the Torah |that ve should| decide accord-
ing to the majority.Lds.|
In this vonderful story, Rabbi Lliezer relies upon subjective truth
given from on high, as did Abraham in Kierkegaards presentation of him.
In contrast, the other rabbis place their trust in objective truth, recorded
and shared by all. They rely upon vhat Kierkegaard called the universal,
or moral. The rabbis do not agree vith Rabbi Lliezers reliance upon the
heavenly voice. They are like the humanists, vho defend a common ethic,
in contrast to Rabbi Lliezer, vho puts his trust in individual religious in-
spiration. lor the rabbis there is no place for a suspension of the universal
through religious inspiration, and subsequently they ostracize Rabbi Lliezer
for his reliance upon the divine voice against the voice of the majority. Re-
lating this to Kierkegaards dilemma, ve can again formulate the question
thus Was Rabbi Lliezer, as an individual opposing the majority, justied in
relying on the personal inspiration he received
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The Binding of Isaac and the Contemporary Person
In the midrashic account,
11
Abraham on his vay to Mount Moriah
encounters Satan, vho appears in this instance as the protector of ethics
as vith Kierkegaard, the ethical imperative is here a seductive temptation.
Satan seeks to seduce Abraham |into agreeing| that the voice he had heard
vas not Gods but his ovn. He asks Hov can you take this darling young-
ster, vhom you begot at the age of one hundred, and . . . oer him as a
burnt-oering Tomorrov |God| vill say to you \ou are a murderer, for
you have shed his blood.
. . . In the midrash, Abraham ansvers Satan simply Lven so'
temptation comes up against the iron vall of unphilosophizing faith. In Kier-
kegaard, he vho philosophizes about faith becomes entangled in insoluble
problems and villy-nilly arrives at nihilistic conclusions. lor it transpires that
the ethical imperative (and the same applies to logical truth as vell) is valid
only so long as God does not abrogate it. : - : = is true only so long
as God so vishes; and the Ten Commandments have no higher value than
that of the red heifer commandment. The only virtue of the man of faith is
passive obedience and observing the commandmentseven vhen he does
not understand them. . . .
But . . . this conception of faith reduces to zero the value of mans
independent illumination and of his responsible decision, leaving him only
the single virtuegreat though it isof obedience. On such a viev, humans
vill never be able to stand on their ovn.
If ve do not vish to follov this path, then ve have only the alter-
native, human path ve trust in the light of reason. . . . Our reason becomes
our supreme authority. . . . This trust in man and in the natural light of his
reason gives rise to the duty of criticism. Man may and must impose his
criticism even upon sacred texts vhen they conict vith his logicaland,
especially, vith his moralreason. . . .
More than once, our moral sense recoils from the biblical story.
Thus, for instance, regarding the command to kill all the male children of
Moab and all the vomen vho had lain vith men (Num. ;). Today, after
. Cf., e.g., Miorash Ra||ah. Ceuesis o.
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the Holocaust, ve have become more sensitive to these verses. The principle
must be vhenever the sacred text collides vith our moral sense, I must sac-
rice the text and not the rational or the emotional |understanding|. When
ve are told that God has commanded an act that counters our moral feeling
ve are commanded to reply God could not have commanded such a thing.
On the specic solution in each casevhether ve claim that the person de-
livering the message misunderstood, or vhether ve correct the vording or
adduce special historical circumstancesve vill decide ad hoc. The main
issue is the freedom of the individual, the responsibility of the individual as
the bearer of . . . reason, |vhich must be| used to examine supreme values.
Connentary. Betveen Obedience and Autonomy
Ieibovitzs position represents a profound revolution in |evish
thought. The prevalent viev is that |evish religion dravs together theoreti-
cal beliefs about the vorld, God, and the individual and the practical obli-
gations that make these beliefs concrete. In contrast, Ieibovitz begins vith
a conception of |udaism as a practical regimen. Rather than being the prod-
uct of a set of beliefs, |udaism shapes reality through a system of religious
obligations. He thus moves avay from the realm of theory to the realm of
halakhic praxis. Ieibovitz does not reject the possibility that the religious
person may have unique religious experiences. He insists, hovever, that the
cornerstone of religiosity is not experience; it is commandment.
This conception of |udaism as a set of obligations enables Ieibo-
vitz to advance several additional claims. lirst, he vievs all religious obli-
gations as revolving around a single axisthe vorship of God. Hence, the
traditional preoccupation vith the reasons for the commandments involves
a categorical error assuming that the commandments are merely means for
the attainment of certain ends. Unlike the various theories that analyze these
ends and the vays the commandments promote them, Ieibovitz argues that
the halakhic obligation is itself the rst datum of |evish religion and cannot
be explained in terms of any further ends.
In Ieibovitzs viev, |udaism is an institutionalized religion, ex-
clusively constituted by the obligations themselves. Halalhah is a constitutive
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rather than a regulative lav, instituting an independent normative realm of
activity rather than controlling an existing sphere of action. This approach
implies that the meaning of the |evish religion is internal in the sense that
it cannot be derived from theoretical positions but only from an analysis of
|udaism as an independently coherent system of obligations.
Second, if religious individuals do indeed organize their lives
around religious obligation, then, in Ieibovitzs terms, |evish religion is
theocentric. Note, hovever, his special use of this term. God is not central
as an object of cognition nor as a subject demanding obedience all this is
precluded by the notion of Gods transcendence and absolute otherness
a crucial tenet of Ieibovitzs thought. His notion of theocentrism holds
that the |evish religion is based on obligation tovard Godand on noth-
ing, or almost nothing, else. Ieibovitz is clear on this issue In reecting
and speaking about mans standing before God . . . the believer tries to refer
minimally to God, vho has no image at all, and makes an eort to direct his
religious consciousness to himself as recognizing his duty to his God. That
is the practice of the men of halalhah ( juoaism, Humau 1alues auo the jeuish
8tate, ,,:). Theocentrism here means that the core of |evish religion is not
human redemption or the good life. The believer is destined to submission
and absolute obedience; faith is the acceptance of the yoke of the kingdom
of heaven.
Third, from these statements about obligation, God, and the indi-
viduals standing, a clear picture emerges regarding the relation betveen
Gods command and rational or moral knovledge. Ieibovitz endorses a
theory of normative conict betveen religion and morality. Not only is
there sometimes a conict of obligations betveen religious and moral com-
mands, but even vhen the actual obligation is the same, the religious agent
performs the act because it has been divinely commanded vhereas the moral
agent does so because it is a moral duty.
The aleoah is, for Ieibovitz, the quintessential expression of the
antithesis betveen |evish religion and moral value. He vievs this act as the
supreme religious symbol renouncing individual values, desires, and natural
inclinations in the face of Gods command. The eect of this renunciation
is to release the believer from the domination of nature; halalhah is a re-
volt against the domination of the blind natural elements over his body and
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soul. . . . |The |evish religion is| a rebellion against natural reality. Nature
and halalhahthese are opposites ( juoaism, jeuish Ieople, auo the 8tate oj Israel
|Hebrev|, ,;).
Ieibovitz thus presumes an absolute contrast betveen religious
obligations and human values, acknovledging at the same time that shaping
life in the light of this principle is a process rather than a onetime decision.
In terms resembling those of Camus in !he Myth oj 8isyphus, he describes
the believers life as an endless struggle to impose religious obligations upon
himself and to abrogate human values.
Although he claims to speak in the name of the empirical |evish
tradition, Ieibovitz is actually in confrontation vith it. It is a strange con-
tention that the only purpose of halalhah is to reduce life to the task of vor-
ship. Many halakhic norms are, in fact, concerned vith the betterment of
human life, both individual and social. More severely, the halakhic tradition
does not, and indeed cannot, aim to rescind human knovledge and human
values, because these are central to the halakhic process. A common talmudic
adage exclaims, What need have ve for scriptural proof It is s:ara |reason
or common sense|' (BT Bava Kama ob), reecting the basic assumption
that reason is superior to revelation as a vay to determine Gods vill. Any
such ranking rules out Ieibovitzs interpretation of |udaism.
This last point is addressed in Samuel Hugo Bergmans critique of
Kierkegaard. Bergman, a profoundly devout man, upholds a courageous reli-
gious claimin the spirit of the rabbinic commitment to human reason
and gives primacy to moral sense over Scripture. In cases of outright conict,
he insists, the plain meaning of the text must be rejected, vhether through
reinterpretation or othervise, for it is impossible that God vould command
immorality. But to ensure that human beings vill not reduce religion to their
ovn values Bergman elsevhere in his essay tempers this religious daring by
demanding that believers adopt a posture of humility and meekness. They
thereby convey their avareness that there are superior forces and revelations
that direct |mans| vay even vhen he does notas yetunderstand them.
Bergman and Ieibovitz thus present tvo contradictory models of
religious life submissiveness and total obedience as opposed to autonomy
and reliance on human values and human knovledge. These tvo religious
vorldvievs reect tvo basic intuitions of |evish religion; like many reli-
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gions, |udaism demands that human beings obey Gods command, but it also
fosters and promotes an ethos of responsibility and autonomy. Ieibovitz
takes the religious ideal of obedience to an unacceptable extreme vhen he
claims that |udaism rejects human values and knovledge. In my viev, this
approach is both alien to the |evish tradition and incompatible vith a funda-
mental commitment to human autonomy. A vorld of vorship that excludes
human reason and moral sense is doubly diminished. Theologically, it be-
comes unclear vhy God should have created human beings in his image
vith rational and moral capacitiesyet then demand that these be excluded
from religious life. And existentially, there seems to be little value in a life
of vorship vhere ones true self is left behind.
Traditional |udaismindeed requires submission; but this is expressed
in the very commitment to the canon of sacred textsa commitment that
nds expression in the process of interpretation. Bergman shovs a funda-
mental avareness of these complexities of traditional commitment. Hov-
ever, in one important sense he exceeds the bounds of traditional |udaism
vhen he suggests that a text vhose plain meaning is immoral can be re-
jected in some other vay than through reinterpretation. In the interpretive
process, the believer accepts his submission to God the sacred text cannot
simply be passed over. At the same time, this process embodies the value of
reason and of autonomous moral judgment, for interpretation is the activity
of discovering in the text meanings that are in line vith ones innermost
beliefs.
A:i 8agi
!rauslateo jrom the He|reu |y Batya 8teiu
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r nr r r Kings
Introduction
Biblical Vievs of Monarchy
Cioeous Rejusal oj Kiugship
. |udges oo, o, ; ;:, ::; ::::
Irimiti:e !heo.ra.y
:. Martin Buber, Biblical Ieadership
Requestiug a Kiug
. Samuel :
Commentary. Allan Silver, Kingship and Political Agency
Royalist !heology
. Psalms :,::
Commentary. Moshe Halbertal, Gods Kingship
lhe Constitution of Monarchy
Laus Cou.eruiug the KiugI
. Deuteronomy ;:o
Coutestiug the 8u..essiou. Irophet auo Ieople
o. Kings , , :o:, ;o, ; ::o, :oo
Laus Cou.eruiug the KiugII
;. Mishnah Sanhedrin, Chapter :
Kiug ^ot 8u|je.t to juogmeut. Compromise or Ioeal`
:. |T Sanhedrin :oa; BT Sanhedrin ,ab
Commentary. Michael Walzer, A Monarchic Constitution
!he Kiugs Irerogati:es
,. BT Sanhedrin :ob
o:
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Introduction o,
8.ope oj the Kiugs Irerogati:es
o. Menachem Meiri, Bet haBehirah, Sanhedrin :ob
A Cooe jor Kiugs
. Maimonides, MT Iavs of Kings :o; ;o; , o;
Critiques of Monarchy
Critique oj the Request jor a Kiug
:. 8ijre Deuterouomy o
Mouar.hy as Iolly auo 8iu
. Miorash Ra||ah. Deuterouomy, Shoftim :, ,,
Repu|li.au auo !heo.rati. Critiques
. Isaac Abravanel, Commeutary ou the Ieutateu.h, Deuteronomy
; (Premises)
Mouar.hy Is Cptioual
. Naphtali Tzvi |udah Berlin (Netziv), Haamel Da:ar,
Deuteronomy ;
lhe Realn of lorah and the Realn of Politics
Royal Lau Complemeuts !orah Lau
o. Nissim Gerondi (Ran), Derashot
Commentary. Menachem Iorberbaum, The Price of Politics
Iutroou.tiou
Throughout history, the rule of one has been the most common
formof governmentalso the most stable, at least in the sense that the one,
hovever his or her rule ended, vas usually succeeded by another one. In
the earliest Israelite political texts, hovever, God is the one vho rules, and he
neither requires nor permits any succession. God is Israels rst king. What
kind of regime is his kingdom According to the biblical book of |udges, it
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has no established institutions or routinized practices. God rules either di-
rectly (as at Sinai) or through intermediaries, the shojtim, men and vomen
raised up at critical moments to ght Israels battles and judge the people.
The crises are moral or religious in character; the people sin and God sends
oppressors to punish themand then a savior to rescue them. When there is
no crisis, no one is raised up; the people apparently rule themselves by them-
selves; there is no authority structure at all. Theocracy looks very much like
anarchy.
Gideon is the prototypical shojet, vho most clearly expresses the
doctrine of Gods kingdom, contrasting it vith human monarchy I vill
not rule over you myself, nor shall my son rule over you; the Iord alone shall
rule over you ( |udg. ::). But there is an opposing voice in the book of
|udges, expressing a more secular vievand looking tovard a human king. On
this viev, anarchy is just anarchy; the repeated crises have a political rather
than a moral or religious explanation In those days there vas no king in
Israel; everyone did as he pleased ( |udg. ;o, ::).
When the elders (on behalf of the people) come to Samuel and ask
for a king, they are rejecting this anarchic individualism and also the inter-
mittent rule of the judgesand therefore the rule of God, vho seems to
favor both anarchy and intermittency, as if established hereditary rule vould
detract from his saving pover. God rules only vhen there are no political
institutions. The institution the elders ask for is still, of course, the rule of
one, but they are imitating the countries around them vhen they make their
request, not Gods singular dominion.
The rule of the fev (aristocrats or oligarchs) and the many
(democrats) vere hardly considered in |evish political vritings until post-
biblical times. Lven thenand indeed until the modern agekingship vas
the conventionally accepted regime, although the human king alvays stood
in Gods shadov. It vas alvays possible to oppose the kings rule by recall-
ing the biblical judges and the vords of Gideon and by insisting that God is
Israels only king. This is still the strategy of Martin Buber in the tventieth
century, vho vrites out of a strong sympathy vith the anarchists of his ovn
time. (It is useful to compare Bubers rehabilitation of theocracy to Spinozas
reductionist account of it, in ;, , according to vhich there is alvays a
human ruler.)
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What marks o monarchy fromthe rule of God and his judges is the
prospect, even if its not alvays realized, of institutionalized stability a cen-
tral regime vith a standing army and hereditary succession. Kings and queens
expect to be folloved in oce by their ovn childrenvhich is exactly vhat
Gideon insists vill not happen in his case. Prophets like Moses and mili-
tary chiefs like |oshua resemble the judges more than the kings. They claim a
more immediate and temporary authority, vhich they make no eort to pass
on, and presumably are not able to pass on, to their bodily heirs; nor do they
levy taxes to sustain an administration and army. But the appeal of monar-
chy lies precisely in its replacement of individuals like these vith a oyuasty,
extended across generations, promising strong government, legitimacy, and
continuity over time.
The pro-monarchic voice in |udges and the elders in Samuel oer a
secular defense of human kingship. Historically, hovever, the most common
justication of monarchic rule is religious in character. The king claims, or
royalist vriters claim on his behalf, that he is divinely connected. Himself a
god or a godlike gure or the elect of the gods, possessed of a divine right
to rule over his fellovs, he does not need to oer any merely prudential de-
fense of his authority. It is this religious background, common to both Lgypt
and Mesopotamia (and probably, in some more attenuated sense, to Canaan
also), that makes the elders request for an Israelite king in Samuel : so
striking although the elders ask to be ruled like all the nations, they make
an essentially secular argument. As God himself tells Samuel, the request is a
repudiation of divine rule and divine right. Instead of these tvo, the elders
call into existence, briey, an autonomous political realm vhere utilitarian
and prudential considerations prevail.
But note that the elders request a monarchy, not a particular mon-
arch. God chooses the rst king and thus the dynasty. What the elders vant
is simply a steady hand for var and justice. They vant to be led into battle
and judged in peacetime by rulers vho are not raised up to deal vith some
terrible danger but born to and trained for their tasks, vho provide continu-
ous rather than intermittent leadership, maintain a standing army, and so on.
Kings rule on a time scale cut to the measure of human need; the perspective
of divinity, by contrast, does not make for politically reliable government.
This functionalist understanding of monarchy is not elaborated in
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the biblical texts. Nor are its democratic possibilities folloved up. Conceiv-
ably, if the elders and people establish a functional monarchy, they could
also make sure that kings fulll their functions. The revolt of the northern
tribes against Solomons son Rehoboam almost ts this model, but the bib-
lical historian makes sure to tell us that God, through his prophet Ahijah,
has chosen the nev king long before the people do (see o, from Kings
:). The real opposition in the Bible is not democratic versus monarchic but
secular versus religious ve see this most clearly in the historical accounts
of both the Northern and Southern Kingdoms, vhenever kings act for pru-
dential reasons and suer the rebuke of Gods prophets. It is not suggested
that the people vould do better, but that no human agents can be depended
on. Political self-reliance is contrasted by both Hosea in the North and Isaiah
in the South vith faith in divine help (reiterating the central theme of the
Gideon story). Self-reliance is the biblical version of secularism, but some of
the prophetic texts suggest that it is also idolatrous relying on human-made
politics (strategies, veapons, diplomacy) is implicitly compared to relying on
human-made idols. Here the king becomes an idol vorshiper. But monar-
chy alvays carries vith it another dangerthat the king himself becomes
the idol.
In the Northern Kingdom, kings vithout religious legitimacy
(They have set up kings but not by me, says Hoseas God Hos. :) turned
out to be incapable of either steadiness or continuity. Kingship vas far more
successful in the South, precisely because it vas bolstered there by a royalist-
religious ideology, a claim of divine connections at both ends, as it vere, of
the Davidic line Gods choice at the beginning, messianic fulllment in the
last days (it is not clear hov much of this ideology predates the Babylonian
exile, but it is at least intimated in texts that are probably pre-exilic). Royal-
ist ideology is suciently inclusive to take over the covenantal idea, vhich
gures, for example, in Psalm :,. But it can also include descriptions of the
king as Gods son or at least as Gods adopted son (see Psalm :), vhich brings
kingship dangerously close to Lgyptian and Mesopotamian conceptions. This
is like all the nations vith a vengeance' Nonetheless, over the years the
high royalism of the house of David vas so popular, so poverfully imag-
ined, so much the focus of both memory and hope, as to make divine-right
monarchy, alvays conceived as Davidic rule, the preferred |evish regime
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even though the Davidites have had no strong presence in |evish life since
the disappearance of Zerubabel in the aftermath of the Babylonian exile and
not even any pretended presence since the end of the exilarchy in the early
Middle Ages.
Among the intellectual elite, there vas alvays some opposition to
monarchic rule, dierently expressed in dierent periods (see, for example,
the midrashic discussion of Deuteronomy ;) but focused on some version of
Gideons claim that God vas Israels only king. Isaac Abravanel, perhaps the
leading anti-monarchist among |evish vriters, also makes a plausible secu-
lar argument against kingly rule, as if replying to the biblical elders. But his
most direct reply is religious the assurance that God vill ght Israels battles,
making the king unnecessary. Although he sometimes sounds like a Renais-
sance republican, Abravanels hopes are focused on the regime the elders are
said to have rejected the kingship of God. He vrites in the immediate after-
math of the expulsion from Spain and looks, like many of his contempo-
raries, tovard an imminent divine intervention in the political vorld.
There vas no popular opposition to kingship after the exile, pre-
sumably because there vas no actual experience of kingly government; |ev-
ish kings vere gments of the |evish imagination, and they vere consis-
tently imagined, across the diaspora, as messianic gures leading Israel back
to its ovn land. Whatever the vievs of vriters like Abravanel, among the
people kingship vas the decisive and necessary agency of redemptive politics.
But the monarchy of the elders, deriving its authority from its
eectiveness, and the monarchy of royalist ideology and messianic hope,
deriving its authority from God, are not the only possibilities explored by
|evish vriters. Tvo modications of these understandings of kingship need
to be considered here, the rst a constitutional version of royalism, the
second a radical extension of the elders program.
Deuteronomy and the talmudic tractate Sanhedrin are the classic
texts of |evish constitutionalism, the only attempts, except for Maimoni-
des codication of their doctrine in his Mishueh !orah, to make of kingship
a government under lav. (Prophetic rebuke obviously implies a similar sub-
ordination, if only in moral terms.) Deuteronomy doesnt yet suggest the
institutions necessary to such a project. It simply calls on pious kings to sub-
ject themselves to the Torah and to the instruction of its priestly teachers.
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Tractate Sanhedrin describes the court of seventy-one, capable in principle
of judging kings, but imagines it as an eective restraint only on Davidites,
vho presumably rule in accordance vith the Deuteronomic injunctions
although these injunctions are probably a historical response to Solomons
misrule. When the sages call to mind rulers like those of the Northern King-
dom (or, more vividly, like the Hasmoneans), they do not seem at all con-
dent of the authority of the court. It is not that the court is overruled by
divine right; rather, it is overcome by royal pover, vhich is, so the sages,
or some of them, suggest, a lav unto itself. These kings act, and apparently
must be alloved to act, in accordance vith Samuels description of the vay
of the king. The court simply steps aside it doesnt admit the (non-Davidic)
king to its deliberations; it doesnt deliberate on the lavfulness of his ac-
tions. But the ideal is dierent. Ideally, Israel should be ruled by a pious king,
vho accepts limits on his pover (although these certainly seem minimal in
the later accounts of Meiri and Maimonides), and by a learned court, the
tvo cooperating vith one another, their respective jurisdictions not sharply
marked out.
By the time of tractate Sanhedrin, this ideal is entirely speculative.
And speculation about kings under the lav invites speculation about kings
outside the lav. Curiously, there is no full-scale account of tyranny in post-
biblical |evish literature because there vere no |evish kings, there vere no
|evish tyrants. Discussions of unjust rule focus on gentile rulers and the obe-
dience that |evs ove, or do not ove, in the conditions of the exile. When
the rabbis imagine |evish kings acting outside the lav, they are dravn to
a dierent questionnot about the injustices that kings commit but about
the necessities that they confront.
The voice of the Israelite elders can still be heard in rabbinic texts
calling for a government that is, before anything else, eective. It is most
clearly heard in the eleventh oerashah (sermon or essay) of Nissim Gerondi
(Ran). We translate about half of the oerashah here, excerpting at length be-
cause it is one of the most explicitly political texts produced by a medieval
|evish vriter, and it is frequently quoted. Here the biblical establishment
of kingship becomes the entry point for a full discussion of the realities of
political life and then for a defense of prudential government. Royal pover is
the appointed instrument for dealing vith the needs of the houra phrase
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Introduction
ve shall see again, for it is also used to justify the extraordinary povers of
the rabbinic courts. But the courts have prior functions, vhereas Gerondi
almost seems to regard necessity as the kings raisou otre.
If the Torah vere practical rather than ideal lav, more adapted to
the vorld-as-it-really-is, Israel vould presumably have been ruled from the
beginning by sages interpreting its provisions. God gave kings to Israel,
Gerondi argues, because vorldly necessity requires action outside the lav.
Needs of the hour is the rabbinic term for crises or emergencies. But the
royal pover that these needs legitimate is permanent; Gerondi does not
suggest that pious |evs should vait for leaders more specically raised up
by God. Hence politics is set loose from divine providence and lav, pro-
vided vith a (theoretical) autonomy. Gerondi authorizes the king to act even
against the Torah vhenever he thinks such action necessary to the mainte-
nance of lav and order (tilluu olam)although he is still supposed to carry
his ovn copy of the Torah vith himand to study it, as Deuteronomy requires,
so as to knov the lavs he turns avay from. Gerondis king seems almost
like Machiavellis prince, vho violates the standards of ordinary morality for
the common good. There is nothing in Gerondi, hovever, that resembles
Machiavellis modernist provocation it is impossible to imagine him telling
his |evish king that he must learn hov not to be good.
Because the king can be conceived in these essentially secularist
terms, this doctrine of kingship suggests a traditional rationale for the medi-
eval lahal (vhich is the immediate political context of Gerondis vriting)
and perhaps even for the modern |evish state. We can see this most clearly
in the selections from Naftali Berlin (Netziv) in this chapter and from Abra-
ham Isaac Kook in Chapter o, although these vriters carve out the political
realm rather dierently from Gerondi, avoiding the radicalism of his posi-
tion. lor them it is the needs of every hour that justify rst kingly rule and
then auy secular governmentbecause if kings are mere expedients, they can
be replaced vhenever it is more expedient by presidents or prime ministers
or even popular assemblies. The Torah doesnt reach to questions of every-
day politics or administration, so it allovs roomfor alternative constitutional
arrangements and prudential decision making.
The problem here, vhether or not secular rulers are authorized to
break the lavs of the Torah, is that politics is understood as a realm of discre-
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tion vithout a lav of its ovn. What is it that guides political choice Hov
do ve recognize bad decisions As ve shall see, secular limits are specied
most explicitly in the case of gentile kings, though the limits are admittedly
not very restrictive. So ve might say of the modern state of Israel that it is
the joint heir of |evish and non-|evish kingsof kings authorized to act
outside (or against) the Torah and of kings vho naturally do that but vho
act rightly only insofar as they recognize other constraints on their pover.
We consider these secular constraints in Chapter ,.
Bi|li.al 1ieus oj Mouar.hy
Cioeous Rejusal oj Kiugship
. |udges oo, o, ; ;:, ::; ::::
!he |ool oj juoges relates the politi.al history oj Israel |etueeu the .ouquest oj the
lauo auo the esta|lishmeut oj the mouar.hy. It oes.ri|es a re.urriug patteru oj oi:iue
rule. the people siu, Coo oeli:ers them iuto the hauos oj oppressors, they repeut auo
are res.ueo |y a leaoer (juoge) iuspireo |y Coo. !hese .hapters ou the Cioeou epi
sooe illustrate the patteru auo preseut the |ools ioeal oj .harismati. auo temporary
leaoership.
(o) Then the Israelites did vhat vas oensive to the Iord, and the Iord de-
livered them into the hands of the Midianites for seven years. The hand of
the Midianites prevailed over Israel; and because of Midian, the Israelites
provided themselves vith refuges in the caves and strongholds of the moun-
tains. After the Israelites had done their soving, Midian, Amalek, and the
Kedemites vould come up and raid them; they vould attack them, destroy
the produce of the land all the vay to Gaza, and leave no means of suste-
nance in Israel, not a sheep or an ox or an ass. lor they vould come up vith
their livestock and their tents, svarming as thick as locusts; they and their
camels vere innumerable. Thus they vould invade the land and ravage it.
Israel vas reduced to utter misery by the Midianites, and the Israelites cried
out to the Iord. . . . An angel of the Iord came and sat under the tere-
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binth at Ophrah, vhich belonged to |oash the Abiezrite. His son Gideon vas
then beating out vheat inside a vinepress in order to keep it safe from the
Midianites. The angel of the Iord appeared to him and said to him, The
Iord is vith you, valiant varrior' Gideon said to him, Please, my lord, if
the Iord is vith us, vhy has all this befallen us Where are all His vondrous
deeds about vhich our fathers told us, saying, Truly the Iord brought us up
from Lgypt Nov the Iord has abandoned us and delivers us into the hands
of Midian' The Iord turned to him and said, Go in this strength of yours
and deliver Israel fromthe Midianites. I hereby make you My messenger. He
said to him, Please, my lord, hov can I deliver Israel Why, my clan is the
humblest in Manasseh, and I am the youngest in my fathers household. The
Iord replied, I vill be vith you, and you shall defeat Midian to a man. . . .
All Midian, Amalek, and the Kedemites joined forces; they crossed
over and encamped in the Valley of |ezreel. The spirit of the Iord enveloped
Gideon; he sounded the horn, and the Abiezrites rallied behind him. And he
sent messengers throughout Manasseh, and they too rallied behind him. He
then sent messengers through Asher, Zebulun, and Naphtali, and they came
up to meet the Manassites. . . .
(;) Larly next day, |erubbaalthat is, Gideonand all the troops
vith him encamped above Ln-harod, vhile the camp of Midian vas in the
plain to the north of him, at Gibeath-moreh. The Iord said to Gideon, \ou
have too many troops vith you for Me to deliver Midian into their hands;
Israel might claim for themselves the glory due to Me, thinking, Our ovn
hand has brought us victory. Therefore, announce to the men, Iet any-
body vho is timid and fearful turn back, as a bird ies from Mount Gilead.
Thereupon, ::,ooo of the troops turned back and o,ooo remained. There
are still too many troops, the Iord said to Gideon. Take them dovn to the
vater and I vill sift them for you there. Anyone of vhom I tell you, This
one is to go vith you, that one shall go vith you; and anyone of vhom I
tell you, This one is not to go vith you, that one shall not go. So he took
the troops dovn to the vater. Then the Iord said to Gideon, Set apart all
those vho lap up the vater vith their tongues like dogs from all those vho
get dovn on their knees to drink. Nov those vho lapped the vater into
their mouths by hand numbered three hundred; all the rest of the troops got
dovn on their knees to drink. Then the Iord said to Gideon, I vill de-
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liver you and I vill put Midian into your hands through the three hundred
lappers; let the rest of the troops go home. So |the lappers| took the pro-
visions and horns that the other men had vith them, and he sent the rest
of the men of Israel back to their homes, retaining only the three hundred
men. . . . He shouted, Come on' The Iord has delivered the Midianite camp
into your hands' He divided the three hundred men into three columns and
equipped every man vith a rams horn and an empty jar, vith a torch in each
jar. Watch me, he said, and do the same. When I get to the outposts of
the camp, do exactly as I do. When I and all those vith me blov our horns,
you too, all around the camp, vill blov your horns and shout, lor the Iord
and for Gideon'
Gideon and the hundred men vith him arrived at the outposts of
the camp, at the beginning of the middle vatch, just after the sentries vere
posted. They sounded the horns and smashed the jars that they had vith
them, and the three columns blev their horns and broke their jars. Hold-
ing the torches in their left hands and the horns for bloving in their right
hands, they shouted, A svord for the Iord and for Gideon' They remained
standing vhere they vere, surrounding the camp; but the entire camp ran
about yelling, and took to ight. lor vhen the three hundred horns vere
sounded, the Iord turned every mans svord against his fellov, throughout
the camp, and the entire host ed. . . .
(:) . . . Then the men of Israel said to Gideon, Rule over usyou,
your son, and your grandson as vell; for you have saved us from the Midian-
ites. But Gideon replied, I vill not rule over you myself, nor shall my son
rule over you; the Iord alone shall rule over you.
Irimiti:e !heo.ra.y
z. Martin Buber, Biblical Ieadership
Israel auo the 1orlo. Lssays iu a !ime oj Crisis (Nev \ork Schocken, ,:), pp. :::,. This
essay vas translated by G. Hort.
!he term theo.ra.y is post|i|li.al (see ;,). It ooes, houe:er, ja.ilitate au uuoerstauo
iug oj |i|li.al .ou.eptious oj politi.al rule. !his text jrom Bu|er, uritteu at a|out the
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Biblical Vievs ,
same time as he uas uorliug ou his |ool Kingship of God (the late :,.os), aims at
reha|ilitatiug theo.ra.y as a politi.al ioeae:eu uhile re.ogui:iug its ultimate jailure.
Iollouiug 8piuo:a, Bu|er a.luouleoges that the liugship oj Coo requires humau
ageuts, |ut he :ieus those ageuts positi:ely. the people rule themsel:es |ut su|mit jreely
to the temporary leaoership oj a .harismati. gure iu times oj .risis. Auo jor this regime,
Bu|er hao a oeep sympathy.
We have a people, and the people is in bondage. A man |Moses| receives the
charge to lead it out. That is he vhom I have described as the Ieader in the
original meaning of the vord. It is he vho serves in a human vay as a tool
for the act vhich God pronounces, I bore you on eagles vings, and brought
you unto myself (Lxod. ,). I have already spoken of his life. But in the
middle of his life the event takes place in vhich Moses, after the passage
through the Red Sea, intones the song in vhich the people joins, and vhich
is the proclamation of a King. The vords vith vhich the song ends proclaim
it King shall the Iord be for ever and ever (Lxod. :). The people has
here chosen God himself for its King, and that means that it has made a vital
and experienced truth out of the tradition of a divine kingdom vhich vas
common to all Semitic peoples but vhich never had been taken quite seri-
ously. The Hebrev leaders are so much in earnest about it, that after the land
has been conquered they undertake to do vhat is contrary to history they
try to build up a society vithout a ruling pover save only that of God. It
is that experiment in primitive theocracy of vhich the Book of |udges tells,
and vhich degenerates into anarchy, as it is shovn by the examples given in
its last part.
. . . This type |of leadership| is to be understood as the attempt made
by a leading group among the people |vho| are dominated by the desire to
make actual the proclamation of God as king, and try to induce the people
to follov them. This attempt miscarries time and again. Time and again the
people, to use the biblical phrase, falls avay from God. But ve can also ex-
press this in the language of history time and again the people fall apart; it is
one and the same thing vhichever language ve use. The attempt to establish
a society under no other dominion than Godsthis too can be expressed in
the language of history or . . . of sociology the attempt to establish society
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:o Kings
on pure voluntarism fails over and over again. The people falls avay. This
is alvays succeeded by an invasion by one of the neighboring peoples, and
Israel, from a historical point of viev fallen apart and disunited, does not
stand rm. But in its conquered state it again makes itself subject to the vill
of God, resolves anev to accept Gods dominion, and again a divine mission
occurs; there is alvays a leader vhom the spirit lays hold of as it laid hold
of Moses. This leader, vhose mission is to free the people, is the |udge, or
more correctly, he vho makes it right; he makes this right exist in the
actual vorld for the people, vhich after its return to God novagain has right
on its side, by defeating the enemy. This is the rhythm of the Book of |udges;
it might almost be called a tragic rhythm, vere it not that the vord tragic
is so foreign to the spirit of the biblical language.
But in this Book of |udges there is also something being prepared.
|As| the experience of failure, of the inability to bring about this intended,
naive, primitive theocracy becomes ever deeper, ever stronger grovs the de-
mand for a human kingdom.
Requestiug a Kiug
. Samuel :
!his is the .lassi. a..ouut oj the esta|lishmeut oj mouar.hy iu Israel. 8amuel is the
last oj the juoges, auo the rst .hapters oj the |ool |eariug his uame jorm a |rioge
|etueeu the perioo oj Coos rule auo the mouar.hi. era. Chapter :, priuteo here iu its
eutirety, euos a|ruptly uheu 8amuel, .ommauoeo |y Coo to heeo the peoples request
jor a liug, seuos them home to auait their ueu ruler|ut uot |ejore he has pro:ioeo
them, also at Coos .ommauo, uith au a..ouut oj the pra.ti.e oj liugs that |e.ame a
|asi. text jor |oth oejeuoers auo .riti.s oj mouar.hy. 8u|sequeut .hapters oes.ri|e the
.outiuuiug role oj 8amuel iu the as.eusiou auo oeath oj 8aul, Israels rst liug.
When Samuel grev old, he appointed his sons judges over Israel. The name
of his rst-born vas |oel, and his second sons name vas Abijah; they sat as
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Biblical Vievs :
judges in Beer-sheba. But his sons did not follov in his vays; they vere bent
on gain, they accepted bribes, and they subverted justice.
All the elders of Israel assembled and came to Samuel at Ramah, and
they said to him, \ou have grovn old, and your sons have not folloved your
vays. Therefore appoint a king for us, to govern us like all other nations.
Samuel vas displeased that they said Give us a king to govern us. Samuel
prayed to the Iord, and the Iord replied to Samuel, Heed the demand of
the people in everything they say to you. lor it is not you that they have
rejected; it is Me they have rejected as their king. Iike everything else they
have done ever since I brought them out of Lgypt to this dayforsaking Me
and vorshiping other godsso they are doing to you. Heed their demand;
but varn them solemnly, and tell them about the practices of any king vho
vill rule over them.
Samuel reported all the vords of the Iord to the people, vho vere
asking him for a king. He said, This vill be the practice |mishpat| of the
king vho vill rule over you He vill take your sons and appoint them as his
charioteers and horsemen, and they vill serve as outrunners for his chari-
ots. He vill appoint them as his chiefs of thousands and of fties; or they
vill have to plov his elds, reap his harvest, and make his veapons and the
equipment for his chariots. He vill take your daughters as perfumers, cooks,
and bakers. He vill seize your choice elds, vineyards, and olive groves, and
give them to his courtiers. He vill take a tenth part of your grain and vin-
tage and give it to his eunuchs and courtiers. He vill take your male and
female slaves, your choice young men, and your asses, and put them to vork
for him. He vill take a tenth part of your ocks, and you shall become his
slaves. The day vill come vhen you cry out because of the king vhom you
yourselves have chosen; and the Iord vill not ansver you on that day.
But the people vould not listen to Samuels varning. No, they
said. We must have a king over us, that ve may be like all the other nations
Iet our king rule over us and go out at our head and ght our battles. When
Samuel heard all that the people said, he reported it to the Iord. And the
Iord said to Samuel, Heed their demands and appoint a king for them.
Samuel then said to the men of Israel, All of you go home.
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:: Kings
Connentary. Kingship and Political Agency
The story of Samuel tells hov political rule in the form of king-
ship comes to Israel. Until this dramatic moment, Israel vas ruled by proph-
ets and other leaders, raised up by God and marked by sacred and charis-
matic authority. Nov the people of Israel seem to defy God by insisting on
a nev kind of authority, resembling that of other nations. The Bible oers
other accounts of the origin of kingship, portraying the roles of God and the
people rather dierently and endoving kingship vith sacral authority. Here,
the peoples demand, encountering Gods sovereignty and the prophets au-
thority, brings into existence a specically political regime. This tense story,
vith its denite beginning and end, is foundational in character. Lvoking
material from other texts but not seeking to compare or reconcile the texts
or to take into account scholarship addressing their varying sources, I focus
on this politically seminal moment.
The corruption of Samuels tvo sons is part of a deeper crisis. That
they remain in Beer-sheba, rather than travel the judicial circuit for vhich
Samuel has grovn too old, suggests that justice no longer has a pervasive
presence in Israel. Moreover, Samuels conferring of judicial authority on
them, a dynastic gesture, evokes an unfavorable contrast vith Moses. Acting
on the advice of his father-in-lavvho might have been thought to favor
the claims of kinshipMoses chose as judges capable men out of all Israel,
and appointed them heads over the people (Lxod. ::), a rank indier-
ent to lineage. The crisis is deepened because God seems not to address the
problem of succession. In a brief narrative moment, God provided |oshua
as Moses successor (Num. :;). And God called Samuel to replace Llis
feeble priesthood vhen Llis rebuke of his ovn corrupt sons vas ineectual
( Sam. ::o). We do not knov hov long Samuels sons have proved un-
vorthy, but the elders seem not to expect God to provide nev leadership.
They neither ask that Samuel replace his sons vith appointments like those
made by Moses nor turn to God for nev leadership but, in great surprise,
demand a king for us, to govern us like all other nations.
In demanding a king, the elders cede authority they have as patri-
archs and rulers of tovns, households, and families. It is their dependents
and possessions that kings may appropriate; their sons, subordinate to fathers
and elders, vho may become the kings ocials as chiefs of thousands and
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of ftiesranks that ignore the ties of lineage, kinship, and household in
vhich the authority of elders is bound. Sons, daughters, elds, vineyards,
harvest, servants, cattleeach noun indistinguishably emphasizes the pos-
sessive form vhat is yours as patriarchs and ovners vill be his, the kings, to
take for his purposes. Authority is not only redistributed but assumes a nev
form kingship.
The elders do not vant a particular king but the institution of king-
ship. Larlier, the men of Israel, reacting to Gideons success in var, acclaim
him as dynastic ruler Rule over usyou, your son and your grandson as
vell. But their direct attempt to constitute political rule dees Gods au-
thority, as Gideons refusal explains I vill not rule over you myself, nor shall
my son rule over you, the Iord alone shall rule over you ( |udg. ::::).
Iater, the ruthless and sinful attempt by Gideons son Abimelech to make
himself kingrst of Shechem, then of Israelends in failure and a humili-
ating death; the episode reects the vrongness, in both divine and human
terms, of instituting kingship by personal vill and conquest ( |udg. ,). The
elders demand for a king diers from these aved precedents; they neither
acclaim nor recognize a ruler, but urgently insist that Samuel provide one.
The response that God tells the prophet to makelisten to the
people in everything they say to you (my translation)is amazing in sub-
stance and form. It inverts the biblical formula, in vhich the speech of
prophets implies imperative command and the peoples listening implies ob-
ligated obedience. \et, God says, it is Me they have rejected as their king.
What is the meaning of this rejection, in vhich God seems to acquiesce
It is not you that they have rejected, God tells Samuel. Indeed,
Samuel led Israel as long as he lived ( Sam. ;), and later all Israel em-
phatically arms his righteousness ( Sam. :). The elders demand a king
in anticipation of the approaching end of Samuels career. Concerned that
the angered prophet not reject Israel, God oers him an analogy although
they demand a king rather than capable men vho fear God appointed by
prophets, Samuel must not reject themas God has remained vith them,
though they vorshiped false gods, so must Samuel. Hovever, analogy is not
equivalence. The sinful vorship of false gods is distinct from the elders de-
mand for a king in response to Samuels advanced age, his sons abuses and,
implicitly, the tension betveen prophecy and dynastic succession. Israel has
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: Kings
often fallen into the sin of idolatry, for vhich it has suered punishment.
But kingship is nev both to the people and to Samuel. It is the nature of
kingship about vhich God instructs Samuel in commanding him to varn
and tell the elders.
Samuels vivid description is an account of political rule, not by cor-
rupt or tyrannical kings, but of the practice (mishpat)the custom, man-
ner, rightsinherent in kingship. The king has the right and pover to drav
extensively on the kingdoms resources. He vill take a tenth to sustain his
court and retinueunlike the tenth taken by the priests, vhich sustains the
temple service. The elders vill become servants or slavesboth are pos-
sible understandings of laa:aoimbut the vord stretches tovard a nev idea,
that of the kings subjects. Though he vill take a tenth of grain, vintage,
and ocks, there are no specied limits to the elds, vineyards, and olive
groves the king may seize or to the number of sons, daughters, and slaves
he may impress. \et vhen Israel cries out from exactions by the kings
vhom they have villed upon themselves, God vill not ansver. Why not
Their demand for a king is daringit pushes past Samuels shock in asserting
a nev political agency, expressed in Gods telling Samuel to listen to the
people in everything they say. God instructs Israel, through the distressed
Samuel, about the rulership of a king as distinct from the governance they
have knovn, by stipulating that He vill not ansver vhen the people cry
out. The customary authority of kings, hovever harsh, is legitimate; having
called a king into existence, the people have no right of appeal against his
just exactions.
Before this moment, kingship is anticipated four times in the same
formulain those days there vas no king in Israelvhich is alvays linked
vith stories of strife and disorder ( |udg. ;o; :; ,; ::). The last de-
scribes the advent of chaos vithout a king, everyone did as he pleased. At
the foundational moment, hovever, no examples of disorder arise; rather, a
nev political agency responds to a historical juncture. Nov the people, no
longer the elders alone, repeat and intensify the demand No, but there uill
be a king over us (my translation)it is emphatic that they are the active
agents bringing kingship into existence. At the beginning of human history,
God assigned to Adam the pover to name all animal life (Gen. :,:o), af-
rming humanitys dominion over living nature. Demanding a king, Israel
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asserts a political capacity that God has not assigned. Once asserted, it grovs
they vant a king not only to replace Samuels sons and, prospectively, Samuel
himself but to lead in var the king is also to go out at our head and ght
our battles.
Rule in justice and in var are equally central to political authority.
But in the story, the crises of judicial and military authority are not quite
equivalent or symmetrical. At the battle vith the Philistines at Mizpah,
Samuels prophecy, sacrice, and cries to God result in victory, after vhich
the hand of the Iord vas set against the Philistines as long as Samuel lived
( Sam. ;). Samuel has grovn old, but the people do not mention the
lack of a successor as var leader, matching the elders concern that Samuel
has no successor as judge. Anticipating the problem and concerned over an
Ammonite invasion ( Sam. ::), they expand their demand for a king to
ll the space of political rule. The foundational drama ends in Samuels re-
counting of this great transition, in vhich he emphasizes the reversal of the
formulaic relationship of prophet and peopleBehold, I listened to your
voice in all that you said to me and I set a king over you. Henceforth, the
king vill go before you ( Sam. ::). Samuel obeys God in both yield-
ing to the people and remaining vith them as prophet, becoming the rst
to rebuke and chastise a king ( Sam. , :). It is a carefully
delineated politi.al kingship that comes into existence.
What is the storys attitude tovard this radical development The
demand for a king . . . to govern us like all other nations does not mean
that, like idolatry, kingship is intrinsically alien and abhorrent. The rejection
of Lgypt is so formative for Israel that the category all the nations (lol ha
goyyim) excludes the exceptional case of Lgypt and its divine pharaohs. Nor
does the phrase refer to the kings of Mesopotamia, vho, though not divine,
mediate betveen their subjects and the gods. Rather, all the nations refers
to the peoples vith vhich Israel has been in contact since the going out from
Lgyptthe Canaanite city kings (vhom Abimelech imitated in Shechem)
and the territorial kings of Moab and Ammon. Before the demand for a king,
Samuel cleansed Israel of Canaanite fertility deities, the |ealim and ashtarot,
the most recent examples of Israels recurrent lapses into paganism ( Sam.
;). The foreign model they vish to adopt is political, not religious.
In the very moment at vhich a distinction betveen religious and
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:o Kings
political domains arises in Israel, Samuel abruptly dismisses and disperses the
peopleall of you go home. Although kingship enters Israel at the peoples
insistence, not they but God, acting through the prophet, chooses the king.
The peoples demandgive us a kingis exactly fullled. Their unprece-
dented political agency creates political rule in Israel. Arising in tension vith
prophetic authority, it is nonetheless justied, for God, vhile not approving,
complies in its creation.
The story diers from foundational accounts of sacral, medieval,
or absolutist monarchy, of feudal lordship, and of democratic, nationalist,
and communist regimes. Sacred authority, nature, popular sovereignty, ide-
ologynone of these animate the origin of kingship in Israel. Rather, it
comes into existence vhen a people, facing problems of succession and mili-
tary threat, suddenly demand a form of political rule consistent vith Gods
sovereignty but not originally part of Gods design. Acquiescing, God places
kingship vithin the terms of the Sinaitic covenant. Insisting on a nev do-
main of politics, a nev political space, the story does not open the vay for
kingly despotism, because the povers it ascribes to the king, though nev
in Israel, are not unbounded or arbitrary; nor for democracy, because the
people do not rule; nor for popular consent, because the peoples creative
role, though seminal, is momentary. It does, hovever, open the vay for secu-
lar political rule. The struggles that follov betveen Samuel and Israels rst
king, Saul, set the tone for subsequent conicts of prophets and kings. The
story accounts for the coming into being, vithin the history of a holy people
ruled by God, of legitimate and specically political authority.
Allau 8il:er
Royalist !heology
. Psalms :,::
A large part oj Isalm :, is oe:oteo to a :isiou. Coos pro.lamatiou oj a spe.ial .o:e
uaut uith the house oj Da:io. Iu the Bi|le this is jolloueo |y a plaiuti:e appeal to Coo
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Biblical Vievs :;
that he |e true to his promises. !he :isiou itselj (reproou.eo here) is oj a pie.e uith se:
eral other royal psalms, uhi.h ree.t the theologi.al re:olutiou |rought a|out |y the
esta|lishmeut oj the mouar.hy. !his psalm stresses the iutimate relatiouship |etueeu
Coo auo the liug auo the uu.ouoitioual .o:euaut |etueeu them.
I have found David, My servant;
anointed him vith My sacred oil.
My hand shall be constantly vith him,
and My arm shall strengthen him.
No enemy shall oppress him,
no vile man aict him.
I vill crush his adversaries before him;
I vill strike dovn those vho hate him.
My faithfulness and steadfast love shall be vith him;
his horn shall be exalted through My name.
I vill set his hand upon the sea,
his right hand upon the rivers.
He shall say to Me,
\ou are my father, my God, the rock of my deliverance.
I vill appoint him rst-born,
highest of the kings of the earth.
I vill maintain My steadfast love for him alvays;
My covenant vith him shall endure.
I vill establish his line forever,
his throne, as long as the heavens last.
If his sons forsake My Teaching
and do not observe My commands,
I vill punish their transgression vith the rod,
their iniquity vith plagues.
But I vill not take avay My steadfast love from him;
I vill not betray My faithfulness.
I vill not violate My covenant,
or change vhat I have uttered.
I have svorn by My holiness, once and for all;
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:: Kings
I vill not be false to David.
His line shall continue forever,
his throne, as the sun before Me.
as the moon, established forever,
an enduring vitness in the sky.
Connentary. Gods Kingship
Unlike the pagan gods, the God of Israel is a jealous God. While
paganismallovs the vorship of many gods, the God of Israel demands exclu-
sivity, an idea poverfully captured in the biblical metaphor of monogamous
marriage betveen God the husband and Israel the vife. Worshiping other
gods is analogous to betrayal, provoking Gods deepest jealousy and anger.
But vhat is the extent and meaning of the metaphor vhen translated from
the human to the theological What is it that has to be preserved as exclu-
sive on the religious side of the metaphor The clearest candidate is vorship
no one is alloved to sacrice, pray, burn incense, or pour libation except to
God; any such act directed to a person, an institution, or another god con-
stitutes idolatry. Ritual is therefore the direct counterpart of the exclusive
sexual relationship in monogamous marriage. \et, as in marriage, the realm
of exclusivity is not so easy to carve out. The ambiguities involved in xing
its borders have enormous implications for understanding Gods kingship
and its relation to politics.
The problem can be formulated in the folloving manner At vhat
point does the ceremonial acceptance of authority in politics become actual
vorship lor enlightened pagans in Rome, the vorship of the emperor
even sacricial oeringsvas a matter of mere civil religion, an expression
of loyalty to the state and nothing more. At the other extreme, for the |evish
zealots vho led the rebellion against Rome, a routine civic obligation such as
paying taxes to the emperor constituted vorship of a false god. Where should
the line be dravn betveen authority and deication Which attributes are
exclusive to God such that ascribing them to a political gure or institu-
tion establishes a false god The broader the realm of political gestures, roles,
and attributes ascribed exclusively to God, the narrover the possibility that
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political authority vill not be considered idolatrous. What constitutes vor-
ship and vhat counts as deication is therefore at the heart of the problem
of Gods kingship.
Within the Bible there is a struggle betveen tvo understandings
of the idea of Gods kingship. The one claims that Coo is the liug, the other
claims that the liug is uot a goo. According to the rst argument, kingship is an
exclusive attribute of God. The transference of the role to a human is tanta-
mount to deication. This is vhat Gideon told the people vhen he vas asked
to establish a royal dynasty I vill not rule over you myself, nor shall my son
rule over you; the Iord alone shall rule over you ( |udg. ::). In the same
vein, the desire of the elders to establish a monarch at the end of Samuels life
is experienced by God as a betrayal analogous to the vorship of other gods
lor it is not you that they have rejected; it is Me they have rejected as their
king. Iike everything else they have done ever since I brought them out of
Lgypt to this dayforsaking Me and vorshipping other godsso they are
doing to you ( Sam. :;:). The only human leadership that is acceptable
on such an understanding of Gods kingship is the ad hoc noninstitutional
leadership of the judges. As charismatic leadersancient versions of crisis
managersthe judges never established a standing army supported by taxa-
tion. Lven given their limited role, hovever, God insisted on making his di-
rect leadership visible. He ordered Gideon to decrease the number of troops
amassed for the var against the Midianites \ou have too many troops vith
you for me to deliver Midian into their hands; Israel might claim for them-
selves the glory due to Me, thinking, Our ovn hand has brought us vic-
tory ( |udg. ;:). A further constraint on realpolitik stemming from Gods
political monopoly can be seen in the prophetic polemic against protective
treaties vith superpovers like Lgypt or Assyria. God is after all the protector
and lord, and Israel is his vassal, not Lgypts or Assyrias Ha' Those vho go
dovn to Lgypt for help and rely upon horses' They have put their trust in
abundance of chariots, in vast numbers of riders and they have not turned
to the Holy One of Israel, they have not sought the Iord (Isa. ).
At the heart of the God-is-the-king argument lies the idea that
political subjection is vorship and that investing individuals vith royal au-
thority is tantamount to deication. But vhat kind of political programdoes
such an idea suppose Anarchism seems to be the modern analogue, and in-
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deed in Kiugship oj Coo, Martin Buber sought to revive the political ide-
ology of Gods kingship as sacred anarchy. Buber envisioned Zionism as a
dynamic, noninstitutionalized community of I-thou rather then I-it rela-
tionships. The modern criticism of this idea vas already suggested in the
Bible itself. Without a state monopoly on the use of force, the veak vill be
completely vulnerable. The anarchic state of nature vill not evolve into a
community of free individuals respecting each others dignity. Rather, it vill
produce complete chaos or the arbitrary rule of the poverful. The last verse
of the book of |udges is the oppositions summary of vhat can be learned
from the social experiment in anarchism In those days there vas no king
in Israel; everyone did as he pleased ( |udg. ::). When such a community
of sacred anarchy faces threats from organized states vith poverful stand-
ing armies, as it inevitably must, it quickly collapses. This is vhy the elders
of Israel make their request We must have a king over us, that ve may be
like all other nations Iet our king rule over us and go out . . . and ght our
battles ( Sam. :,:o). Anarchist theorists respond to these challenges by
arguing that the evils produced by organized states pose a far greater dan-
ger than the harm done by individuals to each other. Outside threats to the
anarchist community should not be ansvered by forced conscription and
taxation but by volunteerism, vhose spirit vill be unmatched by that of any
organized force.
Anarchism needs further discussion; but in any case, the analogy
betveen its modern version and the biblical kingship of God, though tempt-
ing, is misleading. lrom the perspective of the book of |udges, the void left
by nonhierarchical, noninstitutional leadership is lled by Gods ongoing
presence in history. It is not the army of volunteers or the tribunal of the
people that functions instead of established lav and order but God himself
vho acts as judge, varrior, and redeemer. Volunteerism and civic participa-
tion are not the alternatives to hierarchical structure; the peopleaccord-
ing to God-is-the-king ideologyassume political responsibility only vhen
God hides his face because of their sins. In principle they have only to keep
the Torah, and God vill do the rest.
Although the God-is-the-king ideology shares the anarchist argu-
ment about the vrongfulness of subjugation, it is premised on Gods ongoing
intervention in the political aairs of the community, hence the critical verse
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In those days there vas no king in Israel; everyone did as he pleased attains
a sharper edge. It represents a voice vithin the book of |udges that is directed
not only against the illusion of human goodvill in the state of nature but
also against the argument that God is king. This internal biblical opposition
to the rule of the judges declares that if the claim is made that God is king,
then in those days there vas no king in Israel, not even God.
The alternative understanding of Gods kingship is that the king is
not a god. According to this understanding, God does not monopolize poli-
tics as his exclusive realm; instead, he sets limits on the claims that politics
can make. The ascription of kingship to humans is not an act of deication;
only the myth of kingship as an ahistorical institution rooted in the nature
of things, only the claim that the king is a god, constitutes deication. When
the king is not just a varrior, a legislator, or a judge but also the one vho
makes the Nile overov and the sun risethen the boundary betveen the
human and the divine is crossed. Gods kingship, according to this viev, is
manifest in the struggle against the transformation of the political into the
cosmological and of the historical into the mythical.
The book of Samuel nally accepts the institution of kingship as
long as the king does not sever his dependence upon God, as manifested in
the prophets subsequent critical stance (cf. Sam. :). But there is a fur-
ther step in the biblical viev of kingship, reected in the royal theology of
Psalm :,. Here the king is perceived as a mediator betveen the divine and
the human, vith an independent covenant vith God. Indeed, some of the
expressions in this psalm seem to cross the boundary, portraying the king as
a divine being. The viev that the king is not a god allovs for the practice
of mundane politics but aims to ensure that the political does not overstep
its limits. The king has to fear God rather than become a god Thus he vill
not act haughtily tovards his fellovs or deviate from the commandment to
the right or to the left (Deut. ;:o).
Deication is the vorst of political evils, and it is the constant temp-
tation of the poverful. The claim that God is the king sets stricter limits on
this evil than does the claim that the king is not a god human kingship is
described as a form of deication, and political subjection as a form of vor-
ship. The second claim is more lenient, maintaining that deication does not
occur vith the ascription of political titles but only vith the ascription of
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nonpolitical attributes to political gures. \et, paradoxically, the claim that
God is the king is far more vulnerable to the dangers of deication than its
lenient alternative. The institutional void created by the God-is-the-king
ideology eventually vill be lled by mediators vho speak in Gods name.
Pure theocracy is doomed to deteriorate into priestly rule and prophetic
claims. Since God is supposed to be the king, any political move vill be abso-
lutized by his human agents. The moderate viev that the king is not a god,
although it allovs for political authority, aords better protection against
deication. By suggesting that there is a human sphere of politics not mo-
nopolized by God, it allovs room for human agents vho make no claim to
represent Gods absolute vill.
Moshe Hal|ertal
!he Coustitutiou oj Mouar.hy
Laus Cou.eruiug the KiugI
. Deuteronomy ;:o
!his text, uhi.h iu.luoes the !orahs ouly laus .ou.eruiug liugs, is a mu.h ois.usseo
auo oisputeo politi.al statemeut. !he .riti.al iuterpreti:e oispute is a|out uhether Coo
is here permittiug or .ommauoiug the appoiutmeut oj a liug. Cur trauslatiou ja:ors
the permittiug :ieu, |ut the He|reu uoros (at the poiut uoteo |elou) .au |e reao
oiereutly. Iu its .auoui.al settiug this se.tiou oj laus .ou.eruiug the liug is part oj a
larger group oj uhat might |e termeo .oustitutioual laus, most oj uhi.h are jeatureo
iu later .hapters. !he se.tiou immeoiately pre.eoiug (Deut. :.::,) is ou the high
.ourt (;), auo those immeoiately jollouiug (::.:,), ou the priests auo (::.,..) the
prophets (see ;;, auo ,).
If, after you have entered the land that the Iord your God has assigned to
you, and taken possession of it and settled in it, you decide, I vill set a king
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over me, as do all the nations about me, you shall be free to
1
set a king
over yourself, one chosen by the Iord your God. Be sure to set as king over
yourself one of your ovn people; you must not set a foreigner over you, one
vho is not your kinsman. Moreover, he shall not keep many horses or send
people back to Lgypt to add to his horses, since the Iord has varned you,
\ou must not go back that vay again. And he shall not have many vives,
lest his heart go astray; nor shall he amass silver and gold to excess.
When he is seated on his royal throne, he shall have a copy of this
Torah vritten for him on a scroll by the levitical priests. Iet it remain vith
him and let him read in it all his life, so that he may learn to revere the Iord
his God, to observe faithfully every vord of this Torah as vell as these lavs.
Thus he vill not act haughtily tovard his fellovs or deviate from the com-
mandment
2
to the right or to the left, to the end that he and his descendants
may reign long in the midst of Israel.
Coutestiug the 8u..essiou. Irophet auo Ieople
. Kings , , :o:, ;o, ; ::o, :oo
Iu the pre:ious sele.tiou the liug is iustru.teo to remaiu hum|le auo a|ioe |y the lau
so that his rule auo that oj his oyuasty uill |e preser:eo. Here ue pro:ioe a histori.al
propheti. uarratiou oj the .risis oj su..essiou upou the oeath oj Da:ios sou 8olomou.
!he su..essiou |y Reho|oam to the Da:ioi. throue appareutly requireo .ourmatiou
|y the people (.j. . 8am. ,.:,). His loss oj most oj the realm jolloueo politically
jrom his jolly iu s.oruiug their oemauos. But this jolly uas itselj |rought a|out |y
Coo iu respouse to 8olomous sius, auo the ueu liug, jero|oam, lile 8aul auo Da:io,
uas .hoseu |y Coos prophet.
. The meaning of the Hebrev is ambiguous as to vhether this is a permission or a command-
ment. The alternative translation, Thou shalt in any vise set him king over thee, gures in
:.
:. Nev |PS instruction.
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King Solomon loved many foreign vomen in addition to Pharaohs daugh-
terMoabite, Ammonite, Ldomite, Phoenician, and Hittite vomen, from
the nations of vhich the Iord had said to the Israelites, None of you shall
join them and none of them shall join you, lest they turn your heart avay to
follov their gods. Such Solomon clung to and loved. He had seven hundred
royal vives and three hundred concubines; and his vives turned his heart
avay. . . .
And the Iord said to Solomon, Because you are guilty of this
you have not kept My covenant and the lavs vhich I enjoined upon you
I vill tear the kingdom avay from you and give it to one of your servants.
But, for the sake of your father David, I vill not do it in your lifetime; I
vill tear it avay from your son. Hovever, I vill not tear avay the vhole
kingdom; I vill give your son one tribe, for the sake of My servant David
and for the sake of |erusalem vhich I have chosen. . . .
|eroboam son of Nebat, an Lphraimite of Zeredah, the son of a
vidovvhose name vas Zeruah, vas in Solomons service; he raised his hand
against the king. The circumstances under vhich he raised his hand against
the king vere as follovs Solomon built the Millo and repaired the breach
of the city of his father, David. This |eroboam vas an able man, and vhen
Solomon sav that the young man vas a capable vorker, he appointed him
over all the forced labor of the House of |oseph.
During that time |eroboam vent out of |erusalem and the prophet
Ahijah of Shiloh met him on the vay. He had put on a nev robe; and vhen
the tvo vere alone in the open country, Ahijah took hold of the nev robe
he vas vearing and tore it into tvelve pieces. Take ten pieces, he said to
|eroboam. lor thus said the Iord, the God of Israel I am about to tear the
kingdom out of Solomons hands, and I vill give you ten tribes. But one
tribe shall remain hisfor the sake of My servant David and for the sake of
|erusalem, the city that I have chosen out of all the tribes of Israel. . . . But
you have been chosen by Me; reign vherever you vish, and you shall be
king over Israel. If you heed all that I command you, and valk in My vays,
and do vhat is right in My sight, keeping My lavs and commandments as
My servant David did, then I vill be vith you and I vill build for you a last-
ing dynasty as I did for David. I hereby give Israel to you; and I vill chastise
Davids descendants for that |sin|, though not forever.
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Solomon sought to put |eroboam to death, but |eroboam promptly
ed to King Shishak of Lgypt; and he remained in Lgypt till the death of
Solomon. . . .
Solomon slept vith his fathers and vas buried in the city of his
father David; and his son Rehoboam succeeded him as king.
Rehoboam vent to Shechem, for all Israel had come to Shechem
to acclaim him as king. |eroboam son of Nebat learned of it vhile he vas
still in Lgypt; for |eroboam had ed from King Solomon, and had settled in
Lgypt. They sent for him; and |eroboam and all the assembly of Israel came
and spoke to Rehoboam as follovs \our father made our yoke heavy. Nov
lighten the harsh labor and the heavy yoke vhich your father laid on us, and
ve vill serve you. He ansvered them, Go avay for three days and then
come back to me. So the people vent avay. And the young men vho had
grovn up vith him ansvered, Speak thus to the people vho said to you,
\our father made our yoke heavy, nov you make it lighter for us. Say to
them, My little nger is thicker than my fathers loins. My father imposed a
heavy yoke on you, and I vill add to your yoke; my father ogged you vith
vhips, but I vill og you vith scorpions.
|eroboam and all the people came to Rehoboam on the third day,
since the king had told them Come back on the third day. The king an-
svered the people harshly, ignoring the advice that the elders had given him.
He spoke to them in accordance vith the advice of the young men, and said,
My father made your yoke heavy, but I vill add to your yoke; my father
ogged you vith vhips, but I vill og you vith scorpions. (The king did
not listen to the people; for the Iord had brought it about in order to fulll
the promise that the Iord had made through Ahijah the Shilonite to |ero-
boam son of Nebat.) When all Israel sav that the king had not listened to
them, the people ansvered the king
We have no portion in David,
No share in |esses son'
To your tents, O Israel'
Nov look to your ovn House, O David.
So the Israelites returned to their homes. But Rehoboam continued to reign
over the Israelites vho lived in the tovns of |udah.
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King Rehoboam sent Adoram, vho vas in charge of the forced
labor, but all Israel pelted him to death vith stones. Thereupon King Reho-
boam hurriedly mounted his chariot and ed to |erusalem. Thus Israel re-
volted against the House of David, as is still the case. When all Israel heard
that |eroboam had returned, they sent messengers and summoned him to the
assembly and made him king over all Israel. Only the tribe of |udah remained
loyal to the House of David. . . .
|eroboam said to himself, Nov the kingdom may vell return to
the House of David. If these people still go up to oer sacrices at the House
of the Iord in |erusalem, the heart of these people vill turn back to their
master, King Rehoboam of |udah; they vill kill me and go back to King
Rehoboam of |udah. So the king took counsel and made tvo golden calves.
He said to the people, \ou have been going up to |erusalem long enough.
This is your god, O Israel, vho brought you up from the land of Lgypt' He
set up one in Bethel and placed the other in Dan. That proved to be a cause
of guilt, for the people vent to vorship |the calf at Bethel and| the one at
Dan.
Laus Cou.eruiug the KiugII
). Mishnah Sanhedrin, Chapter :
!his is the Ra||iui. text most .losely approa.hiug .oustitutioual lau. It oes.ri|es the re
latious |etueeu the |asi. iustitutious oj the Israelite polity. the liug, the high priest, auo
the se:eutyoue mem|er 8auheoriu, or high .ourt (see ;;, auo ). By the time oj the
ual reoa.tiou oj the Mishuah, a .eutury auo a halj hao passeo siu.e the .ollapse oj the
Creat Re|elliou auo au e:eu louger time siu.e the loss oj jeuish so:ereiguty. 1hether
these laus ree.t auy histori.al realityHasmoueau or otherremaius uu.lear.
. The high priest judges and is subject to judgment; he testies, and testi-
mony is heard against him. . . .
. The king neither judges, nor is he subject to judgment; he neither
testies, nor is testimony heard against him. . . .
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Constitution ;
. He leads forth to optional var, as approved by the court of
seventy-one. He breaks through to make his highvay, vith no protest al-
loved; there is no xed measure for the kings highvay. |After a battle| the
people all loot and lay dovn |their booty| before him, and he takes rst
choice.
. He shall not have many vives |lest his heart go astray| (Deut.
;;)no more than eighteen. Rabbi \ehudah says He may have many, as
long as they do not lead his heart astray. Rabbi Shimon says Lven one |vife|
is forbidden if she leads his heart astray; if so, to vhat eect is it vritten, He
shall not have many vives|To exclude| even |vomen| like Abigail.
3
o. He shall not keep many horses (Deut. ;o) only those needed
for his chariot. Nor shall he amass silver and gold to excess (Deut. ;;)
only as much as is needed for sustaining the army.
He must vrite for himself a Torah scroll. When he goes forth to var,
he takes it forth vith him; vhen returning, he brings it vith him. When
he sits in judgment, it is vith him; vhen reclining |at meals|, it is opposite
him, as vritten, Iet it remain vith him, and let him read in it all his life
(Deut. ;,).
;. It is forbidden to ride on his horse, to sit on his throne, or to use
his scepter. It is forbidden to see him vhen he is having his hair cut, or vhen
he is naked or at the bathhouse; as vritten Set a king over yourself (Deut.
;)let his fear be upon you.
Kiug ^ot 8u|je.t to juogmeut. Compromise or Ioeal`
8. |T Sanhedrin :oa; BT Sanhedrin ,ab
!he jerusalem !almuo oers s.riptural grouuos jor |oth aspe.ts oj the mishuai. ex.lu
siou oj the liug jrom juogmeut (mishuah .., iu the pre:ious sele.tiou). !he jerusalem
!almuo tales it to |e jully appropriate that the liug is su|je.t ouly to Coo. Iu the
Ba|ylouiau !almuo, |y .outrast, the liugs exemptiou is raoi.ally reiuterpreteo. it re
. One of Davids vives, noted for leading him avay from evil deeds (see Sam. :).
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e.ts uo priu.iple |ut merely au uuhappy .ompromise oetermiueo |y experieu.e uith
auto.rati. mouar.hs. !his experieu.e is epitomi:eo iu a tale oj .oujroutatiou |etueeu
the 8auheoriu auo a Hasmoueau liug.
|T Sanhedrin :oa
Does |the king| not judge Is it not vritten, And David executed
justice and t:eoalah
4
for all his people (: Sam. :)
Is this conceivable |that justice and t:eoalah be executed simulta-
neously| Rather, he vould render a judgment, absolving the faultless and
nding against the liable; then if the liable party vere poor, he |David| vould
pay from his ovn assets. Thus he executed justice for one and t:eoalah for
the other. . . .
Nor is he subject to judgmentas implied by A prayer of David
. . . My judgment vill come from \ou |i.e., King David invites God alone
to judge him| (Ps. ;:).
BT Sanhedrin ,ab
The king neither judges, nor is he subject to judgment. . . . Rav
\osef said This refers only to the kings of Israel.
5
Kings of the house of
David, hovever, both judge and are subject to judgment. lor it is vritten,
O House of David, thus said the Iord Render just verdicts, morning by
morning ( |er. ::)and if they are not subject to judgment, hov can
they judge others lor . . . Resh Iakish expounded |thus| Lxamine yourself
and only then examine others'
Why then are the kings of Israel not |subject to judgment| Because
of a certain event.
. This biblical termderives froma root denoting justice. In Rabbinic usage, hovever, it means
charity.
. Here used as a generic term for non-Davidic monarchs, vhose reign is nevertheless legiti-
mate. Its initial reference vas to the kings of the Northern Kingdom of Israel comprising
the Ten Tribes, as distinct from the Southern Kingdom of |udea, vhere the Davidic dynasty
ruled in |erusalem. The Rabbis extended the term to include the Hasmonean dynasty. In the
Bible, the kings of Israel are commonly evaluated negatively.
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King \annais slave killed a person. Shimon b. Shatah said to |his
colleagues| the sages Set your eyes upon him, and let us judge him. They
sent him a message \our slave has killed a person. |\annai| dispatched the
slave |to appear| before them. They sent him a |further| message Come
here yourself as vell' |As vritten (Lxod. ::,)| And its ovner shall be ad-
monished, the Torah ordered that the ovner should come and stand over
his ox.
6
He came and took a seat. Shimon b. Shatah said to him King \an-
nai, stand on your feet and hear the testimony against you; and it is not before
us that you stand, but before Him vho spoke and brought the vorld into
beingas vritten, The tvo parties to the dispute shall stand before God
(Deut. ,;).
|\annai| ansvered, 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 \ou 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 vas established that the king neither judges, nor
is he subject to judgment; he neither testies, nor is testimony heard against
him.
Connentary. A Monarchic Constitution
The critical line in this sequence of texts is the Mishnahs dictum
The king neither judges, nor is he subject to judgment. Is this an accep-
tance of royal absolutism, or a piece of political realism, or a surrender to
royal pover The Babylonian Talmud suggests the last, and I vant to fol-
lov its argument and read this sequence of texts as the story of a failure to
incorporate kingship vithin a constitutional structure.
The Deuteronomist makes the rst attempt at incorporation he has
o. Talmudic lav takes this clause as requiring the ovners presence vhen testimony is heard
regarding the viciousness of an animal (see BT Bava Kama :a).
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o Kings
apparently had, or at least knovs about, a bad experience vith kingship, and,
as a result, he aims to place the king rmly under the lav. But his rmness
is moral, not political. The king is told that he is no more than rst among
equals; he must not raise himself above his brethren. He must accept the in-
struction of the priests and, as a symbol of that acceptance, carry the book
of the lav vith him and read it vherever he goes (note that more ordinary
and sedentary Israelites are told to vrite the lavs on the doorposts of their
houses and teach them to their children). Iimits are xed on the kings mar-
riages (dynastic alliances), his personal vealth, and his military strength. But
all this is mere exhortation; no institutions or ocials are described vho
can enforce the limits. In the discussion of judges and courts that immedi-
ately precedes our selection, the Deuteronomist says nothing that suggests
their jurisdiction over the king. What he presents is little more than an ideal
picture of a pious ruler.
By the time of the Babylonian Talmud, there is no |evish king, but
there remains a disagreeable memory of monarchyvhich nds a tvofold
expression in the text. lirst, there is a nev ideal picture, presented as an in-
terpretation of the Mishnah. Nov the king rules alongside and also vith
and through a high court, the Sanhedrinthe precise relation betveen the
tvo isnt clear (something, perhaps, like the king-in-parliament in British
constitutional history). The king (here the argument follovs the Mishnah)
is accorded the honor denied him in Deuteronomy, but he is also (here the
Mishnah is reread) placed vithin a set of institutional constraints. He par-
ticipates in the vork of the court, and he is subject to its judgments. But
this subjection depends on his ovn agreement the king is subject only if he
subjects himself, vhich only Davidic kings are imagined to do.
Second, the Mishnahs dictumhe doesnt judge, he isnt judged
is novdescribed as folloving from the sages experience vith a non-Davidic
(in fact, Hasmonean) king. When such a king dees the court, as \annai did
and as others are expected to do, the ideal structure collapses; there is no re-
straint at all on a ruler vho refuses to be restrained. Neither the rabbis of the
Mishnah nor the rabbis of the Talmud imagine the Sanhedrin holding out
against a tyrannical king. The Mishnah suggests that the Rabbis never aspired
to hold out; the |erusalem Talmud leaves the king to Gods judgment; the
Babylonian Talmud tells a tale of fearful vithdraval. What the rabbis have
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Constitution
learned from history, on this last reading, is their ovn poverlessness in the
face of the kingvhich may explain vhy many of them (see the midrashic
texts belov) vere hostile to kingship. It is as if the Deuteronomist had vrit-
ten at the end of chapter ; that because of Solomons foreign marriages and
his military buildup, the priests dont teach and the king doesnt read. The
surrender is complete.
Insofar as the kingdom is the model state for most |evish vriters,
and the king the model ruler, vhat this surrender amounts to is a vithdraval
of the religious and legal authoritiespriests, judges, and sagesfrom the
political realm. Since the biblical elders and people make no appearance here
at all, neither choosing nor even acclaiming kings and certainly not rebuking
them, there are no eective limits on monarchic rule. Alternative authority
structures are possible only vhen Israel is stateless. The central problem of
|evish political thinking is already evident here none of these vriters can
describe a kingdom, that is, a state, in vhich there are independent political
actors capable of controlling the king. |ust as the king rules only vhen God is
displaced, so priests, judges, and sages rule only vhen the king is displaced
vhen the people are living under foreign kings, as in Persian times, or in
exile. The politics of the fev (and later on of the many) is not constructed
against the one but in his absence.
Mi.hael 1al:er
!he Kiugs Irerogati:es
. BT Sanhedrin :ob
Iu the jouuoiug story oj the mouar.hy, 8amuel euumerates royal pouers uuoer the .ap
tiou the pra.ti.e ]mishpat oj the liug. !he He|reu mishpat .au also |e reuoereo
as lau, ou this reaoiug, 8amuel is pro.laimiug the lau oj liugs. Iu the jollouiug
talmuoi. text, a :ariety oj positious are .au:asseo as to the grouuos auo legitima.y oj
this lau.
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: Kings
Rav \ehudah said, citing Shmuel All items mentioned in the section about
the king |in the prophet Samuels speech ( Sam. :,:)| are the kings pre-
rogatives. Rav said The section about the king vas only pronounced in order
to scare them.
This |dispute| corresponds to a tannaitic dispute
Rabbi \ose says All items mentioned in the section about the king
are the kings prerogatives. Rabbi \ehudah says The section vas only pro-
nounced in order to scare them.
Rabbi \ehudah also used to say There vere three commandments
that Israel vere obligated to fulll once they had entered the land appoint-
ing a king, exterminating the ospring of Amalek,
7
and building the temple.
Rabbi Nehorai says The section vas only pronounced in response
to their complaints, as vritten, And you shall say, I vill set a king over me,
as do all the nations about me (Deut. ;).
Rabbi Lleazer b. Tzadok says The vise men |elders| of that genera-
tion made a proper request, as vritten |All the elders of Israel assembled
and came to Samuel . . . and they said to him,| . . . Appoint a king for us,
to govern us ( Sam. :). But the amme haaret: amongst them spoke
vrongly, as vritten, that ve may be like all the other nations ( Sam. :,
:o).
8.ope oj the Kiugs Irerogati:es
o. Menachem Meiri, Bet haBehirah, Sanhedrin :ob
Meiri here .ommeuts ou the pre.eoiug text, aooptiug auo expouuoiug the :ieu oj
8hmuel |ut also suggestiug some legal limits ou royal prerogati:e.
All |the items| that Samuel the prophet proclaimed to the nation in order to
varn them vhen they asked him for a king are the kings prerogatives. It is
vritten, He vill take your sons and appoint them as his charioteersthis
;. Cf. Deut. :;,.
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implies that he may send |representatives| to every corner of his kingdom
to select brave and competent men for vaging his vars. Additionally, |such
conscripts| run before him . . . and serve him. . . . He may also take crafts-
men for his vork and privately ovned animals for his ovn needs, as vritten,
He vill take your male and female slaves . . . and your asses, and put them
to vork for him.
Hovever, he must give |to the original ovners| their vages or their
value. It is also permissible for him to marry or to take as a concubine anyone
from among them as he pleases. He can also make some of them perfumers,
cooks, and bakers, as vritten He vill take your daughters to be perfumers,
cooks, and bakers. He may also take from among those vho are capable . . .
overseers over his ovn |property|. They vill be chiefs of thousands and
chiefs of fties, depending on their capabilities. At a time of var, he can also
take the produce of elds and vineyards, if they |the army| have nothing to
eat, as vritten, He vill take your elds, vineyards, and olive groves and give
them to his servants. Hovever, he must evaluate their vorth and reimburse
|their ovners|. He may also take a tithe from everything, as vritten He vill
take a tenth of your seed and your vineyards . . . he vill take a tenth of your
ocks. He is also permitted to levy a tax for his needs and for vaging his
vars according to their capacity and the pressure of his needs, as vritten,
They shall be for you a tributary and shall serve you (Deut. :o).
8
It is
illegal to steal from him anything vhich he took, since he has a right to it.
He also has a right to impose taris, and it is forbidden to smuggle.
A Cooe jor Kiugs
. Maimonides, MT Iavs of Kings :o; ;o; , o;
!he Cooe oj Maimouioes, Bool Iourteeu. !he Bool oj juoges, translated by AbrahamM. Hersh-
man, \ale |udaica Series (Nev Haven \ale University Press, ,,), pp. :, :;.
Maimouioes Laus oj Kiugs auo !heir 1ars represeut a uuique jeature oj his .ooe.
uulile other .ooiers, his Mishneh Torah eu.ompasses e:eu those su|je.ts oj hala-
:. lolloving Maimonides; see the next selection, .
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khah that oo uot apply iu preseut times. Heu.e the Laus oj Kiugs is to this oay
the sole .ompreheusi:e treatise iu jeuish lau regaroiug the mouar.hy. !he pau.ity oj
.lear Ra||iui. pre.eoeuts iu matters oj mouar.hy auo lau leaos Maimouioes to orau
hea:ily upou the |i|li.al politi.al history oj Israel. Au example is the story oj 8himei
the sou oj Cera iu : Kiugs ..
Chapter :
. The king has his hair trimmed every day, pays due regard to his
personal appearance, adorns himself vith beautiful clothesas it is vritten
Thine eyes shall see the king in his beauty (Isa. ;)sits on his throne in
his palace, sets his crovn on his head. All the people come before him vhen
he is disposed to see them, they stand in his presence, and bov dovn to the
ground. Lven the prophet stands in the presence of the king and bovs dovn
to the ground, as it is vritten Behold Nathan the prophet. And vhen he
vas come in before the king, he boved dovn before the king vith his face
to the ground ( Kings :).
The high priest, hovever, comes before the king only vhen he is
disposed to do it; he does not stand in his presence, but the king stands be-
fore him, as it is said And he shall stand before Lleazar the priest (Num.
:;:). Nevertheless, it is the duty of the high priest to give honor to the
king, to ask him to be seated, to rise before him vhen the latter comes to
see him. The king therefore shall not stand in his presence save vhen he asks
him for directions given by means of the Urim.
So. too, 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 is the vay |ehosha-
phat the King of |udah acted. When he sav even the disciple of a scholar, he
rose from his throne, kissed him, called him my teacher, my master. This
humble attitude becomes the king in the privacy of his home only, vhen
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.
o. |ust as Scripture accords great honor to the king and bids all pay
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him honor, so it bids him cultivate a humble and lovly spirit, as it is vritten
And my heart is humbled vithin me (Ps. o,::). He must not exercise his
authority in a supercilious manner, as it is said That his heart be not lifted
up above his brethren (Deut. ;:o). He should deal graciously and com-
passionately vith the small and the great, conduct their aairs in their best
interests, be vary of the honor of even the lovliest. When he addresses the
public collectively, he shall use gentle language, as did David vhen he said
Hear me, my brethren, and my people ( Chron. :::). It is also vritten, If
thou vilt be a servant unto this people this day . . . then they vill be thy ser-
vants forever ( Kings :;). At all times, his conduct should be marked by
a spirit of great humility. None vas greater than Moses, our teacher; yet he
said And vhat are ve \our murmurings are not against us (Lxod. o;).
He should put up vith the cumbrances, burdens, grumblings, and anger of
the people as a nursing father puts up vith a sucking child. The Bible styles
the king shepherd, |as it is vritten| To be shepherd over |acob His People
(Ps. ;:;). The vay in vhich a shepherd acts is explicitly stated in the pro-
phetic text even as a shepherd that feedeth his ock, that gathereth the
lambs in his arms, and carrieth them in his bosom and gently leadeth those
that give suck (Isa. o).
Chapter
;. We have already stated that the kings of the House of David may
be judged and testied against. But vith respect to the kings of Israel,
9
the
Rabbis enacted that they neither judge nor be judged, neither testify nor be
testied against, because they are arrogant, and (if they be treated as com-
moners) the cause of religion |oat| vould suer.
:. The king is empovered to put to death anyone vho rebels against
him. Lven if any of his subjects is ordered 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 cul-
pable, and the king may, if he so decides, put him to death, as it is vritten
Whosoever he be that shall rebel against thy commandment . . . shall be
put to death ( |osh. :).
,. See note above.
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o Kings
So, too, if one reviles him, or taunts him, as did Shimei, the son
of Gera, the king is empovered to condemn him to death. But the only
mode of execution vithin his jurisdiction is decapitation vith the svord.
10
To uphold his honor, the king is permitted to inict the penalties of impris-
onment and chastisement vith vhips. He may not, hovever, expropriate
the property of an oender. If he does, he is guilty of robbery.
,. Whoever disobeys a royal decree because he is engaged in the
performance of a religious command |mit::ah|, even if it be a light com-
mand, is not liable, because (vhen there is a conict) betveen the edict of
the Master (God) and the edict of the servant (the king), the former takes
precedence of the latter. It goes vithout saying that if the king issues an order
annulling a religious precept |mit::ah|, no heed is paid to it.
o. If a person kills another and there is no clear evidence, or if no
varning has been given him,
11
or there is only one vitness, or if one kills
accidentally a person vhom he hated, the king may, if the exigency of the
hour demands it, put himto death in order to insure the stability of the social
order |letaleu haolam|. He may put to death many oenders in one day, hang
them, and suer them to be hanging for a long time so as to put fear in the
hearts of others and break the pover of the vicked.
Chapter
. It is vithin the province of the king to levy taxes upon the people
for his ovn needs or for var purposes. He xes the customs duties, and it is
forbidden to evade them. He may issue a decree that vhoever dodges them
shall be punished either by conscation of his property or by death, as it is
vritten And ye shall be his servants ( Sam. :;). Llsevhere it is said
All the people found therein shall be tributary
12
unto thee, and shall serve
thee (Deut. :o). lrom these verses ve infer that the king imposes taxes
and xes customs duties and that all the lavs enacted by him vith regard
o. As opposed to the four modes of capital punishment of the court; see Mishnah Sanhedrin
;.
. See BT Sanhedrin ob, cited and expounded by Gerondi in o.
:. Hebrev lemas, vhich also means tax.
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to these and like matters are valid, for it is his prerogative to exercise all the
authority set forth in the section relating to the king.
13
o. All the land he conquers belongs to him. He may give thereof
to his servants and varriors as much as he vishes; he may keep thereof for
himself as much as he vishes. In all these matters he is the nal arbiter. But
vhatever 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 ll the vorld vith
righteousness, to break the arm of the vicked, and to ght the battles of the
Iord. The prime reason for appointing a king vas that he execute judgment
and vage var, as it is vritten And that our king may judge us, and go out
at our head and ght our battles ( Sam. ::o).
Chapter
. He may break through (private property) to make a road for him-
self, and none may protest against it. No limit can be prescribed for the kings
road; he expropriates as much as is needed. He does not have to make de-
tours because someones vineyard or eld (is in his vay). He takes the straight
route and attacks the enemy.
Critiques oj Mouar.hy
Critique oj the Request jor a Kiug
z. 8ijre Deuterouomy o
8ijre. A !auuaiti. Commeutary ou the Bool oj Deuterouomy, translated by Reuven Hammer,
\ale |udaica Series (Nev Haven \ale University Press, ,:o), p. ,.
!he jollouiug miorashi. statemeuts oe:elop a .ritique oj mouar.hy |y jo.usiug ou the
rst :erse oj the Deuterouomi. se.tiou ou liugs. Iu .outrast to Coos prououu.emeut,
taleu a|o:e to ree.t either .ommauomeut or permissiou, the jo.us here is the humau
iuitiati:e iu seeliug a liug, uhi.h is portrayeo iu :arious uegati:e uays.
. I.e., Sam. :. Maimonides is quoting BT Sanhedrin :ob ( :).
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And shalt say I vill set a king over me (Deut. ;) Rabbi Nehorai says
This is in disparagement of Israel, as it is said, lor they have not rejected
thee, but they have rejected Me, that I should not be king over them ( Sam.
:;). Rabbi |udah said But is it not a positive commandment in the Torah
itself that they should demand a king for themselves, as it is said, Thou
shalt in any vise set him king over thee (Deut. ;) Why then vere they
punished for doing so in the days of Samuel Because they initiated it pre-
maturely on their ovn.
Iike 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 ve also may be like all the nations; and that our
king may judge us, and go out at our head and ght our battles ( Sam.
::o).
Mouar.hy as Iolly auo 8iu
. Miorash Ra||ah. Deuterouomy, Shoftim :, ,,
This text is from the Sephardic version of the midrash; for a printed Hebrev version, see
Miorash De|arim Ra||ah, edited by S. Iieberman ( |erusalem Bamberger and Wahrmann,
,o).
:. Ij you say, I uill set a liug o:er me. . . .
The Holy One said to Israel My children, I endeavored that you
be free of the monarchy |mallhut|. Where |is this derived| from As vritten,
A vild ass used to the desert ( |er. ::) just as the vild ass grovs up in the
vilderness, vithout fear of humanity, so I intended you to be vithout fear of
monarchy. \ou, hovever, endeavored othervise snung the vind in her
eagerness ( |er. ::)vind signifying kingdoms |mallhuyot|. Where |is
this derived| from As vritten, I sav the four vinds of heaven, etc. (Dan.
;: ).
14
The Holy One said Do you think I did not knov that in the end
. This verse introduces Daniels vision of the four great beasts representing four great empires.
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you vill forsake Me |In anticipation| I already instructed Moses, saying
Seeing that in the end they vill seek a king of esh and blood, they should
appoint one of their ovn, not a foreigner. Where |is this derived| from
lrom vhat ve read in this section, If you say . . . be sure to set as king over
yourself one of your ovn people.
,. Another viev, Ij you say, I uill set a liug o:er me. . . . Impious
man reigns from the peoples folly ( |ob o). When kings arose over Israel
and began to enslave them, the Holy One said Was it not you vho forsook
Me to seek a king for yourselvesas vritten, I vill set a king over me.
Another viev, Ij you say, I uill set a liug o:er me. As Scripture says,
Put not your trust in the great, etc. (Ps. o). . . . Whenever one relies
upon esh and blood, as he fails so does his vord fail, as vritten, In mortal
man vho cannot save (Ps. o). What is vritten next His breath departs;
he returns to the dust; on that day his plans come to nothing (Ps. o).
The Holy One said Though they knov that esh and blood is nought, they
abandon My glory and say Set a king over us. Why do you seek a king By
your life, in the end you vill experience vhat befalls you under your kings,
as vritten, all their kings have fallennone of them calls to me (Hos. ;;).
. Another viev, Ij you say, I uill set a liug o:er me. The rabbis
say The Holy One said, In this vorld you sought kings, and the kings arose
and caused you to fall by the svord.Saul caused them to fall on Mount
Gilboa, as vritten, the men of Israel ed before the Philistines and fell on
Mount Gilboa ( Sam. ); David brought upon them a plague, as vritten,
The Iord sent a pestilence upon Israel (: Sam. :); Ahab caused them
to suer a drought, as vritten, there vill be no dev or rain ( Kings ;);
Zedekiah caused the destruction of the Temple. When Israel sav vhat befell
them because of their kings, they started screaming, We do not seek a king,
it is our rst king that ve seek' as vritten, lor the Iord shall be our ruler,
the Iord shall be our prince, the Iord shall be our king; he shall deliver us'
(Isa. ::). The Holy One replied So shall I do. As vritten, And the Iord
shall be king over all the earth (Zech. ,).
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Repu|li.au auo !heo.rati. Critiques
. Isaac Abravanel, Commeutary ou the Ieutateu.h, Deuteronomy ;
(Premises)
A|ra:auels .lassi. .ritique oj mouar.hy .om|iues tuo oistiu.t argumeuts, a .om|iuatiou
that pla.es it ou the liue, so to speal, |etueeu the Mioole Ages auo the Reuaissau.e.
Drauiug ou the Italiau repu|li.au traoitiou, A|ra:auel argues geuerally that mouar.hy
is uot the |est jorm oj go:erumeut. He theu returus to the parti.ular situatiou oj the
jeuish people auo reiterates the |i|li.al theo.rati. argumeut that all mouar.hi. juu.
tious iu Israel are ioeally perjormeo |y Coo. A|ra:auel uses the uoro shofet iu the
oiereut seuses oj magistrate, juoge, auo Romau .ousul throughout. 1e ha:e reuoereo
it a..oroiugly.
lirst, ve should establish vhether a king is a . . . necessity, indispensable for
a nation, or is he rather superuous. The philosophers have considered him
|necessary| The kings function for . . . political society is similar to the re-
lation of heart to body in an animal possessing a heart, or the relation of the
lirst Cause to the entire universe. Insofar as these scholars hold society to
require three things |that only monarchy provides|
a) unied pover, not shared;
b) permanence and the absence of change; and
c) absolute pover,
their viev concerning the indispensability of a king is surely vrong.
lor it is not impossible that a nation should have many leaders vho
convene, unite, and reach a consensus; they can thus govern and administer
justice. This refutes the rst requirement. Then also, vhy cannot they have
terms of oce, extending for one year or for three, similar to the term of a
hired vorker |see Isa. o|or even for a shorter duration When the turn
of other magistrates comes to replace them, they vill investigate the abuses
of trust committed by the earlier |magistrates|; those found guilty vill pay
for their crimes. This refutes the second requirement.
linally, vhy cannot their povers be limited and determined by
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divine lavs or |human| nomoi Reason suggests that |in a dispute| betveen
the one and the many, the many should be heeded.
15
lurthermore, it is more
likely that the one vill commit a crimeas vritten, The kings vrath is as
the messenger of death (Prov. o)than the many in concert, for vhen
one of them strays, the others vill protest. Additionally, since the rule |of
many| is temporary and they vill in the near future be held to account, the
fear of other human beings vill be upon them.
Indeed, vhy oer theoretical arguments Lxperience outveighs
inference' Iook and see the countries that are governed by kings, and com-
pare the several countries today governed by magistrates and temporary
rulers chosen fromamong them, and God the King is vith |the latter|. Theirs
is an elected government vithin set limits; they rule the nation vith a rm
hand and lead it in vars |and| none can stand |against| them. . . .
16
Have you
not heard of the great pover |Rome| that ruled the entire vorld . . . vhile
being governed by many excellent consuls serving temporary terms (even
though it later declined |and became a| monarchy) To this day, Venice, the
grand lady among nations and the princess among states (Iam. ), endures;
and the republic |mallhut| of llorence is a splendor among the nations; and
other states, great and small, have no king, but are rather ruled by governors
elected for xed terms. These states vith elected |magistrates| experience no
corruption or deceit, and no one there dares lift a nger to commit a crime.
They conquer |other countries| through skill, perspicacity, and knovledge.
All this shovs that a king is not necessary for a people, as is claimed
by Maimonides. It is astonishing that the adherents of this false vievliken the
unity of the king, derived from popular consent, to the unity of the eternal,
necessary, blessed lirst Cause. As for |the analogy| from animal physiology,
men of science have vritten that there are |in fact| three principal organs
that govern the body. . . .
A contrary proof should not be brought from the verse When
there is rebellion in the land, many are its princes (Prov. :::)since that
. Iiterally, the halalhah follovs the manya citation of the halakhic principle of majority
rule; cf. ;::.
o. Hebrev obscure.
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speaks of princes |i.e., nobles|, not rulers or magistrates. |Anyvay,| hov can
ve deny vhat is obvious to all If the rulers are good, it is better that there
be many; and if they are vicked, it is more dangerous |if there is only one|.
. . . |Nov, vhen the people initially appointed| kings, |they| vere
appointed only as trustees, to serve the people; they have |instead| become
lords, as though God had given the land and its fullness to them,
17
to be
bequeathed to their sons and their grandsons forever like privately acquired
property. Lven this does not hold equally in all kingdoms, as in some the
kings pover is limited.
Second, even if ve grant that the king is useful and necessary for
a people in order to perfect political society and protect it, nevertheless, in
regard to the Israelite people, this is not so for them he is neither useful nor
necessary. This is because kings are |presumed| necessary in a nation for three
reasons rst, concerning vars, in order to rescue |the people| fromtheir ene-
mies and defend their land; second, in order to ordain the lavs |uomoi | and
lay dovn the doctrines needed for their perfection; and third, to administer
punishment outside the lav according to the needs of the hour. . . .
These three things are not necessary for the Israelite nation. They
do not require |a king| for vars and for deliverance from their enemies, be-
cause Israel is delivered by God and He ghts for them, as it is vritten, O
happy Israel' Who is like you, a people delivered by the Iord, your protect-
ing Shield, your svord triumphant' \our enemies shall come cringing before
you, and you shall tread on their backs (Deut. :,). Besides, their judge
goes forth and leads them in vars, as vith |oshua, Gideon, Samuel, and the
other judges.
They also do not require a king to lay dovn doctrines and lavs, be-
cause Moses charged us vith the Torah (Deut. ). Moreover, God com-
manded us \ou shall not add anything |to vhat I commanded you|. . . . lor
vhat great nation is there that has a God so close at hand. . . . Or vhat great
nation has lavs and rules as perfect . . . (Deut. :, ;:). And a king of
Israel has no authority to innovate anything in the Torah nor to subtract from
it, as vritten concerning him He vill not deviate from the commandment
to the right or to the left (Deut. ;:o).
;. A bitter paraphrase of Ps. :, The earth is the Iords and all that it holds.
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Nor is a king required in Israel to punish |criminals| . . . in accor-
dance vith the needs of the hour, because God gave that authority to the
Great Court, the Sanhedrin, as I explained |elsevhere|. lurthermore, God
has informed us that if a judge vho acts in accordance vith . . . just lav
should acquit a vrongdoer, God Himself vill punish the vicked person vith
His great judgment, as it is vritten, Keep far from a false charge; do not
charge death on those vho are innocent and in the right, for I vill not acquit
the vrongdoer (Lxod. :;). This means, I vill punish him for anything
for vhich you are unable to punish him legally.
18
Thus, it has been explained that these three thingsthat is, deliv-
ering them through var, laying dovn lavs and commandments, and deter-
mining occasional punishment outside the lavare all performed by God
for His people. Therefore, God is their king, and they have no need for a
|human| king for anything.
|Here Abravanel cites prooftexts from various biblical sources
Lxod. :,, Isa. ::, and Ps. :;:.|
lrom all this, it is apparent that even if ve grant that a king is nec-
essary for other nations, he is inappropriate for the Israelite nation. This is
shovn all the more clearly by our experience vith the kings of Israel and
of |udea, vho vere among those vho rebelled against the light and turned
the hearts of Israel astray |cf. Kings :;|. This is vell knovn regard-
ing |eroboam son of Nebat and all the rest of the kings of Israel, and most
of the |udean kings, until on account of them |udah has gone into exile
(Iam. ). The opposite is evident regarding Israels judges and prophets
they vere all capable men vho fear God, trustvorthy men (Lxod. ::).
There vas not one of the judges vho strayed from God in order to vor-
ship other godsthe complete opposite of the kings vho of them avoided
|vorshiping other gods| All of this proves that government by magistrates
is good, vhereas government by kings is bad, harmful, and extremely dan-
gerous. . . .
On the basis of these tvo introductory comments, hearken to the
true interpretation of the section concerning the king (Deut. ;:o) and
the commandment therein. The verses When you come to the land, etc.,
:. lolloving Melhilta.
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imply no commandment, as God did not command that they should say that
nor ask for a king. Rather, it is a statement of vhat vill occur in the future
vhat you vill say after you arrive in the chosen land and conquer it, after
all the vars and the parceling out of the land, referred to in the phrase you
shall possess it and dvell in it. |God is saying| I knov that you vill be un-
grateful, saying of your ovn initiative, I vill set a king over me. |This vill|
not be motivated by the necessity of vars vith the nations nor conquest
of the land, since it vill have been conquered for you |by God|. The sole
purpose vill be in order to be like the nations vho appointed kings over
themselves. . . .
He then tells themthat once this has come to pass, they may not ap-
point this king hovever they vill, but rather |they must appoint| one vhom
God chooses from among their kinsmen. The true essence of the command-
ment consists in \ou shall appoint a king . . . one of your ovn people
not that He commands them to ask |for a king|.
Mouar.hy Is Cptioual
. Naphtali Tzvi |udah Berlin (Netziv), Haamel Da:ar, Deuteronomy
;
1ritiug iu tsarist Russia iu the late uiueteeuth .eutury, Berlius .ommeutary here .au
|e reao as au e.ho oj the ueu politi.al ioeologies pre:aleut iu Lurope. Berliu iuterprets
the |i|li.al .ommauo to appoiut a liug iu liue uith the |eliej that the jorm oj politi.al
authority shoulo |e oetermiueo |y the ueeos auo the uill oj the people.
If you shall say, etc.this does not refer literally to |their making such|
an announcement; rather, it should be read as in if you shall say I vill eat
meat . . . (Deut. ::o). This reading implies that there is no denite impera-
tive to appoint a king, but only a permission, as in the case of eating meat.
The Rabbis teachings, hovever, shov clearly that there is a commandment
to appoint a king; vhy, then, is it vritten, If you shall say |implying mere
permission|
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|The ansver|, it appears, is that there is a dierence betveen gov-
ernment by monarchy and government by the people and their representa-
tives. Some states cannot tolerate a monarchic regime, vhereas others, vith-
out a monarch, vould be like a ship vithout a captain. An issue like this
cannot be decided by the binding force of a positive commandment. lor
matters of collective policy involve |dealing vith| life-threatening situations
in vhich positive commandments are overridden. Therefore, there can be
no denite imperative to appoint a king, as long as the people have not con-
sented to the monarchic yoke through seeing the surrounding nations being
governed more adequately |by kings|. Only then is there a positive com-
mandment upon the Sanhedrin to appoint a king. . . . It is for this reason
that for three hundred years, vhile the tabernacle resided at Shilo, there vas
no king, |i.e.,| for lack of the peoples consent.
Iike all the nations around me This does not refer to their lavs,
for ve are prohibited from abandoning the lavs of the Torahhence Gods
anger vith Israel in the days of Samuel, vhen they said, And our King shall
judge us like all the nations . . . ( Sam. ::o).
Neither does |the comparison to the nations| refer to matters of
international varfare, for this too angered God, and he said to Samuel It
is not you that they have rejected; it is Me they have rejected as their king
( Sam. :;). This means They did not seek |to be like the nations| vith
regard to the lavsvhich vould aect Samuelbut rather vith regard to
varfare. lor throughout the period of the |udges they had been vithout
a permanent overseer of national security,
19
having |to avait| Gods vord
through a |udge. They novvanted a king to oversee this, thus angering God.
The verse like all the nations around me therefore refers to the
|form of | government. As I have explained, this is a matter in vhich peoples
opinions dier . . . ; hence there is a requirement of popular consent if you
shall say. etc.
,. Iiterally, necessities pertaining to international varfare.
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!he Realm oj !orah auo the Realm oj Ioliti.s
Royal Lau Complemeuts !orah Lau
. Nissim Gerondi (Ran), Derashot
We have beneted from Ieon A. leldmans edition of the Derashot ( |erusalem Shalem
Institute, ,;).
Here is the most iuterestiug meoie:al expositiou oj a theory oj separatiou oj pouers. Iu
this sermou Cerouoi .arries joruaro the mishuai. oi.tum that the liug ueither juoges,
uor is he su|je.t to juogmeut. He pro:ioes a justi.atiou jor royal autouomy :is:is
the halakhah |aseo ou au argumeut s .ou.eruiug the authority |ut also the limitatious
oj oi:iue lau. !he sermou may |e reao as au attempt to oe:elop systemati.ally the .ou
sequeu.es oj the legislati:e autouomy oj the kahal (see ;:). Cerouoi uas a leaoer oj
the Bar.eloua .ommuuity. His :ieus may also ree.t the separatiou |etueeu royal auo
.auou lau iu Christiau 8paiu.
\ou shall appoint magistrates and ocers . . . and they shall judge the people
by just lav (Deut. o:). . . . The plain meaning of the text is as follovs.
It is knovn that the human species needs magistrates to adjudicate among
individuals, for othervise men vould eat each other alive (Avot :), and
humanity vould be destroyed. Lvery nation needs some sort of political
organization | yishu: meoiui | for this purpose, since as the vise man put
iteven a gang of thieves vill subscribe to justice among themselves.
20
Israel, like any other nation, needs this as vell. Moreover, Israel needs it for
another reason to uphold the lavs of the Torah and punish those vho de-
serve ogging or capital punishment for disobeying these lavs, even if their
transgression in no vay undermines political order. Clearly, these |purposes|
give rise to tvo possible issues rst, the need to punish in keeping vith true
lav; second, the need to punish so as to enhance political order |tilluu seoer
meoiui | and in accordance vith the needs of the hour, even if the punish-
ment is undeserved according to truly just lav. God, may He be blessed, set
these tvo issues apart, delegating them each to a separate agency
|| He commanded that magistrates be appointed to judge accord-
:o. See Plato, Repu|li., c; and Halevi, Ku:ari :: (;:, ).
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Torah and Politics ;
ing to the truly just lav, as it is vritten, And they shall judge the people
by just lav. In other vords, the verse tells us that He set forth the purpose
of their appointment and the scope of their authority they vere appointed
to judge the people according to a lav that vas in itself truly just and their
jurisdiction is not to exceed that.
|:| But since political order cannot be fully established by these
means alone, God provided further for its establishment by commanding
|the appointment of | a king.
We may clarify this by considering one of the above-mentioned
purposes. We read in the fth chapter of tractate Sanhedrin Our Rabbis
taught |The folloving questions are asked of a vitness in a capital case| Do
you knov him . . . Did you varn him Did he conrm your varning Did
he accept his liability to death Did he commit the murder immediately
etc. (BT Sanhedrin ob). There can be no doubt that this is required by just
lav, for vhy should a man be put to death unless he vas avare that he vas
committing a capital oence and |nevertheless| transgressed Therefore it is
requisite that he conrmand accept a varning, along vith the other require-
ments mentioned there. This is the lav, intrinsically and truly just, that is en-
trusted to the judges. Hovever, punishing criminals in this vay alone vould
completely undermine political order murderers vould multiply, having no
fear of punishment.
21
That is vhy God ordered the appointment of a king
for the sake of civilization. Thus, ve read . . . , When you come to the
land . . . you may indeed set as a king over you . . . (Deut. ;), vhich,
according to the Rabbis tradition, is the commandment to appoint a king.
The king may impose a sentence as he deems necessary for political asso-
ciation |hali||ut: hameoiui |, even vhen no varning has been given. The
appointment of a king is equally essential for Israel and all nations requiring
political order, but the appointment of magistrates is of particular impor-
tance in the case of Israel. So the text emphasizes And they shall judge the
people by just lavi.e., the appointment and jurisdiction of magistrates
pertain to judging the people according to lavs intrinsically truly just.
|Unlike| the nomoi of the nations of the vorld, the lavs and com-
:. Alluding to Mishnah Makkot o (;:).
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: Kings
mandments of our Torah . . . include commandments that are ultimately not
concerned vith political order. Rather, their eect is to induce the appear-
ance of the divine euence vithin our nation and |to make it| cleave unto us.
This may be either by means that are clear to us, such as sacrices and other
Temple activities, or by means unclear to us, such as the lavs vhose purpose
has not been revealed |hullim|. In any case, there can be no doubt that these
lavs, although far from rational comprehension, induced the divine eu-
ence to cleave unto us. The causes of many natural phenomena are incom-
prehensible to us, yet their existence is veriable, so it is certainly not strange
that the causes of the divine euence . . . should be incomprehensible. Our
Holy Torah is unique among the nomoi of the nations, vhich reect no such
considerations and are instead concerned solely vith enhancing the aairs
of their society.
Therefore I maintainand so one ought to believethat vhile the
hullim are not relevant at all to the establishment of the political associa-
tion . . . , the mishpatim are in fact crucial to it, and it is as if they serve both
to bring dovn the divine euence and to perfect our public aairs. But per-
haps these |latter| lavs are |also| addressed primarily to the more sublime
matters rather than to the perfection of society, since our appointed king
|has that task|. The purpose of the magistrates and the Sanhedrin, by contrast
|to the king|, vas to judge the people in accordance vith true and intrinsi-
cally just lav, vhich vill eect the cleaving of the Divine |iuyau elohi | unto
us, vhether or not the ordering of the multitudes aairs has been perfected.
That is vhy some of the lavs and procedures of the |gentile| nations may
be more eective in enhancing political order than some of the Torahs lavs.
This, hovever, does not leave us decient, since any deciency regarding
political order vas corrected by the king. Indeed, ve have a great advantage
over the nations because the lavs of the Torah are inherently just . . . , the
divine euence vill be induced to cleave unto us. That is vhy the supreme
magistrates vere located in that place vhere the presence of the divine eu-
ence vas evident I mean the assembly of the Sanhedrin
22
in the Chamber
of Hevn Stones. . . .
::. Iiterally, the Men of the Great Assembly; Gerondi alludes to Mishnah Sanhedrin : (;;,
,).
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Torah and Politics ,
In the same vein, the Rabbis said in the rst chapter of tractate Shab-
bat A magistrate vho judges truly, a judgement of truth, even one hour per
day, is regarded as a partner in creation vith God (BT Shabbat oa). . . . |ust
as, in creation, the divine euence appeared at the mundane levelsince
it vas the source of all beingso too a magistrate vho judges truly dravs
dovn that euence, vhether or not his judgment perfects the order of the
polity. |ust as it is dravn dovn by the sacricial rites . . . so too does it ov
because of the Torah lavs. Admittedly, for the sake of political order further
enhancement is required, vhich is |the task of the king|. Thus, the judges
vere appointed to judge only according to the lavs of the Torah, vhich are
inherently just, . . . and the king vas appointed to perfect the political order
and |to meet| the needs of the hour.
Do not cite against my argument the passage in tractate Sanhedrin
It has been taught Rabbi Lliezer b. |acob says I have a tradition that a
court may impose agellation and |other| punishments not |varranted| by
the Torah; not to transgress against the vords of the Torah, but rather to
make a hedge for the Torah (BT Sanhedrin oa).
23
This seems to imply that
the court vas appointed to render judgements as the times require. Hov-
ever, this is not the case at a time vhen Israel had both Sanhedrin and king,
the Sanhedrins role vas to judge the people according to just lav only and
not to order their aairs in any vay beyond this, unless the king delegated
his povers to them. Hovever, vhen Israel has no monarchy, the magistrate
holds both kinds of pover, that of the judge and that of the king. . . .
This vas Israels sin in asking for a monarchy, vhich many earlier
|scholars| have found problematicsince the people had been commanded
to appoint a king. . . . I believe their sin consisted in vanting adjudica-
tion betveen persons to be mainly the charge of the monarch. We read All
the elders of Israel assembled and came to Samuel at Ramah, and they said
to him, \ou have grovn old, and your sons have not folloved your vays.
Therefore appoint a king for us, to judge us like all other nations ( Sam
:). . . . Israel vas more interested in enhancing its 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 aairs, they vould
:. See ;:.
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oo Kings
have committed no sin. In fact, it vould have been a |virtuous act|. Their
sin lay in saying Appoint for us a king to juoge us like all the nations. They
vanted adjudication to be the charge of the monarchy, rather than of Torah
judges. . . . That is vhy God told Samuel It is not you that they have re-
jected; it is Me they have rejected as their king (:;)vhich is to say, they
preferred to enhance their natural aairs rather than to bring the divine eu-
ence dovn upon themselves. . . . lor this Samuel reproved them aftervards,
saying Nov stand by and see the marvelous thing that the Iord vill do
before your eyes. It is the season of the vheat harvest. I vill pray to the Iord
and He vill send thunder and rain (:o;). This means Knov that you
have erred in choosing something vhich, although it appears to you to be
correct, |namely| the ordering of natural things, is not truly so. lor one vho
cleaves to the Divine |iuyau elohi | can alter natural things at vill. It is the
season of the vheat harvest, vhich by vay of natural things is not the right
time for rain. \et, by virtue of the Divine that cleaves unto me, I vill call
upon the Iord and change this, and He vill send thunder and rain.
Therefore, |Samuel continues,| it is more tting for you to prefer
that vhich induces the divine euence amongst younamely, |to prefer|
adjudication by the magistrates, of vhom it is vritten, And they shall judge
the people by just lavover adjudication by the monarch vherein he de-
cides according to his ovn vill. lor this is the dierence betveen magistrate
and king the magistrate is more bound to the Torahs lavs than is the king.
That is vhy the king vas admonished and commanded to keep a copy of
the Torah by his side. . . . Since the king sees that he is not bound to Torah
lav 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 tovard
his fellovs, in viev of the great pover God has given him. The magistrate,
hovever, requires no such admonition, since his pover is restricted by the
scope of Torah lav alone, as it is vritten, And they shall judge the people
by just lav. He is admonished, . . . \ou shall not deviate from justice.
. . . |Nov| if the king annuls any commandment for the sake of ad-
dressing |the needs of | his time, he should have no intention of transgressing
against the vords of the Torah nor in any vay removing the yoke of the fear
of God. Rather, his intention should be to observe faithfully every vord of
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Torah and Politics o
this Teaching as vell as these lavs. Anything he adds or takes avay
24
must
be done vith the intention of furthering the observance of the Torah and
its commandments. lor example, in the case ve have cited concerning the
execution of a murderer vithout vitnesses or varning, the kings intention
must not be to demonstrate his pover to the people by shoving them that
this too is under his domain. Rather, his intention should be to advance the
realization of the commandment \ou shall not murder (Lxod. :o) and
prevent its disregard.
Since his pover is mighty and induces arrogance, God admonishes
|the king| not to act haughtily tovard his fellovs (Deut. ;:o). . . . It is
vell knovn that kingship is not a quality inherent in the king. It is rather
granted to him by God, blessed be He, or by the people, for the purpose
of perfecting the people, |not|
25
for his personal enhancement. . . . King-
ship is not inherent in the king, but an attribute conferred upon him for
the strengthening of the vhole. Therefore, the king should not see himself
as the governor and lord of the people, but as a servant unto them for their
benet.
Connentary. The Price of Politics
Gerondis statement on politics brings to a climax a long tradition
that places politics alongside, indeed outside, divine lav. This tradition can
be traced from the biblical distinction betveen matters of the Iord and
matters of the king (: Chron. ,), through the mishnaic statement that
the king neither judges, nor is . . . subject to judgment (Sanhedrin :
|;|), dovn to the broad range of legislative and executive povers allotted
to the good men of the city by medieval halakhic authorities (;:).
Writers in this tradition identify politics as a distinct realm of hu-
man activity separate from halakhic decision making. Whatever the ner
details of the constitutional directives in this chapter, they are all predicated
:. An ironic allusion is intended here to the very commandment vhich is overridden Neither
add to it nor take avay from it (Deut. ).
:. The text reads or, evidently an error.
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o: Kings
on a distinction betveen the king and his realm (politics) on the one hand
and the courts of divine lavand their realm (lav) on the other. The tradition
further assumes the kings capacity for prudence and, insofar as royal judg-
ments are perceived to further justice, for morality too, independently of the
directives of divine lav The human species needs magistrates to adjudicate
among its individuals for othervise men vould eat each other alive (Avot
:), and humanity vould be destroyed. All this in contradistinction to the
arguments put forvard by thinkers like |udah Halevivho justied revealed
lav by questioning the adequacy of human moral judgment (;:, ).
In short, this tradition can be characterized as a secularization of
politics. Politics is recognized as a non-theocratic, this-vorldly activity
geared to the better ordering of human society (tilluu meoiui, sioour meoiui );
and human beings are recognized as competent political agents. Both gentile
and |ev are equal in their need for politics and their capacity for it Lvery
nation needs some sort of political organization . . . Israel, like any other
nation, needs this as vell. So the comparison betveen Israel and all other
nations ( Sam. :), vhich underlay the peoples original request for monar-
chy, is a positive comparison it describes and legitimizes vhat is necessary
for human beings.
Gerondis unique contribution to this secularizing tradition lies in
the theoretical underpinning that he provides for it. Human politics is justi-
ed by means of a conception of the limits of divine lav. The Torah, Gerondi
argues, is so sensitive to the demands of absolute justice that it renders itself
inapplicable to the real needs of the here and novthe needs of the hour.
Since, therefore, political order cannot be fully established by |the Torah|
alone, God provided further for its establishment by commanding |the ap-
pointment of | a king. Politics begins vhere divine lav ends.
Moreover, Gerondi argues that at a time vhen Israel had both San-
hedrin and king, the Sanhedrins role vas to judge the people according to
just lav|i.e., divine lav| only and not to order their aairs in any vay beyond
this, unless the king delegated his povers to them. Gerondi has in mind
the kind of povers described by Maimonides, according to vhich the king
may put to death many oenders in one day, hang them, and suer them
to |remain| hanging for a long time so as to put fear in the hearts of others
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Torah and Politics o
and break the pover of the vicked (Kings o | above|). These preroga-
tives establish the kings pivotal political role. (Recall Iockes denition of
political pover as the right of making lavs vith penalties of death |8e.ouo
!reatise oj Co:erumeut, chap. |.) On Gerondis viev, the kings authority to
order society is more fundamental than that of the Sanhedrin, vhich is only
derivative.
But vhat is the price paid for this manner of vindicating politics
A primary purpose of lav is, no doubt, to order society; and a lav decient
in this matter, even if it is divine, needs remedial supplements. But lav has
another function too, and that is to limit the arbitrariness of pover. Hov,
then, is the kings pover to be limited Gerondi explains that the peoples sin
at the time of Samuel consisted in vanting adjudication betveen persons
to be mainly the charge of the monarch. But he fails to explain hov exactly
the king and the Sanhedrin are to operate side by side given their overlap-
ping domains, or hov the kings pover can be limited given the precedence
accorded to his legal authority.
Lven more troubling is the veight allotted to the argument from
necessity in Gerondis legitimation of politics. What are the limits of the
necessary Isnt this argumenta vell-knovn rationalization of injustice
dangerous Without adequate ansvers to these questions, Gerondi might be
only a step avay from a Machiavellian conception of politics as the duty to
do vhatever is necessary to preserve the political order.
When the safety of ones country vholly depends on the deci-
sion to be taken, Machiavelli argues, no attention should be paid either to
justice or injustice, to kindness or cruelty, or to its being praisevorthy or
ignominious. On the contrary, every other consideration being set aside, the
alternative should be vholeheartedly adopted vhich vill save the life and
preserve the freedom of ones country (Dis.ourses III, ed. Bernard Crick,
using the translation of Ieslie |. Walker, vith revisions by Brian Richardson).
Machiavellis Iriu.e can be read as an illustration of the kind of politics this
advice entails if ve assume that the survival of the country really depends on
the prince and his policies and accept a Machiavellian conception of human
nature. Gerondi does not provide sucient constraints on this kind of poli-
tics. Idealizing divine lav does not seem to enable it to curb the claims of
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o Kings
necessity. Neither does his nal admonition that kingship is not inherent
in the king, but an attribute conferred upon him for the strengthening of
the vhole. Therefore, the king should not see himself as the governor and
lord of the people, but as a servant unto them for their benet. The pious
prince is, after all, nothing but a good servant holding the interests of the
community and its pressing needs of the hour close to his heart. But do
his good intentions guarantee that he vill act vell
I am not arguing that Gerondi vas a Machiavellian but rather try-
ing to drav attention to the insuciency of the constraints he provides
vhile carving out the space he deems necessary for politics. It is important
to notice, hovever, that theocratic politics does not fare much better. Spi-
nozas critique of theocracy alerts us to the fact that divine politics is alvays
in need of human representatives. What can constrain a person vho claims
his policy is required by necessityor commanded by God
Better constitutional arrangements are needed than those described
in this chapter. The main interest in establishing those arrangements is to
preserve the integrity of divine lav in face of the dangers of political pover
the kings of Israel are not subject to judgment because of a certain event
(BT Sanhedrin ,a, : above)namely, the destruction of the Sanhedrin
brought about by King \annai. But if lav is to restrain political pover, it
cannot remain outside the political realm. Therefore, if ve accept Gerondis
rm conviction of the necessity of an autonomous leadership, ve cannot es-
cape the need for a full and independent royal lav. This lav must be rmly
rooted in political life; it must determine the distribution of pover in society
and delineate the boundaries of necessity.
It is for this reason that Herzog (;o, :) nds Gerondis position
unacceptable. Gerondis arguments bequeath future rabbis a cruel dilemma
They may either reject the eort to create an independent royal lav and
thereby assume the riskto society and to themselvesof dealing vith
tyrants like \annai or they may espouse the distinction betveen civil and
religious lav, and further deepen it, vhile sacricing the ideal of an all-
encompassing divine lav.
Gods line in Samuel Heed their demands and appoint a king
for them suggests the inevitability of this sacrice. The biblical story of
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Torah and Politics o
the creation of the monarchy as Gerondi interprets it leads us to restate
the dilemma The central question of |evish political theory should not be
vhether to choose a secular or a theocratic state but rather hov to drav the
line betveen the secular and the sacred. Acknovledging the role of the secu-
lar, hovever, involves setting limits to it in the form of constitutional lav.
Meua.hem Lor|er|aum
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r ot r Priests
Introduction
In the Bible: Holy Priests
A Kiugoom oj Iriests
. Lxodus ,o
Couse.ratiou oj Aarou
:. Lxodus :::; o
Day oj AtouemeutIriest as Iutermeoiary
. Ieviticus o
Royal !respass iu the 8au.tuary
. : Chronicles :oo:
!he Loro Is !heir Iortiou
. Deuteronomy :
Iriest as juoge
o. Deuteronomy ;:
Iriest as !ea.her
;. Deuteronomy :, o
Commentary. \air Iorberbaum, The Place of the Priest
Atta.liug Corrupt Iriests
:. Malachi :,
Apoliti.al Iriesthooo
,. Baruch Spinoza, !heologi.alIoliti.al !reatise, Chapter ;
lhe Second lenple: Ruling Priests
!he 8pleuoor oj the High Iriest
o. !he 1isoom oj Beu 8ira o:o; o:
oo
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Introduction o;
High Iriest auo Iriu.e
. Maccabees :,
!heo.ra.y
:. |osephus, Coutra Apiou IIoo;, ::,, ,,
Commentary. Cliord Orvin, llavius |osephus on Priesthood
Fron Priests to Sages
Do as 1e !ell You
. Mishnah \oma, Chapter
Ra||i 1ersus Iriest
. BT \oma ;b
8.holarship 1ersus Iriesthooo
. Mishnah Horayot o:
Iutroou.tiou
Until modern times, theocracy vas standardly listed as one of the
possible political regimes or forms of government. But it vas alvays an in-
determinate form Who actually ruled vhen God ruled God can govern
a human community only through intermediaries (this is one of the main
points of Spinozas critical reading of the biblical texts; see ;, , and
belov, ,) a single person or group or a number of dierent people vho
plausibly claim to have been chosen by him or to have access to his reason or
vill. In the biblical texts, as ve sav in the last chapter, the most important
political intermediaries of this sort vere the shojtim ( judges), vhose inter-
mittent rule, hovever, left a lot of room for the anarchic self-rule of the
people. When God did not raise up saviors for Israel, his kingdom had no
visible form of government at all, no established institutions, no authorized
agents.
But there is another understanding of theocracy, and another group
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of Israelites stands poised to serve as political intermediaries, not in an inter-
mittent but in a steady and routinized vay the priests. Their status is heredi-
tary, carried in the male line, like that of kings. But they have a more obvi-
ous divine connection, deriving from their function rather than their blood,
manifest in the performance of the all-important temple ritual that binds
God to Israel and ensures his presence in |erusalem. In any religion vhere
priests play this kind of mediating role betveen God and humanity, hu-
manity is likely to nd itself ruled by its mediators. At least, priests vill stake
their claim, as in medieval Christianity, to theocratic legitimacy; vhether the
claim prevails vill depend on the nature and strength of the lay opposition.
The biblical account of priestly tasks does not extend to ruling (as
Spinoza makes clear in the selection belov), although it does include teach-
ing and interpreting the lav, as vell as providing oracles and legal deci-
sions, an activity that is sometimes broadly described, sometimes limited to
divine matters (as distinct from the kings matters; see : Chron. ,). It
is prophets rather than priests vho challenge and rebuke kings, defending
both morality and religion; the priests seem to defend only their temple turf,
as in the story of Uzziah and Azariah in Selection . But the prophets do not
claim any kind of political oce, vhereas the priesthood is a centrally im-
portant oce, coexisting vith monarchy in vhat is usually, but not alvays,
a subordinate position.
When |evs in Babylonia during the rst exile imagined a constitu-
tional regime for the promised restoration, they looked for a king and a high
priest sitting side by side, their relative authority unclear. Zechariah o (not
included here because the text is obscure and its meaning disputed) seems
to describe an attempt at a double crovning of the tvo after the end of the
exile, but the vould-be king, the Davidic heir Zerubabel, has disappeared
both from the text and from historical viev Take silver and gold and make
crovns, says the prophet. Place |one| on the head of High Priest |oshua
son of |ehozadak, and say to him, Thus said the Iord of Hosts. . . . There
is no parallel instruction for placing the second crovn on the head of the
king; it has, as it vere, fallen out of the text that has come dovn to us. But
the prophecy that follovs refers to king and priest together He shall build
the Temple of the Iord and assume majesty, and he shall sit on his throne
and rule. And there shall also be a priest seated on his throne |Septuagint on
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Introduction o,
his right hand|, and harmonious understanding shall prevail betveen them
(Zech. o).
In the absence of the king, harmonious understandingnever easy
to achievevas not necessary. Throughout the Second Temple period, |udea
vas eectively ruled by its high priests alone, vith vhatever counsel they
required from the locally rich and famoussubject alvays, of course, to the
various imperial governments. Indeed, it vas imperialism that made priestly
rule possible; the disappearance of Zerubabel vas probably Persian vork.
There never vas a full restoration, no return of Davidic kings, and until
the Hasmonean revolt there vas nothing like political independence or rec-
ognized lay leadershiphence no political opposition could be mounted
against Israels experiment vith priestly theocracy. Lven after the Hasmo-
neans took the royal title, they retained the priestly oce on vhichsince
they could make no claim to Davidic descenttheir legitimacy depended.
It doesnt appear that any of the priests ever sat dovn and vrote
out a theoretical justication of the Second Temple regime. But |osephus,
himself of a priestly family, provides us vith a strongly favorable, if brief, ac-
count of it in its last days under the name theocracyapparently the rst
use of the term. Almost three centuries earlier, sometime around :o i.c.r.,
Simeon Ben Sira had painted a richly textured verbal portrait of the high
priest of his ovn time, Simon the |ust, son of Onias, in all his material and
spiritual splendor he is clearly conceived as a kind of king. Simons is the
culminating portrait in the section of Ben Siras book that begins, Iet us
nov praise famous |or pious| men (chaps. o).
The priestly privileges and povers reected in these texts from the
biblical and Second Temple periods later became the subjects of Rabbinic
criticism. Lven before ;o c.r., the Pharisees had probably begun to question
the ideas of priestly mediation and rule. Their arguments can be found in
mishnaic and talmudic texts denying the Sadducean claim that the priests are
the true custodians of the Torah. The contrasting vievs of priestly and rab-
binic roles are represented here by the accounts of the \om Kippur temple
service in the biblical book of Ieviticus and in Mishnah \oma. In the rst,
the high priest stands by himself as mediator, representing the highest level
of holiness possible for a human being. In the second, the high priest enacts
the ritual only vith the coaching, as it vere, of a committee of sages. We can
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;o Priests
be sure of the priests ritual purity and his proper performance of the service
only if he is closely vatched and admonished by legal experts. In the Israel
of Mishnah \oma, the learned rule over the holy, for only the learned knov
the rules of holiness.
Of course, it vas the Romans, and not any group of |evish reform-
ers, vho destroyed the |udaism of the priests. The Rabbis needed to vorry
only about the lingering prestige and status of the old priestly families. And
once they had von their battle to establish lav and legal interpretation as
the central features of |evish self-government, priestly theocracy ceased to
be an issue in |evish life. Although the claims of the Rabbis are sometimes
characterized as theocratic, they have in fact a very dierent form. As ve vill
see in Chapter o, the Rabbis give a radically nev account of vhat it means
to teach Gods lav, an account in vhich study and argument play a far larger
part than they ever did in the self-understanding of the priests.
Iu the Bi|le. Holy Iriests
1e |egiu uith the pream|le to the 8iuai re:elatiou as a |a.lorop jor oepi.tiug the
priestly juu.tious iu the Israelite polity. !he :erses oes.ri|e the ele.tiou oj Israel as a
liugoom oj priests. 1hat pre.isely this meaus auo hou it might |e squareo uith the
jurther ele.tiou oj the meu oj a parti.ular jamily as priests, oes.ri|eo |elou, has |eeu
mu.h oe|ateo. Iu Chapter :. ue reproou.e the argumeut oj Korah (^um. :), uho
alluoes to this text iu his atta.l upou the priestly hierar.hy.
A Kiugoom oj Iriests
. Lxodus ,o
On the third nev moon after the Israelites had gone forth from
the land of Lgypt, on that very day, they entered the vilderness of Sinai.
Having journeyed from Rephidim, they entered the vilderness of Sinai and
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Holy Priests ;
encamped in the vilderness. Israel encamped there in front of the mountain,
and Moses vent up to God. The Iord called to him from the mountain, say-
ing, Thus shall you say to the house of |acob and declare to the children of
Israel \ou have seen vhat I did to the Lgyptians, hov I bore you on eagles
vings and brought you to Me. Nov then, if you vill obey Me faithfully
and keep My covenant, you shall be My treasured possession among all the
peoples. Indeed, all the earth is Mine, but you shall be to Me a kingdom of
priests and a holy nation. These are the vords that you shall speak to the
children of Israel.
Couse.ratiou oj Aarou
z. Lxodus :::; o
\ou shall bring forvard your brother Aaron, vith his sons, from
among the Israelites, to serve Me as priests Aaron, Nadab and Abihu, Lleazar
and Ithamar, the sons of Aaron. Make sacral vestments for your brother
Aaron, for dignity and adornment. . . .
Put the sacral vestments on Aaron, and anoint him and consecrate
him, that he may serve Me as priest. Then bring his sons forvard, put tu-
nics on them, and anoint them as you have anointed their father, that they
may serve Me as priests. This their anointing shall serve them for everlasting
priesthood throughout the ages.
Day oj AtouemeutIriest as Iutermeoiary
. Ieviticus o
!his .hapter oj Le:iti.us oes.ri|es the Yom Kippur rituals, uhi.h epitomi:e the high
priests role iu maiutaiuiug the relatiouship |etueeu Coo auo Israel. |pou euteriug the
holy oj holies oj the teut oj meetiug auo later oj the !emple |uiloiug, the high priest
a.hie:es a uuique iutima.y uith Coo, he theu males atouemeut jor all the sius oj the
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;: Priests
people. A high poiut iu the traoitioual Yom Kippur syuagogue ser:i.e is the liturgi.al
reeua.tmeut oj this oramati. ritual.
The Iord spoke to Moses after the death of the tvo sons of Aaron vho died
vhen they drev too close to the presence of the Iord. The Iord said to
Moses
Tell your brother Aaron that he is not to come at vill into the
Shrine behind the curtain, in front of the cover that is upon the ark, lest he
die; for I appear in the cloud over the cover. Thus only shall Aaron enter
the Shrine vith a bull of the herd for a sin oering and a ram for a burnt
oering. He shall be dressed in a sacral linen tunic, vith linen breeches next
to his esh, and be girt vith a linen sash, and he shall vear a linen turban.
They are sacral vestments; he shall bathe his body in vater and then put them
on. And from the Israelite community he shall take tvo he-goats for a sin
oering and a ram for a burnt oering.
Aaron is to oer his ovn bull of sin oering, to make expiation
for himself and for his household. Aaron shall take the tvo he-goats and
let them stand before the Iord at the entrance of the Tent of Meeting; and
he shall place lots upon the tvo goats, one marked for the Iord and other
marked for Azazel. Aaron shall bring forvard the goat designated by lot for
the Iord, vhich he is to oer as a sin oering, vhile the goat designated by
lot for Azazel shall be left standing alive before the Iord, to make expiation
vith it and to send it o to the vilderness for Azazel.
Aaron shall then oer his bull of sin oering, to make expiation for
himself and his household. He shall slaughter his bull of sin oering, and he
shall take a panful of gloving coals scooped from the altar before the Iord,
and tvo handfuls of nely ground aromatic incense, and bring this behind
the curtain. He shall put the incense on the re before the Iord, so that the
cloud from the incense screens the cover that is over |the Ark of | the Pact,
lest he die. He shall take some of the blood of the bull and sprinkle it vith
his ngers over the cover on the east side; and in front of the cover he shall
sprinkle some of the blood vith his ngers seven times. He shall then slaugh-
ter the peoples goat of sin oering, bring its blood behind the curtain, and
do vith its blood as he has done vith the blood of the bull; he shall sprinkle
it over the cover and in front of the cover.
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Holy Priests ;
Thus he shall purge the Shrine of the uncleanness and transgression
of the Israelites, vhatever their sins; and he shall do the same for the Tent of
Meeting, vhich abides vith them in the midst of their uncleanness. When
he goes in to make expiation in the shrine, nobody else shall be in the Tent
of Meeting until he comes out.
When he has made expiation for himself and his household, and for
the vhole congregation of Israel, he shall go out to the altar that is before
the Iord and purge it he shall take some of the blood of the bull and of the
goat and apply it to each of the horns of the altar; and the rest of the blood
he shall sprinkle on it vith his nger seven times. Thus he shall cleanse it of
the uncleanness of the Israelites and consecrate it.
When he has nished purging the Shrine, the Tent of Meeting, and
the altar, the live goat shall be brought forvard. Aaron shall lay both his
hands upon the head of the live goat and confess over it all the iniquities
and transgressions of the Israelites, vhatever their sins, putting them on the
head of the goat; and it shall be sent o to the vilderness through a desig-
nated man. Thus the goat shall carry on it all their iniquities to an inaccessible
region; and the goat shall be set free in the vilderness.
And Aaron shall go into the Tent of Meeting, take o the linen vest-
ments that he put on vhen he entered the Shrine, and leave them there. He
shall bathe his body in vater in the holy precinct and put on his vestments;
then he shall come out and oer his burnt oering and the burnt oering of
the people, making expiation for himself and for the people. The fat of the
sin oering he shall turn into smoke on the altar.
He vho set the Azazel-goat free shall vash his clothes and bathe
his body in vater; after that he may reenter the camp.
The bull of sin oering and the goat of sin oering vhose blood
vas brought in to purge the shrine shall be taken outside the camp; and their
hides, esh, and dung shall be consumed in re. He vho burned them shall
vash his clothes and bathe his body in vater; after that he may reenter the
camp.
And this shall be to you a lav for all time In the seventh month,
on the tenth day of the month, you shall practice self-denial;
1
and you shall
. The Hebrev here refers primarily to fasting; cf. Isa. :.
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do no manner of vork, neither the citizen nor the alien vho resides among
you. lor on this day atonement shall be made for you to cleanse you of all
your sins; you shall be clean before the Iord. It shall be a sabbath of complete
rest for you, and you shall practice self-denial; it is a lav for all time. The
priest vho has been anointed and ordained to serve as priest in place of his
father shall make expiation. He shall put on the linen vestments, the sacral
vestments. He shall purge the innermost Shrine; he shall purge the Tent of
Meeting and the altar; and he shall make expiation for the priests and for all
the people of the congregation.
This shall be to you a lav for all time to make atonement for the
Israelites for all their sins once a year.
And Moses did as the Iord had commanded him.
Royal !respass iu the 8au.tuary
. : Chronicles :oo:
!his is oue oj se:eral |i|li.al a..ouuts oj .oui.t |etueeu the liug auo the high priest.
^ote that the .oui.t is uot o:er the politi.al role oj the priest |ut o:er the religious
role oj the liug. !he high priest is :i.torious ou his ouu grouuo. |::iah is ai.teo
uith leprosy. Lepers uere .ousioereo uu.leau auo requireo to ouell apart (see Le:.
:,.,,,).
When he |Uzziah| vas strong, he grev so arrogant he acted corruptly; he
trespassed against his God by entering the Temple of the Iord to oer in-
cense on the incense altar. The priest Azariah, vith eighty other brave priests
of the Iord, folloved him in and, confronting King Uzziah, said to him,
It is not for you, Uzziah, to oer incense to the Iord, but for the Aaronite
priests, vho have been consecrated, to oer incense. Get out of the sanctu-
ary, for you have trespassed; there vill be no glory in it for you from the
Iord God. Uzziah, holding the censer and ready to burn incense, got angry;
but as he got angry vith the priests, leprosy broke out on his forehead in
front of the priests in the House of the Iord beside the incense altar. When
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Holy Priests ;
the chief priest Azariah and all the other priests looked at him, his forehead
vas leprous, so they rushed him out of there; he too made haste to get out,
for the Iord had struck him vith a plague. King Uzziah vas a leper until
the day of his death. He lived in isolated quarters as a leper, for he vas cut
o from the House of the Iordvhile |otham his son vas in charge of the
kings house and governed the people of the land.
!he Loro Is !heir Iortiou
. Deuteronomy :
!he tri|e oj Le:i uas ele.teo jor spe.ial ser:i.e to Coo. A..oroiug to the .lassi.al priestly
a..ouut ( .), ouly oue Le:ite jamily, that oj Aarou, uas oesiguateo spe.i.ally jor
priesthooo. !he jollouiug :erses seem to ree.t a oiereut traoitiou, oue that a..oros
priestly status to the eutire tri|e. Ra||iui. a..ouuts oistiuguish |etueeu priests proper
Aarous oes.euoautsauo the Le:ites more geuerally, eutrusteo uith auxiliary temple
ser:i.e.
The levitical priests, the vhole tribe of Ievi, shall have no territorial por-
tion vith Israel. They shall live only o the Iords oerings by re as their
portion, and shall have no portion among their brother tribes the Iord is
their portion, as He promised them.
This then shall be the priests due from the people Lveryone vho
oers a sacrice, vhether an ox or a sheep, must give the shoulder, the cheeks,
and the stomach to the priest. \ou shall also give him the rst fruits of your
nev grain and vine and oil, and the rst shearing of your sheep. lor the
Iord your God has chosen him and his descendants, out of all your tribes,
to be in attendance for service in the name of the Iord for all time.
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Iriest as juoge
. Deuteronomy ;:
!his .riti.al text, uhi.h oire.tly pre.eoes the lau oj the liug, oes.ri|es the le:iti.al
priests, aloug uith a magistrate, uhose sour.e oj authority is uot gi:eu (possi|ly royal
appoiutmeut), as Israels juoges. Deuterouomy : uas later useo |y the Ra||is as a
uarraut jor their ouu juoi.ial pouers.
If a case is too baing for you to decide, be it a controversy over homicide,
civil lav, or assaultmatters of dispute in your courtsyou shall promptly
repair to the place that the Iord your God vill have chosen, and appear be-
fore the levitical priests, or the magistrate in charge at the time, and present
your problem. When they have announced to you the verdict in the case,
you shall carry out the verdict that is announced to you from that place that
the Iord chose, observing scrupulously all their instructions to you. \ou shall
act in accordance vith the instructions given you and the ruling handed
dovn to you; you must not deviate from the verdict that they announce to
you either to the right or to the left. Should a man act presumptuously and
disregard the priest charged vith serving there the Iord your God, or the
magistrate, that man shall die. Thus you vill sveep out evil from Israel all
the people vill hear and be afraid and vill not act presumptuously again.
Iriest as !ea.her
). Deuteronomy :, o
!he jollouiug is au ex.erpt jrom Moses |lessiug to the tri|e oj Le:i, gi:eu just |ejore
his oeath. !he priests .harge iu.luoes the oi:iue ora.le, the thummim auo urim.
And to Ievi he said
Iet your Thummim and Urim
Be vith \our faithful one,
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Holy Priests ;;
. . .
They shall teach \our lavs to |acob
And \our instructions to Israel.
They shall oer \ou incense to savor
And vhole-oerings on \our altar.
Connentary. The Place of the Priest
Biblical accounts of the authority and function of the priestsand
consequently of their standing relative to king, prophet, and judgeare not
consistent vith one another. Scholars vho distinguish among the dierent
sources and layers that underlie the redacted biblical text identify several
conceptions of the priesthood. Israel Knohl, vhose vork forms the basis for
the argument here (see !he 8au.tuary oj 8ileu.e |,,|), has demonstrated that
the source of the priests authority and the scope of their activities accord-
ing to the early Priestly School source dier substantially in other biblical
sources, including the later Holiness School (vhich is closer to popular reli-
gious ideas) and the book of Deuteronomy. These dierences are rooted in
radically dierent vievs on God and his relationship to humanity and the
vorld.
According to the Priestly School, God is transcendent and sublime;
he resides high above the mundane realm, unconcerned vith human beings
and their universe. He does not oversee human or vorldly aairs, nor does
he punish or revard human actions. He transcends morality and politics. In
short, the God of the Torah of the Priestly School plays no substantial role
in the earthly realm.
The other biblical schools (particularly the authors of the Holiness
Code) present opposing theological conceptions. Their God has anthropo-
morphic features a human personality and even a humanlike form. He is
involved in earthly events and profoundly concerned vith human beings and
their deeds.
These diering theological conceptions result in opposing visions
of the sacramental realm and therefore in alternative accounts of the scope
of priestly activity. According to the Priestly School, religious ritual empha-
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sizes the inferior or, more precisely, the insignicant state of man in relation
to the divine, the Holy Other. Consequently, the actual rituals are denied
any of the practical functions ascribed to them in other biblical sources. In-
stead, their focus is exclusively on the encounter betveen a numinous God
and the serving priest. One expression of this is the annual atonement cere-
mony described in Ieviticus o. According to the rst tventy-eight verses
of the chapter, vhich derive from the Priestly School source, the primary
function of this ritual is the purication of the Temple. The signicance of
this early vievof the atonement ritual is best revealed by contrast vith other
biblical sources (including verses :, of the same chapter), vhere it is por-
trayed very dierently as a means of appeasing God and inuencing his role
in political, social, and economic aairs.
The theological conceptions of the Priestly School have a direct
eect on its portrayal of the social and political status of the priest. |ust as the
God of the Priestly School is transcendent and removed from earthly aairs
and certainly from state and society, so too are its priests, his servants, sepa-
rated from these realms. Thus, the priest has no political, social, economic, or
judicial function. He is conned to the sacral realmthe tabernacle or the
Templeand isolated from the social and political order. (He is involved in
political conicts only vhen they impinge directly upon the sacral realm; see
: Chron. ,o and Iev. :o:o.) His activity is restricted to the sanctu-
ary vhere he puries himself so that he vill be able to sustain the encounter
vith God.
This removal of the priestly sect from the aairs of the nation is
further claried through contrast vith other biblical schools. lor example,
unlike the Priestly Torah, Deuteronomy grants the priests (as vell as the
Ievites) substantial judicial authority and identies them as the authoritative
interpreters of the Torah. Consider also the dierence betveen these biblical
sources vith regard to the functions of the holy ark and the urimand thummim
oracle. According to some biblical passages, the holy ark is regularly carried
onto the battleeld, evidently to aid in the var eort. In the Priestly Torah,
hovever, the holy ark alvays remains in the sanctuary. Similarly, several bib-
lical sources maintain that the priests counsel the nation through the use of
the urim and thummim oracle (see, e.g., |udg. :o:;, Sam. ::o, : Sam.
,). In the Priestly Torah, these holy devices are carried by the priest only
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Holy Priests ;,
for ritual and for no other purposes (see Lxod. ::o; Knohl, p. n. ::
and p. o n. ;).
The picture that emerges from the reconstruction of the early
Priestly source in the Bible, therefore, is one of almost total separation be-
tveen religion and state. Priestly concerns are conned to the Temple and
its rituals; priests have almost no involvement in the state or society. The
king, his ocials, judges, and other authorities are charged vith tending to
political and social aairs, as vell as to matters of ethics and lav, vithout
interference by the priests. Similarly, the policies administered by the politi-
cal authorities have no relation to, and no eects vithin, the sacral realm.
The motivation for separating the secular from the sacred, society
and state fromdivine vorship, is religious and theological. It does not emerge
fromsome unsuccessful eort to join together secular aairs and sacred ritual.
Rather, it results from a tendency in religious thought that envisions God
as transcendent and distant, elevated above human beings and society. Un-
covering and revealing the hidden dimension of divinity necessitates a set
of rituals isolated from all human concerns social, political, economic, and
even moral. God transcends reason, ethics, and society, and his rituals are,
therefore, dissociated from all three. What results isto apply a rabbinic
termvorship out of love, vithout anticipation of vorldly revard.
This religious-theological intuition regarding Gods nature and the
nature of divine vorship receives its clearest contemporary expression in
the vritings of \eshayahu Ieibovitz (see ;:, ,). Ieibovitz, too, perceives
God as absolutely transcendent and his rituals as completely removed from
any human dimension, rational, ethical, or national; he advocates a complete
separation betveen religion and state. Their combination vill ineluctably
leadin his opinion to the debasement of religion and to idolatry.
In a paradoxical sense, the ideational nucleus of the early priestly
theology has a certain attraction today. It consolidates a religion puried
of human and earthly concerns. Consequently, it allovs individual |evs to
live religious lives vithin the social and political fabric vithout conict and
tension. Nonetheless, it is important to emphasize that the contemporary
attraction to the priestly tradition is only to its central theological idea, be-
cause this tradition as a vhole does not share, or leave room for, modern
democratic sensibilities. Participation in the rituals performed in the silent
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:o Priests
sanctuary is accessible only to the priests, vhereas in the modern revival of
this idea, vorship from love of Godsublime and indierent, vithout any
anticipation of revard, and removed from any human concernsis available
to all people.
Yair Lor|er|aum
Atta.liug Corrupt Iriests
8. Malachi :,
!he last oj the |i|li.al prophets argues that the priestly .o:euaut auo the juoi.ial au
thority oj the priests are .ouoitioual ou their just ruliugs.
And nov, O Priests, this charge is for you Unless you obey and unless you
lay it to heart, and do honor to My namesaid the Iord of HostsI vill
send a curse and turn your blessings into curses. (Indeed, I have turned them
into curses, because you do not lay it to heart.) I vill put your seed under a
ban, and I vill strevdung upon your faces, the dung of your festal sacrices,
and you shall be carried out to its |heap|.
Knov, then, that I have sent this charge to you that My covenant
vith Ievi may enduresaid the Iord of Hosts. I had vith him a covenant of
life and vell-being, vhich I gave to him, and of reverence, vhich he shoved
Me. lor he stood in ave of My name.
Proper rulings vere in his mouth,
And nothing perverse vas on his lips;
He served Me vith complete loyalty
And held the many back from iniquity.
lor the lips of a priest guard knovledge,
And men seek rulings from his mouth.
lor he is a messenger of the Iord of Hosts.
But you have turned avay from that course \ou have made the
many stumble through your rulings; you have corrupted the covenant of the
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Holy Priests :
Ievitessaid the Iord of Hosts. And I, in turn, have made you despicable
and vile in the eyes of all the people, because you disregard My vays and
shov partiality in your rulings.
Apoliti.al Iriesthooo
. Baruch Spinoza, !heologi.alIoliti.al !reatise, Chapter ;
!ra.tatus !heologi.oIoliti.us, translated by Samuel Shirley (Ieiden L. |. Brill, ,,), pp. :;
:.
8piuo:a here pro:ioes his a..ouut oj the ouly possi|le theo.ra.y, uhi.h exists |y :irtue
oj the jragmeutatiou oj pouer ajter the oeath oj Moses. theo.ra.y is the uorl oj mauy
ageuts, iu.luoiug the people as a uhole, all oj uhom .au seel Coos uill. But uo siugle
persou speals oire.tly uith Coo auo promulgates his laus as Moses hao ooue, uo siugle
persou issues .ommauos. 8o the priests are .ustooiaus rather thau rulers oj Coos realm.
The people vere commanded to build a dvelling to serve as the palace of
God, the states supreme sovereign. This palace vas to be built at the ex-
pense not of one man but of the entire people, so that the dvelling vhere
God vas to be consulted should belong to the nation as a vhole. The Ievites
vere chosen to be the courtiers and administrators of this palace of God,
vhile Aaron, the brother of Moses, vas chosen to be at their head, in second
place, as it vere, to God their king, to be succeeded by his sons by hereditary
right. Therefore Aaron, as next to God, vas the supreme interpreter of Gods
lavs, giving the people the ansvers of the divine oracle and entreating God
on the peoples behalf. Nov if, along vith these functions, he had held the
right of issuing commands, his position vould have been that of an absolute
monarch. But this right vas denied him, and in general the vhole tribe of
Ievi vas so completely divested of civil rights that they did not have even
a legal share of territory, like the other tribes, to provide them at least vith
a livelihood. Moses ordained that they should be maintained by the rest of
the people, yet alvays be held in the highest honor by the common people
as the only tribe dedicated to God.
|The text goes on to describe the povers of |oshua as military com-
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:: Priests
mander, of the various tribal councils, of the shojtim, and of the people as a
vhole.|
!he 8e.ouo !emple. Ruliug Iriests
!he 8pleuoor oj the High Iriest
o. !he 1isoom oj Beu 8ira o:o; o:
!he 1isoom oj Beu 8ira, translated by Patrick W. Skehan, commentary by Alexander A. di
Iella, The Anchor Bible , (Garden City, N.\. Doubleday, ,:;), pp. oo:, o:.
!he 8e.ouo Commouuealth uas jouuoeo as a jeuish pro:iu.e iu the Iersiau empire
uith the returu oj the exiles iu the sixth .eutury ... Carryiug au imperial li.euse
jrom Cyrus (.j. L:ra :.:,), the returuees re|uilt the !emple iu jerusalem auo, leo |y
L:ra the priest auo ^ehemiah the pro:iu.ial go:eruor, pro.eeoeo to esta|lish a .om
muuity arouuo it. At the heao oj this .ommuuity stooo the high priest, the spleuoor
oj his gure is portrayeo iu this sele.tiou. !he |ool oj Beu 8ira (oatiug jrom the early
se.ouo .eutury ...) is part oj the Apo.rypha, that is, the :arious |ools iu.luoeo iu
some Christiau .auous |ut uot iu the He|reu Bi|le. Beu 8ira .outiuues the |i|li.al
traoitiou oj uisoom literature. Here the high priest is oepi.teo amoug the exemplary
jathers oj the uorlo.
() |God| raised up also, like Moses in holiness,
Aaron his brother, of the tribe of Ievi.
He made his oce perpetual
vhen he endoved him vith its dignity;
He brought him to the fore in splendor
and enveloped him in an aura of majesty.
He clothed him vith sublime magnicence
and adorned him vith the glorious vestments
Breeches and tunic and robe
vith pomegranates around the hem,
And a rustle of bells round about,
through vhose pleasing sound at each step
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Ruling Priests :
He vould be heard vithin the sanctuary,
and the families of his people vould be remembered;
The sacred vestments of gold, of violet,
and of crimson, vrought vith embroidery;
The breastpiece for decision, the ephod and cincture
vith scarlet yarn, the vork of the veaver;
Precious stones vith seal engravings
in golden settings, the vork of the jeveler,
To commemorate in incised letters
each of the tribes of Israel;
On his turban the diadem of gold
a frontlet engraved vith the sacred inscription,
Majestic, glorious, renovned for splendor,
a delight to the eyes, beauty supreme.
Before him no one vas adorned vith these,
nor may they ever be vorn by any
Lxcept his sons and them alone,
generation after generation, for all time.
His cereal oering is vholly burned
as an established oering tvice each day;
lor Moses ordained him
and anointed him vith the holy oil,
In a lasting covenant vith him
and vith his family, as permanent as the heavens,
That he should serve God in his priesthood
and bless his people in his name.
2
He chose him from all humankind
to oer holocausts and choice oerings,
To burn sacrices of sveet odor for a memorial,
and to atone for the people of Israel.
He gave to him his lavs,
and authority to prescribe and to judge
:. See Num. o:::;. This is one of the fev priestly rituals that persist to this day in synagogue
services.
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: Priests
To teach the precepts to his people,
and the norms to the descendants of Israel.
Strangers vere inamed against him,
vere jealous of him in the desert,
The follovers of Dathan and Abiram,
and the band of Korah in their deance.
3
But the Iord sav this and became angry;
he destroyed them in his burning vrath.
He brought against them a miracle,
and consumed them vith his aming re.
Then he increased the glory of Aaron
and bestoved upon him his inheritance
The sacred oerings he allotted to him,
vith the shovbread as his portion;
The oblations of the Iord are his food,
a gift to him and his descendants.
But he holds none of the peoples land,
nor shares vith them their heritage;
Rather, the Iord is his portion and inheritance
in the midst of the Israelites.
Phinehas too, the son of Lleazar,
vas the courageous third of his line
When, zealous for the God of all,
he met the crisis of his people
And, at the promptings of his noble heart,
atoned for the people of Israel.
4
Therefore on him again God conferred the right,
in a covenant of friendship to provide for the sanctuary,
So that he and his descendants
should possess the high priesthood forever.
lor even his covenant vith David
the son of |esse of the tribe of |udah,
. See Num. o; and ;:.
. See Num. :.
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Ruling Priests :
Was an individual heritage through one son alone,
but the heritage of Aaron is for all his descendants.
So nov bless the Iord
vho has crovned you vith glory'
May he grant you visdom of heart
to govern his people in justice
Iest the benets you confer should be forgotten,
or the virtue of your rule, in future generations.
(o) Greatest among his kindred, the glory of his people,
vas Simeon the priest, son of |ochanan,
In vhose time the house of God vas renovated,
in vhose days the temple vas reinforced.
In his time also the retaining vall vas built
for the residence precinct vith its temple of the King.
In his day the reservoir vas dug,
the pool vith a vastness like the seas.
He took care for his people against brigands
and strengthened his city against the enemy.
Hov splendid he vas as he looked forth from the Tent,
5
as he came from the house of the veil'
Iike a star shining among the clouds,
like the full moon at the holy-day season;
Iike the sun shining on the temple of the King,
like the rainbov appearing in the cloudy sky;
Iike the blossoms on the branches in springtime,
like a lily by running vaters;
Iike the verdure of Iebanon in summer,
like the blaze of incense at the sacrice;
Iike a vessel of beaten gold
studded vith an assortment of precious stones;
Iike a luxuriant olive tree thick vith fruit,
a plant vhose branches run vith oil;
. A poetic reference to the sanctuary deriving from the biblical tabernacle.
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Wearing his splendid robes,
and vested in sublime magnicence,
As he ascended the glorious altar
and lent majesty to the court of the sanctuary.
When he received the sundered victims from his brother priests
vhile he stood before the sacricial hearth,
His sons ringed him about like a garland,
like young cedars on Iebanon;
And like poplars by the brook they clustered around him,
all the sons of Aaron in their dignity,
With the oerings to the Iord in their hands,
in the presence of the vhole assembly of Israel.
Once he had completed the service at the altar
and arranged the sacricial hearth for the Most High,
And had stretched forth his hand for the cup,
to oer blood of the grape,
And poured it out at the foot of the altar,
a sveet-smelling odor to God the Most High,
The sons of Aaron vould sound a blast,
the priests, on their trumpets of beaten metal;
A blast to resound mightily
as a reminder before the Most High.
Then all the people vith one accord
vould quickly fall prostrate to the ground
In adoration before the Most High,
before the Holy One of Israel.
Then hymns vould reecho,
and over the throng sveet strains of praise resound.
All the people of the land vould shout for joy,
praying to the Merciful One,
As the high priest completed the service at the altar
by presenting to God the sacrice due;
Then coming dovn he vould raise his hands
over all the congregation of Israel;
The blessing of the Iord vould be upon his lips,
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Ruling Priests :;
the name of the Iord vould be his glory.
Then again the people vould lie prostrate,
receiving the blessing from the Most High.
And nov, bless the God of all,
vho has done stupendous things on earth;
Who makes humans grov from their mothers vomb,
and does vith them according to his vill'
May he grant you visdom of heart,
and may he abide among you as peace;
May his kindness tovard Simeon be lasting;
may he fulll for him the covenant vith Phinehas
So that it may be not abrogated for him
or for his descendants vhile the heavens last.
High Iriest auo Iriu.e
. Maccabees :,
!he Au.hor Bi|le. I Ma..a|ees, translated vith commentary by |onathan A. Goldstein (Gar-
den City, N.\. Doubleday, ,;;), pp. :o::.
!he rst |ool oj Ma..a|ees, also part oj the Apo.rypha, uas uritteu .ir.a :oo ... iu
a quasi|i|li.al ioiom auo oepi.ts the Ma..a|ees as heirs to the loug traoitiou oj sa:iors
oj Israel. !he Ma..a|eau re:olt uas leao iuitially |y Mattathias auo his sou juoah.
!he sele.tiou |elou oes.ri|es the su|sequeut appoiutmeut oj auother sou, 8imou, as
high priest auo priu.e. It .au |e reao as a parallel to the .hapters iu the |i|li.al |ool oj
8amuel (see ;,, ,) that oes.ri|e the jouuoiug oj the au.ieut Israelite mouar.hy. Here
the jouuoiug oj the Hasmoueau oyuasty oj priestly rulers is oo.umeuteo.
When the People learned of these achievements, they said, Hov shall ve
shov gratitude to Simon and to his sons He arose vith his brothers and his
family and fought o the enemies of Israel, and they gained freedom for our
people' They drev up a document on bronze tablets and set it up on stone
slabs on Mount Zion. The folloving is a copy of the document
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:: Priests
On the eighteenth of Llul in the year ;:, vhich is the year under
Simon, high priest and prince of Gods People, at a great assembly of priests
and people and chiefs of the nation and the elders of the land, the folloving
vas brought to our attention
Whereas at a time vhen our land vas repeatedly aicted by vars,
Simon son of Mattathias of the clan of |oarib and his brothers exposed them-
selves to danger and resisted their nations foes, in order that their sanctuary
might survive, and the Torah they von great glory for their nation; |onathan
rallied his nation and became their high priest and then passed avay; there-
upon their enemies desired to invade their country in order to destroy it and
violate their sanctuary; then Simon arose and fought for his nation and spent
large sums of his ovn money, providing arms for the men of the army of
his nation and paying their salaries; he fortied the tovns of |udea, includ-
ing Beth-Zur on the border of |udea, vhere previously there had been an
enemy arsenal, stationing there a garrison of |evs; he also fortied |oppe by
the sea and Gazara on the border of Azotus, previously inhabited by our ene-
mies, settling |evs there; vhatever vas needed for removing impediments
to pious |evish life in those tovns, he provided; observing Simons delity
and vhat he had accomplished and the glory vhich he proposed to bring
upon his nation, the people appointed him their chief and high priest be-
cause of all these achievements of his and because of his righteousness and
his uninterrupted delity to his nation, as he sought in every vay to exalt his
people; thereafter, during his time of leadership, he succeeded in expelling
the gentiles from his peoples land and in expelling the inhabitants of the
City of David in |erusalem, vho had built themselves a citadel from vhich
they used to go out and commit acts of delement in the vicinity of the
sanctuary and gravely impair its purity; Simon stationed in the citadel |ev-
ish soldiers and fortied it for the sake of the safety of our country and our
city; he built higher valls around |erusalem; moreover, King Demetrius |the
Second, ruler of Syria| in viev of all this has conrmed him as high priest
and admitted him to the ranks of his lriends and conferred great distinction
upon him; indeed, he heard that the Romans had given the |evs the titles
lriends and Allies (and Brothers) and that they had treated Simons am-
bassadors vith honortherefore, be it resolved by the |evs and the priests
that Simon be chief and high priest in perpetuity until a true prophet shall
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Ruling Priests :,
arise,
6
and that he be commander over them (and that he have charge of the
sanctuary) so as to appoint on his ovn authority the ocials responsible for
services, for the countryside, for armaments, and for fortications, and that
he have charge of the sanctuary, and that all persons obey him, and that all
contracts in our country be dravn up in his name, and that he vear purple
robes and gold ornaments. No one of the people or of the priests shall have
the pover to annul any of these provisions or to oppose any of his future
commands or to convoke a meeting in our country vithout his permission
or to vear purple robes or use a gold brooch. Whoever acts contrary to these
provisions or annuls any of them shall be subject to the penalty of death.
The entire people resolved to grant Simon the right to act accord-
ing to these provisions. Simon accepted and agreed to serve as high priest
and to be commander and prince of the nation of the |evs and of the priests
and to preside over all. They ordered that this text be dravn up on bronze
tablets and set up in the precinct of the sanctuary in a conspicuous place and
that copies of the tablets be placed in the treasury so as to be available for
Simon and his sons.
!heo.ra.y
z. |osephus, Coutra Apiou IIoo;, ::,, ,,
josephus, vol. I !he Lije auo Agaiust Apiou, translated by Iouis H. leldman, Ioeb Clas-
sical Iibrary (Cambridge Harvard University Press, ,o), pp. ,, o;o,, ;.
A major jo.us oj josephuss uritiugs is the oejeuse oj the jeuish religiou agaiust su.h
Helleuisti. .riti.s as his .outemporary the Lgyptiau grammariau Apiou. josephus here
.oius the term theo.ra.y jor the jorm oj go:erumeut pra.ti.eo |y the priestrulers oj
Hasmoueau oes.eut.
(oo;) There is endless variety in the details of the customs and lavs vhich
prevail in the vorld at large. To give but a summary enumeration some
o. This caveat seems to express a certain unease regarding the legitimacy of the Hasmonean
monarchy.
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,o Priests
peoples have entrusted the supreme political pover to monarchies, others to
oligarchies, yet others to the masses. Our lavgiver, hovever, vas attracted
by none of these forms of polity, but gave to his constitution the form of
vhatif a forced expression be permittedmay be termed a theocracy,
placing all sovereignty and authority in the hands of God. To Him he per-
suaded all to look, as the author of all blessings, both those vhich are com-
mon to all mankind, and those vhich they had von for themselves by prayer
in the crises of their history. He convinced them that no single action, no
secret thought, could be hid from Him. He represented Him as One, uncre-
ated and immutable to all eternity; in beauty surpassing all mortal thought,
made knovn to us by His pover, although the nature of His real being passes
knovledge.
(::,) lor us, vith our conviction that the original institution
of the Iav vas in accordance vith the vill of God, it vould be rank im-
piety not to observe it. What could one alter in it What more beautiful one
could have been discovered What improvement imported from elsevhere
Would you change the entire character of the constitution Could there be
a ner or more equitable polity than one vhich sets God at the head of the
universe, vhich assigns the administration of its highest aairs to the vhole
body of priests, and entrusts to the supreme high-priest the direction of the
other priests These men, moreover, oved their original promotion by the
legislator to their high oce, not to any superiority in vealth or other acci-
dental advantages. No; of all his companions, the men to vhom he entrusted
the ordering of divine vorship as their rst charge vere those vho vere pre-
eminently gifted vith persuasive eloquence and discretion. But this charge
further embraced a strict superintendence of the Iav and of the pursuits of
everyday life; for the appointed duties of the priests included general super-
vision, the trial of cases of litigation, and the punishment of condemned
persons.
Could there be a more saintly government than that Could God
be more vorthily honored than by such a scheme, under vhich religion is
the end and aim of the training of the entire community, the priests are en-
trusted vith the special charge of it, and the vhole administration of the
state resembles some sacred ceremony Practices vhich, under the name of
mysteries and rites of initiation, other nations are unable to observe for but
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Ruling Priests ,
a fev days, ve maintain vith delight and uninching determination all our
lives.
(,,) We have but one temple for the one God (for like ever
loveth like), common to all as God is common to all. The priests are continu-
ally engaged in His vorship, under the leadership of him vho for the time is
head of the line. With his colleagues he vill sacrice to God, safeguard the
lavs, adjudicate in cases of dispute, punish those convicted of crime. Any
vho disobey him vill pay the penalty as for impiety tovards God Himself.
Connentary. llavius |osephus on Priesthood
|osephus, a priest by birth and a Pharisee by choice, vas for the sec-
ond half of his life a client of the llavian emperors of Rome. Iiving among
the gentiles, he vrote voluminously in Greek in defense of |udaism. He is the
rst of the vriters in this section vhose presentation is apologetic (in the
theological sense of that term). He cannot vindicate the levitical priesthood
simply vith reference to Torah, for his intended audience rejects the au-
thority of Torah. But this fact also frees him from the necessity of the most
literal delity to Torah.
The very term theocracy (Greek theolratia), vhich |osephus either
devised himself or borroved from an unknovn source (IIo), represents an
attempt to subsume the |evish tradition under a non-|evish category. The
synonymous Greek suxes .ratia and ar.hia, preserved for us in such famil-
iar vords as monarchy, aristocracy, oligarchy, and democracy, denote
political rule. Lach term in vhich these suxes gure identies a regime
(Greek politeia or politeuma, IIo), a comprehensive distribution of pover
and authority in a given society to the advantage of the designated group
(in the terms listed above, the one, the best, the fev, the people or
majority). As the character of a city is determined above all by its regime,
so the regime furnishes the central principle of the classication of cities
and therevith of classical political science. As elaborated by such vriters as
Herodotus, Thucydides, Plato, Aristotle, and Polybius, this understanding of
political life vas the common heritage of all vhose minds vere formed by
Greek thought. It has no biblical counterpart. In expounding the levitical
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,: Priests
priesthood in such terms, then, |osephus assimilates it to the prevalent model
of political authority among the educated gentiles of his time, a model vhich
is this-vorldly and rationalist.
This is the rst of |osephus paradoxes; others follov. Since every
previous regime name had identied the human rulers of a given society
(IIo), |osephus might have described the |evish regime by inventing a
term for the rule of priests. Instead he coins or borrovs one denoting the
rule of God, as if not men but God formed the regime vhose institutional
expression is the priesthood. While assimilating the priesthood to a model
of human rule, he denies that in this case the ruler is human (o, :)and
thereby denies that the priests rule.
As noted in the introduction to this chapter, theocracy is a prob-
lematic notion. Who really rules here Given the ambiguity of |osephuss
understanding, suspended as it is betveen Torah and Greek philosophy, this
is an obvious diculty for him, as it is for his intended readers, and for us.
In |osephuss presentation of priesthood (as in the preceding ones of
Ben Sira and Maccabees), no king clutters the political landscape. One vay
of approaching |osephus is therefore by seeing him as a republican vhose
praise of theocracy, or rule by priests, is signicant primarily for its im-
plied rejection of monarchy. As such, he vould foreshadov a much greater
gure in the |evish tradition, vho is also its greatest republican, Isaac Abra-
vanel (see ;, ). Indeed, Abravanel follovs |osephuss position vhen in his
Commeutary he rejects Maimonides and the predominant medieval tradition
by interpreting the lav of the king (Deut. ;) not as a divine injunc-
tion to establish a monarchy but merely as a permission to do sovith
the strong implication that this outcome vere best avoided (cf. |osephus, Au
tiquities oj the jeus IV::; also VIo). Such an interpretation reconciles the
passage in Deuteronomy vith Samuelin eect interpreting the earlier
passage in the light of the laterbut is unpersuasive in its construction of the
Hebrev of the Deuteronomic text. The question remains as to the positive
content of |osephuss teaching Can it be understood to imply an exaltation
of republican self-government, of political life understood politically
If ve understand republicanism as the opposite of monarchy, |ose-
phuss defense of |evish theocracy appears in our passage (and elsevhere)
as republican. If, hovever, republicanism is also understood (as both the clas-
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Ruling Priests ,
sical Greek thinkers and ve moderns have understood it) as incompatible
vith clericalism, |osephuss position vill seem anomalous.
Already in the early fourteenth century, Marsilius of Paduaan
Aristotelian vho vas nominally Christian but profoundly anticlericalre-
jected the aristocratic tenor of Aristotelian republicanism because it played
into the hands of the Catholic priesthood. He appealed from the political
authority of the fev, hovever conceived (including therefore the clergy), to
the authority of the many (the laity). The vork that he began vas continued
by Machiavelli and subsequently by adherents of the liberal anticlerical tra-
dition (including, vithin |udaism, Moses Mendelssohn).
Not that Aristotle himself understood the argument for aristocracy
as implying the rule of priests. He imagined priests as he knev them, not as
rulers of the city but as its nonpartisan servants, ocials of the pagan sac-
ricial cult, vho invoked the favor of the gods on behalf of the regime of
the city, vhatever it happened to be. He regarded the priesthood as an ap-
propriate sinecure for aged citizens of unblemished reputation (Ioliti.s :,a,
:;). As for vhich regime vas best in general or for a particular society,
this vas a human rather than a divine question, regarding vhich priests could
provide no special guidance.
|osephus, by contrast, defends the levitical regime as it seems it must
be defended as in accordance vith the vill of God. And yet, precisely be-
cause he defends it before philosophically educated gentiles, he must oer a
universalist justication for institutions vhose authority traditionally rested
on divine revelation. Thus is he driven to elaborate a rationalist notion of
conformity vith the vill of God, and an interpretation of the priestly regime
as an aristocracy in Aristotles sense. The virtue of the priests conrms that
their rule is in accordance vith Gods vill, and this virtue is manifest in terms
fully intelligible to gentiles, vhich is to say, to reason. It is this regimes good-
ness in politi.al terms that marks it as Gods ovn (II:; cf. especially the
statement of principle at o). |osephuss defense of priestly authority in our
passage is of a piece vith his immediately prior defense of the God of Israel
as identical vith, and the inspiration of, the God of the Greek philosophers
(o:).
Not the least of the questions that |osephuss treatment raises for
|evish readers is vhether his claim that the priesthood constituted a regime
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, Priests
accords vithTorah. In the lifetime of Moses, it vas not Aarons authority that
predominated; and the captains and judges vhom Moses appointed (Lxod.
::) vere not priests. Deuteronomy ;: speaks not of priests alone
but of priests and magistrates sharing ultimate authority to interpret the lav.
(Nor can ve forget that Lxodus ,o declares the entire people of Israel
to be priestly.) The authority of Moses devolved on |oshua; and the judges
prior to Lli vere not priestsnor did the sons of Lli prove vorthy of the
mantle of their father ( Sam. ::o; cf. Autiquities V:o). And nally,
there is the lavof the king (Deut. ;), vhich ve have already discussed.
In biblical times, then, the priest had to vie vith magistrate and
judge and later vith king and prophet as arbiter of the lav. Only in the
postbiblical period did priests such as Simon the |ust and the Hasmoneans
assume supreme leadership in politics and var (and the Hasmoneans soon
proclaimed themselves kings). Lven in this period the interpretation of the
lav had largely passed out of the hands of the increasingly vorldly, aris-
tocratic, and hellenized priesthood into those of the Phariseesvho vere
mostly non-priests learned in the lav. By the rst century c.r., political au-
thority vas divided among the priests, the |evish (non-priestly) aristocracy,
a pro-Roman king, a Roman governor, and the Sanhedrin, composed pri-
marily of the non-priestly sages. All these complexities ve knov from |ose-
phuss ovn vritings. The great rebellion and the Temples destruction, in the
aftermath of vhich |osephus is vriting, not just qualied the authority of
the priesthood but destroyed it forever (pending its messianic restoration).
|osephus oers, then, not only a deliberate idealization but a con-
scious simplication of the political situation as it had existed in biblical and
postbiblical times. The crucial element of his simplication is to present us
vith a regime, a political arrangement in vhich supreme authority vas not
divided and contested but assigned to one particular class of society. Per-
haps he aims at the presentation most impressive to gentile readers; perhaps
he seeks also to provide a model for future generations (including future
generations of priests) should the |evish polity be restored.
The question remains vhether ve are to understand the priests as
rulers. As Spinoza notes in the passage reprinted in this chapter, the right of
legislation, the fundamental attribute of classical regimehood as of modern
sovereignty, vas never vested in the priests (or in any human hands). That is
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vhy |osephus can call the regime of Israel a theocracy God rules by means of
his lav; priests merely interpret and administer it (II:). \et an ambiguity
remains as to vhat |osephus understands as divine about this theocracy. In
his version of Samuel : (Aut. VIo,), the prophetin reections that
|osephus has fabricated, but vhich nd partial varrant in the rational and
this-vorldly character of Samuels critique of kingship in the originalla-
ments the peoples request for a king because he (Samuel) is a partisan of
aristocracy, the regime that is divine (theiau) because it is the most benecial
for its subjects. In praising aristocracy as such as divine, the |osephan Samuel
employs the term in a vholly rationalist sense. In our passage |osephus uses
the same argument, among others, to establish that priestly rule vas theo-
cratic. At the very least he blurs the distinction betveen divine rule in the
traditional |evish sense and theocracy in the Greek philosophical sense as
the rule of the most virtuous or reasonable men. The tvo traditions agree
that only vhere the best human rulers apply the best lav can ve say that
theocracy prevails. They diverge over vhether the divine element in such
rule is the Sinaitic revelation as interpreted by the devout or the unassisted
reason of the most capable human beings.
Whatever |osephuss private thoughts, in our passage he tries to
have it both vaysboth vays as regards reason and revelation and both vays
as regards the character of the priests. Inasmuch as his conception of |ev-
ish lav is implicitly a human one (Torah as the product of a supremely vise
founder and an exemplary priestly class of interpreters), he implies a gen-
uinely (and merely) political interpretation of |evish life and thereby of the
propriety of rational debate as to vho in the community is best qualied to
exercise ultimate authority. Lxplicitly, hovever, he defers to the tradition
by limiting himself to the question of vho is best qualied to exercise pen-
ultimate authority by interpreting and administering the vord of God. This
question he seeks to resolve vith arguments dravn from pagan philosophy.
lor us he raises the broader question of vhether the |evish vay of life can
ever be adequately justied vith arguments borroved from the gentiles.
Clioro Cruiu
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,o Priests
Irom Iriests to 8ages
!hese three sele.tious ree.t the |asi. Iharisai. attituoe touaro the priesthooo. !he
sages a..epteo the priests role iu the temple ser:i.e |ut reje.teo their spiritual leaoer
ship. Learuiug auo persoual piety supplauteo liueage as the |asis jor religious authority.
!he Mishuahs report oj the ser:i.e ou the Day oj Atouemeut pro|a|ly oeri:es jrom a
traoitiou auteoatiug the oestru.tiou oj the !emple, auo iu re.reatiug the past it shijts
.outiuually |etueeu past auo preseut teuses. It seems to ree.t teusious |etueeu the
Iharisees auo the 8aoou.ees, the latter, jrom uhose rauls the high priests uere mostly
orauu, hao their ouu traoitious .ou.eruiug the ritual.
Do as 1e !ell You
. Mishnah \oma, Chapter
. Seven days before the Day of Atonement the high priest is re-
moved from his home to the Iarheoriu Chamber. Another priest is prepared
to take his place, lest he become disqualied. . . .
:. All |these| seven days he sprinkles the blood and oers the in-
cense and xes the candles and places the head and leg |of the daily sacrice
on the altar|. On any other day, if he vishes to perform the oering, he may
do so, for the high priest is rst to oer a portion and rst to take a portion.
. Llders from among the elders of the |et oiu are placed at his dis-
posal, and they read before him from the order of the day (Iev. o). They
say to him Sire, High Priest, read vith your ovn mouth, lest you have for-
gotten or lest you have not studied. The day before the Day of Atonement,
from morning, they stand him at the Last Gate and have bulls, rams, and
sheep pass before him, to familiarize and accustom him to the service.
. All |these| seven days they do not deny him food or drink. The
day before the Day of Atonement, from sundovn,
7
they do not allov him
to eat much, since food induces sleep.
8
;. The |evish calendrical day begins in the evening; this clause refers to the night before,
tventy-four hours before the commencement of the holy day.
:. Should the high priest fall asleep, he might become deled by a nocturnal emission.
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Priests to Sages ,;
. The elders of the |et oiu placed him at the disposal of elders of
the priesthood, vho took him up to the loft of the A:tiuas house. On taking
their leave, they administered an oath to him, saying Sire, High Priest' We
represent the |et oiu, and you represent us and the |entire| |et oiu. We ad-
minister this oath, |vherein you svear| by Him vho caused His Name to
dvell in this house |the Temple|, |to the eect| that you vill in no detail
deviate from that vhich ve have instructed you. He vithdravs and veeps,
and they vithdrav and veep.
o. If he vas a halham |scholar|, he expounds |the Torah|; if not, tal
mioe halhamim expound before him. If he is accustomed to readhe reads;
if notthey read before him. What do they read from lrom |ob, Lzra and
Chronicles. Zechariah b. Kevutal said Many times I read before him from
Daniel.
;. If he tends to fall asleep, young priests snap their ngers before
him, saying Sire, High Priest, take a turn standing up on the |marble| oor'
They thus occupy him until the time arrives for slaughtering |the morning
sacrice|.
:. . . . By the time the crovcalled, the Temple court vas lled vith
Israelites.
Ra||i 1ersus Iriest
. BT \oma ;b
!he emergeut religious leaoership oj the Ra||is is represeuteo here |y 8hemaiah auo
A:talyou, the reuouueo tea.hers oj Hillel auo 8hammai. Iu .outraoistiu.tiou to the
priestly jamilies uith their superior liueage, the jamilies oj 8hemaiah auo A:talyou
uere oj geutile origiu.
Our Rabbis taught Once a certain high priest emerged from the Temple
|at the end of the Day of Atonement service| and everyone folloved him.
When they sav Shemaiah and Avtalyon, they abandoned him and folloved
Shemaiah and Avtalyon. linally, Shemaiah and Avtalyon came to take leave
of the high priest. He said to them Welcome are the descendants of gen-
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,: Priests
tiles' They ansvered Welcome are the descendants of gentiles, vho act
after the manner of Aaron |vho loved peace and pursued it (Avot :)|; and
unvelcome is the descendant of Aaron, vho does not act after the manner
of Aaron.
8.holarship 1ersus Iriesthooo
. Mishnah Horayot o:
!he poiut oj oeparture jor this ois.ussiou is .eremouial pre.eoeu.e iu matters oj ritual. It
mo:es ou to rules oj priority amoug .laims jor assistau.e. !he high priest represeuts per
soual status |aseo ou liueage, oramati.ally .outrasteo uith a mamzer (|astaro) s.holar.
(A juller ois.ussiou oj liueage auo so.ial hierar.hy appears iu ;:..)
o. Anything more frequent than some other thing takes precedence over that
other; and anything more sanctied than some other thing takes precedence
over that other. If the anointed |priests| ox and the congregations ox are
vaiting |to be oered|, the anointed |priests| ox takes precedence over the
congregations ox in all |details| of ritual performance.
;. A man takes precedence over a voman for sustenance
9
and for
the return of |his| lost property, vhereas a voman takes precedence over a
man for clothing and for rescue from captivity. If they are both subject to
abuse, the man takes precedence.
:. A priest takes precedence over a Ievite, a Ievite over an Isra-
elite, an Israelite over a mam:er, a mam:er over a bondsman, a bondsman over
a convert, a convert over a freed slave. When is this so When they are all
equal. But if a mam:er is a scholar |talmio halham| and a high priest an igno-
ramus |am haaret:|the mam:er scholar takes precedence over the ignorant
high priest.
,. The vord translated as sustenance can also be rendered saving of life. See L. Rackman,
Priorities in the Right to Iife, in !raoitiou auo !rausitiou, edited by |. Sacks (Iondon Kings
College Publications, ,:o), ::.
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r i v r Prophets
Introduction
lhe Prophetic Calling
!he CalliugI
. Amos ;o;
!he CalliugII
:. Isaiah o
!he CalliugIII
. |eremiah o, ;,
Prophecy as Political Challenge
^a|oths 1iueyaro. Challeugiug the Kiug
. Kings ::o
jeremiah ou !rial
. |eremiah :o
Atta.liug Ritual
o. Isaiah o:o
Deuuu.iatiou oj the Ruliug Iouers
;. Micah ,:
8u|:ersi:euess oj Irophe.y
:. Baruch Spinoza, !heologi.alIoliti.al !reatise, Chapter :
Commentary. Michael Walzer, Prophetic Criticism and
Its Targets
,,
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Gods Word: lruth, Falsehood, and Interpretation
!est oj !rue Irophe.y
,. Deuteronomy :,::
!he Kiugs Irophets auo the !rue Irophet
o. Kings ::::
Distiuguishiug !rue jrom Ialse Irophe.y
. BT Sanhedrin :,a
Role oj the Irophet auo Criteria jor Irophe.y
:. Maimonides, MT loundations of the Torah ;:
Commentary. Suzanne Iast Stone, Prophecy and Trust
A Medieval Prophet: lhe Abulaa Controversy
Critique oj Iropheti. Claims
. Solomon b. Abraham Adret (Rashba), Respousa :
Dejeuoiug His Cuu Claim to Irophe.y
. Abraham Abulaa, 1e2ot Lihuoah
Commentary. Moshe Idel, Can There Still Be Prophets
Iutroou.tiou
Prophecy is surely the strangest and most complex of all the po-
litical-religious activities described in |evish literature. It is a role enacted by
gures as dierent as Moses, Deborah, Gideon, Samuel, Llijah, |onah, Amos,
Isaiah, and Lzekiel. Apart from the honoric title prophet, vhat do these
people have in common And vho are the prophets of Western political
thought to vhom they might be compared
The literary prophets (vhose speeches are collected in the bibli-
cal books from Amos to Malachi) are most readily recognizable to men and
vomen familiar vith political life in the West. Although the comparison
is by no means exact, they are something like the social and moral crit-
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Introduction :o
ics vho appear in classical, Christian, and contemporary secular settings
poets, preachers, publicists, intellectuals, and perhaps also demagogues, as
Max Weber suggested in his Au.ieut juoaism. But the |evish understanding
of prophecy is considerably vider than this comparison suggests. lor the
prophet can also be a lavgiver (like Moses) or a judge (like Deborah and
Samuel) or even a military leader (like |oshua and Gideon) or a king (like
Saul).
These last gures are problematic; as varriors and rulers they ap-
pear mostly in the lovest degree of prophecy (according to Maimonides
ranking in Cuioe :, not reprinted here), and their successors are excluded
from the ranks altogether. After Solomon, the kings of Israel and |udah have
no direct communication vith God. In the days vhen God himself is said
to have ruled Israel, the people he raised up vere all of them charismatic
and hence prophetic gures, vho vere granted a kind of divine intimacy
The spirit of the Iord came upon him ( |udg. o, referring to Samson).
This period ends vhen the elders come to Samuel and demand a king vho
vill go out at our head and ght our battles. Charisma lingers in the young
varriors chosen by God as Israels rst kings, although it seems a little sur-
prising nov Is Saul also among the prophets ( Sam. o). In fact, as ve
sav in Chapter , political pover is at least potentially secular (concerned
about vhat is autonomously determined to be prudent) from the moment
the elders speak. Ruling and ghting are henceforth distinct from prophecy.
David is the rst of Israels rulers to vhom God sends prophets, vho re-
buke him for his sins. Samuel plays the same part for Saul, but no one plays
this part for Samuel himself, or for any of the judges or for Moses or |oshua.
These earlier gures combined the tvo roles that vere separated in king and
prophet. After the monarchy vas established, prophets vere raised up not
to exercise pover but to challenge the poverful.
But the relation betveen prophecy and pover is still ambiguous. lor
Maimonides, the prophet takes the part of both philosopher and philosopher-
king, providing the model of the ideal ruler Moses is the only example. And
yet the messiah himself, conceived as a varrior-king, Davids rather than
Moses successor, does not seem to have prophetic povers, either in Mai-
monides account or in more popular versions. Machiavellis prophet vith
a svord, his ovn activist version of an ideal ruler, is dravn in part (and
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:o: Prophets
rightly) from the BibleMoses again provides the chief examplebut this
gure is never conceptualized in later |evish literature. Among the |evs,
from the time of the monarchy forvard, prophecy is more closely tied to
divine knovledge and critical judgment than to political oce.
Solomon talks vith God in Kings , but vhat he asks for is vis-
dom, not prophetic pover, and although these tvo are brought together by
the sages, they are clearly separated in those biblical texts that date from or
refer to the monarchic period. Kings are .halleugeo by prophets (or at least
by true prophets) and .ouuseleo by vise men. Wisdom is prudent, politic,
vorldly, and human; prophecy is radical, impolitic, utopian, and divine. Wis-
dom is at home in the royal court, prophecy in the desert and then in the
streets and gates of the city and the temple courtyards. Rabbinic |udaism in
some sense escapes this tension vith its claim to be the joint heir of the vise
and the prophets. But the escape is never complete, and ve can see the rab-
bis defending themselves against the disruptive force of prophecy in the ex-
traordinary confrontation of Adret (Rashba) and Abulaa in this chapter. The
sages critique of prophecy, vhich is crucial to their self-understanding, is
included in Chapter o.
What makes prophecy so dangerous is its divine origin. The prophet
does not inherit his role, nor is he appointed by the king or ordained by
the rabbis; he is called by Godlike Moses at the burning bush. There is no
ocial mediation or control. Prophets often report their ovn calling and
describe its circumstances, for this is the crucial source of their authority;
ve reprint several of the texts here. Many of them describe the prophets
reluctance to heed Gods call (see Lxod. and for the classic case). There
is no reason to think the reluctance feigned. When Moses says, But, be-
hold, |the people| vill not believe me, he speaks the plain truth on behalf
of himself and many of the prophets to come (Samuel is the most striking
exception, instantly believed; see Sam. :o). Once prophets are separated
from political pover, they nd fev friends among the poverful or, most of
the time, among the people. Again and again, they are blamed for the dire
messages they deliver and threatened vith imprisonment and death, actu-
ally imprisoned (like |eremiah), or killed (like Uriah, about vhom ve knov
nothing except vhat ve are told in |er. :o:o:). And yet the divine call is
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Introduction :o
inescapable, as |onah learned; the prophet is seized by God, driven to speak
his often menacing vords. He is a political force beyond human control
and so he is a threat to every establishment, most clearly to the priests and
kings of Israel and |udah, but also to the pharaoh in Lgypt and the rulers of
Nineveh.
Rulers vho do not vant to listen to Gods prophets can alvays nd
someone else to listen to. The people vant to hear smooth vords, says Isaiah
(oo), and there vere plenty of prophets vho vere ready to provide them.
The kings of Israel and |udah, vho also vanted smooth vords, found it easy
to surround themselves vith comforting and conformist prophets (like a
modern rulers academic advisers) vho regularly told them that they vere
doing vell, vhatever they vere doing. The Bible makes it clear that from
the moment the prophetic role vas established, there vas never a shortage
of people to act it out.
Some vay had to be found, then, to mark o the true prophets,
critical and discomforting, from the false prophets, vhose vords vere
more likely to be velcomed. The arguments about true and false, in the Bible
itself and in later literature, are very important they address the question
of trust in public life. Whom should ve believe, vhose advice and admoni-
tion should ve heed, vhen many people, all talking at once, contend for the
peoples (and the kings) attention The question continued to be debated
long after prophecy ceased in Israel, for it found no denitive ansverand
vho could knov vhen Gods call vould be heard again Moreover, there
vere alvays claimants to prophetic status, as Adrets text makes clear. So it
vill be useful to list ve of the most interesting ansvers.
. Deuteronomy suggests that only prophets vhose prophecies come
true are true prophets (Deut.:::)vhich is not very helpful at the mo-
ment of prophecy and leaves a lot of room for vhat ve might think of as
fortuitous or accidental fulllment.
:. The sages (in Sanhedrin :,a) argue that only a prophet vho speaks
in his ovn voice can be trusted to speak for God. The contrast is vith Ahabs
four hundred prophets ( Kings ::) vho spoke their alvays smooth vords
in unison, vith one accord |literally, one mouth|. Authenticity is a nec-
essary, though not entirely sucient, condition of true prophecy.
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. Maimonides claims that ve can recognize the true prophet by his
previously established reputation for visdom and virtue. (Wisdom is here
identied vith philosophy, not only vith prudence.) Whomelse vould God
call but the vise and the virtuous This is plausible enough in cases vhere
ve have prior knovledge of the prophets character, although it is alvays
possible that God sees visdom and virtue vhere human eyes cant nd it.
But vhat are ve to make of some obscure gure called from folloving the
ock, like Amos of Tekoa What vas Moses reputation among the Hebrev
slaves in Lgypt vhen he rst spoke to them And vhat if God chooses to
speak to humankind, as one of the Rabbis in Bava Batra suggests, through
children and fools
. Another argument of Maimonides establishes only a negative cri-
terionnecessary, again, but not sucient to make the prophet fully trust-
vorthy he must not propose to change the lavs of the Torah once these
have been revealed. The aim here is to rule out charismatic antinomianism
The lav is thus and so, but I say unto you . . .
. linally, there is the implicit argument of the prophetic books
themselves, alluded to by |eremiah in his denunciation of Hananiah ve
knov the true prophet by his courageous refusal to speak smoothly. He is a
rough, unkempt, angry gure, the very embodiment of disruption (vhich
is vhy Spinoza, defending secular political order, has no sympathy for him).
The burden of proof, says |eremiah, alvays rests on the prophet vho proph-
esieth of peace, for the truth about our collective future, given the vay ve
live nov, is likely to include var and . . . evil and . . . pestilence ( |er.
::;,).
It is a disturbing feature of these discussions, especially for mod-
ern readers, that they focus so narrovly on the standing of the prophets,
their legitimacy, as it vere, and not on the specic content of their mes-
sages. When the kings counselors, knovn by their vorldly visdom rather
than their divine calling, give advice about this or that policy matter, they
no doubt raise similar questions about trustvorthiness (Absalom vould have
done vell not to trust Hushai in : Sam. ;), but vhat they explicitly invite is
a debate about the advice itself Is this really vhat prudence requires in our
present circumstances The prophets, by contrast, do not invite a debate of
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The Calling :o
that sort. Indeed, if they have actually been sent by God, there is no room for
any debate at all. The only vay to challenge them is to call their credentials
into question, not the content of their prophecies.
Perhaps because of the profound impression left by the prophets on
|evish political thinking, their disappearance did not open the vay for any
explicit defense of vorldly deliberation. But the sages call themselves vise
and make room in the lav for arguments about both prudence and prin-
ciple. And they do everything they can to neutralize the disruptive force of
prophecy. They are as bound as the prophets vere to Gods vord, but they
are its interpreters nov, not its messengers. So claims about textual proofs
replace claims about divine callings. Rabbinic interpretation replaces pro-
phetic inspiration and turns out, as the chapters that follov vill suggest,
to be more accommodating (though never easily or entirely so) to political
considerations.
!he Iropheti. Calliug
!he Kiugooms oj Israel auo juoea existeo sioe |y sioe, sometimes iu .ooperatiou, some
times iu ri:alry, jrom the teuth .eutury ... uutil their oestru.tiou at the hauos oj
the Mesopotamiau empires. Israel, the ^ortheru Kiugoom, uas oestroyeo iu the late
eighth .eutury, juoea iu ,:. !his history pro:ioes the |a.lgrouuo jor the a.ti:ities auo
spee.hes oj the .lassi. literary prophets. Amos, though he uas |oru iu juoea, uas a.ti:e
iu the Kiugoom oj Israel iu the oe.aoes pre.eoiug its oemise. He prophesieo iu Bethel,
oue oj the tuo maiu sau.tuaries oj the ^ortheru Kiugoomauo oejeuoeo himselj there
agaiust the .harge that he uas au iuterloper. Isaiah, a uear .outemporary, prophesieo
iu jerusalem, the juoeau .apital. his .all ree.ts the !emple settiug. A .eutury auo
a halj later, the prophet jeremiah repeats the .lassi. ois.laimers oj propheti. am|itiou
(.ompare Lxoo. ,), |ut theu pro:ioes au exalteo a..ouut oj propheti. jortituoe.
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!he CalliugI
. Amos ;o;
Amaziah, the priest of Bethel, sent this message to King |eroboam
of Israel Amos is conspiring against you vithin the House of Israel. The
country cannot endure the things he is saying. lor Amos has said |eroboam
shall die by the svord, and Israel shall be exiled from its soil.
Amaziah also said to Amos, Seer, o vith you to the land of |udah'
Larn your living there, and do your prophesying there. But dont ever proph-
esy again at Bethel; for it is a kings sanctuary and a royal palace. Amos an-
svered Amaziah I am not a prophet, and I am not a prophets disciple. I am
a cattle breeder and a tender of sycamore. But the Iord took me avay from
folloving the ock, and the Iord said to me, Go, prophesy to My people
Israel. And so, hear the vord of the Iord. \ou say I must not prophesy about
the House of Israel or preach about the House of Isaac; but this, I svear, is
vhat the Iord said \our vife shall play the harlot in the tovn, your sons
and daughters shall fall by the svord, and your land shall be divided up vith
a measuring line. And you yourself shall die on unclean soil; for Israel shall
be exiled from its soil.
!he CalliugII
z. Isaiah o
In the year that King Uzziah died, I beheld my Iord seated on
a high and lofty throne; and the skirts of His robe lled the Temple. Ser-
aphs stood in attendance on Him. Lach of them had six vings vith tvo he
covered his face, vith tvo he covered his legs, and vith tvo he vould y.
And one vould call to the other,
Holy, holy, holy'
The Iord of Hosts'
His presence lls all the earth'
The doorposts vould shake at the sound of the one vho called, and
the House kept lling vith smoke. I cried,
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The Calling :o;
Woe is me; I am lost'
lor I am a man of unclean lips.
And I live among a people
Of unclean lips;
\et my ovn eyes have beheld
The King Iord of Hosts.
Then one of the seraphs ev over to me vith a live coal, vhich he
had taken from the altar vith a pair of tongs. He touched it to my lips and
declared,
Nov that this has touched your lips,
\our guilt shall depart
And your sin be purged avay.
Then I heard the voice of my Iord saying, Whom shall I send
Who vill go for us And I said, Here am I; send me. And He said, Go
say to that people
Hear, indeed, but do not understand;
See, indeed, but do not grasp.
Dull that peoples mind,
Stop its ears,
And seal its eyes
Iest, seeing vith its eyes
And hearing vith its ears,
It also grasp vith its mind,
And repent and save itself.
1
I asked, Hov long, my Iord And He replied
Till tovns lie vaste vithout inhabitants
And houses vithout people,
And the ground lies vaste and desolate
. This can be understood either as a vish that the people not be alloved to repent and thereby
escape their due punishment or, perhaps, as a bitter recognition that they are beyond re-
morse.
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lor the Iord vill banish the population
And deserted sites are many
In the midst of the land.
But vhile a tenth part yet remains in it, it shall repent. It shall be
ravaged like the terebinth and the oak, of vhich stumps are left even vhen
they are felled its stump shall be a holy seed.
!he CalliugIII
. |eremiah o, ;,
The vords of |eremiah son of Hilkiah, one of the priests at Ana-
thoth in the territory of Benjamin. The vord of the Iord came to him in
the days of King |osiah son of Amon of |udah, in the thirteenth year of his
reign, and throughout the days of King |ehoiakim son of |osiah of |udah, and
until the end of the eleventh year of King Zedekiah son of |osiah of |udah,
vhen |erusalem vent into exile in the fth month.
The vord of the Iord came to me
Before I created you in the vomb, I selected you;
Before you vere born, I consecrated you;
I appointed you a prophet concerning the nations.
I replied
Ah, Iord God'
I dont knov hov to speak,
lor I am still a boy.
And the Iord said to me
Do not say, I am still a boy,
But go vherever I send you
And speak vhatever I command you.
Have no fear of them,
lor I am vith you to deliver you
declares the Iord.
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Political Challenge :o,
The Iord put out His hand and touched my mouth, and the Iord
said to me Herevith I put My vords into your mouth.
See, I appoint you this day
Over nations and kingdoms
To uproot and to pull dovn,
To destroy and to overthrov,
To build and to plant.
. . .
So you, gird up your loins,
Arise and speak to them
All that I command you.
Do not break dovn before them,
Iest I break you before them.
I make you this day
A fortied city,
And an iron pillar,
And bronze valls,
Against the vhole land
Against |udahs kings and ocers,
And against its priests and citizens.
They vill attack you,
But they shall not overcome you;
lor I am vith youdeclared the Iordto save you.
Irophe.y as Ioliti.al Challeuge
^a|oths 1iueyaro. Challeugiug the Kiug
. Kings ::o
Llijah is represeutati:e oj those early prophets uhose oeeos are uarrateo iu the histori.al
|ools oj the Bi|le (maiuly 8amuel auo Kiugs). He is portrayeo as the ar.h .riti. oj
Kiug Aha| oj Israel, uho reigueo iu the rst halj oj the uiuth .eutury ... Larlier
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.hapters iu : Kiugs tell oj their .oujroutatious o:er the uorship oj Baal, iutroou.eo |y
Aha|s joreigu uije, je:e|el oj 8ioou. Here Aha| is oeeo |y his su|je.t ^a|oth, uho
rejuses to part uith his au.estral estate. !he story ree.ts the legal situatiou iu au.ieut
Israel. the liug ooes uot ouu the lauo.
Naboth the |ezreelite ovned a vineyard in |ezreel, adjoining the palace of
King Ahab of Samaria. Ahab said to Naboth, Give me your vineyard, so that
I may have it as a vegetable garden, since it is right next to my palace. I vill
give you a better vineyard in exchange; or, if you prefer, I vill pay you the
price in money. But Naboth replied, The Iord forbid that I should give up
to you vhat I have inherited from my fathers' Ahab vent home dispirited
and sullen because of the ansver that Naboth the |ezreelite had given him I
vill not give up to you vhat I have inherited from my fathers' He lay dovn
on his bed and turned avay his face, and he vould not eat. His vife |ezebel
came to him and asked him, Why are you so dispirited that you vont eat
So he told her, I spoke to Naboth the |ezreelite, and proposed to him, Sell
me your vineyard for money, or if you prefer, Ill give you another vineyard
in exchange; but he ansvered, I vill not give my vineyard to you. His
vife |ezebel said to him, Nov is the time to shov yourself king over Israel.
Rise and eat something, and be cheerful; I vill get the vineyard of Naboth
the |ezreelite for you.
So she vrote letters in Ahabs name and sealed them vith his seal,
and sent the letters to the elders and the nobles vho lived in the same tovn
vith Naboth. In the letters she vrote as follovs Proclaim a fast and seat
Naboth at the front of the assembly. And seat tvo scoundrels opposite him,
and let them testify against him \ou have reviled God and king' Then take
him out and stone him to death.
His tovnsmenthe elders and nobles vho lived in his tovndid
as |ezebel had instructed them, just as vas vritten in the letters she had sent
them They proclaimed a fast and seated Naboth at the front of the assembly.
Then the tvo scoundrels came and sat dovn opposite him; and the scoun-
drels testied against Naboth publicly as follovs Naboth has reviled God
and king. Then they took him outside the tovn and stoned him to death.
Word vas sent to |ezebel Naboth has been stoned to death. As soon as
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|ezebel heard that Naboth had been stoned to death, she said to Ahab, Go
and take possession of the vineyard vhich Naboth the |ezreelite refused to
sell you for money; for Naboth is no longer alive, he is dead. When Ahab
heard that Naboth vas dead, Ahab set out for the vineyard of Naboth the
|ezreelite to take possession of it.
Then the vord of the Iord came to Llijah the Tishbite Go dovn
and confront King Ahab of Israel vho |resides| in Samaria. He is nov in
Naboths vineyard; he has gone dovn there to take possession of it. Say to
him . . . Would you murder and take possession Thus said the Iord In the
very place vhere the dogs lapped up Naboths blood, the dogs vill lap up
your blood too.
And Ahab said to Llijah, So you have found me, my enemy \es, I
have found you, he replied. Because you have committed yourself to doing
vhat is evil in the sight of the Iord.
jeremiah ou !rial
. |eremiah :o
!he so:ereiguty oj the juoeau liugoom uas hostage to the shijtiug |alau.e oj pouer
|etueeu the great empires oj Mesopotamia auo Lgypt (.j. . Kiugs .,..,.,.). jere
miahs uaruiugs oj oestru.tiou shoulo |e seeu iu the .outext oj his parti.ipatiou iu the
politi.al oe|ate o:er juoeas joreigu poli.y auo his expli.it .alls jor juoea to a..ept the
rule oj the liug oj Ba|ylou (.j. jer. .). jeremiah has jrieuos at .ourt uho prote.t him
agaiust his politi.al euemies. !his text reports au impromptu trial iu the !emple .ourt
yaro. ^ote the appeal to the pre.eoeut oj Mi.ah, a rare iustau.e oj |i|li.al .rossrejereu.e
(see ).
At the beginning of the reign of King |ehoiakim son of |osiah of |udah, this
vord came from the Iord
Thus said the Iord Stand in the court of the House of the Iord,
and speak to |the men of | all the tovns of |udah, vho are coming to vor-
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:: Prophets
ship in the House of the Iord, all the vords vhich I command you to speak
to them. Do not omit anything. Perhaps they vill listen and turn back, each
from his evil vay, that I may renounce the punishment I am planning to
bring upon them for their vicked acts.
Say to them Thus said the Iord If you do not obey Me, abiding
by the Teaching that I have set before you, heeding the vords of My servants
the prophets vhom I have been sending to you persistentlybut you have
not heededthen I vill make this House like Shiloh,
2
and I vill make this
city a curse for all the nations of earth.
The priests and prophets and all the people heard |eremiah speaking
these vords in the House of the Iord. And vhen |eremiah nished speaking
all that the Iord had commanded him to speak to all the people, the priests
and the prophets and all the people seized him, shouting, \ou shall die' Hov
dare you prophesy in the name of the Iord that this House shall become
like Shiloh and this city be made desolate, vithout inhabitants And all the
people crovded about |eremiah in the House of the Iord.
When the ocials of |udah heard about this, they vent up from
the kings palace to the House of the Iord and held a session at the entrance
of the Nev Gate of the House of the Iord. The priests and prophets said to
the ocials and to all the people, This man deserves the death penalty, for
he has prophesied against this city, as you yourselves have heard.
|eremiah said to the ocials and to all the people, It vas the Iord
vho sent me to prophesy against this House and this city all the vords you
heard. Therefore mend your vays and your acts, and heed the Iord your
God, that the Iord may renounce the punishment He has decreed for you.
As for me, I am in your hands do to me vhat seems good and right to you.
But knov that if you put me to death, you and this city and its inhabitants
vill be guilty of shedding the blood of an innocent man. lor in truth the
Iord has sent me to you, to speak all these vords to you.
Then the ocials and all the people said to the priests and prophets,
This man does not deserve the death penalty, for he spoke to us in the name
of the Iord our God.
:. The rst enduring religious center before the construction of Solomons temple in |erusalem;
see Sam. :.
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And some of the elders of the land arose and said to the entire as-
semblage of the people, Micah the Morashtite, vho prophesied in the days
of King Hezekiah of |udah, said to all the people of |udah Thus said the
Iord of Hosts
Zion shall be ploved as a eld,
|erusalem shall become heaps of ruins
And the Temple Mount a shrine in the voods.
Did King Hezekiah of |udah, and all |udah, put him to death Did
he not rather fear the Iord and implore the Iord, so that the Iord renounced
the punishment He had decreed against them We are about to do great in-
jury to ourselves'
There vas also a man prophesying in the name of the Iord, Uriah
son of Shemaiah from Kiriath-jearim, vho prophesied against this city and
this land the same things as |eremiah. King |ehoiakim and all his varriors
and all the ocials heard about his address, and the king vanted to put him
to death. Uriah heard of this and ed in fear, and came to Lgypt. But King
|ehoiakim sent men to Lgypt, Llnathan son of Achbor and men vith him to
Lgypt. They took Uriah out of Lgypt and brought him to King |ehoiakim,
vho had him put to the svord and his body throvn into the burial place of
the common people. Hovever, Ahikam son of Shaphan protected |eremiah,
so that he vas not handed over to the people for execution.
Atta.liug Ritual
. Isaiah o:o
!his is oue oj the .lassi. examples oj propheti. .riti.ism, .ouoemuiug ritual o|ser:au.e
uheu it is a..ompauieo |y iujusti.e auo oppressiou.
Hear the vord of the Iord,
\ou chieftains of Sodom;
Give ear to our Gods instruction,
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\ou folk of Gomorrah'
What need have I of all your sacrices
Says the Iord.
I am sated vith burnt oerings of rams,
And suet of fatlings,
And blood of bulls;
And I have no delight
In lambs and he-goats.
That you come to appear before Me
Who asked that of you
Trample My courts no more;
Bringing oblations is futile.
Incense is oensive to Me.
Nev Moon and sabbath,
Proclaiming of solemnities,
Assemblies vith iniquity,
I cannot abide.
\our nev moons and xed seasons
lill me vith loathing;
They are become a burden to Me,
I cannot endure them.
And vhen you lift up your hands,
I vill turn My eyes avay from you;
Though you pray at length,
I vill not listen.
\our hands are stained vith blood
3

Wash yourselves clean;

Put your evil doings
Avay from My sight.
Cease to do evil;
Iearn to do good.
Devote yourselves to justice;
Aid the vronged.
. Nev |PS crime.
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Political Challenge :
Uphold the rights of the orphan;
Defend the cause of the vidov.
Come, let us reach an understandingsays the Iord.
Be your sins like crimson,
They can turn snov-vhite;
Be they red as dyed vool,
They can become like eece.
If, then, you agree and give heed,
\ou vill eat the good things of the earth;
But if you refuse and disobey,
\ou vill be devoured |by| the svord.
lor it vas the Iord vho spoke.
Deuuu.iatiou oj the Ruliug Iouers
). Micah ,:
Mi.ahs prophe.ies, lile those oj his .outemporary Isaiah, are a religious auo so.ial
.ritique oj juoea auo jerusalem. |ulile Isaiah, houe:er, Mi.ah eu:isages the total oe
stru.tiou oj Coos .ity auo temple. It is to this ee.t that he is .iteo a|out a .eutury
auo a halj later ouriug jeremiahs trial ( ,).
Hear this, you rulers of the House of |acob,
\ou chiefs of the House of Israel,
Who detest justice
And make crooked all that is straight,
Who build Zion vith blood,
4
|erusalem vith iniquity'
Her rulers judge for gifts,
Her priests give rulings for a fee,
. Nev |PS crime.
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And her prophets divine for pay;
\et they rely upon the Iord, saying,
The Iord is in our midst;
No calamity shall overtake us.
Assuredly, because of you
Zion shall be ploved as a eld,
And |erusalem shall become heaps of ruins,
And the Temple Mount
A shrine in the voods.
8u|:ersi:euess oj Irophe.y
8. Baruch Spinoza, !heologi.alIoliti.al !reatise, Chapter :
!ra.tatus !heologi.oIoliti.us, translated by Samuel Shirley (Ieiden L. |. Brill, ,,), p. :;.
Iu this .hapter oj the Treatise 8piuo:a aualy:es the jall oj the au.ieut jeuish state.
He argues that prophe.y, |e.ause it uuoermiues .i:il oroer, uas oue oj the .auses oj
the jall. Iu his ouu politi.al .outext, the su|:ersi:e prophets are pro|a|ly the se.tariau
oppoueuts oj the rulers oj the Dut.h repu|li..
It is vorthy of remark that the prophets, men of private station, in exercis-
ing their freedom to varn, to rebuke and to censure, succeeded in annoying
men rather than reforming them, vhereas men vho vere admonished or
castigated by kings vere more apt to turn from their vays. Indeed, even de-
vout kings often found prophets intolerable because of their assumption of
authority to decide vhat action vas pious or impious, and even to berate the
kings themselves if the latter had the hardihood to transact any business, pub-
lic or private, against their judgement. King Asa, vho according to Scripture
vas a pious ruler, consigned the prophet Hanani to prison (: Chron. o) for
venturing to reproach him too freely in the matter of the treaty made vith
the king of Aramaea. There are other examples to shov that such freedom
brought religion more harm than good, not to mention that great civil vars
also originated from the prophets retention of so important a right.
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Political Challenge :;
Connentary. Prophetic Criticism and Its Targets
Spinozas critique of prophecy reects his commitment, almost as
strong as Hobbess, to political stability. He is certainly right to describe the
prophets as disruptive. The texts from |eremiah, Isaiah, and Micah are clear
enough (and there are many other texts like these, especially from Amos).
Speech of this sort undermines authority. It challenges the status quo and
the people vho benet from it.
But these prophets are not agitators in the modern sense. They dont
aim to create a political or social movement; they make no eort to organize
their audience; they arent looking for the response that Shakespeares Marc
Antony vins fromthe Roman crovd. On the other hand, they are also unlike
modern social critics, vho sit in their studies vriting books and magazine
articles and can hardly be imagined speaking in the streets.
The prophets are religious preachers, something like contemporary
revivalists, and although they criticize the vhole of society and hope for its
moral transformation, their precise demand is for individual teshu:ahre-
pentance; the literal meaning is a turning back to the lavs of the covenant.
What they vant is that people repent of their sins (sometimes the emphasis
is on idolatry, sometimes on injustice and oppression) and then turn, as it
vere, in place each person is to enact the covenant in his or her sphere of
activity. The goal is a series of turnings, not a change of political regime
although if princes and judges repent, the eect may be something like a
change of regime. Perhaps they vill listen and turn back, says |eremiah,
each from his evil vay (:o).
The vhole of Israelite society is indicted; some of the prophets
imagine a divine lavsuit God against Israel. But prophetic criticism is often
much more specic, addressed explicitly to the rich and the poverful
The Iord vill bring this charge
Against the elders and ocers of His people
It is you vho have ravaged the vineyard. (Isa. )
Or, in one of the texts that ve have chosen for this chapter Hear this, says
Micah, you rulers of the House of |acob (,). Amos, Isaiah, and |eremiah
have been endlessly quoted in the long history of the political Ieft for their
attacks on the upper classes, vho trample the heads of the poorInto the
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:: Prophets
dust of the ground (Amos :;). But, again, none of the prophets takes aim
at the political or social hierarchy, only at the individual men and vomen
vho occupy its high places; there is no prophetic program for a democratic
politics or a classless society. All that the prophets demandbut hov radical
they make it sound'is that the rich stop trampling the poor and that the
poverful ( judges, ocials, kings) act forcefully to protect the veak.
Their criticism is mixed vith threatsindeed, it is the threats that
constitute the literal content of the prophecies. Disorder and riot are not
vhat is prophesied here, nor social revolution, nor even the civil vars that
Spinoza vorried about; the prophets speak instead of divine anger and de-
struction. The erceness of this anger is perhaps the most striking feature of
many of the biblical texts. But vhat is less often noticed is its commonly
unfocused character.
Llijah is an exception; he is almost as precise as ve expect judges to
be in delivering a sentence Ahab and his dynasty, he says, vill suer Gods
anger. More often, hovever, the vhole nation is threatened vith destruction
and exileeven vhen it is only the sins of the rich and poverful that gure
in the texts. The rulers, the priests, and even the prophets take bribes and act
unjustly, says Micah, and so Zion shall be ploved as a eldAnd |erusalem
shall become heaps of ruins.
The popular hatred of prophets, described in the |eremiah text,
probably derives from lines like theseand it hardly seems entirely unvar-
ranted. Why should the people as a vhole suer for the sins of the fev This
question seems to have been asked at the time, for in a passage that echoes
the story of Abraham at Sodom, |eremiah tells his audience that they can
Roam the streets of |erusalem
Search its squares,
Iook about and take note
\ou vill not nd a man,
There is none vho acts justly,
Who seeks integrity
That I should pardon her. ()
Still, the sins of ordinary people dont seemlarge enough to varrant the total
destruction of the city. Perhaps the people are morally required to rise up
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against rich and poverful sinners, but, as I have said, nothing like that is ever
urged upon them; even the halakhic requirement of protest (see ;;) is not
asserted in the prophetic texts. So hov can the punishment of the people be
just
Collective punishment is one of the critical issues of the biblical
vritings. It is both strongly armed and strongly denied. But the prophets
vhose texts are reprinted here seem to have no trouble vith itnot at least
as a truth about Israels future (nor does it trouble them vhen they prophesy
against the nations). And they are right in this important sense nations
do experience terrible calamities because of the conduct of their richest and
most poverful members. It is odd, hovever, that these calamities should be
described as punishments, and God as their agent. It is even odder that none
of the prophets rejected |eremiahs argument and took upon himself Abra-
hams role at Sodom.
Moses interceded for the people after the golden calf incident
(vhich vas not the sin of the fev but of the many), and several of the literary
prophets describe themselves playing the same role. But they ask for mercy,
not for justiceas vhen Amos beseeches God (;) By vhom shall |acob
arise, for he is small They seem to accept vhat is not acceptable that Zion
ploved and |erusalem in ruins represent a just response to oppression and
corruption.
Their model is almost certainly the idolatrous city (see Deut. ),
vhere the sin is said to be general and the punishment is collective and total
(some of the prophets, hovever, Amos and Micah above all, dont have much
to say about idolatry). A major problem is passed over here even if idolatry
could be the sin of the vhole people, great and small alike (but are the chil-
dren also idolators), oppression cant befor there are alvays guiltless vic-
tims, oppressed men and vomen; there is alvays the blood of the innocent
( |er. ::;). The prophets speak vith extraordinary courage on behalf of the
oppressed against the povers-that-be. But they dont speak, as Abraham did,
against the Pover-That-Is Will \ou sveep avay the innocent along vith
the guilty (Gen. ::).
Mi.hael 1al:er
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Coos 1oro. !ruth, Ialsehooo, auo Iuterpretatiou
!he jollouiug texts all oeal uith the pro|lem oj jalse prophe.y. Deuterouomy represeuts
the rst eort to oistiuguish propheti. truth auo jalsehooo. : Kiugs pro:ioes uhat |e.ame
a paraoigmati. .ase, jrequeutly .iteo auo ois.usseo. Mi.aiah ja.iug Kiug jehoshaphat
oj juoah auo Aha| oj Israel. Iu B! 8auheoriu ue uo au early eort to oe:elop a
systemati. oistiu.tiou, uhile Maimouioes, orauiug jreely ou the Bi|le auo the Ra||is,
uorls out a .ompreheusi:e legal auo philosophi.al a..ouut oj prophe.y.
!est oj !rue Irophe.y
. Deuteronomy :,::
When you enter the land that the Iord your God is giving you,
you shall not learn to imitate the abhorrent practices of those nations. Iet
no one be found among you vho consigns his son or daughter to the re, or
vho is an augur, a soothsayer, a diviner, a sorcerer, one vho casts spells, or
one vho consults ghosts or familiar spirits, or one vho inquires of the dead.
lor anyone vho does such things is abhorrent to the Iord, and it is because
of these abhorrent things that the Iord your God is dispossessing them be-
fore you. \ou must be vholehearted vith the Iord your God. Those nations
that you are about to dispossess do indeed resort to soothsayers and augurs;
to you, hovever, the Iord your God has not assigned the like.
The Iord your God vill raise up for you a prophet from among
your ovn people, like myself |Moses|; him you shall heed. This is just vhat
you asked of the Iord your God at Horeb, on the day of the Assembly, say-
ing, Iet me not hear the voice of the Iord my God any longer or see this
vondrous re any more, lest I die. Whereupon the Iord said to me, They
have done vell in speaking thus. I vill raise up a prophet for them from
among their ovn people, like yourself I vill put my vords in his mouth and
he vill speak to them all that I command him; and if anybody fails to heed
the vords he speaks in My name, I myself vill call him to account. But any
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prophet vho presumes to speak in My name a vord
5
that I did not com-
mand him to utter, or vho speaks in the name of other godsthat prophet
shall die. And should you ask yourselves, Hov can ve knov that the vord
vas not spoken by the Iordif the prophet speaks in the name of the Iord
and the vord does not come true, that vord vas not spoken by the Iord;
the prophet has uttered it presumptuously do not stand in dread of him.
!he Kiugs Irophets auo the !rue Irophet
o. Kings ::::
In the third year, King |ehoshaphat of |udah came to visit the king
of Israel. The king of Israel said to his courtiers, \ou knov that Ramoth-
gilead belongs to us, and yet ve do nothing to recover it from the hands of
the king of Aram. And he said to |ehoshaphat, Will you come vith me to
battle at Ramoth-gilead |ehoshaphat ansvered the king of Israel, I vill do
vhat you do; my troops shall be your troops, my horses shall be your horses.
But |ehoshaphat said further to the king of Israel, Please, rst inquire of the
Iord.
So the king of Israel gathered the prophets, about four hundred
men, and asked them, Shall I march upon Ramoth-gilead for battle, or shall
I not March, they said, and the Iord vill deliver |it| into \our Maj-
estys hands. Then |ehoshaphat asked, Isnt there another prophet of the
Iord here through vhom ve can inquire And the king of Israel ansvered
|ehoshaphat, There is one more man through vhom ve can inquire of the
Iord; but I hate him, because he never prophesies anything good for me, but
only misfortuneMicaiah son of Imlah. But King |ehoshaphat said, Dont
say that, \our Majesty. So the king of Israel summoned an ocer and said,
Bring Micaiah son of Imlah at once.
The king of Israel and King |ehoshaphat of |udah vere seated on
their thrones, arrayed in their robes, on the threshing oor at the entrance
. Nev |PS here and belov oracle.
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of the gate of Samaria; and all the prophets vere prophesying before them.
Zedekiah son of Kenaanah had provided himself vith iron horns; and he
said, Thus said the Iord With these you shall gore the Arameans till you
make an end of them. And all the other prophets vere prophesying simi-
larly, March upon Ramoth-gilead and triumph' The Iord vill deliver it into
\our Majestys hands.
The messenger vho had gone to summon Micaiah said to him
Iook, the vords of the prophets are vith one accord |literally, one mouth|
favorable to the king. Iet your vord be like that of the rest of them; speak
a favorable vord. As the Iord lives, Micaiah ansvered, I vill speak only
vhat the Iord tells me. When he came before the king, the king said to
him, Micaiah, shall ve march upon Ramoth-gilead for battle, or shall ve
not He ansvered him, March and triumph' The Iord vill deliver |it| into
your Majestys hands. The king said to him, Hov many times must I adjure
you to tell me nothing but the truth in the name of the Iord Then he said,
I savall Israel scattered over the hills like sheep vithout a shepherd; and the
Iord said, These have no master; let everyone return to his home in safety.
Didnt I tell you, said the king of Israel to |ehoshaphat, that he vould not
prophesy good fortune for me, but only misfortune But |Micaiah| said I
call upon you to hear the vord of the Iord' I sav the Iord seated upon His
throne, vith all the host of heaven standing in attendance to the right and
to the left of Him. The Iord asked, Who vill entice Ahab so that he vill
march and fall at Ramoth-gilead The one said thus and another said thus,
until a certain spirit came forvard and stood before the Iord and said, I vill
entice him. Hov the Iord asked him. And he replied, I vill go out and
be a lying spirit in the mouth of all his prophets. Then He said, \ou vill
entice and you vill prevail. Go out and do it. So the Iord has put a lying
spirit in the mouth of all these prophets of yours; for the Iord has decreed
disaster upon you.
Thereupon Zedekiah son of Kenaanah stepped up and struck Mi-
caiah on the cheek, and demanded, Which vay did the spirit of the Iord
pass from me to speak vith you And Micaiah replied, \oull nd out on
the day vhen you try to hide in the innermost room. Then the king of Israel
said, Take Micaiah and turn him over to Amon, the citys governor, and to
Prince |oash, and say, The kings orders are Put this fellov in prison, and let
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his fare be scant bread and scant vater until I come home safe. To vhich
Micaiah retorted, If you ever come home safe, the Iord has not spoken
through me. He said further, Iisten, all you peoples'
So the king of Israel and King |ehoshaphat of |udah marched upon
Ramoth-gilead. The king of Israel said to |ehoshaphat, Disguise yourself
and go into the battle; but you, vear your robes. So the king of Israel vent
into the battle disguised. Nov the king of Aram had instructed his thirty-
tvo chariot ocers Dont attack anyone, small or great, except the king
of Israel. So vhen the chariot ocers sav |ehoshaphat, vhom they took
for the king of Israel, they turned upon him to attack him, and |ehoshaphat
cried out. And vhen the chariot ocers became avare that he vas not the
king of Israel, they turned back from pursuing him. Then a man drev his
bovat random and he hit the king of Israel betveen the plates of the armor;
and he said to his charioteer, Turn the horses around and get me behind the
lines; Im vounded. The battle raged all day long, and the king remained
propped up in the chariot facing Aram; the blood from the vound ran dovn
into the hollov of the chariot, and at dusk he died. As the sun vas going
dovn, a shout vent through the army Lvery man to his ovn tovn' Lvery
man to his ovn district.
So the king died and vas brought to Samaria. They buried the king
in Samaria, and they ushed out the chariot at the pool of Samaria. Thus the
dogs lapped up his blood and the vhores bathed |in it|, in accordance vith
the vord that the Iord had spoken.
Distiuguishiug !rue jrom Ialse Irophe.y
. BT Sanhedrin :,a
Our rabbis taught Three are put to death by a human court, vhile
three |others are subject to| death by heaven.
One vho prophesies that vhich he did not hear, or that vhich vas
not said to him, or vho prophesies in the name of an idol, is put to death
by a human court.
One vho holds back |literally, represses| his prophecy, or one vho
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disregards the vords of a prophet, or a prophet vho transgresses against his
ovn vords, is |subject to| death by heaven.
lrom vhere does |all| this derive Rav \ehudah said, quoting Rav
Scripture says, But any prophet vho presumes to speak in My name (Deut.
::o)this refers to one vho prophesies that vhich he did not hear; that I
did not command him,implying, but that I did command his fellov
this refers to one vho prophesies that vhich vas not said to him. And he
vho speaks in the name of other godsthis refers to one vho prophesies
in the name of an idol. |Regarding these three| it is vritten, that prophet
shall die.
One vho holds back his prophecy, or one vho disregards the vords
of a prophet, or one vho transgresses against his ovn vords, is |subject to|
death by heavenas vritten, if anybody fails to heed the vords he speaks in
My name (Deut. :,), vhich can also be rendered, fails to make heard.
I myself vill call him to accountby heaven.
One vho prophesies that vhich he did not hearsuch as Ze-
dekiah son of Kenaanah. . . . |But| vhat could he have done The |lying|
spirit vas misleading him'
6
. . . He ought to have scrutinized |the mat-
ter| in light of vhat Rabbi \itzhak said. lor Rabbi \itzhak said One mes-
sage may come to several prophets, yet no tvo prophets convey their mes-
sages in the same vay. |lor example,| Obadiah () said, \our arrogant
heart has seduced you, vhile |eremiah (,o) said, \our horrible nature
has seduced you, your arrogant heart. |In the case of | these |four hundred
prophets|, hovever, since they vere all speaking identically, it could be con-
cluded that their speech is vorthless.But perhaps he did not knov the
teaching of Rabbi \itzhak|ehoshaphat vas present, and he told them.
7
As vritten, Then |ehoshaphat asked, Isnt there another prophet of the
Iord here ( Kings ::;)|The king of Israel| asked him Arent all
these here |ehoshaphat ansvered Thus runs a tradition I hold from my
grandfathers house One message may come to several prophets, yet no tvo
prophets convey their messages in the same vay.
One vho prophesies that vhich vas not said to himsuch as Ha-
o. See o.
;. The Rabbis standardly depict righteous Davidic kings as great scholars.
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naniah ben Azzur. |eremiah stood in the upper marketplace and proclaimed,
Thus said the Iord of Hosts I am going to break the bov of Llam ( |er.
,). Hananiah, on his ovn, reasoned a fortiori If vith regard to Llam,
vho merely came to assist Babylon, God said, I am going to break the bov
of Llamhov much more so the Babylonians themselves' So he came to
the lover marketplace and proclaimed, Thus said the Iord of Hosts . . . I
am going to break the yoke of the king of Babylon ( |er. :::).
Rav Papa said to Abaye That vas not said to his fellov |prophet|
either'He ansvered Since it is legitimate to reason a fortiori, it is as
though it |the implication| had been said; yet to him it vas not said.
Role oj the Irophet auo Criteria jor Irophe.y
z. Maimonides, MT loundations of the Torah ;:
Translated by Bernard Septimus, forthcoming in the \ale |udaica Series (\ale University
Press).
!he jeuish traoitiou iu.luoes mauy a..ouuts oj prophe.y, ree.tiug a uioe rauge oj
spiritual orieutatious, mauy oo uot share Maimouioes ratioualisti. portrayal. 1ithiu
the halalhi. traoitiou, houe:er, the .hapters iu Maimouioes .ooe regaroiug prophe.y
uere espe.ially iuueutial. His ois.ussiou has a tuojolo purpose. Cu the oue hauo, he
preseuts (true) prophe.y as a pereuuial religious ioeal, auo ou the other hauo, he high
lights the uuique truth oj Mosai. prophe.y. !he latter is oj .ru.ial politi.al sigui.au.e
|e.ause it esta|lishes the eterual authority oj the !orah.
Chapter ;
. One of the foundations of religion is to knov that God causes
prophecy in humans. But prophecy comes into eect only in a sage |halham|,
possessed of great visdom, a champion in |regulating| his moral qualities
never mastered by his nonrational part, but ever, by his reason, mastering
it|and| possessed of a most ample and sound intellect. When a person,
brimming vith all these qualities |and| sound of body, enters Pardes |i.e., the
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study of philosophy|,
8
becomes absorbed in its great and vondrous topics
(having an intellect t to understand and apprehend |them|), progressively
sancties himself, forsakes the vays of the crovd vhovalk in temporal dark-
ness, continually girds himself and trains his soul to have no thought vhat-
ever of any idle matter nor of temporal vanities and viles, but vhose mind
is ever turned upvard, xed belov the Throne |i.e., God in His sublimity|
in contemplation of those holy and pure lorms, and he reects upon the full
visdom of the Holy One, blessed be He, |evident in everything| from the
lirst lorm to Larths center, and discerns thereby His grandeurstraight-
avay the Holy Spirit rests upon him. And vhen the spirit rests upon him,
his soul partakes of the angelic rank called Ishim |i.e., the Active Intellect|,
he is transformed, and understands, rationally, that he is no longer as he vas,
but has rather been elevated above the rank of other vise persons, as it is
said vith regard to Saul And you shall prophesy
9
vith them and be turned
into another person ( Sam. oo).
:. Prophets are of diverse ranks. |ust as in |the realm of | visdom,
one sage can be greater than his fellov, so too in |the realm of | prophecy,
|one| prophet |can be| greater than |another| prophet. But all perceive the
prophetic vision novise but in a dream, |i.e.,| a night-vision, or, during the
day, after being overcome by a trance, as it is said I make Myself knovn to
him in a |daytime| vision |or| speak to him in a dream (Num. :o). |The
experience of | all of them, vhen prophesying, |is that| their limbs tremble,
|their| bodily force is enfeebled, and their |ordinary| mental images are dis-
rupted, leaving the mind free to comprehend vhat it sees, as it is said, re-
garding Abraham, And behold a great, dark fear fell over him (Gen. :),
and as it is said regarding Daniel lor my radiant appearance vas fearfully
changed, and I retained no strength (Dan. o:).
. The things communicated to a prophet in a prophetic vision are
done so in gurative mode and straightavay the interpretation of the gure
is impressed upon his mind in |that| prophetic vision, so that he understands
:. The term paroes (literally, grove), etymologically linked to paradise, appears in Rabbinic
accounts of the search for esoteric knovledge (cf. BT Hagigah b). Maimonides identies
this vith philosophy; cf. MT loundations of the Torah .
,. To prophesy, on this understanding of the verse and in Maimonides usage in this chapter
generally, is to experience a prophetic state, not to issue prophetic pronouncements.
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vhat it signies. lor example the ladder that |acob, our father, sav, vith
angels ascending and descending it (Gen. :::), vhich vas a gure for the
|foreign| empires and subjugation |of Israel|. Other examples the living
creatures seen by Lzekiel (Lzek. ), the boiling pot and almond rod seen
by |eremiah ( |er. , ), the scroll seen by Lzekiel (Lzek. :,), and the eja
|measure| seen by Zechariah (Zech. o). So too the other prophets. Some-
times they say |both| the gure and its interpretation, as in the instances
mentioned above; sometimes they say only the interpretation; and some-
times they say only the gure, vithout interpretation, as in some of the
vords of Lzekiel and Zechariah. But all of them prophesy in gure and sym-
bolic mode.
. None of the prophets prophesy at vill. They rather focus their
minds, remain joyful and glad of heart, and vithdrav |into inner concen-
tration|. lor prophecy rests |upon the prophet| neither in a state of sadness
nor in a state of lassitude, but in a state of joy. That is vhy the sons of the
prophets have before them harp and timbrel, pipe and lyre ( Sam. o)
as they seek prophecy. . . .
. Those vho seek to prophesy are the ones called sons of the
prophets. Though they focus their minds, the 8helhiuah |i.e., the prophetic
spirit| may or may not come to rest upon them.
o. All of the above constitute the prophetic mode for all prophets,
early and late, save Moses, our master and master of all prophets. Hov does
the prophecy of Moses dier from |that of | all other prophets All |other|
prophets |prophesy| in a dream or vision |state|, vhereas Moses, our mas-
ter, |prophesied| avake and erect, as it is said And vhen Moses vent into
the Tent of Meeting to speak to Him, he heard the Voice (Num. ;:,). All
|other| prophets |prophesy| through the intermediacy of an angel, vhich
is vhy they perceive vhat they do in gure and symbol; |vhereas| Moses,
our master, |prophesied| vithout the intermediacy of an angel, as it is said,
With him I speak mouth to mouth (Num. ::); and it is said, And the
Iord spoke to Moses face to face (Lxod. ). It is further said, And he
perceives the |true| form of the Iord (Num. ::), vhich is to say that there
is no gure; he rather perceives the matter as it truly is vithout symbol,
vithout gure. This is vhat the Torah |means vhen it| testies concerning
him, Through a |mental| vision vithout symbols (Num. ::)|namely|
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that he prophesies not in symbol, but in |a rational| perception that discerns
the matter as it truly is. All |other| prophets dissolve in fear and terror |vhen
prophesying|. Not so Moses, our master. That is vhat Scripture |means vhen
it| says |that God spoke to Moses| As a man speaks to his fellov (Lxod.
) just as a person is not terried to hear his friends vords, so did Moses
mind have the strength to comprehend the prophetic vords, vhile stand-
ing his ground intact. All |other| prophets cannot prophesy at vill. Not so
Moses, our master vhenever he vished, the Holy Spirit vould invest him,
and prophecy rest upon him. He had no need to focus his mind and to ready
himself for it, for he vas ever focused and readied, like the ministering an-
gels. He could therefore prophesy at any time, as it is said Stand by and I
vill hear vhat the Iord commands concerning you (Num. ,:). Of this,
God |Himself | assured him, as it is said Go and say to them Return to
your tents; but you abide here vith Me (Deut. :;::). lrom this you
learn that all |other| prophets, vhen the prophetic state departs |them|, re-
turn to their tent namely, the totality of bodily needs, |being then| like
the rest of the populace. They do not, therefore, vithdrav from their vives.
But Moses did not return to his original tent he, therefore, vithdrev for-
ever from marital relations and the like; his mind vas knit to the Lternal
Source; the splendor never departed him; the skin of his face vas radiant; he
vas sanctied like the angels.
;. The prophecy that a prophet experiences may be his alone, |its
purpose being| to expand his mind and augment his intellect so that he com-
prehends vhat he had not, of those great matters |mentioned in paragraph |.
He may, on the other hand, be charged vith a mission to one of the nations
of the earth or to the inhabitants of a city or a kingdom to enlighten them,
to apprise them of vhat they should do, or to prohibit them from their evil
deeds. When charged vith a mission, he is given an evidential sign so that
the people knov that God has truly sent him. But not just anybody vho
produces an evidential sign is believed to be a prophet. Rather |if | someone
vas previously knovn to us to be vorthy of prophecy, by reason of his vis-
dom and deeds, vherein he has surpassed all his contemporaries and |if | he
has folloved in the paths |prerequisite for| prophecy, its sanctity and its tem-
perance, and he then comes forvard, produces an evidential sign, and says
that God has sent him, ve are commanded to heed him, as it is said To him
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Truth, lalsehood, and Interpretation ::,
shall you hearken (Deut. :). Nov it is possible that such a person vill
produce an evidential sign though not a prophet, that sign being decep-
tive, and yet ve are commanded to heed him because he is a great person, a
sage, and vorthy of prophecy, ve accept his presumptive condition; for that
is vhat ve vere commanded |to do|. |It is much| as ve vere commanded
to decide legal cases on the testimony of tvo proper vitnesses, though it is
possible that they have testied falsely, because they are, to our knovledge,
t, |and so| ve presume their tness. Of these things and the like it is said
The hidden things belong to the Iord our God, vhile the apparent things
belong to us and to our children, etc. (Deut. :,::). And it is said Man
|perforce| sees vhat meets the eye, vhereas the Iord sees the heart ( Sam.
o;).
Chapter :
. Nov, as for Moses, our master |vho vas himself the source of
the previously mentioned command| Israel did not believe in him on ac-
count of the signs that he produced. lor vhoever believes on the basis of
signs |necessarily| entertains doubts, since a sign can be produced by secret
art and sorcery. Whatever signs Moses performed in the vilderness vere
performed, rather, to meet some exigency, not to validate |his| prophecy
ve needed sustenance, so he brought dovn the manna for us; vhen |Israel|
thirsted, he split the rock for them; vhen Korahs company denied him, the
earth svalloved them; and similarly |vith| all the other signs |performed in
the vilderness|. Whence, then, |Israels| belief in him |It derived| from the
gathering at Mount Sinai for our eyes sav, not some stranger, and our ears
heard, not some other, the re, the thunder, the torches, |and hov Moses|
approached the thick darkness, and the Voice vas speaking to him, and ve
heard Moses, Moses, go and tell them such-and-such. Thus does |Scrip-
ture| say The Iord spoke to you face to face (Deut. ). And it is said
Not vith our fathers did the Iord make this covenant |but vith us| (Deut.
). Hovdo you knovthat doubt-free validation of |Moses| prophecy rests
exclusively on the gathering at Mount Sinai lor it is said, Io, I am coming
to you in a thick cloud, that the people may hear vhen I speak vith you,
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:o Prophets
and may also believe in you for ever (Lxod. ,,). It follovs that before this,
they had not believed in him vith a perdurable trust, but vith a trust that
remained susceptible to suspicion and second thoughts.
:. . . . All Israel bears vitness to Moses after the gathering at Mount
Sinai; he need produce no sign for them. This is |the import of | vhat the
Holy One, blessed be He, told him at the beginning of his prophetic mission.
When |God| gave him the signs to produce in Lgypt, and told him, They
vill hearken to your voice (Lxod. :), Moses, our master, knoving that
one vho believes on the basis of signs entertains doubt, harbors suspicions,
and has second thoughts, attempted to extricate himself from the mission,
saying, But behold they vill not believe me (Lxod. ), until the Holy
One, blessed be He, informed him that these signs vill be |necessary| only
until they leave Lgypt; but once they leave, and stand at this mountain, vhat-
ever suspicion they harbor about you vill vanish; for here I vill give you a
sign through vhich they vill knov that I really did send you from the rst;
no suspicion vill remain in their hearts. This is vhat Scripture |means vhen
it| says And this shall be the sign for you, that I have sent you vhen you
have brought forth the people out of Lgypt, you shall serve God upon this
mountain (Lxod. :). One can therefore say of every post-Mosaic prophet
that ve believe in him not just on his signvhich vould lead us to say, As
long as he performs a sign, ve vill heed vhatever he saysbut rather on the
commandment that Moses laid dovn for us in the Torah, vhich says Should
he give you a sign, heed him (Deut. :). |ust as he commanded us to
decide legal cases on the testimony of tvo vitnesses, even though ve do not
knov |vith certainty| vhether their testimony is true or false, so too ve are
commanded to heed this prophet, vhether his sign be true or |unbeknovnst
to us| the product of sorcery and secret art.
. Therefore, should a prophet arise, produce great evidential signs,
and seek to contradict the prophecy of Moses, our master, ve pay him no
heed ve knov, vith certainty, that those signs vere |performed| by secret
art and sorcery. lor the prophecy of Moses, our master, is not |believed| on
the basis of signs, that ve should measure the signs of the one against the
signs of the other. We, rather, vitnessed it vith our ovn eyes, and heard it
vith our ovn ears, just as he did. This may be compared to vitnesses vho
tell a person vho sav something vith his ovn eyes that it vas not as he, in
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Truth, lalsehood, and Interpretation :
fact, sav. |That person| vill pay them no heed, but rather knov, vith cer-
tainty, that they are false vitnesses. That is vhy the Torah said that should
the evidential sign come to pass . . . do not heed the vords of that prophet
(Deut. ). lor that |alleged prophet| comes to you vith an evidential
sign in order to deny vhat you have seen vith your ovn eyes' Since ve be-
lieve |prophets| not on the basis of signs, but because of the commandment
|to do so| laid dovn by Moses, hov could ve possibly accept, on the basis of
a sign, someone vho comes to deny the Mosaic prophecy, that ve sav and
heard
Connentary. Prophecy and Trust
We are obliged to heed the prophet on penalty of death by
heaven. But hov does one knov that the prophet is not a pretender or a
victim of his ovn delusion All political communities face a version of this
question Hov does one distinguish betveen the dangerous zealot, the mis-
guided idealist, and the authentic visionary, each claiming exclusive knovl-
edge of the truth Who among such individuals deserves our trust
Deuteronomy remits the prophet to the judgment of history. If
the vord does not come true, that vord vas not spoken by the Iord. But
this test is of no use at the critical juncture vhen action is required. Kings, for
example, must choose immediately betveen competing prophecies. Whom
should they trustthe four hundred vho speak in unison or Micaiah, the
lone dissenter Zedekiah, vho repeats the message of the prophetic band,
sincerely believes in his prophecy. Should he suppress it, risking death by
heaven, or utter it, risking execution if it fails to materialize
The sages resolution of this case is motivated, not by the practical
dilemma of the kings, but by the moral dilemma of the judiciary. Hov can
the court punish someone vho speaks sincerely Zedekiahs fault vas in fail-
ing to scrutinize |the matter| in light of Rabbi \itzhaks tradition One
message may come to several prophets, yet no tvo prophets convey their
messages in the same vay. As the four hundred spoke identically, Zedekiah
should have realized that their prophecy vas vorthless.
This text is enigmatic. Why, in the sages viev, must a genuine
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:: Prophets
prophet deliver his message in distinctive language Does this bear on the
truth of a prophets claim that he received a message from God Does the
test identify qualities of mind or character necessary for the prophet to fulll
his mission
It is tempting to argue, as our editors imply in their introduction,
that the sages are arming the value of individualism, a quality critical for
the fulllment of the prophets mission. In political life, the individualist,
vho is true to his ovn ideals and not those of society, can be trusted to stand
up to the reigning povers or the masses. Iike the nonconforming Micaiah,
vho calls the king to account before the kingdom of God, the prophet vho
speaks in his ovn voice announces that his vords are impelled by God alone
and so can be trusted to represent Gods vill. The contrast, our editors tell us,
is vith the alvays smooth vords |spoken| in unison of the kings minions.
But the sages do not read the contest of the prophets as a politi-
cal battle betveen the individualist vho speaks truth to pover and the
appeasers allied vith the royal court. They focus on the reported source of
Zedekiah and the bands prophecy a lying spirit sent by God to lure the king
to his death. This reading is compatible vith the text, vhich does not iden-
tify the political aliation of the four hundred prophets, and daring in its
acknovledgment that false prophecy may be erroneous rather than deliber-
ate, induced by God to further the divine plan of history.
The larger legal discussion of the sages also centers on the source
and form of the prophets utterance, not his character or political role. Ac-
cording to the sages, the anonymous |araita cited to open the talmudic dis-
cussion (Our rabbis taught . . .) identies three types of false prophets one
vho delivers a message not heard from God, one vho delivers a message
sent by God to another prophet, and one vho speaks in the name of idols.
The sages oer examples of each category, culled from the literary record. In
this context, Rabbi \itzhaks traditionthat prophets may receive the same
message yet express it dierentlyis cited by the sages not only to justify
Zedekiahs punishment but also to clarify hov the literary record comports
vith the |araitas categories. The case of the four hundred falls vithin the
rst category because a single message is expressed identically by prophets
speaking in unison. But a prophecy that appears to cite a prior prophecy,
vith variation in vordingas in the case of Obadiah and |eremiahmay be
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Truth, lalsehood, and Interpretation :
genuine, rather than an instance of the second category. Obadiah and |ere-
miah received the same message, yet each expressed it distinctively.
But the sages do not explain vhy they accept Rabbi \itzhaks test
as not merely descriptive of the literary record but normative binding on
the prophet himself. Nor do the sages specify hov distinctive the prophets
speech must be. The cited example (Obadiah and |eremiah) exhibits only
minor variation in language. It is even unclear vhether the sages thought
that the specic vording of the message vas the vork of the prophet or of
God. Certainly, a prophetic vision must be interpreted. But is a prophets
choice of language and metaphor conscious and free or, as Maimonides puts
it, an interpretation straightavay impressed upon the prophets mind
Hov, then, might the sages explain vhy a genuine prophecy must
bear the stamp of individual expression Possibly, Rabbi \itzhaks tradition
conforms vith the sages vievs about the irreducible singularity of true pro-
phetic revelation. In contrast to the lying spirit, vhich places vords directly
in the mouths of the prophets, God does not speak through a prophet, but
to a prophet, vho inevitably brings his individuality to bear on the content
of the revelation. As Maimonides points out, the prophets varied in their
prophetic capacities. |ust as a picture vill be perceived dierently by each
viever, depending on her perspective, the prophetic vision vill be perceived
dierently given the life experience and talents of the individual prophet. If
so, each prophets formulation of the same message must vary.
A simpler explanation of Rabbi \itzhaks test, less evocative but
closer to the Rabbinic legal tradition, is that individual speech is given to
the prophet (or required of him) as an external sign of his trustvorthiness.
In assessing the credibility of speakers, the lav recognizes the evidentiary
signicance of individual human speech. Witnesses vho testify in identical
language are disqualied because of the suspicion that they colluded and in-
vented their testimony, even though they may be telling the truth. Rabbi
\itzhaks tradition, one rabbinic commentator points out (Samuel Lliezer
Ldels, Maharsha), applies this evidentiary criterion to prophecy. Only a mes-
sage conveyed in distinctive language is exempt fromthe suspicion of plagia-
rism or collusive invention. Zedekiah should have scrutinized the bands
prophecy and disqualied it, as does the judge vho scrutinizes the testi-
mony of vitnesses.
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: Prophets
Maimonides also understands prophecy as analogous to judicial tes-
timony and subject to similar legal requirements. The prophet is a vitness
testifying that he has received a message fromGod. None of the conventional
signs of the prophets truthfulness vill satisfy the rational person, yet, as vith
a judicial vitness, judgments about the credibility of the prophet must be
made. Israel is obligated to trust the prophet vho brings signs because Mo-
saic lav so stipulates. The command to heed the prophet is comparable to
the presumption of truthfulness extended to tvo competent vitnesses.
Thus, prophecy, like every other human experience, is analyzed
vithin the framevork of the halalhahs legal categories and ultimately is
tamed by them. The sages focus on Zedekiahs obligation to question the
source of his prophecy. He must examine his experience, no matter hov
poverful, in light of accepted criteria of trustvorthiness. Must the prophet
also scrutinize the substance of his message in light of the standards of the
lav Maimonides points to the communitys obligation to disregard a proph-
ecy that annuls Mosaic lav. Indeed, by distinguishing Mosaic prophecy,
vhich ve knov to be true, having publicly vitnessed its communication,
from all other prophecies, vhich are open to doubt, Maimonides eectively
safeguards the lav from the revolutionary potential of later claims to reve-
lation. Prophecy, vhich is subject to doubt, logically must be subordinate to
Mosaic lav, vhich is certain. Maimonides further defuses the unruly force of
prophecy by turning, unlike the sages here, to the prophets internal quali-
ties of mind and character. By treating the prophet as a self-vitness, Mai-
monides is able to assert that, as vith judicial vitnesses, the presumption of
trustvorthiness extends only to those vho are competentvho are possible
prophets. lor Maimonides, it is the vise and righteous vho are vorthy of
prophecy. He thus virtually collapses the once distinct categories of prophet
and sage.
Maimonides, hovever, is forthrightly responding to the critical
questions Who deserves our trust vhen the truth is unveriable What quali-
ties of mind and character and degree of loyalty to existing institutions
should those to vhom ve grant authority over our actions possess The indi-
vidual, no matter hov charismatic or heroic, vhose claim to authority is
based on private access to a revelatory vision does not justify his claim in
terms of argument, institutional authority, or the accumulated learning of
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A Medieval Prophet :
the past. By contrast, the sage, vho frames his arguments vithin the ac-
cepted structures of the lav, has the capacity to persuade and to transmit
the inherited tradition over the generations. The tradition may be enlarged
through the discovery of nev solutions pre-existing in it, but the tradi-
tion vill not be transcended. Those vho yearn for more radical transfor-
mation must be villing to accept the price the creation of a nev political
community.
8u:auue Last 8toue
A Meoie:al Irophet. !he A|ulaa Coutro:ersy
Iu :.,o, iu 8i.ily, A|raham A|ulaa, the author oj se:eral propheti. tra.ts auo mys
ti.al uorls, auuouu.eo the ouset oj the messiaui. era. A|ulaas oppoueuts turueo jor
help to 8olomou |. A|raham Aoret oj Bar.eloua (Rash|a), uhose spe.i. letters re
garoiug A|ulaa are uou lost. Iu the respousum ue repriut here, Aoret aooresses the
geueral pheuomeuou oj propheti. preteusious iu his ouu time uith .riti.al reser:e. He
rst ois.usses the .ase oj Ra||i ^issim oj A:ila, uho .laimeo propheti. pouers, auo
theu strougly .ouoemus A|ulaas imagiueo auo jalse uoros. Aoret uas himselj a
leaoiug la||alist, auo his oppositiou to A|ulaa stems iu part jrom a reje.tiou oj the
latters :ersiou oj mysti.al oo.triue. Iollouiug Aorets letter, ue preseut a se.tiou jrom
A|ulaas su|sequeut oejeuse, Ve-Zot Iihudah.
Critique oj Iropheti. Claims
. Solomon b. Abraham Adret (Rashba), Respousa :
We have beneted here from the collection of Adrets responsa edited by H. Z. Dimitrov-
sky, !eshu:ot Harash|a ( |erusalem Mossad ha-Rav Kook, ,,o); see .
This is vhat I vrote to the communities vho inquired concerning the
prophet of Avila
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:o Prophets
Reports alarm us. They secretly relate matters inaccessible to mind
and intellect, leaving us confounded.
I have examined your important letter. Lven before it had reached
us, a man arrived carrying a letter from Rabbi Abraham the Scribe, the father
of that person, Rabbi Nissim |the prophet of Avila|, relating his experiences.
And it said that it has been four years since the spirit of the Iord began
to move him ( |udg. :). |This occurred| sometimes vhile he vas avake
and other times vhile he vas dreaming. An angel spoke to him, revealed
his name, and vrote for him a booktventy-three measures of paper in
lengthvhich he named !he 1ouoers oj 1isoom. He further began to vrite
a lengthy commentary on every vord |of the book|, and the commentary
for a page of the book vas tvo measures in length. He |Rabbi Abraham the
Scribe| also sent me a prcis of fty chapters. I took an extremely skeptical
viev of these matters. . . .
Some such cases I have seen and heard |myself |. One of them vas
that scoundrel, may the name of the vicked rot, that Abraham |Abulaa|
vho claimed to be a prophet and messiah in Sicily. With his lies he seduced
some |evs; had I not shut the door against himvith Gods mercy, through
my letters and the letters of the holy communitieshe vould have quickly
consummated vhat he had begun. |lor he spoke| vith an abundance of
imagined and false vords vhich to a fool seem lofty visdom. He vould
think about them for a fev days vith the diligence that he generally em-
ployed. And he took scriptural verses and the vords of the Sages concerning
numerology, mixing them vith a fev true things taken from the books of
visdom.
Nov, you say (vith some of the people vho claimed to have knovn
him initially) that he |Rabbi Nissim| vas a vell-knovn ignoramus, vho had
not |studied| continuously vith any person, and did not understand |the
opinions| of any person, nor of any book of visdom. If this is true, our sus-
picion |of forgery| is untenable. Hovever, it is also impossible that he is a
prophet or that an angel of God spoke to him, taught him, and vrote a book
for him. I cannot believe or entertain this notion, for several reasons.
lirst, because our Rabbis of blessed memory, the masters of true
visdom, have already taught us that prophecy only dvells in someone vho
is vise, vealthy, and courageous |see BT Nedarim:a|. |Thus the possibility|
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A Medieval Prophet :;
that a person might go to sleep vith no visdom and arise at davn a prophet
among us is hardly credible. Our Rabbis of blessed memory have clearly in-
structed us that this is vrong. Admittedly, I do not assert conclusively that
no |divine| vord or commandment ever came to any person unless he ful-
lled these three conditions. lor ve have the cases of Iaban, Abimelech,
Gideon, and Manoah and his vife, of vhom they |the sages|, peace be unto
them, said Manoah vas an ignoramus |am haaret:| (BT Ber. oa). But all
these vere only temporary, to address a |particular| need or for a miraculous
eect. . . .
Moreover, our generation is not vorthy of |prophecy|. Lven of the
students of Hillel the Llder, vho achieved a supreme holiness and vere of
great visdom and piety, it has been said They vere vorthy of having the
shelhiuah dvell among them like Moses our master, but their generation vas
unvorthy. Could it be that the generation of Hillel and his pious students
vas unvorthy and this, our generation, is vorthy
. . . Moreover, it is contrary to the tradition |la||alah| ve have
received from the true sages
10
|stating| that |the spirit of | prophecy does
not dvell outside of the Iand |of Israel|. Hov can ve believe in some-
thing that contradicts the knovledge of the sages of Israel received from
the prophets . . . But vhat I nd particularly distressing and frightening is
that a man unvise and ill-read, vho vas never trained by any halhamif
|ve are to believe| the reports as they arecould vrite systematically about
such exalted matters. I nd this immensely incongruous, and my heart is
caught betveen these |opposite propositions|. Searching for some cause for
this phenomenon, I say that there are numerous dierences in human nature
and in the natural dispositions of the human imagination. There are innite
accidents
11
attached to them, vhether essentially or incidentally. There have
been many people in the past vith a poverful imagination vhether by birth
or by virtue of some later development. They have true visions and the vise
call them lahiu |Arabic visionary|. I have heard that some such povers are
temporary and subsequently cease.
o. Among Nahmanides and Adrets circle of kabbalists the true path denoted the authentic
esoteric tradition. Thus, Adrets choice of terms in this sentence, including his use of the
vord la||alah, suggests a polemic against Abulaas mystical pretensions.
. In the Aristotelian sense of a nonsubstantive quality.
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:: Prophets
|At this point Adret relates stories of other such visionaries and hov
the communities dealt vith them.|
linally |I must say that| my mind and the minds of such vise men
as you are perplexed by this matter. We have striven to comprehend and have
not succeededproviding that the testimonies that he has not studied and
has not been trained by a halham are true. lolloving this perplexity, I say
this matter needs considerable investigation, an investigation of this man by
the vise and by men of knovledge concerning his soundness of mind, his
actions and practices from earlier times to the present. lor prophecy and the
holy spirit only dvell upon a vorthy and pious person vho has achieved
the moral and intellectual virtues, just like the true prophets. This investi-
gation vould necessarily uncover the root of the matter or |at least| some
of it. He must be tested to see if all his prophecies come true,
12
or vhether
there occurs some inaccuracyeven a hairbreadths |miss|. Lven |if there is
no inaccuracy|, it vould remain doubtful. . . .
Israel, inheritors of the true religion, the children of |acob, man of
truth vhose seed is all true, prefer enduring the yoke of exile and vhatever
befalls them |in exile| to believing this matter. And not before they investi-
gate it thoroughlyinvestigation folloving investigationso as to remove
any doubt from vhat they hear or vhat they may perceive to be a sign or
miracle. . . . |So too in| the case of Moses and Israel. They vere exhausted
by hard labor |in Lgypt|, and Moses vas commanded to proclaim |their re-
demption|. Lven so he argued They vill not believe me . . . (Lxod. ).
This is a true sign to our people, the People of the Iord, not to be
seduced but to ascertain the truth through a complete and thorough investi-
gation. And . . . the God of truth vill shov us a true sign by a true prophet,
Llijah the prophet of blessed memory vhose coming He truthfully prom-
ised us, as is vritten, Io, I vill send the prophet Llijah to you before the
coming of the avesome, fearful day of the Iord (Mal. :).
:. See Deut. :,:: ( ,).
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A Medieval Prophet :,
Dejeuoiug His Cuu Claim to Irophe.y
. Abraham Abulaa, 1e2ot Lihuoah
Ausuahl Ka||alistis.heu Mystil, edited by A. |ellinek (Ieipzig, :), vol. , pp. :,. The
text is in Hebrev.
I vrote this . . . letter to make knovn to you, my brothers, that Rabbi
Solomon ben Abraham ben Adrets viev regarding meor the informa-
tion he receivedis vain and foolish. Proof of this is the fact that I, thank
God, have folloved the proper course of studies. I have studied Scripture and
grammar suciently, and composed grammar textbooks; anyone vho mas-
ters them vould be considered, novadays, an accomplished grammarian. I
have studied Talmud judicial reasoning and rulings, fromtvo teachers, gain-
ing knovledge of a fair share of the mit::ot. I have studied midrash, aggaoah,
and |araitot to a medial level. I have studied logic, natural science, and mathe-
maticsthough not in depth. I have studied divine science according to the
method of the philosophers. I have also studied some medicine. . . . I have
studied !he Cuioe oj the Ierplexeo, vhich is truly a guide of astounding pro-
fundityincluding its esoteric |teachings|. In addition, |I have studied| the
Malmao |ha!almioim, by |acob Anatoli| and the Bool oj Beliejs ]auo Cpiuious|
by Rabbi Saadiah and the book Duties oj the Heart by Rabbi Bahya.
All these, vith the addition of the vise vorks of Abraham ibn Lzra,
moved me and led me to seek the secret of the serot, the |divine| names and
the vays of the |divine| Seal. All the aforementioned studies did notprior
to my attaining knovledgelead me to the grandeur of prophecy but rather
to glory in |my| visdom. Nov, it has already been stated that a vise man
should not glory in his visdom ( |er. ,::). Hovever, vhen I attained the
|divine| names and unraveled the knots of the seals, the Iord of all vas re-
vealed to me. He revealed to me His secret and informed me of the end of the
exile and the beginning of redemption. . . . He then compelled me to assume
the grandeur of prophecy, leading me to discourse of the sciences |visdom|,
and to vrite vondrous, novel praises |of God| and beautiful poetry.
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:o Prophets
Connentary. Can There Still Be Prophets
This controversy betveen Abraham Abulaa and Solomon Adret
is one of many such incidents in Abulaas exceptionally adventurous life.
His career can be presented as a long series of clashes betveen his claims
as a prophet and messiah and the |evish and non-|evish reactions to these
claims. Perhaps the most extraordinary example is his desperate attempt to
meet the pope (in August ::o on the eve of the |evish Nev \ear). Abulaa
vas varned of the danger of his attempt, arrested vhen he persisted, kept
in custody for tvo veeks, but then set free. Most of Abulaas propheti-
cally inspired vritings have unfortunately been lost. But his commentary
on these vorks, vritten in Sicily, has survived. It is mainly from this text that
ve learn about Abulaas far-reaching claims. One of his prophetic vorks
vas called 8ejer haHajtarah, because he instructed that it be read during the
Sabbath service directly after the portion from the Pentateuchjust like a
canonical prophetic book.
Abulaas messianic and apocalyptic messages vere intended to
avaken the |evs, but not only them. Thus, for example, he vrites that God
has sent him to convey the vords of the Iiving God to the |evs, vho are
circumcised in their esh but uncircumcised in their heart. Hovever, Abu-
laa claims that the |evs, to vhom he vas especially sent and for vhose sake
he has provided his revelation, have not paid due attention to the form of
his comingthey have pronounced regarding him and his God vords that
should not be said. Then, he adds that God has commanded him to speak
to the gentiles, those of uncircumcised heart and uncircumcised esh, in his
name. And he has done so, and he spoke to them and they believed in the
message of the Iord. But they did not return to God because they relied on
their svord and bov, and God has hardened their uncircumcised and impure
hearts.
This is a very precious testimony of the propagandistic activities of
Abulaa. But even the dissemination of an eschatological-kabbalistic mes-
sage to |evs alone vould have suced to suggest a turning of ecstatic Kab-
balah to external aairs, a radical change in kabbalistic politics from eso-
tericism to exotericism. Prior to Abulaa, the main thrust of the kabbalists
in Spain vas esoteric, but the ecstatic kabbalist, vho identied his ultimate
goal as the attainment of a redemptive experience, sought a vider audience.
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A Medieval Prophet :
Tovard the end of his life, Abulaa vas involved in the bitter con-
troversy vith Solomon Adret of Barcelona that is reprinted here. This here-
tofore neglected controversy vas apparently precipitated by a erce assault
on Abulaas messianic and prophetic claims, mounted by Adret in a letter
to the |evs of Palermo. The letter testies to Abulaas inuence, for Adret
seems to viev him as a dangerous threat on tvo levels as a propagandist
for his peculiar type of ecstatic Kabbalah and as a (false) prophet and mes-
siah. But Adrets ery argument is focused on the issue of prophecy. In Abu-
laas response, he distanced himself from the theosophical Kabbalah, and
even more from its specic formulation as found in Nahmanides (and thus
Adrets) school that the ten serot constitute the very essence of the divine.
Abulaa contends that this is a viev vorse than the Christian trinitarian
belief, since it assumes even greater plurality in the divine realm.
As for his ovn prophetic role, I assume that Abulaas claim in his
Commeutary ou the Ieutateu.h, that prophecy originated outside the Iand of
Israel, is a response to a nov lost argument by Adret, similar to the claim
made here against the prophet of Avila, that Abulaa cannot be a true
prophet because he prophesies in Sicily. Against this, Abulaa claims that the
real Iand of Israel is the inner, spiritual one.
Adret, a member of the primary elitean author vho had a rm
position as a halakhic gure and as a leader of his communityattempted
to obliterate the pernicious impact of the emergence of prophecy in his
lifetime. Abulaa, vho belonged to vhat I propose to call the secondary
elitean intellectual vhose main eld vas not halakhic scholarship and
vho vas not a prominent gure in communal lifestrongly believed that
prophecy vas not an experience of the past, closed to postbiblical |udaism.
He not only claimed to be a prophet himself, in exactly the vay Maimoni-
des dened this religious experience, but also proposed precise techniques
to achieve prophecy, devoting many of his voluminous books to developing
those techniques.
The Adret-Abulaa controversy is apparently one of the main rea-
sons for the bitter tone ve detect in Abulaas later vritings, vhere rabbinic
gures of his generation are sharply criticized along vith their version of
theosophic Kabbalah. According to Abulaa, these rabbis ignored true spiri-
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:: Prophets
tuality, vhich focuses on the centrality of the divine name as the main path
to an ecstatic experience of a salvic nature.
Abulaas assumption that prophecy is, in principle, still available
in the present, and the techniques he provided to achieve it, remained part
of |evish culture. The numerous manuscripts in vhich the most important
books of Abulaa are extant, the fact that they vere studied by major g-
ures in the history of Kabbalah, such as Moshe Cordovero and HayyimVital,
and that the controversy betveen him and Rashba vas not forgottenall
bear testimony to the centrality of the continued belief in the possibility of
achieving prophecy. Indeed, its traces can be detected in at least tvo major
moments in the history of |evish mysticismSabbateanismand Hasidism
vhen Rashbas responsa vere quoted and discussed.
It is reasonable to assume that the concern vith the attainment of
prophecy remained an ideal in mystical forms of |udaism, as shovn by Hay-
yim Vitals inuential book 8haarei Keoushah, and in the prophetic claims of
Nathan of Gaza in Sabbateanism. Lven in late eighteenth-century Hasidism
ve nd testimony on the possibility of attaining a self-induced prophecy in
a manner very reminiscent of Abulaas technique. Rabbi Aharon ha-Kohen
of Apta argues that
it is impossible, by and large, to prophesy suddenly, vithout a cer-
tain preparation and holiness, but if the person vho vants to pre-
pare himself for prophecy sancties and puries himself; concen-
trates mentally and utterly separates himself from the delights of
this vorld; serves the sages, |including| his Rabbi, the prophet (and
the disciples that follov the vay of prophecy are called the sons of
the prophets); and vhen his Rabbi, |vho is| the prophet, under-
stands that this disciple is already prepared for |the state of | proph-
ecy, then his Rabbi imparts to him the . . . recitations of the holy
names, vhich are the keys to the supernal gate. (Cr haCauu: la
!:aooilim |:oo|, oab)
The later confrontations betveen prophetic charisma and halakhic
authority in |udaism drav upon the arguments found in the earlier debate
betveen the ecstatic and the theosophical-theurgical Kabbalah. The sub-
lime promises and the immanent dangers of these vievs are features of the
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A Medieval Prophet :
ongoing struggle betveen the forces of stability and dynamismthat combine
in creating the tension and then the vitality that makes possible the survival
of religions. Perhaps religious establishments of one sort or another can sur-
vive for a vhile in the absence of this struggle (this is alvays the claim of
the primary elite)but not a vivid faith, a profound spiritual engagement,
on the part of large numbers of men and vomen.
Moshe Ioel
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s i x Rabbis and Sages
Introduction
Custodians of the Lav
juoi.ial Authority
. Deuteronomy ;:
Chaiu oj !raoitiou
:. Mishnah Avot
!he Cral Lau. Irom 8iuai to the !almuo
. Maimonides, Introduction to the Mishueh !orah
Beyond Prophecy
De.liue oj Irophe.y
. Tosefta Sotah
A Halham Is 8uperior to a Irophet
. BT Bava Batra :ab
!he Halhams Ao:autage
o. |oseph ibn Migash, ^o:ellae ou Ba:a Batra :ab
!he Halhams Iropheti. Iouers
;. Nahmanides, ^o:ellae ou Ba:a Batra :a
!he !ea.hiugs oj 8.ri|es Are More Belo:eo !hau 8.ripture
:. Miorash Ra||ah. 8oug oj 8ougs :
Moses iu Ali:as A.aoemy
,. BT Menahot :,b
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Contents :
!orah Is ^ot iu Hea:eu
o. BT Bava Metzia ,b
Commentary. David Hartman, Lxpanding the Covenant
Lx.luoiug Irophe.y jrom the Halalhi. Iro.ess
. Maimonides, MT loundations of the Torah ,
A Mooeru 8yuthesis
:. Abraham Isaac Kook, A Halham Is Superior to a Prophet
Authority of the Oral Lav
Ra||iui. Legislatiou. You Must ^ot De:iate
. BT Shabbat :a
Re:isiug the Lau |y Miorash
. BT Makkot ::ab
Hillel Lua.teo the Iros|ul
. BT Gittin oab
Commentary. Noam |. Zohar, The Oral Iav Celebrating
Radical Reinterpretation
Medieval Argunents: Karaites and Rabbanites
Karaite Critique oj Miorashi. Iuuo:atiou
o. Llijah Basyatchi, Aooeret Lliyahu I
^either Aoo to It Applies Culy to the Multituoe
;. |udah Halevi, !he Ku:ari ,
^either Aoo to It Applies to Ra||iui. Legislatiou
:. Maimonides, MT Iavs of Rebels :; :, ,
Critique oj Ra||iui. Authority
,. Ieone Modena (attrib.), Kol 8alhal, Second Lssay, Chapter
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:o Rabbis and Sages
Modern Concerns: Halakhic Innovation and Rabbinic Authority
Critique oj Halalhi. Atrophy
:o. Moses Ieib Iilienblum, Crhot ha!almuo, Appendix
Auythiug ^eu Is Ior|iooeu
:. Moses Sofer, Respousa Hatam 8ojer, Orah Hayyim ::
!he ^eeo jor Halalhi. Iuuo:atious
::. Hayyim David Halevi, Aseh Lelha Ra: ;
!he Iouer oj the !:aooil
:. Llimelekh of Iyzhansk, ^oam Llimelelh, Vaethanan, s.v. hayom
Daat !orah. Lxteuoiug Ra||iui. Authority
:. Lliyahu Lliezer Dessler, Milhta: meLliyahu
Commentary. Iavrence Kaplan, Rabbinic Authority
and Modernity
Iutroou.tiou
Knovledge has alvays been one of the central varrants for political
ruleor, at least, for the claimto rule. Platos argument on behalf of philoso-
phers is the classic example. As it suggests, the claim is not often successful
the Republic is an entirely imaginary polis. School learning and professional
expertise more often position people as advisers or counselors than as actual
rulersthus the role of vise men in the biblical histories and the book
of Proverbs. Chinas mandarin bureaucrats are perhaps the great exception
here; they actually ruled the country, although they vere formally subordi-
nate to an emperor vho, since he held the mandate of heaven, did not have
to pass the civil service examinations. In the West, kings sometimes claimed
special insight into the mysteries of state, but they ruled by virtue of their
birth, not their knovledge, and they chose their ocials from an aristocracy
that rarely prized school learning.
The kings of Israel and |udah vere much like other kings they
did not inherit Solomons visdom (nor vas Solomon the ideal ruler in the
popular imagination; that place vas lled by David, remembered mostly as a
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Introduction :;
young varrior and singer of songs). Israels priests are identied in the Bible
as carriers of Torah, but in the post-exilic commonvealth they ruled chiey
by virtue of their role in the Temple service, not by virtue of their political
or religious knovledge. The Hasmoneans fought their vay to the throne. In
the Sanhedrin, priests and sages sat together, but their relative pover is un-
clear to us today. It vas the loss of independence, second exile, and dispersion
that ultimately led to the ascendancy of the learned.
After ;o c.r., Israel no longer possessed a geographical center in
|erusalem or an institutional center in the royal court or the Temple. It be-
came a text-centered society, focused on the Torah, bound by its covenant to
a set of lavs. After several centuries of confusion and conict, it vas eec-
tively, but never monolithically, ruled by a fellovship of legal scholars (hal
hamim, sages), trained in the rabbinic academies. The subject of their training
vas the textrst its meaning, then its application under ideal conditions
(as if the Temple still stood and the king ruled), and then its application in
the vorld as it actually vas and in the conditions of Israels exile. So the sages
ruled both in imagination and in fact, as philosophers and as judges.
But vhy vere these particular people the authorized interpreters of
the authoritative texts There is no historical moment vhen the texts vere
delivered to them, like the lav to Moses; nor vere the sages called by God, as
the prophets vere. Historical and biographical legitimation is replaced nov
by a special kind of genealogy. lirst described in Mishnah Avot, this geneal-
ogy is constituted as a chain of succession extending backvard fromthe sages
to Sinai, connecting them vith Moses and the prophets, vho had vhat the
sages so clearly did not have a direct, unmediated experience of divinity
(priests and kings are omitted from the chain).
The genealogical argument can be read as implying tvo rather dif-
ferent positions. The rst of these suggests that interpretive authority is
handed dovn from Moses to his successors, each generation recognizing, as
it vere, the generation that comes next and conferring legitimacy on its ver-
sion of the Torah. The second position suggests that the Torah itself is handed
dovn from one generation to another, but this is a Torah understood to in-
clude its ovn interpretations, the vritten and Oral Iav together, revealed to
Moses and passed on in its entirety. This latter viev represents a very strong
version of the standard defense of traditionstressing continuity, denying
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:: Rabbis and Sages
the reality of revision and innovation. But on both these vievs, the carriers
of the tradition today are authorized by its original recipients.
In fact, the sages prove their authority by their knovledge they
knov the texts and they knov the hermeneutical rules through vhich the
texts are interpreted. These tvo together give them access to the vord of
God, but since this is indirect access, seemingly less than the prophets had,
the sages continually compare themselves to the prophets and vorry about
their relative standing. Sometimes they claim that prophecy has ceased in
Israel and that they are its legitimate heirsthat their knovledge of Gods
vord is the only possible knovledge available in the exilic vorld. Some-
times they claim to be prophet-like, responding to a voice from heaven.
And sometimes they claim that their readings of the texts are superior to
prophetic disclosureat least vith regard to halalhah and the vork of the
courts, and perhaps more generally. The argument about the relative mer-
its of prophets and rabbis is an ongoing one, reecting in some vriters
an entirely understandable insecurity and in others an extraordinary self-
condence. In this century, the argument is best represented by the text
reprinted here from Abraham Isaac Kook.
The authority of the sages makes their ovn texts similarly authori-
tative. Henceforth, interpretation and commentary are the central genres of
|evish legal and political literature. These are at rst the products of aca-
demic discussion, preserved through memory. But the vritten form they
took much later vas probably xed early on in the minds eye the text sur-
rounded by, enclosed vithin, its commentaries. The commentaries never
entirely supersede the original texts, though the originals seem sometimes
to survive only in quotable bits and pieces, sentences and phrases used as
proofs by commentators and judges. But the authority of Scripture, and
then of the Talmud, can never be replaced. There is a pragmatic explanation
for this textual foundationalism the ongoing interpretive enterprise vould
cease to make sense, the judicial applications vould lose their legitimacy,
vithout the proofs. But pragmatism vould never have suced to sustain
the authority of the original texts vithout religious faithin Scripture as
the vord of God and in the Talmud as the revealed or genealogically autho-
rized interpretation and application of that vord.
lor this reason, it is alvays possible to return to the originals, quot-
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ing God, so to speak, against the rabbis. This is vhat the Karaites do they
oppose the vhole interpretive tradition in the name of biblical literalism.
Their relation to the rabbis is like that of Protestant reformers to the Catholic
doctors of medieval and early modern times.
The Karaites survived for centuries as an alternative |evish com-
munity, challenging the halalhah of the rabbis, vho expended much energy
in both literary and political responses. |udah Halevis Ku:ari provides the
greatest and most enduring literary response, and ve reprint excerpts from
it in this and the next chapter. The arguments are familiar because they arise
vithin every interpretive tradition. The Karaites ask vhy Gods vord is not
sucient unto itself, available to any conscientious reader (this is the |ev-
ish equivalent of Iuthers priesthood of all believers every man his ovn
rabbi). The Rabbanites respond that the vord is not self-evident; the Karaites
are themselves interpreters, but vhat they produce is a chaos of interpreta-
tionsin contrast to the coherent and stable rabbinic tradition, continuous
vith Moses and the prophets.
Karaite vriters vere certainly correct to argue that rabbinic |uda-
ism is as much innovation as continuation. That, indeed, is the strength of
an interpretive tradition it adapts, more or less readily, to changing politi-
cal and social realities. But this adaptive process raises hard questions. Hov
strong are the constraints of the original texts Hov far can an interpreter
move from their plain meaning ( peshat) Hov much can an interpreter do,
right nov, and hov openly When and hov do interpreters of the lav be-
come legislators in their ovn right The ansver to the last of these questions
is probably ^e:er iu their ouu right, for the original text says lo tosij (do not add
|to the lav|), and the rabbis must claimto be bound by the text. Insofar as the
interpreters revise by elaboration and addition, the interpretation is alvays
open to challenge. When the rabbis act against the lav in an emergency, re-
sponding to the needs of the hour, arent they replacing it vith something
nev When they build a fence around the lav, arent they adding to it
Halevi claims that so long as the needs are met and the fences are
built |y the sages, that is, by scholars committed to the tradition and alvays
acting in delity to its principles, these questions dont apply; lo tosij is a pro-
hibition only for the multitude (and therefore, of course, for the Karaites).
Maimonides takes the prohibition to apply also to the rabbis, but vhat it
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:o Rabbis and Sages
prohibits, he argues, is only change in the Torah; it poses no bar to rabbinic
legislation so long as this legislation doesnt claim to be from Sinai. The
rabbis can do vhat they think necessary so long as they leave the public face
of divine lav intact. A standard distinction betveen Gods lav and the rul-
ings of the rabbis underlies the Maimonidean argument the latter can alvays
be changed, though there are signicant restraints on the process; the former
is in principle unchangeable, though alvays subject to interpretation.
The closest analogy to these kinds of arguments is the role of lav-
yers and judges in a country like the United States, vith a vritten and
much revered constitution. Americans are constantly engaged in debates that
closely resemble those that have characterized |evish legal and political his-
toryabout texts, intentions, meanings, interpretations. And these debates
lead to comparable vorries about legal maneuvers and manipulations . . .
and usurpations. Consider |ustice Holmess famous claim that the lav is vhat
the judges say it is. A rabbinic maxim provides a rough equivalent Halol le
reut eiue |et oiu (Lverything depends upon the judgment of the court). But
like most American judges, the rabbis are eager to deny that they ever change
the lav. Perhaps it makes a dierence that for them the lav is divine. Still,
the rabbis in their courts are hardly less authoritative than Holmess judges
in theirs. Hov else can a foundational text serve the needs of an ongoing
community except through judicial interpretations that are also de facto re-
visions And vho can provide these interpretations except the learned
When the learned disagree, disputes among themare settled by ma-
jority vote. The story of Akhnais oven in Bava Metzia suggests that the cru-
cial alternative to this political procedure is to invite divine intervention
and the Rabbis are as uneasy about that as they are about prophecy. Rabbi
Lliezers claim to be seconded by God carries no veight once the lav is in
the hands of its human interpreters. In much the same vay, the intentions
of the American founders are routinely overridden in constitutional lav
and vould be overridden even if the founders themselves miraculously ap-
peared before the Supreme Court. Collective visdom eectively replaces
both revelation and legislative intention. But this is the collective visdom
of specialists, not of ordinary people.
We oer Hillels pros|ul as the classic example of Rabbinic innova-
tionfor a biblical lav is here eectively canceled. This vas done, Hillel
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Introduction :
vould certainly have said, vith due respect for the spirit and purpose of the
lav, in order to meet changing circumstances. The talmudic discussion of
Hillels ruling reveals the sages ambiguous mix of uneasiness and condence
vith regard to this sort of legislative or near-legislative activity. Their argu-
ments cover the vhole range of possibilities, characteristically vithout any
attempt by the editor at resolution. Hillel has repealed a Torah lav; no, only
a ruling of the rabbis. He has acted for all times and places; no, only for his
ovn time. What he has done should be repealed; no, it should be conrmed.
There are not many cases vhere such an open innovation is so openly de-
bated. levof the Rabbis vere prepared to claimfor themselves the authority
of Hillel. Most often, they preferred the mode of innovation through inter-
pretation, exemplied here by Akiva (see ,). There is a great deal of quiet
or concealed boldness in the history of halakhic decision making even in
post-talmudic times, particularly in the early years of the lahal. The rabbis of
the autonomous communities of premodern times could not imitate Moses
or speak like the prophets, but a good many of them valked in Hillels or
Akivas footsteps. Their successors vere often more cautious.
Centuries later, under pressure from reformers and maslilim (en-
lighteners), caution had hardened into a rigidly conservative dogmatism
nicely reected in Moses Sofers famous dictum Anything nev is every-
vhere forbidden by the Torah. It is important to recognize that the reform-
ers, at least initially, did not challenge rabbinic authority. We reprint here a
characteristic text by one of the leading Russian maslilim, Moses Ieib Iilien-
blum, vho is the rst of our authors to distinguish the maslil from the rabbi
and so to suggest the emergence vithin |evish life of the lay intellectual.
Writers like |osephus and Philo may provide earlier examples, but from tal-
mudic times until the nineteenth century, any recognized scholar of halalhah
or Kabbalah, even if he also studied philosophy, vas called a rabbi. Despite
their traditional learning, the maslilim represent something nev. Iilienblum
is prepared to accept the authority of the rabbis, but only if they deal cre-
atively vith the mounting diculties of |evish life in central and eastern
Luropeand only if they do this together vith enlightened intellectuals like
himself. Reform rabbis in Germany tried to meet this demand (see the David
Linhorn text in the next chapter), but Sofers maxim is the more typical re-
sponse of the Luropean rabbinate. In the Last, Sephardi rabbis, vho never
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:: Rabbis and Sages
had to confront either enlightenment or reform, vere much more exible
in responding to the problems of their ovn communities. Hayyim David
Halevi, a tventieth-century Israeli rabbi vorking in this tradition, actually
identies rabbinic authority vith the right and obligation to innovate in
halalhah. his argument vould have gratied Iilienblum. Iater maslilim in
Russia, laymen all and increasingly impatient vith the rabbis, asserted their
ovn authority and that of secular knovledge more generally.
A very dierent challenge to the orthodox rabbinate grev out of
the traditions and practices of |evish mysticism (in vhich many rabbis vere
themselves fully engaged). We cannot provide here a historical account of
the emergence of the hasidic movement and its charismatic leader, the t:ao
oil. It is perhaps useful to imagine the t:aooil as the near-perfect opposite of
the maslila mystic rather than a rationalist, a vonder-vorker rather than a
vorldly pragmatist. But the t:aooil, like the maslil, is also engaged vith, and
opposed to, the rabbis of the talmudic academies. And his is the immanent
threat to the culture of halakhic interpretation, for Hasidism is a develop-
ment vholly vithin traditional |udaism, vhile the chief enlighteners, from
Mendelssohn on, drev sustenance from outside.
The t:aooil is a rabbi vith a dierencenot so much a man of
learning as a mystical adept, a master of the name, vho provides magical
services as vell as spiritual advice (but only rarely legal rulings) and inspires
ecstatic ave in his follovers. Hasidic |udaism seems less text-centered than
person-centered I did not go to the Maggid |of Miedzyrec|, said one of his
disciples, in order to hear Torah from him, but to see hov he unlaces his felt
shoes. The reasons for the ave are suggested by Llimelekh of Iyzhansk in his
classic account of tzaddikism, from vhich ve have taken central segments.
Our last selection, by Lliyahu Dessler, a tventieth-century scholar
inuenced by Hasidism, suggests that the deference to the person of the
t:aooil can take a more intellectual form and can be incorporated into rab-
binic doctrine. Here, too, the tradition of interpretive argument is eectively
given up. Rabbinic authority and legal learning are personally embodied
rather than demonstrated in the ongoing discussions of the academy and the
|et oiu. Dessler describes a version of rabbinic authoritynov the dominant
version in ultraorthodox circlesthat seems intended to reject a priori all
possible arguments for enlightened secularism or religious reform.
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Custodians of the Iav :
We take up the argument about arguments in the next chapter,
vhich forms a kind of pair vith this one. The question of rabbinic au-
thority and the question of permissible disagreement are closely related.
What distinguishes them is simply this the rst deals vith the preroga-
tives and povers of the rabbis generally, the second vith the right of dis-
sent and the possibilities of pluralism both vithin and beyond the rabbinic
community.
Custooiaus oj the Lau
juoi.ial Authority
. Deuteronomy ;:
!hese :erses esta|lish a .eutral iustitutiou jor iuterpretiug the lau, uhose o.ials are
priests auo some liuo oj magistrate (shofet). !he Ra||is :ieueo themsel:es as the
heirs oj this iustitutiou, heu.e this sele.tiou is pi:otal jor su|sequeut ois.ussious oj the
authority oj the Cral Lau auo its ra||iui. propoueuts (.j. ;,, ).
If a case is too baing for you to decide, be it a controversy over homicide,
civil lav, or assaultmatters of dispute in your courtsyou shall promptly
repair to the place that the Iord your God vill have chosen, and appear be-
fore the levitical priests, or the magistrate in charge at the time, and present
your problem. When they have announced to you the verdict in the cases,
you shall carry out the verdict that is announced to you from that place that
the Iord chose, observing scrupulously all their instructions to you. \ou shall
act in accordance vith the instructions given you and the ruling handed
dovn to you; you must not deviate from the verdict that they announce to
you either to the right or to the left. Should a man act presumptuously and
disregard the priest charged vith serving there the Iord your God, or the
magistrate, that man shall die. Thus you vill sveep out evil from Israel all
the people vill hear and be afraid and vill not act presumptuously again.
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: Rabbis and Sages
Chaiu oj !raoitiou
z. Mishnah Avot
!his is the opeuiug statemeut oj tra.tate Avot, !he Iathers, uhi.h .ousists oj ethi
.al aphorisms |y mauy oj the ley gures oj the Ra||iui. traoitiou. !he rst mishuah
oepi.ts these tea.hers oj the Cral Lauauo |y exteusiou the Mishuah itseljas the
autheuti. .arriers oj the !orah. !he omissiou oj priests jrom this a..ouut oj the .haiu oj
traoitiou leuos it a polemi.al eoge, presuma|ly oire.teo agaiust other 8e.ouo Commou
uealth parties su.h as the 8aoou.ees or Lsseues. !he su|sequeut aphorisms (.outiuuiug
uith the jormula A auo B re.ei:eo jrom them) pro.eeo iu .hrouologi.al oroer through
the traoitious oj Hillels oes.euoauts auo the stuoeuts oj Yohauau |eu 2allai.
Moses received Torah from Sinai and passed it on to |oshua, and |oshua to
the elders, and the elders to the prophets, and the prophets passed it on to
the Men of the Great Assembly |aushe luesset hageoolah|.
!he Cral Lau. Irom 8iuai to the !almuo
. Maimonides, Introduction to the Mishueh !orah
Translated by Bernard Septimus, forthcoming in the \ale |udaica Series (\ale University
Press).
Maimouioes great legal uorl, the Mishneh Torah, aims to .ooijy talmuoi. lau. Iu the
iutroou.tiou, Maimouioes sets jorth his ouu histori.al a..ouut oj talmuoi. auo ra||iui.
authority.
All the commandments given to Moses at Sinai vere given along vith their
explanations, as it is said, and I vill give you the tablets of stone, the torah
and the mit::ah
1
(Lxod. ::) torah refers to the Written Torahvhile
mit::ah refers to its explanation. |Moses| commanded us to carry out the
torah in accordance vith the mit::ah. This mit::ah is vhat goes by the name
Oral Torah.
. Nev |PS teachings and commandments.
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Custodians of the Iav :
Moses, our master, vrote dovn the entire torah before he died in
his ovn hand and gave a scroll to each tribe. One additional scroll, he de-
posited in the Ark to serve as a vitness |to the true text|, as it is said Take
this scroll of the torah, and place it along the |inner| side of the ark of the
covenant of the Iord your God that it may be there for a vitness . . . (Deut
:o).
But the mit::ah, vhich is the explanation of the torah, he did not
vrite dovn; he rather commanded it |orally| to the elders, |oshua and all
the rest of Israel, as it is said Lverything vhich I commanded you, that
you shall observe to do; do not add to it or diminish from it (Deut. )
vhich is vhy it is called the Oral Torah.
|Maimonides here enumerates the leading sages over the genera-
tions.|
All the above-mentioned sages vere the great men of |their| gen-
erations. Some vere academy heads; some vere exilarchs; some vere mem-
bers of the Great Sanhedrin. Together vith them, in each generation, vere
thousands and tens of thousands |of others| vho heard |the tradition| from
them and vith them. Ravina and Rav Ashi vere the last of the sages of the
Talmud. It vas Rav Ashi vho compiled the Babylonian Talmud in the land of
Shinar |Babylonia|, some one hundred years after Rabbi \ohanan compiled
the |erusalem Talmud.
The purpose of the tvo Talmuds is |to provide| explanation of the
vords of the Mishnah; explication of its profundities; and the innovations
introduced in all the various courts from the days of Our Saintly Master
through the compilation of the Talmud. lrom the tvo Talmuds, the Tosefta,
Sifra, Sifrei and the |other| supplements |to the Mishnah|from all these
|sources| emerge vhat is prohibited and vhat permitted, vhat is impure and
vhat pure, vhat is liable and vhat exempt, vhat is t and vhat unt, as
transmitted in direct succession from Moses, |vho received it| from |God
at| Sinai.
lrom these |sources| also emerge the measures that the sages and
prophets of each generation decreed to make a hedge round the Torah, in
accordance vith |the charge| they heard on the authority of Moses, vho
in explaining |the verse| you shall preserve my charge (Iev. :o)said
Lstablish a safeguard for my charge. In addition, there emerge from |these
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:o Rabbis and Sages
sources| the customs and ordinances, ordained or practiced in each genera-
tion, as the court of that generation sav t. lor it is forbidden to deviate
from them, as it is said, \ou shall not deviate from anything they tell you,
to the right or to the left (Deut. ;).
In addition, legal judgments, |once| obscure, that vere not received
|on tradition| from Moses. |Rather| the Great Court of a particular genera-
tion deliberated on them, using the canons vhereby the Torah is expounded,
and its elders |then| decided them, concluding that the lav is such and such.
All such |rulings made| from the days of Moses up until his ovn, Rav Ashi
compiled in the Talmud. The sages of the Mishnah compiled other vorks
to interpret the vords of the Torah. . . . Other sages, after them, compiled
collections of midrashim. All |of these vorks| vere compiled prior to the
Babylonian Talmud.
Thus, Ravina, Rav Ashi, and their colleagues vere the last of Israels
great sages vho transmitted the Oral Torah, vho issued decrees, ordained
ordinances, and instituted customs, and vhose decrees, ordinances and cus-
toms gained acceptance among all |the people of | Israel, vherever they
dvelt.
After |the term of | the court of Rav Ashi, vho compiled and com-
pleted the Talmud in the days of his son, Israel vas scattered still further,
through all the lands of the earth, reaching the ends |of the inhabited vorld|
and its remote regions. |Armed| conict increased in the vorld and travel
routes vere disrupted by marauding troops. Study of the Torah diminished;
and Israel no longer gathered to study at their academies by the thousands
and tens of thousands as they had in times past.
Rather, individuals, the remnants vhom the Iord called, vould
gather in every city and province, engage in |study of the| Torah, reect upon
all the compilations of the sages, and discern, from them, vhat course |the
principles| of legal judgment |mandate|.
Of all the post-talmudic courts that arose in the various provinces
and established decrees, ordinances, or customs for the inhabitants of its
province or |a group of | provinces, there vas none vhose enactments gained
the acceptance of all Israel, because their settlements vere scattered, travel
routes vere disrupted, and the provincial court in question consisted of
|mere| individuals |lacking ecumenical authority|, vhereas the Great Court
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Beyond Prophecy :;
of Seventy |vherein such authority did reside| had been defunct for many
years prior to the compilation of the Talmud.
Therefore, the inhabitants of one province are not compelled to
follov the custom of another province; nor is one court told to uphold a
decree that another court enacted in its province. Similarly, if one of the
Geonim taught that |on a certain issue| the course |mandated by the prin-
ciples| of legal judgment is such and such and it becomes clear to another,
subsequent court that such is not, in fact, the course |mandated by the prin-
ciples| of legal judgment inscribed in the Talmud, one heeds not the earlier
|authority| but the one to vhose viev reason inclines, be he the earlier or the
later. The above applies |only| to inferences, decrees, ordinances, and customs
introduced after the compilation of the Talmud; but vhatever is included in
the Babylonian Talmud, the vhole House of Israel is duty-bound to follov.
Lvery city and province is compelled to follov all customs folloved by the
sages of the Talmud, to uphold their decrees and to follov their ordinances.
lor all the aforementioned things included in the Talmud have
been accepted by all Israel. Moreover, the sages vho established |those| or-
dinances, decrees, or customs, or vho drev |those| inferences and taught
that the lav is such and such, vere the entirety or majority of the sages of
Israel, and the ones vho heard the tradition on the rudiments of the entire
Torah |i.e., the o commandments| in direct transmission extending back
to Moses.
Beyouo Irophe.y
De.liue oj Irophe.y
. Tosefta Sotah
!his .hapter oj the !osejta is part oj a uarrati:e oj .atastrophes .ouue.teo uith the
oe.liue oj the 8e.ouo Commouuealth. Cue oj the .hiej amoug them is the euo oj pro
pheti. iuspiratiou. All that remaius are e.hoes, auo reports oj outstauoiug iuoi:iouals
uho shoulo ha:e attaiueo prophe.y, or perhaps oio attaiu it just |ejore oeath.
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. When the last of the prophets diedHaggai, Zechariah, and Malachi
the holy spirit ceased in Israel. Lven so, they |i.e., the celestial povers| vould
inform them by a |at lol. Once, the halhamim |sages| assembled upstairs in
the house of Guria in |ericho. A |at lol called out to them There is one
among you vorthy of |being inspired by| the holy spirit, but his generation
does not merit it. They set their eyes upon Hillel the Llder. After he died
they said |in eulogy| O humble one, O pious one, disciple of Lzra.
. \et again, they vere seated in \avneh and heard a |at lol saying
There is one among you vorthy of |being inspired by| the holy spirit, but
his generation does not merit it. They set their eyes upon Shmuel ha-Katan.
At his death they said |in eulogy| O humble one, O pious one, disciple of
Hillel the Llder. Indeed, at his death he proclaimed Shimon and Ishmael
unto execution; the rest of their colleagues unto the svord; the rest of the
people unto plunder; and great catastrophes vill then follov.
A Halham Is 8uperior to a Irophet
. BT Bava Batra :ab
!his is perhaps the most expli.it Ra||iui. juxtapositiou oj s.holarship auo prophe.y,
auo iu.luoes the raoi.al pro.lamatiou a hakham is superior to a prophet. !he pre.ise
relatiouship |etueeu the tuo auo the uature oj this superiority are expouuoeo |y the
meoie:al .ommeutators i|u Migash auo ^ahmauioes iu the sele.tious that jollou.
Rabbi Avdimi of Haifa said Since the day the Temple vas destroyed, proph-
ecy vas lost to the prophets and given to the halhamim.
But are the halhamim not themselves prophets
2
He means to say
Although prophecy vas lost to the prophets, it vas not lost to the halhamim.
Amemar added Indeed, a halham is superior to a prophet, as vrit-
:. This (somevhat mysterious) question is explained by Rashi thus Were none of the prophets
sages Why then does the text seem to imply that sages gained access to prophecy only after
the destruction of the Temple
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ten, And a prophet has the heart of visdom (Ps. ,o:).Who is compared
to vhom Surely, the lesser is compared to the greater'
Abaye said This can be proven from instances vhere a great man
states something and |then| an identical statement is quoted from another
great man. Said Rava What proof is this Perhaps they simply both have the
same mindset'
3
Rather, said Rava, it can be proven from instances vhere a
great man states something and |then| an identical statement is quoted from
Rabbi Akiva ben \osef '
Said Rav Ashi What proof is this Perhaps they simply both have
the same mindset in this matter' Rather, said Rav Ashi, it can be proven from
instances vhere a great man states something and |then| an identical state-
ment is quoted from a tradition given to Moses at Sinai. But perhaps it is
|a coincidence|, like a blind person |stumbling| upon the right passage
4

Well, but does he not oer a reason

!he Halhams Ao:autage
. |oseph ibn Migash, ^o:ellae ou Ba:a Batra :ab
!he !almuo lea:es uuexplaiueo its assertiou oj the s.holars superiority o:er the prophet.
1ritiug iu tueljth.eutury 8paiu, i|u Migash pro:ioes a straightjoruaro explauatiou
iu terms oj the s.holars iuoepeuoeu.e. Humau uuoerstauoiug ooes uot ueeo propheti.
re:elatiou.
Amemar added Indeed, a halham is superior to a prophet, etc. . . . Said
Rav Ashi, it can be proven from instances vhere a great man states some-
thing and |then| an identical statement is quoted from a tradition given to
Moses at Sinaieven though this individual had never heard that statement
previously'
. Iiterally, both are of the same constellation.
. Iiterally, shafti.e., he nds by sheer luck the shaft leading dovn fromone level to another
in a house.
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A halham is thus superior to a prophet for a prophet only relates
that vhich he heard and that vhich vas placed in his mouth to repeat, vhile
a halham relates a tradition given to Moses at Sinai, even though he had
never heard it |from anyone|'
!he Halhams Iropheti. Iouers
). Nahmanides, ^o:ellae ou Ba:a Batra :a
^ahmauioes iuterpreti:e .ou.eru is oiereut jrom i|u Migashs. He .outrasts the juxta
positiou oj prophet auo s.holar uith auother talmuoi. statemeut that posits uisoom as
a pre.ouoitiou jor prophe.y. ^ahmauioes solutiou iu:ol:es a reje.tiou oj Rashis asser
tiou that there are prophets uho are uot s.holars. Iusteao, he suggests a .lose auity
|etueeu s.holarship auo prophe.y as mooes oj oi:iue iuspiratiou.
The talmudic statement Since the day the Temple vas destroyed . . . al-
though prophecy vas lost to the prophets, it vas not lost to the halhamim
vas explained by Rashi Iost to those prophets vho vere not halhamim.
Against this, one may cite a statement in Nedarim (BT Nedarim :a) God
causes His shelhiuah to dvell only on someone vho is vise |halham|, strong
and vealthy |implying that all prophets are necessarily sages|.
Some ansver that |the statement| God causes His shelhiuah to dvell
only on someone vho is vise |refers only| to a continuous state of prophecy.
In the case of prophecy for |conveying| a message, such as that of |onah (the
son of Amitai), vhich is |merely| temporary, the shelhiuah may indeed dvell
even on the pious, though they are not halhamim.
5
. . .
|Hovever,| I am not satised |vith this ansver|. Rather, the Tal-
mud |here in Bava Batra| means to say that although the prophecy of the
prophetsby means of image and visionvas lost, the prophecy of the
sagesby means of the intellectvas not lost. Rather, they knov the truth
from the holy spirit vhich |dvells| vithin them.
. The order of these sentences in the printed edition is corrupt.
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!he !ea.hiugs oj 8.ri|es Are More Belo:eo !hau 8.ripture
8. Miorash Ra||ah. 8oug oj 8ougs :
!he jollouiug sele.tious oepi.t the tea.hiugs oj the Ra||is (here .alleo 8.ri|es)the
Cral Lauas superior uot ouly to the tea.hiugs oj the prophets |ut e:eu to the !orah
itselj, Coos 1ritteu Lau. !his miorash |egius uith a proojtext jrom the 8oug oj
8ougs, uuoerstooo as .ele|ratiug the lo:e |etueeu Coo auo Israel, mouth alluoes to
the Cral Lau.
Shimon b. Abba said in the name of Rabbi \ohanan The teachings of the
Scribes are as cherished as the teachings of the |vritten| Torah. What is the
proof And your mouth like choicest vine (Song of Sol. ;o).
|Several| scholars said in the name of Rabbi \ohanan The teachings
of the Scribes are more cherished than those of the Torah. . . .
Rabbi Abba b. Kahana in the name of Rabbi \ehudah b. Pazzi de-
rived this from this |mishnah|
Rabbi Tarfon said I vas once on the road, and I reclined to recite
|the shema| folloving the vords of Bet Shammai
6
and endangered
my person in a confrontation vith brigands. |They said to him \ou
deserved to forfeit your person, for you transgressed the vords of
Bet Hillel.| (Mishnah Berakhot )
|Here| you see Had he not recited the shema at all, he vould only have trans-
gressed a positive commandment |from the Torah|,
7
vhereas having recited
it |but, by reclining, having transgressed against the vords of Bet Hillel,|
he forfeited his life. This shovs that the teachings of the Scribes are more
cherished than those of the Torah.
Rabbi Hanina b. Rabbi Adda said in the name of Rabbi Tanhum b.
Aha They also carry more veight than the teachings of the Torah and the
prophets. . . . They |the prophets and scribes| are like tvo agents vhom a
o. Bet Shammai hold that one must recline for the evening recitation of the shema (and stand
erect for the morning recitation), vhile Bet Hillel oppose taking a special posture for the
shema. The lav generally follovs Bet Hillel (see ;;, o).
;. A violation of a positive commandment carries no xed punishment.
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king sent to a province. With regard to one he vrote If he shovs you my
signature and seal, trust him, but othervise do not trust him. With regard
to the other he vrote Lven if he does not shov you my signature and seal,
trust him. Thus of the teachings of prophecy it is vritten, If there appears
among you a prophet . . . and he gives you a sign or a portent (Deut. :),
but of the teachings of the Scribes it is vritten, \ou shall act in accordance
vith the instructions given you and the ruling handed dovn to you; you
must not deviate from the verdict that they announce to you either to the
right or to the left (Deut. ;).
Moses iu Ali:as A.aoemy
. BT Menahot :,b
!his story explores the relatiou |etueeu the 1ritteu auo Cral Laus iu terms oj au
eu.ouuter |etueeu Moses auo Ali:a, their respe.ti:e represeutati:es. Amoug the Ra|
|is, Ali:as hermeueuti.s uere oistiuguisheo |y his |olo oeparture jrom the semauti.s
oj the |i|li.al text. His miorashi. expositious, uhi.h ojteu rely ou a siugle letter, are
represeuteo heresomeuhat hyper|oli.allyas jo.usiug ou the oe.orati:e .orouets oj
the letters iu the hauouritteu !orah s.roll, auo e:eu ou these .orouets iuoi:ioual horus.
Rav \ehudah said, citing Rav When Moses ascended to heaven |to receive
the Torah| he found the Holy One sitting and fashioning coronets for the
letters. He said to Him Master of the vorld, vho requires you |to do this|
He replied There is a person vho vill come to be after many generations,
called Akiva b. \osef; he vill one day expound heaps upon heaps of lavs
from each and every horn. He said before Him Master of the vorld, shov
him to me. He replied Turn around. He turned around and |found him-
self | behind the eighth rov |in the talmudic academybehind the regular
students|. Moses did not understand the discussion and vas dazed. When
|Akiva| came to a certain point, his students asked him Whence do you
knov this He replied, |This is| a lav |given| to Moses from Sinai. Then
Moses vas calmed.
He turned back and stepped before the Holy One and said before
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Him Master of the vorld, you have such a man, yet give the Torah through
me He replied Be still, that is hov it entered my mind.
Then he said before Him Master of the vorld, you have shovn me
his Torah; shov me his revard. He said Turn around. He turned around
and sav Akivas esh being veighed in a butcher shop.
8
He said before Him
Master of the vorld, such Torah and such a revard He replied Be still,
that is hov it entered my mind.
!orah Is ^ot iu Hea:eu
o. BT Bava Metzia ,b
!his is the jamous story oj Alhuais o:eu. Iu a oispute o:er a oetail oj the laus oj
purity, Ra||i Llie:er jouuo himselj iu the miuority, as uas ojteu the .ase. !his o..a
sioueo a .oujroutatiou o:er the .riteria jor oe.ioiug the lau, iu uhi.h Ra||i Yehoshua
|ololy armeo the iuoepeuoeu.e oj ra||iui. iuterpretatiou jrom oi:iue iuter:eutiou.
Iu support he aoou.es the |i|li.al statemeut that the !orah is uot iu hea:eu (Deut.
,o.:. ];:, ,), uhi.h iu its |i|li.al .outext siguies somethiug quite oiereut.
On that day, Rabbi Lliezer presented all the proofs in the vorld, but |the
other Rabbis| did not accept them.
|Rabbi Lliezer| said If the lav is as I say, then this carob tree
vill prove it. The carob jumped a hundred cubits. (Some say four hundred
cubits.) They said One does not prove anything from a tree. Rabbi Lliezer
then said If the lav is as I say, then this aqueduct vill prove it. The |vater
in the| aqueduct began to ov upstream. They said One does not prove
anything from an aqueduct. Rabbi Lliezer said If the lav is as I say, then
the valls of the academy vill prove it. The valls began to fall. Rabbi \eho-
shua reprimanded |the valls| If scholars argue a point of lav, vhat business
is it of yours To shov respect for Rabbi \ehoshua, they did not fall fur-
ther; and to shov respect for Rabbi Lliezer, they did not straighten up; and
:. A reference to Akivas martyrdom His esh vas ripped o vith iron combs (BT Berakhot
oa |;|).
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so they are still leaning. Then Rabbi Lliezer said If the lav is as I say, it
shall be proven from heaven. A |at lol pronounced What have you against
Rabbi Lliezer The lav is alvays as he says. Rabbi \ehoshua then stood up
and said It is not in heaven (Deut. o:). What does this mean Rabbi
\irmiyah said As the Torah has been given from Mount Sinai, ve take no
heed of a |at lolfor at Mount Sinai \ou have already vritten in the Torah
|that ve should| follov the majority.
9
|Some time later,| Rabbi Natan met Llijah |the prophet|. He asked
him What did the Holy One do at that moment Llijah replied God
smiled and said My children have defeated me, my children have de-
feated me.
It is related that on that day the rabbis collected everything that
Rabbi Lliezer had pronounced pure and burned it in a re. Then they voted
on him and placed him under the ban.
. . . |Rabbi Lliezer| tore his clothes and took o his shoes and sat
dovn on the ground. Tears fell from his eyes; then the vorld vas aicted
one third of the olives, one third of the vheat, one third of the barley. . . .
It is said There vas great voe that day, for every spot tovard vhich Rabbi
Lliezer directed his eyes vas burned.
lurthermore, Rabban Gamaliel |head of the academy| vas in a ship;
a great vave threatened to sink him. He said I suppose this is on account
of Rabbi Lliezer. He stood up and said Master of the vorld, it is manifest
and knovn to you that I have not done this for my honor nor for the honor
of my fathers house, but for \our honor, so that controversies should not
abound in Israel. Then the sea ceased to rage.
Connentary. Lxpanding the Covenant
This vell-knovn aggadic story is in many vays a key to under-
standing the distinctive nature of Rabbinic |udaism. After failing to con-
vince the sages through rational argument, Rabbi Lliezer invokes supernatu-
,. Rabbi \irmiyah is actually citing a phrase midrashically severed from the context of a verse
vhose plain meaning is, in fact, an admonition not to follov the majority in perverting
justice (Lxod. ::). The verb may also be translated as to side or to favor; see ;::.
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ral phenomena to persuade his colleagues of the truth of his position. Seeing
that they still are not svayed by these miraculous hints of divine support,
Rabbi Lliezer seeks vhat he considers the knockout blov by appealing
directly to God for conrmation. But Rabbi \ehoshua insists that It is not
in heaven, and God only smiles at this defeat by His children.
While this midrash can be interpreted in a variety of vays, by all
accounts it expresses the clear preference for orderly procedures of legal adju-
dication over nonrational intrusions of miracles and heavenly voices in the
academies of Torah study. Supernatural interventions undermine the cen-
trality of rational debate in the understanding and elaboration of the lav.
Apart from the social and institutional reasons that can be adduced
to justify the rejection of the supernatural in legal decision making, there
is another issue involved here the nature of covenantal religion or, more
specically, the related ideas of divine revelation and human responsibility.
Gods defeat signies a divine form of self-limitation that allovs
the human partners to the covenant to assume responsibility for develop-
ing the content of revelation. The midrashic use of It is not in heaven cap-
tures the sense of intellectual competence characteristic of talmudic schol-
ars, vho are condent in their right and ability to apply the Word of God
vithout the need for prophecy or divine intervention. Lxtra-rational forms
of persuasion (as dened vithin the intellectual tradition of rabbinic |uda-
ism)for example, the signs and vonders in our textare both unnecessary
and invalid in legal argument.
Another midrashic text expresses this idea by referring to the period
folloving the death of Moses as a time vhen the role of prophets and the ap-
peal to revelation became irrelevant. Rav \ehudah reported in the name of
Shmuel Three thousand traditional lavs vere forgotten during the period
of mourning for Moses. They said to |oshua Ask. He replied It is not in
heaven. After describing several cases vhere Phinehas and |oshua tried in
vain to recover the lost lavs by appealing directly to God, the Talmud quotes
Rabbi Abbuha, vho said Otniel, the son of Kenaz, restored |these forgotten
teachings| by means of his dialectics (BT Temurah oa).
In other vords, human beings can rely on legal analysis to compen-
sate for the absence of Gods active involvement in deciphering the meaning
of the Torah. What this metaphysical notion of divine vithdraval means is
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that students of the lav must exercise intellectual initiative and creativity to
complete the process that began vith revelation. When the heirs of Moses
feel suciently condent to interpret vhat they received from their proph-
ets, vhen students of the lav are not overvhelmed by their teachers and do
not simply repeat their teachings verbatim, vhen the content of revelation
becomes a living and expanding corpus of lav and commentary, only then
does the covenantal community emerge as Gods mature partner.
But to appreciate the full implications of this divine defeat, ve
must adopt a larger theological perspective and distinguish betveen the bib-
lical account of Gods relationship to Israel and the Rabbis rethinking of this
relationship in light of their ovn historical experience.
The biblical drama is dominated by the active presence of God. His-
tory and politics are shaped throughout by a God vho is directly involved in
the destiny and daily life of His people. By means of prophets and miracles,
Gods presence is felt in concrete and palpable vays. When Moses, for ex-
ample, encounters problematic applications of the lav, the text describes him
turning to God for instructions (e.g., Num. :;). God is never defeated
in the Bible. He controls the text as he controls the history of Israel and the
nations. Here the religious situation involves total dependency on Him as
the protagonist of the biblical story.
When the Talmud announces that It is not in heaven, human
beings replace God and take responsibility for applying the lav vithout need
of further revelation. The signs and vonders of our text serve the ironic pur-
pose of providing an occasion for the Rabbis to admonish God. To paraphrase
the midrash, God is told politely Please stay out of this discussion. \our
presence here is inappropriate. \ou gave us the Torah, but ve must novapply
it in our ovn lives according to our ovn understanding. Andthis point
is crucial for grasping the religious phenomenology of Rabbinic thought
ve are not going to try to intuit \our thoughts about vhat is right. We have
to make sense of the lav in particular situations through our ovn practical
reasoning.
In the Bible, the community is called upon to choose betveen life
and death, betveen good and evil (Deut. o). Revelation provides a lav
for the community but leaves responsibility for fullling the lavin the hands
of the community itself.
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In the Rabbinic tradition, covenantal consciousness gains a nev di-
mension Israel is called upon not only to fulll the lav but also to dene and
expand its content. This radically nev understanding of the covenantal rela-
tionship vith God points tovard a theological framevork vhere the human
partners, in the form of scribes and talmudic scholars, become major gures
determining the spiritual destiny of the community. The scholar, vhose au-
thority derives from his intellectual competence, is raised to unprecedented
heights, above even the prophet, vhose authority depends upon the miracu-
lous signs of God.
There is another vay of looking at the implications of this text.
One of the crucial theological concerns of the Rabbinic period vas hov to
understand the idea of divine pover. The Lxodus dramathe total defeat of
the pharaoh, the public triumph of Israel over its enemiescould no longer
serve as the paradigmfor understanding Israels exile and poverlessness. Titus
and the Roman army vere visibly victorious. Contemporary pharaohs vere
not being defeated. History did not elicit spontaneous songs of praise to God
as a man of var (Lxod. ) vho defeats His enemies in order to become
knovn as the lord of history.
The dierence betveen past and present is poignantly expressed in
the contrast betveen Moses deant confrontations vith the pharaoh and
\ohanan ben Zakkais meeting vith Titus to plead for the privilege of build-
ing a religious center in \avneh for the surviving remnant of |evs (cf. BT
Gittin oa). In Rabbinic history, the visible signs of Gods triumphal pover
are gone.
To make sense of the notions of a living God and divine election
and to rebut suggestions that God had broken the covenant and abandoned
Israel, Gods pover had to be understood in vays that could explain Israels
poverlessness, vulnerability, and humiliation. A revision of traditional the-
ology began vith a nev reading of the language of divine pover. Who is
as mighty as God (Lxod. ), the line sung vhen Israel crossed the sea,
is midrashically taken to mean Who is as silent as God Who is like \ou,
O Iord, among the mighty |elim| (Lxod. )Who is like \ou among
the dumb ones |ilmim|; vho is like \ou that beholds the humiliation of his
children and keeps silent (Melhilta, Shirah :).
This is another version of It is not in heaven. NovGods historical
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:o: Rabbis and Sages
silence and distance are interpreted so as not to entail feelings of debilitating
guilt and unvorthiness. On the contrary, the sense of Gods love is intensied
by shifting attention avay from the material conditions of history tovard
Torah as the main framevork that mediates His love for Israel. The absence
of miracles in Israels history is not taken to imply divine anger or rejection.
It is as if Gods historical distance is an invitation to His covenantal partner
to take the initiative in the development of the Torah. The Rabbis respond
to the diminishing signs of Gods visible pover by seizing that initiative and
utilizing the study of Torah to mediate His living presence.
But it is important to qualify this account of the Rabbinic transfor-
mation of |evish religious consciousness by pointing out that although the
need for prophecy and miracle vas greatly neutralized vith respect to the
lav and its study, the need for miraculous divine intervention remained a
vital component of the hope for historical change and national reneval. De-
spite the assertive boldness of the Rabbinic tradition of learning, classically
represented in the oven of Akhnai story, exilic spirituality continued to be
characterized by a passive, prayerful longing for a nevmessianic intervention
in history to heal the overvhelming injuries of exile and statelessness. |ev-
ish political liberation and national restoration vere still perceived in terms
of the biblical paradigm of divine pover.
In contrast to this traditional attitude, modern secular Zionism
created historical conditions in vhich |evish national existence could be
reneved vithout vaiting for supernatural intervention. In terms of the con-
ceptual approach to the covenantal idea discussed above, the Zionist revo-
lution can be seen as having opened up yet another dimension of |evish life
to the spirit of rabbinic condence and initiative, liberating the community
from the prevalent attitude of helpless dependency.
On this viev, the state of Israel is not a sign of the messianic un-
folding of |evish religious eschatology but rather part of a process that began
at Sinai vhen Israel agreed to build its religious life in response to Gods
self-limiting covenant. The diminishing presence of God as the visible, tri-
umphant victor in history vas met in the Rabbinic tradition vith a nev
and vital sense of covenantal iutelle.tual responsibility that is the subject of
this chapter. Analogously, the distance and silence of God experienced in the
modern period can be an impetus to a nev appreciation of Israels politi.al
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responsibilityextending the rabbinic sense of human adequacy beyond the
areas to vhich it vas restricted in the past. Here is a further implication of
the Rabbis courageous insistence that It is not in heaven.
Da:io Hartmau
Lx.luoiug Irophe.y jrom the Halalhi. Iro.ess
. Maimonides, MT loundations of the Torah ,
Translated by Bernard Septimus, forthcoming in the \ale |udaica Series (\ale University
Press).
As ue ha:e alreaoy seeu, Maimouioes grouuos the authority oj the !orah iu the uuique
prophe.y oj Moses (;,, :.). !herejore, uo su|sequeut prophet .au male lau. Maimo
uioes here ex.luoes prophets jrom auy parti.ipatiou iu the legal pro.ess, turuiug Ra||i
Yehoshuas prououu.emeut It is uot iu hea:eu iuto a .oustitutioual priu.iple.
Chapter ,
. It is a point |made| clear|ly| and explicit|ly| in the Torah that
the latter is legislation that endures for ever and all eternity it is subject to
neither alteration, nor diminution, nor addition. lor it is said Lverything
vhich I command you, that you shall observe to do, do not add to it or
diminish from it (Deut. ). And it is said But those things that are re-
vealed belong to us and to our children forever, that ve may do all the vords
of this Torah forever (Deut. :,::). Iikevise it is said It is a statute for-
ever, throughout your generations (Iev. :). Moreover, it is said, It is
not in heaven (Deut. o:) you thus learn that henceforth no prophet is
authorized to innovate anything.
Therefore, should any man arise, Israelite or gentile, produce an
evidential sign, and claim that God sent him to add a commandment, de-
tract a commandment, or give to any of the commandments an explanation
that ve did not hear from Moses, or should he claim that the command-
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ments given to Israel are not eternal and for all generations but vere rather
provisional commandments, he is a false prophet; for he seeks to deny the
prophecy of Moses. He is executed by strangulation, because he presumed
to speak in the name of the Iord, vhat he did not command him (Deut.
::o). lor He, blessed be His name, commanded Moses that this legislation
be ours and our childrens forever (Deut. :,::); and God is not man, that
he should lie (Num. :,).
:. Why then is it said in the Torah, I vill raise up for thema prophet
like you from among their brethren, and I vill put my vords in his mouth,
and he shall speak to them all that I command him (Deut. ::). |This
prophet| comes not to found a religion but to exhort concerning the Torahs
teaching and to varn the populace against violating it, as the last of |the
prophets| said Remember the Torah of Moses, My servant (Malachi ::).
So, too, if he issues commands to us on discretionary matters, like
Go to such and such a place or Dont go, Do battle today or Dont,
Build this vall or Dont build it, ve are commanded to heed him. Who-
ever transgresses his vords is liable to death at the hands of heaven, for it is
said And vhoever vill not give heed to My vords vhich he shall speak in
My name, I Myself vill require it of him (Deut. :,). Iikevise, a prophet
vho transgresses his ovn vords or vho suppresses his prophecy is liable to
death at the hands of heaven. Regarding |all| three it is said I Myself vill
require it of him (Deut. :,).
. So, too, if a prophet, knovn to us to be a prophet, should tell us
to transgress any of the commandments in the Torah, or many command-
ments, minor or grave, temporarilyve are commanded to obey him. We
have the folloving on tradition from the ancient sages Should a prophet
tell you, Transgress the vords of the Torah, as Llijah did on Mount Carmel,
obey him in all things, save idolatry.
This, vith the proviso that the |transgression| be temporary (as in
the case of Llijah on Mount Carmel, vho sacriced a burnt oering out-
side |the Temple precincts| although |erusalemhad |already| been chosen and
anyone sacricing outside |its Temple| vas liable to excision |laret|). Because
the person in question is a prophet, ve are commanded to obey him, and this,
too, comes under |the commandment| \ou shall heed him (Deut. :).
Had they asked Llijah, Shall ve then abrogate the |prohibition|
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Beyond Prophecy :;
inscribed in the Torah that you not oer your burnt oerings at every place
that you see (Deut. :) he vould have responded No one vho sacri-
ces outside |the Temple precincts| remains ever liable to excision, as Moses
commanded; but I, today, vill sacrice outside |the Temple precincts|, in
accordance vith the vord of the Iord, in order to controvert the prophets
of Baal.
. If, after this fashion, any of the prophets command |us| to trans-
gress temporarily, ve are commanded to heed them. But should they say that
the |lav| has been permanently abrogated, they are executed by strangula-
tion, for the Torah has said Ours and our childrens forever (Deut. :,::).
Similarly, should |a prophet| abrogate anything that ve have learned on tra-
dition, or say, on any legal issue, that God instructed him that its determi-
nation is thus and such, or that the authoritative decision follovs so-and-so,
he is a false prophet and is to be put to death by strangulation, even if he
produced a sign; for he seeks to contradict the Torah, vhich has said It is
not in Heaven (Deut. o:). But on a temporary basis, one obeys him in
everything.
A Mooeru 8yuthesis
z. Abraham Isaac Kook, A Halham Is Superior to a Prophet
Crot ( |erusalem Mossad Harav Kook, ,o; Hebrev), pp. :o:.
1e .ou.luoe the se.tiou Beyouo Irophe.y uith this short historiosophi. essay
rst pu|lisheo iu :,:,iu uhi.h Kool .outrasts propheti. :isiou uith legal atteutiou
to oetail auo oes.ri|es their ultimate syuthesis. Com|iuiug aspe.ts oj the positious oj
Maimouioes auo ^ahmauioes, he portrays a reemergeu.e oj Mosai. prophe.y iu au
impeuoiug messiaui. age.
Poets and rhetoricians are characteristically adept at describing the general
splendor of life, all its especially beautiful aspects, those vhich encompass
mighty streams and abundant vitality. They are also able to expose the general
ugliness of lifes perversions and to protest vigorously against them. Hov-
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ever, penetrating the details of particular causes, |determining| hov to set
life on a solid foundation, preserving it from even the slightest perversion
vhich vould eventually cause it to run aground and be ruinedall these are
not vithin the competence of enthused and vigorous imaginative pover.
Rather, they lie vithin the province of analytic visdom |holhmah|. Here
begins the vork of physicians, economists, engineers, judges, and all those
engaged in practical visdom.
On a higher plane Prophecy beheld the perverse stream of idola-
try in Israel and poverfully protested against it. |Prophecy also beheld| the
blissful splendor of the one Iord, |Israels| God, portraying its full beauty
and magnicence. |It beheld too| the corruption of various |forms of | moral
lavlessness the oppression of the poor, the exploitation of the needy, mur-
der, adultery, violence, and theft. |Prophecy| became infused vith the spirit
of God to deliver and |provide| remedy through lofty, holy oration.
. . . Hidden from the prophetic, visionary eye are |the vorkings
of | all the practical mit::ot vith the meticulous precision of their detailed
lavs. When these are observed and studied, become familiar and beloved,
their concealed, inner bliss vill eventually be revealed. The divine, pure life-
stream vill dispel vith its might the darkness of idolatry so it may never
rise again. |Prophecy also cannot discern| hov the gradual neglect that de-
values actions and their many branches and details, initiates a process of ruin
and destroys the vessels that can receive the exalted spirit,
10
vhereby the in-
clination of the human heartthat misleading imagination magnicently
adorned |but| lled vith poisonous dust insidegrovs in and of itself. All
this vas not accessible to prophecy, that is, to prophecy through a dimglass.
11
True, it is accessible to the prophecy of Moses, vhich vas prophecy
through a clear glass, |delivered| mouth to mouth (Num. ::), |and| vhich
alone could perceive both the pover of generalities and the precision of par-
ticulars. But there has never arisen another like him, |as it is vritten| Never
again did there arise another prophet like Moses, vhomthe Iord singled out,
o. Kook here alludes to the Iurianic myth of creation; see G. Scholem, Major !reuos iu jeuish
Mysti.ism (Nev \ork Schocken, ,o), pp. :ooo:.
. The reference is to all the prophets except Moses. Cf. BT \evamot ,b All the prophets
looked through a dim glass, but Moses looked through a clear glass.
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face to face (Deut. o). It vas thus necessary to assign to the prophets the
task of generalities, and to the halhamim the task of particulars. A halham
is superior to a prophet (BT Bava Batra :a) that vhich prophecy did not
accomplish vith its ery arsenalnamely, to purge Israel of idolatry and to
uproot the vorst degradations of oppression, violence and robbery, murder,
sexual corruption, and the pursuit of bribesthe halhamim accomplished
through the expansion of Torah, by raising up many students and by con-
stant reviev of particular rules and their applications. The eternal paths
lead to Him (Hab. o). Do not read paths |halilhot| but lavs |halalhot|
(BT Niddah ;a).
In the course of time, the vork of the halhamim superseded the
vork of the prophets, and prophecy ceased. A long time having passed, the
generalities began to vane; they vere svalloved up in details and disap-
peared from sight. Therefore, at the Lnd of Days, vhen the light of prophecy
vill revive . . . |as it is vritten,| I shall pour out My spirit on all esh ( |oel
), then the loathing of particulars vill abound. The visdom of Scribes
vill decay. And those vho live on the boundarythat is, the halhamimvho
set boundaries in their teachingsvill vander from city to city, nding no
favor (BT Sanhedrin ,;a).
12
linally, the sparks of emerging prophetic light vill be revealed, not
as unripe fruit but as rst fruits, lled vith vitality and life. And |prophecy|
vill recognize in general the greatness of the vorks of visdom, and vith
true humility vill exclaim A halham is superior to a prophet. laithfulness
and truth meet; justice and vellbeing kiss. Truth springs up from the earth;
justice looks dovn from heaven. The Iord also bestovs His bounty; our land
yields its produce (Ps. :). And the soul of Moses shall again appear
in the vorld.
:. This talmudic phrasealong vith the entire apocalyptic description in vhich it is setis
opaque, and there is great variation in its reading. Kook transposes tvo clauses from the
original and interpolates his ovn account.
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Authority oj the Cral Lau
Ra||iui. Legislatiou. You Must ^ot De:iate
. BT Shabbat :a
!he Hauullah jesti:al is uot .ousioereo deoraytathat is, it ooes uot oeri:e jrom
the uritteu !orah. !he lightiug oj the Hauullah .auoles is oroaiueo |y the Ra||is, it
is derabbanan. 8houlo the perjormau.e ue:ertheless |e :ieueo as au a.t .ommauoeo
|y Coo`
Rav Hiyya b. Ashi said, citing Rav When lighting the Hanukkah candle, one
should pronounce a blessing. . . . What blessing |Blessed are \ou, O Iord
our God, king of the universe,| vho has sanctied us vith His command-
ments, and commanded us to light the Hanukkah candles.
But vhere did He command us Rav Ivya said This is |derived|
from you must not deviate (Deut. ;; see above, ). Rav Nehemiah
said Ask your father, he vill inform you; \our elders, they vill tell you
(Deut. :;).
Re:isiug the Lau |y Miorash
. BT Makkot ::ab
!he s.ope oj ra||iui. authority is uot exhausteo |y the pouer to eua.t se.ouoary legis
latiou (derabbanan). !his sele.tiou |oth illustrates auo .ele|rates ra||iui. pouer to
re:ise s.riptural lau itselj through the (re)iuterpreti:e tools oj miorash.
Mishnah Hov many lashes are administered lorty less one |i.e, thirty-
nine|, as vritten, . . . by number. lorty |stripes he may give him|
13
(Deut.
::)a number leading up to forty. Rabbi \ehudah says He is given a
full forty lashes. . . .
. Old |PS; in the Nev |PS the syntax of the original Hebrev is altered.
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The Oral Iav :;
Gemara What is the reason |for this reading| If it had been vrit-
ten forty by number, then I vould say a count of forty. Nov that it is
vritten by number forty|this means| a count that leads up to forty.
Said Rava Hov foolish are all those people, vho rise before a Torah
scroll but fail to rise before a great man |i.e., a scholar|' lor in the Torah
scroll it is vritten forty, and the rabbis came along and subtracted one.
Hillel Lua.teo the Iros|ul
. BT Gittin oab
!he |a.lgrouuo jor this sele.tiou is the lau oj oe|t remissiou e:ery se:euth year, .ou
ue.teo to the (partly utopiau) |i|li.al system oj so.ial justi.e oes.ri|eo iu Le:iti.us auo
Deuterouomy (see ;.o). Iu the ja.e oj the pra.ti.al pressures oj e.ouomi. lije, Hillel
oe:iseo the prosbul (a Creel uoro oj uu.ertaiu meauiug) to .ir.um:eut the |i|li.al
iujuu.tiou. Legally, the prosbul uorls |y .ousiguiug the oe|t to the .ourt, jor oe|ts
alreaoy iu the pro.ess oj .olle.tiou |y a .ourt uere uot su|je.t to remissiou. Despite this
te.hui.al justi.atiou, the !almuo :oi.es oissatisja.tiou o:er the Ra||iui. uprootiug oj
|i|li.al laus. !he ois.ussiou here iutroou.es the maxim that the .ourt has the pouer to
expropriate, to uhi.h ue returu iu su|sequeut .hapters.
Hillel enacted |tilleu| the pros|ul on account of tilluu olam (Mishnah Gittin
); the Mishnah (Shviit o) reads |A debt secured by| a pros|ul is not
remitted. This is one of the things enacted by Hillel the Llder. He sav that
the people refused to make loans to each other, thus transgressing against
that vhich is vritten in the Torah Bevare lest you harbor the base thought
The seventh year, the year of remission, is approaching, so that you are mean
to your needy brother and give him nothing (Deut. ,). So he arose and
enacted the pros|ul.
The text of a pros|ul runs thus I, X, hereby consign to you, the
judges at location \, any debt oved me by Z, |so that I| may collect it at any
time I see t. And the judges or vitnesses sign belov.
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But is such a thing possible, that according to the Torah |oeorayta|
the seventh year eects remission, yet Hillel enacted that there be no re-
mission
Said Abaye |Iros|ul applies| only to the seventh year in these times,
folloving the viev of Rabbi | |udah the Prince, vho holds that according
to basic Torah lav, debt remission does not apply under conditions of in-
complete sovereignty|. . . . It vas the rabbis vho enacted that there should
nevertheless be remission, to preserve the seventh year; then vhen Hillel sav
that the people refused to make loans to each other, he arose and enacted
the pros|ul.
But is such a thing possible, that according to the Torah |oeorayta|
the seventh year |in these times| brings no remission, yet the rabbis enacted
that there be remission |Rashi. and thus the borrover becomes a robber|
Said Abaye This is |merely an instance of | hold back and do not act
14
|i.e.,
there is no active breach of a prohibition|.
Rava said The court has the pover to expropriate.
|Rashi. |This relates even to| the position vhich holds that |even|
in these days, the seventh year eects remission of debts oeoraytayet Hillel
enacted that it should not; . . . yet there is no diculty, since |intervention| in
monetary matters |mamou| does not constitute uprooting something from
the Torah, as long as it is a case of |building| a fence; for in monetary matters,
the court has the pover to expropriate.|
lor Rabbi \itzhak said Whence |do ve knov| that the court has
the pover to expropriate As vritten, |a proclamation vas issued in |udah
and |erusalem that all vho had returned from the exile should assemble in
|erusalem| and that anyone vho did not come in three days vould, by de-
cision of the ocers and elders, have his property conscated and himself
excluded fromthe congregation of the returning exiles (Lzra o;:). Rabbi
Lleazar said, |This derives| fromThese are the portions bequeathed by lot to
the tribes of Israel by the priest Lleazar, |oshua son of Nun, and the leaders of
ancestral houses |literally, fathers| ( |osh. ,). What is this connection
betveen leaders and fathers It tells us |that| just as fathers |can| bequeath
. This complex distinction betveen actively and passively uprooting something from Torah
lav is the subject of the talmudic discussion in BT \evamot :,a,ob.
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to their sons vhatever they vish, so too |can| leaders bequeath to the people
vhatever they vish.
The question vas raised When Hillel enacted the pros|ul, vas it
for his generation that he enacted itor perhaps for future generations as
vell The implications concern |the possibility| of annulling it. Should you
say that he enacted it for his generation, ve can annul it, vhereas if you say
that he enacted it for future generations as vell, then A court cannot annul
the ruling of a fellov court unless it excels it in visdom and in number
(Mishnah Lduyot |;;, :|).
What |is the ansver| Come and hear this saying of Shmuel Apros
|ul can be vritten only by the court of Sura or by the court of Nehardea.
15
Nov if you suppose that he enacted |it| for future generations as vell, let it
be vritten by any court'Perhaps, vhen Hillel enacted it for future genera-
tions, |this extended| not to any court, |but only| to a court like his ovn, such
as |that of | Rav Ami and Rav Assi, vho have the pover of expropriation.
Come and hear this saying of Shmuel This pros|ul is a judicial in-
sult; if I have the pover, I vill annul it.Annul it But A court cannot
annul the ruling of a fellov court unless it excels it in visdom and in num-
ber'He means to say If I had more pover than Hillel, I vould annul it.
Rav Nahman, hovever, said I vould conrm it.Conrm it
But it is rmly in place' He means to say I vould make a pronouncement
regarding it, so that even vithout being vritten, it vill be as though it had
been vritten.
Connentary. The Oral Iav Celebrating Radical Reinterpretation
Respect for the Torah is traditionally shovn by rising before the
scrollthe only concrete object of reverence in synagogues to this day. Rava
vryly complains that the same measure of respect is not shovn tovard Torah
scholars Hov foolish are all those people, vho rise before a Torah scroll but
fail to rise before a great man |i.e., a scholar|' But vhy, precisely, does Rava
believe that scholars should be revered just like the book they have mastered
. Sites of the tvo great academies in Babylonia.
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The scroll itself is revered as an embodiment of the sublime Torah,
Gods vord. Does Rava perceive the scholar in a similar light Surely he
cannot mean simply that Torahs holiness (or its visdom, or vhatever other
qualities make it vorthy of reverence) resides also in the scholar. lor surely
no scholar can possess the Torahs qualities to the full degree that they are
present in the Torah itself. If people refuse to equate the partial vith the full
presence, that hardly justies calling them foolish.
What Rava seems to believe, then, is that the scholar is in some
sense superior to the Torah, a superiority reected in the feat of midrashic
reinterpretation lor in the Torah scroll it is vritten forty, and the rab-
bis came along and subtracted one. Clearly, this midrash is not cited as a
unique occurrence, but rather as a ne example of halakhic midrash as it
operates throughout the lav. The implied superiority of scholar over scroll
of midrash over the texts plain meaningcan be understood in tvo very
dierent vays one in terms of value, the other in terms of authority.
Superiority of value vould mean that the midrashic rendition of
the lav is better than the originalbetter, that is, for the people subject to
the lav, because their punishment is reduced, or perhaps better for the lav
itself, because the harshness of its justice is tempered by a touch of mercy.
To be sure, the improvement here is rather minimal. The signicance of re-
ducing the number of stripes fromforty to thirty-nine lies not in the (minus-
cule) dierence in physical suering, but in the symbolic message of under-
lying compassion. Corporal punishment is delivered not vith a vengeance
but vith restraint.
If this understanding has some plausibility, it derives less fromRavas
specic example herethe symbolic sparing of one stripethan from other
Rabbinic sources. Alongside the clause upon vhich Rava is commenting, the
same chapter of the Mishnah includes several other clauses that appear to
promote compassion tovard the sinner and reduce the severity of corpo-
ral punishment. Similarly, and even more signicantly, the Rabbis virtually
abolished capital punishment. Rava can be taken, then, as pointing to the
numerical reduction as representing a broad midrashic remaking of biblical
lav.
If Ravas dictumis put in theological terms, it attains a striking bold-
ness. People ought to shov greater respect to the Rabbis, because the Rabbis
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The Oral Iav :;,
lav is better than that originally given by God' This elevated conception of
the midrashic enterprise, vhich may vell have been shared by many of the
classical sages, certainly calls for some explanation. Perhaps nothing less than
such boldness could support delity to Torah in the face of the poverful cri-
tiqueexpressed saliently in Pauls epistlesthat fullling the demands of
Gods lav is incompatible vith human veakness. Iiving under the lav in
its plain meaning, vith its harsh condemnation of any villful sinner, may in-
deed be untenable. If Torah lav vas not to be superseded, its punitive stance
had to be corrected to accommodate human frailty.
I oer this suggestion in lieu of a proper theological accounta
dicult-to-meet desideratum, in vhich the project of improving Gods lav
vould have to be squared vith the notion of an all-vise and benevolent
God. If this seems too daunting, let us consider the alternative understand-
ing of Ravas statement, focusing not on the value of midrashic lav but on
Rabbinic authority. Such a focus involves a subtly dierent sense of stand-
ing before the Torah here, it is not so much an expression of reverence as
an acknovledgment of authority. People rise before the Torah scroll to de-
clare their allegiance to its commands; and they are fools not to recognize
the superior authority of the Rabbis, vho have the nal vord in determining
halalhah.
This interpretation ts vell vith the discussion about the blessing
before lighting a Hanukkah candle. There, no one doubts that a commit-
ment to halalhah implies a duty to observe Rabbinic decrees. But hovever
great the Rabbis authority, there is some hesitation vith regard to the reli-
gious status of observing their decrees Can their decrees truthfully be called
something that God commanded And the ansver is that yes, in a sense
it is Gods command to observe even lavs that are oera||auau (ordained by
the Rabbis)vithout blurring the distinction betveen such lavs and Gods
ovn commands, the lavs that are oeorayta.
But if Ravas main purpose is to exalt the Rabbis authority over
that of oeorayta lav, hov are ve to understand the talmudic perplexity over
Hillels enactment of pros|ul` Why does the Talmud ask, Is such a thing pos-
sible, that according to the Torah |oeorayta| . . . , yet Hillel enacted that . . .
Perhaps, indeed, not all the sages shared Ravas celebration of Rab-
binic pover. It is notevorthy that according to Abaye, Ravas contempo-
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rary, an enactment like Hillels pros|ul is restricted to alterations of Rabbinic
lavs. Rava himself, not surprisingly, is prepared to go much further, allov-
ing for outright Rabbinic abrogation of the biblical lav of debt remission
The court has the pover to expropriate.
Lven this pover, hovever, appears to be restricted to |interven-
tion| in monetary matters |mamou|, vhichas Rashi explainsdoes not
constitute uprooting something from the Torah. This implies that the
Torahs criminal or ritual lav, by contrast, vould not be subject to similar
Rabbinic abrogation or circumvention. And even vith regard to the pros
|ul itself, the ensuing talmudic discussion reveals great unease. Why is the
pros|ul depicted as so problematic, rather than as a ne instance of Rabbinic
improvement (or at least authority) over the given biblical lav
The ansver may lie in Shmuels pejorative description of the pros|ul
as a judicial insult. According to the mishnah, Hillel sought a remedy for a
dicult situation continued upholding of the lav of remission vas produc-
ing unacceptable results. But he did not act to change (or reinterpret) the
lav. Instead, he arranged to harness the courts pover to circumvent it that
is the insult. Hillels enactment may indeed encourage extension of credit
to the needy and vork for the general benet of mostly everyone. But even
if it truly promotes the great end of tilluu olam, this is achieved through an
objectionable legal mechanism.
The pros|ul is problematic, then, because it fails to employ the full
Rabbinic pover of midrash. In some sense, admittedly, it does rely on the
midrashic exclusion of notes of credit consigned to the court from the lav
of remission. In fact, several traditional commentators suggestciting the
8ijre to Deuteronomy ( pisla )that this midrashic innovation and
Hillels institution of the pros|ul are one and the same. But the talmudic dis-
cussion here clearly vievs the tvo halakhic moves as distinct, and directs its
criticism not to the midrashic reinterpretation, but to Hillels abrogation of
Torah lav.
The insuciently clear boundary here betveen midrash and en-
actment may be due to the nascent condition of midrash in Hillels time.
Subsequently, the full overing of reinterpretation as the chief mode of
halakhic creativity heralded the supremacy of the Oral Iavover the vritten
Torah. Radical reinterpretation characterizes midrashic treatment of the bib-
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Karaites and Rabbanites ::
lical text and then in turn the treatment of the Mishnah by talmudic amoraim
and of the Talmud by authors of responsa and codes. True, explicit enact-
ments by rabbisand later by community leaderscontinue to be promul-
gated beside (and sometimes even against) Torah lav. Such enactments are
prone to continued scrutiny and restriction, as exemplied in the talmudic
discussion of pros|ul. But in assessing the true scope of Rabbinic authority,
ve must not allov such discussions to eclipse the central importance and
value of midrashic creativity, celebrated by Rava.
^oam j. 2ohar
Meoie:al Argumeuts. Karaites auo Ra||auites
Karaite Critique oj Miorashi. Iuuo:atiou
. Llijah Basyatchi, Aooeret Lliyahu I
Karaite Authology, edited by Ieon Nemoy, \ale |udaica Series (Nev Haven \ale University
Press, ,:), pp. :,o.
Basyat.hi uas oue oj the greatest Karaite legal s.holars, the author oj a .ooe that |e
.ame stauoaro iu mu.h the same uay as the Shulhan Arukh, uhi.h it pre.eoeo |y
a|out jty years (Basyat.hi uorleo ou it jrom :,o to :,,o). Lile auy ra||iui. text,
his Aderet a..umulateo .ommeutaries, yet Basyat.hi maiutaiueo the oistiu.ti:euess oj
Karaite traoitiou.
. . . . There are, hovever, other ordinances in the observance of vhich ve
have been raised since the days of our fathers, and their fathers before them,
and vhich are a matter of custom vith us. They are not recorded in the Iav
and have become as second nature vith us; nevertheless, they ov in a sense
from the intent of prophetic utterances. Such ordinances are called by schol-
ars the burden of inheritance or tradition; for example, the slaughtering
of animals, vhich must be performed by means of a slaughtering knife and
by proper cutting of the prescribed parts of the body. . . .
. The learned Rabbi Tobiah states that he vho says that there are
traditions vhich have no support in Scripture does so merely because of his
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::: Rabbis and Sages
insucient comprehension of the particular ordinance. That is vhy schol-
ars have said that all ordinances are valid, vhether vritten in Scripture or
derived by vay of analogy or transmitted by tradition; and they have said
also, The observance of Scripture rests on three things the vritten texts,
analogy, and the burden of inheritance.
. Karaite tradition, hovever, is not like the tradition believed in
by the Rabbanites, since the latter add to and subtract from Scripture and
say that tradition overcomes the vritten biblical text, notvithstanding that
Scripture says expressly \e shall not add unto the vord vhich I command
you (Deut. :). If their intention be merely to interpret the prophetic
utterances, it is not seemly for them to say that tradition overcomes the vrit-
ten biblical text. lor example, vith regard to the ordinance lorty stripes
may he give him (Deut. :), they say that the meaning is forty less one
( ). . . . Karaite tradition, on the other hand, is such as is acknovledged
by all Israel, and it does not stand up against that vhich is recorded in the
vrit of divine truth; and our scholars have said that every tradition vhich
does not stand up against Scripture, does not add to vhat is stated in Scrip-
ture, is acknovledged by all Israel, and has indirect support in Scripture, is
to be called genuine tradition, and ve must accept it. They said further that
most of the Mishnah and the Talmud comprises genuine utterances of our
forefathers, and Rabbi Nissi ben Noah has said that our people are obligated
to study the Mishnah and the Talmud.
^either Aoo to It Applies Culy to the Multituoe
). |udah Halevi, !he Ku:ari ,
Translated by Iavrence Berman and Barry S. Kogan, forthcoming in the \ale |udaica Series
(\ale University Press).
Iu its ual jorm, The Kuzari is preseuteo as a oejeuse oj juoaism agaiust its religious
oppoueuts auo philosophi.al ri:als. Houe:er, the |ools .ore, preser:eo iu its thiro part,
uas origiually .ou.ei:eo as a polemi.al uorl agaiust Karaism. Hale:i oejeuos the Ra|
|is pouer to oepart jrom 8.ripture |y re.ou.ei:iug their tea.hiugs iu terms oj propheti.
iuspiratiou.
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(,) The sage said Truly, our |entire| religious Iav is bound to the lav
given to Moses from Sinai or the place vhich the Iord shall choose (Deut.
;:, o), for instruction shall come forth from Zion and the vord of the
Iord from |erusalem (Isa. :) in the presence of judges, ocials, priests,
and |members of | the Sanhedrin. We are ordered to obey the authorized
judge in every generation, just as |Scripture| says . . . |And appear| be-
fore the . . . judge in charge at that time, and present your problem. When
they have announced to you the verdict in the case, you shall carry out the
verdict that is announced to you from the place that the Iord chose, ob-
serving scrupulously all their instructions to you (Deut. ;,o). Then |it
adds| Should a man act presumptuously and disregard the priest, etc., . . .
that man shall die. Thus you vill sveep out evil from your midst (Deut.
;:). |Scripture| associates disobeying the priest and the judge vith the
very greatest crimes vhen it says, Thus you vill sveep out evil from your
midst (Deut. ;;), and it follovs vith |this explanation| All the people
vill hear and be afraid and vill not act presumptuously again (Deut. ;),
|that is,| as long as the proper ordering of the |sacred| service, the Sanhedrin,
and the other groups through vhich the proper ordering |of the community
at large| is perfected, continues. Moreover, the divine order vill undoubt-
edly be attached to them, either |directly| through prophecy or |indirectly|
through support and inspiration, just as it vas during the |period of | the
Second Temple.
lor people such as these, conniving and collusion are | just| not pos-
sible. That is vhy the commandment |to read from| the Scroll of Lsther and
|to observe| Purim as vell as the commandment |to observe| Hanukkah be-
came obligatory, and also |vhy| ve vere permitted to say |in the appropriate
blessings recited before fullling these obligations|, . . . And vho has com-
manded us to read the Scroll |of Lsther| and to kindle the light of Hanukkah
(cf. ). . . . If they vere |merely| customs that arose after the exile, they
surely vould not have been designated as statutory, and it vould not have
been necessary for us |to recite| a blessing |in connection vith them|. Rather,
they vould have been called |in each case| an ordinance or a custom. . . .
(o) The Khazar said Hov can this be reconciled vith |the com-
mandment that says,| Neither add to it nor take avay from it (Deut. )
() The sage said This vas said only to the multitude so that they
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vould not engage in intellectual speculation, make arbitrary judgments, and
lay dovn |religious| lavs for themselves as the Karaites have done. Moreover,
it encourages them to accept |the instructions that came| from the prophets
after Moses, peace be upon him, and from the priests, and from the judges
too, just as |Scripture| says vith regard to the prophet I vill raise up a
prophet for them, etc., . . . and he vill speak to them all that I command
him (Deut. ::). With regard to the priests and the judges it also said that
their rulings should be obeyed. Thus, the statement \ou shall not add any-
thing to vhat I command you or take anything avay from it (Deut. :)
has come to mean all that I have commanded you through Moses and also
all that I have commanded you through a prophet from among your ovn
people (Deut. :), in keeping vith the conditions that establish |vho is
t| for prophecy, or all that the priests and the judges have agreed upon from
the place vhich the Iord shall choose, for they are indeed supported by the
divine presence. It is inconceivable for them to have colluded on something
that is contrary to the religious Iav because of their great numbers. And it
is also inconceivable to ascribe a faulty opinion to them because of their vast
|store of | knovledge, vhich is |partly| inherited, |partly| innate, and |partly|
acquired |by their ovn investigations|, because they |themselves| reported
that the |members of the| Sanhedrin vere obligated to acquire |knovledge
of | all the sciences, and especially |because| prophecy or vhat substitutes for
it, such as a heavenly voice and other such things, rarely abandoned them.
^either Aoo to It Applies to Ra||iui. Legislatiou
8. Maimonides, MT Iavs of Rebels :; :, ,
!he Cooe oj Maimouioes, Bool Iourteeu. !he Bool oj juoges, translated by AbrahamM. Hersh-
man, \ale |udaica Series (Nev Haven \ale University Press, ,,), pp. :o, :.
Iu his a..ouut oj ra||iui. authority, Maimouioes upholos the oistiu.tiou |etueeu lau
auo prophe.y ou the oue hauo ( ::) auo the authority oj the Cral Lau ou the other.
He :ieus the |ull oj the Cral Lau as a proou.t oj the iustitutioual respousi|ility oj
the 8auheoriu to iuterpret auo implemeut !orah lau auo ouly a miuimal portiou as
the result oj a oire.t ougoiug traoitiou jrom 8iuai.
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Chapter
. The Great Sanhedrin of |erusalemis the root of the Oral Iav. The
members thereof are the pillars of instruction; out of them go forth statutes
and judgments to all Israel. Scripture bids us repose condence in them, as
it is said, According to the lav vhich they shall teach thee (Deut. ;).
This is a positive command. Whoever believes in Moses, our teacher, and his
Iav is bound to follov their guidance in the practice of religion and to lean
upon them.
:. Whoever does not act in accordance vith their instruction trans-
gresses a negative commandment, as it is said, Thou shalt not turn aside
fromthe sentence vhich they declare unto thee, to the right hand, nor to the
left (Deut. ;). . . . Whether the direction given by them is vith regard
to matters that they learned by traditionmatters that form the contents of
the Oral Iavor vith regard to rulings deduced by any of the hermeneuti-
cal rules by vhich the Torah is interpretedrulings vhich they approved
or vith regard to measures devised by them to serve as a fence about the
Iavmeasures designed to meet the needs of the times . . . vith regard
to any of these three categories, obedience to the direction given to them is
a positive command. . . .
Chapter :
. If the Great Sanhedrin, by employing one of the hermeneutical
principles, deduced a ruling vhich in its judgment vas in consonance vith
the Iavand rendered a decision to that eect, and a later |High| Court nds
a reason for setting aside the ruling, it may do so and act in accordance vith
its ovn opinion, as it is said, And unto the judge that shall be in those days
(Deut. ;,), that is, ve are bound to follov the directions of the court of
our ovn generation.
,. Since the court is authorized to issue decrees prohibiting vhat is
permitted and the prohibition is binding upon succeeding generations; and
since it is empovered to permit provisionally vhat is forbidden in Scrip-
ture, hovare ve to understand the scriptural injunction Thou shalt not add
thereto, nor diminish from it (Deut. ) |It is to be understood as an ad-
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::o Rabbis and Sages
monition| not to add to the precepts of the Torah, nor to take any precept
avay from it, that is, not to impart to any regulation |evolved in the course
of time| the character of an old, established lav, as though it vere a com-
mand embodied in the Written or the Oral Iav. To elucidate this point The
Bible says Thou shalt not seethe a kid in its mothers milk (Lxod. :,).
We have it on tradition that this verse prohibits the cooking or eating of esh
vith milk, be it the esh of a domestic animal or of a beast of chase; that the
esh of fovl vith milk is permitted by biblical lav. Should the court permit
the esh of a beast of chase vith milk, it vould be taking avay |from the
commands of the Torah|. On the other hand, should it forbid the esh of
fovl |vith milk| on the ground that the prohibition in the text extends to
|the cooking or eating of the esh of | fovl vith milk, it vould add |to the
commands of the Torah|.
What the court should say, is By the lav of Scripture, esh of
fovl |vith milk| is permitted, but ve forbid it. It is imperative that ve in-
form the people that the prohibition has been decreed in order to obviate
harmful results that might othervise ensue. lor some people vould argue
thus esh of fovl |vith milk| is permitted because it is not expressly forbid-
den in the text; it follovs therefore that the esh of a beast of chase |vith
milk| is likevise permitted, since it is not expressly stated in the text. Others
vould contend that even the esh of a domestic animal is permitted |vith
milk| except that of a goat; still others might assert that even the esh of a
goat may be eaten vith the milk of a cov or of a sheep, because the text
states its mothers milk, that is, milk of its ovn kind; still others might
|go so far as to| say that the esh of a goat may be eaten even vith the milk
of a goat, provided that the milk is not that of its ovn mother, because
the text reads its mothers. Therefore, ve forbid all esh vith milk, even
the esh of fovl. In this vay, the court does not make any addition |to the
precepts|, but is only making a fence to the Torah. This applies to similar
regulations.
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Karaites and Rabbanites ::;
Critique oj Ra||iui. Authority
. Ieone Modena (attrib.), Kol 8alhal, Second Lssay, Chapter
Talya lishman, 8haliug the Iillars oj Lxile. 1oi.e oj a Iool, au Larly Mooeru jeuish Critique
oj Ra||iui. Culture (Stanford Stanford University Press, ,,;), pp. :.
Kol Sakhal, 1oi.e oj a Iool, .omes jrom au auouymous mauus.ript rst pu|lisheo
iu ::,. |ut uritteu, a..oroiug to mooeru s.holars, |y Leoue Mooeua iu the early se:eu
teeuth .eutury. Mooeua also urote, or |egau to urite, a rejutatiou oj the Kol Sakhal,
|ut ouly a jeu pages ha:e |eeu jouuo. Assumiug his authorship, his iuteutious are
perplexiug. Ierhaps he uas expressiug his ouu :ieus, auo the rejutatiou is merely selj
prote.tiou ( jor the :ieus are, as he says, hereti.al). But uoue oj his other |ools e:eu hiut
at su.h uu.ou:eutioual ioeas. Ierhaps he uas expressiug :ieus .urreut iu the Italiau
jeuish .ommuuity (or more uioely, amoug returuiug conversos, jor example), uhi.h
he thought ueeoeo to |e rejuteo. But ij so, the argumeuts are preseuteo uith remarl
a|le jor.e. Iu either .ase, the raoi.al .ritique oj ra||iui. authority oe:elopeo here is
uorth repriutiug. Mooeuas .ritique e.hoes Karaite .laims, |ut also goes |eyouo them,
auo is :irtually uupre.eoeuteo iu jeuish literature, it auti.ipates 1oltaires .ritique oj
priest.rajt a .eutury auo a halj later.
Among the things that you ought to knov is that all these matters relating to
the commandments and details that the Pharisees continued to create from
the time of the Great Assembly onvard vere not initially |designed| in order
that the entire population fulll them obligatorily, vith the violator con-
sidered a heretic and judged like a violator of matters of Torah, as became
videspread after the Destruction. Rather |Pharisaic practice vas intended| as
a vay of consecrating oneself vith respect to vhat is permitted and |as| a life
of separateness, in the manner of the monastic sects among todays Christians
vho are even more stringent than they vere. They thought that the com-
mandments vould be fullled in their most proper manner through these
deeds. Note that this is vhy they vere called Pharisees |Ierushim|. That is,
their custom vas to be stringent in separatism | perishut|, set apart from the
masses of the people of Israel.
And even vhen the Pharisees became more poverful than the other
sects during the time of the Second Temple kings, they did not judge and
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::: Rabbis and Sages
punish violators of these ordinances of theirs. But little by little, those vho
accepted them . . . vent on progressively strengthening everything like the
statutes of the Torah itself, until it too vas called TorahOral Torah.
And they said that everything vas received, either from Sinai or from the
prophets.
Hovever, after our city vas destroyed and our Temple laid vaste
and Israel vas exiled from its land during the days of the tauuaim . . . those
sages and early leaders should have established for the exiled a nevorder and
almost a nev Torah, though on the foundation of the Torah of Moses, to
follov in the Lxile. lor the priesthood and sacrices, purity and impurity,
and certain lavs dependent upon the land vere nullied |i.e., vere no longer
practicable|, and there vas no Sanhedrin, and they vere transformed from
a kingdom to |a people under| enslavement.
But vhere they should have eased and lightened the load of the de-
tails of the commandmentsvithout ever deviating from their principles,
hoveverit vould, in any event, have been tting for them |the leaders|
to interpret and explain |them| in such a manner that they |the |evs| vould
be able to survive in the lands of their enemies, both in nding a livelihood
and also in not being hated and oppressed by them. |And the |evish leaders
ought| to have thought about our being in Lxile and that it is dicult to
performthe details of the commandments and that perhaps Israels condition
could change for the vorse and |for it| to be dispersed even more videly,
as happened for our sins. They did the exact opposite, taking for themselves
vhatever had been practiced as a manner of separatism by the Pharisees, as I
have told you. And they added to these over and over. They are all bad stat-
utes to drain the nancial resources of Israel and to sadden their lives and
render them odious and despised in the places to vhich they go. lor they
|the rabbis| then had no vay of lording it over the people vithout this. And
|they did| not |encourage them| to investigate any knovledge that vould
raise them above their fellovs aside from the |Oral Iav|. lor they vere all
required to consult them |the rabbis| regarding the details of the command-
ments. They therefore did not commit them to vriting, giving the reason,
Things that are oral may not be committed to vriting, in order that they
|the masses of |evs| vould have need for them |the rabbis| at all times, and
vould honor and revere them.
Were it not for the fact that vhen our Saintly Master |R. |udah the
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Halakhic Innovation ::,
Prince| arrived and sav that the masses already comported themselves under
the yoke of these stringencies and inventionsand he vas already vealthy
and vise and a patriarchhe vished to put an end to this once and for all. He
collected all that had been created up until then and vrote it in one code
these are the Mishuayyot in six Ordersin order that a reader might hasten
through it and that Israel need not need its leaders every minute. Nor vould
they |the leaders| continue to add commandments and ordinances and details
vithout end.
Hovever, they shortly found room to return to their former
strength; for hov |else| vould the sages and Patriarchs lord it over their gen-
eration if there vere no innovation and casuistry . . . |So| they said that
one could not derive legal instruction from the Mishnah, for the matters are
obscure and require interpretation.
They persisted in doing to the Mishnah vhat they had done to the
Torah, to the point that the Talmud vas compiled of the visdom of people
vho had grovn up in the Valley of Shinar in Babylonia, devoid of civility
and political knov-hov, vho did not recognize the rmament, but only
vhat vas suspended over their heads above. . . .
And they established the entire Talmud, vhich, in truth, is Babel-ish
and babbled and a hodgepodge of strav and hay and vheat. As they them-
selves said, \ou have set me dovn in dark places This is the Babylonian
Talmud (BT Sanhedrin :a).
And those vho came after it did to it vhat they |their predecessors|
had done to the Mishnah, via the vritings of the geouim, the Tosafot, |and
the talmudic commentaries|. . . .
Mooeru Cou.erus. Halalhi. Iuuo:atiou auo Ra||iui. Authority
Critique oj Halalhi. Atrophy
zo. Moses Ieib Iilienblum, Crhot ha!almuo, Appendix
Complete 1orls oj Moshe Lei| Lilieu|lum (Cracov, ,o; Hebrev), vol. :, pp. ;,, ,
.
1ritteu iu :::, this is a represeutati:e text oj the last years oj the Russiau haskalah
(eulighteumeut). By the ::os, Lilieu|lum uas a so.ialist, auo |y the :::os a 2iouist,
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|ut here he still oejeuos a mooerate haskalah positiou, oemauoiug a rejorm oj jeuish
lije leo |y the ra||is auo |aseo ou iuterpretatiou oj the !almuo.
Iatter-day |rabbis| have come to regard the Talmud just as the talmudic sages
regarded the Torah of Moses' |ust as they derived many lavs from every little
horn of the Torahs letters |see ,|, so too todays codiers have derived and
created many lavs from each vord in the Talmud. \et they dier, for the tal-
mudic sages knevvell that the legislator had not intended to encrypt vithin
his vords a host of lavs, but rather that time auo .ommou seuse vere the causes
of the nev lavsthe vords of Scripture merely furnishing a prop |asmalhta|
for their rulings. Not so the latter-day codiers' They believed vholeheart-
edly that any innovation by an advanced student and any vord that emerged
from the mouths of the talmudic sages vere revealed to Moses at Sinai. They
similarly imagined that the talmudic sages hid a host of lavs beneath the
surface of their casuistic discussions and statements. lrom these |discussions|
they thus derived nev lavs that vould never have occurred to the talmudic
sages, lavs that contravene both the spirit of the age and common sense'
If only these codiers had attended to the methooology oj the !almuo,
if only they had realized that the Talmud is more a guide to halakhic adju-
dication than a halakhic code; if only they had not forgotten that one does
not derive |lavs| from aggadic passages and that regarding rabbinic lav one
should be lenient;
16
if only they had chosen visdom as did our sages prior to
Rabbi |acob Pollack and Rabbi Isaac Iuria, the disseminators of casuistry and
Kabbalah; if only they had not attributed to every vord and to all the casu-
istries of the Talmud a holiness like that of the Torah of Moses' Then they
vould not have created nev lavs for us each day, nor established them as
eternal lavs for Israel, like a burdensome stone that injures all vho carry it.
They vould recognize that God alone gives lavs; vithout a prophet among
us, ve cannot, after the compilation of the Talmud, create nev lavs, say-
ing This is Gods vill'for vho has shared His counsel Indeed, even a
prophet, except for Moses, the man of God, cannot add lavs; hov much
less so one vho, through his casuistry, brings about obscurity and creates
o. See Maimonides, MT Iavs of Rebels .
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darkness, confounding the lavs of shema vith the lavs concerning a goring
ox . . . and the like' When the talmudic sages, may their memory be blessed,
added lavs, this |involved| solely re.ei:eo lavs and interpretations, and de-
crees and ordinances that simply preserve Gods Torah in accordance vith
the |contingencies of their| place and time' . . .
The entire Talmud, except for a fev ancient lavs and received in-
terpretations . . . is the uorl oj uise people vho understood the spirit and
manner of human beings and the precious value of the days they live here on
earth. With great visdom, they infused a living spirit into the Torah of God,
lest it be like a frozen monument, unmoved by any strong vind or vhirling
storm. By delving into |the Torah|, they found devices for explicating it in a
discerning and intelligent manner, lest it become an obstruction in our lifes
course; they eloquently steer it vhere the spirit oj lije desires, vhile detracting
nothing from it. Therefore, their memory is blessed by all vho are upright
and understand their actions.
Those, hovever, vho are so vise in their ovn opinion and deride
the Talmud, |thereby| proclaim their ovn foolishness and ignorance of |the
Talmuds| methodology; they understand the Talmud no better than those
vho believe that everything |in it| vas revealed to Moses at Sinai. Both these
|groups| are vholly ignorant of its methodology' . . .
The Talmud is an anthology of disparate opinions. Nov, since indi-
vidual opinions dieras |the Talmudic sages| themselves stated, (BT Be-
rakhot :a; Sanhedrin :a)it includes conicting opinions in the area of
belief as vell as in halalhah. . . . \et there is one thing, dear reader, on vhich
ve nd agreement among all the tauuaim and amoraim. namely, that any
ordinance or decree vhose grounds have disappeared can be annulled; and
that each court has the authority to depart from its predecessors rulings
(subject to the conditions I dene |elsevhere|), and that their every state-
ment vas asserted in accordance vith the |contingencies of their| place and
time' . . .
Iook here, our rabbis' We come before you in the name of truth, in
the name of the Talmud, and in the name of the noble men of our people, the
shepherds of Israel. . . . In their name, ve demand that you convene and
in the company of intellectuals |maslilim| vho understand the Torah, vho
are faithful in spirit and knovledgeable about the timesgive us a pure and
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perfected 8hulhau Arulh, a table |shulhau| free of all dross and false vanities,
a 8hulhau Arulh that vill not counsel us thus We should not lift our heads
and look up during prayer, so that the angels do not mock us (Mageu A|ra
ham |on 8hulhau Arulh, Orah Hayyim| ,). . . . A 8hulhau Arulh that vill
not encumber us vith rules . . . devoid of both Torah and visdom' . . . A
8hulhau Arulh that vill not introduce out of thin air lavs that are not men-
tioned in the Talmud, such as the observance of self-aiction during the
rst eight days of the fth monththe Talmudic sages did not command
this'
17
Is it not painfully ludicrous that the sages vho vitnessed the deso-
lation of our Holy Temple and the exile from our land established only a
fev rites of mournful remembrance, yet more than a thousand years later,
many |rites of | remembrance vere added, vithout an ancient foundation' A
8hulhau Arulh that vill distinguish betveen lav and pious supererogation'
A 8hulhau Arulh that vill not burden us vith faulty lavs and unfounded
stringencies. . . . A 8hulhau Arulh that vill prohibit ouly that uhi.h is ]truly
prohi|iteo and vill not decree harsh and evil enactments that separate us from
humanity and from the universe, and vill allov us to stride condently; one
founded exclusively on the spirit oj the !almuo: . . .
lor too long you, our rabbis, have sat vith folded arms. \ou should
not be silent. It is time for initiative, a time to act for our religion and people.
A time to remove the disgrace cast upon ourselves and upon the Talmud by
our enemies, vho have turned the Talmud into a stumbling block in our
path, claiming that it increases lazy and vorthless people in Israel; it elevates
the honor of the person vho studies it, so that he can subjugate the masses;
it increases animosity betveen the |ev and the people in vhose land he re-
sides; it gives cunning to the devious' We knov that, in all these things,
the sin of |acob (Micah ) lies not in the Talmud, but in the serpentine
scholarship, both heartless and proud, that has been our undoing' It is a time
to reprove the people so that they |vill come to| love vork and enjoy the
labor of their ovn hands. This follovs the statement of Raba to his students
;. The ninth day of Av, the fth month, vas from biblical times a fast day commemorating
the destruction of the Temple in |erusalem. According to the Mishnah (Taanit ;), certain
customs of mourning are observed from the Shabbat preceding the fast. Under later prac-
tice, as reected in the 8hulhau Arulh, these customs are observed from the rst day of the
month.
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I vould ask you not to appear before me during ^isau |the month of har-
vest| and !ishre |the month of grape and olive pressing| so as to avoid being
concerned vith provisions the year long (BT Berakhot b). |It is| time to
remove pride from the hearts of Torah scholars, for ve are prohibited from
making the Torah a crovn for self-aggrandizement (Avot )' It is time to
teach the sons of |udah to increase peace betveen those of dierent and dis-
parate religions, just as the Talmud commands |us| to increase peace even
vith idolaters (BT Berakhot ;a)hov much more so vith the peoples vho
are our neighbors |today|' It is time to place in their hearts the understand-
ing that the commandments relating to man and his fellov man are far more
valuable than those relating to man and God (BT \oma :a; BT Bava Batra
::b), and that it is prohibited to deceive even an idolater (BT Hullin ,a).
Machinations for illicit gain are abhorrent to God' It is a time to perform
great deeds on our behalf, to raise our dignity and to cause us to succeed in
our endeavors. A vise person should not be silent at a time like this'
Auythiug ^eu Is Ior|iooeu
z. Moses Sofer, Respousa Hatam 8ojer, Orah Hayyim ::
1ritteu iu ::,o, this is the most .learly argueo oj a uum|er oj respousa iu uhi.h 8ojer
arti.ulates uhat |e.ame the .eutral priu.iple oj the orthoooxsoou to |e ultraortho
ooxrespouse to haskalah auo rejorm. Auythiug ueu is e:eryuhere jor|iooeu |y
the !orah. 8ojer |ololy imparts au eutirely ueu meauiug to these uoros taleu jrom
Mishuah Crla ,.,, uhere they rejer simply to the !orahs prohi|itiou ou .ousumiug the
ueu .rop |ejore the requisite sa.ri.e is oereo (see Le:. .,.,:,). !he uoro e:ery
uhere, uhi.h iu the origiual rejers to all lo.atious, assumes, iu 8ojers polemi., the
emphati. meauiug oj uuoer all .ir.umstau.es.
\ou vrote regarding the old synagogue, vhich the members of the holy
community took dovn, erecting a nev, larger building to give glory to our
Gods house. Nov they vish to place the |imah |dais| for the Torah reading
at the front of the synagogue, near the holy Ark, rather than in the cen-
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ter, vhere it had alvays been. They argue that this vould be more aesthetic
and provide greater space in the synagogue, as compared to having it in the
center. \our question is, vhether it is acceptable to make this change or not.
Ansver . . . \ou vrite correctly that Maimonides (MT Prayer )
explicitly rules that the |imah should be built in the center of the synagogue,
so that everyone may hear equally |vell|, and the same vas vritten in !ur
(Orah Hayyim o) . . . |and thus| anyone seeking a change is at a disadvan-
tage. It is true that | |oseph Karo in his| Kesej Mishueh vrote in defense of
people in some places in |Sephardi| lands vho built their |imah at the front
of the synagogue. He explains that they held that the |rule of placing it in
the center| applied only in ancient times, vhen the people vere numerous
and could hear the readers voice only from the center. In small communi-
ties, vith fev people, they can, hovever, hear . . . |the reading| from a |imah
at the front.
|As for| the grounds for requiring the |imah to be in the center, . . .
I suggest the folloving reason Since ve viev the |imah . . . as the equivalent
of the altar . . . , and the inner altar in the Temple, before the holy Ark, vas
placed in the center of the house, exactly betveen the lamp and the table, . . .
the |imah too should be placed in the center of the synagogue, so as to render
it as similar as possible to the Temple; and there should be no change in our
microtemple.
Lven the defense oered by Kesej Mishueh for |the practice of Sep-
hardi| communitiesthat does not apply to us. lor our forefathers vho built
this synagogue placed it in the center, vhich shovs that such vas their pref-
erence, so that all the people may hear. Thank God, the community has not
been diminished; on the contrary, it has grovn. Therefore, even had |the
synagogue| originally been built |vith the |imah| at the front because they
vere fev, they vould nov certainly be required to build it in the center.
In any event, God forbid that there should be a change from the vay it has
been.
Moreover, it seems to me that even Kesej Mishuehs argument re-
garding those |other| communities applies only to building a nev synagogue
in a place vhere there had never been one. But as they are building to replace
an old synagogue, there should be no change. . . . Lven though additions
can be made to the city |of |erusalem| and to the temple courts (Mishnah
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Halakhic Innovation :,
Sanhedrin ), and consequently things vill change, nevertheless there vill
not be a change of placement betveen north and south, or any move . . . avay
from the center. lor the Second Temple vas larger than the lirst Temple, yet
there vas no change in the array of the |holy| utensils the altar, the lamp,
and the table vere not moved avay from the center. Lven though, in pro-
portion to the size of the building, the center vill nov be in a dierent
place from the center of the old synagogue, nevertheless this nev synagogue
also merits having its |imah in its center. . . . The principle is, Anything nev
is everyvhere forbidden by the Torah. . . . \our honor vill surely protest
poverfully |against this change| and erect the sanctuary properly, and the
people too vill be in peace.
!he ^eeo jor Halalhi. Iuuo:atious
zz. Hayyim David Halevi, Aseh Lelha Ra: ;
Aseh Lelha Ra: (Tel Aviv, ,:o; Hebrev), volume ; section , pp. ::.
!he oe:elopmeut oj halakhah amoug Ashleua:i .ommuuities o:er the past tuo .eu
turies uas oomiuateo |y the .ultural oe|ate o:er haskalah auo rejorm. 8epharoi hala
lhists, iu .outrast, uere uot party to this oe|ate, auo their attituoe touaro questious oj
legal iuuo:atiou is marleoly jree oj |oth traoitioualist auo rejorm teuoeu.ies. Hale:i,
uho uas 8epharoi .hiej ra||i oj !el A:i:, argues here that iuuo:atiou is the lije oj
halakhah.
I acknovledge \our Honors letter, vritten in response to my essay . . . in
vhich I concluded that there is a clear need to seek solutions in the spirit of
the sources and in utter faithfulness to them, and introduce halakhic inno-
vations. \our Honor expresses vonder Are ve permitted to depart even a
hairs breadth from the halalhah as vritten and received What is the mean-
ing of innovating halakhic rulingsfor if they exactly conform to the
8hulhau Arulh, they constitute no innovation vhatever, vhile if they do not
conform, vhat permission have ve . . . , etc.
. . . All this is indeed completely true, just as \our Honor vrites
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:,o Rabbis and Sages
that ve may not depart even a hairs breadth from the halalhah. But I do
not agree that . . . innovations in the spirit of the halalhah, as vritten and
received, and in utter faithfulness to it, constitute deviationeven if these
innovations change, in a particular instance, the halalhah as vritten. . . .
The term halalhah derives from the root h.l.lh. |to go|. It signies
something that extends from early on until the end, that is to say, that vhich
is received and transmitted in Israel from Sinai dovn to the present. . . .
Nov ve must ask Since it is abundantly clear that no lav or ordi-
nance can persist for long oving to the changing circumstances of life, a lav
that vas good for its ovn time is no longer suitable after a generation or
more, and requires correction |tilluu| or change or the like. Hov is it, then,
that the holy Torah gave us just and righteous lavs and ordinances thousands
of years ago, and ve continue to observe them to this day, and vill indeed
continue unto the last generation Hov did it come to pass that the very
same lavs vere good for their ovn time and are good up to this very day
Of course, God vho gave us the Torah . . . sees unto the last generation; yet
ours is the duty to understand Hov is it done
Nov, this |continuity| vas possible only because permission vas
granted to the halhamim of Israel in every generation to introduce halak-
hic innovations in accordance vith changes of time and circumstance. Only
thus vas it made possible for Torah to persist in Israel. . . .
What, then, did the Rabbis mean vhen they said This teaches that
the Holy One revealed to Moses all details specied in the Torah, and all de-
tails specied by the scribes, and all that the scribes vould eventually inno-
vate (BT Megillah ,b; |T Peah ;a) Certainly the meaning is not literally
that He taught |Moses| all of the Torah that vould . . . be innovated |fromthe
generation of Sinai| until the last generation in order that he should teach
it to Israel. lor, if so, vhat vould there be left to innovate Rather, it is as
explained by |Rabbi \om Tov Iipmann Heller| author of !osajot Yom !o: (in
the introduction to his commentary on the Mishnah), |that God merely re-
vealed to Moses this body of knovledge but did not give it to him to teach
to Israel|. Nov let us understand, To vhat . . . purpose did God reveal to
Moses everything that a qualied student vould eventually innovate, seeing
that he vas not to teach it to Israel
We must presume that Moses reported this to Israel (namely, that all
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that a qualied student vould eventually innovate had been revealed to him),
for, othervise, knovledge of that fact could not have reached us. Surely this
vas in order to indicate to Israel the permission granted them to inno-
vate in every generation, and that innovation is part of the halalhah given
to Moses, our Master.
Whoever thinks that the halalhah is frozen, and that ve may not
deviate from it right or left, errs greatly. On the contrary, there is no exi-
bility like that of the halalhah. . . . Only by virtue of this exibility vere
the |evish people, relying on numerous and useful innovations introduced
by the halhamim of Israel, each in his generation, able to valk in the path
of Torah and its commandments for thousands of years. If the halhamim of
our |ovn| generation vill have the courage to introduce halakhic innova-
tions true to Torah, vith utter faithfulness to the body of Torah as vritten
and received, then the halalhah vill continue to be the path of the |evish
people unto the last generation.
!he Iouer oj the !:aooil
z. Llimelekh of Iyzhansk, ^oam Llimelelh, Vaethanan, s.v. hayom
!he expauoiug pouer oj the hasioi. mo:emeut at the euo oj the eighteeuth .eutury
ae.teo uot ouly religious ioeals auo pra.ti.e |ut also jeuish .ommuual lije. !he mo:e
meut .reateo a re:olutiouary jorm oj .ommuual authority arouuo .harismati. leaoers,
tzaddikim. Llimelelh oj Ly:hausl playeo the leaoiug role iu oe:elopiug the oo.triue
oj the tzaddik. Iu .outrast to the ra||i, uhose authority oepeuos ou his luouleoge oj
the lau, the tzaddik gaius his authority |y :irtue oj his iutermeoiary role |etueeu the
oi:iue auo material uorlos.
We have seen this day that man may live though God has spoken to him
(Deut. :). It then says If ve hear the voice of the Iord our God any
longer, ve shall die (::). These tvo verses contradict each other. . . .
Iet us rst expound this verse in Psalms I had taken you for gods
|elohim|, sons of the Most High, all of you; but you shall die as men do (::o
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:,: Rabbis and Sages
;). We have already indicated many times that the t:aooil is called man of
God, as it is vritten, Moses, the man of God (Deut. ). lor the t:aooil is
the master of the judgments |oiuim|. They are in his hands. He may channel
them hovever he vishes |so as| to subdue and mellov them. The t:aooil is
the judge, for judges are called elohim. . . . He may thus annul all judgments
and all decrees against Israel. Therefore the t:aooil is called man of God, that
is, master of elohim.
Thus the Talmud states The Holy One decrees and the t:aooil an-
nuls. As it is vritten \ou vill decree and it vill be fullled ( |ob ::::).
But hovdoes this |verse| prove that the t:aooil may annul the judg-
ments and decrees that the Holy One decrees Isnt the meaning of the verse
that vhen the t:aooil decrees, the Holy One fullls lolloving our exposi-
tion above, it all ts vell. When the t:aooil judges belovand decrees, there is
no judgment above, they |the judgments above| are annulled of themselves.
Hovever, it must still be understood vhence is it that the t:aooil
may heal the sick |person| by means of his prayer and bring him vitality, so
that a man shall live. lor the t:aooils vitality is not eternal but rather an
accident; hov then can an accidental object give life God . . . vho lives and
exists eternally, vhose vitality is His essence, may give life to accidental man,
but not so man |himself |, vhose vitality is not essential. Hovever, this |fact,
that the t:aooil can heal| is only so because the t:aooil cleaves |miooa||el|
unto God, and therefore his vitality cleaves unto eternal and essential life
thereby rendering the t:aooils vitality eternal and essential too, for they have
been united into one substance. Therefore the t:aooil has the pover in his
hand to bring vitality to the sick.
Nov, should you say, vhy doesnt the t:aooil live and exist forever
This is impossible. lor the t:aooil is not alvays in a state of oe:elut. Some-
times he ceases cleaving |to God|. lor the vorlds are thus created attaining
and not attaining. That is to say, the t:aooil must alvays go from level to
level. And vhen he vishes to ascend to a higher and more elevated level, he
must |rst| descend and go dovn a bit and then ascend. . . . And vhen the
time comes that he must go in the vay of all the earth to the vorld of truth,
and he is disconnected from his oe:elut, then he vill go and be gathered
to his kin. Indeed, it vas Gods vish that ve vould all cleave unto Him.
Therefore, the rst tvo commandments vere heard directly from God. lor
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Halakhic Innovation :,,
I am is a positive command and \ou shall not is a negative command
pertaining to divinity and oe:elut. God Himself therefore proclaimed |these
commandments| to us so that ve should cleave unto Him, to eternal life.
This is, then, the meaning of |the verse| I had taken you for Gods
|elohim|. . . . \ou should thereby cleave unto eternal life. But you shall die as
men dothat is, vhen you disconnect from oe:elut. This too is the mean-
ing of the verse While you, vho held fast |oe:elim| to the Iord your God,
are alive today (Deut. ). The vord today is seemingly redundant. But
according to the |text| above it is understood vhen you cleave unto God,
each and every one of you, you are alive by cleaving unto God . . . unto eter-
nal life. But this is only today. On each and every day you must return and
cleave unto Him as explained above, because it is impossible to be in con-
tinuous oe:elut. Thus Israel said, We have seen this day that man may live
though God has spoken to himvhich is to say, vith man, |God converses
vith man as men| converse vith each other God speaks and decrees and the
t:aooil decrees and annuls. Lven if death has been, God forbid, decreed for
a man, the t:aooil can bring vitality to him. . . .
Daat !orah. Lxteuoiug Ra||iui. Authority
z. Lliyahu Lliezer Dessler, Milhta: meLliyahu
Milhta: meLliyahu (Tel Aviv Committee for the Publication of the Writings of Rabbi
L. L. Dessler, ,; Hebrev), vol. , pp. ,, ;;;. A full Lnglish translation of these texts
can be found in Dessler, 8tri:e jor !ruth: ( |erusalem and Nev\ork leldheim, ,;:), vol. ,
pp. ;o;:, :;:.
!he jouuoiug oj the orthooox, auti2iouist Aguoat Yisrael party iu the early tueutieth
.eutury .reateo a jrameuorl jor the periooi. gatheriug oj leaoiug s.holars iu the jorm
oj a .ouu.il oj sages. !his .ouu.il e:ol:eo as the maiu jorum jor oe.ioiug matters oj
poli.y jor the party auo its jollouers. !he terms daat torah, the !orah :ieu, auo
its atteuoaut emunat hakhamim, jaith iu the sages, .ou.eptuali:eo the authority
.laims oj these leaoiug s.holars iu mauy areas oj poli.y that traoitioually uere uot su|
je.t to halalhi. jurisoi.tiou. Dessler uas a leaoiug expoueut oj these ioeas, his a..ouut
oj the status oj the sage may ree.t the iuueu.e oj hasioi. .ou.eptious oj the tzad-
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dik. !he rst passage iu the jollouiug text oers a theory oj emunat hakhamim; the
se.ouo is a letter aomouishiug the re.ipieut jor la.liug requisite jaith.
Torah of Truth
What shall the blind man do vhen he must tread an unfamiliar
path He takes one vho sees as his guide, or at least, at every turn, asks those
vho see.
So too has God in His lovingkindness provided us vith guides, our
sages, the scholars of Torah. lor anyone vho contemplates their teachings
perceives their clarity of vision regarding their ovn psychological consti-
tution and that of humans generally, and regarding the path that a person
ought to follov for his ovn good.
. . . This shovs us the essence of emuuat halhamim.
Whoever vills to have faith in them can benet from their clear
vision, and they become his eyes. Their teachings can provide us vith right
guidance in our vievof the vorld and the governance of our actions. More-
over, insofar as ve become their disciples and strive to comprehend their
modes of thought, our mind too is rightly guided. Therefore, the great ones
of our time vhose vocation is to continue as loyal disciples in the sages
modes of thought achieve this |sense of | rightness to the utmost degree.
Thus, their opinionsvhether instructions lacking an explicit source or
even counsel on vorldly mattersare clear and true like an oracle sought
from God (: Sam. o:), as is evident to us even in our time.
A Ietter on Lmuuat Halhamim
lrom his honors vords I see that he holds that all the great scholars
of Israel, vhose deeds are for the sake of heaven, together vith the intellec-
tual giants and mighty ones of righteousness, . . . could err completely. God
forbid' . . .
Whoever vitnessed their assemblies . . . vas certain that he beheld
the divine presence |shelhiuah| in their acts, and that the holy spirit hovered
in their gathering. . . .
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The Rabbis have instructed us to obey the teachings of the hal
hamim, even if they say of left that it is right, rather than determineGod
forbidthat they are certainly mistaken, since I, the tiny one, clearly per-
ceives their mistake. Instead, |one should say.| My perception is insigni-
cant, like the dirt of the earth, in relation to the clarity of their visdom and
their divine support. . . . This is oaat torah dened by faith in the sages. . . .
The failure to acknovledge our insignicance in relation to our
sagesthis is the root of all sin and the cause of all calamitymay God spare
us. All ones merits are not equal to the root of all |good|, namely, faith in
the sages.
Connentary. Rabbinic Authority and Modernity
The modern era has been marked by the rise of radical criticism
directed at all forms of traditional authority, not least traditional religious
authority. In the |evish community such criticism has been directed pri-
marily against the authority of traditional |evish lav and of the rabbis as
its guardians and interpreters. The ve texts under consideration ( :o:)
treat of tvo separate but, as I vill indicate later, interrelated issues of rabbinic
authority () the authority of rabbis to innovate, adjust, or make changes
in the halalhah to meet vhat many believed to be the needs of the mod-
ern eraand the limits of that authority; and (:) the authority of rabbis as
spiritual, charismatic leaders uniquely qualied to guide all aspects of the life
of the individual |ev and, beyond that, to be the exclusive setters of public
policy for all issues confronting the |evish community, even, and perhaps
especially, issues not strictly halakhic in nature. All these texts, in varying
and sometimes conicting vays seek to maintain and even bolster rabbinic
authority in the light of and as a response to the modern challenges directed
at it.
The rst three texts treat the rst issue described above. Iilienblum
and Halevi, despite signicant dierences, argue that the rabbi has both the
authority and the duty to innovate vithin, and perhaps even change, the
halalhah to meet the changing circumstances of the modern era. Moses So-
fer, to the contrary, argues that all changes in traditional |evish practice, e:eu
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.hauges that oo uot :iolate jormal halalhi. oi.ta, are forbidden precisely because
they are innovations. Rabbis, as guardians of the halalhah, and more broadly
of traditional |evish practice and the traditional vay of life grounded in that
practice, cannot countenance such change.
The Iilienblum text diers from all four others in tvo important
and interrelated respects. lirst, Iilienblumvas not a rabbi but a layman. Sec-
ond, this text is the only one of the ve to criticize contemporary rabbis
for vhat Iilienblum sav as their inadequate and, indeed, counterproduc-
tive response to the challenges of the modern era. Despite this rather sharp
criticism, Iilienblum is supportive of rabbinic authority, for, so he believed,
only if the rabbis accepted his advice vould they be able to maintain their
authority and, beyond that, the authority of a rened and reneved |evish
lav.
Iilienblum vrote this text vhile he vas still a proponent of mod-
erate |evish enlightenment (haslalah). He urges contemporary rabbis to re-
turn to the methodology of the Talmud, vhich infused a living spirit into
the Torah by interpreting |evish lav in accordance vith the |contingen-
cies| of place and time. He criticizes the 8hulhau Arulh and its defenders,
vho burden us vith unfounded stringencies and enactments that sepa-
rate us from humanity and the universe. |evish lav needs to be made more
lenient to foster greater integration of the |evs vithin the societies in vhich
they lived. Particularly striking, Iilienblum argues that these changes should
not be undertaken by the rabbis alone, but only together vith intellectuals
|maslilim| vho understand the Torah, intellectuals, that is, like Iilienblum
himself.
lrom a critical-historical point of viev one may argue that Iilien-
blums distinction betveen the methodology of the Talmud and the 8hul
hau Arulh is overdravn. He vas certainly naive in assuming that his harshly
phrased demands vould elicit a positive response from the rabbis to vhom
he addressed his call. Perhaps most signicantly, Iilienblum erred in assum-
ing that the crisis of authority of traditional |evish lav could be resolved
by making particular adjustments in that lav, hovever justied such adjust-
ments might be in themselves. lor example, vhatever might be said in favor
of observing the days of semi-mourning before Tishah be-Av only from the
previous Sabbath and not from the beginning of the month, vould changes
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like that strengthen the |evish communitys adherence to the lav Perhaps
not surprisingly, soon after he vrote the vork from vhich this text is ex-
cerpted, Iilienblum moved in the direction of greater radicalism, adopting a
more positivist and materialist position and dismissing the issue of halakhic
reform as beside the point.
The tventieth-century Sephardic scholar Hayyim David Halevi,
unlike Iilienblum, criticizes neither the 8hulhau Arulh nor (except by im-
plication) contemporary rabbis. Moreover, vhereas Iilienblum argues that
the halalhah became frozen sometime after the redaction of the Talmud and
that it is the task of contemporary rabbis to unfreeze it, Halevi insists that
the halhamim of Israel each in their generation introduced numerous and
useful innovations.
Halevi, hovever, is in broad agreement vith Iilienblum concern-
ing the need to revise halalhah in accordance vith the changes of time
and circumstance. Perhaps to distinguish himself from liberal rabbis, he is
quick to reject the slightest deviation from halalhah. But, for him, halak-
hic innovations in the spirit of the halalhah do not constitute deviation,
even ifas he goes on to state in an exceptionally bold statement for an
unimpeachably Orthodox rabbithese innovations change, in a particular
instance, the halalhah as vritten.
Halevis essay contrasts sharply vith the text by Moses Sofer, the
leading gure in the orthodox struggle against reform. In this responsum,
as in several others, Sofer makes use of the epigram Anything nev is . . .
forbidden by the Torah. But exactly vhat does this mean
Sofer discusses here the permissibility of building a synagogue vith
the |imah (dais) in the front rather than in the center as it has alvays been.
He concedes that there is no strict halakhic requirement to place the |imah
in the center of the synagogue and, moreover, that at least one noted medi-
eval authority defended the decision of some synagogues to place the |imah
in the front. But, he concludes, given the accepted current practice, to build
a synagogue vith the |imah in front constitutes an innovation, and as such,
it is forbidden.
Though Sofer does not say so, part of his rationale for banning this
change may have been the fact that those vho advocated moving the |imah
to the front did so, among other reasons, to make synagogue architecture
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conform to contemporary non-|evish aesthetic standards. Thus, for Halevi
halakhic innovations in response to changes in time and circumstance are
the call of the hour, but for Sofer such innovations are halakhically forbidden
precisely because they respond positively to changes of time and circum-
stance. As the leaders of the traditional |evish community, the rabbis are
to insulate the community from such change. Sofer intuitively felt that all
changes in traditional |evish practice aimed at meeting non-|evish norms,
even if they did not violate the halalhah, vould lead to acculturation, and
that it is a small step from acculturation to assimilation. lor Sofer, the op-
portunities for greater participation by |evs in the general society, opened
up by emancipation and enlightenment, threatened the very foundations of
traditional |evish existence.
The last tvo texts treat the second issue described above, namely,
the claims made on behalf of the broad, extra-halakhic, charismatic authority
of the rabbinic scholar. Selection :, in a certain sense, is a digression. lor
Llimelekh of Iyzhansk, one of the early hasidic rabbis, speaks here about the
unique, all-inclusive, almost divine authority, not of the traditional scholar
the communal rabbi (mara oeatra) or head of a talmudic academy (rosh
yeshi:ah)but of the t:aooil. The t:aooil is the master of the |divine| judg-
ments and is thereby endoved vith superhuman povers; for example, he
can heal the sick by canceling the divine decree of death issued against them.
Lven more, as one contemporary scholar of Hasidism notes, the main inno-
vation of . . . Hasidism is its rm belief that the proper service of God is pos-
sible only via the intermediation of the t:aooil ( |oseph Dan, Rabbi Israel
of Ruzhin, jeuish 8tuoies |,,;|). But vhat is signicant for our story is that
in the tventieth century some of the charismatic authority attributed to the
t:allil vas extended to leading rabbinic scholars, the great ones of Israel
( geoolei yisrael ), in particular to the heads of yeshivas. This leads us to our
nal text.
The Dessler text is a response, vritten after World War II, to a criti-
cism leveled against the great scholars of our generation for not encourag-
ing aliyah (immigration to the Iand of Israel) on the part of Luropean |evs
during the intervar period. Had they done so, the critic argues, the lives
of thousands and perhaps tens of thousands of |evs might have been saved.
Rather than responding to the substance of the criticism, Dessler simply de-
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nies that these great scholars could have erred, for certainly the holy spirit
rested in their assembly. What is called for is not criticism but emuuat hal
hamim, faith in the sages, the acknovledgment that my seeing is null and
void in relation to the clarity of their intellect. Here Dessler introduces the
notion of oaat torah (the Torah viev; in the Ashkenazi pronunciation of its
leading advocates, oaas torah), the claim that the great ones of Israel are
qualied to express the authoritative Torah viev on all matters of public
policy and that their vievs are beyond criticism. As one contemporary hareoi
(ultraorthodox) spokesman argues, The great ones of Israel possess a spe-
cial endovment to penetrate objective reality . . . and apply the pertinent
halakhic principles. This is a form of ruah halooesh |the holy spirit| border-
ing, if only remotely, on the periphery of prophecy. lrom this premise the
folloving conclusion is derived The great ones of Israel ought to be the
nal and sole arbiters on all aspects of communal policy.
One key factor in the rise of the ideology of oaat torah has been,
ironically, the manifold modern challenges to the authority of the rabbinic
tradition, for these challenges have led many of the rabbinic exponents of the
tradition to make far-reaching claims on its behalf and, even more impor-
tant, on their ovn behalf as its authorized interpreters. Also, the breakdovn
of traditional |evish communal structures and the concomitant veakening
of the pover of communal rabbis and lay religious leaders have resulted in
the emergence of the yeshiva heads, vith their Torah scholarship and per-
sonal charisma, on center stage. The concept of oaat torah serves as vell as
a veapon in the hands of the antimodern hareoim to delegitimate modern
Orthodoxy. The hareoim thus argue that the great ones vho possess oaat
torah are precisely the nonmodernist Torah scholars, vhose vievs are pure
Torah, uncorrupted by the modern vorld. Above all, the ideology of oaat
torah, vith its extreme reading of emuuat halhamim, is perhaps the central
element in the ethic of submission that characterizes the antimodern, hareoi
vorldviev.
In sum, both the claim that anything nev is forbidden by the
Torah and the notion of oaat torah are expressions of a rejectionist Ortho-
doxy that, at best, is highly suspicious of the modern vorld. It is not sur-
prising, then, that both are ardently armed by the contemporary hareoi
community. Conversely, those |evs, like myself, vho believe in the legiti-
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macy of halakhic innovation, vho are villing to respond positively to the
challenges of modernity, grant the modern vorld some measure of value.
Precisely because ve are both modern and halakhic ve seek to balance au-
tonomy and authority, independence and submission. We nd this balance
in the process of reasoned pesal ( juridical ruling), vhich allovs for criticism
and debate vithin a revealed framevork. Consequently, ve oppose the anti-
modern notion of oaat torah, vhose entire purpose is to suppress discussion
by demanding an aleoah of the intellect in vhich one submits to the superior
visdom of the great one.
Laureu.e Kaplau
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s r v r x Controversy and Dissent
Introduction
Majority and Minority
Iuterpreti:e Iluralism
. Miorash Isalms :
Ireser:iug Miuority Cpiuious to Rely Cu
:. Mishnah Lduyot
Ireser:iug Miuority Cpiuious to Rejute
. Tosefta Lduyot
A Re.al.itraut 8.holar
. Mishnah Lduyot o;
lhe Individual: Knovledge and Responsibility
Lrroueous Ruliug
. Mishnah Horayot
A Dis.eruiug 8tuoeut
o. BT Horayot :b
Culy Ij !hey 8ay Right Is Right
;. |T Horayot d
Agaiust Coujormity
:. Asher b. \ehiel (Rosh), Tosafot ha-Rosh, Horayot :a, s.v. horu
lhe Rebellious Llder: Institutional Authority
!he Re|ellious Lloer auo the High Court
,. Mishnah Sanhedrin :
o;
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o: Controversy and Dissent
Deuiug the Lloers Re|elliou
o. BT Sanhedrin :;a::b
Distiu.tiou Betueeu Heresy auo Re|elliou
. Maimonides, MT Iavs of Rebels
Commentary. Menachem lisch, Iiving Dangerously
L:eu Ij !hey 8ay Right Is Lejt
:. 8ijre Deuterouomy
justijyiug Coujormity
. Nahmanides, Commeutary ou the !orah, Deuteronomy ;
Living vith Disagreenent
A..ommooatiug DisagreemeutsI
. Mishnah \evamot
Lo:e !ruth auo Iea.e
. Tosefta \evamot o
Halalhah Iollous Bet Hillel
o. BT Lruvin b
Coutro:ersies !hat Luoure
;. Mishnah Avot ;
A..ommooatiug DisagreemeutsII
:. BT \evamot a
Commentary. David Shatz, Interpretive Pluralism
Medieval Argunents: lhe Value of Unifornity
Coutro:ersy as De.liue
,. !he Lpistle oj 8herira Caou
Karaite Critique oj the Cral Lau
:o. Salmon ben |eroham, Bool oj the 1ars oj the Loro, Cantos III
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Agaiust Karaism. !he !rue !orah Is Cue
:. |udah Halevi, !he Ku:ari :
Commentary. Michael Walzer, Pluralism and Singularity
A Cooe Cmittiug Argumeutatiou
::. Maimonides, Introduction to the Mishueh !orah
Iusistiug ou Argumeutatiou
:. Abraham b. David of Posquieres (Rabad), Glosses to MT
Introduction
Modern Disputes: lhe Problen of Authority
Bauuiug Hasioism
:. The Brody Proclamation of ;;:
Dejeuoiug Hasioi. Ira.ti.e
:. Llimelekh of Iyzhansk, lrom the Holy Lpistle
Authority !raus.euoiug Reasou
:o. Nahman of Bretzlav, Lilute Moharau, :, oo, , o:
Limitiug !raoitioual Authority
:;. David Linhorn, Responsum on lree Inquiry and Rabbinic Oce
justijyiug Crthooox 8e.essiou
::. Samson Raphael Hirsch, Open Ietter to Rabbi S. B. Bamberger
Commentary. David Lllenson, Authority, Tradition,
and Community
Iutroou.tiou
Sectarianism is the mark of |evish life in the last centuries of the
Second Temple period. But ve knov very little about vhat it felt like to
be a Pharisee, Sadducee, Qumran sectary, or early |evish-Christian. Hov
did members of these partiesschoolssects understand themselves and one
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another Probably they each sav their ovn vay as the only right vay; they
are unlikely to have been tolerant in the modern liberal style. But the exis-
tence of the |udean commonvealth and the Temple (even for groups that
vithdrevfromits services) held these groups together more or less, vhatever
they said or thought about one another. No fully developed understanding
of heresy or apostasy is apparent at this stage of |evish history, although vhat
ve might think of as experimental accusations of one or the other probably
played a role in party and sectarian conict. The destruction of the Temple
brought about the rst eorts to dene some sort of theological and legal
orthodoxy. The Christians vere the rst |evish heretics. Iater on, the Kara-
ites achieved a similar status, though they are in some respects heirs to the
Sadducees, vho vere once part of mainstream Israel.
Lxile and dispersion pressed |evish vriters tovard denition
What vas it exactly that held these scattered men and vomen together
even as it deprived the |evs of the political pover to enforce any particular
denition. The sages of the talmudic period mostly left the enforcement of
theological orthodoxy to God (some of them seem to have favored self-help
or private zealotry; ve take this up in ;; and o), saying only that any-
one vho did not believe that, for example, the Torah vas revealed at Sinai
had no share in the vorld to come. The number of obligatory propositions
vas small, and Maimonides attempt to expand it met vith resistance. Moses
Mendelssohn vas probably vrong to argue that |udaism vas a religion vith-
out dogmas, but the idea of a creed played a far smaller role in |evish than in
Christian religious life. If groups like the Karaites vere excluded not only
from the vorld to come but also from the |evish community in this vorld,
it vas more likely because of their rejection of rabbinic halalhah than for any
heretical beliefs.
Theological pluralism probably existed in all the major exilic com-
munities, but since it only rarely posed political problems, ve do not deal
vith it here. What vas politically problematic vas disagreement about the
lav. lrom the time of the Talmud until the emancipation, |evish identity
vas dened most signicantly by halakhic commitment. But the halalhah
itself vas dened, as ve have seen, by rabbinic argument and majority vote
and across the diaspora, in dierent times and places, majorities decided dif-
ferently. Hov vere these dierences understood and accommodated What
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vere their limits Hov did legal authority vork in the absence of a central-
ized legal system These are the questions that ve mean to address in this
chapter.
lor ordinary |evs, the halalhah, hovever it vas decided, vas simply
the lav, enforced by the local |et oiu (court), vith vhatever coercive pover
it vas permitted to vield. The Karaites aside, no signicant religious move-
ment advocated a rejection of halakhic authority (until the nineteenth-
century Reform movement) or defended any sort of passive resistance or
conscientious objection. Dissent and disagreement vere common only in
the |evish elite; the rabbis argued mostly among themselves.
The range of permissible argument vas determined in part by the
looseness of exilic authority structures. It vas hard to repress disagreement
locally, and the autonomy of the lahal and the mobility of |evish scholars
made it impossible to achieve anything remotely resembling diaspora-vide
conformity. But there is another reason for the legal liberalism of the rab-
bis (relative at least to the Christian and Muslim societies in vhich they
lived), vhich has to do vith their understanding of textual and interpretive
authority.
The text vas divinely revealed and hence absolute. But interpre-
tation vas a human activity (It is not in heaven), fallible, inconclusive,
ongoing. Some of the sages looked back to an interpretive golden age, vhen
all the interpreters agreed vith one another; it vas sin or ignorance, they
said, that brought disagreement (see BT Sanhedrin ::b). But the relish vith
vhich disagreement vas pursued, and the honor accorded the pursuit, sug-
gests that another viev vas dominant to engage in these inconclusive dis-
cussions vas a very good thing to do. It vas necessary in any case, because
no ecclesiastical oce or social institution provided a platform for divinely
sanctioned and hence conclusive interpretations or decrees; no human being
(prophecy having ceased) could speak in Gods name. When a conclusion
vas required, the rabbis voted. But the majorities thus formed vere shaped
by the previous argument; they vere the products of vhat must have been
regarded as legitimate disagreement.
Was disagreement still legitimate after the majority had ruled What
vas the status of minority vievs Could the argument be resumed, the ma-
jority challenged, even overturned Though posed in a dierent idiom, these
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questions vere argued by the sages from very early onand ansvered in a
vay that kept all arguments, including these, alive and ongoing. Minority
vievs vere preserved (as they are today in the recorded decisions of Ameri-
can courts), and decisions could alvays be changed, so long as the nev ma-
jority, as ve sav in the last chapter, vas viser or larger than the old one (and
these criteria vere also subject to interpretation). What governs and con-
strains the ongoing arguments is the mutual respect of the sages. The much-
told stories of the rival schools of Hillel and Shammai serve to illustrate and
legitimate this mutualityand may vell have been fashioned for just these
purposes. If such great and learned men could disagree so sharply and yet
accommodate one another, then surely no later disagreement about points
of lav should be alloved to divide the Congregation of Israel.
But there did have to be some sort of obedience rule no legal or
political systemcan function if the lavis alvays in dispute among the judges.
In the |evish tradition, this rule is provided by the doctrine of the rebellious
elder. In its talmudic formulation, the rule is very rm, but its rmness de-
pends on a highly idealized version of the legal system; in practice, adapted
to the realities of the exile, the rule is very veak.
In tractate Sanhedrin, the sages imagine a fully articulated hierarchy
of courts and an improbably rigorous system of procedural justice. Disputed
rulings are appealed from one court to the next, until a decision is rendered
by the Sanhedrin itself, conceived as the supreme court of ancient Israel,
meeting in the sacred precincts of the Temple. A rebellious elder is one vho,
subsequent to this nal appeal, rules against the Sanhedrin in his local |et
oiu. His rebellion lies in his ruling; he is free to expound his dissenting viev,
even to teach it to his students, but not to make it the decree of his court.
He is intellectually independent but judicially subordinate.
The story in Mishnah Lduyot about Akaviah b. Mahallalel suggests
vhat is probably an alternative viev. (Many scholars believe that it reects
an earlier viev, vorked out before but not necessarily rescinded by the more
liberal doctrine of the rebellious elder, hence our placement of the text.)
Akaviah vas put under a banexcommunicated, not condemned to death
for failing to retract an opinion; judicial ruling is clearly not at issue here,
only legal interpretation and teaching. One of the Rabbis disputed the ban,
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suggesting that the disagreement of a truly good and learned man should
be respected, but according to our text, the ban vas in fact enforced. Note
that Akaviahs goodness vas not a matter of his private conscience, nor of
his kindness or humility, but only of his steadfast commitment to a tradi-
tion. Pluralism among the Rabbis vas focused less on individuals than on
schoolsand, later on, as ve vill see, on courts and districts. At the same
time, there vas a lot of disagreement about these matters, often among indi-
vidual scholars, as the Akaviah story makes clear. This is true even vith re-
gard to the doctrine of the rebellious elder, although the text in Sanhedrin
seems plain enough.
We dont knov vhether there really vere such rebels, but they
certainly inhabited the |evish imaginationtestimony to the liveliness of
rabbinic debates. It appears that some of the sages believed, against trac-
tate Sanhedrin (or, again, before it reached its nal form), that rebellion vas
sometimes morally or legally required. Imagine that the highest court made
a ruling on this or that topic and then, sometime later, recognized that this
ruling vas mistaken, and ruled again. Ordinary |evs vho had acted in ac-
cordance vith the rst ruling vould be exonerated by their obedience to the
court, but vhat about elders, sages, vho knev the rst ruling to be vrong
They are culpable for their o|eoieu.e. At least vith regard to their ovn actions,
they should have done vhat they believed to be right. Should they also have
ruled, according to their ovn convictions, for others |T Horayot might be
taken to demand such rebellious rulings, as if the elder says Surely I cannot
tell the people vho come to my |et oiu that right is left' But the argument in
the 8ijre and later in Nahmanides commentary on Deuteronomy ; is that
everyone must defer to the superior visdom of the higher courtor, more
pragmatically, that everyone must obey for the sake of social order.
Horayot provides a hint of justied disobedience (vhich doesnt
appear, hovever, in the fully developed doctrine of Sanhedrin), but there
is nothing in that text like the sixteenth- and seventeenth-century Protes-
tant argument that the lesser magistrates had a right, and perhaps even a
duty, to nullify the religiously incorrect decisions of their superiors. Nor does
the 8ijre or Nahmanides argue for anything that could be called a Catholic
alternative. The issue never arose in practice because there vere no estab-
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lished hierarchical superiors, no bishops or pope vhose authority had to be
accepted or subverted. Hence no full-scale theoretical resolution vas ever
reached.
The commitment of tractate Sanhedrin to hierarchy and discipline,
vhile it may have played a part in sustaining |evish unity, doesnt describe
the actual conditions of life in exile. We get a sense of the adjustments that
exile required in BT \evamot , vhere, all hierarchy gone, the sages ac-
knovledge rst that dierent courts in dierent cities might reach and en-
force dierent rulings and then that dierent courts in the same city might
also disagreevithout any of their elders being rebellious. Nov the elders
seem bound only by their ovn courts. What made this a viable system vas
the fact that all the courts vere disagreeing about the same texts, reading
and commenting on the same commentaries, vorking vithin a common
tradition that they vere able to describe, vhatever divergent customs and
practices it alloved, as singular in character.
The simultaneous reality of divergence and unity is something of a
mystery today. On the one hand, there existed among the sages an acceptance
of interpretive freedom and a recognition of its pluralizing eects. A bright
student, they say, could give forty-nine reasons for deciding a point of lav
one vay and forty-nine reasons for deciding it the opposite vayand this
sort of thing vas never seen vithin the |evish tradition as mere sophistry.
Gods vord really vas open-textured, available for study, discussion, dis-
agreement, even a kind of intellectual play. Talmudic arguments most often
end inconclusively, for vhen there vas no need to conclude, the sages pre-
ferred not to, so that the next generation could resume the argument vithout
prejudice. All this vould seem to require vhat tractate Sanhedrin provided
a tight and clear procedure for reaching conclusions vhen they vere needed.
But that system probably never existed in reality.
And yet the halalhah vas more or less the same across the diaspora,
disagreements vere successfully contained for many centuries, and the fear of
many Torahs vas never realizednot, at least, until modern times. (Lven
mysticism did not produce a halalhah of its ovn, for many of the mystics
vere also legal scholars of an entirely conventional sort another mystery.)
The sociological explanation for this remarkable achievement probably lies
in the nature of the rabbinic elite, its small size, common language, and
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Introduction
shared texts and references. But the intellectual explanation must lie in the
traditional understanding of the Torah itself, vhich vas regarded as absolute
and eternal and, at the same time, many-sided and adaptable.
This radical dualism vas resisted by the greatest of the medieval
rabbis, Maimonides, vhose Mishueh !orah vas aimed precisely at ending
all the arguments. Maimonides probably hoped that |evish scholars vould
study philosophy rather than halalhah. What sorts of debates he thought that
study vould involve is not clear; in any event, his ovn philosophical vork
provoked an extraordinarily intense controversy about vhether philosophy
should be studied at all. But controversy vas not Maimonides purpose, cer-
tainly not vith regard to the lav. His great legal code vas something nev
in |evish literature, for it presented the Oral Iav in vhat vas meant to
be denitive form, vithout the prooftexts, disagreements, and alternative
vievs that marked the Talmud itself and all the commentaries and compila-
tions that folloved upon it. Students of the lav, Maimonides boasted, vould
henceforth need no other book. But the tradition took its revenge not only
are there other books, but the Mishueh !orah is nov printed together vith its
ovn critical (and supportive) commentaries. Indeed, Maimonides shares the
page vith his severest critic, Rabad (vho vas also an important kabbalist); ve
reprint here a classic exchange betveen the tvo. It is Rabad vho represents
the common rabbinic viev that prooftexts, reasons, and alternative positions
must be included in all legal codes. This assertion is not defended at any
length, but the defense vould presumably go something like this Argument
about the lav is the essential activity of a learned |ev, so there vill never be
a denitive account or an end to the vriting of lavbooks. Lvery code, then,
must contain the materials necessary to its ovn supersession.
This acceptance of argument and disagreement, at least among the
rabbis, vas severely tested in the modern period, rst by the hasidic move-
ment and then by enlightenment (haslalah) and Reform. In the erce con-
troversy betveen the Hasidim and their opponents (mituagoim, those vho
are against), both groups referred themselves to the texts ve have reprinted
here. It vas the Hasidim vho defended the old pluralismsee Llimelekhs
invocation of the maxim These and those are the vords of the living God
(BT Lruvin b)vhile the mituagoim defended an equally old authoritari-
anism, invoking the maximabout right and left. Hasidismvas a movement
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o Controversy and Dissent
vith strong and enduring centrifugal tendencies, producing numerous dy-
nasties and sects. It has to be said, hovever, that pluralism found no place
in any of these; hasidic doctrine encouraged a radical dependence on the
ruling t:aooil. The opponents of Hasidism vere anti-pluralists from the be-
ginning. Hostile to popular mysticism, they vorried about multiplying sects
and spreading superstition. Their ovn mysticism vas esoteric and elitist; for
ordinary |evs, they urged only piety and halakhic observance, and in their
communities they tolerated no deviation at all.
In the later controversies betveen Orthodoxy and Reform, it
vas the reformers vho rst argued for pluralism andbecause they vere
strongly inuenced by Mendelssohn and other German maslilimtoleration.
David Linhorns use of the rebellious elder texts nicely represents their
position. By the late nineteenth century, the orthodox vere a minority in
most German communities, so they also vere forced to defend a kind of
pluralism, though not the traditional kind. Their intellectual leaders, Samson
Raphael Hirsch the most important among them, could not repeat maxims
like These and those . . . or talk about rebellious elders, because they denied
the very permissibility of a reformed |udaism (as in the case of the Karaites,
the denial focused on halakhic, not theological, issues). They argued vith the
reformers on various public occasions, but they vere not prepared to legit-
imize the argument. Instead, they claimed the right of voluntary association,
hence also the right of separation from the community, vhich liberal society
guarantees but vhich has no clear place in the |evish tradition (although
there vere separate Sephardi and Ashkenazi congregations in many |evish
communities after the Spanish expulsion of ,:). They separated, as Hirsch
insists, for the sake of their ovn emphatically singular viev of |udaism; they
sacriced unity to live in accordance vith religious truth. Of course, they
then had to recognize the right of the reformers to associate in the same vay
for the sake of their understanding of the truth. But, so Hirsch says, theirs
is no longer a |evish association. They are like the Karaites; they exist out-
side the bounds of |evish life, and presumably can exist freely only in the
conditions of exile, protected by gentile rulers.
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Majority and Minority ;
Majority auo Miuority
Iuterpreti:e Iluralism
. Miorash Isalms :
Iu this miorash, the psalmists praise jor the purity oj Coos uoros is taleu to rejer
to the multija.eteo .hara.ter oj !orah. !his appre.iatiou oj hermeueuti. .omplexity re
e.ts the positi:e re.oguitiou gi:eu to .outro:ersy iu Ra||iui. traoitious. Iu 8ele.tiou
:o, Ra||i Yose maiutaius au alteruati:e :ieu. that .outro:ersy is .auseo |y a oe.liue
oj !orah.
The vords of the Iord are pure vords, silver purged in an earthen crucible,
rened sevenfold (Ps. :;). Rabbi \annai said The clauses of the Torah
vere not given as clear-cut |edicts|. Rather, concerning each clause that the
Holy One imparted to Moses, He vould impart forty-nine
1
reasons to |rule|
pure and forty-nine reasons to |rule| impure.
|Moses| said before Him Master of the Universe, hov long Iet us
clarify the matter'
He ansvered lollov the majority' (Lxod. ::; cf. ;o, o
above). If the majority rule impure, it is impure; if the majority rule pure,
it is pure.
Ajter the oestru.tiou oj jerusalem iu the Creat Re|elliou (o ..), s.holars re.ou:eueo
iu Ya:ueh uuoer the leaoership oj Yohauau |eu 2allai. Cue oj the rst steps they
tool uas to assem|le the existiug oral traoitious |y a..eptiug testimouies (eduyot) jrom
the s.holars preseut. !hese traoitious later jormeo the jouuoatiou jor juoah the Iriu.es
.ompilatiou oj the Mishuah, the .ore oo.umeut oj Ra||iui. juoaism. !he Mishuah
ooes uot oo.umeut a mouolithi. traoitiou, |ut is primarily a re.oro oj .outro:ersies, iu
.luoiug mauy opiuious that .learly oio uot pre:ail. !he jollouiug sele.tious shoulo |e
reao as the Ra||is ouu ree.tious upou the multi:o.al .hara.ter oj their proje.t. !he
. The midrashic interpretation of sevenfold is seven times seven.
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: Controversy and Dissent
rst text, Louyot :.,, rejers to the preser:atiou oj the :ieus oj 8hammai auo Hillel iu
a .ase iu uhi.h a thiro :ieu pre:aileo.
Ireser:iug Miuority Cpiuious to Rely Cu
z. Mishnah Lduyot
|| And vhy are the opinions of |both| Shammai and Hillel re-
corded in vain So as to teach generations to come that a person should not
hold fast to his opinion, for the fathers of the vorld did not hold fast to their
opinions.
|| And, since the halalhah follovs the majority, vhy are the opin-
ions of the individual recorded along vith the majoritys So that if a |future|
court leans to the opinion of the individual, it can rely upon him, for a court
cannot annul the ruling of a fellov court unless it excels it in visdom and
in number. If it excels in visdom but not in number, in number but not in
visdom, it cannot annul the |earlier courts| opinion. . . .
Ireser:iug Miuority Cpiuious to Rejute
. Tosefta Lduyot
The halalhah forever follovs the opinions of the majority. The opin-
ions of the individual vere recorded along vith those of the majority |so as|
to be annulled.
Rabbi \ehudah says The opinions of the individual vere recorded
among those of the majority because an hour |may come vhen| they are
needed and they vill be relied upon.
And the sages say The opinions of the individual vere recorded
among those of the majority so that, in a discussion of purity and impurity,
a disputant vho maintains |that something is| impure according to the
opinion of Rabbi Lliezer may be told \our tradition is according to |the
minority opinion of | Rabbi Lliezer (;o, o).
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Majority and Minority ,
A Re.al.itraut 8.holar
. Mishnah Lduyot o;
1heu assem|liug the :arious traoitious at Ya:ueh, uumerous oisagreemeuts emergeo.
!he Mishuah .iteo a|o:e assumes that the majority pre:ails, |ut this sele.tiou tells oj
au early s.holar uho rejuseo to reuouu.e his opiuious. Iuterestiugly, he too is reporteo
as euoorsiug his ouu :ersiou oj the maxim. Iollou the majority.
|o| Akaviah ben Mahallalel testied to four opinions.
They said to him Retract the four opinions you held and ve vill
appoint you Head of the Court in Israel.
He said to them I prefer being called a fool all my life and not being
considered a vicked man before God for a moment. So it should not be
said, He retracted |his opinion| for the sake of oce. . . . He maintained
A voman convert or a freed bondsvoman is not made to drink |the vater
of bitterness given to the adulteress vife (Num. :,)|.
The sages say They are made to drink.
They said to him There vas a case in |erusalem of a freed bonds-
voman named Karkamit, vho vas made to drink by Shemaiah and Av-
talyon.
He said to them It vas for shov |ougma| that they made her drink.
2
Whereupon they put himunder the ban, and he died banished, and the court
stoned his con.
3
Rabbi \ehudah said God forbid that Akaviah vas banned' lor the
gates of the Temple vere never closed to a man of Israel vith Akaviahs stat-
ure in visdom and piety. And vho vas it |then| that vas banned Lleazar
ben Hanokh, vho questioned |the sages teachings on| the purity of hands.
And vhen he died the court sent a stone to be placed on his con. . . .
|;| At the time of |Akaviahs| death he said to his son My son,
retract those four opinions I maintained.
:. I.e., they merely pretended to give her the real bitter vaters; another opinion they per-
formed the act on one vho vas, like themselves |Shemaiah and Avtalyon, vho vere con-
verts|, a descendent of gentiles. Marcus |astrov, A Di.tiouary oj the !argumim, the !almuo Ba|li
auo Yerushalmi, auo the Miorashi. Literature, (Nev \ork Pardes, ,o), s.v. ougma.
. A token of excommunication.
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:o Controversy and Dissent
He said to him And vhy didnt you retract them
He ansvered I received my tradition from a majority and they re-
ceived their tradition from a majority; I held fast to my tradition and they
held fast to their tradition. But you have received |both| from an individual
and from a majority; it is better to relinquish the opinion of the individual
and adopt the majority opinion.
He said to him lather, commend me to your colleagues.
He ansvered I vill not commend you.
He said Have you found unrighteousness in me
He ansvered No, but it is your deeds that vill join you to them
and your deeds that vill alienate you from them.
!he Iuoi:ioual. Kuouleoge auo Respousi|ility
Lrroueous Ruliug
. Mishnah Horayot
A..oroiug to s.riptural lau (Le:. ,), au iuao:erteut trausgressor must |riug a sa.ri.ial
siu oeriug, the Ra||is emphasi:e that this ooes uot apply to iuteutioual traus
gressious, uhi.h eutail puuishmeut iusteao. 8.ripture oroaius a spe.i. oeriug jor a
.olle.ti:e siu, uhere a matter es.apes the uoti.e oj the .ougregatiou (,.:,). A..oroiug
to the Ra||is, this rejers to a .ase iu uhi.h the .ommuuity jolloueo au erroueous ruliug
oj the high .ourt. !he .ourt theu |riugs a .olle.ti:e siu oeriug, auo iuoi:iouals uho
a.teo iu o|eoieu.e to the .ourt (uho are oepeuoeut upou it) are exempt. But uhat
a|out iuoi:iouals uho luou the lau auo uho oout (ueeo to) rely ou the .ourt. are they
also exempt`
If the court ruled to transgress any one of the mit::ot mentioned in the Torah,
and an individual proceeded to act in error accordingly, vhether they acted
and he acted along vith them, or they acted and he folloved them, or they
did not act and only he acted, he is exempt |froman individuals sin oering|,
because he vas dependent upon the court.
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The Individual :
If the court ruled and one of its members, or a student vorthy of
ruling, knev they had erred but proceeded to act accordingly, vhether they
acted and he acted along vith them, or they acted and he folloved them,
or they did not act and only he acted, he is liable |for an individuals sin
oering|, because he vas not dependent upon the court.
4
This is the rule Whoever is self-dependent |in his decisions| is
liable, and vhoever is dependent upon the court is exempt.
A Dis.eruiug 8tuoeut
. BT Horayot :b
The text has been amended according to the Munich MS.
Or a student vorthy of ruling. Iike vhom
Rava said Iike Shimon ben Azzai and Shimon ben Zoma.
5
Said Abaye to him Is this a case of inadvertent transgression
|Rava retorted| According to your argument, |hov can you ex-
plain| the folloving |araita.
|And if an individual from among the populace unvittingly incurs
guilt by doing any of the things vhich by the Iords command-
ments ought not to be done . . . (Iev. :;)|
6
An individual acting
on his ovn is liable; |acting| according to the courts ruling, he is
exempt. Hov so If the court ruled that |forbidden| suet vas per-
mitted and one of its members, or a student sitting before them
vorthy of ruling, like Shimon ben Azzai, knev they had erredis
it possible that such a one should be exempt Thus Scripture teaches
us an individual acting on his ovn is liable; |acting| according
to the courts ruling, he is exempt.
. I.e., he must atone for doing that vhich he knev vas vrong.
. Both are scholars vho are not referred to by the title Rabbi they are described elsevhere as
discussants before the sages (BT Sanhedrin ;b).
o. This is the opening verse of the portion dealing vith individual sin-oerings.
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:: Controversy and Dissent
Is this a case of inadvertent transgression Rather, you must say that
he knev it vas forbidden, but he erred in |assuming| it a mit::ah to adhere
to the vords of the sages |halhamim|. I too can say that he knev it vas for-
bidden, but he erred in |assuming| it a mit::ah to adhere to the vords of the
sages.
Culy Ij !hey 8ay Right Is Right
). |T Horayot d
Rabbi Imi said in the name of Rabbi Shimon b. Iakish The mish-
nah refers to a case like |one in vhich| Shimon ben Azzai sits before them.
What is the case If he is knovledgeable about the vhole Torah and
ignorant of that particular matter, he is not a Shimon ben Azzai, and if
he knovs that particular matter but is ignorant of the vhole Torah, he is a
Shimon ben Azzai for that particular matter'
Rather, the case is of one vho is knovledgeable about the vhole
Torah and that particular matter but vho errs in thinking that the Torah said
lollov them, follov them.
But if he errs in thinking that the Torah said, lollov them, follov
them, he is not a Shimon ben Azzai'
This is addressed by the |araita. Can it be the case that if they |the
court| say to you that right is left and left is right, you should obey them
Scripture therefore teaches us to the right or to the left (Deut. ;)
that they say to you, right is right and left is left.
7
;. Apparently, the advanced students error is deemed plausible since it is along the lines of the
|araitas initial suggestion (indeed, the same suggestion is endorsed in :). Therefore, he is
not considered an intentional transgressor and stands on roughly the same footing as a lay-
person vho errs through simple ignorance; they both are to bring the sin oering stipulated
for an inadvertent transgressor. (Alayperson vhose error stems fromdepending on the courts
vrongful ruling brings no oering at all.)
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The Rebellious Llder :
Agaiust Coujormity
8. Asher b. \ehiel (Rosh), Tosafot ha-Rosh, Horayot :a, s.v. horu
Rosh, the great jourteeuth.eutury .ooier, .arries the !almuos logi. to a raoi.al .ou
.lusiou. Iuoi:ioual opiuious iu geueral eutail persoual respousi|ility.
If the court ruled and one of its members, or a student vorthy of ruling,
knev they had erred . . . he is liable |for a sin oering|, because he vas not
dependent on the court.
The texts order here signies not only this, but even that Not
only if one of the members of the Sanhedrin itself knev they had erred
in vhich case the ruling vas not conferred unanimouslyis he liable, but
even one of the students sitting belov them as discussants and vorthy of
ruling is liable. |Indeed,| not only if he is vorthy of ruling, but even if he
is knovledgeable but not capable of analysis
8
and in light of his studies
perceives that the court has erred, is he liable. lor anyone vhose opinion
diers from that of the court is dependent upon his ovn mind |i.e., decides
for himself |.
!he Re|ellious Lloer. Iustitutioual Authority
!he Re|ellious Lloer auo the High Court
. Mishnah Sanhedrin :
!he jollouiug mishuah is part oj the Ra||iui. .rimiual .ooe, uhi.h ela|orates |i|li.al
stipulatious jor .apital puuishmeut. As uith mauy other items iu the .ooe, there is some
oou|t regaroiug the exteut to uhi.h its uorms auo pro.eoures e:er pre:aileo iu pra.ti.e.
8till, these jormulatious ser:e as a .lassi. statemeut a|out authority iu halakhah. !heir
|a.lgrouuo is the |i|li.al lau .ou.eruiug au iuoi:ioual uho oees the .eutral juoi.ial
:. Rosh derives this expanded denition from the Talmud (Horayot :b), vhere individual lia-
bility is extended both to a student vho is knovledgeable but not capable of analysis and
to one capable of analysis but not knovledgeable.
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: Controversy and Dissent
authority (Deut. :.::, ];, :). A..oroiug to the Ra||is, re|elliou agaiust the
high .ourt is uot a .apital oeuse jor just auyoue, ouly jor a qualieo eloer (ra||iui.
juoge). !his mishuah oes.ri|es the pro.eoure leaoiug up to the iuoi:iouals .ouoemua
tiou. Ij au eloer, iu oisagreemeut uith his lo.al peers, .outiuues to .outest their positiou,
they all go to jerusalem, auo the oispute theu uorls its uay through the hierar.hy oj
.eutral .ourts at the !emple.
An elder vho rebels against the court |is liable to death by strangulation|.
As vritten, If a case is too baing for you to decide, etc. (Deut. ;:).
There vere three courts |in |erusalem|. One sits
9
at the entrance to
the Temple Mount, one sits at the entrance to the Temple courtyard, and one
sits in the Hall of Hevn Stones. They |the elder and his peers| rst come to
the court at the entrance to the Temple Mount.
He says Thus have I expounded, and thus have my colleagues ex-
pounded; thus have I argued, and thus have my colleagues argued. If the
court has received a tradition |on the disputed matter|, they inform them. If
not, these and those come to the court at the entrance to the Temple court-
yard, and he says Thus have I expounded, and thus have my colleagues
expounded; thus have I argued, and thus have my colleagues argued. If the
court has received a tradition, they inform them. If not, these and those
come to the Great Court in the Hall of Hevn Stones, from vhich instruc-
tion |Torah| goes forth to Israel. As vritten, from that place vhich the Iord
chose (Deut. ;o).
When he returns to his tovn, if he teaches and argues as he had
been arguing, he is not liable. If he renders a ruling for action, he is liable, as
vritten, Should a man act presumptuously (Deut. ;:) he is not liable
unless he renders a ruling for action.
10
A student vho renders a ruling for action is not liable; thus the
,. The shift to the present tense is typical of Rabbinic discourses of this sort, vividly transporting
readers to a past reality.
o. And vhat if, in addition to teaching his vievs, he also acts on them, vithout issuing rulings
for others The mishnah seems (almost intentionally) to leave this issue open; it is touched
upon in the last lines of o.
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The Rebellious Llder :
severity of his |deed| vorks in his favor |i.e., he rules vithout authority auo
vrongly, yet is not punished because his ruling carries no veight|.
Deuiug the Lloers Re|elliou
o. BT Sanhedrin :;a::b
!he rst se.tiou oj the talmuoi. ois.ussiou |elou re.oros juuoameutal oiereu.es amoug
the tannaim regaroiug the type oj legal oispute to uhi.h the re|ellious eloer puu
ishmeut applies. At stale is the uature oj the .ulpa|le re|elliou. Is it agaiust the .ore
laus oj the !orah itselj, agaiust the authority oj the ra||is (here .alleo s.ri|es) as the
!orahs iuterpreters, or agaiust the ra||is ouu authority as legislators`
Our rabbis taught A rebellious elder is liable only if |his ruling concerns| a
matter for vhich an intentional transgression entails laret, and an inadver-
tent transgression entails a sin oering; this is the viev of Rabbi Meir. Rabbi
\ehudah says A matter founded in the vords of Scripture and interpreted
in the vords of the scribes. Rabbi Shimon says Lven a subtle detail specied
by the scribes. . . .
Rav Kahana said If he argues from tradition and they argue from
tradition, he is not put to death. If he argues This is my viev and they ar-
gue This is our viev, he is not put to death. And certainly if he argues from
tradition and they argue This is our viev, he is not put to death. He is only
put to death vhen he argues This is my viev and they argue from tradi-
tion. This is proven by the fact that they did not put Akaviah ben Mahallalel
to death ( ).
Rabbi Lleazar, hovever, said Lven if he argues from tradition and
they argue This is our viev, he is put to deathso that controversies do not
abound in Israel. Nov should you vonder, Why did they not put Akaviah
ben Mahallalel to death it vas because he did not render a ruling for action.
The Mishnah reads Thus have I expounded, and thus have my col-
leagues expounded; thus have I argued, and thus have my colleagues argued.
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Does this not |include| the case vhere he argues from tradition and
they argue This is our viev
No, it |may refer to a case vhere| he argues This is my viev and
they argue from tradition.
Come and hear that vhich Rabbi \oshiyah said Three things vere
told to me by Zeira the |erusalemite
11
A husband vho forgives vith regard to his varning
he can forgive.
A rebellious son vhose parents vish to forgive him
they can forgive.
A rebellious elder vhom the court vish to forgive
they can forgive.
When I came to my colleagues in the South, they concurred vith the |rst|
tvobut not regarding a rebellious elder, so that controversies do not
abound in Israel.
Indeed, this retort is irrefutable.
It vas taught Said Rabbi \ose, At rst, controversies did not abound
in Israel. Instead, the court of seventy-one sits in the Hall of Hevn Stones;
and tvo |other| courts, of tventy-three each, sitone at the entrance to
the Temple Mount, and one at the entrance to the Temple courtyard. Other
courts of tventy-three sit in every tovn of Israel. If a question arises, |the
disputants| inquire of the court in their tovn. If the court received a tradi-
tion, they inform them. If not, they go to a neighboring court. If the court
received a tradition, they inform them. If not, they go to the court at the
entrance to the Temple Mount, and he |the elder contesting the majority
viev in his local court| says Thus have I expounded, and thus have my
colleagues expounded; thus have I argued, and thus have my colleagues ar-
gued. If the court has received a tradition, they inform them. If not, these
and those come to the court at the entrance to the Temple courtyard, and
he says Thus have I expounded, and thus have my colleagues expounded;
. The oenses enumerated are against honor, and forgiving entails the vaiving of claims of
authority by the oended party. lor the husbands varning and its consequences, see MT
Iavs of Wayvard Woman, chap. ; for the rebellious son, see Deut. :::: and our ;:.
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The Rebellious Llder :;
thus have I argued, and thus have my colleagues argued. If the court has
received a tradition, they inform them. If not, these and those come to the
Hall of Hevn Stones, vhere |the court| sits from the morning sacrice until
the afternoon sacrice. . . . The question is presented before them. If the
court has received a tradition, they inform them. If not, they take a vote.
If the majority votes impure, they declare it impure; if the majority votes
pure, they declare it pure. When students of Shammai and Hillel, insu-
ciently schooled, abounded, controversies abounded in Israel, and the Torah
became like tvo Torahs.
Our rabbis taught He is not liable unless he acts on his ruling, or
else renders a ruling to others and they act on his ruling.
Distiu.tiou Betueeu Heresy auo Re|elliou
. Maimonides, MT Iavs of Rebels
!he Cooe oj Maimouioes, Bool Iourteeu. !he Bool oj juoges, translated by AbrahamM. Hersh-
man, \ale |udaica Series (Nev Haven \ale University Press, ,,), pp. .
Maimouioes here oistiuguishes |etueeu re|elliou agaiust the ruliugs oj a parti.ular au
thority auo a hereti.al oeuial oj the authority oj the Cral Lau itselj. He goes ou to
oistiuguish |etueeu the iuitial iustigators oj the heresy, ou the oue hauo, auo oes.eu
oauts raiseo iu their :ieus, ou the other.
. He vho repudiates the oral lav is not to be identied vith the rebellious
elder spoken of in Scripture but is classed vith the epicureans |vhom any
person has a right to put to death|.
12
:. As soon as it is made public that he has repudiated the oral lav, he
is cast into the pit and is not rescued from it. He is placed on a par vith here-
tics, epicureans, those vho deny the divine origin of Scripture, informers,
and apostatesall of vhom are ruled out of the community of Israel. No
vitnesses or previous varnings or judges are required. Whoever puts any of
them to death fullls a great precept, for he removes a stumbling block.
:. These issues are discussed in the context of apostasy in ;.
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. This applies only to one vho repudiates the oral lav as a result of
his reasoned opinion and conclusion, vho valks light-mindedly in the stub-
bornness of his heart, denying rst the oral lav, as did Zadok and Boethus
13
and all vho vent astray. But their children and grandchildren, vho, mis-
guided by their parents, vere raised among the Karaites and trained in their
vievs, are like a child taken captive by gentiles
14
and raised in their religion,
vhose status is that of an auoos |one vho abjures the |evish religion under
duress|, vho, although he later learns that he is a |ev, meets |evs, observes
them practice their religion, is nevertheless to be regarded as an auoos, since
he vas reared in the erroneous vays of his fathers. Thus it is vith those vho
adhere to the practices of their Karaite parents. Therefore eorts should be
made to bring them back in repentance, to drav them near by friendly rela-
tions, so that they may return to the strength-giving source, i.e., the Torah.
. The rebellious elder of vhom the Bible speaks is one of the vise
men of Israel vho is at home in traditional lore, functions as judge, im-
parts instruction in the Torah, as do all the vise men of Israel, but is in
disagreement vith the |High| Court vith regard to a question of lav, re-
fuses to change his viev, persists in diering vith them, gives a practical
ruling vhich runs counter to that given by them. The Torah condemns him
to death, and if he confesses before his execution, he has a portion in the
vorld to come. Though both he and the members of the |High Court| base
their respective decisions either on reason or on tradition, the Torah pays re-
gard to their viev. Lven if they are villing to forgo the honor due to them
and let him go unpunished, it is not vithin their competence to do so, in
order that controversies do not abound in Israel.
15
Connentary. Iiving Dangerously
According to the sources before us, as codied by Maimonides,
once the guilt of a rebellious elder is established, the only question left for
. Traditionally portrayed as the founders of the Sadducee sect.
. \|S them; amended according to the Mishueh !orah, Rome :o.
. Paraphrasing BT Sanhedrin ::b, the previous selection. \|S strife may not increase in
Israel.
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The Rebellious Llder :,
the high court is that of pardon. lavoring the approach of Rabbi \oshiyah
over that of Zeira (see o), Maimonides rules that the deant elders high
court colleagues are poverless to forgive him even if they feel that he no
longer poses a threat. If the appropriate conditions of rebellion are met, the
death penalty is compulsory.
But in the vake of such a trial, the court might vish to exer-
cise its discretion in quite a dierent vay, of vhich Maimonides makes no
mentionand, seemingly, neither do the tannaitic and amoraic texts he vas
vorking from. After nding an elder guilty of knovingly issuing an inde-
pendent and deant ruling, the court, suciently perplexed by the elders
arguments, might see t to rethink its ovn position. And as a result, the court
might decide not merely to forgive their rebellious colleague, but actually to
endorse his viev. This possibility is not to be confused vith cases in vhich
a suspect rebel succeeds in proving that the case brought against him vas
misconstrued and that he had ruled on a matter to vhich no former ruling
or tradition in fact applied. In the hypothetical case I vant to consider, all
agree that the rebels ruling had been issued in deance of a knovn high
court opinion. What happened vas that in the course of his trial he managed
to convince the court that the ruling in question should be reconsidered.
This possibility is not discussed in the texts before us, and to the
best of my knovledge it is novhere raised in connection vith the rebellious
elder. Had it been raised, the argument could, in principle, have gone either
vay. The fact that the high court ended up endorsing the learned rebels
opinion and revising the lav, some might say, does not change the fact that
he knovingly deed the court in the rst place. Therefore, regardless of the
courts praise for the quality of his reasoning and its subsequent ruling in his
favor, the elder should have been executed for urging others to break vhat
even he admits vas the lav at the time. Mutiny is mutiny.
Llsevhere in talmudic literature, hovever, one can detect other
voices. The rst mishnah of Horayot ( ) clearly urges people vell versed
in the lav not to follov the courts blindly. Students vorthy of ruling are
held personally responsible for their actions regardless of the courts rulings.
If they believe a particular ruling to be mistaken, they are obliged to defy
it and act as they see t. On such a viev, court rulings play an importantly
dierent role for these students than they do for laity. Unlike the latter, the
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former are encouraged not to rely automatically on the courts but to follov
their ovn conscience. And if students are expected to behave in this manner,
the argument might go, all the more so elders of standing.
The line betveen defying the courts in the manner valorized in
Horayot and doing so in the manner deemed high treason in Sanhedrin is
customarily dravn betveen acting for oneself and ruling for others. lor the
learned, ruling is considered mutiny; acting for oneself is bravely doing the
right thing. But this distinction is at best a formality. As far as mutiny is con-
cerned, it makes little sense to distinguish betveen a sage of standing issuing
a deant halakhic verdict by announcing it verbally and his laying dovn the
lav in similar deance by setting a personal example. In religious societies,
follov the leader is more than a childrens game. The dierence betveen
the attitudes of Horayot and Sanhedrin, it seems to me, has to do less vith
the formal aspects of dissent and more vith vho is eventually found to have
been right. Horayot, I suggest, is about cases in vhich the learned dissenters
criticism of the courts ruling is deemed valid, vhereas Sanhedrin is about
cases in vhich the criticism is considered groundless.
Read together, might not these tvo texts allov the court to recon-
sider its ovn ruling and exonerate a rebellious elder on the grounds that
he vas right But I am moving a little too quickly. Deliberating the fate
of a rebel vho convinces the high court to rethink the halakhic issue he
contested presupposes the liberty of the court to overturn rulings associated
vith such levels of deance. Again, I am not speaking of cases in vhich the
courts understanding of the lav in question vas proven mistaken, but of
cases in vhich the elder convinces the court that the lav itself is contestable.
On this, more basic question, I believe, the texts before us remain divided.
The extreme vievaccording to vhich the court is granted the authority
only to supplement, but never to amend, the halalhahis voiced clearly in
texts originating from the Tosefta. In the |araita cited in BT Sanhedrin (To-
sefta Sanhedrin ;) before us, Rabbi \ose argues that the court system is
vholly bound by received tradition. At every levelincluding that of the
high court in session in the Hall of Hevn Stonesthe same formula is re-
peated If the court has received a tradition |on the matter in hand|, they
inform |the parties|. Only in the absence of authentic precedents does the
high court have the authority to issue a ruling of its ovn. laced vith an
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existing tradition, asserts the |araita, the court is poverless to rule dierently
and, consequently, is poverless ever to grant a rebellious elder his point.
What is to count as received tradition Tosefta Lduyot ( )
implies that the body of lav to vhich all courts are committed consists not
only of the established traditions but also of all former high court decisions.
Ruling against Rabbi \ehudahs minority opinion, the redactor of the Tosefta
has the sages claiming that rejected minority opinions remain on record
in order to ensure that they remain rejectedthat the rulings issued by the
high court are never reversed' The tradition, the body of lav that the court
system is poverless to change, comprises the entire body of existing hala
lhah. The Tosefta thus espouses vhat ve might term a traditionalist posi-
tion, holding that it is legally impossible for anyone to talk a high court into
reconsidering an existing ruling.
The mishnaic parallels to these tvo texts tell a very dierent story,
hovever. In Mishnah Lduyot the minority and majority opinions regard-
ing the future role of minority opinions are dramatically reversed. Nov the
sages rule that minority opinions, contrary to Rabbi \ehudahs minority
viev, remain on record in case a future court vishes to use them to overturn
a former decision. Unlike the Tosefta, the Mishnah speaks explicitly of halak-
hic change and of the possibility of a later high court annulling the rulings of
a former one. Bearing this in mind, ve can see that the slight dierence be-
tveen the Mishnahs and Toseftas descriptions of the court system becomes
highly signicant. According to the Tosefta, the entire court system remains
at all times bound by received tradition, vhereas the Mishnahs vording sug-
gests that the high court is not bound. At every other level, license to rule
is granted by the Mishnah only if the court has received a tradition |on
the disputed matter|. But vhen talking of the Great Court in the Hall of
the Hevn Stones, this formula is conspicuously dropped, strongly implying,
contrary to the Tosefta, that this court is alloved not merely to supplement
but actually to amend the existing lav.
Read together, Mishnah Lduyot, Horayot, and Sanhedrin paint an
interesting picture of a society run by a judicial system headed by a high
court that has the pover to reconsider and revise the lav as it sees t, but
vhich is kept in check by a learned elite charged to defy the courts vhenever
they feel them to be in error. There is no absolute authority the halalhah,
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granted permanence by traditionalists, is considered revisable; the court sys-
tem, vhose rulings, according to traditionalists, are immune to future re-
vision, is perpetually open to objection by critics; and the critics, in turn,
are in constant danger of being declared rebellious. All involved are obliged
to live dangerously. On such a reading, the high court is perhaps poverless
to forgive a rebellious elder, but it vould have the right to grant him his
freedom by granting him his point.
linally, according to the traditionalist vievpoint of the Tosefta,
rebellion means to rebel against a halalhah to vhich all involved are vholly
bound. It follovs that, in principle, an entire Sanhedrin could be deemed
a rebellious elder if it knovingly voted against an appropriately veighty
halakhic ruling. According to the antitraditionalist approach of the Mish-
nah, the high courts discretion is not limited to legal lacunae, and it can,
therefore, never be accused of rebelling against vhat it is at liberty to change
anyvay'
This meta-halakhic disagreement is fundamental. It is novhere de-
cided ocially, and vhen acknovledged, it is treatedas the introduc-
tion to this chapter impliesas yet another example of talmudic polyphony.
But vhether or not the halakhic system is in principle revisable is a ques-
tion that communities governed by such a system cannot aord to avoid.
Unfortunately, the traditionalist approach is endorsed by virtually all ortho-
dox communities today. To bring about halakhic change, halakhists have for
generations been required to shov that their nev position ts more exactly
vith the tradition. Change is resisted altogether or, at best, achieved surrep-
titiously. Since traditionalism deems the very notion of a faulty or morally
inappropriate halalhah incoherent, it renders the systemimpossibly inexible
in times of signicant cultural, social, and political change. The most pro-
found change of this kind undergone by |evs since the composition of the
Mishnah and Tosefta has been the establishment of the state of Israel, vhere
halakhic traditionalism is proving to be an enormous liability. There is no
vay in vhich even the most basic civil liberties can be accommodated vithin
the traditionalist system adhered to by all Israeli orthodoxy, vhich there-
fore nds itself on a collision course vith the state envisioned by political
Zionism. The Mishnahs antitraditionalism is an authentic alternative meta-
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halakhic position. Its revival, I believe, is essential for all those vho are com-
mitted to the texts discussed in this book and vho vish to partake in the
great political opportunity oered by modern Zionism.
Meua.hem Iis.h
!his miorash, reproou.eo iu Rashis .ommeutary ou the !orah, is ojteu .iteo iu support
oj uuquestiouiug o|eoieu.e to ra||iui. authority. A theoreti.al oejeuse oj su.h o|eoieu.e,
auo therejore au argumeut agaiust the import oj the Horayot texts a|o:e (espe.ially the
liue oj iuterpretatiou oe:elopeo raoi.ally |y Rosh), is pro:ioeo |y ^ahmauioes iu the
uext sele.tiou.
L:eu Ij !hey 8ay Right Is Lejt
z. 8ijre Deuterouomy
To the right or to the left (Deut. ;). Lven if they tell you that
right is left and left right, obey them.
justijyiug Coujormity
. Nahmanides, Commeutary ou the !orah, Deuteronomy ;
To the right or to the left. Lven if he says to you that right is
left and left is rightthese are Rashis vords. The meaning of the matter is
that even if you think in your heart that they are mistaken, and even if the
matter is as obvious to you as the dierence you discern betveen your right
and left, you are to follov their command. And do not say Hov can I eat
this real suet or Hov can I kill this innocent man Rather you should say I
have thus been commanded by the Master vho issued the commandments
that I should act in all His commandments in accordance vith vhatever I
am instructed by those stationed before Him in the place He has chosen. It
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is on the basis of their understanding of its meaning that He has given me
the Toraheven if they err. . . .
This mit::ah relates to a very great need. lor the Torah vas given
to us in vriting, and it is knovn that opinions vill not concur regarding
nevly arisen matters. As a result, controversies vill abound, and the Torah
vill become several Torahs.
16
Scripture has thus determined the lav that ve
listen to vhatever the high court stationed before God in the place He has
chosen says concerning the exposition of the Torah, regardless of vhether
they have a tradition of exposition leading backvitness by vitnessto
Moses from God, or vhether they decree the matter by deriving it from the
meaning of the Torah or its intention. lor it is on the basis of their under-
standing that He has given them the Torah, even if in your eyes it seems that
they are confounding right and left. And hov much more so is it incumbent
upon you to think that they are expositing the right as right, for the spirit of
the Name is upon the servants of His sanctuary He does not abandon His
faithful ones, they are preserved forever (Ps. ;::) from error and pitfall.
The 8ijres vords Lven if they tell you that right is left and left right, obey
them.
Li:iug uith Disagreemeut
!he jollouiug texts jo.us ou a spe.ial su|set oj the mauy oisputes |etueeu the s.hools oj
8hammai auo Hillel. La.h s.hools positious here eutail the euoorsemeut oj marriages
that are, a..oroiug to the other s.hool, stri.tly jor|iooeu, the ospriug |eiug :ieueo
as mamzerim. !he oi:ergeut tea.hiugs, ij ree.teo iu pra.ti.e, uoulo seem to require
the aohereuts oj ea.h s.hool to a:oio marryiug those oj the other, proou.iug au irre:o
.a|le split. !he legal |a.lgrouuo jor the rst .ase is le:irate marriage. ij a mau oies
.hiloless, his |rother (the le:ir) is o|ligateo to marry the uioou (Deut. .,.,:o). !he
parti.ular matter at hauo iu:ol:es .ases uhere the le:irate o|ligatiou is oissol:eo |e.ause
o. Paraphrasing BT Sanhedrin ::b ( o).
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the marriage is |arreo (e.g., the sur:i:iug |rother is alreaoy marrieo to the uioous sis
ter). But uhat ij the oe.easeo has auother uije as uell` A..oroiug to Bet 8hammai, the
le:irate o|ligatiou holos jor the other uioou (the .ouije), a..oroiug to Bet Hillel,
the le:irate liul is .ompletely oissol:eo, lea:iug iu pla.e the geueral prohi|itiou ou a
uomau marryiug her hus|auos |rother.
A..ommooatiug DisagreemeutsI
. Mishnah \evamot
Bet Shammai permit co-vives to marry the brothers, vhile Bet
Hillel forbid them to. . . .
Lven though these forbid vhile those permit, . . . Bet Shammai did
not avoid taking vives from Bet Hillel, nor Bet Hillel from Bet Shammai.
|Despite| all the items of purity and impurity, vhich these declared
pure vhile those declared them impure, they did not avoid relying on each
other in producing pure foods.
17
Lo:e !ruth auo Iea.e
. Tosefta \evamot o
!he !osejta here aoos se:eral other oisputes iu marital lau, all shariug the .ru.ial auo
oistur|iug .hara.teristi. oj marriages euoorseo |y oue s.hool auo prohi|iteo |y the other.
It also juruishes a ri.her ois.ussiou oj the remarla|le !hey oio uot a:oio. . . .
Lven though Bet Shammai and Bet Hillel disagreed regarding co-vives and
sisters, an uncertain marriage, an old get (vrit of divorce), betrothal vith
a perutah, and the case of a man vho divorced his vife and then shared a
;. Iending each other, e.g., cooking utensils.
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room vith her at an innBet Shammai did not avoid taking vives from
Bet Hillel, nor Bet Hillel from Bet Shammai. Instead, they acted vith truth
and peace betveen them, as vritten, Iove truth and peace (Zech. :,).
18
Lven though these forbid vhile those permit, they did not avoid relying on
each other in producing pure foods. Thus they fullled that vhich is vrit-
ten, Lvery mans path is pure in his eyes, vhile the Iord appraises hearts
(Prov. ::).
Rabbi Shimon says They did not avoid the unknovn, but did avoid
knovn |cases|.
19
Halalhah Iollous Bet Hillel
. BT Lruvin b
Ajter the oestru.tiou oj the 8e.ouo !emple, the Ra||iui. .ommuuity geuerally aoopteo
the tea.hiugs oj the s.hool oj Hillel, still, the mauy oisputes |etueeu the tuo s.hools
uere jaithjully preser:eo iu the Mishuah. Here is the talmuoi. a..ouut oj hou the great
oispute .ame to |e resol:eo. Although the text speals oire.tly oj ouly three iuteuse
years, relatiug perhaps to a parti.ular argumeut, the resolutiou is uuoerstooo to apply
a.ross the |oaro. !hus the !almuo .ousisteutly holos that the uoros oj Bet 8hammai
ha:e uo jor.e iu the ja.e oj ].outrary positious ou the part oj Bet Hillel (e.g., B!
Ye:amot ,a).
Rabbi Aba, citing Shmuel, said lor three years, Bet Shammai and Bet Hillel
disagreed.
These said The lav should be according to us, vhile those said The
lav should be according to us.
:. Nev |PS love honesty and integrity.
,. Iiterally, They did not avoid the doubtful but did avoid the certain. The suggestion is that
they vould not avoid marrying adherents of the other school because of a general concern
over divergent practices; yet they did avoid individuals denitely knovn to have descended
from marriages alloved by the other school but unacceptable by their ovn rules.
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|Then| a |at lol vas pronounced These and those are the vords of
the living God;
20
and the lav is according to Bet Hillel.
But since these and those are the vords of the living God, vhy vas
it granted to Bet Hillel that the lav be established according to them Be-
cause they vere tolerant and meek, and related
21
both their ovn vords and
Bet Shammais vords. Moreover, they placed Bet Shammais vords before
their ovn. This teaches you that vhoever humbles himself is exalted by the
Holy One, vhile vhoever exalts himself is humbled by the Holy One.
Coutro:ersies !hat Luoure
). Mishnah Avot ;
!he parti.ular oisputes |etueeu the tuo s.hools, lile those |etueeu Hillel auo 8ham
mai themsel:es, uere e:eutually oe.ioeo. At the same time, these .outro:ersies |e.ame
a mooel jor oisagreemeut auo .oexisteu.e. !he Mishuah here, someuhat paraooxi.ally,
promises that the |est .outro:ersies are eterual.
Lvery controversy vhich is for the sake of heaven vill endure; but one vhich
is not for the sake of heaven vill not endure.
What is a controversy for the sake of heaven The controversy of
Hillel and Shammai. And one not for the sake of heaven The controversy
of Korah and his company (Num. o).
A..ommooatiug DisagreemeutsII
8. BT \evamot a
Ci:eu the .riti.al uature oj the .outro:ersies |etueeu the s.hools, the !almuo is leo to
explore hou iu ja.t they li:eo together uithout oi:ioiug iuto separate ja.tious. Cur text
:o. The Hebrev syntax allovs also for an alternative translation the living vords of God.
:. The Hebrevvord (shouim), fromthe same root as mishuah, denotes both studying and teach-
ing they made the vords of Bet Shammai part of their standard text.
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.outemplates the situatiou |oth |ejore auo ajter the prououu.emeut oj the bat kol iu
ja:or oj Bet Hillel ( :).
Rav says, Bet Shammai did not act on their opinions, vhereas Shmuel says,
They certainly did'
When vas this If it vas prior to the |at lol, then vhat is the reason
for holding that they did not If, hovever, it vas after the |at lol, vhat is
the reason for holding that they did
If you vish, I can say it vas prior to the |at lol, and if you vish, I
can say it vas after the |at lol.
If you vish, I can say it vas prior to the |at lol, assuming that Bet
Hillel constituted a majority. Those vho hold that they did notvell,
Bet Hillel vere a majority. Those vho hold that they did |can| explain
We follov the majority only vhen both sides are equal; here, hovever, Bet
Shammai vere more astute.
If you vish, I can say it vas after the |at lol. Those vho hold that
they did notvell, the |at lol had been pronounced' While those vho
hold that they did follov Rabbi \ehoshua, vho said, We take no heed of
a |at lol (BT Bava Metzia ,b |;o, o|).
Regarding those vho hold that they did, ve might cite the verse
\ou shall not cut yourself up (Deut ), |midrashically interpreted to
mean| \ou shall not become divided into factions.
Said Abaye \ou shall not become divided only applies to tvo
courts in the same tovn, one ruling according to Bet Shammai and the other
ruling according to Bet Hillel. With tvo courts in tvo |separate| tovns,
there is no problem.
Rava retorted But Bet Shammai and Bet Hillel are like tvo courts
in the same tovn'
Rava therefore said \ou shall not become divided only applies to
a |split| court in one tovn, vith one faction ruling according to Bet Sham-
mai and another faction ruling according to Bet Hillel. With tvo |separate|
courts in the same tovn, there is no problem. . . .
Come and hear Lven though these forbid vhile those permit, . . .
Bet Shammai did not avoid taking vives from Bet Hillel, nor Bet Hillel from
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Bet Shammai. If ve suppose they did not |act on their opinions|, it is clear
vhy they did not avoid |taking vives|. But if ve suppose they did |act on
their opinions|, vhy did they not avoid |taking vives| . . . |The ospring|
vould be mam:erim: . . . Does this not prove that they did not |act on their
opinions|
No, they informed |each other of mutually problematic cases| and
refrained from marriage.
Connentary. Interpretive Pluralism
The Western liberal tradition prizes debate and disagreement, and
the sages, for all their emphasis on authority and obedience, at points mani-
fest some of liberalisms spirit. It is true that, according to some sources, legal
controversies result from a sad historical circumstance, a calamitous break
in the chain of authoritative transmission caused by human failings (BT So-
tah ;b; Sanhedrin ::b; Tosefta Hagigah :,). But the texts nov before us
shov a more representative, positive viev of mahlolet (controversy, dispute,
disagreement). Midrash Psalms : suggests that disputes arose from design,
not misfortune God deliberately made the halalhah open to diering inter-
pretations and rulings, personally supplying Moses vith forty-nine possible
reasons on each side, so that the halalhah vould not be cut and dried. lor
the most part, the sages greeted vell-intentioned halakhic controversy vith
enthusiasm, encouragement, and appreciation. Lvery controversy that is for
the sake of heaven vill endure (Avot ;).
Various possible reasons for the sages attitude spring to mind a
recognition of the vitality and richness that controversy generates in a com-
munity; a Mill-like conviction that the clash of opposites yields truth; a
desire to shov the human intellect to be central in the halakhic process; and
a sense that controversy serves to make the Torah great and glorious (lehagoil
torah ulehaaoirah) by assuring halalhah a prominent place in the intellectual
life of the community. Notice, hovever, that the traditions esteem for dis-
agreement is not limited to periods vhen sages are trying to decide the lav.
Rather, even after the dust has settled and one sides viev has been declared
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normative, ve nd a remarkable respect for earlier minority vievpoints and
for arguments that did not carry the halakhic day.
I do not refer here merely to the recording of rejected opinions
dissenting rulings along vith their attendant reasonings. That practice makes
good judicial and religious sense. lor one thing, as the mishnah Lduyot
points out, some later courts vill have the pover to overturn an earlier
courts decision, but only if they can cite a previous minority. (A contrasting
viev, in Lduyot o, is that the minority opinion is recorded so it can be
quashed should it ever be revived under the guise of an authentic tradition.)
Also, a line of argument rejected in one context might prove serviceable or
signicant in others (see Rashi to BT Ketubot ;a). Minority opinions may
be adopted in exigent circumstances; or they sometimes might enter into
such decision-making procedures as double doubt (sejel sejela), vhereby
a combination of disputed or undetermined factors may be assembled to
justify a lenient ruling.
Keeping a record of debate and dissent makes each accepted viev
more understandable. It also inspires an ethic of discussion, encouraging later
scholars to defend their ovn opinions on all subjects. And in any case, must
the only aim of Torah study be to determine the practical halalhah` Can its
goal not be as vell to develop legal analysis and theory, for vhich purpose
a full record is necessary
The preservation of rejected minority opinions is, then, eminently
reasonable. By studying Talmud and not riveting attention only on apodictic
codes, |evs keep alive debates that long ago reached closure, revealing a con-
viction that reasoning on all sides should be preserved for posterity. (To be
sure, many sectarian vievs are not preserved by the Talmud.) What is striking
and even perplexing, hovever, is hov far the Rabbis respect for dissenting
vievs goes. Talmudic sources push so hard to legitimate such vievs that they
place them on a par vith the accepted one as regards legal cogencyand
perhaps even as regards truth.
A radical path to valuing minority opinion is paved by our sources
interpretive pluralism. As is often noted, legal reasoning is not a deductive
science. But sometimes the Talmud gives the discomting impression that
halakhic give-and-take resembles the relativistic philosophizing of the an-
cient Sophists. A trained dialectician can defend any position on any issue (in
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forty-nine vays')and to qualify for the Sanhedrin a judge must be able to
nd reasons for declaring pure a rodent that ve all knov not to be so (BT
Sanhedrin ;a). If modern liberalism takes its pluralistic cue from skepticism
and epistemological underdetermination, the Talmud takes its cue from a
radically permissive epistemology.
The Talmud does not stop at interpretive pluralism; it courts an ex-
travagant metaphysical pluralism, according to vhich all halakhic opinions of
sages vho join the debate are true, even though they contradict one another.
The heavenly voice proclaims that these and those, that is, both sides of the
Bet HillelBet Shammai mahlolet, are the vords of the living God. What
kind of God says contradictory things lurthermore, if both teachings are
true, vherein lies the superiority of the viev that is eventually accepted
The heavenly voices declaration that the halalhah follovs Bet Hillel seems
arbitrary and mysterious.
One could retortand many havethat the elu :aelu (these and
those) principle arms merely the partial validity of the rejected viev, for
example, its applicability in other circumstances. Alternatively, these and
those are the vords of the living God may mean that a measure of inspiration
is behind both vievs, or that both vievs grovout of divinely licensed meth-
odsnot that neither viev is truer than the other. But our diculties are
not over. According to the Lruvin passage, the reason that Bet Hillels vievs
merited being accepted over Bet Shammais is not that Bet Hillels vere logi-
cally more penetratingin that respect, as ve knov from BT \evamot a,
Bet Shammais vere superior. The reasons are, rather, that the sages of Bet
Hillel vere tolerant and forbearing and that they vere deferential to Bet
Shammaiexpounding the latters vievs before their ovn. Lvidently, a re-
jected viev may reect greater legal acumen and cogency than the accepted
one' The Talmuds explanations for Bet Hillels prevalence call to mind the ad
hominem arguments catalogued in textbooks among logical fallacies. What
does a jurists moral probity have to do vith the legal standing of his vievs
Actual halakhic decision making employs such formal criteria as
majority rule and consistency vith sources, rather than heavenly voices or
considerations of virtue. Bet Hillels humility is invoked as a theodicy, not
as a description of hov the lav came to be decided. Still, the notion that
nice sages nish rst conveys an important moral point not simply that God
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likes modesty, nor that He points modest people in the direction of truth,
but that a uatural liul exists betveen moral virtue and legal credibility (and
perhaps betveen legal credibility and the ability to muster a majority).
A good procedure in legal reasoning is one that takes account of the
opposition. If legal reasoning can be marshaled in favor of either side, then
the fact that you can present a line of argument to establish your ovn viev
does not yet shov that you are right. \ou must take account of the other
sides viev, either by refuting it or by integrating its valuable part into your
ovn logic. And the greater respect you accord your opponentthe greater
humility you possessthe more likely you are to assimilate vhat the other
side is saying. Bet Hillel, ve presume (this is not explicitly stated), either
found avs in Bet Shammais logic or else incorporated vhatever vas cor-
rect in it. That Bet Shammai vas sharper in presenting their ovn position
does not oset the superior truth-conduciveness of Bet Hillels procedure
and temperament. Again, that Bet Hillel reversed themselves more often
than Bet Shammai did (Lduyot :) indicates not that Bet Hillels logic
cant be trusted but, to the contrary, that ultimately it is more dependable.
The vorld knovs many brilliant scientists vhose personal arrogance renders
them obstinate, incapable of backing dovn or revising their beliefs. Open-
ness and self-criticism promote truth. Moral virtue and epistemic virtue go
hand in hand (see also BT Hagigah b). It seems to follov that later authori-
ties, because they are cognizant of earlier vievs, are more reliable than earlier
ones. This dovetails vith the principle that the halalhah follovs the later
viev, although this principle is not an across-the-board rule (for example,
it doesnt permit rejection of talmudic rulings).
Admittedly, the context in vhich Bet Shammais superior analyti-
cal ability is mentioned suggests that this ability is conducive to discovering
truth. lor those impressed by this point, ve can explain in yet another vay
vhy Bet Hillels moral character led to their arguments being accepted. Bet
Hillels practice of taking account of the other shovs greater appreciation
than Bet Shammai evinced for the importance of controversy and of the elu
:aelu principle. Bet Hillel is more committed to the process of discussion,
and that commitment makes their vievs more representative, even symbolic,
of a vell-functioning halakhic process than Bet Shammais.
The limits of the Talmuds pluralism may be tested by pondering
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its treatment of the folloving question Are those vho hold opinion X en-
titled to live in accordance vith their ovn principles vhen they deal vith
people vho hold opinion \ In our texts a central question is vhether fol-
lovers of Bet Shammai and Bet Hillel could marry each other vhen such
marriages might be prohibited by the principles of one or the other school.
(Some unions vould even produce mam:erim.) Preserving personal integ-
rity in these cases means segregating oneself from the other group, thereby
threatening communal unity. Deuteronomy , as read by the sages, cau-
tions against fragmenting the Torah. Should each side continue to abide by
its principles in these circumstances
If ve adopt a broad interpretive pluralism, ve should expect that
neither side vould be giving up much in the vay of truth by accepting the
other sides more lenient rulings. Nov, the Mishnah states that follovers of
Bet Hillel and Bet Shammai did marry each other. lurther, Tosefta \eva-
mot o, invoking Proverbs ::, implies that God accepts opposing prac-
tices so long as the adherents of each practice are sincere; vhen interacting
vith an adversary, one may therefore rely on the others viev. Other sources,
hovever, clearly decline to viev Bet Hillel and Bet Shammais acceptance of
intermarriages as an outgrovth of interpretive pluralism. When the Tosefta
invokes Zechariah :,, Iove truth and peace, it implies that for Bet Hillel,
truth vas valuable, but not as valuable as peace.
A particularly important nonpluralist thesis advanced in the tal-
mudic discussion is that follovers of Bet Hillel and Bet Shammai married
each other only becausethanks to a mutual policy of full disclosure
they had prior assurance that the husbands- or vives-to-be vere not prohib-
ited to them on their ovn principles. This is a pleasing ode to mutual trust
and to the possibility that peace can be achieved vithout compromise; but
simultaneously it bespeaks a rm and principled commitment that allovs no
leniency in problematic cases. Thus, it is not that the stringent viev must
compromise its principles to accommodate the permissive viev, but that the
latter must accommodate the former and ensure that proponents of strin-
gency vill not have to compromise their principles.
The tension betveen peace and integrity is felt acutely today. There
is passionate debate over vhether one denomination of |udaism should rec-
ognize conversions and marriages conducted according to anothers more
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lenient standards. Who should accommodate vhom Complicating the issue
is the fact that the principles enunciated in the Talmud are meant to apply
to legitimately formed positions, and the denition of legitimacy is itself
contested. The basis of pluralism and hence its bounds are themselves under-
stood in plural vays. With mutual respect eroding, the practical problem of
negotiating social life in the midst of divergent understandings is perhaps
even more pressing than seeking a single understanding.
Da:io 8hat:
Meoie:al Argumeuts. !he 1alue oj |uijormity
Coutro:ersy as De.liue
. !he Lpistle oj 8herira Caou
!his epistle uas uritteu iu ,: to the .ommuuity oj Kairouau iu ^orth Ajri.a iu re
spouse to queries a|out the Cral Lauarisiug jrom a .outro:ersy uith Karaites. 8heriras
a..ouut oj hou the Mishuah uas uritteu gaiueo uioe a..eptau.e amoug Ra||au
ites. His |asi. argumeut jollous the liue alreaoy ao:au.eo |y 8aaoiah, oj assiguiug the
maiu |ooy oj the oral traoitiou to the 8iuai re:elatiou. Iu this sele.tiou jrom the opeu
iug pages oj the epistle, 8herira attri|utes the emergeu.e oj .outro:ersies to a oe.liue oj
Ra||iui. traoitiou jollouiug the oestru.tiou oj the !emple (he ela|orates the positiou
oj Ra||i Yose iu :o). His argumeut starts jrom the ja.t that the sages meutioueo |y
uame iu the Mishuah are |y auo large jrom the postoestru.tiou era, uhi.h might seem
to iuoi.ate that the Cral Lau uas uot taught |y earlier sages.
With respect to your query, Why did the ancients leave most |of the Torahs
elaboration| to the later |sages| No, the ancients did not leave it to them.
Rather, it vas the teachings of the ancients that the later |sages| all transmit-
ted, and it vas their explications that they conveyed. . . .
It vas thus The names of the ancients vere not preserved . . . be-
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cause there vere no controversies among them. Rather, all explications of
the Torah vere clearly knovn to them. The Talmud too vas clearly knovn
to them, as vere all discussions and subtleties deriving from their teachings
regarding each and every matter. lor in |BT Bava Batra a the Talmud
states that Rabbi \ohanan ben Zakkai knev| the discussions of Abaye and
Ravavhich shovs that even the discussions of Abaye and Rava |in the
fourth century c.r.| did not originate vith them but vere all knovn by the
ancients.
While the Temple stood, each one of the eminent ones vould ex-
plicate to his students in his ovn vords the Torah, the Mishnah, and the Tal-
mud, teaching his students in vhatever fashion he chose. Wisdomabounded,
and they vere not troubled by other matters; it vas only the single issue of
the laying on of hands (cf. Tosefta Hagigah ::) that vas |disputed| among
them. . . .
When the Temple vas destroyed, and they moved on to Betar, and
|then| Betar too vas destroyed, the sages vere thoroughly dispersed. By rea-
son of the disorders and persecutions and troubles that occurred in those
times, the students vere insuciently schooled and controversies abounded.
Karaite Critique oj the Cral Lau
zo. Salmon ben |eroham, Bool oj the 1ars oj the Loro, Cantos III
Karaite Authology, translated and edited by Ieon Nemoy, \ale |udaica Series (Nev Haven
\ale University Press, ,:), pp. ;;:.
!his er.ely polemi.al .ritique oj 8aaoiahs argumeuts jor the :alioity oj the Ra||auite
oral traoitiou uas uritteu sometime iu the ,,os, possi|ly iu jerusalem, uhile 8aaoiah
uas still ali:e auo 8almou a :ery youug mau. 8aaoiah aoou.eo the talmuoi. explaua
tiou that the Cral Lau uas put iuto uritiug out oj ue.essity so that it shoulo uot |e
jorgotteu, oespite the origiual priu.iple that uritteu uoros may uot |e .ou:eyeo orally,
auo oral uoros may uot |e .ou:eyeo iu uritiug (B! Cittiu o|).
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o Controversy and Dissent
Canto I
: We believe rmly that the vritten Iav
Was in truth given to Israel by the right hand of the
Almighty
According to the testimony of the vhole congregation of
the Iily |Israel|,
Who are scattered in every land.
All of them, believers as vell as unbelievers,
Divided as they are by language and tongue,
All Israel, from the east to the vesternmost ends of the
vorld,
Testify to the sanctity of the vritten Iav, all of them,
the little and the great.
This testimony has become rmly established in their midst
By their united and universal consent, vithout challenge.
Iikevise, the signs and miracles vhich the Dveller of the
heavenly abode has vrought
Are vritten therein and are explained for them vho vish
to understand.
Selah' They remember the splitting asunder of the Red Sea
And they do not deny the vords spoken by the
Almighty on Mount Sinai;
And vith their mouths they sing of the glory of the Iav
and of the other miracles.
Israel and all other nations speak of this as one.
o Nov if Israel and |udah are both united
Concerning the validity of the oral Iav, vhich is, as they
|the Rabbanites| say, perfect,
Iet them oer their testimony, and let their voices be
heard;
If not, then the layyumites |Saadiah Gaons| vords are
void and his tongue has been silenced.
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Canto II
: I have looked again into the six divisions of the Mishnah,
And behold, they represent the vords of modern men.
There are no majestic signs and miracles in them,
And they lack the formula And the Iord spoke unto
Moses and unto Aaron.
I therefore put them aside, and I said, There is no true Iav
in them,
lor the Iav is set forth in a dierent manner,
In a majestic display of prophets, of signs, and of miracles;
\et all this majestic beauty ve do not see in the vhole
Mishnah.
. . .
o I have turned again to my rst argument,
To fortify it vith truth and uprightness, vithout
falsehood,
And vith might and pover, like the pover of Samson
Hovever, the best ansver of the tongue is from the
Iord.
; I have set the six divisions of the Mishnah before me,
And I looked at them carefully vith mine eyes.
And I sav that they are very contradictory in content,
This one Mishnaic scholar declares a thing to be
forbidden to the people of Israel, vhile that one
declares it to be permitted.
: My thoughts therefore ansver me,
And most of my reections declare unto me,
That there is in it no Iav of logic,
Nor the Iav of Moses the Wise.
, I said, Perhaps one of the tvo did not knov the right vay,
Wherefore he did not knov hov to reason it out vith
his companion;
Perhaps the truth lies vith his companion;
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Iet me look into his vords; perchance I vill nd relief
from my perplexity.
o But instead I found there other men
Sometimes they say, Others say,
While anon the scholars issue a decision,
Agreeing neither vith the one nor vith the other, but
contradicting both.
Had I been among themI say, had I been among them
I should not have accepted the vords of these others
and scholars.
Rather vould I have veighed the vord of the Iord vith
them,
And I vould have judged accordingly every vord vhich
they had contrived.
: Gird thyself vith thy strength and hearken, and step up
to me
And let the scholars of my congregation of Israel judge
betveen us,
And let them place our vords upon the scales,
So that I may valk in truth upon the road of my lifes
course.
Knov that there is no dierence in learning betveen them
and me.
When they say, Rabbi So-and-so said thus-and-so,
I ansver and say, I, too, am the learned So-and-so.
Thine escape has been cut o by this argument, else
ansver me, if thou canst.
His |Saadiahs| heart is overlaid vith stupidity as vith fat,
and I knov vell vhat he says and speaks,
As he has set it forth in his vritten scroll;
Therefore vill I turn my face tovard him and do battle
vith him,
And I vill shake his loins and strike dovn his svord.
He has vritten that the six divisions of the Mishnah are as
authoritative as the Iav of Moses,
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And that they vrote it dovn so that it vould not be
forgotten.
I shall ansver him concerning this, for I vill not be silent,
Iest the blackguard think that he had uttered an
unansverable argument.
o He vho remembers forgotten things and knovs vhat is
hidden,
Had He deemed it proper to have them skillfully vritten
dovn
In order that they might not be forgotten upon earth,
He vould have ordered His servant Moses to inscribe
them, vith might and pover, in a book.
; If it is proper for men like us,
Who have none of the holy spirit in us,
To turn the oral Iav into a vritten Iav, by vriting it
dovn,
Why vould it not be right for us to turn the vritten
Iav into a Iav preserved only in our mouths
: Hearken unto me and I vill speak further
If thou shouldst say, This took place in the days of the
Prophets and in the days of Lzra,
Why is there no mention in it of these Prophets
In the same manner as the names of the Prophets are
recorded throughout Scripture
, Be silent, and I vill teach thee visdom
If it be thy desire to learn visdom.
It is vritten The Iav of the Iord is perfect (Ps. ,:).
What prot be there for us, then, in the vritten
Mishnah
:o Moreover, if the Talmud originated vith our master Moses,
What prot is there for us in another viev,
And vhat can a third and a fourth viev teach us,
When they tell us rst that the interpretation of this
problem in lav is thus-and-so, and then proceed to
explain it vith another viev
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o Controversy and Dissent
: The truth stands upon one viev only,
lor this is so in the visdom of all mankind,
And right counsel cannot be based upon tvo contradictory
things.
Nov in this one thing he has fallen dovn and cannot
stand up
:: If the Talmud is composed of the vords of prophets,
Why are contradictory vievs found in it
Nov it is evident that this viev of Saadiahs is foolishness,
and the vords of fools.
So testify all mankind.
Agaiust Karaism. !he !rue !orah Is Cue
z. |udah Halevi, !he Ku:ari :
Translated by Iavrence Berman and Barry S. Kogan, forthcoming in the \ale |udaica Series
(\ale University Press).
Hale:is polemi.al oejeuse oj the :era.ity oj the oral traoitiou is |aseo upou a |olo por
trayal oj ra||iui. juoaism as esseutially uuijorm. Iu The Kuzari he uouhere tales uote
oj the pheuomeuou oj ra||iui. .outro:ersy. Iusteao, Hale:i argues that the :ery reaoiug
oj the !orah ue.essitates a siugular auo oetaileo traoitiou e:eu jor its :o.ali:atiou auo
puu.tuatiou, auo .ertaiuly jor its legal expli.atiou.
() . . . Have you heard, O King of the Khazars, about |any| treatise of the
Karaites on |any|thing pertaining to vhat I have mentioned |that is| clearly
traceable to its original authorities, videly accepted, tied to tradition, |and|
not in dispute among them, vith respect to massoret |the commonly accepted
traditional text of Scripture|, or vocalization, or musical accents, or forbid-
den and permitted things, or legal rulings
(o) The Khazar said I have neither seen them nor heard about
them, but I do see them making a diligent eort.
(;) The sage said This relates to vhat I told you about engaging
in intellectual speculation and arbitrary judgment |:|. Those vho engage
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in intellectual speculation about vorship pertaining to the vork of heaven
( |er. ;:; ;) exert themselves |far| more than someone vho does the
vork of \HWH that he is commanded |to do|. lor the latter have found
rest in their acceptance of |authoritative| tradition on faith, and their souls
have come to be at ease, like someone vho goes about freely vithin the city,
so that they dont have to be on the alert for any challenge, vhile the former
are like someone vho goes about on foot in the desert, vho doesnt knov
vhat he vill meet up vith. Therefore, he is armed, alert for battle, schooled
in combat |and| accustomed to it. So dont be surprised by vhat you see of
their resoluteness, and dont be caught o guard by vhatever laxity you see
on the part of those subject to |authoritative| traditionI mean, |of course,|
the Rabbanites. The former sought out a fortress in vhich they might be
secure, vhile the latter are asleep, lying quietly on their bedding, in an an-
cient, |vell-|fortied city.
(:) The Khazar said Lverything you have said follovs logically,
because the religious Iav vas intent on there being one Torah and one judg-
ment |for all|. But, in keeping vith their |dierent vays of | reasoning the
commandments vill multiply |so as to be| in accord vith the |individual|
reasoning of each one of them. \es, |and vhat is more,| the individual vill
not even remain |faithful| to a single revealed lav because some nevopinion
becomes obvious to him every day, as his knovledge increases. Moreover,
he vill |inevitably| meet someone vho refutes |his opinion| vith |some|
argument so that it becomes necessary for him to change vith |his| change
of opinion. And so, if ve nd them agreeing, let us recognize that they are
accepting on faith |either| an individual or a group that came before them.
But then ve must take issue vith their agreement and say to them
Hov did you come to agree about such and such a commandment vhen
|someones individual| opinion might |equally vell| tip the scales in favor
of many |other| vays of |understanding| the speech of God Nov, if they
say that Anan or Benjamin or Saul or someone else used to believe this,
they make themselves vulnerable to the argument that they ought to accept
on faith the |authoritative| tradition of those vho are older and even more
vorthy |of being obeyed than these men are| in connection vith accepting
traditionI mean the sages, because they are |comprised of entire| groups,
vhile these |others| are |merely| individuals. Also, the reasoning of the sages
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is clearly linked by a chain of authorities to vhat has been handed dovn by
the prophets, vhile |vhat has been handed dovn by| those |others| is noth-
ing more than mere reasoning. |Beyond this,| the sages are in agreement,
vhile those people dier vith one another. |Again,| the sayings of the sages
are |ultimately taken| from the place that \HWH . . . vill choose (Deut.
;o), and |for that reason,| even if one of their rulings derived from noth-
ing more than mere reasoning, it vould certainly have to be accepted |in
any case|, vhile |the legal rulings of | those others are not like that.
Connentary. Pluralism and Singularity
The most curious feature of the argument betveen the Karaites,
represented here by Salmon ben |eroham, and the Rabbanites, represented
by |udah Halevi, is that the tvo sides agree in their theological or meta-
physical commitment to a singular truth; they also agree in their practical
(though alvays unacknovledged) accommodation vith pluralism. Salmon
and Halevi each charge their opponents vith this accommodationand each
of them is right. Neither side denied Gods oneness; the argument had to
do vith the nature of the Torah. One God revealed one Torah, but this vas
a revelation in vords, vritten or spoken, and these vords had to be under-
stood. What is given must also be received. And reception means reading,
studying, interpreting; it is a social process.
According to the Karaites, so Halevi says, this process has the form
of a series of individual acts. One by one, each person confronts the Torah
and speculates on its meaning, vith the result that he vill not even re-
main |faithful| to a single revealed Iav because some nev opinion vill be-
come clear to him every day as his knovledge increases. Moreover, he vill
|inevitably| meet someone vho refutes him vith some argument so that it
becomes necessary for him to change. According to the Rabbanites, Salmon
says, the process of understanding is collective and authoritative; it takes
place in schools; it is the vork of scholars; it gives rise to a tradition that
incorporates and preserves scholarly disagreement; its character is reected
in the common phrases of the Rabbisothers say and another viev.
These are both good descriptions; Halevi and Salmon have grasped,
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each for the other, vhat a social process is and vhy, in the absence of coer-
cive pover, it never reaches a denitive end. If there vere no disagreements,
the rabbinic schools vould have no ongoing purpose. Similarly, if one Kara-
ite speculation vere to achieve the status of nal truth, there vould be no
need for individual confrontations vith the text.
But Halevi thinks that the nev opinions of the Karaites are a sign
of inconstancy and falsehood. And Salmon thinks that the second, third, and
fourth vievs of the Rabbis are necessarily abominations The truth stands
upon one viev only. This common commitment to singularity derives in
part from a common anxiety. Hovcan the |evish people survive in the dias-
pora if their internal disagreements are acknovledged and validated Many
opinions vill make for many legal codes and divergent practices. This is cer-
tainly a possible consequence of interpretive pluralismas ve can see from
the later proliferation of Protestant sects vithin Christianity. But it is also
possible that the anxiety is misplaced.
lirst of all, its urgency is unclear, for both Karaites and Rabbanites
managed to sustain strong communities for many years despite the disagree-
ments that arose vithin each group. A variety of political mechanisms
majority rule the most obviouscan turn the plurality of opinions into a
singular lav. And second, active disagreement and even sectarianism may
vell be signs of religious vitality. This is vhat they signaled among the |evs
of the later Second Temple period (among Protestants, too, in the sixteenth
and seventeenth centuries). Halevi points to the zealotry of Karaite sectaries
and contrasts it vith the complacency of people on his ovn side. lor him,
this is a sign of Karaite nervousness and uncertainty and of Rabbanite assur-
ance; those vith a secure tradition are at ease in their faith. But they are not
entirely at ease, as Halevis book proves. The liveliness of Karaite opposition
vas a great intellectual stimulus to rabbinic |udaism.
The theological or metaphysical argument is harder to deal vith in
a brief commentary. But it is important at least to notice the historical co-
existence of principled singularity and practical pluralism. Revelation may
be singular in character, the Bible may be a unied book (though it doesnt
read that vay), but human engagement vith this oneness is alvays, neces-
sarily, a pluralizing and dierentiating process. Individuals and groups come
to the one text vith their dierent experiences, interests, and questions; and
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Controversy and Dissent
they come avay vith dierent readings. It follovs that any successful tradi-
tion of interpretation vill incorporate dierence, as the Karaites said of the
Talmud, and change over time, as the Rabbanites said of Karaite doctrine.
Whenever dierence is repressed and change is blocked, the tradition dies.
So the practices that Salmon and Halevi chose to ridicule are in fact
signs of strength. Why vasnt it possible for them to see this It is sometimes
argued that pluralism cant be seen, that is, recognized and valued, because
it is only the by-product of a search for the one true doctrine. What holds
the interpreters to their task is the conviction that they are reading Gods
vill rightly. If it isnt possible to do that, vhy bother to study the texts or
vork vithin the tradition
We dont knov vhether the talmudic sages vho argued the sec-
ond, third, and fourth vievs believed that they vere right in this strong
sense. But the editors vho preserved the dierent vievs, and the genera-
tions of students vho studied them, must have had a looser understand-
ing of their enterprise. Perhaps they thought about God vhat Walt Whit-
man thought about himself I am large; I contain multitudes. (Compare
the God of Midrash Psalms, vho provides forty-nine arguments for each
of tvo contradictory positions.) Or perhaps they accepted the argument of
another midrash Behold it says A dream carries much implication (Lccles.
:). Nov by using the method of lal :ahomer |a fortiori|, ve reason If
the contents of dreams vhich have no eect may yield a multitude of in-
terpretations, hov much more then should the important contents of the
Torah imply many interpretations in every verse (Midrash Hagadol Bere-
shith). This argument for one Torah and many interpretations might be the
product of epistomological skepticism. Though there is in principle one true
interpretation, ve can never knov vhich one it is. But the midrash in fact
suggests something dierent that aspects of the (one) truth are reected in
the diverse interpretations. This is not to say that every reading of a text is of
equal value; knovledge increases, as Halevi says, and arguments are refuted;
the normal standards of coherence and consistency apply; a rough hierarchy
of legal and moral principles governs the particular cases. There are better
and vorse accounts of the lav. But the diversity itself, and the debates it pro-
vokes, serves signicantly to enhance our understanding. Surely this viev
provides a stronger defense of Karaite individualism and Rabbanite tradi-
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Value of Uniformity
tionalism as they a.tually uere than do Salmons and Halevis claims to uphold
a one-and-only-one viev of moral and legal truth.
Mi.hael 1al:er
A Cooe Cmittiug Argumeutatiou
zz. Maimonides, Introduction to the Mishueh !orah
Translated by Bernard Septimus, forthcoming in the \ale |udaica Series (\ale University
Press).
Ajter oes.ri|iug the traoitiou oj Cral Lau auo the |realoouu oj .eutral halalhi. au
thority (;, ,), Maimouioes aooresses the uusatisja.tory situatiou iu halalhi. juris
pruoeu.e that leo him to .ompose the Mishueh !orah. Iu .outrast to the !almuo, uhi.h
is a .ompeuoium oj legal reasouiug auo argumeutatiou, the Mishneh Torah pro:ioes
a systemati. auo uui:o.al .ooi.atiou oj halakhah. Ierhaps Maimouioes aspireo to
ser:e, through his uorl, the uuijyiug juu.tiou oj the high .ourt oj olo.
Novadays, troubles proliferate, one hard by the next, and the times oppress
all. The visdom of our vise is perished and the discernment of our discern-
ing is lost. Thus it is that the commentaries, responsa, and rule-collections
compiled by the Geonim|post-talmudic authorities| and considered by them
to be plainly put, have turned dicult in our days none but a small fev
understand their meanings properly. It goes vithout saying then |that fev
understand| the Talmud itself, Babylonian and Palestinian, Sifra, Sifrei, and
the supplementary |araytot. lor they require a capacious mind, a vise spirit,
and a long time. Only then can one discern from them the correct course
concerning the forbidden and permitted and the Torahs other legal cate-
gories |e.g., impure and pure, liable and exempt, t and unt|.
lor this reason, I, Moses, son of Rabbi Maimon, the Sephardi,
roused myself, put my reliance in the |Divine| Source, blessed be He, pon-
dered all of these books, and resolved to compile vhat emerges from all of
these vorks regarding the prohibited and permitted, the impure and pure, as
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o Controversy and Dissent
vell as the Torahs other legal categories, all in clear language and economi-
cal style, so that the Oral Torah, in its entirety, can be ordered in everyones
mouth, free of dialectical thrust and parry, vithout one |authority| saying
this, and another, that. Rather vords that are clear, accessible, and authori-
tative according to the |nal| ruling that emerges from all the compilations
and commentaries that ve have from the days of Our Saintly Master | |udah
the Prince| to the present.
So that all of the rules, in the |various bodies of | lav |that, respec-
tively, explicate| each of the commandments and each of the enactments
instituted by the sages and prophets, be manifest to small and great |alike|.
In sum in order that, a person need no other vork vhatever, on any of the
lavs of Israel; that this compilation, rather, encompass the entire Oral Torah,
along vith the ordinances, customs, and decrees established from the days of
Moses, our master, until the compilation of the Talmud, as interpreted for us
by the Geonim in all the vorks that they composed after the Talmud. I have
therefore entitled this vork Mishneh Torah |Companion to Scripture|
22
lor
a person can rst read the Written Torah and then read this |vork| and knov
the entire Oral Torah from it, vithout having to read another intervening
volume.
Iusistiug ou Argumeutatiou
z. Abraham b. David of Posquieres (Rabad), Glosses to MT Introduc-
tion
Isadore Tversky, Iutroou.tiou to the Cooe oj Maimouioes (Mishueh !orah), \ale |udaica Series
(Nev Haven \ale University Press, ,:o), p. o n. o.
Maimouioes .ooe qui.lly |e.ame a jo.us jor uumerous glosses, .ommeutaries, auo .ou
tro:ersies. !he earliest set oj .riti.al glosses uere those oj Ra|ao (au oloer .outemporary
oj Maimouioes), uhi.h soou attaiueo .lassi.al status alougsioe the .ooe itselj. Iu this
::. Mishueh torah is a biblical phrase (Deut. ;:), translated in context (Nev |PS) as a .opy
of this teaching. The phrase, used in Rabbinic times to denote the fth book of Moses, is
the equivalent of the Greek Deuterouomy. Here the \|S oers companion; an alternative
translation might be restatement.
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Problem of Authority ;
gloss to Maimouioes iutroou.tiou, Ra|ao .riti.i:es the preteutiousuess oj Maimouioes
methoo.
He intended to improve but did not improve, for he forsook the vay of all
the authors vho preceded him. They alvays adduced proof for their state-
ments and cited the proper authority for each statement; this vas very useful,
for sometimes the judge vould be inclined to forbid or permit something,
and his proof vould be based on some other authority. Had he knovn that
there vas a greater authority vho interpreted the lav dierently, he might
have retracted. Nov, hovever, I do not knov vhy I should reverse my tra-
dition or corroborative vievs because of the compendium of this author. If
the one vho diers vith me is greater than I, ne; and if I am greater than
he, vhy should I annul my opinion in deference to his Moreover, there are
matters concerning vhich the Geonim disagree and this author has selected
the opinion of one and incorporated it in his compendium. Why should I
rely upon his choice vhen it is not acceptable to me, and I do not knov
vhether the contending authority is competent to dier or not It can only
be that an overbearing spirit is in him (Dan. o).
Mooeru Disputes. !he Iro|lem oj Authority
Bauuiug Hasioism
z. The Brody Proclamation of ;;:
Zmir Aritzim, reprinted in M. Wilensky, Hasioim auo Mituagoim ( |erusalem Bialik Insti-
tute, ,;o; Hebrev), vol. , pp. ,.
!his is oue oj the earliest .alls to |au the |uooiug hasioi. mo:emeut. Deeply rooteo
iu mysti.al traoitious, the mo:emeut iuspireo the uioe aooptiou oj la||alisti. pra.
ti.es. 8pe.i.ally, this iu:ol:eo supplautiug the traoitioual Ashleua:i prayer|ool uith
that oj Isaa. Luria (Ari)jormerly useo ex.lusi:ely |y a s.holarly auo pietisti. elite.
!he esoteri. prayers oj su.h elites uere .ouou.teo iu the shtibel, a small prayer room,
lo.ateo |esioe their spe.ial stuoy hall, the kloyz. Hasioism proposeo to trausjorm this
esoteri.ism iuto .ommou pra.ti.e.
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: Controversy and Dissent
A Public Proclamation made here at our Glorious Community of
Brody, may God protect it, on the :oth of Sivan : |= ;;:|,
during the fair vhen all congregate
Iisten, O holy community. With your permission, the honored
notables, rulers, leaders, together vith the vell-knovn selectmen of the
county, have unanimously ordered that the folloving be proclaimed
Whereas it has been reported throughout the camp of the Hebrevs
that by reason of our great sins the |sinful practice| has been rekindled, in the
midst of our people, of sects and groups detaching themselves from the uni-
ed and just community, adopting nev practices and evil lavs. They throv
o the yoke of Torah and prefer license.
. . . They build themselves |separate| altars to set themselves apart
from the holy community, making their ovn special miuyauim, not praying
vith the community in the synagogues or study halls appointed for the pub-
lic. They also alter the phrases coined by the sages, the great codiers |vho
determined| the entire liturgical order in these lands. They also blaspheme
and mock the messengers of God |i.e., the recognized scholars|, and let pass
the |prescribed| time for the recital of the shema and for prayer, deliberately
altering the formulas that are customary in these lands, having been estab-
lished by the great ones of old, fromvhich there is novay to depart, vhether
right or left. It has nov been discovered that these criminals in their very
personstheir evil is immeasurableremove the yoke and abandon eternal
life; |they gather| in groups and gangs, chanting all day long. They deride the
entire oral Torah, saying learn only Kabbalah. They pray out of the prayer-
book of the holy man of God, Ari of blessed memory, thereby surely cutting
the branches.
23
. . .
lor some time nov these evildoers have been around . . . and there
is roomfor concern lest . . . , God forbid, the divine name become desecrated
amongst the nations; lest |the gentiles| say that our Torah is, God forbid, like
tvo Torahs; so that ve become, God forbid, a laughingstock amongst the
nations. Hov long shall these people be a snare to the House of Israel Arise
in righteousness to the aid of the Iord among the varriors' Anyone vho has
the fear of God in his heart should vholeheartedly take the initiative in this
:. The kabbalistic term for destructive misuse of mystical knovledge; cf. BT Hagigah b.
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Problem of Authority ,
matter, to act zealously for the Iord of Hosts, for the honor of His great and
avesome name. . . . |And act| to secure the breach, to repulse these evil men
in any location vhere they or their inuence prevails, for certainly there is
some trace of heresy and apostasy |among them|. Hov much longer shall
this vicked community |persist|, vho contrive . . . nev practices unknovn
to our fathers . . .
Therefore the holy community has decreed by the great and ave-
some herem . . . by all the sanctions and curses vritten in the Torah . . . That,
from this day onvard, it is strictly forbidden for any one of the synagogues
or xed miuyauim in our community . . . to alterGod forbidanything of
our customary formula of Ashkenazi prayer. Certainly, none may dare pray
out of the prayerbook of the godly Ari of blessed memory, or of the other
kabbalists, vhose secrets vere never attained by these sinful men. Also it is
forbidden for any individual to pray other than according to the Ashkenazi
liturgy, vhich ve received from the ancient great of the vorldexcept for
the remnants named by God, those vho pray vithin the rst shti|el by the
side of the lloy: of our congregation. With regard to them, it is crystal clear
that these persons . . . are full of the exoteric TorahTalmud and codes
and are also established scholars of the esoteric Kabbalah. They have for years
been praying out of the prayerbook of Ari of blessed memory, vhich prac-
tice they have folloved in the presence of rabbis advanced in age, the . . .
great ones of our community, vho never protested against this. lor these
|individuals|, from a young age, vere vell knovn in |their| piety, and their
main studies concerned the exoteric Torah, Talmud, and codes. They knov
their Master and have true intentions. |They| are permitted to pray, as has
been their practice, out of the prayerbook of Gods holy one, Ari of blessed
memoryand none besides them. And outside of the shti|el, it cannot even
be suggested that any miuyau alter the formula of Ashkenazi prayer by even
one letter; they have no business vhatever vith esoteric matters, nor |may
they adopt| Sephardi customs, but rather |must adhere to| the customs of this
land alone. Any alteration from the custom of our fathers is strictly forbid-
den. (The exception mentioned above applies only to men over thirty years
of age, but those less than thirty are strictly forbidden from joining the . . .
shti|el.) . . .
There is a stern admonition upon all members of our community
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oo Controversy and Dissent
and those under our authority . . . they are strictly forbidden from deviating
from anything said above, on pain of incurring the punishments of the great
and avesome bans. . . .
Nov, it is true that our community lacks pover to enact a decree
upon other communities of Israel. . . . We only make a plea, for the honor of
the blessed God, the Holy One of Israel, that all communities act zealously
for the Iord of Hosts; ve are all alike sons of one father, the living God. . . .
Dejeuoiug Hasioi. Ira.ti.e
z. Llimelekh of Iyzhansk, lrom the Holy Lpistle
Reprinted in M. Wilensky, Hasioim auo Mituagoim ( |erusalem Bialik Institute, ,;o; He-
brev), vol. , pp. o,;:.
!his retort |y Llimelelh oj Ly:hausl to the sort oj a..usatious le:eleo agaiust the Hasi
oim iu the Brooy pro.lamatiou is .iteo iu a letter uritteu |y his sou Llie:er (.. ::o)
to oue oj his hasioim. Llimelelh .riti.i:es the argumeut that prayer a..oroiug to Aris
prayer|ool is the ex.lusi:e right oj au esoteri. elite. He oepi.ts iusteao au iu.lusi:e reli
gious .ommuuity spiritually trausjormeo |y .ouue.tiug itselj to a .harismati. tzaddik.
I asked my master, my father and teacher, to tell me the reason for |our|
altering the prayer formulae, and he ansvered me thus
Has not Bet Yosej | |oseph Karo|, chief among the codiers, set dovn
these formulae Then Rema |Moses Isserles|, also chief among codiers, ex-
amined and tested and set dovn the entire |liturgical| order properly for all
of Israel. He realized that in |the Sephardi| formula there is great light, of
vhich the vorld is not vorthy,
24
and established for us the Ashkenazi for-
mula, vhich is commonly good for people like us. As for those t:aooilim
vho have cleansed themselves from all lth and vho adhere to the high-
est standardsurely he did not mean this to apply |to them|, barring them
:. lolloving the Rabbinic midrash that tells of a primordial great light of vhich, God de-
cided, the vorld vas unvorthy. And so He concealed it for the present; it vas to be enjoyed
by the righteous in the future; cf. Miorash Ra||ah. Ceuesis o. World here may, hovever,
mean the common folk.
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Problem of Authority o
from employing in their prayer that formula codied by Bet Yosej. These
and those are the vords of the living God (BT Lruvin b |o|).
Should you vonder Are there not many people vho are not at that
high level I have described, yet vho employ |the Sephardi| formula, and at-
tach themselves to the sublime hasioim, being also called hasioim I tell you,
in the Song upon the Sea it is vritten They had faith in the Iord and in
His servant Moses (Lxod. ). Nov vhat concern is it to us that Israel
had faith in Moses By the same token, God |later| promised him, They vill
have faith in you ever after (Lxod. ,,)vhat concern vas it to Moses
Was it his desire that Israel should have faith in him Certainly he desired
only that they should have faith in God'
In fact, the holy Torah imparts to us here a great matter, namely,
that it vas necessary for them to have faith in Moses. lor Gods purpose,
in taking us out of Lgypt, vas that ve should receive the Torah; for this, it
vas necessary to be rened like silver sevenfold. That vas the purpose of all
those events, the parting of the Red Sea and all the other miracles. Moses our
master, may he rest in peace, sanctied himself until he attained the level of
prophecy, ascended to heaven, and brought dovn the Torah to Israel. Nov
all of Israel vere certainly not able to be, all of them, at the level that Moses
|attained|, so that they might receive the Torah in accordance vith the level
of prophecy. Still, since they had faith in Moses and connected themselves
to him, he brought upon them a holy spirit; it vas as if they too vere at
that level, and through this they vere all able to receive the Torah, through
uniting and connecting vith Moses.
The parallel is clear.
Authority !raus.euoiug Reasou
z. Nahman of Bretzlav, Lilute Moharau, :, oo, , o:
1hile legitimi:iug a ueu sour.e oj a|solute religious authority (see ;, .,), the oo.
triue oj the tzaddik also maoe jor a uuique jorm oj pluralism. Iu the rst three oj the
se.tious reproou.eo here, Ra||i ^ahmau oes.ri|es the oepth oj .ouue.tiou |etueeu the
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o: Controversy and Dissent
hasid auo his tzaddik, |ut also the trausjer oj rulership jrom Coo to Israel auo
e:eu to e:ery iuoi:ioual. Iu the jourth se.tiou, he oers au a..ouut oj the positi:e :alue
oj .outro:ersy.
(:) The principle and foundation of everything is that one connect oneself
to the t:aooil of that generation and receive his instructions in every single
matter, vhether small or great, and not to deviate from his instructions
God forbidright or left; as our rabbis of blessed memory said, Lven if he
tells you that right is left, etc. (8ijre Deut. |:|). One must renounce
all manner of visdom, annulling ones mind as if one had no reason except
that vhich he receives from the t:aooil, the rabbi of that generation. As long
as a person retains any independent reason, he lacks perfection and is not
connected to the t:aooil.
Israel, at the time of receiving the Torah, possessed great vis-
dom. lor they |had been| vorshipers of contemporary idols, a mistake that
had oved from great visdom and investigations, as is vell knovn. Had
Israel not renounced that visdom, they vould not have received the Torah.
|Rather,| they could have denied everything, and everything that Moses our
master performed on their behalf vould have been to no avail; even all the
avesome signs and miracles that he performed before their eyes vould have
been of no avail to them. Indeed, novadays too, there are heretics vhose de-
nial comes from their foolish and mistaken visdom. Israel, the holy people,
hovever, sav the truth and renounced visdom, and had faith in the Iord
and in His servant Moses (Lxod. ), and thereby received the Torah.
(oo) . . . The disciple ought to experience all the ascents and de-
scents of the t:aooil, if he is truly and properly connected |to him|, just like
branches of a tree. lor the branches experience all ascents and descents in |the
condition of | the tree. Thus in summer they grov and shov vitality, since
the tree dravs its vitality from its roots through its ducts. . . . Therefore, in
vinter vhen the moisture dries up, as the ducts constrict, the branches too
constrict. That is the reason vhy the leaves then fall o; and the opposite
|takes place| in summer. Nov, vith one vho is connected to the t:aooil it is
the same that is, he experiences all the ascents and descents of the t:aooil.
() Within every single individual of Israel there is a quality of
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t:aooil-ruler, . . . as it is vritten, \our people are all righteous |t:aooilim|
(Isa. oo:). This too is the meaning of Israel, His rule|rs| (Ps. :).
25
|This verse is to be interpreted in light of the statement attributed to God|
Who rules me A t:aooil (BT Moed Katan ob). lor vithin every indi-
vidual Israelite there is a precious thing, a point vhich none of his fellovs
possesses . . . . This quality, vhich he possesses more than any fellov, inu-
ences, enlightens, and avakens his fellovs heart; his fellov ought to receive
the avakening of that quality from him, as it is vritten, And they receive
one from another (!argum to Isa. o).
lor prior to the giving of the Torah, rulership vas in the hands of
God, may He be Blessed, but folloving the giving of the Torah He gave ruler-
ship into the hands of all Israel, each individual according to his |particular|
quality. lor the letters of the Torah are embodiments of Gods vill, since
Gods vill is that the commandments should be | just| so. lor example, |vith
regard| to the commandment on phylacteries, His vill vas that there be four
sections, housed in leather and not in silver, for such is His vill. Hence His
vill is embodied in the entire Torah; thus, nov that the Torah has been given
into our hands, Gods vill too is given into our hands. We rule, as it vere,
in that His vill is determined by our vill, in line vith Israel, His rule|rs|
mentioned above.
A .eutral ioea oj Luriaui. Ka||alah is that oj tzimtzum, or uithoraual. A pre.ou
oitiou jor .reatiou uas Coos uithoraual, pro:ioiug a :a.uuma :a.aut spa.e
uithiu uhi.h the uorlo .oulo |e |rought iuto existeu.e. Ra||i ^ahmau poiuts out that
.outemplatiou oj the uorlo therejore leaos to au iues.apa|le paraoox. Coo is |oth all
preseut auo a|seut. Croiuary jeus retaiu their jaith |y a:oioiug the .outemplatiou oj
this paraoox, uhi.h must leao to heresyex.ept jor a tzaddik lile Moses, uhose .ou
templatiou oj the :a.aut spa.e iu:ol:es a sileu.e |eyouo uoros. ^ahmau employs this
oo.triue iu oeriug a positi:e a..ouut oj the .outro:ersies amoug hakhamim their
oeparture jrom oue auother proou.es the seljsame quality oj :a.aut spa.e, .ru.ial
jor .reatiou.
:. A midrashic reversal of the verses plain meaning, that Israel became Gods dominion.
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o Controversy and Dissent
(o:) Those vho investigate |the paradox of Gods presence and absence|
fall into several perplexities and quandaries, vhich in truth do not constitute
any |kind of | visdom; there is basically nothing to these quandaries. \et,
since human reason cannot resolve them, they have the appearance of vis-
dom and of |genuine| quandaries. In truth, it is impossible to resolve these
quandaries, because these heretical quandaries derive from the vacant space,
vherein God is, as it vere, absent. . . . If one had been able to nd God, may
He be blessed, there toothen it vould not have been vacant. . . . There is
no retort to this heresy, since it derives from the vacant space, from vhich
God, as it vere, vithdrev Himself.
Only Israel, through faith, transcends all visdom, even this heresy
vhich derives from the vacant space, as they believe in God vithout any
investigation or visdom. . . . Certainly, one should avoid and escape this
kind of heresy, neither contemplating nor |even| glancing at its arguments.
Othervise, one vill, God forbid, surely become submerged in it. . . .
If there is a great t:aooil vith the quality of Moses, he is, on the
contrary, obliged to contemplate these vords of heresy, even though it is im-
possible to resolve them, as stated above. Nevertheless, through contempla-
tion, he lifts out several souls vho fell and became submerged in that heresy.
lor the perplexities and quandaries of this heresy, vhich derives from the
vacant space, have the quality of silence, since no reason or letters are appli-
cable for resolving them. |This is| because creation vas by means of vords,
as it is vritten, By the vord of the Iord the heavens vere made (Ps. o),
and vords contain visdom. . . . But in the vacant space, vhich surrounds all
vorlds, . . . there are no vords . . . and thus the perplexities deriving from
it have the quality of silence.
Thus, concerning Moses, vhen he asked vith regard to the death
of Rabbi Akiva, Such Torah and such a revard he received the reply Be
silent, that is hov it entered my mind |literally, rose in my thought| (BT
Menahot :,b |;o, ,|). That is |to say|, you must be silent and not ask for
a reply or a resolution for this quandary, for thus has it risen in thought,
vhich is above vords. Therefore, you must be silent vith respect to this ques-
tion, as it has the quality of risen in my thought, for there are no vords
to resolve it. Similarly, these quandaries and perplexities that derive from
the vacant space, from vhich both vords and reason are absent, have the
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Problem of Authority o
quality of silence; one must simply have faith and silence there. Hence, no
one should enter into contemplation of these vords of heresy and perplexi-
ties except for a t:aooil like Moses, vho has the quality of silence. He vas
called slov of speech (Lxod. o), signifying the quality of silence vhich
is above vords. . . .
\ou should knov that controversy has the quality of creating the
vorld. lor the beginning of creation vas by means of the vacant space, as
explained above, since othervise all vould be Innity, and there vould be
no room for creating the vorld. Therefore He vithdrev the light to the
sides, providing the vacant space, vithin vhich He created all that vas cre-
ated . . . through vords. The same applies to controversies. lor if all the sages
|halhamim| vere of one |mind|, there vould be no room for creating the
vorld. It is only by virtue of their controversies, in vhich they depart from
one another, each taking himself to one side, that a quality of vacant space
is provided betveen them. . . . lor all the vords each of them speaks are
all for the sake of creating the vorld, vhich they eect vithin the vacant
space betveen them. lor the talmioe halhamim create everything through
their vords . . . but they must be careful not to speak too much. . . .
Limitiug !raoitioual Authority
z). David Linhorn, Responsum on lree Inquiry and Rabbinic Oce
In W. Gunther Plaut, !he Rise oj Rejorm juoaism. A 8our.e|ool oj Its Luropeau Crigius (Nev
\ork World Union for Progressive |udaism, ,o), pp. ,::. The German source is
Ra||iuis.he Cuta.hteu u|er oie 1ertragli.hleit oer jreieu Iors.huug mit oem Ra||iueramte, : vols.
(Breslau, ::), vol. , p. : .
Iu ::,:, A|raham Ceiger, a leaoiug gure iu the emergiug histori.al.riti.al stuoy oj
juoaism, uas appoiuteo assistaut ra||i oj Breslau. !he appoiutmeut oj Ceiger, uho
a year earlier hao .alleo the rst .ou:eutiou oj Rejorm ra||is, met uith oppositiou leo
|y 8hlomo !iltiu, ra||i oj the .ommuuity. !he .ommuuity |oaro turueo to se:eral
other ra||is, mostly oj the youuger geueratiou, seeliug support jor the appoiutmeut.
!his sele.tiou is jrom the respouse |y Da:io Liuhoru, oue oj the more raoi.al rejorm
:oi.es.
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oo Controversy and Dissent
Question Does a rabbi forfeit his right to occupy his post vhen he departs
in some respects from biblical interpretations and traditionally valid rules of
the Talmud, and if so, under vhat conditions
Ansver Departure from the Talmud in respect to the exegesis of
biblical passages and the validity of traditional lavs results in inability to
occupy a rabbinic post if the folloving three conditions exist together
a. The rejected talmudic interpretation and the disputed
traditional lav must concern a tradition vhich in the Talmud is
described and recognized by everyone as genuine and undoubted
(Maimonides, in his introduction to the Mishnah, enumerates such
traditional interpretations);
b. . . . Such departure is not suciently motivated by
changed conditions of time and place; and
c. It is not merely expressed as an opinion, but is meant to
be practically applied either by the person advocating such depar-
ture or by others.
Ao a. Lvery adherent of talmudic |udaism is obligated to observe all
those ordinances vhich, even though they lack every biblical basis, are listed
by the Talmud as having been handed dovn by tradition and vhich as such
are disputed by no one. The practice of these lavs, vhich have come dovn
to us from the Men of the Great |Assembly|, makes a |ev a Talmud |ev,
and this is the chief distinction betveen him and the Karaites, vho recog-
nize the biblical vord exclusively and do not vant to hear of any tradition,
vhatever its name. Hovever, this category of lavs forms and completes the
vhole circle vithin vhich the faithful Israelite concedes authority to the
Talmud. There is no legal foundation vhatever for a further extension of
this authority to ordinances lying outside this circle, to subjective exegesis,
and to those lavs the traditional character of vhich is a matter of dispute
betveen the Talmudists themselves. Therefore, one cannot deny the name
|ev nor his tness for the rabbinic post to one vho objects to the kind of
authoritarianism vhich vould make |udaism an unreplenished svamp and
condemn it to eternal stagnation. We cannot, ve must not, ascribe such in-
fallibility and apotheosis to the Talmud. We believe in its validity, but at the
same time ve must reject its deication and say to it Israel believes you but
not in you; you are the channel of the divine but not divinity itself '
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But, it is said, quoting Maimonides as an authority, after the codi-
cation of the Talmud, Israel sanctioned and accepted all its vievs, expo-
sitions, and ordinances' (Introduction to the MT |;o, |). Where are the
documents of so solemn a vov, vhich vas to bind all future descendants
Hov is it possible that so important an event is never mentioned in the Tal-
mud and is not, as at the conclusion of the Book of Lsther, documented as a
memorial for all time But suppose, indeed, that our forefathers had pledged
themselves and all their descendants to accept the Talmud vith everything it
contained, hovcould such a pledge, the existence of vhich is seen as the rea-
son for the immutability of the Talmud, result in a binding obligation for us
Quite aside from the fact that such a conclusion vould be in contradiction
to all the lavs of normal reasonand especially so in religious matters
it is, in any case, a fundamental rule of talmudic |udaism that no father can
burden his minor child vith a vov against the latters vill. And, even if the
child has agreed to it during his minority, once he reaches his majority he
is no longer under any obligation to fulll such a vov. (Of course the obli-
gation to fulll a divine command needs no intermediary justication; it
follovs directly from our relationship to God, and is not dependent on any
voluntary agreement. This is stressed so that vhat vas said above should not
lead to dangerous conclusions regarding Deut. :, |see ;, |.)
Maimonides, in his introduction to the Mishnah, already acknovl-
edges as genuine tradition only that about vhich there is no dierence of
opinion in the Talmud. . . .
Ao b. Untness to occupy the rabbinic post cannot be caused by
a divergence from ceremonial lavs, if such divergence is not just frivolous
tampering vith the sacred, but rather is founded in the spirit of |udaism and
represents a pressing demand of its natural development. Of course, such di-
vergence must have nothing in common vith mere fashion or convenience
or vith forced application of an un-|evish viev to |evish matters, or reect
merely a subjective attitude or a kind of general antipathy to the status quo.
It must be the product of profound, honest, and unprejudiced research in
the sacred documents, of pious sincerity, of a gloving enthusiasm for Gods
vork, and, nally, of mature advice from several God-intoxicated men vho
are experts and vhose judgment has carefully veighed the causes and con-
sequences of the matter. Such procedure, far from being objectionable, is
highly commendable, and it vas often folloved in both talmudic and post-
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o: Controversy and Dissent
talmudic times. The vell-knovn ordinances issued by Rabbenu Gershom
|Meor ha-Golah| amply shov that the conclusion of the Talmud could not
limit the development of |udaism in accordance vith the needs of the times.
But suppose even that the divergence of a rabbi vould occur rela-
tive to a ceremonial lav vhich until nov vas recognized as indisputably
divine, and for the elimination of vhich changed conditions could oer no
reason; and suppose the divergence is founded solely on the conviction, ob-
tained through scientic research, that the lav is not of divine origin. If the
rabbi does not transgress the bounds of theory and gives it practical expres-
sion in neither his private nor his professional life, hov then could he lose
the right to occupy his post As a |evin general, and as a rabbi specically, he
is indeed obligated and duty-bound to observe and practice strictly all bibli-
cal and genuinely traditional lavs. But vhen did |udaism ever ban and damn
a mere expression of opinion vhich runs counter to the status quo When
did it ever declare as unt for rabbinic oce someone vho took such a posi-
tion, and even brand him vith the name of lojer |denier of the principles of
faith| Genuine |udaism, vhich, despite Maimonides, knovs of no binding
dogmas, looks at deeds, not opinions. Nov, if, in addition, I live red by
love for my sacred religion; if vithout surcease I search and seek for truth in
the books of life, but have the misfortune to gain an opinion vhich diers
from the status quo; if, driven by noble zeal, I at once express this opinion
vithout fear and hesitation for the honorable and pious sake of my faith
if I just express this, I belong . . . to the category of thieves and murderers'
Worse, I am said to have no share in that divine possession for the sake of
vhich I loathe all falsehood and hypocrisy, and am to forgo all community
vith the house of |acob, vhich I at least try to cleanse of dirt and refuse' Is
such tyranny the preachment of Torah, vhich makes luouleoge a duty and
vhich calls itself Israels visdom and reason in the eyes of all nations
But listen to the judgement of the Talmud itself in this matter' In
BT Sanhedrin :ob and ::b ( o) it says The |rebellious elder| becomes guilty
only if he either practices his divergent opinion or by oire.t tea.hiug attempts
to lead others to do so, but not if he only holds to a point of viev. lurther-
more (in BT Sanhedrin ::a), Akaviah ben Mahallalel could not be held to
account for his opinions vhich diered from those of the sages, because
he did not teach in order that his interpretation might be practiced. lrom
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this it is abundantly clear that Maimonides, vhen he speaks of the teacher
vho decries the traditional interpretation, refers exclusively to one vho not
only denies tradition as such (vhich is the distinction betveen |heretic| and
|rebel|), but vho also gives practical expression to his heretical teaching.
justijyiug Crthooox 8e.essiou
z8. Samson Raphael Hirsch, Open Ietter to Rabbi S. B. Bamberger
Samson Raphael Hirsch, !he Colle.teo 1ritiugs, edited by Llliot Bondi and David Bechofer,
translated by Paul lorchheimer and Gertrude Hirschler (Nev \ork and |erusalem leld-
heim, ,,o), vol. o, pp. :oo.
As the Rejorm mo:emeut spreao auo tool o:er mauy oj the jeuish .ommuuities iu Cer
mauy, its orthooox oppoueuts split o:er the issue oj their ouu .outiuuiug mem|ership
iu the .ommuuity. Iu :: the Irussiau Iandtag re.ogui:eo the right oj iuoi:iouals
to lea:e their .hur.hes. Hirs.h, a leaoiug :oi.e iu the .all to se.eoe, hao supporteo the
|ill, requestiug the parliameut that jeus |e permitteo to lea:e their lo.al .ommuuity
jor reasous oj .ous.ieu.e. !he |ill pa:eo the uay jor some orthooox jeus to se.eoe,
iu respouse to Hirs.hs .laim that otheruise their taxes uoulo male them, iu ee.t,
parti.ipauts iu illi.it pra.ti.es. 8till, the majority oj traoitioual Cermau jeus opposeo
se.essiou. 1e reproou.e here Hirs.hs argumeuts iu the .ourse oj a heateo pu|li. ex
.hauge uith his equally orthooox .outemporary, 8eligmauu Baer Bam|erger, oistri.t
ra||i oj 1ur:|urg. Bam|erger opposeo se.essiou pro:ioeo that the taxes .olle.teo jrom
the orthooox mem|ers uoulo |e earmarleo jor supportiug separate, orthooox religious
ser:i.es. Hirs.h reje.ts this arraugemeut, arguiug that jailure to se.eoe is tautamouut to
legitimi:iug heresy.
In your statement you report that, according to information received by you,
the trustees of the lrankfurt Reformcommunity vere novprepared to meet
the requirements of those Orthodox members vho vill not secede from the
community. \ou report that the trustees vill do this by committing funds
from the community for the establishment of religious institutions required
by the Orthodox. In addition, institutions vould be under Orthodox ad-
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;o Controversy and Dissent
ministration and supervision, and the Orthodox members vould not have
to contribute any funds to the ritual facilities of Reform.
\ou thereupon state that full guarantees must be provided for the
implementation of these concessions and that, if these guarantees really ma-
terialize, secession from the Reform community could no longer be de-
scribed as mandatory.
\ou obviously assume that the Reform community vith all its fa-
cilities that violate religious lav, its doctrine, and its administrative sta vill
continue to exist. The community as such vill not satisfy the requirements
of God and His holy Iavany more than it has done hitherto; in other vords,
the community vill continue to be Reform. . . .
Thus, according to your statement, an Orthodox |ev is permitted
to remain a member of the Reform community vithout any qualms of con-
science as long as the institutions required for his religious needs are supplied
vithin and by the Reform community and as long as he does not have to
make any contributions to the Reform institutions.
Dear Rabbi' Voluntary membership in a religious community of
necessity implies the espousal of the principle to vhich that religious com-
munity subscribes. Lverything that this community does in matters of reli-
gion is done vith the consent of every single member vho is and remains
a member of the community of his ovn free vill. A community consists
only of the sum total of all its members, and vhatever is done, is done in
the name of all. That is a truth that all arguments and mental reservations
in the vorld cannot alter even by a hairs breadth. An Orthodox |ev vho
remains a member of the Reform community, even though he can and does
have the use of all the religious institutions he needs elsevhere, remains a
member of that Reform community only for the sake of being a member.
He thereby makes it clear beyond question that his personal religious con-
science approves of the idea that |evs may create and support, for use by
non-Orthodox |evs, Reform institutions that violate religious lav. This is
true even if he does not make any payments tovards these Reform insti-
tutions, and has his ovn special institutions vithin that same community.
Indeed, by remaining a member of the Reform community, he participates
in the creation and maintenance of Reforminstitutions by |evs, and he helps
commit funds from the community (in vhose control he shares as long as
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Problem of Authority ;
he does not secede from the community) for these Reform institutions. The
assets of the community are the joint property of all its members, to be used
for the needs of the community. They can be used only vith the direct or
indirect approval of each individual member, and you are avare, dear Rabbi,
that according to our halalhah, it is mandatory to give ear to the objection
of even one person if the lav is on his side.
It is dicult to believe that you vere fully avare of the implica-
tions of your statement. \our statement sets forth, in unequivocal terms, that
Reform has full legitimacy in the eyes of the Orthodox, as long as it tolerates
the existence of Orthodoxy at its side and accords it proper consideration. In
other vords, the Orthodox conscience can accept the existence, before the
One sole God and His one sole Iav, of tvo kinds of |udaism, each co-equal
vith the otherthe one vith the Torah and the other against the Torah, all
depending on the vievs of the individual. In your viev, even the most ex-
treme Reform community is kashered if its members maintain kosher
institutions.
In the eyes of |evish orthodoxy, to just vhat kind of Reformvould
your statementsurely vithout clear thought and intention on your part
accord legitimacy If you consult our legal codes to learn the attitude vhich
ve must take tovard Reform, under vhat name or category vould you clas-
sify the religious system to vhich the Reform community in this city sub-
scribes Hov vould you classify a community that, as a matter of principle,
has stricken from its prayer book every reference to the person of the mes-
siah, to the ingathering of exiles, to the restoration of the temple, to the
temples sacricial service past and future, and that has eliminated the land
and the covenant and the kingdom of the House of David from the grace
after meals What name vould you give to a system vhose pulpit and school
preach and teach that the mit::ot of the Torah and its lavs are outdated,
and that applies this principle also in the shaping of its other institutions
What vould you call the belief system vhich this community professes in its
vorship, its pulpit, its school, and its other institutions Into vhat category
vould our codes of lav class such a system Can it be anything else but the
most blatant heresy |miuut :eapilorsut| (lor reasons vhich, vith your per-
mission, I vill explain further on, I am deliberately using terms that describe
the system rather than individuals that adhere to it.)
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;: Controversy and Dissent
Nov, our codes of lavcommand us to keep a much greater distance
from heresy than even from idolatry. We are commanded to stay much fur-
ther avay from contact vith |evish elements that are opposed in principle
to |evish lav and truth than from dealings vith idolatrous paganism. lor
only in the case of the former are ve told keep yourself far avay from her
(Prov. :) and all vho go to her cannot return (Prov. :,; BT Avodah
Zarah ;a). I need only mention Rabbi Tarphons maxim that, in order to
save your life, you may take shelter in a house of idolatry but not in a house
of heretics |miuiu|. Lven if I am pursued by a killer or chased by a snake, I
vill enter a house of idolatry, but vill not enter the houses of these |here-
tics|. lor the latter knov, and |yet| deny, vhile the former do not knov,
and |hence| deny (BT Shabbat oa). And Rabbi Ishmael let his nephev die
rather than allov him to be treated by a heretic |miu|, although he vould
have considered it permissible for him to seek treatment from an idolator
(BT Avodah Zarah :;b). The explanation for this ruling is that heresy is
dierent because it entices and might lead one to follov itcontact vith
|evs vho are opposed in principle to |evish lav and truth is far more likely
to lead a |ev astray than dealing vith outright idolatry. Consequently, it is
clear beyond question that anything forbidden to us vith regard to idolatry
is forbidden even more emphatically vith regard to heresy.
One must be careful to avoid creating even the appearance of as-
sociation vith idolatry, or the impression that one approves of it or speaks
of it in terms of praise. One vho accepts an invitation to a feast arranged
by an idolater transgresses the commandment \ou must not make a cove-
nant, etc., and you vill eat of their sacrices (Lxod. ), even if he eats
only kosher food there and is served by members of his ovn household (BT
Avodah Zarah :a). Lven if my life is in danger, I am forbidden to say that
I am an idolater; the most that I can do in such a situation is to create an
impression, vithout actually saying so, that I am an idolater (8hulhau Arulh,
\oreh Deah ;:).
Knoving all this, could an Orthodox |ev deliberately permit him-
self to be numbered as a member of a community of heresy, from vhich ve
are commanded to keep even further avay than from dealings vith idola-
try Could there be a vorse desecration of Gods Name, a more agrant
empovering of heretics than this . . .
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Problem of Authority ;
To this day it is considered obligatory to separate ourselves com-
pletely from the Karaites, this despite the fact that the defection of the Kara-
ites from legitimate |udaism vas by far not as great or as drastic as the con-
trast betveen modern Reform and Torah-true |udaism. After all, the Karaites
denied only the Oral Iav. They loyally and steadfastly armed the eternal
binding force of the Divine lavs and did not reject any of the other prin-
ciples of faith. Todays Reform, on the other hand, categorically denies the
eternal binding force of the Divine lavs. In its liturgy, the Reform move-
ment has rejected truths that are proclaimed by the Word of God in scripture
and are part and parcel of the basic verities and principles of |udaism.
It is my most profound and earnest belief that only a separation
such as had been made possible, thank God, by the Iav of |uly ::, :;o, can
bring healing also in our day for the diseased conditions that have prevailed
among German |evry for more than half a century. Anyone vho is sincere
in his adherence to religious truth, to vhom anything religious is not just
a jumble of meaningless forms that can be muddled at vill, must give his
support to such a separation. One vho vould attempt to hold up secession
is delaying our spiritual redemption.
Connentary. Authority, Tradition, and Community
It is notevorthy that David Linhorn, premier architect of Reform
|udaism, relies so heavily upon varrants dravn from the classical rabbinic
texts in constructing his argument. His stance reects a nonsectarian reform,
anxious to arm its traditional ties. Linhorn insists that he is a faithful Isra-
elite vho concedes authority to the Talmud, and despite the claims of
Orthodox spokesmen like Hirsch, he specically distinguishes his approach
from that of the Karaites. Indeed, he carefully employs a distinction betveen
the Talmud |ev and the Karaite to advance the cause of the Reform rab-
binate and its program of innovation. After all, the Talmud |ev rejects the
doctrine of sola s.riptura, the Bible alone is not authoritative. Instead, the rab-
bis, embedded in the tradition, give free reign to their legal imagination.
Linhorn cites the Mishnah Commentary of Maimonides and the tallauot of
Rabbenu Gershom, as vell as the classic talmudic passages concerning Aka-
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; Controversy and Dissent
viah ben Mehallalel and the argument about the rebellious elder, to arm
the right of each rabbi to interpret biblical texts and rabbinic teachings ac-
cording to his ovn conscience.
But Linhorn also maintains that there is a limit to the practical ap-
plication of such freedom. This theoretical stance is vital to the argument
he is constructing, for it provides him vith a poverful rhetorical veapon
against his Orthodox opponents. Thus Linhorn concedes that rabbinic lavs
and interpretations cannot be challenged by later generations of rabbis
vhenever () they are universally recognized as genuine and undoubted,
(:) all authorities agree that they are legally binding (not mere opinions),
and () changed conditions of time and place do not provide sucient
grounds to legitimate dissent or change. When a statute or ruling fullls all
these conditions, it is indeed eternal, and alternate rulings cannot be issued.
Hovever, given the argument Linhorn has constructed, it is di-
cult to imagine such an absolute ruling and therefore virtually impossible to
conceive of an infringement of authority in the halakhic system. If it is true
that |udaism possesses no binding dogma, vhat grounds could be oered for
asserting that conditions of time and place had not changed suciently
to allov for change and dissent Any such judgment vould be tenuous at
best. Iittle vonder, then, that Linhorn holds rabbinic tradition to permit
the development of |udaism in accordance vith the needs of the time.
The burden of proof in every instance falls upon those vho vould
forbid rather than those vho vould promote change. In the nal analysis,
everything depends upon the judgment of the rabbinic court (Bet Yosej,
\oreh Deah :o:). The only genuine question remainingone left unan-
svered by Linhornis hov a rule of recognition might be established that
vould allov the community to determine vho the God-intoxicated . . .
experts are in vhom legitimate authority is vested. That aside, tradition has
been interpreted to support the cause of reform. Linhorn subtly ensconces
the case for reform vithin a heritage of |evish intertextuality, and his argu-
ment is of enduring import precisely because it testies to a reform that sees
itself as part of the historic community of rabbinic |udaism.
Nevertheless, Linhorns case is not built upon the texts of rabbinic
|udaism alone. Throughout his essay, he speaks of the natural development
that marks |udaism, and he champions the discipline of academic research,
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Problem of Authority ;
1isseus.hajt oes juoeutums, as the means vhereby the divine origin of |evish
lavs and teachings can be determined. In so doing, Linhorn indicates that his
arguments derive from a nineteenth-century German vorldvievas much as
they do from traditional rabbinic values. As a Reform rabbi vriting in :,
Linhorn may vell have taken the only path open to himdraving upon
both traditional varrants and modern approachesto support his position.
In the nal analysis, hovever, it is clear that he has transformed the argu-
ment, and moved it from the self-referential realm of rabbinic prooftexts to
the rather dierent vorld of academic research. The cause of reform ulti-
mately depends upon the fruits of modern scholarship. Rabbinic prooftexts
alone are not decisive and are, at best, of secondary importance.
So the Linhorn essay foreshadovs a Reform |udaism that vould
soon depart from the classical rabbinic canon. History, not legal precedent,
vill soon sanction the actions of reform. Linhorn constructs a novel jus-
tication for rabbinic authority the academic study of |evish history and
texts. Contemporary liberal |evs, in analyzing the approach that Linhorn
has adopted, must argue that such an approach is |evishly legitimate on the
grounds that the nevmethodologyfully informed as it is by historical con-
sciousnessconforms to vhat ve knov to be true about the developmental
nature of religious realities, vhich are alvays embedded in particular times
and places.
Hirsch clearly understood this shift in the grounds of legitimation,
and he condemned the nev foundation that men such as Linhorn had con-
structed for |evish lav. Such an approach, to the degree that it purported
to be based upon rabbinic prooftexts, vas, in Hirschs viev, completely dis-
ingenuous. History vas decisive in the stance the reformers adopted, and
the rabbinic prooftexts they adduced only disguised and obscured their true
intent. So furious vas Hirsch at their departure from vhat he sav as the re-
ceived basis for |evish lav and authority that he demanded the creation of
a separate institutional structure, apart from the traditional lahal, to house
the orthodox community. Analyzing Hirschs position, one hears echoes of
the famous vords of Saadiah Gaon almost a millennium earlier, vhen, in
his Bool oj Beliejs auo Cpiuious, he asserted Our nation is a nation only by
virtue of its teachings |torot| (;).
But the specic viev of community that informs Hirsch in this
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;o Controversy and Dissent
instance derives also from the transformations that the modern vorld had
vrought in the ideal of community. As lerdinand Tonnies argued, the
history of the West has been marked by a move from the face-to-face rela-
tionships of the premodern Cemeius.hajt to the rationally ordered and bu-
reaucratically dominated patterns of an impersonal Cesells.hajt (Tonnies, Iuu
oameutal Cou.epts iu 8o.iology, ,o). In this transition, traditional framevorks
for community have been challenged and a distinction betveen public and
private spheres has arisen. Religion has been consigned to the private realm
and a society created in vhich the institutional structures that formerly sup-
ported and sustained religious organizations have shifted from the commu-
nity as a vhole to much smaller groups of committed individuals. Individu-
als are nov able to choose freely among collectivities that promote specic
ideologies and practices, and these collectivities then mediate betveen their
members and the pluralistic vorld outside.
This insight is crucial for an appreciation of the argument put for-
vard by Hirsch. The traditional lahal and its institutions vere signicantly
altered as the |evs moved from a corporate political structure into the con-
gregational patterns of association that mark religious life in the modern
West. Hov to create a nev structure appropriate to the |evish communitys
institutional needsthis vas the challenge confronting all segments of the
German-|evish religious vorld in the nineteenth century.
lor Hirsch and the proponents of separatist Orthodoxy, the tra-
ditional notion that common descent provided a sucient ground for the
maintenance of a unied |evish community no longer obtained. Instead,
Hirsch vieved |udaism in terms that vere almost exclusively based on reli-
gious dogma. It is therefore hardly surprising that he and his supporters
put forth an ideal of community in keeping vith a modern congregational
model of committed individuals set apart from the |evish polity as a vhole.
To support or even to be members of a community that vould countenance
the possibility of heretical reform vas in his viev halakhically forbidden.
And so Hirsch ruled that secession from the Liuheitsgemeiuoe (united com-
munity) vas obligatory in any place vhere it vas possible. Othervise, ortho-
dox |evs vould be guilty of transgressing the prohibition against aiding and
abetting heresy.
Many orthodox |evs dissented from this posture in Hirschs ovn
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Problem of Authority ;;
day, and many |evs, orthodox and non-orthodox alike, vould disagree vith
Hirsch today. They do not believe that participation in the general |evish
community logically entails an armation of the religious vievs upheld by
all community-supported institutions. There are strong grounds for such a
viev. lirst, one can argue that membership in the general community does
not derive in any vay from voluntary consent. Rather, it springs from the
idea that all |evs are members of one body. In instances vhere the unied
community is villing to support a variety of institutions, and to allov them
to be supervised by members of specic denominations, the concept of llal
yisrael (the community of Israel) allovs for, even requires, a unied com-
munity. In the nineteenth century, no less a personage than Seligmann Baer
Bamberger adopted this position, and others such as Abraham Geiger con-
curred. It remains a viable position today.
Second, the classical rabbinic notion of are:ut (mutual responsi-
bility) also dictates that a |ev not secede from the general community even
vhen institutions holding vievs deemed hostile or incorrect are supported
by communal funds. This principle, based on BT Sanhedrin :;b, holds that
lol yisrael are:iu :eh |a:eh (all Israelites are responsible for one another). It de-
mands that |evs follovthe example of the talmudic sage Shimon ben Shatah,
vho refused to secede from a Sanhedrin dominated by Sadducees, despite
the danger that their teachings might lead fellov |evs astray (Megillat !aauit,
chap. o-Tevet). Instead, |evs must participate in the life of the general com-
munity to bring |evs vith vhom they disagree closer to the Torah as they
understand it.
linally, if |evs are tied to the community by poverful bonds of
kinship and responsibility, hovcan secession be required vhenever the com-
munity appropriates funds to an institution that a particular member nds
objectionable It is dicult to imagine that all the individual members of any
communityeven a religious communityvould approve every budgetary
appropriation. Not even Hirsch suggested that orthodox |evs should refuse
to pay taxes to the German government on the grounds that tax money vas
employed to nance the teaching of biblical criticism in German universi-
ties. Participation in a polity need not entail approval of all that the polity
does, and a commitment to community, for all the reasons cited above, might
vell be accorded primacy over the discomfort that individuals feel vith spe-
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;: Controversy and Dissent
cic issues. At the very least, the elasticity of rabbinic tradition permits a
greater degree of religious latitude than Hirsch vould allov in matters of
faith and dogma. And the polyvocal nature of |evish lav, as vell as the sense
of peoplehood that has alvays marked |udaism, are suciently central to
support the viev that secession from the community is not required under
the conditions that Hirsch describes.
Da:io Llleusou
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r i c nr The Good Men of the Tovn
Introduction
lalnudic Foundations
!axatiou jor Iu|li. 1orls
. Mishnah Bava Batra
Laus oj the !ouu
:. Tosefta Bava Metzia, :, o;, ::, :;, :,, ;
Cuilos, !ouuspeople, auo the Iromiueut Iersou
. BT Bava Batra ,a
8elliug the 8yuagogue
. Mishnah Megillah ; BT Megillah :oab; |T Megillah ;a
)ustifying the Kahal s Authority: Larly Ashkenaz
Commuual Iouer to Lxpropriate
. Gershom b. |udah Meor ha-Golah, Respousa oj 2arjat auo
Luthir ,;
Commuual Authority
o. \ehudah b. Meir Hakohen and Lliezer b. \ittzhak Hakohen,
Kol|o :
C|eoieu.e to the Kahal Is a Mit::ah
;. Rashi, Respousa :;
Restricting the Kahal s Authority: Larly Spain
De.isious Are Maoe |y the Court
:. Anonymous Gaonite Responsum, Respousa Ceoui.a (Assaf ) :o
;,
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:o The Good Men of the Tovn
Restri.tiug Authority to Auuul Iroperty Rights
,. Meir Halevi Abulaa (Ramah), Respousa ::
Developed Doctrines of the Kahal
Agaiust the !yrauuy oj the Majority
o. Meir b. Baruch of Rothenburg (Maharam), Respousa (Prague) ,o:
Legislati:e Authority auo Autouomy
. Solomon b. Abraham Adret (Rashba), Respousa ,,
Luhau.iug Commuual Iouers
:. Isaac b. Sheshet Perfet (Rivash), Respousa ,,
A Coutesteo Commuual Lua.tmeut. !uo !heories oj Couseut
. Llijah Mizrahi (Reem), Respousa ;
Commentary. Noam |. Zohar, Lmerging Democratic Ideas
lhe Kahal and the Rabbi
!he Iromiueut Halham
. Maimonides, MT Iavs of Sales ,
!he 8.ope oj the Iromiueut Iersous Authority
. Shimon b. Tzemah Duran, !ash|et:
!he Ra||i as a Commuual Lmployee
o. Menachem Meiri, Bet haBehirah, Bava Batra :b
Commentary. Amy Gutmann, Who Should Rule
Dispute o:er 8eparatiou oj Ci:il auo Religious Lau
;. Ordinances of the Iivorno Community vith Ietters and a
Critical Circular by |acob Sasportas
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Introduction :
Iutroou.tiou
Novhere in the Bible, and only marginally in the Talmud (in the
brief passages vith vhich ve open this chapter), are any claims made on
behalf of vhat are today called lay leaders, ordinary members of the com-
munity selected by their fellov members to take charge of communal aairs.
The biblical elders play a role something like this, but the exact contours of
that role are never formulated, never even discussed, in the Bible itself. We
dont knov hov the elders vere chosen or vhat exactly they did or vhat
claims they made. They are not among the political leaders recognized in
any of the biblical or talmudic constitutional textsvhere leadership ap-
parently requires a religious justication. So kings are selected by God and
designated by prophets, or they are the male heirs of people so selected and
designated. The priesthood is hereditary vithin a divinely chosen family.
Prophets respond to a divine call. The appointment of judges and magistrates
is commanded by God. Sages and rabbis devote themselves to the study of
sacred texts and derive their authority from their knovledge of Gods vord.
What role can there be for lay leaders in a religious community like Israel
And yet the medieval lahal vas governed primarily by a leadership of select-
men (|erurim), the good men of the tovn, vhose authority came from
belov, not from above; from the community, not from God.
We vill describe the lahal in Volume III as the |evish polis and
investigate its governmental structure and everyday activities. Here ve are
concerned only vith the authority and legitimacy of its leaders. Their role
is not entirely vithout precedent ve might imagine them as the heirs of
Israels kings, considered nov as the secular rulers requested in Samuel :
(;, ) to meet the biblical equivalent of the needs of the hour. Or per-
haps they are the heirs of the counselors vho advised the king as to vhat the
needs of the hour verealthough counselors have no clear representative
role in the biblical texts. It is secular visdom that makes good counselex-
perience rather than revelation or the study of revealed texts. Or perhaps the
lay leaders of the lahal are the heirs of the exilarch, vho ruled the Babylo-
nian community in all secular matters and mediated its relations vith foreign
rulers. Only Solomon Adret (Rashba), in the texts that follov, actually in-
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:: The Good Men of the Tovn
vokes precedents of this sort, but his is one of the most important defenses
of the good men.
Such people appear in every political culture; they sometimes co-
operate vith and sometimes compete vith the religious authoritiesand
sometimes replace them entirely. Among the |evs, or at least in |evish litera-
ture, the competition is muted, for most of the texts come from rabbis. The
sole exception in this chapter are the Iivorno ordinances, vhich, not surpris-
ingly, take a radically expansive vievof lay authority. The rest of the material
reects the rabbis acceptance and legitimation of the rule of the good men,
but also their vorries about it, protests against it, and eorts to impose limits
upon itnot only for the sake of the rabbis ovn authority but also for the
sake of religious lav as they understand it and in defense of their (dier-
ent) conceptions of justice. So they sometimes appear in these texts as the
guardians of individual rights against the threat of majority tyrannysee,
for example, the responsa of Meir Abulaa and Meir of Rothenburg belov.
And, sometimes, vhen the leaders of the lahal vere vealthy and poverful
men, rabbinic opposition took on a populist tone, as in |acob Sasportass let-
ter protesting the Iivorno ordinances. (We take up the struggles of |evish
oligarchs and plebeians in ;::.)
What vas the basis of lay legitimacy The texts that ve have are
mostly at statements that individuals must obey this ruling or pay that levy
even though its source is not the |et oiu (court) but only their neighbors in
the courtyard, the members of their guild, or the inhabitants of their tovn.
The authority of these people and the leaders they choose stands alongside
that of the rabbis, vith vhom they share political and legal space, and it
overrides the claims of the individual, at least for some purposes. What ve
nd in the responsa literature is a sustained eort to x the boundaries of
this authority and dene its purposes.
But vhere does the authority itself come from Consent theory
should provide the ansver to this question, and often does, but it is not sys-
tematically elaborated. There is no clear doctrine, no theory of lay legitimacy
like that suggested, for example, by the much repeated (non-|evish) medi-
eval maximWhat touches all should be decided by all. This suggests at least
a proto-democratic politics vhich gives to the people (or their representa-
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Introduction :
tives) authority to decide all matters that have a palpable impact on their
liveschiey matters of taxation and velfare. No medieval vriter vould
have thought that the maxim extended to the high politics of var and peace.
Some rabbis vrite as if they accepted a maxim like this onevith
a similar exception, not for high politics, but for religion the lavs of Sab-
bath observance, for example, touch every |ev but are not available for lay
determination. In fact the unarticulated rabbinic doctrine seems somevhat
dierent. It hangs on the idea of vorldly necessity, as in the talmudic ex-
ample of the tovns gates and locks. The talmudic principle seems to be that
vhat everyone needs, everyone must pay forand those vho pay are likely
to decide, and are apparently entitled to decide, hov the needs should be
met (see especially :).
Still, it is not easy to say hovthis entitlement vas understood. It ap-
pears that the members, or the leading members, of the lahal took on certain
functions and provided together for their common needs, and local rabbinic
authorities accepted their de facto authority. It is unlikely that the rabbis
vithdrev in principle as vell as in practice, though they did recognize that
on these sorts of issues, relating rst of all to physical security, lavand order,
and the punishment of criminals, Torah lav vas not a useful political model.
It vas ideal lav, and it vas meant for ideal conditions; it tended to ignore
the actual circumstances of everyday life. The Adret responsum is clearest on
this point, vhich ve have already seen argued by a later representative of the
Barcelona school, a student of one of Adrets students, Nissim Gerondi (;,
o). If the lahal folloved Torah lav, it vould march to ruin. But the rabbis,
granting this, might still provide political guidance, draving on other parts
of the tradition or on their ovn visdomand sometimes, again, they do so.
Perhaps the best account of their position is that learning defers to everyday
experience and actual lay engagement, though vithout surrendering its ovn
claims. So the |erurim are entrusted by the citizens to do vhatever is nec-
essary, and the rabbinic authorities conrm the trust, subject to limits that
they set or try to set case by case.
These limits are much debated. Most often, they are given a per-
sonal form if there is an aoam hashu: (an important or prominent person,
vhich usually means a scholar or leading rabbi) in the tovn, then the lay
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: The Good Men of the Tovn
leaders can only act subject to his agreement. This is the argument of BT
Bava Batra ,a, repeated again and again in the responsa and commentaries (by
Maimonides, Mizrahi, and Sasportas in this chapter) but by no means uni-
versally accepted. It vas explicitly rejected, for example, by Isaac bar Sheshet
Perfet (Rivash), vriting in fourteenth-century Spain, vho limits the talmu-
dic precedent to guilds and other secondary associations; the community as
a vhole has an unquestioned right, he insists, to act on its ovn behalfas
if it vere sovereign for certain common purposes.
The lahal might also be constrained institutionally, by a court of
sages. In fact, the argument of the Babylonian Gaon, as transmitted to the
early Luropean and North African communities, vas that only a duly con-
stituted religious court (|et oiu), operating in accordance vith its classic pro-
cedures, could exercise authority over other |evs. In Babylonia, apparently,
local communities of artisans and merchants made no more extensive claims
to rule themselves than those reported in our talmudic texts; the only rec-
ognized lay leader vas the exilarch. But in Lurope, local communities had
seized the initiative and vere already ruling themselves, and soon important
Luropean sages recognized the lahal itself as a kind of court, vith authority
equal to, and even local precedence over, any out-of-tovn |et oiu, at least
for certain common purposes.
linally, the lahal might be constrained in policy terms (this is im-
plied by the needs of the hour, since the phrase is meant to be restrictive
it doesnt in principle extend, though it vas often in practice extended, to
the needs of every hour). The standard distinction, expounded at length in
the next chapter, is betveen mamoua and isura, vhich ve can briey dene,
pending the discussion there, as civil and economic matters, on the one hand,
and religious matters, on the other. But this leaves the criminal lavvhich
is vhere the doctrinal argument for lay leadership probably got started
hanging in the air, vithout a clear category of its ovn. Mamoua and isura
overlap in all sorts of vays questions raised under one heading are regularly
ansvered in vays that implicate the other. But, in theory at least, the lahal s
leaders deal independently only vith mamoua. Unlike the Congregation of
Israel, the lahal s government exists for practical and material purposes and is
limited by those purposes (but vho dravs the line and prevents trespasses).
In time, these purposes vere extended; the lahal, after all, vas a
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Introduction :
political success, an eective adaptation to the conditions of the exile, and
success commonly brings expansion. The good men grev more self-con-
dent and more ambitious, and local rabbis, or some of them, accepted their
vider prerogatives. In the responsa of Perfet, for example, the authority
granted the lahal extends even to regulations that impinge on marriage prac-
tices, vhich are standardly isuraalthough the author is obviously made ner-
vous by his ovn boldness and retreats a bit at the end. As ve vill see, this
vas one of the most contested areas of the lav, particularly vith reference
to the authority of gentile rulers (see ;,). It vasnt much easier, sometimes
it vas harder, for rabbis to make concessions to |evish rulers.
Clearly, there vere conicts in the medieval communities (and ear-
lier, and later on, too) betveen secular and religious, lay and rabbinic au-
thority. Clearly, also, the rabbis themselves vere on both sides of the conict.
This tension in rabbinic argument, vell represented in the texts in this chap-
ter, reects the realities of |evish politicsvhich are not in this case very
dierent from the realities of non-|evish politics. Ocially, as it vere, the
sages in Bava Batra (or some of them) claim that the good men rule only
vhen there is no prominent person or resident sage. In fact, most often
sages rule only vhen there is no strongly established lay authority. The case
is similar to that for medieval Catholicism, vhere pope and priests could
not vithstand poverful and determined kings. Where the lahal is strong,
it chooses the sages to vhom it regularly turns for advice (much as Israelite
kings choose their counselors and even their prophets). This is the thrust of
Meiris commentary on Bava Batra. The aoam hashu: has almost become, in
passages like this one, the tovn rabbiintervieved and hired by a commit-
tee of laymen. So long as political argument among the |evs took the formof
legal interpretation, rabbis retained signicant authority, vhatever institu-
tional arrangements prevailed. Some of them, hovever, used this authority
to defend a version of lay self-government, vhich could as yet have no lay
defenders.
It is only at the end of the nineteenth and the beginning of the
tventieth centuries that the good men found a defender vho vas one
of themselves. Simon Dubnov, vho appears in Volume III, is the secular
theorist of communal autonomy and lay leadership. His ovn historical focus
is on the federated lehillot of Poland and Iithuania in early modern times
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:o The Good Men of the Tovn
(;o), vhere elected laymen ruledvith the same partial exception
for prominent persons that is argued for in the medieval texts. Only great
authorities, vrites Dubnov, far-famed |for| talmudic erudition, vere able
to assert their inuence in all departments of communal life. But Dubnovs
theory evoked a vorld that no longer existed, for in the aftermath of eman-
cipation, the communal structures of Luropean |evry collapsed, leaving only
voluntary associations that vere run but no longer ruled by laymen. It vas
Dubnovs political rivals, the Zionists, vho claimed, rightly it appears, that
the rule of good men (and vomen) nov required a |evish state. Their
arguments about authority and legitimacy appear in ;o.
!almuoi. Iouuoatious
!axatiou jor Iu|li. 1orls
. Mishnah Bava Batra
!he jollouiug tuo sele.tious oo.umeut the .oustru.tiou oj the pu|li. oomaiu auo the
rst steps touaro a .ooe oj pu|li. lau. Iu the Mishuah, the pu|li.s authority o:er iuoi
:iouals is restri.teo to pu|li. uorls relateo to se.urity. !he .olle.ti:e that uielos this
authority (they .ompel him), .au iu.luoe uot ouly the touuspeople |ut also the
group oj ueigh|ors uho li:e iu se:eral |uiloiugs opeuiug outo a shareo .ourtyaro.
They compel him |to share| in |the cost of | building an antechamber and
door for the courtyard. Rabban Shimon b. Gamaliel says Not every court-
yard requires an antechamber. They compel him |to share| in |the cost of |
building a vall and gates for the tovn and |buying| a bolt for the gates. Rab-
ban Shimon b. Gamaliel says Not every tovn requires a vall. Hov long
shall one reside in a tovn to be considered a tovnsman Tvelve months.
If, hovever, one acquires a residence there, one is considered a tovnsman
immediately.
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loundations :;
Laus oj the !ouu
z. Tosefta Bava Metzia, :, o;, ::, :;, :,, ;
!he !osejta, jor the most part, .losely jollous the .lauses oj the Mishuah, sometimes,
houe:er, its ois.ussious oe:elop iuoepeuoeutly. Iu these passages jrom the !osejta the
Mishuahs spe.i. .ou.eru uith se.urity is set iu a mu.h |roaoer jrameuorl that aims to
oeue the relatiou |etueeu the pu|li. auo the pri:ate oomaiusheu.e the rejereu.es to
the .ouoitious atta.heo to joshuas apportiouiug oj the Lauo oj Israel to the Israelite
tri|es auo .laus. !he .ouoitious (uhi.h ha:e uo |i|li.al jouuoatiou) are euumerateo iu
B! Ba:a Kama :o|, they are preseuteo as the terms oj the origiual oi:isiou oj the lauo
auo heu.e as uorms auo eutitlemeuts jor all juture ouuers oj property.
:. A person may take manure out and pile it in the public domain near his
door to use as fertilizer. He may not, hovever, store it |there|. If another
comes along and is harmed, he is liable. Rabbi \ehudah says In the season of
taking out manure, a person may take his manure out and pile it in the pub-
lic domain near his door, to be trodden upon by human and animal feet for
thirty daysfor on that condition did |oshua apportion the Iand to Israel.
o. Residents of an alley can compel one another not to locate
among them a tailor, a tanner, or the practitioner of any particular trade.
They cannot |hovever| compel a neighbor |vho is himself a tradesman|.
Rabban Shimon b. Gamaliel says They can compel a neighbor too.
;. One vho ovns a house in another courtyard can be bound by
the residents of that courtyard to participate vith them in making a door,
a lock, and a key for the courtyard; regarding all other things, they cannot
compel him. If he resides vith them in the courtyard, they can bind him
to everything. One vho has a house in another tovn can be bound by the
tovnspeople to participate vith them in digging cisterns, hollovs, and cav-
erns
1
and in xing the |ritual| baths and the aqueduct. Regarding all other
things, they cannot compel him. If he resides vith them in the tovn, they
can bind him to everything.
. All these are part of the vater supply system.
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:: The Good Men of the Tovn
:. Tovnspeople can compel each other to build a synagogue and to
purchase scrolls of the Torah and the prophets for themselves. Tovnspeople
are authorized to stipulate regarding prices, measures, and the pay of laborers.
Tovnspeople are authorized to pronounce, Anyone seen at Xs shall pay thus
and so;
2
Anyone seen |dealing vith| the authorities |mallhut| shall pay thus
and so; Anyone vhose cov grazes amid the seedlings shall pay thus and
so.
3
And they are authorized to enforce their decree.
:. The vool dealers and dyers are authorized to pronounce, Any
merchandise that comes into tovnve shall all be partners in |handling| it.
:. The bakers are authorized to make an arrangement among them-
selves. The ass drivers are authorized to pronounce, Anyone vhose ass dies,
ve shall furnish him vith another ass. If it died through negligence, they
are not obligated to furnish him vith |another| ass; if not through negli-
gence, they must furnish it. If he said, Give me |the money| and I vill buy
it for myself, they |need| not accept this; rather, they buy it and give it to
him.
:;. One vho vas a bath attendant, a barber, or a baker serving the
public vho, come the holiday, vishes to retire to his home, there being none
other but him |to provide the service|, they can prevent him, unless he fur-
nishes a replacement. If he had stipulated vith them at court, or if they
mistreated him, he is free.
:,. If one digs a cistern for the public, one may drav |vater| to
drink or drav |vater| to take home. But he should not drav |vater| to pro-
vide or to sell in the marketplace.
. If one makes caverns
4
for the public, one may vash his face,
hands, and feet in them. If his hands or feet are soiled vith clay or excrement,
it is forbidden. In a cistern or hollov, it is in any case forbidden.
5
:. One vho enters a bathhouse may heat the cold vater and cool
the hot vater. He may vash his hair vith natron or urine, even though he
:. S. Iieberman, in his commentary to the Tosefta., suggests that X might have been a col-
laborator vith the Roman government.
. In all these clauses, ve have folloved the Lrfurt MS; the Vienna MS, generally preferred by
Iieberman, oers more complex and somevhat obscure possibilities.
. The cavern here is a covered pool that collects the vaters of a small spring.
. Because these have no source of running vater.
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loundations :,
creates a nuisance to those vho come after himfor on that condition did
|oshua apportion the Iand to Israel.
. |In the case of | a spring belonging to tovnspeople |If a choice
must be made in a case of | themselves versus others, they take precedence
over others. Others versus their |i.e., the tovnspeoples| livestock, others
lives take precedence over their livestock. Rabbi \ose says Their livestock
takes precedence over others lives.
. Their livestock versus others livestock, their livestock takes
precedence over others livestock.
. Others versus their |i.e., the tovnspeoples| laundry, others lives
take precedence over their vash. Rabbi \ose says Their laundry takes prece-
dence over others lives.
o. Their laundry versus others laundry, their laundry takes prece-
dence over others laundry.
;. Others livestock versus their laundry, others livestock takes
precedence over their laundry. Their irrigation versus others livestock, their
irrigation takes precedence over others livestock. And they all come to a
nal reckoning.
Cuilos, !ouuspeople, auo the Iromiueut Iersou
. BT Bava Batra ,a
Dis.ussiug the :alioity oj au agreemeut amoug |ut.hers, the !almuo here .ites the priu
.iple that they may eujor.e their oe.ree, uhi.h iu the !osejta a|o:e (.lause .,) rejers
to touuspeople.
Certain butchers made a mutual agreement that anyone vho slaughters on
anothers day vill have his hide |i.e., that of the slaughtered animal| ripped.
One of them vent ahead and slaughtered on anothers day, and they ripped
his hide. The case came before Rava, and he ordered them to repay him.
Against this, Rav \emar b. Shlamia cited And they may enforce
their decree. Rava oered no reply. Said Rav Papa He appropriately oered
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,o The Good Men of the Tovn
no reply. That applies only vhere there is no prominent person |aoam hashu:|;
vhere there is a prominent person, they cannot unilaterally make decrees.
8elliug the 8yuagogue
. Mishnah Megillah ; BT Megillah :oab; |T Megillah ;a
!hese sele.tious iutroou.e the gooo meu oj the touu as .ustooiaus oj pu|li. assets.
!he mishuah oeues limitatious upou the sale oj pu|li.ly ouueo sa.reo o|je.ts, jrom
the touu pla:a (sometimes useo jor pu|li. prayers) to the !orah s.roll iu the syuagogue.
!he talmuoi. ois.ussious theu aooress the issue oj the ageuts authori:eo to a.t ou the
pu|li.s |ehalj.
Mishnah Megillah
The tovnspeople vho sold the tovn plaza may use the funds to buy
a synagogue. |If they sold| a synagogue, they may buy an ark; if an ark, vrap-
pings |for holy scrolls|; if vrappings, they may buy books |of Scripture|; if
books, they may buy a Torah scroll. But if they sold a Torah scroll, they may
not buy books; if books, they may not buy vrappings; if vrappings, they
may not buy an ark; if an ark, they may not buy a synagogue; if a synagogue,
they may not buy a plaza. The same applies even to a surplus.
A publicly ovned |sacred| object may not be sold into private ovn-
ership, since its sanctity is thereby diminished; thus holds Rabbi \ehudah.
They said to him If so, it vould also be forbidden to sell from a large tovn
to a small one'
BT Megillah :oab
Rabbi Shmuel b. Nahmani said, citing Rabbi \onatan This applies
only to a synagogue in a small tovn. Asynagogue in a city, hovever, tovhich
|people| come from all over, may not be sold, since it is public property.
Said Rav Ashi |Regarding| the synagogue of Mata Mahsia, even
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|ustications ,
though |people| come to it from all over, since they come under my auspices,
if I vish, I may sell it. . . .
Rava said |The mishnahs prohibition| applies only vhen the sale
vas not executed by the seven good men of the tovn in the presence of the
tovnspeople. If, hovever, the sale vas |so| executed . . . the funds may be
used even to drink beer.
|T Megillah ;a
Three of the synagogue |members| are equal to the |entire| syna-
gogue; seven of the tovnspeople are equal to the |entire| tovn.
What is the case If they accepted |these three or seven| over them-
selveseven one |should suce|' If they did not accept |them| upon them-
selveseven many |should not suce|'
Rather, the case is one in vhich |the scope of their authority| vas
not specied.
6
justijyiug the Kahals Authority. Larly Ashleua:
Commuual Iouer to Lxpropriate
. Gershom b. |udah Meor ha-Golah, Respousa oj 2arjat auo Luthir ,;
Respousa oj 2arjat auo Luthir, edited by |. Muller (Vienna, ::; reprinted, |erusalem, ,o;;
Hebrev), pp. ; emended at points according to the version in Mordechai, Bava Met-
zia :;.
!his respousum relates to a .ase oj a jouuoereo ship .arryiug the property oj jeuish
mer.hauts. 8ome oj the property uas re.o:ereo |y lo.al geutiles, uho solo it to other
jeus. !he respousum aooresses a .laim |y Reu:eu, oue oj the mer.hauts, agaiust 8hi
mou, uho hao .ome iuto possessiou oj some oj the lost property. A..oroiug to talmuoi.
lau, 8himou uas uithiu his legal rights. Cershom upholos the authority oj a .ommuual
oe.ree to the .outrary, exteuoiug to the kahal the ra||iui. .ourts pouer to expropriate.
o. I.e., a body of three or seven individuals vas appointed for overseeing collective aairs, but
the terms of appointment did not specically authorize the sale of such public assets as holy
objects.
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,: The Good Men of the Tovn
The communities gathered there strove to recover the losses of their breth-
ren. They decreed by vay of oath and vov that anyone vho comes to pos-
sess anything lost from that ship must return it to its ovnerfolloving the
custom of most |evish communities regarding anyone vho suers a loss,
vhether by theft or othervise. Namely, a |legal| remedy
7
is provided for
him, one ordaining that anyone vho comes to possess a particular lost object
must return it to its ovner. |Nov, vhat is the lav| in the case of Shimon,
vho refuses to return it to Reuven, claiming that he has obtained it legally,
since it is permissible |for the nder of | an article lost through the ooding
of the river |to keep the article| (BT Bava Metzia ::b)
Ansver . . . Lven if Reuven despaired |of nding the lost object|,
nevertheless, since the lahal present there decreed that anyone vho obtained
anything lost from that ship must return it to the ovner, Shimon must re-
turn the money to Reuven, even though according to the Torah he legally
obtained it, since the court has pover to expropriate (BT Gittin ob |;o,
|). . . . One might reply that the statement The court has pover to expro-
priate applies only to a prominent court such as that of Shammai or Hillel,
and that courts today do not |possess this pover|. But this is not true, for . . .
|epthah in his generation is like Samuel in his generation vhoever is ap-
pointed as leader | paruas| of the community is as a prince among princes.
8
Therefore, the decree of the communities is valid and their ruling is binding,
and Shimon cannot disobey their decree.
Commuual Authority
. \ehudah b. Meir Hakohen and Lliezer b. \ittzhak Hakohen, Kol|o :
Lmended at points according to the version in Megeo Yerahim, pp. :o; both versions re-
printed in Haym Soloveitchick, !he |se oj Respousa as Histori.al 8our.es ( |erusalem Zalman
Shazar Center, ,,o; Hebrev), pp. ,,.
!his ele:euth.eutury respousum uas requesteo |y the .ommuual leaoers oj !royes, ou
the 8eiue Ri:er, jrom tuo oj Cershoms stuoeuts. It oes.ri|es a oispute that ultimately
;. !allauah. although this term usually refers to an ordinance, in this case it seems to mean
remedy.
:. Paraphrasing BT Rosh Hashanah :b Lach generation must obey its leaders even if they are
far inferior to those of previous generations.
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|ustications ,
proou.eo a split iu the !royes .ommuuity. !he majority sought armatiou oj their right
to impose oe.rees upou a oisseutiug miuority. Iu a oes.riptiou oj the oispute, the leaoers
oj the majority ioeutijy themsel:es as the kahal, implyiug the s.hismati. .hara.ter
oj their oppoueuts.
Question Reuven came to the synagogue and complained O Holy Kahal:
Shimons gentile maidservant came to my house yesterday, and reviled and
cursed me. \ou all knov that she is a habitual vilier and has done so to you
all. The entire lahal responded Indeed, so it is. One man said that she hit
him vith a stick; another said that she called his vife a harlot; and a third,
that she called him a cuckold. Thereupon Reuven stated Given the fact
that she is a habitual transgressor, I implore you to decree that for half a year
she derive no benet from any |ev; perhaps she vill |thus| learn her lesson.
And if you empover me to do so, I vill pronounce the decree myself. They
empovered him, and he pronounced the specied decree. Shimon alone,
hovever, protested against the decree and stated that he vould never abide
by it. The decree, |he argued,| vas not binding, because it vas pronounced
by a person hostile to him. The entire lahal replied His pronouncement vas
made solely on our behalf; the decree vas not pronounced merely because
of him but because |of her abuse| of several members of the community.
Shimon then declared We are not bound by the decree, because many of
those vho participated in its pronouncement are friendly to our adversaries
and hostile to us. The entire lahal replied lar be it from us to pronounce a
decree because of our friendliness tovard one man; for as ve love him, so do
ve love all Israelthe remnant of Israel shall not do iniquity (Zeph. ).
We |the lahal | cautioned Shimon and his follovers on several occa-
sions against such excessive villfulness, but they disregarded us. When our
lahal sav this, ve separated from them. But the entire lahal feared that Shi-
mon and his friends, living so near the synagogue, vould remove the Torah
scrolls and other public articles, and that no one vould be able to stop them
from taking these articles. . . .
May our teachers instruct us |on the folloving| May the tovns-
people enact decrees |binding| a minority of lahal members |Do they have
the right| to coerce the minority, force them to participate in communal
enactments, and restrain them from vithdraving from the community Is
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, The Good Men of the Tovn
Shimon justied in his argument lor if Shimon is correct, every man or
voman vho so desires vill free himself or herself from authority by putting
forth similar claims.
lurther instruct us May tovnspeople bind by oath people of an-
other tovn and thereby coerce them in their ovn tovn even though they
are several miles avay, and the respective tovns are independent Or may
|the people from the neighboring tovn| claim We vill do |as ve please|
and you do as you |please|. We ignore your decrees and oaths.
lurther instruct us We are a small lahal. The humble members
among us have alvays abided by the leadership of our eminent members,
never protesting against our ordinances. Rather, they have alvays folloved
our decrees. Nov, vhen ve are about to enact a decree, must ve ask each
individual member vhether or not he is in agreement vith us In the event
that ve did not ask, and a certain individual kept silent and did not protest,
could he then claim that the decree had not been enacted vith his consent,
even though he did not protest either at the time of the enactment of the
decree or subsequently Instruct us in detail, on all these matters.
Ansver This is our opinion, assuming |the accuracy of | the content
of the query All Israelites are obligated to coerce and compel one another to
live in accordance vith truth, justice, Gods lavs and His precepts. This prin-
ciple is expressed in the Pentateuch, the Prophets, and the Writings. In the
Pentateuch . . . \ou shall appoint magistrates and ocials (Deut. o:); in
the Prophets |When the Iord raised up judges for them| the Iord vould
be vith the judge ( |udg. ::); in the Writings I censured them, cursed
them, |ogged them, tore out their hair, and adjured them by God| (Neh.
:). . . .
Therefore, if the lahal agrees together to enact decrees forming a
fence around the Torah, an individual may not exclude himself from the col-
lective and cancel the pronouncement of the many by saying that he did not
agree to the enactment. The individual, being a minority, is himself canceled
|out|; vhereas the many are authorized to bind by oath, to decree, to place
under a ban, expropriate his property, and enact any |such| decree.
We nd support for this in a number of sources in the Torah. Whence
|the rule| that one cannot exclude himself from the collective As it is vrit-
ten |I make this covenant| . . . not vith you alone, but both vith those
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|ustications ,
vho are standing here vith us this day |before the Iord our God and vith
those vho are not vith us here this day|. Perchance there is among you some
man or voman, |or some clan or tribe, vhose heart is even nov turning
avay from the Iord our God|. . . . When such a one hears the vords of these
sanctions, |he may fancy himself immune, thinking, I shall be safe, though
I follov my ovn villful heart. . . . The Iord vill never forgive him| (Deut.
:,,). . . .
Whence is it that an individual may not cancel a ban enacted by
the majority . . . Note that Rabbi Lliezer did not challenge the authority
of his colleagues vhen they placed him under a ban, but conducted him-
self as |a person legally| banned. Thus ve read On that day the rabbis col-
lected everything that Rabbi Lliezer had pronounced pure and burned it |in
a re. Then they voted on himand placed himunder the ban. |Rabbi Lliezer|
tore his clothes and took o his shoes and sat dovn on the ground| (BT
Bava Metzia ,b |;o, o|). Thus, if Rabbi Lliezervho vas an outstand-
ing halham |and| his vievs vere even supported by a voice from Heaven
submitted to his colleagues . . . , an ordinary man must surely act similarly.
Whence is it that |a community is empovered| to expropriate
property
|The authors quote Lzra o: and the talmudic discussion of this
verse and others; see ;o, .|
An individual, therefore, cannot exclude himself from the commu-
nal collective.
Moreover, the inability of the individual to cancel decrees, or to ex-
clude himself from such decrees, is not limited to matters requiring a fence
around the Torah, but even extends to such optional matters |reshut| as taxes
and other tallauot that the lahal enacts for itself. Thus ve read Tovns-
people are authorized to stipulate regarding prices, measures, and the pay of
laborers. . . . And they are authorized to enforce their decree (BT Bava Batra
:b). Therefore, no one should ever entertain such an idea.
Nov concerning your forcing Shimon to discharge his servant If
it is as you say that the lahal agreed to it, they are authorized to do so. lor a
person is not permitted to harbor a habitual public nuisance in his house. . . .
If, hovever, Shimons version of the story is the correct onethat, as ve
have heard, she is not habitually vicious, and that the lahal did not reach
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,o The Good Men of the Tovn
an agreement in the matter, but that Shimons enemies alone enacted the
decree . . . ve do not think that Shimon should be forced to discharge his
servant. . . . But, if the lahal did agree, Shimon cannot disqualify them on
grounds of hostility or conict. lor |hostility| disqualies |someone| only
from |serving as a judge in| court.
|Concerning communal autonomy| . . . If the decree that they are
enacting deals vith the needs of their locality, such as taxation, veights,
measures, and vagescertainly, in all such matters tovnspeople may com-
pel only |their ovn members|. As it is said, Tovnspeople are authorized
the people of that tovn, not the people of another tovn. If, hovever, God
forbid, the inhabitants of another tovn transgressed the Torah or the lav,
or decided a point of lav not in accordance vith halalhah, the inhabitants
of another tovn might coerce them, and even pronounce the herem |ban|
against them, in order to force them to mend their vays. The inhabitants of
the former tovn may not say to the latter We vill do |as ve please| and
you do as you |please|. lor all Israel are commanded to compel them. . . .
\ou vrite that in your place the humble vere accustomed to obey
the eminent and never protested against them. It is right that the humble
obey the eminent in vhatever they decree upon them. This is so not only
if they failed to protest, but . . . even if they protested vigorously . . . , for
the eminent are more numerous than the humble. Should you say that |in
your community| the humble vere more numerous than the eminent, and
that the former refused to obey the latterif they |the humble| vere silent,
shoved no disapproval, and did not protest at the time the decree vas en-
acted, they can no longer |do so nov|. Although the humble are more nu-
merous than the eminent, it is right that they obey their elders. . . . Happy
is the generation vhose humble obey the eminent
9
. . . , as ve see in the
case of Rehoboam the son of King Solomon ( Kings : |;, o). May the
Almighty consent to our eorts for truth and peaceful justice.
,. Cf. BT Rosh Hashanah :b.
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|ustications ,;
C|eoieu.e to the Kahal Is a Mit::ah
). Rashi, Respousa :;
The number refers to the Llfenbein edition of Rashis responsa. lolloving Haym Solo-
veitchicks analysis in !he |se oj Respousa as Histori.al 8our.es ( |erusalem Zalman Shazar
Center, ,,o), pp. :,, ve have preferred the version reprinted in S. D. Iuzzato, C:ar
^ehmao (Hebrev), vol. :, pp. ;:;,.
Iu this .ase, au iuoi:ioual uho e:ioeutly re.ogui:eo the .ommuuitys authority sought
to es.ape it |y |uttressiug his re.al.itraut positiou uith the pouer oj au oath. He ex
pe.teo the religious outy to julll oues oaths to o:errioe .ommuual authority (see Le:.
:,.:.). Rashi retorts |y equatiug .ommuual eua.tmeuts uith !orah lau. Alreaoy the
Mishuah has esta|lisheo that au oath to a|rogate a mitzvah has uo jor.e, it is a :aiu
oath, a trausgressiou oj the .ommauomeut You shall uot tale iu :aiu the uame oj
the Loro your Coo (Lxoo. .o.). Iuoi:iouals are |ouuo to julll the .ommauomeuts
|y a prior oath taleu at 8iuai (see Mishuah 8he:uot ,., auo ;:, :.).
\ou asked about one vho heard that the community vere planning to enact
a decree against him and quickly took a preemptive oath not to obey their
decree. Must he abide by their decree, or does it have no eect because of
his oath
In my viev, an oath to transgress communal proclamations consti-
tutes a vain oath. If he vas forevarned, he is immediately liable to be lashed
in accordance vith scriptural lav |oeorayta|. He vent to great lengths to no
avail and is not freed from the communal decreeprovided the decree vas
lavfuleven though his oath preceded their decree. lor he has svorn to
abrogate a mit::ah, to depart from the lavs of Israel
10
and not be subject to
their jurisdiction. The Mishnah reads . . . If one svears to abrogate a mit:
:ahan oath not to build a sullah, or not to perform lula:, or not to put on
phylacteries, this constitutes a vain oath for vhich . . . one is liable for lash-
ings (Shevuot :). Since he has taken an oath to transgress the Torah, he
has thereby svorn the impossible, for he is already under oath from Mount
o. The term hullei Yisrael here can cover both the lavs of the Torah and the communal enact-
ments.
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Sinai vith regard to both positive and negative |commandments|. . . . The
oath of the ancients precedes his ovn. . . .
Restri.tiug the Kahals Authority. Larly 8paiu
De.isious Are Maoe |y the Court
8. Anonymous Gaonite Responsum, Respousa Ceoui.a (Assaf ) :o
Simha Assaf, Respousa Ceoui.a ( |erusalem Mekize Nirdamim, ,:; Arabic and Hebrev),
sec. :o, pp. oo:. Our translation deviates from Assaf s Hebrev in light of our under-
standing of the Arabic original. This translation benets from the expertise of Zvi Zohar.
!he pra.ti.e oj iuterruptiug the syuagogue 8a||ath ser:i.es e:ol:eo iu early meoie:al
times as a me.hauism jor mo|ili:iug pu|li. support iu oejeuse oj au aggrie:eo iuoi
:ioual. Querieo a|out its legitima.y, the Caou (heao oj the Ba|ylouiau a.aoemy) re
spouos that iu Iraq this is uuluouu. 1hat he questious, houe:er, is uot ouly this
parti.ular pra.ti.e |ut the eutire shijt oj authority jrom the .ourt to the kahal.
\ou asked Is it permissible for an Israelite to halt the Sabbath prayer services
in order to exact his due from his adversary, or to compel |someone| to ap-
pear vith him in court after the Sabbath Instruct us . . . vhat the lav is in
this matter.
The ansver is this. Provided the defendant is an Israelite, if the
plainti |has pursued him| for some time, or seeks to raise support against
him, it is permissible. Hovever, if |the plainti| obstinately continues to ob-
struct the service, he may not do so. He must be dissuaded and the service
proceed.
But in Iraq this is unknovn |It is not| for the community to deter-
mine rights and liabilities; rather, this is the courts responsibility. And it is
incumbent on the community to follov the courts nding of liability |and
enforce it|, vhether by means of varning or herem. Iikevise, in every tovn
in vhich there is an appointed judge to determine rights and liabilities, the
plainti should turn to him alone, not to the community.
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Restrictions ,,
Restri.tiug Authority to Auuul Iroperty Rights
. Meir Halevi Abulaa (Ramah), Respousa ::
Here is a respousum, uritteu iu the rst halj oj the thirteeuth .eutury |y the leao
iug s.holar oj the jeuish .ommuuity iu !oleoo, .ou.eruiug the .ase oj au iuoi:ioual
uho uauteo to operate a jurua.e iu a resioeutial .ourtyaro. ^ormally, this uoulo ha:e
|eeu oeemeo au impermissi|le uuisau.e, |ut the .ommuuity as a uhole hao agreeo to
allou it. !here uas, houe:er, oue ueigh|or uho o|je.teo to the jurua.e. A|ulaa uas
asleo, Cau he |ar it or uot` !he respousum |egius uith a oetaileo ois.ussiou oj
the legitimate uses oj resioeutial areas auo theu goes ou to argue jor the iu:iola|ility oj
iuoi:ioual rights.
Whenever he is |legally| required to remove |the nuisance|, even though all
others have conceded to it except for one neighbor vho is harmed, that one
may bar it. lor no person can concede to harm on behalf of another.
Nov, |regarding| the analogy you drav from the case of a syna-
gogue . . . vhich may be sold by the seven good men of the tovn in the pres-
ence of the tovnspeople, vhat resemblance does it bear |The synagogue|
vas originally consecrated for public use. And it vas consecrated under the
auspices of the seven good men of the tovn for the sake of anything they
vould see t. But in this case, vho authorized the seven good men of the
tovn to concede to harm on behalf of this individual
lurthermore, all individuals stand equal in regard to the synagogue,
for they all have a share in it. When they originally became partners, they
did so subject to the understanding that |the partnership vould be governed|
according to the majority of partners. But in this case, the seven good men
of the tovn and the majority of tovnspeople are not harmed by the smoke.
Hov then can one vho is not harmed concede to harm on behalf of this
individual vho is harmed
Nor is there any resemblance to the rule that the court has pover to
expropriate. That too is not an arbitrary expropriation of individual prop-
erty by the court. |The rule| applies only in a case vhere the property ovner
has |alternatives available| that vill save him from expropriation. If he does
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oo The Good Men of the Tovn
not act accordingly, he then . . . brings the loss upon himself. But in this
case, vhat other recourse does this individual have
Therefore, |in the case of | an individual vishing to operate an oven
or furnace adjacent to his fellovs property If the smoke reaches |his fel-
lov| only by an uncommon vind, he cannot be barred at all. But if smoke
reaches himby a common vindeven if there is public property in betveen
|the oven and the private residence|, even if the entire community has con-
ceded except for this individual vho is harmed, and even if the smoke is
infrequenthe can bar it.
De:elopeo Do.triues oj the Kahal
Agaiust the !yrauuy oj the Majority
o. Meir b. Baruch of Rothenburg (Maharam), Respousa (Prague) ,o:
The text here is based on Respousa oj Maharam |. Baru.h, edited by M. Bloch (Budapest,
:,; Hebrev), vith some corrections from other manuscripts, for vhich ve thank Simha
Lmanuel.
Amoug the .lassi.al oejeuoers oj .ommuual authority ue uo also a .ertaiu appreheu
siou a|out its poteutial a|use |y a lo.al majority. Rotheu|urgs .ritique here oj majority
tyrauuy iu the kahal aooresses the authority oj the greater uum|er auo their .hoseu
leaoers. Both the oetails oj the .ase (iu:ol:iug a oispute |etueeu a majority oj the .om
muuity auo oue oj its leaoiug mem|ers) auo the import oj Rotheu|urgs ruliug are
someuhat opaque. At oue poiut he seems to require uuauimous .ouseut jor all .ommu
ual oe.rees auo appoiutmeuts (a positiou ojteu attri|uteo to ja.o| !am), |ut his maiu
.ou.eru is .learly to prote.t iuoi:ioual mem|ers (or is it ouly great meu`) agaiust
uuilateral impositious |y the majority.
Regarding tovnspeople vho got togethersome or most of themand ap-
pointed one chief, not by unanimous consent they seek to lord it over the
others unlavfully, to impose the tax and |to dictate| all religious and civil
aairs at their vill. . . .
They are not masters in this, for they are not authorized to insti-
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tute nev |arrangements| vithout unanimous consent. Nov, the talmudic
statement |that| they are authorized to enforce their decree (BT Bava Batra
:b) means unanimously. . . . They are authorized to impose a penalty upon
someone vho initially accepted the enactment and subsequently transgressed
it. They are authorized to exact the specic penalty they |all the members
of the community| initially conrmed and accepted
11
upon themselves.
Alternatively, the seven good men of the tovn vho vere initially selected
vith the unanimous consent of the tovnspeople to oversee their civil aairs
and to impose penaltiesthey too are authorized to enforce their decree.
The like of these, hovever, vho set themselves up as kings, cannot
|act| unilaterally against a great man.
|Rothenburg cites here the talmudic discussion regarding the
prominent person .|
Thus, even a stipulation made among themselves is invalid because
they acted vithout the consent of the prominent person in their tovn. Lven
more so, they cannot act unilaterally to enforce their enactment upon a great
man.
12
|Their position| is completely untenable, since this R. Meir Cohen
agrees to share vith them in vhatever levy they have to pay from all their
possessions, vhether by herem or by selecting tax assessors through mutual
agreement.
13
If, despite all this, you do not heed him |but| again seize his pos-
sessions through the gentiles or on your ovn, he is authorized to rescue his
property by any available means. He may even enter anothers house to re-
trieve his property, |and| even have recourse to the gentiles. . . .
Therefore, desist from any further such evil deeds. If you heed and
obey, ve vill |in future| treat your vords vith respect.
Peace, Meir b. Baruch.
. Alluding to the talmudic understanding of Lsther ,:;; see BT Shabbat ::a (;, :).
:. The use of a dierent term (great man as opposed to the talmudic prominent person)
reects the sense of the argument. It is not that this R. Meir Cohen had the status of an
aoam hashu: (the R. likely denotes not Rabbi but merely a common honoric), but that
this is a case of illegitimate legislation similar to one in vhich the vievs of a prominent
person are overridden.
. These are the tvo accepted modes of assessment (a) personal declarations by oath, on pain
of herem, or (b) the judgment of a mutually agreed-upon committee.
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o: The Good Men of the Tovn
Legislati:e Authority auo Autouomy
. Solomon b. Abraham Adret (Rashba), Respousa ,,
!hese tuo respousa, uritteu iu Bar.eloua iu the late thirteeuth or early jourteeuth .eu
tury, suggest the jully oe:elopeo oo.triue oj rule |y the kahals majority. Iu the rst,
the text oj the questiou has uot |eeu preser:eo. 1hat is at issue is the s.ope oj the
appoiutees authority, as iuoi.ateo |y the questiou iu a similar .ase (,.,::). !he
kahal agreeo to appoiut us to elimiuate sius, auo ue ha:e taleu au oath to so oo. Auo
the .harter oj the mauoate states that ue are authori:eo |y the ]geutile go:erumeut
to impose peualties, uhether .orporal or s.al, as ue see t. Cau su.h authority |e
oejeuoeo` Aorets respouse arms the |roao pouers implieo iu the lauguage oj the .har
ter. !he uhole priu.iple iujormiug your appoiutmeut uas that you shoulo juoge as
you see t, just as it is uritteu iu the letter oj mauoate you meutioueo. !his is oeemeo
a straightjoruaro matter |oth |y us auo iu all pla.es uhere similar stipulatious uere
eua.teo. Iu the rst .ase |elou, the appoiutees e:ioeutly asleo Aoret uhether their
.ourt .oulo a..ept testimouy jrom uituesses oisqualieo |y talmuoi. lau.
!he uext respousum |egius |y ois.ussiug the authority oj oue .ommuuity
o:er auother. Aorets argumeut leaos, houe:er, to a .riti.al auo more juuoameutal issue.
Hou .au auy|ooy rule o:er auy|ooy else uithout gaiuiug spe.i. .ouseut to e:ery oe
.ree auo e:ery eua.tmeut` Hou is legitimate go:erumeut possi|le iu the a|seu.e oj
uuauimity`
Responsum ,
If the appointees ||erurim| nd the vitnesses trustvorthy, they are
permitted to impose monetary nes or corporal punishment as they see |t|.
Society |olam, literally, the vorld| is thereby sustained. lor if you vere
to restrict everything to the lavs stipulated in the Torah and punish only
in accordance vith the Torahs penal |code| in cases of assault and the like,
the vorld vould be destroyed |haolam hare:|, because ve vould require tvo
vitnesses and |prior| varning. The Rabbis have already said that |erusalem
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vas destroyed only because they restricted their judgments to Torah lav
(BT Bava Metzia ob).
14
Hov much more so outside the Iand |of Israel|,
vhere there is no Torah authority to impose penalties, and the unscrupulous
vill breach the fence of the vorld, and the vorld vill become desolate.
Already the Rabbis of blessed memory have imposed nes for assault (Bava
Kama, chap. ) even though these constitute penalties that may not be im-
posed in Babylon |i.e., abroad|, as stated there. Nevertheless, such cases are
everyvhere brought to justice . . . in order to restrain the current generation.
|Adret goes on to cite the talmudic precedents for extralegal pun-
ishment; see ;:.|
Therefore, the appointees vho acted thus, if they sav it to be the
need of the hour to impose penalties, vhether scal or corporal, for the per-
fection of the polity |tilluu hameoiuah| and for the needs of the hour, have
acted lavfully. Hov much more so vhere they have royal authorization |by
the non-|evish king|. . . . The appointees ||erurim| must |hovever| carefully
consider the matter and act |only| after taking counsel, and their intentions
should at all times be for the sake of heaven.
Responsum
\ou asked about our custom in regard to various taxes Do ve in-
clude the surrounding tovns in our enactments and herems vithout con-
sulting them, or does each locale impose a herem independently, or do the
vealthy members of those localities come to our city to participate in |de-
creeing| our enactments \ou also requested that I relate my opinion vith
reasons and proofs.
\ou initially |inquired as to| the custom and concluded |by inquir-
ing| about the lav.
Concerning our customs Knov that ve |in Barcelona| and the
lahal of Villafranca and the lahal of Tarragona and of Montblanc share a
common fund and purse for the payment of various taxes and |other| govern-
. This is a revolutionary interpretation of the talmudic source. The Talmud contrasts oiu, lav,
vith lijuim mishurat haoiu, vhich means going beyond the lav in the sense of supereroga-
tion. Adret instead employs the text to sanction the infringement of oiu.
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o The Good Men of the Tovn
ment impositions. Whenever ve vish to revise the enactments concerning
the assessment |of tax liability| or the submission of records and declaration
of capital assets as required by our master the king, ve never impose decrees
upon the |other lehillot| even though ve are the many and the capital city for
all matters. If ve acted vithout their counsel, they vould not obey us. With
their consent, ve sometimes send people to them, and at other times repre-
sentatives ||erurim| come to us. Hovever, if they do not heed us regarding
either of these |arrangements|, ve compel them by the force of the govern-
ment either to come to us or to make enactments or |impose| a herem in their
locality identical to ours. Hovever, in other localities, the capital commu-
nity |lehillah| vill sometimes decree enactments regarding its neighboring
tovns and villages and include them regardless of their consent. Concerning
all these matters, localities are divided in custom.
|Rule by consent| has alvays been our practice, and our common
custom; it is certainly vhat the lav |prescribes|'
lor vhat right |:elhut| or authority does one lahal have over an-
other, or indeed the individual over the many,
15
in cases of monetary lav,
customs, or enactmentsexcept in a fev vell-dened instanceslor ex-
ample, vhen the high court decrees the enactment of a custom or prohibi-
tion (and it is something that the public can endure), e.g. |the prohibition
on consuming gentile| bread, vine, and cooked food.
16
. . .
Or |vhen, for example,| the king |decrees|, as in the case of the
herem of Saul by vhich |onathan incurred the death penalty, even though he
did not knov or hear |of it|.
17
lor anything the king enacts in the council
of Israel
18
is valid and |considered| acceptable to everyone.
It is also vritten And anyone vho did not come in three days
vould . . . have his property conscated (Lzra o:). So too vith regard to
a herem imposed by the uasi or the exilarch. . . .
So too are the decrees or enactments of the majority of the lahal
regarding the needs of the community |lehillah|. Since the majority enacted
. The logic of this clause is obscure.
o. See BT Avodah Zara oab; MT Iavs of Rebels :o.
;. Sam. ; see, too, Nahmanides discussion in ;:.
:. 8iat yisrael, this term does not appear in the Bible or in the Talmud; Adret here, too, is
folloving Nahmanides.
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Doctrines of the Kahal o
it, even against the vill of individuals, it is valid. Providing it vas |really|
the majority that acted and that the majority of the public can endure it. . . .
lor in each and every public, individuals are considered to be under the rule
of the many and must pay heed to them in all their aairs. They |the mi-
nority| stand to the people of their city as all Israel stands to the high court
or the king. |This holds| vhether they are present or not |at the time of en-
actment|. Lven their descendants . . . are obligated to follov the enactments
and herems that their ancestors placed on themselves. . . . This vas the case in
the acceptance of the Torah, as vell as such Rabbinic enactments as |the read-
ing of the| megillah and |the observance of | Hanukkah. Lven if the ancestors
|merely| observed a xed custom, |it is treated as| a tacit oath |and| the de-
scendants must follov it. . . . Whoever breaches these |principles| is like one
vho breaches the fence of the Torah, for the ancestors are the roots of the
descendants. Therefore, an individual placed under a ban by his ovn tovn
is thereby under ban for other tovns, but an individual placed under a ban
by another tovn is not under ban for his ovn tovn (BT Moed Katan oa).
The same applies to enactments by the eminent of Israel, vhen they
|believe the enactments necessary for| social order |tallauah laolam|. . . .
lurthermore, the high court can coerce and place a herem on a defendant so
that he vill come and be judged before them, even though he is not a local
inhabitant. . . . Hov much more so may a court compel a local defendant
to be judged before them against his vill . . .
These are the instances vhere I believe that it is possible to compel
others to conform. Hovever, in other matters, vhen the people of one tovn
vant to impose their vill on the people of another tovn, I cannot see hov
they have the authority vhen they |the other tovnspeople| do not consent.
Nor may they impose a herem or forcibly tax them. |The inhabitants of the
second tovn| are not subjects . . . in such matters, unless |the inhabitants of
the rst tovn| . . . impose a herem or enforce |the lav| in order to prevent
|religious| transgressions. This is certainly permissible, proper, and necessary
|if it is done| to prevent transgressions. . . .
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oo The Good Men of the Tovn
Luhau.iug Commuual Iouers
z. Isaac b. Sheshet Perfet (Rivash), Respousa ,,
Iu talmuoi. lau, marriage is a pri:ate trausa.tiou, sau.tioueo |y religious lau. Iu its
stauoaro jorm, matrimouy is eua.teo |y the trausjer oj a sym|oli. sum oj mouey or
item oj :alue jrom the mau to the uomau, this is .alleo |etrothal. 1arious meoi
e:al .ommuuities sought to regulate marriage auo |riug it uuoer pu|li. .outrol. 8u.h
regulatiou requireo oealiug uith, auo partially trausjormiug, the pri:ate auo religious
.hara.ter oj the trausa.tiou. !he trausjormatiou is ee.teo |y usiug the .ommuuitys
pouer to expropriate, there|y oe.lariug the |etrothal mouey ouuerless. Iu .ourmiug
the authority oj the kahal, rst o:er pri:ate property auo theu iu the realm oj marriage,
Ierjet .ousioera|ly exteuos the meoie:al oo.triue oj pu|li. lau.
Question The lahal enacted a preventive ordinance prohibiting any man
from betrothing a voman unless the community ocers are informed and
present, and |only| in the presence of ten people. If anyone transgresses and
betroths othervise, the betrothal vill be null and void. The lahal at this time
|of enactment| expropriates in advance the money or item of value that he
vould use for betrothal. |His ovnership of | the money vill be null and void,
and the betrothal vill be annulled, and the voman can remarry vithout a
get |vrit of divorce|. . . .
\ou question vhether the lahal is empovered to expropriate pri-
vate property, especially that of minors vho are unable to consent to the
ordinance. And hov much more |dicult is the case of | the property of
those yet unborn or of nevly arrived residents' lor even if the tovns rabbi
and elder endorses the ordinance, the |tovnspeople| are not empovered to
annul a betrothal |vhich is a prerogative of prominent rabbis|. . . . Hov-
ever, the halhamim of today are considered laymen and have no pover to
expropriate private property,
19
and certainly not to annul a betrothal that
vas performed in accordance vith Torah lav. Nov, the statement |epthah
,. See ;o, .
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Doctrines of the Kahal o;
in his generation is like Samuel in his generation (BT Rosh Hashanah :b)
refers to ruling vithin Torah lav but not to abrogating it. . . .
Ansver According to Torah lav, the tovnspeople may enact or-
dinances, preventive lavs, and regulationsand impose penalties upon all
transgressors.
We read in tractate Bava Batra Tovnspeople are authorized to
stipulate regarding prices, measures, and the pay of laborers, and they are
authorized to enforce their decree (:b). Rashi explains it, to punish a trans-
gressor of their decree beyond the provisions of Torah lav.
lurthermore, their pover is not conned to these matters; rather,
they are empovered to enact any ordinance that they consider proper and
to punish a transgressor. . . . Thus the Tosefta adds Tovnspeople are au-
thorized to pronounce, Anyone seen at Xs shall pay thus and so; Anyone
seen |dealing vith| the authorities shall pay thus and so; Anyone vhose cov
grazes amid the seedlings shall pay thus and so ( :).
This pover is not only granted to the tovnspeople; the members
of a particular trade may also stipulate among themselves in matters per-
taining to their trade and |they may| punish transgressors. lor vith respect
to their trade they are comparable to tovnspeople. This is stated in the Tal-
mud regarding the butchers vho made a mutual agreement that anyone vho
slaughters on anothers day vill have his hide |i.e., that of the slaughtered
animal| ripped ( ). . . .
Hovever, regarding the |subsequent| proviso, That applies only
vhere there is no prominent person |aoam hashu:|; vhere there is a promi-
nent person, they cannot unilaterally make decrees . . . , it seems that this
applies only in the case of a trade vherever there is a prominent person and
they act vithout endorsement, they are not comparable to tovnspeople and
lack the pover to stipulate save as contracting individuals. But tovnspeople
can alvays stipulate and do not require endorsement by a local prominent
person. . . . Rather, vhatever the majority of the lahal and the leaders tending
to public aairs enact is valid.
. . . Minors too vhen they come of age are subject to the enact-
ment. Othervise, the tovnspeople . . . vould have to renevtheir ordinances
daily on account of the minors vho come of age every dayvhich is absurd.
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o: The Good Men of the Tovn
Rather, the tovnspeople as a vhole are subject to the decree, including those
born subsequently. . . .
Similarly, nevly arrived residents are considered tovnspeople and
are obligated to follov their ordinances. It is as if, upon arrival, they explic-
itly accept all the tovns ordinancesunless they plan to go back |elsevhere|.
Indeed, any practice forbidden to them by the custom of their |original|
tovn is |nov| permitted to them if this tovns custom permits it, provided
they do not intend to return.
20
. . . If this applies to ritual matters |isur|, it
certainly applies to monetary matters |mamou|. . . .
Hovever, a question can be posed. The Talmud says in tractate Git-
tin (ob |;o, |) in regard to pros|ul. Perhaps, vhen Hillel enacted |it| for
future generations, |this extended| not to any court |but only| to a court like
his ovn, such as |that of | Rav Ami and Rav Assi, vho have the pover of ex-
propriationbut not to other courts. Consequently, not all courts are able
to expropriate money'
Lven if ve accept this, it poses no diculty to the case at hand.
lor this |restriction| applies |only| to cases like pros|ul |vhose very function
is to| expropriate private property against the lav by means of the pros|ul.
Hovever, vherever the tovnspeople act |to enforce| their ordinances vithin
their tovn, they are equal to, even greater than, the court of Rav Ami and
Rav Assi.
Moreover, Rabbenu Tam commented that the requirement is not
specically for a court equal to that of Rav Ami and Rav Assi, but for a court
that is the most senior in its location |epthah in his generation is like Samuel
in his generation (BT Rosh Hashanah :b). . . . The established court of
every tovn has pover to expropriate; hov much more so the lahal:
|Perfet goes on to cite the talmudic source for the courts pover
of expropriation (;o, ), Maimonides codication of the courts extra-
legal povers, and the talmudic dictum regarding the courts special punitive
povers (;:). He concludes|
The lahal is thus empovered to expropriate the money of any-
one vho transgresses its ordinances. Nov, it has enacted that the money
|used for| a betrothal performed vithout the community ocers being in-
:o. Rivash here cites the talmudic discussion of local customs in BT Hullin :b.
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Doctrines of the Kahal o,
formed and present be reappropriated prior to his giving it to the voman.
The money therefore ceases to be the rightful property of either the man or
the voman, and the betrothal is void. . . .
This is my viev on this issue as a matter of lav |lahalalhah|. But
vith regard to actual implementation, I vould consider being stringent and
vould not rely on my stated opinion, oving to the gravity of the issue |at
hand, i.e.,| to release her vithout a getunless |doing so vas| endorsed by
all the |leading| scholars |halhamim| of the various provinces.
A Coutesteo Commuual Lua.tmeut. !uo !heories oj Couseut
. Llijah Mizrahi (Reem), Respousa ;
Llijah Mi:rahi uas iu ee.t the .hiej ra||i oj the :arious jeuish .ommuuities iu Cou
stautiuople ouriug the rst quarter oj the sixteeuth .eutury. His tea.her auo preoe.essor
Moses Capsali, settliug a lougstauoiug oispute, hao ruleo that Ra||auites are jor|io
oeu to tea.h !almuo to the Karaites. Mi:rahi, houe:er, as is ree.teo iu the .ase |elou,
uas a lijeloug oppoueut oj eorts to isolate the Karaites.
Concerning the herem |imposed as follovs| Some of the members of the
congregations in Constantinople assembled vith some of the good men of
the tovn in the Poli congregations synagogue to impose a heremto vit,
to prohibit teaching to the Karaites any subject vhatsoever Bible, Mishnah,
Talmud, halalhah, aggaoah, literal exegesis of the Bible, kabbalistic exegesis
of the Bible. Also any science vritten by the Greek philosophers,
21
vhether
logic, physics, metaphysics, arithmetic, algebra, astronomy, music, or ethics.
|The prohibition extends to| any aspect of these sciences, vhether by vay
of instructing, questioning, debating, or reading |texts|, even teaching the
alej|et |alphabet|.
|The good men| sent for . . . the chief rabbi of all the congregations
:. The printed edition adds May their name and memory be blotted out. This comment is
not added to other references to the Greek philosophers belov and seems inauthentic.
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in order to impose the said herem. Hovever, he
22
refused to do this because
he argued There is no right to bar someone frommatters permitted to him.
And it is vell knovn that these sciences vere authored by the Greek phi-
losophers through their ovn visdom and investigations. Anyone may teach
them to Christians, Muslims, Karaites, or any other nationality at vill, and
there is no prohibition involved. Hov can you, then, impose this herem`
When he sav that they vere taking no heed, he put them o till
the morning. The promoters of the herem sensed that the rabbis intention
vas to procrastinate, so they vent ahead and imposed a herem among them-
selves to assemble in the morning to execute their plan, specifying also that
no one be permitted to reconsider, even if the opposite viev gained vide
support.
When the teachers heard this, they cried out to them Why do you
multiply prohibitions concerning matters permitted to us |as practiced by|
our forefathers and fathers dovn to the present time lor these sciences vere
authored by the Greek philosophers . . . and from the day they vere com-
posed to the present day they have been taught from nation to nation from
Christians to |evs, from |evs to Christians, from Muslims to |evs, from |evs
to Muslims, fromChristians to Muslims, fromMuslims to Christians. Several
of |our| most distinguished ancient scholars vould teach Karaites, Chris-
tians, and Muslims in order to earn an honest livelihood vithout having
to demean themselves in other occupations. No criticism or opposition vas
voiced against them. Nov then, vhat is our crime or sin that you have come
against us vith the svord of this herem to destroy our livelihood vhile ve
are blameless
Some of the teachers . . . vent to the chief rabbi of all the congrega-
tions of the city of Constantinople and cried out in complaint. He ansvered
them Their intentions are not good. They certainly have no pover to bar
anyone from matters permitted to him. Return nov to your homes, and I
vill duly proceed to dissuade them from their plan.
While they vere talking, some of the good men promoting this
herem arrived, having heard that the teachers had gone there to complain.
They quarreled, vith much shouting. The promoters of the heremleft, greatly
::. Mizrahi is referring to himself in the third person.
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angered, and summoned vicked . . . men vith clubs in their hands to strike
anyone vho |tried to| protest against those gathering at the Poli synagogue
to impose the herem.
In the morning, the teachers summoned a great gathering of people
of the |various| congregations, the good men, and the elders of the tovn, at
the synagogue of the congregation of Ziton. They invited the chief rabbi in
order to annul the plan of the gathering promoting this herem.
He |the rabbi| came there. When they began to |make their com-
plaint|, messengers came fromthe other gathering to say |to the rabbi| Why
do you not come vith us to the Poli synagogue, to the rst gathering . . .
The rabbi replied Because I sav that . . . men of lovcharacter vhose every
thought is evil . . . had joined vith you. And they intend to have their vay
vhether it is right or vrong'
They pleaded passionately that he go vith them, but he refused to
go. They then sent him an additional message If you come along, you vill
fare vell; hovever, if you do not, take heed that the entire gathering . . . has
already agreed to appoint another rabbi in your place to lead and rule them.
When the rabbi heard this, he rose and vent along vith them.
Some of the elders folloved him. Nov the thugs vielding their clubs vere
standing at the entrance of the Poli synagogue to see vho dared oppose them.
They spread vord among the crovd, saying Any outsider to our plan vho
encroaches the Tent of Meeting imposing the heremshall be put to death'
23
So the teachers . . . could not enter the Tent of Meeting to speak and defend
themselves.
The rabbi sav that none of the teachers vere present. lurthermore,
no one present vas prepared to speak against the herem for fear of the thugs.
In any case, the gathering had already, on the previous day, imposed a herem
among themselves to be united in promoting this herem . . . . Consequently,
he vas silent and said nothing, either on behalf |of the proposal| or against
it. And the people contending against the teachers rose, ascended to the holy
ark, took out the Torah scrolls, and loudly imposed the herem as they had
planned.
:. They are alluding to the verse Any outsider vho encroached vas to be put to death (Num.
:), vhich refers to the Tent of Meeting.
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|Mizrahi here engages in an extensive legal analysis of the vorkings
of herem, of the proper policy regarding Karaites, and of the communitys
povers of legislation. The latter discussion concludes as follovs|
Thus, ve have explained to you the dispute betveen the rabbis con-
cerning the interpretation of the |araita |Tovnspeople| are authorized to
enforce their decree (BT Bava Batra :b). Maimonides, Rabbenu Tam,
24
|and
others| all maintain that |this text| refers to a stipulation that they had rst
endorsed unanimously, and that some of them had then retracted, vishing
to transgress. It is then that |the tovnspeople| are authorized to punish any-
one vho transgresses. Hovever, regarding dissenters vho never endorsed the
stipulationvhether individuals or a groupthe tovnspeople have no au-
thority to punish them, for they never endorsed the stipulation at all. On the
other hand, Rashi, Rashba, |and others| maintain that |the text| refers even
to a stipulation that vas not endorsed unanimously but only by a portion
of the tovnspeople. Since the majority of the tovnspeople and all the good
men of the tovn endorsed it, they may compel the dissenting minority. They
may impose upon them any penalty they see t, vhether a monetary ne,
herem, or censure, should they transgress the stipulation. lor the good men
of the tovn have, vith regard to their tovn, the status of the great men of
the generation. . . .
|Mizrahi nov goes on to argue that the herem against the teachers
is invalid on each of these vievs.|
Authority vas granted to the high court in |erusalem to enact de-
crees and ordinances and establish customs. This derives from the verse In
accordance vith the instructions given you (Deut. ;), vhich refers to
the decrees, ordinances, and customs concerning vhich they instructed the
public in order to strengthen religion and order society |letalleu haolam|.
The rst group of scholars maintain that this authority vas given to none but
one court in each generationnamely, that court vhose position is similar
to that of the high court in |erusalem. . . .
Hov then could |such povers be claimed by| any scholar in any
tovn, even if he is unparalleled in his region or country Certainly the good
men of the tovn, vho are neither scholars nor leaders, cannot compel any-
:. See headnote to o.
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one |to abide by| their stipulations despite his having been one of those vho
protested. . . . Accordingly, they interpret the |araita as referring only to a
stipulation that they rst endorsed unanimously, vithout any compulsion. If
then |some of them| retracted, |the tovnspeople| are authorized to impose
penalties upon the transgressors. . . .
The second group of scholars |point to the reason that the same|
authority vas granted to the high court in |erusalem and to the courts of
subsequent generations . . . even though they are not equal. This is because all
the people of the generation assent to |their courts leadership| concerning
decrees, ordinances, and customs. . . .
Therefore, the great men of the tovn
25
also |possess this authority|.
This is so because all the tovnspeople look to them in matters of order-
ing |tilluu| the tovn. . . . It is as if they appointed them vith the express
mandate that vhatever they do be done. Lven though this vas not stated
explicitly, it is manifest that they all assent to vhatever is done. Lven though
some of them cry out |in protest| against those decrees and ordinances, this
is no dierent from parties stipulating consensually and then recanting.
According to this second viev, the |araita |Tovnspeople| are au-
thorized . . . need not be interpreted as referring |exclusively| to stipulations
adopted through unanimous consent. Rather, it can |refer to| a case vhere
some seek to coerce others vho are protesting against a stipulation adopted
by the good men of the tovn. lor the good men of the tovn are fully equal
to the great men of the generation. . . .
We thus rule This herem imposed by the gathering at the Poli syna-
gogue that Rabbanites should not teach Karaites any science vhatsoever au-
thored by the vise men of the nations is completely invalid save for those
vho assented. . . .
Concerning those vho . . . protested in the streets and marketplaces,
it is patently clear that no herem or vovexists. lor several reasons lirst, they
did not assent to it nor agree to it at all. And according to the scholars of
the rst group |mentioned above| . . . the great men of the tovn . . . cannot
enact any decree or ordinance for their tovnspeople, except for those vho
:. Ceoolei hair. this alternative to the good men of the tovn is employed a number of times
by Mizrahi in this responsum; it is probably meant to reect the parallel he dravs vith
geoolei haoor, the great men of the generation.
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consent. But as for those vho did not consent, they cannot coerce them by
any form of coercion, vhether a ne, herem, or censure, even if all the great
men and all the |rest of the| people of the tovn jointly consent. This is so
even if these great men are the tovn leaders vho govern all its aairs. . . .
Second, this herem vas not imposed vith the consent of the chief
rabbi of all the congregations by vhose vord all the enactments and customs
of the tovn are established and vho is appointed over them |to conduct| all
their aairs. On the contrary, he protested against . . . this herem. On three
occasions he addressed them to dissuade them from their plan . . . but they
vere unvilling to listen. Instead, they . . . threatened him to induce his con-
sent, because they vere possessed by ery anger and vrath and intended to
have their vay vhether it vas right or vrong'
Consequently, it is evident that the herem has no force vhatsoever
over those vho did not consent to it. lor these people have no authority to
enact any ordinances or decrees vithout the consent of the chief rabbi, since
they are all subordinate to him. |This is true| both according to the rst and
according to the second group of scholars. . . . On all vievs, vherever there
is a chief rabbi and yet they acted against his position . . . , the herem has no
validity vhatsoever for those vho did not agree to it. Whoever mistakenly
thinks othervise errs in a manner that even schoolchildren do not err'
. . . Third, this herem vas not |in any case| enacted by a majority
of the tovnspeople, nor by all the good men of the tovn. lor the opposite
gathering at the Ziton congregations synagogue . . . vas more numerous.
Besides, the good men and the scholars of the tovn vere also divided over
this into tvo camps. . . .
linally, this herem vas not imposed for the sake of heaven nor for
the purpose of tilluu olam. Ordinarily, herem or censure is imposed for the
sake of tilluu olam and to strengthen and sustain religion. But this herem vas
imposed out of jealousy and hatred. Some begrudged the teachers the respect
they vere receiving from the Karaites. Others hated the Karaites themselves
because of the interest that they collected |from members of the |evish com-
munity|, as all usurers are hated. . . . Their gathering vas thus motivated
by vengefulness. Were it not for their jealousy and hatred they vould not
have engaged in this initiative. Lveryone knovs and recognizes this' . . .
Can anyone |then| entertain the notion that this herem could be considered
valid
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Connentary. Lmerging Democratic Ideas
The novelty of the lahal as a political entity is reected in the re-
sponse of the anonymous Gaon ( :) to a query about the right to protest
some supposed injustice by interrupting the Shabbat service But in Iraq
this is unknovn |It is not| for the community to determine rights and lia-
bilities; rather, this is the courts responsibility. To the Gaonhead of the
traditional hierarchy of religious courtsthe notion of turning to the com-
munity appears totally misplaced. Do the people vho sent this query not
have a rabbinic judge They surely ought to, and the claimant should address
him alone, not the community.
Actually, the practice of disrupting the service vas videspread, and
it nicely illustrates the birth of the lahal as a political institution. To establish
and maintain a synagogue and the Torah scrolls for public readings on Shab-
batthat is one of the very fev functions assigned to the tovnspeople in
tannaitic lav. Nov a claimant is permitted to disrupt this ritual, spoiling the
holiness of Shabbat vith arguments about money. The lahal is told, in eect
\ou cannot proceed vith your functions as a ritual community vithout rst
addressing issues of injustice in your midst.
But vhy should defendants feel obligated to accept the community
at large as an arbiter of their case And, as the lahal expands its legal purviev
from the enforcement of existing lav to the creation of nev lav, the ques-
tion expands as vell Why should anyone deem himself (or herself ) bound
by its authority
This is no idle question. Indeed, Maharams argument seems to
imply a rejection in principle of any coercion except vhere it serves to en-
force prior consent. And it is vorth noting that according to certain tra-
ditions, Rabbenu Tam persistently denied communal authority altogether.
Against such doubts, medieval authors oer various justications for the
lahal s authority. Most striking, perhaps, is Rashis position, for uithout auy
argumeutatiou he simply ascribes to communal decrees the same force as Torah
lav each individual is already under oath fromMount Sinai to obey. Com-
munal decrees and Gods commandments are conated under the caption
the lavs of Israel, indicating perhaps that allegiance to the collective is the
Cruuouorm for both.
An explicit collectivist account is oered by Rashba and Rivash.
Rashba holds that individuals are considered to be under the rule of the
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many and must pay heed to them in all their aairs; likevise, later genera-
tions are bound by earlier decrees, for the ancestors are the roots of the de-
scendants. Rivash emphasizes the connection betveen these tvo points all
these obligations are not incurred individually, but rather the tovnspeople
as a vhole are subject to the decree, including those born subsequently. The
subjection of individuals to the collective is not derived from Torah; on the
contrary, Rivash explains, it is a necessary precondition for the commitment
to Torah itself.
This account of the foundation of communal authority hits bed-
rock here. Subjection of individuals to their community just is, as part of
the natural order of things; nothing more need or can be said. It may vell be
doubted vhether such a naturalistic account is satisfactory on the theoreti-
cal level; other rabbinic authorsnotably, in the selections before us here,
Llijah Mizrahiclearly sought alternative justications. But the problem is
not only one of theory; such a blanket grant of pover to the majority is
bound to conict vith vhat is right and just. This conict is described in
one of the questions posed by the community of Troyes, vhere the tradi-
tional authority of the great ones vas questioned by the more numerous
humble ones. The responding scholars seem unsure here Ought not the
humble obey the great, despite the fact that the elite are fever in number
More emphatically, Ramah insists that the community cannot grant
permission for an economic enterprise that produces a nuisance harming
even a single individual. Ramah resists an expansion of the communal pover
to expropriate, and defends individual rights in terms of inviolable property
rights, reminiscent of contemporary critiques of Takings Who autho-
rized the seven good men of the tovn to agree to harm on behalf of this
individual The individualism of this rhetorical question seems diametri-
cally opposed to the collectivist stance of Rashba and Rivash. \et, despite
an explicit commitment to curtailing the povers of the lahal, Ramah does
not oer any institutional barrier to the excessive exercise of such povers.
It is simply hoped that the lahal vill bov to the religious authority of re-
spondents like Ramah, and that the latter vill faithfully protect the rights of
minorities and individuals. Insofar as local authorities vere prepared to be
overruled by responsa from rabbis of great prestige, recourse to such rabbis
functioned rather like modern judicial reviev.
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Rivash himself also cites an alternative account of communal au-
thority, one cast in more nearly normative (rather than naturalistic) terms.
The tovnspeople have povers analogous to those of a court ||et oiu| Wher-
ever the tovnspeople act |to enforce| their ordinances vithin their tovn,
they are equal to, even greater than, the court. This analogy is in fact im-
plicit already in the eleventh-century Ashkenazi responsum ( o), for ex-
ample, vhere the talmudic prooftext for the pover of the .ourt to expropriate
is cited in support of a similar pover vested in the lahal.
But vhy should the (majority of the) people, or their selected par
uasim, have povers like those of a court Some of the authors here may have
assumed a functional reply vhoever carries out the functions of leadership
must be accorded the povers necessary for fullling those functions. Miz-
rahi, hovever, oers an analytic explanation, vhich looks to the source of
the povers of the high court itself. The authority of local leaders, supported
by popular majority, is analogous to the national authority of the Sanhedrin
because both are equally based on the (tacit) consent of the governed.
The notion of consent had gured also in earlier sources, for ex-
ample, in Rashbas emphasis on the requirement of representation from the
minor communities. Here, hovever, it is presented as the underlying justi-
cation for any form of political authority. Thus, Mizrahis treatise amounts
in eect to a theoretical endorsement of the democratic principle of gov-
ernment by consent.
The major veakness of Mizrahis position, and of the tradition that
it represents, is the gap betveen theory and practice. More precisely, the
problemis that the actual vorkings of the lahal lag behind the abstract theory
that is said to justify them. In principle, government dravs its povers from
popular consent, and the authority of lavs depends on their acceptance by
the majority. In reality, there may be several synagogues, rival gatherings
and at times even vicked men vith clubs producing a false appearance of
consent.
This veakness bears a structural similarity to the problem noted
above vith regard to the tension betveen majority rule and the requirements
of justice. In principle, the tovnspeople may not use their pover to disen-
franchise an individual, but there is no systematic denition of the realm
of protected rights. In practice, hovever, there is some guarantee of pro-
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cedural (if not substantive) protection. lirst, this comes through the nega-
tive mechanism of interrupting the service a license to interfere vith the
lahal s normal functions. Then, on some vievs at least, there is also the re-
quirement of consent by the aoam hashu:, the prominent person. If the aoam
hashu: acts as rabbi, his function is analogous to judicial reviev; if as chief
paruas, community leader, his pover to prevent a lav from taking eect
resembles the pover of executive veto.
With regard to government by consent, hovever, there is a marked
deciency of vorked-out procedures. It is almost as though the emergent
democratic ideas are put forvard as retroactive justications for existing
communal institutions. The commitment to popular consent often does pro-
duceas in the responsum by Mizrahia check on the exercise of brute
force. But it does not produce an extensive refurbishing of the lahal s politi-
cal structures.
In sum, it may be said that the medieval lahal bequeaths to us
on some accounts, at leasta principle of democracy, but not an established
heritage of democratic institutions.
^oam j. 2ohar
!he Kahal auo the Ra||i
!he Iromiueut Halham
. Maimonides, MT Iavs of Sales ,
lor reasons of linguistic consistency this translation is ours rather than that of the \ale
|udaica Series.
Maimouioes .ooi.atiou oj the legislati:e auo .oer.i:e pouers oj traoesmeu auo touus
people shous his prejereu.e jor ra||iui. o:er lay authority. Iu his reuoeriug oj the talmu
oi. story oj the |ut.hers agreemeut ( ,), he repla.es the :ague talmuoi. term promi
ueut persou uith the .learer promiueut s.holar (hakham)uhose tasl is to guioe
the polity to ex.elleu.e.
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Kahal and Rabbi ,
,. The tovnspeople are authorized to x the price of anything they choose,
even of meat or bread. They may stipulate among themselves that vhoever
violates |their decree| vill be punished in this or that manner.
o. Tradesmen are similarly authorized to decide among themselves
that no one may operate on anothers day . . . and that vhoever violates the
stipulation vill be punished. . . .
. All this applies in a city |meoiuah| vithout a prominent halham
to order civic aairs and to bring about excellence in the activities of its in-
habitants. If, hovever, it has a prominent halham, their stipulation has no
eect vhatever . . . unless he had joined in it and it vas done under the hal
hams auspices. Anyone vho imposes a loss |upon a purported violator| of a
stipulation not |adopted| under the halhams auspices must pay compensa-
tion.
!he 8.ope oj the Iromiueut Iersous Authority
. Shimon b. Tzemah Duran, !ash|et:
Iu the pre:ious sele.tiou Maimouioes .asts his promiueut hakham iu the role oj .i:i.
leaoer. L:eu so, Ierjet ( :.), .ommeutiug ou Maimouioes auo relyiug ou the immeoi
ate .outext ( :,, .lause :o), hao restri.teo the halhams authority to rules maoe |y
traoesmeu. Agaiust this, Durau, uho su..eeoeo Ierjet as .hiej ra||i oj Algiers iu :,o:,
argues here jor au expauoeo .ou.eptiou oj the promiueut persous role.
Maimonides amplied here, saying, A prominent halham to order civic af-
fairs |and to bring about excellence in the activities of its inhabitants|. |By
this| he means to say that the halham must be appointed for these |matters|.
If, hovever, there is among them an aoam hashu: vho is not appointed over
their aairs, their ordinance takes eect even vithout him. . . . Rivash com-
ments that ordinances of the tovnspeople |are valid| in any case vithout the
aoam hashu:. He supports this from the text of Maimonides, vho only men-
tions this requirement of aoam hashu: in the context of |ordinances passed
by| tradesmen.
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:o The Good Men of the Tovn
In my humble opinion, hovever, it seems that vith respect to ordi-
nances of the tovnspeople as vell, if there is among them an aoam hashu:
appointed over all their aairs, their ordinance is not valid |literally, is no
ordinance| vithout him. No punishment may be imposed for |the breach
of | anything enacted vithout him, since they have already accepted him
over themselves, |that is, accepted| that all their acts be subject to his reviev,
so they cannot act vithout him. And regarding the support |Rivash| brought
from the text of Maimonides . . . it can be argued that Maimonides merely
folloved the Talmud, vhere this requirement is adduced in the context of
the case of the tvo butchersand that case simply happened as it did |i.e.,
vith an ordinance of tradesmen vhich, nevertheless, applies to tovnspeople
as vell|.
!he Ra||i as a Commuual Lmployee
. Menachem Meiri, Bet haBehirah, Bava Batra :b
Mu.h oj the ougoiug .outro:ersy amoug meoie:al .ommeutators regaroiug the exteut
oj the promiueut persous authority e:ol:eo arouuo the iuterpretatiou oj Maimouioes
.ooe. Meiris .ommeuts ou the talmuoi. ois.ussiou ( ,), are iuueu.eo here (as ojteu
is the .ase) |y Maimouioes jormulatiou. Yet he oes.ri|es the hakham, or ra||i, as a
mere employee oj the touu.
It has already been stated that tradesmen are authorizedvithout approval
of the tovnto stipulate among themselves that no one may operate on
anothers day, and to impose a specied penalty upon violators. Nevertheless,
as stated belov |in the talmudic text|, this applies only in a tovn vithout a
prominent halham to order civic activities. If, hovever, it has a prominent
halham, they may not punish or impose loss except under the halhams aus-
pices; anyone vho so punishes |a violator| must repay. Hovever, this applies
only to a halham vho is a governing ocer | paruas| appointed to inspect the
tovns activities and correct vrongs. But other scholars have no |standing|
in such matters. . . .
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Kahal and Rabbi :
Some maintain that this applies even to |stipulations of | the tovns-
people as a vhole. That is, if there is a halham thus appointed, their stipula-
tions are null vithout his approval. So have most commentators maintained.
This, hovever, does not appear to me to be correct except in regard to indi-
viduals of the tovn, such as members of one or several trades. Hovever, re-
garding the tovn as a vhole, it seems to me that they may stipulate vithout
his approval, seeing that they can cancel his appointment.
Connentary. Who Should Rule
Should political pover be exercised by those vho are most expert
at ruling or by those vho are most aected by the rulings The question is
posed less philosophically but more vividly in BT Bava Batra ,a by the ex-
ample of some butchers vho mutually agree to ne any fellov butcher in
the tovn vho slaughters an animal on anothers designated day. They ne
a fellov butcher vho violates their agreement. Although the butchers are
certainly more aected by the agreement than is Rava, the resident rabbi,
and although they have given prior consent to the agreement, Rava over-
rules them. So much is his authority in such matters taken for granted that
he oers no reply to the challenge of a colleague that they |the butchers|
may enforce their decree. Rav Papa simply says in Ravas defense, He ap-
propriately oered no reply.
Perhaps Rava refuses to reply because the butchers themselves did
not seek his advice. But the text at least suggests that, had they come to him,
he could have overruled them in a similarly authoritative fashion, vithout
providing reasons for his decision. The implicit argument vould be that the
butchers lack the relevant knovledge to rule themselves. They are bound by
a body of divinely ordained lavvhose dictates require expert interpretation.
Oering them reasons vould be a signicant concession to the claim that
they are capable of interpreting the lav and therefore of ruling themselves.
They could then oer rebuttals, and vere the rebuttals reasonable, perhaps
even more reasonable than the experts reasoning, they vould call into ques-
tion the experts presumed expertise. Instead of a series of arguments that
might demonstrate the visdom of Ravas decision to overrule the butchers
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:: The Good Men of the Tovn
mutual agreement, Bava Batra simply declares that ordinary people may gov-
ern themselves only vhen experts allov them to do so. The presumption of
expert rule seems to be at least as deeply rooted here as the presumption of
democratic rule is in our ovn timesso much so that a mutual agreement
among butchers that extends only over their ovn trade is considered a uni-
lateral decree, unless a prominent person, a learned man (vomen need not
apply), is unavailable to rule.
Nonetheless, in the absence of such a person, the tovnspeople and
tradesmen are authorized to make decisions and to rule among themselves. In
Maimonides viev, this concession seems to be one of necessity, not morality.
He seems to think that vithout a recognized sage, it isnt possible to bring
about excellence in the activities of |a tovns| inhabitants. In the sages ab-
sence, rule among mediocrities might as vell be mutual. But this mutuality
receives no positive recommendation. And vhy should it be recommended
vhen the presumption is that excellence in ruling requires expert knovl-
edge of a divinely revealed lav that can be acquired only through a lifetime
of intense study
One reason for mutual rule might be that the tovnspeople consid-
ered as a collective self-governing group are in fact experts in ruling them-
selves because together they knov their collective interests better than a resi-
dent rabbi, even a prominent resident rabbi. No one makes this argument (or,
for that matter, the contrary argument), but Perfet strains to interpret Mai-
monides explicit prohibition on the butchers self-rule as permitting tovns-
people (but not tradesmen) to rule themselves. Whatever the majority of
the lahal and the leaders tending to public aairs enact is valid, he claims.
Perfets interpretation of Maimonides is unpersuasive as an interpretation,
but the more democratic position that he takes on tovn rule has the useful
eect of pushing his respondents to defend expert rule on more democratic
grounds.
In response to Perfet, Shimon Duran oers the outlines of an argu-
ment for expert rule from consent, the very same basis that vould seem to
support the tovnspeoples self-rule. Why are the tovnspeoples ordinances
not valid vithout the sanction of the prominent person Not simply be-
cause he is vise or expert in the lavs, but also because they have already
accepted him over themselves, |that is, accepted| that all their acts be subject
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Kahal and Rabbi :
to his approval. Acceptance by the people this reply suggests that the ex-
perts right to rule is not, and cannot be, taken for granted. The people could
conceivably respond We have not accepted your rule; it has been forced
upon us. Or they could agree that they have indeed consented to the rule of
this particular prominent person.
But, critics of consent vill argue, can the tovnspeople really agree
If they have no alternative but to accept the rule of the resident rabbi, then
the argument from consent is a ction to support the rule of experts
though perhaps a convenient ction in a time vhen incipiently democratic
arguments have begun to surface. Meiris comment on Bava Batra :b sug-
gests that consent to expert rule vas not simply a ction, and therefore that
there is more to consent theory than its critics admit. Meiri argues that vhen
and only vhen a vise man is a governing ocer of the tovn are his vievs
authoritative for the tradespeople. Other scholars have no |standing| in such
matters. Why Surely they may be as expert as the governing ocer vhom
the tovnspeople have appointed. But the fact is that they vere not appointed
by the tovnspeople. The tovnspeople did not consent to any vise persons
rule or even to the visest persons rule. They consented to be ruled by a
particular governing ocer, and presumably a majority could have decided
othervise. Or so Meiris commentary suggests.
But Meiri does not stop vith this credible defense of the medieval
equivalent of judicial reviev. He takes another, far more radical step, going
beyond the idea of binding consent to expert rule. Since the tovn appoints
the vise man, the tovnspeople, presumably acting as a group, can stipu-
late vithout his approval, since they can cancel his appointment. This claim
seems to be the equivalent of saying that since the people appoint judges,
vho are authorized to engage in judicial reviev, and since they can cancel
the judges appointments, it follovs that the people can rule vithout judi-
cial approval. |udicial reviev over democratic decisions may or may not be a
good vay for a people vith democratic commitments to govern themselves.
But appointing experts and consenting to their reviev and then overruling
them vhenever a majority disagrees vith their decisions is probably vorse
than doing vithout experts as governing ocers altogether.
Iet us give up the presumption that the people are incapable of
ruling themselves. They may still think themselves better o being governed
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: The Good Men of the Tovn
in some realms by expert authority. In that case, the giving of reasons for
obeying or disobeying authoritative experts becomes critical to reaching a
defensible decision as to vho should rule, in vhat realms, vith vhat de-
gree of legitimacy. \et reason giving is precisely vhat is missing in these
discussions.
Amy Cutmauu
Dispute o:er 8eparatiou oj Ci:il auo Religious Lau
). Ordinances of the Iivorno Community vith Ietters and a Critical
Circular by |acob Sasportas
The ordinances are from the Iivorno community archives, at the Ben Zvi Iibrary in |eru-
salem, pp. o and :, respectively; the letters and the circular are from Isaiah Tishby,
Iggrot R. \aakov Sasportas Neged Parnase Iivorno, Ko|e: Al jao ( |erusalem) , no.
(,o), ::. We thank the library and its librarians for their permission and aid in
photocopying these pages, and ve thank \osef Kaplan and |udith Preminger for assisting
in the translation. Much of the information in the headnote comes from Alfredo S. Toaf,
The Controversy Betveen R. Sasportas and the |evish Community in Ieghorn (o:),
8ejuuot , (,o; Hebrev), o,,.
!he jeuish .ommuuity oj Li:oruo, jouuoeo iu :,,,, uas grauteo juoi.ial autouomy |y
Ieroiuauo Meoi.i, Crauo Dule oj !us.auy. !he .ommuuity uas aomiuistereo |y the
8euhores oel Mahamao, a .ouu.il oj appoiutees leo |y a .ommittee oj the Do:eu
8euhorespromiueut auo pouerjul iuoi:iouals. L:ery jeu hao the right to request
juogmeut |y !orah lau, although legal uoiugs |y ra||iui.al s.holars uere, jormally at
least, ouly ao:isory. Iu reality, mauy matters uere juogeo uuoer uoutalmuoi. laus auo
pro.eoures. Drauiug upou the a..epteo rule that the .ustom oj the mer.hauts some
times supplauts talmuoi. lau (iu xiug, jor iustau.e, the mooe oj .ou.luoiug a sale), the
.ommittee a.teo to oeue a uioe rauge oj issues that uoulo |e ex.luoeo altogether jrom
din torah. !his ga:e rise to oppositiou, leo |y Ra||i ja.o| 8asportas, uho hao .ome to
Li:oruo iu :. 8asportas li:eo iu the .ity jor ouly a short perioo auo su|sequeutly leo
the .ampaigu |y .orrespouoeu.e jrom Marseilles auo Amsteroam. 1e reproou.e here
tuo oo.umeuts jrom the Li:oruo .ommuuity ar.hi:e.
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Kahal and Rabbi :
a. Croiuau.e L`I` jrom :o, uhi.h sets pro.eoural limits to a.
.ess to din torah
|. Lx.erpts jrom the su|sequeut oroiuau.e (uuuum|ereo auo uu
oateo), uhi.h ex.luoes mauy matters jrom din torah auo uas the .ause jor
8asportass .ampaigu
Iiually, ue priut ex.erpts jrom tuo letters uritteu |y 8asportas to the hakhamim iu
Li:oruo auo jrom his .riti.al .ir.ular, uritteu iu :::. !he se:eral passages are .om|iueo
to preseut the maiu liue oj 8asportass .ritique.
Ordinance IXIX
The :d of March o;o
The Senhores do Mahamad, having seen and experienced the ob-
structions that result . . . vhen one of the parties evil-mindedly demands
oiu torah after the arguments have already been presented in commercial dis-
putes; and having convened in consultation vith the Dozen Senhores, de-
scribing to them these obstructions; they have, to remedy this, ordained
That any litigant requesting oiu torah must demand this at the rst
or second session of the trial. If he fails to do this, it shall not be
granted to him. . . . And they ordered that this ordinance be vritten
in the ledger of the lahal.
An Unnumbered, Undated Ordinance
Having recognized that in the past, great altercations have repeat-
edly arisen in the court of the Senhores, the paruasim, in matters of jurisdic-
tion, on account of the dierence betveen our customs and |evish lav (on
the one hand) and the civil lav, municipal lavs, trade regulations, and the
special privileges granted to our nation by his |highness the Grand Duke| in
his blessed estates (on the other hand), as a result of vhich the losing party
seeks revision, causing additional, excessive expensesin order to remove
these obstacles and, as far as possible, produce a remedy; With the authority
conceded to us by the lav, and granted by our Sages, and the privileges given
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:o The Good Men of the Tovn
us by our Prince, to enact tallauot |te.auot|, that is, to issue decrees |vhen|
in competent quorum; |nov| vith the consensus of said quorum, the follov-
ing tallauot are decided and ordained . . . , all vith the purpose of protecting
our nation, preventing discord, and alleviating the |situation of | the litigant
parties. . . .
:. The yeshi:ah |assembly of talmudic scholars| shall not respond in
vriting, qua yeshi:ah, to any query |sheelah|, vhether presented from out-
side or from vithin the city, in any nancial matter, save vith the consent
of the Senhores, the paruasim.
. Considering that many suits and disputes that pertain to civil and
commercial |matters| are delayed, causing great expenses, because the parties
at various points demand judgment strictly by the oiu, vithout regard for
commercial practice or for the customs of the city or the state, vhose deci-
sions and ordinances do not alvays conform strictly to the oiu, and believing
that this disparity might cause unjust rulings vith respect to transactions
vhose principles vere formed civilly and commerciallyin order to remove
these obstacles as vell as others, it is determined, ordained, and declared that
Lach and every transaction declared hereby to pertain to the juris-
diction of the Senhores, the paruasim, or their agents . . . shall adhere to
commercial custom or the regulations of the marketplace, to vhich ve as-
sent and approve as if they vere expressly decided in oiu torah, vithout need
for any further grounds. They must be carried out, conrmed, and |folloved
in the| rulings of the Senhores del Maamad. . . .
It is also declared and ordained that |regarding| all cases, suits, and
disputes that pertain to divine or spiritual lav |as| enumerated belov and
similar |matters|, the paruasim. . . , arbiters and empovered judges alike, shall
be requiredeven vithout the parties so demandingto decide and rule
according to |evish lavs and customs. They are therefore permitted to refer
these cases to Senhores halhamim as they choose, so that they shall render
their opinion and the ruling shall then be promulgated by the Senhores del
Mahamad, judges, or arbiters.
Issues pertaiuiug to din torah
marriage contracts (in accordance vith the enactments)
beliefs, gittiu |vrits of divorce|
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Kahal and Rabbi :;
entitlements |to ritual roles| (in accordance vith the enactments)
lashrut |propriety|, mashlautot |mortgages|, |and| usury
spiritual matters pertaining to divine lav, vills, donations
Issues pertaiuiug to the 8euhores oel Mahamao
commerce over sea and land
buying and selling of merchandise, jevels
pledges, lienson land or sea
insurance, securities, deeds and commercial contracts
brokering and provisioning, nances, deposits
loans . . .
condences and bankruptcy
companies, compromises
|family| preferences in |nancial| shares
Ietters and a Critical Circular by |acob Sasportas
|Ietter from Marseilles|
My ovn eyes have vitnessed the outlandish decrees like a malig-
nant scab, vhich vere enacted by those vho cast o the yoke of the kingdom
of heaven. In an attempt at apology, they vrote to the men of the maamao
|in Amsterdam|, claiming thathaving observed the procrastination in oiu
torahthey enacted that all monetary cases vill be judged as they see t by
the custom of the merchants, except for donations, bequests, letu|ot |mar-
riage contracts| and gittiu. And even if the litigants agree to be judged ac-
cording to oiu torah, they vill be refused.
Woe to the ears that hear this and the eyes that see this' lor of vhat
use is this apology Rather, . . . their sin has become an extreme crime and
a rebellion, since both reason and the lav
26
stand in opposition to them.
Who has seen or heard the like of this, namely, that if both parties accept
upon themselves tvo laypersons as judges, this is not binding |Surely this
vould not be accepted| by human reason, nor by any of the legal systems of
:o. The Hebrev vord here is oat, vhich may refer particularly to religious lav.
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:: The Good Men of the Tovn
the nations, even the kings lav' Should not the priestly voman be treated
as vell as the innkeeper,
27
the mistress as vell as the maidservant Is divine
lav to be considered inferior to lay lav, and the reasoning of Torah scholars
incapable of distinguishing betveen vhat |should be| determined by human
reason and judged according to the custom of the merchants and vhat is
|properly| determined by divine lav . . . |Instead,| they |the Iivorno leaders|
employ the false claim that, having observed the procrastination that occurs
in |obtaining| a ruling from the halhamim, they have visely devised their
|ovn| enactment. But it is exactly the opposite' On the contrary, in judg-
ment by laypersons ve observe procrastination. |Lven in| a simple judgment,
vhere the lav is straightforvard and the case |itself | . . . should not involve
a great time period . . . , days and years pass, expenses accumulate, and liti-
gants multiply. As for a case that confounds them, they explore it through
investigations . . . that follov the |literal| meaning of vords rather than their
sense. They turn light into darkness and darkness into light. They produce
nothing in good order, yet attribute defects to that vhich is vell ordered' . . .
|Ietter from Amsterdam|
If they argue that they judge according to the custom of the mer-
chants, and the custom of the merchants is Torah, then there vas no need
for their proclamation, vhose language annuls oiu torah: . . . In any case, the
custom of the merchants is Torah only for issues relating to acquisitions, but
in regard to lavs concerning pledges, credit, and the requirement of taking
an oath . . . the custom of the merchants |has no authority|. Hovever, the
complete truth is that their aspiration and desire is to cast avay . . . and dis-
miss anything that bespeaks the honor of the halhamim, to deprive them of
all authority and lover them to the dust to be trampled upon by the laity.
In this vay they |seek to| cast o the kingdom of heaven. . . .
|Critical Circular from Amsterdam|
Indeed, the original rule vas diametrically opposite if one party,
at the outset, requested oiu torah, the other vould perforce have to comply.
:;. A mishnaic idiom (\evamot o;) commonly employed to demand that holy persons or in-
stitutions be accorded at least as much reverence as that accorded to their mundane counter-
parts.
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Kahal and Rabbi :,
|Nov|, hovever, the peoples masters, vho vield the vhip, have reversed
the rule. It is true that, even initially, judgment by the halhamim vas vulner-
able, dependent on the vill and vhim of the paruasim, vho could inscrutably
conrm the judgment or annul it. Still, this did not constitute such a a-
grant disgrace as this nev abuse does, for the former vas implicit, vhereas
the latter is explicit. . . .
If the |enactment| had been endorsed by the lahal, in accordance
vith accepted practice, I vould have kept silent, so as not to insult their
honor. They |the Iivorno leaders|, hovever, seized pover for themselves
through their vealth and might, nding favor by transferring silver. When
a seat becomes vacant, they obtain from the lord of the land vrits of ap-
pointment to a place among the Tvelvevhether |they are| vorthy or un-
vorthy. Money reigns supreme, the decient |man| gains an appointment
and is deemed a|n appropriate| replacement. Virtually all of them are thus
|appointed|.
. . . They revoked the initial enactment vithout the consent of the
vhole people or a majority thereof. |Such consent vould be required| not
just for this outlandish decreevhich destroys |entire| vorlds by canceling
the oiu torah upon vhich the vorld standsbut even in matters involving
advantage to one and disadvantage to another. |Indeed|, according to most
poslim, even matters of making a fence require endorsement by the lahal.
Certainly this enactment should be utterly ignored. . .
Lven if they claim that the lahal s representatives joined in this re-
bellion and vent along vith them, they are not empovered to act against
our holy Torah. . . . Iet no one suggest . . . that Gods people might erect
an asherah
28
or a statue . . . , for upright people of Israel are not suspected of
such deeds.
::. An allusion to Deut. o:::, and to the midrashic comment Whoever appoints an un-
vorthy judgeit is as though he has planted an asherah |a tree connected to idolatrous
practices| (BT Sanhedrin ;b).
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xi xr The Gentile State
Introduction
Legitinacy of Non-)evish Authority
Diua oeMallhuta Diua
. BT Bava Kama ab
Di:iue Right Argumeut
:. Anonymous Gaonite Responsum, Respousa Ceoui.a (Assaf )
1alioity oj Ceutile Ci:il Lau
. Rashi, BT Gittin ,b
Argumeut jrom Couseut
. Samuel b. Meir (Rashbam), BT Bava Batra b, s.v. :ehaamar
Lulistiug the Courts Iouer to Lxpropriate
. |acob b. Meir Tam, Respousa oj the !osasts :
Ieuoal Argumeut
o. Isaac Or Zarua, Cr 2arua, Bava Kama ;
Hypotheti.al Couseut
;. Hayyim Or Zarua, Respousa :o, :oo
Criti.i:iug the Kiugs Loi.ts
:. Meir b. Baruch of Rothenburg (Maharam), Respousa (Prague) ,
!a.it Couseut
,. Maimonides, MT Iavs of Robbery and Iost Property ,:
Limitiug the 8.ope oj Diua oeMallhuta
o. Menachem Meiri, Bet haBehirah, Bava Kama b
Commentary. Menachem Iorberbaum, Consent Theory in
Diua oeMallhuta Diua
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Introduction
Modern Disputes: Civil and Religious Lav
Ci:il auo Religious Di:or.eI
. Ishmael of Modena, The Ansvers to the Tvelve Questions of
the Lmperor Napoleon, :
Ci:il auo Religious Di:or.eII
:. Akiva Liger, Respousa (second edition) :
Lxpauoiug the 8.ope oj Diua oeMallhuta
. Samuel Holdheim, Cu the Autouomy oj the Ra||is
Commentary. |onathan W. Malino, |udaism and the
Secular State
Iutroou.tiou
Lxile and diaspora forced the |evs to confront a nev and unprece-
dented political issue the legitimacy of non-|evish kings, states, and lavs.
We have already seen hov questions of legitimacy vere discussed vhen
the authority of |evish institutions or particular |evish claimantskings,
priests, prophets, rabbisvas in dispute. Arguments vere historical, textual,
and practical, but they vere shaped and ordered by a religious understanding,
and they vere incorporated vithin a legal systemthat had its ultimate source
in divine revelation. In a formal sense, non-|evish legitimacy vas treated
in the same vay. |eremiahs injunction to the Babylonian exiles to seek the
peace of the city to vhich I have exiled you and pray to the Iord in its behalf;
for in the peace thereof you shall have peace (:,;) provided simultaneously
a divine command, a biblical precedent, and a practical argument for recog-
nizing and accepting gentile authority. The argument vas incorporated into
|evish lav by the early Babylonian amora Shmuel, vho ruled that the lav
of the kingdom is lav, oiua oemallhuta oiua. Iater rabbis made this a legal
maxim, thus providing a halakhic reason for obeying non-halakhic lavs
and for acknovledging the legitimacy, not only the pover, of non-|evish
rulers.
But this formal recognition of the kings lav vas thus far vith-
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: The Gentile State
out substantive legal or moral grounds. |eremiahs reason vas merely pru-
dential, and Shmuel, vho gives no reason at all for his ruling, may vell
have had nothing else in mind. Certainly it vas a common viev of exilic
|evs that their submission to gentile rulers, the political quietism urged by
|eremiah, vas nothing more than a pragmatic recognition of brute force.
Lveryday submission concealed both anger and resentmentand hope for a
future messianic overturn. But that vas never the vhole story. Submission
also gave rise to vhat might be called a theory of submission. lor maxims
like Shmuels are not by themselves either intellectually satisfying or nally
persuasive; they dont ansver the inevitable questions. Why is the oiua oe
mallhuta, the lav of the kingdom, lav What do the terms of the maxim
mean Is every lav equally legitimate Hov far does the maxim extend
If |eremiahs reasons are accepted, are there any limits on peace seeking and
accommodation Diua oemallhuta might dier from, even contradict, the
Torah of Moses and the rulings of the Rabbis vas it oiualaveven then
Hov can the authority of the king be reconciled vith the authority of the
one and only King
Responding to these questions, |evish judges, sages, and philoso-
phers produced arguments about legitimacy that vere essentially secular in
character. The limits of gentile authority vere xed, of course, by vhat-
ever vas taken to be central and crucial in halalhah, but obedience vithin
those limits vas justied, and disobedience permitted, for reasons internal
to the sphere of the kingdom. And the reasons canvassed in |evish legal
vritings vere essentially the same as those canvassed in non-|evish political
theory. Indeed, oiua oemallhuta made political theorists out of vriters vho
(Maimonides being virtually the only exception) had little idea of and vere
hardly attracted to the theoretical enterprise. Divine right, popular consent,
customary usage, feudal land lavall these play a part in rabbinic responsa
and legal commentaries. We provide a range of examples, most of them from
Ashkenaz, from the eleventh to the thirteenth centuries, vhen the public
lav of the lahal vas rst debated.
Consent is the doctrine most likely to be invoked; of all the avail-
able doctrines, it vas, as ve have seen, the one most familiar to |evish vriters,
the one that resonated most vith their ovn understanding of hov lav
even divine lav, all the more so human lavbecame obligatory. (Recall
the arguments about the covenant in ; and about the good men in ;:.)
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Introduction
But this deep justication dealt only vith authority in generalthe gen-
tile kingdom, the king, and the kings or the kingdoms lav; particular royal
enactments dont seem to have required consent. Before the rabbis vere pre-
pared to call them binding, they did, hovever, have to be at least minimally
just. Or, in a striking anticipation of modern arguments, it had to be pos-
sible to claim that they had been tacitly accepted or to imagine some sort
of hypothetical consentvhich is to say that had they been asked, reason-
able human beings vould have accepted the enactments. One or the other of
these possibilities seems to be implied by the second of Hayyim Or Zaruas
tvo responsa excerpted belov, though the argument is made in a more tra-
ditional idiom.
Minimal justice vas all that most |evish vriters required, or, per-
haps better, all that they expected, of non-|evish rulers. This meant tvo
things. lirst, the content of the lavs had to be made explicit (the amount
of the required taxes, say, knovn in advance). Second, the application of the
lavs had to be universal (the same taxes collected from all the kings sub-
jects). Iav, in other vords, could not be either arbitrary or discriminatory. In
fact, |evish vriters typically believed that these requirements vere analytic
to the concept of lav arbitrary and discriminatory enactments or practices
vere not lav at all, hence not covered by the maxim oiua oemallhuta oiua.
The practical distinction is betveen taxation and robbery; it is elaborated
most systematically, as usual, by Maimonides.
Taxation is the standard example not only because it vas the most
common practical issue but also because it suggested the range of issues to
vhich the maxim vas meant to apply. The economic life of the diaspora
communities vas legitimately regulated by non-|evish authorities, but not
the religious life. Lxactly hov and exactly vhere this line should be dravn
vere questions of ongoing dispute. This is the form in vhich |evs debated
vhat vas called in the non-|evish vorld the relations of church and state.
The problem is anticipated, though hardly dealt vith, in the biblical account
of King |ehoshaphats courts See, Amariah the chief priest is over you in
all matters concerning the Iord, and Zebadiah . . . is the commander of the
house of |udah in all matters concerning the king (: Chron. ,).
When the rabbis came to map the tvo jurisdictions, they adopted
a more practical terminology they distinguished betveen mamoua, civil and
economic matters, vhere oiua oemallhuta vas legitimately dominant even
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The Gentile State
over Torah lav, and isura, literally, forbidden, that is, religious matters,
vhere the Torah could not be superseded. We may read this as a more or less
straightforvard distinction betveen secular and religious regulation, mamoua
representing but not necessarily exhausting the secular interest. |evs vere
to accommodate themselves (vhen they had no choice) to gentile rule in
the secular realm, but in the religious realm accommodation vas impossible;
they vere to resist, if necessary, even to the point of martyrdom.
Whatever its diculties, this distinction vas easier to drav vhen
|evs lived vithin their ovn semiautonomous communities (though even
there it vas sometimes contentious, as vhen the authority of the good men
vis-a-vis the rabbis vas being vorked out). But the rise of the modern state,
and the emancipation of the |evs vithin it, brought an enormous expan-
sion of the kings matters and of the secular interest, far beyond anything
the old categories could accommodate. Lighteenth- and nineteenth-century
rabbis, for example, disagreed ercely over the obligatory character of mili-
tary service vas this a question of mamoua because time, like money, could
legitimately be taxed, or of isura because soldiers often vere unable to ob-
serve religious prohibitions Similar debates arose over civil marriage and
divorce, for marriage vas at once a religiously sanctioned union and (be-
cause of dovries and inheritances) an economic contract. But even rabbis
vho held that the vhole of marriage lav, the nancial aspects included, vere
isura had to nd a vay to acknovledge the legitimacy of secular authority
the responsum of Akiva Liger suggests both the diculties and the inevi-
table resolution. Reform rabbis like Samuel Holdheim (but he vas one of
the most radical) vere ready for a more vholehearted embrace of the secular
state; they pushed oiua oemallhuta far beyond its medieval limits.
Once these matters vere broached and various doctrines elabo-
rated, it vas inevitable that someone vould ask vhether Shmuels maxim
also applied to Israelite kings and to a |evish state. Might a self-governing
community of |evs nd in oiua oemallhuta oiua a principle of legitimation
for non-halakhic lav Most |evish vriters vere uncomfortable vith the
idea, for it suggested a division vithin the |evish community much sharper
than any that had been recognized in biblical or talmudic times (both Ama-
riah and Zebadiah, priest and commander, most of them vould have said,
vere bound by the halalhah). But the idea vas plausible enough, if not in
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Iegitimacy
the case of a Davidic king, the future messiah, then in the case of any other
|evish ruler. |ust as Gerondi found in the biblical idea of kingship an open-
ing to explore the meaning of politics (see ;, o), so other vriters might
nd in the exilic acknovledgment of gentile lav an opening to explore the
meaning of |evish as vell as gentile secularism. In fact, there vasnt much
eagerness for explorationnot, at least, until the emergence of a |evish state
in ,:. Writers vithin the tradition vere likely to regard Shmuels maxim
as an involuntary and prudential concession, to be rescinded as soon as pos-
sible, vhile vriters outside the tradition regarded it as largely superuous,
since they had already conceded virtually everything to state authority. In
fact, hovever, this Babylonian Shmuel, vith regard to non-|evish kings,
like the biblical Samuel vith regard to |evish kings, began an important and
not yet nished argument about religion and the state. We return to it in the
next chapter.
Legitima.y oj ^oujeuish Authority
Diua oeMallhuta Diua
. BT Bava Kama ab
!his talmuoi. ois.ussiou iutroou.es the priu.iple the lau oj the liugoom is lau (dina
de-malkhuta dina). Iaraooxi.ally, the startiug poiut jor the ois.ussiou is a statemeut
that pla.es tax .olle.tiug ou a par uith ro||ery. !his may ree.t the am|iguity oj the
Ra||iui. stau.e :is:is the pra.ti.al pouer oj geutile rulers. !he Ra||is theu la|or to
oeue the parameters oj legitimate taxjarmiug auo go:erumeut taliugs.
|In the face of demands by| those vho threaten to kill or to conscate, or by
tax collectors, it is permissible to vov that ones crop is terumah |the priests
portion| or the kings property, even though it is neither terumah nor the
kings property.
1
. This is a citation from Mishnah Nedarim .
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o The Gentile State
|O|r by tax collectorsbut did not Shmuel say, The lav of the
kingdom is lav Said Rav Hinnena b. Kahana, citing Shmuel This |per-
mission to lie| refers to |the case of | a tax collector vho is subject to no limit
|i.e., one vho is granted license to collect as much as he can|. Rabbi \annais
school says This refers to a tax collector acting on his ovn |Rashi. One not
appointed by the king|.
2
. . . To return to Shmuels statement, The lav of the kingdom is
lav. Said Rava This can be proven from the fact that |state ocials| cut
dovn palm trees to build bridges, and ve cross upon them.
3
Abaye said to
him But perhaps that is because the |trees| ovners forsake them' He an-
svered If the lav of the kingdom vere not lav, vhy should they forsake
them |!osajot. They ought rather to sue anyone vho crosses'|
But do the ocials not |in fact| deviate from the kings decree lor
the king decrees, Go forth and cut |trees| from all groves, vhereas they
go and cut from one grove'The kings representative is like the king, and
he is not required to exert himself. It is |the tree ovners| vho caused their
ovn loss, for they ought to have collected |money| from all |the| ovners and
made payment |for timber from one location|. . . .
Said Rava One tovnsman may be made ansverable on account of
another. This applies only to the land tax or poll tax of the current year, but
|not to that of | the past year, |because| once the king has been satised, it
is past.
Di:iue Right Argumeut
z. Anonymous Gaonite Responsum, Respousa Ceoui.a (Assaf )
Simha Assaf, Respousa Ceoui.a ( |erusalem Mekize Nirdamim, ,:; Hebrev), sec. , p. ;.
!he oi:iue right argumeut oj this Caoui. text oeri:es its spe.ial a:or jrom its proojtext
(^eh. ,.,). Iu the Bi|le, this is a passage oj lameutatiou, it .ou.luoes a grim a..ouut
:. A third ansver, proposed by Rav Ashi, identies the tax collector as a non-|ev; this gives rise
to a discussion about the vrongfulness of robbing a non-|ev. We take up this issue in ;o.
. Ravas point is that unless state takings are considered legitimate it vould be vrong to use
bridges constructed by the government from privately ovned trees.
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Iegitimacy ;
oj Iersiau rule uith the liue auo ue are iu great oistress. Yet, the Caou implies, uhat
Coo has uilleo is uormati:e, e:eu ij he uilleo it ou a..ouut oj our sius.
. . . This is the import of Shmuels dictum |oiua oemallhuta oiua| that just
as God established the rule of the kingdoms in His vorld, He also subjected
peoples property to the rule |of these kingdoms| according to their vill.
|This applies| even to Israel, as vritten |On account of our sins, |the Iand
of Israel| yields its abundant crops to kings vhom you have set over us|.
They rule over our bodies and our beasts as they please (Neh. ,;).
!he uext :e sele.tious tra.e the oe:elopmeut oj argumeuts .ou.eruiug dina de-
malkhuta dina uithiu oue s.hool oj thought, that oj the tosasts oj the tueljth auo
thirteeuth .euturies, uhose startiug poiut here (as is ojteu the .ase) is Rashis .om
meutary to the !almuo. Rashis grauosou Rash|am stuoieo uith his grauojather, auo
8ele.tiou , is jrom his .ommeutary ou tra.tate Ba:a Batra, portious oj uhi.h uere useo
to .omplete the .ommeutary that Rashi lejt uuuisheo at his oeath iu ::o,. Rash|ams
youuger |rother, ja.o| !am ( ,), uas too youug to stuoy uith Rashi, |ut he uas the
.eutral gure oj the s.hool. Llie:er |. 8amuel oj Met: uas !ams stuoeut auo oue oj
the tea.hers oj A:i haL:ri (Llie:er |. Yoel Hale:i), uho iu turu taught Isaa. Cr
2arua, uameo jor his maguum opus ( jrom uhi.h ue tale ), Hayyim Cr 2arua
( ) uas Isaa.s sou. 1e euo uith a sele.tiou jrom Meir oj Rotheu|urg ( :), the leaoiug
gure oj the tosast s.hool iu the thirteeuth .eutury.
1alioity oj Ceutile Ci:il Lau
. Rashi, BT Gittin ,b
Talmud All legal documents made in non-|evish courts, even if
their signatories are non-|evs, are valid, except vrits of divorce.
Rashi Are valid Lven though the parties are |evs, because the
lav of the kingdom is lav. Lxcept vrits of divorce |Non-|evs| are not
|deemed eective agents for| severing |a halalhi. marriage|, because they
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are not party to |halakhic| matrimonial lav. Noahides vere, hovever, com-
manded to institute justice
4
|therefore all other legal transactions are valid|.
Argumeut jrom Couseut
. Samuel b. Meir (Rashbam), BT Bava Batra b, s.v. :ehaamar
All taxes, rates, and rules of kings lav commonly established in
their kingdoms are lav, for all subjects of a kingdom villingly accept the
kings lavs and statutes. Therefore they are perfectly valid lav. . . .
Lulistiug the Courts Iouer to Lxpropriate
. |acob b. Meir Tam, Respousa oj the !osasts :
Respousa oj the !osaphists, edited by Irving A. Agus (Nev\ork Talpioth, \eshiva University,
,; Hebrev), responsum :.
Diua oemallhuta oiua applies only to gentiles, but Israelite kings and the kings
of Davids House are subject to judgment, as set forth in tractate Sanhedrin
(;, ;:); they may not steal, that is to say, |take private property| vrong-
fully. Lven according to those vho hold that vhatever is mentioned in the
section about the king is the kings prerogative (BT Sanhedrin :ob |;, ,|),
nothing further may be implied beyond the items explicitly mentioned
|namely| He vill seize your choice elds, vineyards, and olive groves and
give them to his courtiers ( Sam. :), |i.e.,| to those vho vage his vars.
But he may not take them for himself to increase his vealth or to make
himself a vegetable garden.
5
. . .
Diua oemallhuta oiua applies, hovever, even to vrongful acts, |such
as| cutting dovn palmtrees. This is vrongful and refers only |i.e. is permitted
only| to gentile kings.
. The seven Noahide commandments are discussed in ;o.
. Alluding to the story of King Ahabs seizure of Nabots vineyard, ;, .
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. . . |Still,| Shmuel himself. vho formulated |the principle| oiua oe
mallhuta oiua, qualied it, |excluding| a tax collector vho is subject to no
limit, . . . thus implying that there are restrictions on oiua oemallhuta. lor
example, a tax collector subject to no limit |is excluded| even though the
king appointed him, as in the case at hand. This is because oiua oemallhuta
oiua applies only to governmental |mallhut| functions, such as taxing vithin
a limit, |constructing| bridges, |etc.|.
The principle is this Not any legal innovation introduced by any
king is lav, but rather only the lav of the kingdom |mallhuta| as practiced
by their ancients. lor |our| sages have nullied property |rights| to accord
vith the practice of the kingdom, just as they nullied |property rights| . . .
on account of tilluu olam and the vays of peace |oarlhei shalom|.
Ieuoal Argumeut
. Isaac Or Zarua, Cr 2arua, Bava Kama ;
Our Rabbi Avi ha-Lzri, of blessed memory, vrote There are those vho
maintain that oiua oemallhuta oiua applies only to land, vhile others say
that it applies to other nancial matters as vellhe did not decide |be-
tveen them|. And Rabbi Lliezer b. Samuel, of blessed memory, of Metz,
commenting on BT tractate Nedarim (::a), vrote My teacher says that
oiua oemallhuta oiua applies only vhen the king decrees equally for all his
subjects, but if he issues special |decrees| for one province, his lav is not
lav. . . .
Regarding the case of a king of Israel, ve do not say his lav is lav.
Thus ve read in tractate Sanhedrin, The section about the king vas only
pronounced in order to scare them (:ob |;, ,|)vhatever is mentioned
there is |in fact| forbidden to him. Lven according to the opinion that vhat-
ever is mentioned in the section about the king is the kings prerogative,
this is limited to the items mentioned.
And it is my opinion that |the gentile kings| lav is lav only in re-
gard to land and legal matters dependent upon landfor example, vhere he
pronounces that no person may pass through his land vithout paying the
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taris. . . . Similarly the poll tax, vhere he pronounces, No one may reside
in my land unless he pays a certain sum. This is the reason that his lavs are
lav because the land is his and no one has permission to pass through it ex-
cept in accordance vith his command. But if he levies a tax on a kingdom
that is not his, vhich he conquered abroad, . . . or upon a person vho has
no interest in |the kings| land, the king has no business robbing him.
The lav of Israelite kings, hovever, is not lav, because the Iand of
Israel vas given to each and every Israelite, and it is not the kings. But in
the case of the other nations, it is their lav that the entire land belongs to
the king. The same applies in a case vhere all the commoners stipulate that a
man may benet from their land only in accordance vith their rulestheir
lav is lav.
The point of Shmuels teaching is that the entire land is the kings.
Accordingly, ve read in BT Bava Kama They cut dovn palm trees to build
bridges (b)since the trees and the land belong to |the king|.
Hypotheti.al Couseut
). Hayyim Or Zarua, Respousa :o, :oo
(:o) One member of the lahal vas granted a separate tax arrange-
ment by the ocial. I responded as follovs
If they did not hear of this |arrangement| directly from the ruler,
but only from the ocial, it is void. . . . If they heard the order directly
from the ruler, |then| if this vas after the collective levyeven if prior to
the individual distribution of the tax burdenit seems that |the member
of the lahal | is already obligated |to the lahal |, because it is the custom of
all the communities |lehillot| that if an individual leaves tovn after hearing
of a tax decree, he must |still| participate in payment vith the lahal. . . .
When the king decrees the tax, declaring, Give me such and such,
from that moment on, every individual is obligated to give a certain share of
his property. And if aftervards the king vants to make alterations, subtract-
ing from one and adding to the other, this is not the lav of the kingdom.
As Rashbam, of blessed memory, explained |It is because| all subjects of the
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kingdomvillingly accept the kings lavs and statutes |that| they are perfectly
valid lav. |The subjects| did not, hovever, accept that |the king| should de-
termine the distribution of the tax, but rather that each individual should
give according to his means, because this has been his |the kings| practice
and that of his predecessors throughout time. And if he nov vishes to say,
Take from this person such and such, or completely exempt him |from the
tax|this is not lav. . . . lurthermore, it seems to me that even if this indi-
vidual did not ask the king for a separate arrangement, but rather the king
did this |on his ovn|, even before decreeing the |collective| tax, saying, X
shall give me a certain sum, and you |the community| shall give me a certain
sum, thereby preferentially reducing the burden of this individualfor if he
had participated vith the community as he originally vould have, his share
of the burden vould have been greaterthe king has no authority to grant
a separate arrangement for this is not the lav of the kingdom. The subjects
accepted upon themselves the lavs of the king . . . only in accordance vith
his practice and that of his predecessors. But if he |the king| vishes to alter
|the practice| and treat individuals separately, and it is clear that he does this
only in order to change the distribution vhile the total sum of the tax re-
mains the samehe does not have this authority, for this is not the lav of
the kingdom. . . .
(:oo) . . . People commonly hold that any property that has not
been brought into the kingdom is not taxable, because |it| has not been sub-
jected to the kings rule . . . and that therefore an individual nevly arriving
in the kingdom may oer the king |thus| I vill pay you a specic sum and
be exempt from paying taxes vith the community. It seems, hovever, that
this is vrong. lor the lavof the kingdom is that all those vho live in a tovn
shall together share the burden of the taxes. Nov |this nev person| vishes to
alter this lav, vhich vould increase the burden of the others. lor if he vould
|be taxed| along vith them, his share vould be greater than that vhich he
vould nov give the king. The subjects of his kingdom did not accept this
upon themselves, because this is not a fair lav, and is not lav. . . .
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: The Gentile State
Criti.i:iug the Kiugs Loi.ts
8. Meir b. Baruch of Rothenburg (Maharam), Respousa (Prague) ,
Respousa oj Maharam |. Baru.h, edited by M. Bloch (Budapest, :,; Hebrev).
!his respousum mirrors the pre.arious relatiouship |etueeu mauy jeuish .ommuuities
auo the lo.al geutile rulers. It is possi|ly relateo to au early attempt |y Lmperor Ruoolph
I to |riug the jeuish .ommuuities uuoer the oire.t .outrol oj the .rouu. L:eutually,
the emperor trieo to .ous.ate jeuish property |y .laimiug a|solute su|je.tiou oj per
sou auo property to his uill. Rotheu|urg leo the oppositiou to the emperors attempts,
the .ulmiuatiug a.t oj resistau.e uas a mass exoous to Italy (:.:). Captureo iu Lom
|aroy auo hauoeo o:er to the emperor, he rejuseo to |e rausomeo auo ultimately oieo
iu prisou.
!he .ase here iu:ol:es a more spe.i. issue. Its |a.lgrouuo is the talmuoi.
permissiou to male oue mem|er oj the .ommuuity ausuera|le ou a..ouut oj taxes oue
jrom auother (see :), the se.ouo mem|er must theu reim|urse the payer. May the liug,
theu, rightly .ous.ate mouey jrom the kahal iu oroer to eujor.e auy .laims he has
agaiust au iuoi:ioual jeu`
As to your question |regarding a case in vhich| the king contrived against
the lahal to make them ansverable for Reuven, vho had failed to appear by
an appointed date, and took money from them.
Since Reuven arms that they had not made guarantees for him,
he need not reimburse them. lor it is unlavful to seize |the property of | one
|ev on account of another, as is stated in the |erusalem Talmud . . . and in
our |Babylonian| Talmud as vell One tovnsman may be made ansverable
on account of another. This applies only to the land tax or poll tax of the
current year etc. ( ). The reason is that |vith respect to the tax|, the lavof
the kingdom is lav in such matters; but to make one ansverable on account
of another for a |totally| dierent matterthat is not lav of the kingdom
but rather robbery of the kingdom and is not lavful.
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!a.it Couseut
. Maimonides, MT Iavs of Robbery and Iost Property ,:
!he Cooe oj Maimouioes, Bool Lle:eu. !he Bool oj !orts, trans. H Klein, \ale |udaica Series
(\ale University Press, ,), pp. o:o.
Here, as ojteu iu the Mishneh Torah, Maimouioes .ooi.atiou oj talmuoi. lau iu
:ol:es uot ouly the uea:iug together oj oi:erse strauos |ut also au eort to oeue .eutral
terms auo .ou.epts. Iu the .ourse oj his treatmeut oj dina de-malkhuta, Maimouioes
aooresses the questious 1hat .ouuts as lau` auo 1ho .ouuts as liug`
,. When persons are presumed to be robbers and all their property is pre-
sumably obtained by robbery, because they are robbers by occupation, such
as tax collectors and bandits, it is forbidden to benet from them since the
presumption is that their occupation involves robbery. . . .
o. If tax collectors take avay |some|ones coat and give himanother
instead, or if they take avay his ass and give him another instead, he may
keep the one given him because this is regarded as a transaction of sale and
the presumption is that the ovner has already abandoned hope of recovery.
Nor does the recipient knov for certain that it is property obtained by rob-
bery. But if he is a conscientiously pious person vho is particularly strict
vith himself, he should return it to its original ovner.
. This rule, namely that a tax collector is regarded as a brigand, ap-
plies only if the collector is a heathen, or is self-appointed, or vas appointed
by the king but is not required to collect a xed amount
6
and may take vhat
he likes and leave vhat he likes. But if the king xes a tax of, say, a third or
a quarter |of a oeuar|, or another xed sum, and appoints to collect it on his
behalf an Israelite knovn to be a trustvorthy person vho vould not add to
vhat vas ordered by the king, this collector is not presumed to be a robber,
for the kings decree has the force of lav. Moreover, if one avoids paying
such a tax, he is a transgressor, for he steals the kings property, vhether the
king be a heathen or an Israelite.
:. The same rule applies to cases vhere a king imposes as a tax on
o. Maimonides phrase here is the same as that translated above ( ) as subject to no limit.
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the citizenry, or on each person individually, a xed annual amount, or im-
poses a xed amount on each eld, or decrees that if one breaks a specied
lav, he shall forfeit all his property to the palace, or decrees that if one is
found in a eld at harvest time, he shall pay the tax due on it vhether he is the
ovner of the eld or not, or makes some similar regulation. None of these
cases is deemed robbery, nor is an Israelite vho collects these levies on behalf
of the king presumed to be a thief; rather he may vell be a vorthy person,
provided only that he does not add, alter, or take anything for himself.
. Similarly, if a king becomes angry vith one of his servants or
ministers among his subjects and conscates his eld or his courtyard, this
is not deemed robbery and one is permitted to benet from it. If one buys
it from the king, he becomes its ovner and the original ovner cannot take
it avay from him. lor the lav of all kings permits them to conscate all the
property of those ministers vith vhom they are displeased, and the king has
therefore canceled the ovners original right to it, so that the courtyard or
eld in question is regarded as ovnerless, and if one buys it from the king,
he becomes its lavful ovner. But if a king takes the courtyard or eld of
one of the citizens, contrary to the lavs he has promulgated, he is deemed
a robber, and the original ovner may recover it from anyone vho buys it
from the king.
. The general rule is any lav promulgated by the king to apply
to everyone and not to one person alone is not deemed robbery. But vhat-
ever he takes from one particular person only, not in accordance vith a lav
knovn to everyone but |rather| by doing violence to this person, is deemed
robbery. Consequently, vhen the kings treasurers or ocers sell elds for
the xed tax due on such elds, their sale is valid. But the tax imposed on
each individual may not be collected except from the person himself, and
so, if they sell his eld to recover the poll tax, it is not a legal sale unless the
kings lav permits such action.
. If the kings lav provides that if one fails to pay the tax on his
eld the eld shall belong to vhoever pays the tax, and the ovner of the
eld runs avay because of the tax, and another comes and pays the king the
tax due on it and consumes its produce, this is not deemed robbery; rather,
he may consume the produce and pay the tax until the ovner returns. lor,
as ve have explained, the kings lav is binding.
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o. Similarly, if a king decrees that vhoever pays the xed tax due
from any individual may compel the one delinquent to vork for him, and
then an Israelite comes and pays the tax due from some other impoverished
Israelite, he may make him vork more than vould be usual, for the kings
lav is binding. But he must not make him vork like a slave.
;. If a king cuts dovn trees belonging to a private individual and
makes them into a bridge, it may be crossed. Similarly, if he demolishes
houses and makes from the material a road or a vall, one is permitted to
benet from it. The same rule applies in all similar cases, for the kings lav
is binding.
:. All the above rules apply only to a king vhose coins circulate
in the localities concerned, for then the inhabitants of the country have ac-
cepted him and denitely 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 vho uses force, and as a troop of armed bandits, vhose
lavs are not binding. Moreover, such a king and all his servants are deemed
robbers in every respect.
Limitiug the 8.ope oj Diua oeMallhuta
o. Menachem Meiri, Bet haBehirah, Bava Kama b
Meiri liuls the ois.ussiou oj dina de-malkhuta to the talmuoi. ois.ussiou a|out the
legitimate pouers oj the mouar.hy uithiu the Israelite polity. Iu |oth settiugs the mou
ar.hy is, therejore, su|je.t to the same restri.tious, oetermiueo |y the proper s.ope oj
so:ereiguty (.outrast ja.o| !ams respousum, ,, uritteu a|out tuo .euturies earlier).
All ve have said concerning the lav of the kingdomthat it is a perfectly
valid lavpertains to lavs the king has legislated either for his |ovn| bene-
t or for the benet of his estate. Lven if he legislates that each individual
should give him a certain amount each year, or that he should take a certain
portion of everyones trade, or imposes a toll upon anyone vho does a par-
ticular thing, or anything of the like, even though it goes against our lavs,
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it is lav. It is forbidden to steal from |the king| or transgress his ordinances.
lor this is proper for him qua sovereign, |exactly as in| the statement about
Israelite kings, Whatever is mentioned in the section about the king is the
kings prerogative (BT Sanhedrin :ob |;, ,|). Accordingly, |Shmuel| said
the lav of the kingdom |mallhuta|that is, the lavs proper for him qua
sovereign |mallhut|and did not say the lav of the king.
But anything that he introduces arbitrarily, and the lavs that the
nations maintain according to the teachings of their books or the lavs |uo
moi | of their ancient sages, vhich oppose our lavs, are not included. lor
if they vere, all the lavs of Israel vould be canceled. Thus, in the earlier
generations, vhen the gentiles vould adjudicate |suits about| money on the
evidence of one vitness, |if there arose a case vhere| a gentile sued an Isra-
elite and called another Israelite as a vitness, he |the vitness| vas forbidden
to testify unless he knev that another Israelite could join him |as a second
vitness|, for othervise he vould be causing |suits about| money to be adju-
dicated on the evidence of one vitness. |But| if he knev another could join
him, he had to testify and vould be blessed. . . .
Connentary. Consent Theory in Diua oeMallhuta Diua
Doctrines of consent play a central role in many theories of jus-
tice. Their appeal derives from the moral intuitions that they introduce to
political discourse. Beginning vith the basic intuition that individuals can-
not be held responsible unless they are free to choose, the argument often
proceeds to the strong claim that individuals are only obligated vhen they
have freely chosen. Applying these arguments to the polity leads us to imag-
ine individual citizens prior to the existing distribution of pover as capable
of consenting or not. We are invited to examine critically the existing distri-
bution of pover and determine political and social arrangements to vhich
the citizens could or vould or did actually agree.
Given the long history of ideas of consent in the |evish tradition
(see ;), it is not surprising to nd medieval scholars invoking versions of it
in their deliberations concerning political legitimacy. Nor vere such argu-
ments foreign to the medieval context; medieval Christian thinkers regu-
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larly appealed to the maxim that vhat touches all should be decided by
all. Against the background of a feudal or authoritarian monarchy, consent
theory had an obvious radical potential. To vhat degree vere rabbis avare
of the critical possibilities of consent theory
The general form of the argument is put forvard by Rashbam. All
customary royal enactments, he argues, are legally binding, for all the sub-
jects of a kingdom villingly accept the kings lavs and statutes. It is this
voluntary acceptance of the kings lav that renders it perfectly valid lav.
Consider rst the conclusion of Rashbams argument, that the kings
lav is perfectly valid. This may be addressed to |evs vho feel that they
have no part at all in a gentile polity; although they must concede to its dic-
tates, they need not acknovledge its authority. Rashbam is arguing against
this position, claiming that the gentile kingdom is entirely legitimate. But
vhat is the reach of this claim Does the kings lavdirectly bind |evs as sub-
jects of the kingdom, the maxim oiua oemallhuta oiua merely recognizing
this obligation Or are |evish residents only indirectly subjects of the king,
bound only by the halakhic maxim that constitutes their obligation These
questions touch upon a fundamental concern Can |evish lav concede dual
citizenship to its subjects
Rashbam remains unclear about this point. His grandfather Rashi
had already held that contracts made in heathen courts are valid because the
Noahides vere commanded to institute justicevhich implies an essen-
tial continuity betveen |evish and non-|evish lav. Rashi circumvents the
problem of duality, but at the price of breaking dovn the barrier betveen
these tvo legal systems.
Iet us return to the rst part of Rashbams statement. Since he pro-
vides for no explicit consensual process, he defends an essentially passive
consent (in contrast, for example, to later social contract theory, vhich seeks
active popular consent in creating government). Kings simply assume pover.
Their legitimacy is determined ex post facto, over the course of time, by the
degree to vhich people actually abide by their lavs.
But given the tacit character of consent, can it serve as a constraint
upon the king Are there any moral or political limits to his rule that ve can
knov prior to an actual rebellion
Rashbam hints at a possible constraint vhen he refers to com-
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monly established royal enactments. Rabbis consulted on a specic enact-
ment vould be required, he suggests, to determine vhether it is in fact a
customary lav of the kingdom. But this is a very limited solution. Iavs are
made all the time, and Rashbam does not tell us hov long ve vould have
to vait to validate nev legislation.
Maimonides too presents a theory of tacit consent, but addresses
the question of constraint in a dierent vay. He provides an objective cri-
terion for assessing consent; the maxim applies only to a king vhose coins
circulate in the localities concerned, for then the inhabitants of the coun-
try have accepted him. But vhat exactly does the inhabitants recognition
indicate One may argue that dealing in the kings money reects accep-
tance of his authority to mint coins. But is it perhaps only a recognition of
his economic reliability by participants in the market The connection vith
political legitimacy remains unclear.
According to Maimonides, consent indicates that the inhabitants of
the country regard |the king| as their master and themselves as his servants.
Consent is given to the fundamental relation of ruling and being ruled. Rash-
bams theory of consent restricted it to those lavs vhich have been accepted
(i.e., become customary). Maimonides formulation lacks this restriction, be-
cause consent is given to monarchic activity as such, including the right to
promulgate lav.
The critical limit on the kings pover is that his lavs must live up
to the minimal analytic requirements of all lav Any lav promulgated by
the king to apply to everyone and not to one person alone is not deemed
robbery. But hov much of a limit is this In !he Cuioe oj the Ierplexeo, Mai-
monides denes justice as the granting to everyone vho has a right to some-
thing, that vhich he has a right to, and giving to every being that vhich
corresponds to his merits (). The expectations of oiua oemallhuta clearly
fall short of this.
Maimonides probably believed that there exists a vide middle
ground betveen just and unjust lav, betveen lav and robbery, vhere dis-
tinctions may be dravn betveen the minimum formal qualities of lav and
the substantive demands of justice. Perhaps he vas simply looking for a prac-
tical criterion by vhich a community in exile could distinguish betveen
legitimate and illegitimate decrees.
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Both Rashbam and Maimonides could be interpreted as presuming
that political rule is legitimate unless proven othervise by a clear act of rejec-
tion. The main dierence betveen themlies in the scope of lavs validated by
this presumption. Rashbam holds a restrictive viev that only established cus-
toms reect the presumption, vhile Maimonides allovs for nevlavs as vell.
Hayyim Or Zarua takes a stronger position concerning consent by turning
it into an active measure of valid legislation in the rabbis hand.
Contrary to Isaac Or Zarua, vho provided a feudal justication for
oiua oemallhuta oiua, basing it on land ovnership, his son Hayyim Or Zarua
follovs Rashbam. He does not, hovever, restrict customary to past rul-
ings. In the course of his argument he moves from a contrast betveen old
and nev enactments to a contrast betveen dierent kinds of lav. There is
the accepted (customary) lav, and there is unjust lav The lav of the king-
dom |for example| is that all those vho live together in a city vill share the
burden of the taxes. Hence this king, vho vishes to lessen the burden of a
favored individual at the expense of the others is acting unjustly. The sub-
jects . . . did not accept this upon themselves, because this is not a fair lav,
auo is uot lau.
Hayyim Or Zarua is not engaged in a historical description; rather
he reconstructs the kinds of decrees that vould hypothetically be consented
to this is hov he determines the validity of the nev decree. An unjust and
unfair lav, he argues, vould not have received the consent of the subjects
and is therefore not binding. Consent is no longer assumed but made into
a critical tool that can determine the validity of specic lavs issued by the
king.
Hypothetical consent of this sort involves several assumptions
. The consent of the subjects is a necessary component of
political legitimacy.
:. Particular enactments of the ruler should be judged ac-
cording to a principle of consent.
. In the absence of actual consent it is possible to con-
struct a hypothetical argument about vhat the subjects vould in-
deed agree to.
. Substantive assumptions about vhat constitutes a fair or
just lav can guide us in constructing this hypothetical argument.
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Isolating these assumptions enables us to locate particular concerns
that remain unattendedespecially the relations among the several assump-
tions. Maimonides, as ve have already seen, accepted a version of the rst
assumption concerning the general need for consent, but gave a dierent
criterion for judging particular royal enactments. But even if ve accept a
strong version of assumption :, ve can still ask vhether hypothetical con-
sent can take the place of actual consent. What is the basis for attributing
this hypothetical construction to the living subjects of the kingdom Hay-
yim Or Zarua suggests that a priori substantive claims of justice inform us
of the subjects vill, but if he is already equipped vith substantive claims
concerning vhat is just and fair, isnt talk about consent redundant
Lxamining these dierent positions, ve are led to conclude that
although consent theory has radical implications, the results of its deploy-
ment by medieval rabbis vere not far-reaching. Rather, consent operates
alongside the assumed legitimacy of the king as a limiting principle upon
his pover. It is true that Rashbam sounds as though he is taking a stronger
position, but he remains silent about actual practice. Hayyim Or Zarua pro-
vides an example of the scrutiny of practice by a creative posel, but the full
possibilities of consent probably cannot be explored vithin the framevork
of a legal ruling. The pover of responsa literature relative to talmudic novel-
lae is that its point of departure is reality rather than the text. But a more
developed political theory is needed to take this reality into account vithin
a framevork that allovs for sustained critical arguments.
Meua.hem Lor|er|aum
Mooeru Disputes. Ci:il auo Religious Lau
Ci:il auo Religious Di:or.eI
. Ishmael of Modena, The Ansvers to the Tvelve Questions of the
Lmperor Napoleon, :
|udah Rosenthal, The Ansvers to the Tvelve Questions of the Lmperor Napoleon by
R. Ishmael of Modena, Italy (Hebrev), !alpioth , nos. (,,), o,;:.
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Cu May ,o, ::o, ^apoleou oe.reeo that a jeuish assem|ly |e .ou:eueo to help oeter
miue the status oj jeus as .iti:eus oj Irau.e. He poseo tuel:e questious to the jeuish
oiguitaries. Cue oj the seuior iu:itees, Ra||i Ishmael oj Mooeua, uas uua|le to at
teuo auo respouoeo iu uritiug. !he text |elou is part oj his respouse to the se.ouo
questiou. 1ithout prouuu.iatiou oj oi:or.e |y a geutile ]i.e., .i:il .ourt, is a get
:alio, e:eu though this uoulo :iolate the Ireu.h .ooes` Ra||i Ishmael stri:es to oer
a justi.atiou, iu terms oj jeuish oi:or.e lau, jor the impli.it requiremeut oj a .i:il
oi:or.e.
According to our legal principles, ve are obliged to bovour heads to all lavs
of the kingdom of our sovereign. lor Shmuel said, oiua oemallhuta oiua.
And all the poslim have vritten that as long as the lavs of the kingdom do
not contradict Torah lav, ve must abide by them. Therefore, concerning the
issue at hand, ve are obligated to follov the lavs of the kingdom just as ve
do the lavs of our holy Torah, for they are both together good.
Hence, vhere Torah lav requires a man to divorce his vife, he must
rst go to the gentile courts and do vhatever is necessary to obtain a civil
divorce, and then go to the local rabbi and give a get to his vife in accordance
vith our holy Torah. |The case is the same| in marriage, vhere the bride and
groom go together to the gentile court to inform them that they are getting
married, committing themselves to the poverful bond of matrimony, and
the court registers it in an ocial document vhich raties the marriage in
accordance vith civil lav. They then proceed to perform a marriage cere-
mony according to the Torahs marriage lavs vith liooushiu and a huppah and
all the benedictions. We must follov the same procedure regarding divorce
and comply vith both civil lav and Torah lav.
And because ve must abide by the kingdoms lavs, providing they
do not contradict Torah lav, any rational person vill see that if one gives a
get to his vife before he obtains a civil divorce from the gentile court ac-
cording to the lavs of the kingdom, the get is void. |Since| the get does not
completely sever the relationship betveen them, it is clearly void. As stated
repeatedly in the Talmud, explicating the verse Iet himvrite her a bill of di-
vorce (Deut. :), An instrument divorcing |literally, severing betveen|
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them (BT Gittin :b) unless it completely severs, it is not a get. The Talmud
states (Gittin :b) that if a man stipulates, Here is your get, on condition that
you never drink vinethis is not considered severing, for this get does
not sever the relationship betveen them. . . . Hov much more so is this get
|vithout civil registration| void' lor even though he gave her the get, the
voman cannot marry another on account of the kings decree.
Ci:il auo Religious Di:or.eII
z. Akiva Liger, Respousa (second edition) :
^apoleou sought to esta|lish the ex.lusi:ity oj .i:il pro.eoures jor marriage auo oi
:or.e. Iu .eutral Lurope, houe:er, although marriage auo oi:or.e uere maoe su|je.t
to the states jurisoi.tiou, they uere exe.uteo through the religious .eremouies oj ea.h
oeuomiuatiou, jolloueo |y .i:il registratiouheu.e, paraooxi.ally, the same talmuoi.
rule that ser:eo as the legal solutiou iu 8ele.tiou :: is uou the sour.e oj the oi.ulty.
Ij uo get is :alio uuless it ee.ts .omplete se:erau.e, ooes uot the requiremeut oj .i:il
re.oguitiou uuoermiue the halakhic souuouess oj jeuish oi:or.es`
To my esteemed friend the great rabbi and head of the court of the holy
community of Berlin, Rabbi Meir Weil, may his light shine.
\our honors letter arrived today. |\ou vrite| of your misgivings
concerning your local custom that vhenever the |et oiu arranges a divorce,
they inform the couple as follovs Knov that concerning lavs of mamoua,
e.g., conjugal inheritance and similar matters, all is as before |i.e., your re-
lationship still holds|, until such time as a civil divorce is obtained from the
non-|evish courts.
This is certainly a very dicult matter. The folloving can hovever
be argued.
Many authorities maintain that oiua oemallhuta oiua does not apply
to the lavs of inheritance. . . . Maimonides position concerning lavs of in-
heritance is that they are not subject to change, and a condition qualifying
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|an inheritance| is not valid (MT Iavs of Inheritance o), because Scrip-
ture says, And it shall be unto the children of Israel a statute of judgment
|hol| (Num. :;), making this an immutable lav. Matters of inheritance
are therefore not included in the rule that stipulations |against the lav| con-
cerning monetary matters |mamou| are valid. Accordingly, ve must say that
although oiua oemallhuta oiua applies to mamou, this is because |mamou| may
be relinquished. An individual has the pover to stipulate and forgo his right.
But in this case, vhich Scripture deemed a hol, in no vay can it be changed,
and it is like a matter of isura.
Lven according to those authorities vho maintain that oiua oe
mallhuta oiua applies to all matters |including inheritance|, it seems to me
that the kings lav |hol hamelelh| certainly does not declare that a get does
not sever |the relationship| for matters of inheritance, |so that| the former
vife is |still| his kin and the former husband her inheritor. Rather, it is as if
the kings lav says, This nonrelated man, X, vho is not her husband, shall
inherit from her.
Concerning the fact that nalizing the get depends upon the civil
divorce, |this is not an impediment to the severance of the relationship be-
cause| it is like a separate stipulation to the eect that, so long as the civil
divorce is not obtained, he vill have the right to her inheritance. But it does
not mean that he is still her husband for these matters; rather, it is the case
that by the lavs of the kingdom he retains rights in his vifes property akin
to those of a husband . . . even though he is not related to her.
This vill be legally sucient to establish that although he generally
retains his right by virtue of the lav of the kingdom |oiua oemallhuta|, this
does not disqualify the divorce. But to state explicitly to the couple Knov
that concerning all matters of mamoua the rights are as before is like stipu-
lating |that a get severs the relationship| except for inheritance |and that
invalidates the get| . . . unless he explicitly says I give this get vithout any
qualication and it severs |the relationship| for all matters, and I have no
rights in your property as a husband. It is only due to the lav of the king
that even though you are no longer my vife for any matter, I am granted the
rights a husband has concerning his vifes property. |He must say this,| or
the |et oiu should thoroughly explain it to them. And the matter still needs
reection.
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Lxpauoiug the 8.ope oj Diua oeMallhuta
. Samuel Holdheim, Cu the Autouomy oj the Ra||is
||er oie Autouomie oer Ra||iueu uuo oas Iriu.ip oer juois.heu Lhe (Schverin, :), pp.
,, oo:. This text vas translated by Almuth Iessing. We are also grateful to Andreas
Gotzmann, \osef Schvartz, and Michael Silber for sharing their expertise vith us.
Holoheim, a leaoiug gure oj the se.ouo geueratiou oj Rejorm ra||is iu Cermauy,
strougly supporteo a|olishiug the legal autouomy oj the jeuish .ommuuity as a ue.
essary .ouoitiou jor jull .i:il iutegratiou. Iu his :ieu, the Ra||iui. oi.tum dina de-
malkhuta dina uas a rst step, al|eit a partial oue, ou the uay to this iutegratiou. Iull
emau.ipatiou uoulo require a sharp oistiu.tiou |etueeu the .i:il auo religious aspe.ts
oj juoaism. As au exemplary iustau.e oj this oistiu.tiou, Holoheim .ites the Irussiau
eoi.t oj :::., uhi.h retaiueo the religious .eremouies jor jeuish ueooiugs auo oi:or.es
|ut ex.luoeo marriage eutirely jrom ra||iui. jurisoi.tiou.
(pp. ,) Subjecting private relations among |evs to the lav and the pro-
tection of the state is the rst, but also the most eective, step tovard their
civil and spiritual emancipation. This alone has transformed the Oriental into
a native Luropean, the |ev vho partly obeyed a lav |he regarded as| for-
eign vhile carrying all the burdens of his ovn |lav| into a native |citizen|,
a full participant in the states highest good, its legal system. This closer af-
liation of the |evs vith the state and its lav necessarily produced a greater
engagement vith the states vell-being |and| a more lively interest in the
further development of legislation tting this enlightened century. Similarly
the feeling, the pleasant feeling, of greater community vith the other citi-
zens vas necessarily created. It is of considerable importance here that |evs
vill no longer have to fear defamation by a modern Haman |saying,| There
is a certain people, scattered and dispersed among the other peoples in all the
provinces of your realm, vhose lavs are dierent from those of any other
people and vho do not obey the kings lavs; and it is not in \our Majestys
interest to tolerate them (Lsther :). . . .
The cancellation of the autonomy of the |evs vas very fruitful not
only in moral terms, but also for their intellectual education. As soon as the
|evish subject and his private legal aairs came under state lav, knovledge
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thereof became more essential than before, partly as duty and partly as ne-
cessity. The advantage in personally getting to knov relevant legal clauses
|vhich nov govern his| close and frequent relations vith his fellov believers
is obvious enough. The necessity of knoving the local language nov seemed
more urgent than ever. |A parent,| out of his ovn lack of knovledge, often
had to be helped by his children. Not quite an exclusively moral incentive,
but still a poverful impulse vas nov given for educating the young beyond
the narrov borders of Hebrev and religious
7
instruction. Trivial occasions
often cause important results, and this vas also the case here. The closer con-
nection to state lav facilitated a closer connection vith the state and its
languageand then its customs and all its intellectual and moral goods.
. . . The present legal condition of the |evs, |namely,| that their re-
lations among themselves are subject to civil lav, . . . is a true blessing and is
crucial for any other civil and religious progress. lor this ve cannot be thank-
ful enough to the vise state authorities. It has also been recognized as such by
every Israelite vho is avare of his position in civil society; and there probably
is hardly anyone vho vould like to exchange this legal status for the former
autonomy of the rabbis. Also, all state authorities, vho have a humane atti-
tude tovard legislation concerning the |evs and the improvement of their
civil status, have begun the vork of renement and improvement vith the
cancellation of |evish autonomy and jurisdiction. In all of Germany, vhere
the legal status of |evs has created a map vith many nuances, I knov of no
land (except Altona, and the |evs there really are not to be envied for this
privilege) vhere the autonomy of the rabbis is permitted by state lav.
Although in most Luropean states the rabbis autonomy and juris-
diction, vith all their consequences, have been canceled, many governments
have felt the need to take into account denominational dierences and reli-
gious considerations that might be closely connected vith private lav and
|therefore to| establish certain special lavs. . . . A need vas felt to sacrice
consistency for |the sake of | higher considerations. Again, the Prussian edict
of March , ::, deserves to be mentioned here as exemplary, and the rigor
;. Our translation uses religious and religion for several dierent German terms vhich may
be variously rendered as religion, confession, faith, and so on.
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vith vhich it implements the higher principles of lav, attests to the high
position occupied by legislation in that period of general intellectual over-
ing. It states (section :o) Private lavconcerning the |evs is to be dealt vith
according to the same lavs that apply to other Prussian citizens. |And fur-
ther| (section :) Lxceptions are hereby made concerning such procedures
and transactions, vhich are necessarily tied to special legal clauses and forms
due to dierences in religious concepts and vorship. . . . There is no legal
state that is excepted from this rule. Only procedures and transactions, but
not legal states |in themselves|, can possibly be tied to special legal clauses and
forms because of the dierence in religious concepts and forms. And here ve
recognize the spirit of the legislator, vho separates religion from lav as tvo
dierent spheres. The cancellation of |evish autonomy and jurisdiction thus
proclaims a true principle Religion deals vith belief and customs; the state
deals vith the lav. Religion has to vatch over the former, and the state over
the latter. This also |means| that the lav cannot be subject to religion. . . .
(pp. oo:) The |evlives vith the |evs of his fatherland in a double,
religious and civil, community; |and| vith the Christians of his fatherland
and vith the |evs of another fatherland in only onevith the former only
in a civil and vith the latter only in a religious community. The religious
community is based on the identity of religious convictions, that is, the
perceptions of God and the revelation of Gods vill to mankind. Hovever
deeply divided in space and by secular and vorldly concerns, |its members|
feel deeply united by a shared, lofty viev of the divine. The civil commu-
nity is based on the common interests of the state in vhich both | |evs and
Christians| live, on their participation in its vell-being and destiny. One may
separate |evs in their private relations among themselves from general state
lavand subject themto a foreign lav; one may exclude themfromthe higher
lavs of the fatherland, from ovning property, from lover and higher civil
service, and so on; one may even exempt them from the duty of defend-
ing their fatherland. But one vill never succeed in making them completely
indierent to the interests of the country in vhich they live, nor in totally
excluding them from community vith their brother-citizens as long as this
country remains the base of their vorldly existence, i.e., as long as they are
not expelled |from it|. If their fatherland is destroyed by var, |evs have to
fear no less for their lives and property; they thus have an interest in peace. If
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a bad year destroys the harvest, |evs are truly not the last ones to experience
general misery; they thus have a lively interest in their fatherlands prosperity.
And is there any fortune or misfortune in their fatherland vhose repercus-
sions the |evs vould not feel In these cases the reality of their sympathies
vith their brother-citizens and the illusion of civil community vith foreign
|evs become apparent. |evs vill alvays feel the common civil misfortune
of their brother-citizens, not the undisturbed good fortune of their brother-
believers abroad. If in such cases |evs receive help from foreign fellov be-
lievers, this is not oving to the civil but only to the religious community.
Whatever similarity in civil lav or other national relations |evs from dier-
ent countries may share, this denitely does not bind them closer than they
already are by virtue of their religious ties. Lqually they are not distanced
from each other by even one hairs breadth once they have acknovledged
just hov purely unreal all |their| national relations are. In modern times this
truth has often been conrmed. |evs in countries vhere they are recognized
as equal citizens |still| feel relatedthrough the sole bond of religionto
|evs in countries vhere they continue to be oppressed by the chains of the
Middle Ages. |This is true| no less than |it vas| during the times vhen the
bonds of religious community vere strengthened by common oppression.
That the rabbinic age after the destruction of the |evish state en-
doved the religious community vith so many national elements can be ex-
plained |in part| by the fact that the |evs vere not lucky enough, after the
destruction, to nd a fatherland that vould accept and include them. . . .
The Palestinian |evs of the Roman empire vere regarded and treated by the
Romans as conquered and enslaved subjects, but their political institutions
vere left intact so long as they didnt endanger the state. After the destruc-
tion of the state, rabbinical |udaism could (except for minor interruptions
caused by rebellions) develop more peacefully than before, vith judicature
an important part of it. The Babylonian | |evs| vere also subjected in all
vorldly relations to the exilarch, and depended in all religious matters on
the Palestinian |sages|. . . .
After the condition of the |evs improved under the protection of
the Persian king Schabur (Saper), the teacher Shmuel in Nahardea (having
returned fromTiberias) implementedin agreement vith the Lxilarch Mar
Ukvathe folloving principle that in |matters of | civil lav, state lav must
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: The Gentile State
be respected.
8
The Rabbis thus felt pressed to study Persian civil lav and
to align it vith the Mishnah. This historical fact shovs that no religious
scruples prevented the rabbis of old from adopting the civil lav of another
country and that they surely vould have done so earlier, and more radi-
cally, if the countries in vhich they lived had not stopped them by force and
alienated them from the |common| interest. Thus it vas not the |evs vho
vanted to create for themselves an articial nationality after the destruction
of their national existence, but the states |of the exile| that forced a kind of
nationality upon themseparating them from the state organism as a dis-
tinct political corporation and forcing them into an unnatural and avkvard
position. We, vho novvery vell recognize our position in the state, vhich is
entirely compatible vith our religious conscience, have to protest solemnly
against every enforced nationality that is not the nationality of the father-
land. |udaismapart from its arrangements for the ancient |evish regime
has given no directions for any other regime and thus relates only to the
religious aspects of man. . . . And since | |udaism| is of a divine, eternal, and
absolute nature, it must be realizable under all conditions and circumstances,
and |it must| guarantee the Israelites those higher goods of life vhich are
promised |them| by their divine nature. Because it allovs and has to allov
the Israelite to live in dierent states, this also has to be morally possible for
himthat is, his religion has to permit him vithout any exceptions to fulll
all civil obligations of the state, vhich are the moral conditions upon vhich
he is accepted into the state. It is impossible to argue in religious terms for a
nationality other than |that of | this stateconsisting, for example, in a sepa-
rate autonomy or something like thatsince that vould cancel vhatever
has already been permitted.
After vhat has been said so far, one can neither argue |in the name|
of the obligation of the |ev tovard |evish lav as such nor question the ad-
missibilityaccording to |evish religious or ritual lavof fullling civil
obligations. Concerning lav and its jurisdiction, as vell as the civil obedi-
ence of the |ev in his fatherland, religion refrains from all special rules and
obligates him only generally to justice, loyalty, and obedience.
:. Clearly, this is Holdheims rendition of Shmuels dictum oiua oemallhuta oiua.
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Civil and Religious Iav ,
Connentary. |udaism and the Secular State
Ishmael begins his response to Napoleons query vith an invoca-
tion of the familiar consensus that as long as the lavs of the kingdom do
not contradict Torah lav, ve must abide by them. To Ishmael, evidently, no
such contradiction exists. He is satised that concerning the issue at hand,
both the lavs of the Torah and the lavs of the kingdom are good (and pre-
sumably, therefore, consistent). Thus ve are obligated to follov the lavs of
the kingdom.
What exactly is the issue at hand That is hard to x precisely,
because Ishmael goes somevhat beyond the narrov connes of Napoleons
question. At the very least, the issue includes vhether a kingdom can require
civil marriage and divorce in addition to vhat is explicitly required by hala
lhah, and vithout vhich the halakhic regulations are insucient to make a
marriage or divorce valid. Since Ishmael nds no impediment to applying
oiua oemallhuta oiua to this issue, he concludes that if a kingdom requires
a civil divorce before a rabbinic get, or requires civil registration before a
|evish vedding ceremony, these lavs must be folloved.
So the ansver to Napoleons specic question looks straightfor-
vard In lands governed by lrench lav, a get vould be invalid vithout the
prior civil divorce mandated by the lrench codes. But Ishmael seems to think
that this conclusion doesnt follov as straightforvardly as it at rst appears,
for he goes on to provide further halakhic support for his viev. According
to halalhah, a get must completely sever the relationship betveen husband
and vife. On account of the kings decree, hovever, vithout a civil divorce
a married voman cannot marry another man. Thus a get vithout a civil di-
vorce fails to satisfy the halakhic conditions for a get and is therefore void. To
reach Ishmaels conclusion ve need to attribute a tvofold legal pover to oiua
oemallhuta oiua. lirst, the maxim establishes that the kings lav is binding;
in addition, it licenses us to use this lav as a premise in further halakhic rea-
soning. It is only because it can be used in the second vay that Ishmael can
arrive at his conclusion that a get is invalid in the circumstances Napoleon
imagines.
Liger utterly rejects Ishmaels conclusion that if the kings lav re-
quires a civil divorce, then any get that is not accompanied by such a divorce
is invalid. He also rejects Ishmaels reasoning, insisting that the kings lav
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certainly does not declare that a get does not sever |the relationship|. What
lies behind this dramatic dierence
It is hard to tell, because Liger focuses on the issue of conjugal in-
heritance and gives us no inkling of vhether he vievs a voman vho has
received a get vithout a civil divorce as halakhically free to marry another
man. What ve do knov is this Liger has produced an ingenious vay to
accommodate the kings lav vithout giving this lav the pover to change
the halakhic conditions for a get. The kings lav, he maintains, rather than
keeping in force one aspect of the marriagenamely, inheritance (vhich
vould have the eect of invalidating the get)simply brings into existence a
nev inheritance bond betveen tvo formerly married people. Hov far can
Ligers ingenuity be pushed Can it provide a systematic vay to accommo-
date the kings lavvithout letting it penetrate into the heart of the halalhah`
If so, then the dierence betveen Ishmael and Liger may be over vhether
oiua oemallhuta oiua has the tvofold pover that, according to our inter-
pretation, Ishmael attributes to it. This vould have the ironic consequence
that Ligers solution is more far-reaching, though Ishmaels is, after a fashion,
more radical.
In any case, the terms far-reaching and radical are relative, as the
selection from Holdheim amply demonstrates. In his book Cu the Autouomy
oj the Ra||is auo the Basis oj jeuish Marriage, Holdheim, no less than Ishmael
and Liger, is concerned vith the relationship betveen |evish marriage (and
divorce) and civil lav. But his approach is breathtakingly dierent. He re-
jects outright vhat to Ishmael and Liger must have seemed a self-evident
axiom, that |udaism is a halakhic system. In its stead, Holdheim pronounces
his ovn axiom |udaism is a religion. (One is reminded of the nineteenth-
century revolution in geometry engendered by giving up Luclids axiom of
parallels.)
Holdheim acknovledges that |udaism vas once embodied in a legal
system vith an elaborate array of lavs governing countless aspects of human
relationships. Butand here he echoes Spinozaby Scriptures ovn lights,
these lavs vere meant to apply only in the specic political conditions of
ancient Israels national theocracy. Of course, he acknovledges that the rab-
binic age after the destruction of the |evish state endoved the religious com-
munity vith . . . many national elements, but this is to be explained |in
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Civil and Religious Iav o
part| by the fact that the |evs vere not lucky enough, after the destruction,
to nd a fatherland that vould accept and include them. In an enlightened
state like Holdheims, the true nature of |udaism as a religious community
based on the identity of religious convictions and embodying a shared,
lofty viev of the divine can emerge. So conceived, |udaism relates only
to the religious aspects of man . . . and is of a divine, eternal, and absolute
nature. Lven more specically, it is constituted by its monotheistic vision
of God and its ethics, as grasped by the higherindeed, (to Holdheim)
almost messianicconsciousness of Holdheims age.
Holdheims conception of |udaism enables him to knov a priori
that |evish marriage and divorce are utterly subservient to civil lav. Indeed,
he knovs a priori that there are uo |evish legal limits to vhat the secular state
can demand of |evs as a price for their full participation in civil society. Were
the state to deny |evs the right to circumcise, for example, Holdheim vould
have no religious reasonnor any (philosophically grounded) desireto
object, hovever much he might criticize the ban on the grounds of religious
freedom. We can only imagine vhat counsel Ishmael or Liger vould oer
in the face of such a legislative restriction. But, vhatever it vould be, it cer-
tainly could not emerge from an extension of the reasoning they so deftly
employ to deal vith civil marriage and divorce.
Holdheims radical viev of |udaism is helpful for the vay it drama-
tizes the inevitable interplay betveen ones self-denition as a |ev and ones
villingness to accommodate the modern secular state. As a proposed self-
denition, Holdheims viev had little appeal in its ovn day. And it has none
today, in an age of ethnic and national sensibility. No |evish community that
hopes to survive can oer up all its ceremonies and practices, or its national
and ethnic character, on the altar of an allegedly enlightened secular state.
That said, there is every bit as little appeal in forms of |evish self-denition
at the opposite extreme of Holdheims religious universalismones, for ex-
ample, vhose strenuous particularism vould limit |evish authenticity to life
in a |evish state, be it secular or theocratic, or to a sectarian life utterly on
the margins of a diaspora society.
Countless vievs inhabit the space betveen these extremes. Perhaps
the most prominent and controversial endorses |evish life in the diaspora
(and presumably accepts oiua oemallhuta) vhile insisting that Israel, as a |ev-
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o: The Gentile State
ish state, must be governed by a religious lav vhose authoritative interpre-
tation is in the hands of a clerical establishment. Holdheims conception of
|udaism as a pure religion vhose civil and, at least potentially, ceremonial
legislation is a historical relic vould render such a viev nonsensical. This as-
sessment is no doubt grounded in a aved conception of |udaism. But fty
years of even the severely circumscribed jurisdiction of the rabbis in con-
temporary Israel, and the consequent mixture of religion and politics that
has corrupted both, provides more than enough reason to share Holdheims
antipathy tovard every manifestation of theocracy.
The villingness of committed |evs to accommodate the secular
state (vherever its territory) depends on more than their |evish self-deni-
tion. It depends as vell on the political and legal shape of the state. Americas
constitutional guarantees of nonestablishment and free exercise of religion
leave little room, given any reasonable mode of |evish self-denition, for
principled objection to American democracy. Perhaps the same cannot be
said for lrench democracy, vhere a more stringent separation of church and
state comes at the price of restricting free exercise in public places. But even
if American democracy is immune from principled objection, accommoda-
tion vill not alvays be easy.
Interpreting the free exercise clause of the American Constitution
can be no less challenging than dening oneself as a |ev. The day may yet
come vhen circumcision, because it seems barbaric to a majority of Supreme
Court justices, is deemed no more vorthy of protection by the lirst Amend-
ment than polygamy is today. Civil disobedience may then become the |ev-
ish order of the day.
jouathau 1. Maliuo
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r r x The State of Israel
Introduction
Legal and Political Continuity
Laus oj Kiugs Lxpress the ^atious 8o:ereiguty
. Abraham Isaac Kook, Mishpat Coheu
Israel as a jeuish 8tate. jeuish Lau
:. Isaac Halevi Herzog, Tovard a |evish State
Diua oeMallhuta, the Cooo Meu oj the !ouu, auo the 8tate
. Ovadyah Haddayah, Does Diua oeMallhuta Diua Apply to the
State of Israel
Religious Signicance of the State
Agaiust the Rule oj Iriests
. Theodore Herzl, Theocracy, in !he jeuish 8tate
!he 8tate oj Israel as the Iouuoatiou oj Coos !hroue
. Abraham Isaac Kook, Crot haKooesh, The Morality of Holiness o
!he ^egati:e 8igui.au.e oj the 8tate. 2iouism Is Heresy
o. \erahmiel Domb, |udaism and Zionism
Di:iue 8o:ereiguty. A jeuish 8tate Requires !orah Lau
;. Isaac Breuer, |udaism and National Home
8eparatiug Religiou auo 8tate
:. \eshayahu Ieibovitz The Religious Signicance of the State of Israel
Mamlalhtiyut. 8tatehooo Requires !olerau.e
,. David Ben-Gurion The Lternity of Israel
Commentary. Peter Berkovitz, Hobbes and Rousseau in Israel
o
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o The State of Israel
A )evish and Denocratic State
A jeuish auo Demo.rati. 8tate
o. Iavs of the State of Israel loundations of Iav, and Basic Iav
Human Dignity and Iiberty
A Li|eral 8e.ular Iositiou
. Aharon Barak, The Constitutional Revolution Protected Basic
Rights
A ^atioualReligious Iositiou
:. Menachem Llon, Constitution by Iegislation The Values of a
|evish and Democratic State in Iight of the Basic Iav Human
Dignity and Personal lreedom
A 8e.ular Iuterpretatiou oj jeuish 1alues
. Haim Cohn, The Values of a |evish and Democratic State
Lxamining the Basic Iav Human Dignity and Iiberty
Commentary. |oseph Raz, Against the Idea of a |evish State
Commentary. Sanford Ievinson, A Multicultural |evish State
Commentary. \ael Tamir, A |evish Democratic State
Iutroou.tiou
The creation of the state of Israel in ,: vas largely the vork of
secular nationalists. They aimed at a condition they called normality, vhich
is to say, a state and society like all the nations. And they also claimed to
address, in the only practical and eective vay alloved in the modern vorld,
the needs of the hour. The |evs vere driven by necessity to seek normality
that vas the central argument of political Zionism. Zionist legitimacy, then,
had a tvofold foundation. It derived, rst, from the specic crisis of dias-
pora |evry in an age of nationalism and dictatorship; and it derived, second,
from the standard contemporary doctrines of self-determination and nor-
mal sovereignty. Neither of these derivations vas in any sense problematic
for secular vriters.
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At the same time, the struggle for statehood and specically for
statehood in eret: yisrael inevitably generated a larger hopenot for nor-
mality but for the most abnormal of all conditions redemption. This hope
could take both secular and religious forms, draving directly or indirectly on
traditional discussions of messianic politics. We vill take up these discussions
in ;:,. But it is important to note here that contemporary understandings of
the authority of the state of Israel are largely determined by the ideological-
theological vievs of those vriters vho address the question. Does the state
actually serve the needs of the hour in the same vay that normal states do
Or does it have a larger purpose And hov are those needs best served or
that purpose best expressed
Secular vriters begin vith an armative ansver to the rst of these
questions (vhich does not preclude an armative ansver to the second) and
then go on to fashion a state ideology in modern democratic and nationalist
terms. Religious understandings of the state start from the same armation
but move on dierently, assimilating modern Israels rulers and ocials to
earlier, non-messianic authorities, vell knovn from |evish history. These
authorities are basically of three sorts, each of vhich has already been dis-
cussed in the preceding chapters the non-Davidic kings of Israel, the good
men of the tovn, and the gentile rulers of the lands of the exile. Lach of
these vas, as ve have seen, religiously sanctioned but conceived in func-
tional terms. They dealt vith the kings matters (foreign aairs and crimi-
nal lav) or vith questions of mamoua (civil and scal lav)vhich vere sub-
ject to religious regulation in principle but vere conceded in practice, at
least some of the time, to secular authority. Or they dealt vith problems of
social order or vith crises or emergencies that vere acknovledged by some,
though not all, vriters to lie beyond religious control entirely. The kings
and communal magistrates vho, in theory or in fact, took charge of these
routine but often critical matters provide three models for a restored |evish
state.
The strongest reassertion of the (non-Davidic) king-of-Israel model
comes from Abraham Isaac Kooksomevhat surprisingly, perhaps, since he
vievs the future state (he vrote before its establishment) in explicitly mes-
sianic terms. But he also had an acute sense of the mundane instrumentalities
of religious aspiration, and he thought that the secular leaders of the yishu:
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oo The State of Israel
(the |evish population in Palestine before ,:) and of the Zionist move-
ment, vhatever their self-understanding and ideological intention, served
to advance the long-term redemptive processhence his choice of Israelite
kings over exilic or gentile rulers as precedents for modern Zionism. Iike
those kings, the Zionists ruled or hoped to rule iu the lauo, and they claimed
to rule in the interests of the nation as a vhole. Through the medium of
the nation, Kook argued, they have become the legitimate and authoritative
heirs of the kings of ancient Israel.
This appeal to the royal model is deeply troubling to Isaac Herzog,
vho sees in it the halakhic argument of Nissim Gerondi (Ran; see ;) that
the king (and hence the prime minister) can act outside the lavs of the Torah
for the sake of social order (tilluu olam). Herzog represents a more conven-
tional orthodox position; he disagrees vith Gerondi in principle and shud-
ders to think of such a king in pover in a |evish state. Unvilling to make
messianic claims for this state and even more unvilling to relinquish the
claims of halalhah, he seeks to establish a privileged position for |evish lav
and for the rabbinic courts (though he already expects little more than a
small corner in the nev Israeli regime), and he emphatically rejects the
idea that the lavs of the king could possibly constitute (or, by analogy,
justify) an independent legal system.
The arguments that start from the maxim oiua oemallhuta oiua or
that build on the experience of the good men have a similar form. They
have secularizing implications (of exactly the sort that vorried Herzog),
vhich are resisted by religious vriters, though vith little hope of success.
lor these tvo models also suggest a realm of mundane concerns that is not,
or not necessarily, or not entirely, governed by halakhic authority, vithin
vhich |evish lay leaders or gentile kings elaborate a second legal system. The
rule of gentile kings may seem an odd model for a |evish state (although
the applicability of oiua oemallhuta to Israelite kings vas discussed, as ve
have seen, in the Middle Ages). Certainly, secular Zionists vould have pre-
ferred to be compared to the Hasmoneans, say, or even to medieval |erurim
rather than to rulers like Pedro II, Charles V, or Napoleon Bonaparte. But
from a certain orthodox perspective, once it vas clear that Israel vould not
be a halakhic state, oiua oemallhuta vas probably the most satisfactory vay
of recognizing its legitimacy. Although that model seems symbolically un-
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Introduction o;
appealing, it vas a legal device of great usefulness, for it gave the sanction
of halalhah to the nev state vhile preserving the autonomy of the halakhic
system as a vhole.
To reject all these models is to reject the state itself, vhich does not,
after all, conform to the traditional religious belief that the restoration of
|evish statehood vould be and could only be the (literal and direct) vork
of the messiah. The kingdom that he establishes vill presumably replicate
Davids, but it vont require the legitimation of precedent the messiah vill
bear, so to speak, Gods ovn vrit. On this viev, there cant be an end to the
exile, there cant be a truly |evish state in eret: yisrael that isnt messianic; the
existing state of Israel therefore represents a usurpation of divine authority;
it has no halalhi. legitimacy at all, not even the legitimacy that gentile states
can claim. It is far vorse than the gentile states, vith vhich the |evs have
made a lavful peace; it is a satanic creation, the vork of heretics vho oppose
all the lavs of the Torah. This latter viev is represented here by \erahmiel
Domb (and in ;:, by \oel Teitelbaum); it is defended today by only a tiny
minority of |evs in Israel and the diaspora, but it obviously has some reso-
nance vith traditional understandings of exile and redemption.
Lven for those vhovork vithin one or another of the three models,
there is plenty of room for dierent vievs of the |evish states authority and
of the authority of |evish lav in the state. We include here tvo dierent
religious arguments, the rst from Kook, vhose messianic hopes led him to
grant religious value even to the secular politics of the Zionist pioneers, the
second from Isaac Breuer, vho could not imagine a |evish community of
any sort that vas not governed by Torah lav. The strongest secular position is
taken by \eshayahu Ieibovitz the |evish state meets vorldly needs exactly
like all the gentile states, and its authority is of exactly the same kind. This
is the inner logic of oiua oemallhuta, although Ieibovitz invokes Hobbes
rather than the rabbis and so denies any religious authorization of the state.
The lav of the Israeli mallhuta is lav only because no other lav can guar-
antee physical security, vhich is the states rst and most essential purpose.
Religious purposes, by contrast, must be served elsevhere, beyond the reach
of state ocials.
But such a radical separation of state and religion, though it can
be grounded in the tradition, is not common vithin it. David Ben-Gurion,
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o: The State of Israel
vho knev the tradition vell, explains vhy this is the case and defends a
certain sort of pluralism as a necessary substitute for separation. In the back-
ground of his argument, signaled by his use of the term general vill, lurks
the Rousseauian idea of a single civil religion of patriotism and citizenship.
Other nations have this kind of ideological unity, Ben-Gurion suggests; but
as a result of the long |evish experience of statelessness and exile it does not
yet exist in the nev state.
Among contemporary religious vriters, there is considerable reluc-
tance to concede that a |evish state can really be like all the others. Shouldnt
it enact and maintain at least some of the traditional religious prohibitions
(as the kings of Israel and the good men of the tovn presumably did)
Shouldnt it recognize and enforce (some) rulings of the |et oiu` Or, alter-
natively, shouldnt it live up to the Deuteronomic and prophetic teachings
about justiceas even secular Zionists hoped it vould And doesnt its le-
gitimacy depend upon its readiness to do one or another of these things
In the public life of the nev state, these questions have been ad-
dressed most often and most interestingly by the judges of the Supreme
Court. Working from basic lavs (Israels only constitutional, or semi-
constitutional, documents) that assert both the |evishness of the state and
its democratic character, and that also legislate its commitment to principles
of human dignity, the judges have been forced to ask vhat these terms
mean and hov they relate to one another. With regard to the rst of them,
there is obviously a vide range of possibilities. Both prophetic and rabbinic
|udaism are historical-cultural artifacts that can be disassembled, as it vere,
and adapted for contemporary use by judges variously committed to their
authority. Tvo prominent religious jurists, Moshe Silberg and Menachem
Llon, for example, have carved out of halalhah a body of lav they call mishpat
i:ri (Hebrev lav)halalhah vithout its theological references or its ritual
codesand proposed that this secularized version of the |evish legal tra-
dition be incorporated, vhenever opportunities arise, into Israeli civil and
criminal lav. They think of the sages and rabbis as their ovn legal prede-
cessors. Haim Cohn vould drav upon the vhole of |evish history, vith as
great an emphasis on biblical texts as on halalhah or mishpat i:ri, and vith
a more selective eye in both cases. Traditional |evish lav can be a valuable
source for Israeli jurisprudence, as long as one remembers that the formers
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Introduction o,
grounding in divine authority is incompatible vith the latters commitment
to democracy. Cohn thus provides a strategy of interpretation that results in
an actual list of principles that are, he claims, both |evish and democratic.
Aharon Barak argues for a much greater independence from the tradition.
lor him, the idea of democracy provides a crucial criterion vith vhich to
confront biblical and rabbinic texts. Only those aspects of the |evish tradi-
tion (but presumably also aspects of other religious and legal traditions) that
pass the democratic test can be used in judicial decision making.
The authority of the state is as radically secular for Barak as it is for
Ieibovitz, although Barak is more Iockean than Hobbist in his argumenta-
tive style, relying on the consent of the citizens (not all of vhom are |evish)
rather than on a generalized fear of external aggression or internal disorder
as the foundation of his secularism. The religious signicance of the state for
some of its citizens is not, in his viev, a subject for judicial reection. Barak
is a liberal committed not only to the separation of synagogue and state but
also to the separation of theology and jurisprudence. His more traditional-
ist opponents in the legal community are not all that dierently committed
(since they presumably believe in their ovn authority, vhich derives from
a secular state), but they insist that halalhah or the secularized mishpat i:ri
ought to be a more ready, or a more obligatory, reference for Israeli judges
than Turkish or British or American lav, all of vhich have gured in the
Supreme Courts decisions. The disagreement, then, is about the legal cul-
ture of the nev state Hov large a presence should this specically |evish
tradition have in the vorld of its lavyers and judges And this question is
likely to depend, as ve have already said, on the ansver to other questions
What does it mean to call Israel a |evish state Is a |evish state like the
other |democratic| states Or does it have some larger purpose It is vorth
noting again, hovever, that the three judges represented here, although they
disagree about the authority of |evish lav, agree in practice that they, rather
than the rabbis (vho, sitting in their ovn religious courts, presumably have a
dierent viev of secular jurisdiction), vill nally ansver all these questions.
Because of the resonance of their ansvers vith contemporary po-
litical theory, ve have tripled our commentaries on the Israeli judges, con-
cluding this rst volume vith three dierent arguments about the authority
and legitimacy of a |evish and democratic state.
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;o The State of Israel
Legal auo Ioliti.al Coutiuuity
Laus oj Kiugs Lxpress the ^atious 8o:ereiguty
. Abraham Isaac Kook, Mishpat Coheu
Mishpat Coheu ( |erusalem Mossad Harav Kook, ,:; Hebrev), pp. :;:.
Iu this respousum, uritteu iu the :,.os, Kool iuterprets the ougoiug politi.al sigui
.au.e oj the mouar.hi. traoitiou jor the mooeru uatioustate. L:ioeutly orauiug ou the
positiou oj his tea.her ^aphtali !::i juoah Berliu (^et:i: ];,, :,), he suggests a
oistiu.tiou |etueeu the spe.i. iustitutiou oj mouar.hy, ou the oue hauo, auo its |asis
iu uatioual so:ereiguty, ou the other. Reassertiug jeuish politi.al so:ereiguty ooes uot
oepeuo, theu, upou restoratiou oj the mouar.hy.
. . . All general matters aecting the nation, and any enactments |tilluu|
of temporary measures to make a fence against those vho act unjustlyall
these are part of the lavs of kings. In all such matters the king is authorized
to act as he sees t, even vhen it does not pertain to his vell-being or honor
but to the vell-being and honor of Israel. As |Maimonides| vrote If a per-
son kills another and there is no clear evidence . . . the king can, if the need
of the hour demands it, kill him in order to ensure the stability of the social
order |letalleu haolam| and to break the pover of the vicked (Iavs of
Kings o |;, |). The povers |granted by| the lavs of kings thus extend
far beyond the scope of the kings |personal| honor or privileges. . . .
lurthermore, since the lavs of kings extend to the general aairs
of the nation, it vould seem that in the absence of a king the prerogatives
of these lavs revert to the nation as a vhole. In particular, it seems that any
ruler vho arises
1
in Israel has the status of king vith regard to certain of
the lavs of kings, especially those that pertain to governing the nation.
2
. . .
Whoever governs the nation may exercise |the povers enumerated in| the
lavs of kings, vhich |meet| all the nations necessities, as required by the
|needs of the| hour and for social stability. . . .
This is supported by Maimonides statement The exilarchs of Baby-
. The noun (lit., judge) and verb together are taken from the biblical book of |udges, vhich
repeatedly tells of God raising up Israels leaders.
:. Iit., the Whole.
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Continuity ;
lon stand in the place of the king. They exercise authority over Israel every-
vhere, etc. (MT Iavs of Sanhedrin ). |This applies| a fortiori to the
leaders consented to by the nation vhile |the nation resides| in its ovn land
and |exercises| self-rule. Whoever is appointed to govern the people, on
vhatever level, |has this authority. Admittedly,| those appointed primarily
to disseminate Torah, such as the descendants of Hillel vho did not |hold a|
scepter but vere |only| legislators (as is evident from BT Sanhedrin a),
do not stand in the place of the king, and have only the authority of a court.
But concerning those vho vere originally appointed to their positions for
the nations general government, including its mundane aspectslike the
Hasmonean kings or the uesiimthey are obviously at least the equals of the
exilarchs of Babylon. . . . When a ruler is appointed to govern the nation in
all its needs in regal fashion, vith the consent of the people and the court,
he certainly stands in the place of the king. . . .
Israel as a jeuish 8tate. jeuish Lau
z. Isaac Halevi Herzog, Tovard a |evish State
Bet:omet Hatorah 1ehameoiuah, edited by \. Shaviv ( |erusalem Tzomet, ,,; Hebrev), pp.
,.
Besioes his ra||iui. traiuiug, Her:og hao geueral legal traiuiug, uhi.h maoe him uuique
amoug leaoiug ra||iui. authorities, a|le to appre.iate the iutri.a.ies oj mooeru .ou
stitutioual lau. Iu this essay, uritteu iu july :,,:, tuo mouths ajter the oe.laratiou
oj Israels iuoepeuoeu.e, Her:og asls uhether the ueu state uill maiutaiu the his
tori. jeuish .ommitmeut to !orahauo to the jeuish legal traoitiou. Iu examiuiug the
halalhi. a..epta|ility oj the states legal system he .riti.i:es ^issim Cerouois (Raus)
.oustitutioual theory (;,, :).
The State of Israel has confronted us vith dicult problems calling for in-
vestigation and clarication by Torah scholars. I vas among the enthusiasts
for the idea of creating a |evish state even though I knev that among the
great men of Torah, lovers of Israel, as I am, there vere those vho feared |its|
creation. They vould have been satised vith free immigration |to Pales-
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;: The State of Israel
tine|. But I had the clear and acute recognition that the latter vould depend
on the former free immigration vill not be realized in the absence of a sov-
ereign state, besides vhich I had come to the conclusion that the State of
Israel is a vital necessity not only for the salvation of hundreds of thousands
of our brothers, remnants of the hellish |holocaust| in Lurope, but also for
the relief and deliverance of our brothers in the lands of Islam vhere reli-
gious zealotry reigns. The opinion had become rm in my mind that this is
an urgent and inherent need of |udaism itself.
. . . If the state had been created even fty years ago, there vould
also have been certain problems, but not of the dimensions and level of dif-
culty |ve face today|. At that time, the majority of the people of Israel
observed Torah and mit::ot. Today, to our great consternation, this is not the
situation. The main problems . . . are
a. Securing the observance of our holy Shabbat at least in
public. . . .
b. Securing public lashrut, insofar as this is vithin the com-
petence of the central government and municipal or local admin-
istrations.
c. |Securing| Torah lav.
d. Securing marriage and divorce according to the lav of
Moses and Israel.
lor the time being I vill limit myself to the question of Torah
lav. Of course, it vould not occur to a truly religious |ev that the |ev-
ish State vould abandon the source of living vatersour Holy Torah
to dig vells and |adopt the| lavs of another people.
3
lor this vould be a
terrible upheaval internally, and a horric desecration of |Gods| Name ex-
ternally. It vould be equivalent to divorcing, God forbid, the Torah of Israel.
We had imagined that immediately after the declaration of the state, those
responsible for these matters vould consult vith the Torah authority in the
land in order to determine vhat to do according to the Iav. Although it is
common practice in conquered lands that the formerly existing lav is left
to continue temporarily so as not to disrupt commercial life, . . . this applies
. lolloving |er. : and the traditional representation of the Torah as vater.
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Continuity ;
|only| to the gentiles, vho have no lav that is part of their religion. But this
is not the case vith us. It is a very grave matter to sustain even briey a lav
that does not accord vith the Torahnot to mention an alien lav imposed
by the |British| Mandate government, even apart from the substance of the
existing lav, vhich is a patchvork of British |and| Turkish lav.
Lven if the existing lav vere . . . vonderful, it vould still be un-
acceptable from a national, and especially a religious, point of viev. This is
gentile lav' National pride should have barred the path of such vholesale
assimilation. The sages have already vociferously denounced adjudication in
front of gentile courts even if they rule according to our lavs.
4
. . . In my
opinion this is a thousand times vorse than any |evish individual, individu-
als, or community going to gentile courtsthat the people of Israel in their
ovn land rule in accordance vith foreign lavs' Is there no God in Israel
(: Kings ).
. . . In the days vhen many imagined the idea of founding an in-
dependent and sovereign |mallhutit| |evish state to be a vision unrealizable
before the coming of our righteous messiah, I aspired to create a poverful
movement among us vhose purpose vould be to inuence the future legis-
lative council to include in the constitution a basic clause stipulating that the
lav of the state vill be Torah lav. Knoving vell that . . . if ve follov the
rule of the |Torah| as it is vritten, ve vill encounter grave diculties con-
cerning |halakhically| disqualied judges and vitnessesso too concerning
the lav itself, e.g., vomen vitnesses
5
I began seeking solutions by vay
of general consent.
6
And vhile I vas still busy investigating and contriv-
ing |to construct solutions|, the great events occurred |and overtook me|,
and vith the help of God the state of Israel became established as an actual
reality. And nov vhen I see the indierence |tovard the lav|, my hands are
veakened and my mind is skeptical. lor even if ve should nd solutions and
arrangements, and receive the consent of most of the great men of Torah,
vould ve still be able to gain a majority for including that basic clause in
the constitution And if not, vhy all this vork
. See Maimonides, MT Iavs of Sanhedrin :o;; ve take up these issues in ;:.
. See the discussion of gender roles in ;.
o. Presumably, Herzog refers to halakhic innovation by means of communal consent.
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; The State of Israel
. . . But this is a fundamental point. Religious |udaism should exert
all possible eorts that under all circumstances, there should remain in the
|evish state a corner for our holy Torah, i.e., that the right be given to any
|ev sued before a secular court in property |disputes| to say I vish to ap-
pear in a |et oiu of the rabbinate. A time vill be clearly established for his
appearance before the court, after vhich the court vill be empovered to
hear the case in his absence . . . |and| there vill be a supreme court of ap-
peals
7
of the chief rabbinate in |erusalem, the holy city. . . . So too . . . ve
vill demand that there be no |vay of | appealing the rulings of the rabbinic
|et oiu before the state supreme court, the great majority of vhose members
vould, vith all due respect, be complete laymen vith regard to erudition
in Hoshen Mishpat.
. . . With respect to my eorts to solve the problem of bringing
Torah lav into correspondence vith a democratic |evish state, I anticipate
puzzlement Why all this eort One of the later medieval authorities, Rab-
benu Nissim|Gerondi| of blessed memory, has already provided the solution.
In his Derashot, sermon , Ran presumes that there are tvo kinds of lav in
Israel, the lavof Torah and the lavof the state, or royal lav |in a monarchy|.
According to the lavs of the Torah, a criminal vould rarely be punished and
a murderer vould easily go free. There exist similar diculties vith regard
to monetary lavs because of the lavs of testimony. |So| royal lav serves to
complete Torah lav.
I do not knov if the author of the Derashot vas indeed Rabbenu
Nissim Gerondi of blessed memory, one of the greatest of our rabbis . . .
after the sealing of the Talmud.
8
In any case, he vas one of the great |schol-
ars| of the |past| generations. Accepting his opinion certainly vould greatly
relieve us. But I see grave diculties in |doing so|. After the |,; report
of the| Peel Commission, vhen ve vere faced by the partition plan and the
founding of a |evish State, I corresponded vith the great Rabbi Hayyim
Ozer Grodzinsky, suggesting vays to overcome the diculties confronting
;. Herzog is here conceding a point to his secular opponents. Traditionally the halakhic legal
hierarchy does not include a court of appeals. In the great debate concerning the status of
halakhic courts in the ,:os, the British mandate forced legal reformby linking the formation
of ocially recognized halakhic courts to the founding of a court of appeals.
:. The attribution is no longer doubted.
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us in the matter of public appointments of gentiles vho are not party to the
covenant. The lav of the Torah stipulates that all appointments shall be only
of one from among thy brethren (Deut. ;). In his reply he alluded to
the above-mentioned sermon of Ran of blessed memory.
|lolloving are excerpts from Rabbi Grodzinskys letter
9
In regard
to furnishing a constitution for the rule of Torah in the Hebrev state re-
garding |civil| lav, this is truly a dicult matter in need of much reec-
tion. My initial thought is perhaps to arrange matters so that the judges in
cases of property disputes |mamouot| betveen tvo Israelites vould be rabbis
vhose summons and judgment vould be recognized by lav. Cases betveen
a |ev and a non-|ev vould be adjudicated according to the general |non-
|evish| lav. Concerning theft and robbery and criminal lav in general, it
appears to follov from the responsum |si.| of Ran that there vas a separate
|system of | royal lav alongside the |et oiu administering Torah lav. lor it
vould truly impair the order of the polity |tallauat hameoiuah| if a thief
vould be exempted |from further punishment| by paying double.
10
. . . \ou
must necessarily concede that in such cases one must enact ordinances for
the polity |tallauot hameoiuah|. This is like the matter of a court that may
impose agellation and |other| punishments |not varranted by the Torah|
(BT Sanhedrin oa).
11
|
I replied that in my viev this is not an acceptable solution, but re-
ceived no further response. I maintain my position that it is inconceivable
that the lavs of the Torah should allov for tvo parallel authoritieslike
the courts of lav and the courts of equity, the latter stemming from the au-
thority of royal lav, that operated in the past in Lngland. . . . According to
|Torah lav|, there is no basis for this assumption of the double or parallel
jurisdiction of tvo authorities. All ve have is the ruling that the king exe-
cutes a murderer even vhen he is released by the |et oiu. This is not to say
that in all cases vhere a court releases an intentional murderer for technical
reasons, the king executes him. . . . The situation according to the halalhah is
,. lrom Issac Herzog, Coustitutiou auo Lau iu a jeuish 8tate A..oroiug to the Hala.ha, edited by
I. Warhaftig ( |erusalem Mossad Harav Kook, ,:,; Hebrev), p. n. ,.
o. The biblical penalty for theft But if vhat he stole . . . is found alive in his possession, he
shall pay double (Lxod. ::).
. On the emergency povers of the courts, see ;:.
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;o The State of Israel
as follovs Capital cases are vithin the authority and competence of the San-
hedrin (i.e., a small Sanhedrin, a |et oiu of tventy-three ordained | judges|).
But even after the Sanhedrin released the defendant, the king had the au-
thority to execute him for the sake of tilluu olam and the need of the hour.
But this does not mean that the monarchy in Israel had its ovn distinct con-
stitution not in accordance vith the Torah, folloving vhich kings vould
judge, appoint judges, and accept testimony. It only means that in the case of
a murderer the matter is given over to the discretion of the king, according
to his assessment of the moral condition of the people. And if there are very
fev murderers and there is no danger that their acquittal vill cause mur-
derers to multiply (Mishnah Makkot o), the king should make no use of
this |pover| at all.
Diua oeMallhuta, the Cooo Meu oj the !ouu, auo the 8tate
. Ovadyah Haddayah, Does Diua oeMallhuta Diua Apply to the State
of Israel
Hatorah 1ehameoiuah, , (,:), o.
C:aoyah Haooayah, uho uas a mem|er oj the 8upreme Ra||iui. Court iu jerusalem,
emphasi:es the halalhi. legitima.y oj represeutati:e go:erumeut. Haooayahs argumeut
oraus upou the .lassi. ois.ussious oj dina de-malkhuta auo oj the seljgo:erumeut
oj the kahal. He males spe.ial use oj Moses 8ojers argumeut (iu.orporateo iuto the
ois.ussiou |elou) justijyiug dina de-malkhuta iu terms oj the .ouseut oj the go:erueo.
This question can be divided into tvo parts
A. Does the principle oiua oemallhuta oiua apply to all
types of kings, Israelite and gentile alike, or is there a distinction to
be made betveen them
B. Does it apply only to a state ruled by a king vho legis-
lates lavs and promulgates statutes|so that| no one can act vith-
out his authorityor does it apply also to a state that does not have
a king but a president Does it apply vhere the authority to legis-
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Continuity ;;
late lavs and statutes is in the hands of a house of representatives
vhich promulgates lavs as it sees t for the good of the state and
its inhabitants Are these equal to a kingdom . . .
A. . . . |Gerondi| quotes the Tosafot, vho maintain that oiua oemallhuta oiua
applies only to a gentile king because the land is his, etc.
12
. . . Maimoni-
des, hovever, among others, clearly disagrees vith this. In chapter of the
Iavs of Robbery and Iost Property, he explicitly rules |that a tax evader
is a transgressor, for he steals the kings property| vhether the king be a
heathen or an Israelite (;,, ,). Both the !ur and the 8hulhau Arulh have
ruled similarly. . . . As to the proper legal holding, it is clear that ve follov
solely the position of Maimonides, endorsed also by the !ur and the 8hulhau
Arulh. They unequivocally state that there is no distinction betveen gentile
and Israelite kings. Regarding the authority of both ve equally apply |the
principle| oiua oemallhuta oiua. |We hold thus,| against the Tosafot and Ran,
because ve have a general rule that in cases of legal disagreement betveen
the interpreters of the Talmud and the codiers ve follov the codiers; for
the latter vrite for the sake of guiding practice, vhereas the former vrite
for the sake of exposition, not in making a ruling.
lurthermore, Hatam Sofer argues
|Haddayah here presents an abstract of the folloving argument de-
veloped by Moses Sofer in his responsa (Hatam 8ojer, Hoshen Mishpat )
Regarding the principle oiua oemallhuta oiua, Rashbam vrites, All taxes,
rates, and rules of kings lav commonly established in their kingdoms are
lav, for all subjects of a kingdomvillingly accept the kings lavs and statutes.
Therefore they are perfectly valid lav (;,, ). . . . Therefore, no distinction
should be made betveen a gentile king and a |evish king. lor even regard-
ing a |evish king vho does not ovn the landsince it vas apportioned
|by |oshua| to the tribesthey still villingly accept all his lavs and stat-
utes, vhich constitutes a complete vaiver. All this, hovever, is only vhen he
does not contravene an explicit statement of the Torah. But vhen he contra-
venes an explicit statement of the Torah, then even a gentile king is not to be
:. In his commentary to BT Nedarim ::a, Gerondi cites the position of the tosast Isaac Or
Zarua, given in ;,, o.
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;: The State of Israel
obeyedhov much less so a |evish king' . . . This applies not only to civil
lav regulating interpersonal aairs . . . but even to taxes and taris, vhere
ve also say that the citizens villingly vaive |their rights|. Thus the lav of a
|evish king is lav too.
|Ran (Nedarim ::a), hovever, vrites The tosasts have vritten
that oiua oemallhuta oiua applies only to a gentile king, because the land is
his and he can say to them, If you do not obey my decree, I vill expel you
from the land. Not so, hovever, vith regard to |evish kings, for the Iand of
Israel is ovned jointly by all Israelites. . . . Nevertheless it seems to me that
he |Ran|disagrees only vith respect to taxes and taris if they are imposed
vithout consent. Here he holds that since ve cannot impute tacit consent to
the citizens, |the taxes are thus valid| only by virtue of his |the kings| being
master of the land. This entails, then, a distinction betveen |evish and gen-
tile kings. But concerning lavs and statutes . . . , Ran agrees that the reason
|for their validity| is consent, and no distinction should be made betveen
|evish and gentile kings.|
B. . . . There are no grounds for a distinction betveen a crovned
king and a minister or governor vho has no crovn oiua oemallhuta oiua
applies to all. Therefore the same |maxim| applies also to a . . . legislature
vhose members are not crovned as royalty. They have the status of a king,
and ve apply to them |the principle of | oiua oemallhuta oiua. This follovs
a fortiori, because they vere elected by the people, and they vere elected
to promulgate lavs and statutes as they see t for the good of the state. lor
even the taxes they impose upon the citizens are for their ovn good, because
vithout taxes a state cannot exist, and every citizen of the state vishes the
state to exist.
. . . In the ordinances of a tovn three conditions must obtain (a)
that the good men of the tovn must initially be selected by the lahal, (b)
that issues must be decided by all the good men vith the approval of the
tovns ocial rabbi; and (c) that the ordinances be for the good of the lahal,
not that some benet at the expense of others. . . .
Therefore ve must say in the case at hand, of a house of represen-
tatives, that if all these conditions are met, it is certainly equivalent to the
good men of the tovn. They too vere initially chosen by the lahal since
they vere elected by all the citizens for the express purpose of making lavs
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Religious Signicance ;,
and statutes and imposing taxes as in any other state. The condition that none
benet at the expense of others is also met. Since . . . the taxes are |imposed|
upon all residents |equally|, each according to his income and prots, no
one benets at the expense of another. But it seems that the condition that
this legislation should meet the approval of the tovns rabbi is missing in
this case, for they never consult him. Since, hovever, the tovns rabbi is also
among the voters, it is as if he had already initially concurred in vhatever
they do for the good of the tovn, so long as it does not contravene Torah
lav. Lven regarding the principle oiua oemallhuta oiua, it is explicitly stated
that it applies only vhen it does not contravene Torah lav. It applies only
vith regard to issues of mamoua |vhere oiua oemallhuta oiua resembles| the
rule that the court has the pover to expropriateprovided again that it does
not involve beneting some at the expense of others. lurthermore I say, in
line vith the explanation provided above, that our house of representatives
has a status equal to that of a king, and novhere is it required that a |evish
king consult the tovns rabbi.
Religious 8igui.au.e oj the 8tate
Agaiust the Rule oj Iriests
. Theodore Herzl, Theocracy
!he jeuish 8tate (Nev \ork American Zionist Lmergency Council, ,o), pp. o;.
Iu ::,, Her:l pu|lisheo his proposeo solutiou to the jeuish questiou, Der |uden-
staat (|est reuoereo as !he 8tate oj the jeus), uhi.h soou |e.ame the mauijesto oj
the 2iouist mo:emeut. Her:l eu:isioueo a se.ular aristo.rati. repu|li. auo auti.ipateo
later .oujroutatious regaroiug the jeuish .hara.ter oj the state.
Shall ve end by having a theocracy No, indeed. laith unites us, knovledge
gives us freedom. We shall therefore prevent any theocratic tendencies from
coming to the fore on the part of our priesthood. We shall keep our priests
vithin the connes of their temples in the same vay as ve shall keep our
professional army vithin the connes of their barracks. Army and priesthood
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:o The State of Israel
shall receive honors high as their valuable functions deserve. But they must
not interfere in the administration of the State vhich confers distinction
upon them, else they vill conjure up diculties vithout and vithin.
Lvery man vill be as free and undisturbed in his faith or his dis-
belief as he is in his nationality. And if it should occur that men of other
creeds and dierent nationalities come to live amongst us, ve should accord
them honorable protection and equality before the lav.
!he 8tate oj Israel as the Iouuoatiou oj Coos !hroue
. Abraham Isaac Kook, Crot haKooesh, The Morality of Holiness o
Crot haKooesh, edited by David Cohen ( |erusalem Mossad Harav Kook, ,o; Hebrev),
vol. :, p. ,.
Kool rejers to the state oj Israel |y uame oe.aoes |ejore its .reatiou. He aoopts la||al
isti. sym|olism to .oustru.t his politi.al theology, .om|iuiug it uith the Hegeliau uotiou
oj the state as the supreme .ou.reti:atiou oj the 8pirit.
The state is not the supreme happiness of man. This |denial is true| of an
ordinary state that amounts to no more than a large insurance company,
vhere the myriad ideas that are the crovn of human vitality remain hover-
ing above, not touching it.
|But| this is not the case regarding a state that is ideal in its foun-
dation, in vhose being is engraved the . . . ideal content that is, truly, the
greatest happiness of the individual. This state is truly supreme in the scale
of happiness, and this state is our state, the state of Israel, the foundation of
Gods throne in the vorld.
13
Its entire aim is that God be one and His name
one (Zech. ,). lor this is, truly, the supreme happiness.
Of course, this sublime happiness is in need of extended elabora-
tion so as to shine in |these| days of darkness. But it does not on that account
fail to be the supreme happiness.
. The ninth and tenth serot (divine emanations) are yesoo (foundation) and mallhut (kingship).
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Religious Signicance :
!he ^egati:e 8igui.au.e oj the 8tate. 2iouism Is Heresy
. \erahmiel Domb, |udaism and Zionism
Lt ^isayou ( |erusalem, ,;:; Hebrev), pp. , o.
Dom|s :ehemeut atta.l ou 2iouism is au example oj the ultraorthooox reje.tiou oj the
jeuish returu to statehooo auo iu:ol:emeut iu thisuorloly politi.s. Dom| iu:oles the
.ritiques oj mouar.hy (see ;,) that respouo to the peoples uish to ha:e a liug lile all
the uatious. He thus reje.ts the 2iouist hope jor uormal.y auo oeuies the legitima.y
oj the state oj Israel.
The heresy |lerah|
14
of Zionismis greater than any that preceded it, |greater
than that| of the various heretical sects that arose fromtime to time. The Sad-
ducees denied the Rabbinic traditions from Mount Sinai but did not deny
the entirety of our holy Torah. On the contrary, they vere committed to
their cause unto death. . . . The Karaites too did not deny the entirety of our
holy Torah. So too all other heretical sects. . . . In no other time vas there
a sect in Israel that totally denied the holy Torah, vhose heresy extended to
its full scope and |reached dovn| to its roots, as does this Zionism standing
before us. |Zionism| does not merely deny some part of our Torah, or some
detail of our faith, but uproots everything. lurthermore, it is no longer a
motivating force of some part of Israel but asserts its domination over all
Israel, in all its locations, throughout the diaspora.
The total and deep heresy is that of Zionism in itself, vhich is more
vile than any of the acts of the Zionists. The Zionists desecrate the holy Sab-
bath and transgress the entire Torah, but there are other sinners too vho
desecrate the holy Sabbath and commit transgressions. The conquest of the
land, vhich derives specically from Zionismand in the course of vhich
the Zionists committed severe transgressions . . . is but the actualization
and result of their vill and ideas. . . . Zionism in itself, even before it suc-
ceeded in bringing about the establishment of the state and its attendant
deeds, and before the Zionists became desecrators of the holy Sabbath and
sinners, this Zionism that consists in nothing more than the aspiration that
. The literal meaning of this Hebrev vord is denial; the cognate verb lajar is translated as
deny belov.
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:: The State of Israel
Israel should have a state and a place of refuge in the Iand of Israel . . . this
Zionist aspiration is founded on denial of all of the thirteen principles.
15
|It
is| a general and fundamental heresy. Zionism in itself negates all faith in the
holiness of Torah and in the holiness of Israel, in the coming of the Messiah
and in the resurrection of the dead, in |divine| revard and punishment, and
in all divine things granted us by God.
Zionism denies everything. |It denies| the entire idea of election,
vhereby God chose us from among all peoples, and the entire idea of exile
on account of our sins, and of redemption by God through our righteous
Messiah. Zionismvhich means, that ve should have a state, freedom, and
independencemay appear to go against no explicit commandment . . . ,
and can even be made to seem attractive through various devious |argu-
ments| and confusions, and through justications appealing to particular cir-
cumstances. This Zionism is the |most| terrible heresy. The Zionist heresy
|miuut| . . . consists in a basic opposition to the entire system of faith, to all
principles of our holy Torah on the theoretical |level|, leading to desecration
of the Torah in practice as vell. . . .
It might be argued What transgression is there in that |evs should
live in the Iand of Israel What sin is it that they should relocate from the
lands of the gentiles to our holy land What evil is there in that there should
be |evish villages or cities |in the Iand of Israel|; and that vhen the Arabs
vant to expel them it is necessary to establish a state in order to protect
their lives Thus argue those vho observe certain of the practical mit::ot,
vho are at present knovn as religious (or Torah) Zionists. . . . They are
dravn by the supercial and the convenient, |dravn| to follov their emo-
tions and the popular trend, by the pover of Satan embodied in that trend
by the deceptive reality of temporary success, by this-vorldly allures and
lusts. They adhere to all the vays that lead, directly or indirectly, to the ulti-
mate and absolute evil that has in recent times come to have almost complete
dominion.
. The thirteen principles of faith vere formulated and explicated by Maimonides in his
commentary to the Mishnah (introduction to the tenth chapter of tractate Sanhedrin). They
never gained universal endorsement, but come closest to an accepted formulation of |uda-
isms articles of faith (see ;).
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Religious Signicance :
In truth, there is no halakhic issue of settling the Iand of Israel at
stake here, nor any |true| desire to observe any of the obligations that apply
there . . . , nor anything vith any trace of holiness . . . . What is at stake
is the basic foundation of |udaism and the Torah in their entirety. . . . lor
this act of obtaining a settlement and a state in the Iand of Israel implies our
total destruction it is no mere physical act. The great, basic question is Are
veGod forbida nation like all the nations of the vorld Do ve succeed
and fail according to the same causes by vhich they succeed and fail Are ve
in essence the same as the lrench, or Lnglish, or Russian nations, subject to
the same order as they |Will| the same faults that caused them failure and
humiliationsuch as military veakness, an enemys good plan, dispersal of
|their ovn| forcesbring particular failures to us too And |vill| the same
eorts and assets that brought advantage and success to the Lnglish or the
lrench bring success and benet to us as vell |Is it true that| progress and
acquisition of knovledge in science and economics, vhich have improved
the economic situation of other nations of the vorld, vill bring us the self-
same |improvement| Will organizing a ghting force |of the sort| that has
provided security to other nations of the vorld provide for us, too, security
and strength in the land, national honor and respect in the vorld, reten-
tion of pover and a secure future Or are ve something dierent from all
other nations of the vorld, a chosen people vhom God has elected from
amongst all peoples, to be governed by manifest divine providence, under
the divine order of the Torahs commandments and varnings of revard and
punishment, exile and redemption . . .
Di:iue 8o:ereiguty. A jeuish 8tate Requires !orah Lau
). Isaac Breuer, |udaism and National Home
Cou.epts oj juoaism, edited by |acob S. Ievinger ( |erusalem Israel Universities Press, ,;),
pp. :,,:. The essay excerpted here vas translated in ,o by |acob Bar-Or (Brener) for
the Anglo-American Committee of Inquiry.
Breuer uas traiueo as a lauyer, auo his argumeut here ou Coos so:ereiguty, auo the
states, ree.ts the Luropeau legal theory oj his time. !he jollouiug text, preseuteo to
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: The State of Israel
the AugloAmeri.au Commissiou oj Iuquiry ou Ialestiue iu :,,, uas part oj his eort
to shape auo oeue the oppositiou oj the Aguoat Yisrael party to the se.ular 2iouist
mo:emeut.
lrom the everlasting creation by God there follovs for |udaism the conclu-
sion that the vorld, after the completion of creation, continues to be guided
by God, and is hence a theo.ra.y. As universal as is the creation of God, so
universal is His politi.al rule over the nations of mankind, and over the cre-
ation vhich has been entrusted to them. God is not merely lather of His
creation, but also King of his nations. . . .
In |udaism, such qualitative oneness of God makes any other kind
of so:ereiguty insuerable. God is the only sovereign, in nature as vell as in
the life of man as an individual or as a national unit. God is the sole source of
the lavs of nature, of the rules for the individual conduct of man, and of the
lavs of nations. There is novhere any room for sovereign autonomy in the
face of the oneness of God. There is no distinction on principle betveen
the lavs of nature, the rules of individual conduct, and the rules of lav. It
is merely that the former are addressed to unfree beings and, therefore, nd
ready realization at all times, vhile the tvo latter must be absorbed by the
vill of free man and be folloved by the actions of free man.
lrom the qualitative oneness of God there follovs, therefore, the
idea of nation and state of |udaism. The nation, according to Holy Writ, is
born of the family. But the family is already a society regulated by divine
lav. God allocates to the families nov developing into nations their land, in
order that they may, in such a land, continue and complete, as societies of the
lav of God, their part in the creative vork of God. To |udaism, therefore,
the nation is a legal entity, based on the family and constituted vith a viev
to a particular territory, vhose lav is none other than the lav of God. |ust
because the nation is in essence a legal entity, it cannot do vithout territory,
in vhich God-the-Kings vill, as revealed to it, is the sovereign lav of the
land. The nation as a community of divine lav can never accept anything as
supreme except the vill of God if it is to develop fully. Since only the vill
of God is valid for the nation, it requires that territory in vhich God alone
is sovereign. The nation may be formed, perhaps, on desert ground, vhere
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Religious Signicance :
no foreign vill rules. But national life in the multiplicity of its activities can
only develop on national territory.
Nation and national territory are united by the lavof God into the
state. The state is not the source of lav, but vholly and completely subject
to the lav of God. The state is the rst servant of the lav. Its supreme task is
the realization of divine lav. The nation as a community of the lav precedes
the state in both terms and time, and it is never merged in it. As opposed
to the nation, the state, like the territory, has a mere functiona vital and
altogether indispensable one, but alvays a function. |ust as the territory af-
fords the possibility in space of unrestricted and all-embracing expansion
under the rule of divine lav, so it is the state vhich is to protect such expan-
sion from internal and external disturbance. !he .ommuuity oj the lau remaius
iu existeu.e also uithiu the state, at all times prepared to oppose and, indeed,
to ght the state, should it abuse the pover entrusted to it, in any manner
contrary to its ordained function; at all times prepared, too, to resume its
desert existence, should the state succumb to the abuse of its function and
drav the national territory to its ruin.
|ust as phenomena existing mutually side by side in natural space
are governed by the divine lavof nature, so too humanity existing mutually
side by side in history is governed by divine lav. The destiny intended for
mankind vas that it should subject itself freely to the revealed lav of God
and that it should regulate its relations according to such a lav. Mankind
has been ailing because of the usurped autonomy of nations and the rebel-
lious sovereignty of states. The problem of history is, for |udaism, a pro|lem oj
lau. As long as states insist on claiming sovereignty as theirs and every state
takes the lav upon itself both internally and externally, there can be neither
social peace nor international peace. The anarchy of mankind shovs itself
in continuously recurring historical catastrophes, foretold vith tremendous
insistence by all prophets, to vhich only the lav of God can put an end.
lor |udaism the idea of the lav is vholly transcendental. Iav is not
made by the nation, but lavmakes the nation. Man may nd the road to Coo
by himself and vith his ovn povers by perceiving the miracles of heaven
and earth. The lau oj Coo must be revealed to the nation. In the national ex-
perience of this revelation absolute nationalism vanishes into nothingness,
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:o The State of Israel
and there appears that relative nationalism for vhich the revealed lav is the
sole supreme value, and service to such lav becomes the life-destiny of a
nation.
. . . The religion of the nation is nothing else but lav. Religion
exists for that nation vhich does not set up the lav for itself but takes the
lav from the mouth of God. It desires not merely to establish itself in idola-
trous self-vorship but, accepting the lavof God, is prepared to subject itself
unstintingly to the divine vill. It is ready to reject sovereignty and conceive
of its land as the land of God and of its state as the servant of divine lav.
A national God'never' The God of heaven and earth, the king
of all nationsthat is the God of |udaism, and he remained so even vhen
he shoved mercy to those vho had been vickedly enslaved in the land of
Lgypt and led them into freedom, to the mount of the lav, to the land of
the lav.
What of national religion What is there in the confession of be-
lief in the God of heaven and earth, the confession of belief in the King of
all nations, that it should be nationally limited The religion of |udaism is
surely not national, but for |udaism the nation is religious. The nation has
not created religion, but religion the nation. To |udaism, God is not . . .
only dispenser of ethics but also dispenser of lav. And because such a lav, in
its all-embracing totality, can realize itself only in national life, and because
its claim to rule can satisfy itself only in national life, and because its claim
to rule can satisfy itself only on national territory, therefore nation and lav
are essential and indispensable parts of |udaism.
8eparatiug Religiou auo 8tate
8. \eshayahu Ieibovitz, The Religious Signicance of the State of
Israel
juoaism, Humau 1alues, auo the jeuish 8tate, edited by Lliezer Goldman, translated by Lliezer
Goldman et al. (Cambridge Harvard University Press, ,,:), pp. :,.
!his text is taleu jrom a tall oeli:ereo iu :,, at a meetiug oj the Mo:emeut jor a
juoaism oj !orah, jouuoeo |y religiously o|ser:aut iutelle.tuals uho sought to uorl jor
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Religious Signicance :;
the spiritual iuueu.e oj !orah iu Israeli so.iety. Lei|ouit:s uuuameo oppoueuts at
this meetiug pro|a|ly helo opiuious .lose to those oj Kool iu 8ele.tiou ,, or, more geu
erally, the :ieu expresseo iu the spe.ial prayer iu.luoeo iu the 8ha||at liturgy uhi.h
rejers to the state oj Israel as the oauu oj our reoemptiou.
I vish to introduce myself at the outset as one vho hasnt been at all dis-
appointed by the state of Israel. lor me, the state of Israel has fullled all
the hopes I had for it ever since my early youth. Of course, it is very di-
cult for a seventy-year-old man vividly to envision himself as he vas in his
youth. But it seems to me that ever since I reached maturity and became
a Zionist, Zionism meant for me the endeavor to liberate |evs from being
ruled by the Gentiles. The state of Israel completely satises the demand
for freedom from domination by others. . . . In opposition to one of the
earlier speakers here, I believe that no state vhatsoever, in the past, present,
or any foreseeable future, in any society, in any era, in any culture, including
the |evish culture, ever vas or vill ever be anything but a secular institu-
tion. The function of the state is essentially secular. It is not service of God.
Whenever the |evs had a state, the history of that state vas that of a con-
tinuous struggle betveen religion and the political leadership. Lven vhen
the state vas established in the name of Torah, for the sake of Torah, as the
outcome of struggle for the TorahI have in mind the Hasmonaean state
the sixty years of that states existence vitnessed a constant struggle betveen
the bearers of the Torah and the secular regime. This struggle is logically and
factually inevitable. Religion, that is, mans recognition of his duty to serve
God, cannot be integrated vith the machinery of government. The political
organization, necessary as a condition of survival, merely sets the ground for
the struggle for religion, vhich is by its very nature an eternal struggle that
vill never end in victory.
Some tventy years ago I had a lengthy conversation vith Ben-
Gurion, vhose attitude tovard |udaism is vell knovn to you, about the
problemof religion and the state. He said to me I understand very vell vhy
you demand the separation of religion from the state. \ou vant the |evish
religion to be reinstated as an independent factor vith vhich the political
authority vill have to contend. Therefore I shall never agree to the separa-
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tion of state and religion. I vant the state to hold religion under its control.
The ocial representatives of |evish religion are resigned to this state of
aairs; even vorse, they count on being kept by the secular government.
The state, as such, has no religious value. No state ever had. Political
achievements, conquests, victoriesnone of these are religiously signicant.
Who restored the border of Israel from the entering of Hamath to the sea
of the Aravah, and recovered Damascus and Hamath vhich had belonged
to |udah in Israel (: Kings :, ::) Who vas the greatest of varriors and
conquerors among the Israelites The King \erovam the son of |oash, vho
did that vhich vas evil in the sight of God and departed not from all the
sins of \erovam the son of Nebat (:). What vas the religious signi-
cance of these enormous conquests about vhich ve knov only from tvo
verses of the Book of Kings lrom the empirical religious point of viev,
fromthe standpoint of the religious tradition, fromthe mark that these deeds
left upon religious consciousnessit vas nil. Our Sages of blessed memory
found some merit in \erovam in that he did not harm the prophet (Amos)
vho said \erovam shall die by the svord and Israel shall surely be led cap-
tive out of their ovn land (Amos ;). This is vhat counts in his favor,
vhereas the tremendous events summed up in these tvo verses left no mark
in the religious consciousness of Israel.
I contend that it is not by accident that no festival or holiday com-
memorates the conquest of the Iand of Israel by |oshua, the son of Nun, and
that no festival or holiday marks the conquest of |erusalem by King David.
We do have the holiday of Hanukkah, in memory of a civil var betveen the
|evs vho observed the Torah and the Hellenized |evs.
Theologically speaking, as a man of faith, and vithout special ref-
erence to the state of Israel, I emphatically deny that a state might have any
intrinsic value at all. Moreover, beyond any considerations of theology or
of faith, but by general axiological criteria, a state is not a :alue. A state is
needed in order to fulll tvo needs. The rst is the individuals need for sur-
vival, for vere it not for fear of the political ruler men vould svallov one
another alive (Mishnah Avot :). The impulse of mans heart is evil from
his youth (Gen. ::). Unlike Robinson Crusoe on his island, human beings
in society cannot coexist unless a regime and government is imposed upon
them, or they impose it on themselves. What that Sage said aphoristically
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Religious Signicance :,
vas repeated in systematic fashion some one thousand and ve hundred years
later by one of the greatest social and political thinkers, Thomas Hobbes.
The states role in assuring a nations survival is far more problem-
atic than its function of safeguarding the existence of the individual. We
shall not, hovever, delve too deeply into the matter but vill recognize both
needs as legitimate. . . .
Regarding the state as an intrinsic value is the essence of fascism. If
this is true in general, it is all the more true vhen the values of the |udaism
of Torah are attached to it. The state certainly has its place in the Halakhah,
because the Halakhah concerns itself vith mundane matters. It deals vith
man as esh and blood, vith his food and drink, vith his copulation, his
vork, and so on. Political reality as a value is not accorded much prominence
in |udaism. We sav hov the exploits of the greatest victor and conqueror
are buried in tvo verses in : Kings' Those vho are not vell versed in the
Hebrev Bible are not avare of them even if they are religiously committed
|evs.
I cannot ascribe religious signicance to our having regained politi-
cal independence. lrom the pronouncements of colleagues vho preceded
me in this evenings debate one might infer that they hear the vords of God
and see the vision of the Almighty (Num. :); that in historical events
they discern the nger of God and the nal cause of the overovdescend-
ing from the upper to the lover vorld. I have no reliable source for knovl-
edge of the divine intentions and do not detect in the occurrences of the
lover vorld any religious signicance, unless they incorporate an intention
in the lover vorld aimed at the upper vorld; in other vordsinsofar as
human beings act for the sake of Heaven. Apart from this, history has no
religious meaning. History belongs to the course of the vorld and it is this
course vhich constitutes divine providence. Lvery historical event is an in-
stance of divine providence, so no particular event has greater religious sig-
nicance than others. The selective invocation of the nger of God regard-
ing vhat is convenient or desirable is comparable to the use of the concept
of holiness, vhich is so often abused for national-political purposes. When
the holiness of the Temple Mount is imputed to its being Gods estate, I
ask is not any plot of land equally the estate of God After all, the earth is
Gods and the fullness thereof ' (Ps. :, a verse religious |evs repeat four
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,o The State of Israel
times a veek). The ingathering of exiles in itself is not yet a religious phe-
nomenon; see the verse but vhen you entered, you deled my land, and
made my heritage an abomination ( |er. :;). \et this consideration does
not deter certain rabbis from the Sabbatean announcement of the davn of
redemption.
Mamlalhtiyut. 8tatehooo Requires !olerau.e
. David Ben-Gurion, The Lternity of Israel
!he Co:erumeut Year|ool ( |erusalem, ,; Hebrev), pp. :.
!his essay |y Israels rst prime miuister is au early ree.tiou ou the .oui.ts uithiu
Israeli so.iety auo a oejeuse oj mamlakhtiyut, a .eutral theme oj BeuCurious ioe
ology. !he uoro suggests a .i:i. .ous.iousuess or pu|li. spiriteouess grouuoeo iu the
.ommitmeut oj .iti:eus to the state. Mamlakhtiyut here implies a .all jor all Israels
parties auo groups, religious auo se.ular, to a.luouleoge ea.h others legitima.y auo
a..ommooate ea.h others iuterests.
Never in |evish history has the unity of |the people of | Israel been revealed
in a fuller or more perfect manner than in the Declaration of Independence
of our state in our times. The Sinai covenant, according to the tradition, re-
quired holding the mountain over them like an |overturned| tub (;, :).
And vhen Moses vas merely delayed in descending from the mountain, the
people gathered vith Aaron at their head and made the golden calf. And
after all the tribes had come to David in Hebron to appoint him as leader
over all Israel . . . the rebellion of Absalom broke out. And after |oab and
Abishai, sons of Zeruiah, and Ittai the Gittite, suppressed the family rebellion
and restored the kingship to David, a more severe rebellion spread, the re-
bellion of Sheba, the son of Bichri, a Benjamitevhich led, after the death
of Solomon, to a split betveen |udea and Israel. Only a fev |of the |evish
exiles in Babylonia| emigrated vith Lzra and Nehemiah to the Iand of Israel,
about fty thousand (including some seven thousand male slaves and maid-
servants), and those vho returned encountered opposition by the people of
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Religious Signicance ,
the land vho had not been exiled. In the days of the Second Temple, quar-
rels proliferated betveen the Sadducees and the Pharisees and betveen the
Hasmonean brothers themselves, and prior to the destruction, betveen the
moderates and the zealot rebels. The rebels too fought among themselves no
less than they fought the Romans. . . . Nor did quarrels and conicts cease
in Israel during the exile.
On the eve of the establishment of the state, the |evish yishu: in
the Iand vas perhaps the most divided and fragmented of all the |evish
settlements in the vorld. In no other land could one nd such a conglom-
eration of dierent ethnic groups, cultures, organizations and parties, beliefs
and opinions, shifting ideologies and international orientations, conicting
economic and social interests, as in the yishu:|vhich vas| as a result of the
ingathering of the exiles, the center of all the divisions and splits in Israel.
With the vondrous occurrence of . . . independence, it vas as if all the
divisions vere overcome. Representatives of all the parties in Israel signed
the Declarationfrom the Communists, vho had forever fought against the
Zionist enterprise as reactionary, bourgeois, chauvinistic, and counterrevo-
lutionary, to Agudat \israel, vhich had perceived as apostasy any attempt to
bring about the redemption of Israel through natural means. . . .
Hovever, it vas not only these tvo extremes that . . . overcame
their prolonged and bitter opposition to the state of Israel. The represen-
tatives of Shomer Hatzair, vho for over tventy years had maintained that
a binational state vas the only means to realize the Zionist goal . . . par-
ticipated in the signing. . . . |And| representatives of the Revisionists, vho
had vehemently fought against a state based on partition, also signed the
Declaration.
The only obstacle . . . vas the last paragraph |of the Declaration|
referring to trust in the Rock of Israel. Some radical intellectuals consid-
ered these vords an apostasy against atheism; on the other side vere ultra-
orthodox extremists vho perceived the failure to add and its Redeemer . . .
as an apostasy against fundamental dogma. Nevertheless, everyone signed
after negotiations. And not only the parties in Israel but the |evish people
throughout the vorld vere united on that day in their joy and pride over the
establishment of the state. It is dicult to assess vhich of the tvo miracles
vas greaterthe miracle of independence or the miracle of unity. . . .
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,: The State of Israel
Hovever, these tvo miracles vere conjoined only on that von-
drous day. The state vas established; there then began a bitter and protracted
military struggle for its survival, vhich has not yet been decided and vill
not end in the near future. This struggle, along vith the eort to gather in
all the exiles and to cultivate the desert, requires . . . a united |evish people
no less than did the declaration of the state. \et the unity that gloved on the
day of the Declaration soon vanished. The transition from yishu: to state did
not diminish the internal divisions and splits; on the contrary, they increased
and vere exacerbated . . . by the very events that opened a nev period in
|evish history () the establishment of a sovereign |mamlalhtit| framevork
and (:) the beginning of the ingathering of the exiles.
A state cannot exist vithout government, coercion, and majority
rule (unless it is a despotic totalitarian state). But a state cannot exist only
through |these three things|; it dravs its vitality, pover, and integrity from
the general vill of the people, from their shared historical imperatives, from
their mutual responsibility and internal unity. . . . This applies to every state;
it applies even more to the state of Israel, vhich is not only a state of its in-
habitants and for its inhabitants. It is not a state vith a developed country
and an established economy. . . . The people residing vithin it are only the
nucleus of the people for vhom it vas established. Most of its area is deso-
late and vaste, requiring development. Its economy is only in its infancy.
All its neighbors are scheming to destroy it. Great vorld povers are unsym-
pathetic to it. The tasks of absorption, development, and security that fall
upon this state cannot be accomplished solely by the coercive pover of gov-
ernment. Without an extended and continuous eort . . . supported by the
entire people, the ingathering of the exiles vill be impossible, the cultiva-
tion of the desert vill not be accomplished, and security vill not be estab-
lished. This eort requires consolidating the peoples povers and activating
its general vill.
. . . The divergence of commitments and beliefs regarding issues of
religion requires both religious and secular citizens . . . to respect the feel-
ings and perceptions of the other side and to relate to each other not only
vith tolerance but also vith respect and mutual trust. Lach side may simply
desire that everyone be like it; indeed, in a totalitarian regime this is achieved
through inquisitorial methods or through dictatorship. Israel is a democratic
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state. And its existence cannot be contemplated vithout a democratic rule
that is founded upon the liberty and free choice of its inhabitants. There
are religious |evs vho believe sincerely that the day vill come vhen God
vill purify the hearts of the people and every |ev vill believe and be God-
fearing like them. And there are secular |evs vho are certain that time vill
achieve vhat the intellect has not and . . . everyone vill be like them. |But|
no one knovs vhen such a vondrous unity of belief vithin |udaism vill
come to pass. The state must act vithin an existing reality that may endure
for years, vhile these very years are critical . . . for the fate of the people and
the future of the state. We must take heed of the dierences of opinion in the
spiritual realm. It is particularly here that the dierences are radical because
they touch the deepest roots from vhich both sides are nurtured. Both sides
are certain that they are faithful to the sources and roots of |udaism as they
understand them. There is no objective Supreme Court to decide betveen
them, nor vould either accept its judgment even if there vere such a court.
They both must live together and build together the nation and the state,
vithout one imposing its opinions on the other.
The Declaration of Independence, also signed by representatives |of
all the religious parties|, includes a proclamation of freedom of religion
and conscience. This principle is intended to secure full opportunity for the
most observant |ev to live according to his religious belief, and |also| for
every other |ev to live according to his ovn vay. The state, under all coali-
tions to date, has undertaken to provide for the communal religious needs
of its inhabitants and to prevent any coercion in religious matters. This vise
and fair arrangement should have appeased all sides and vas in fact accepted
by them. Hovever, formulating an abstract principle is one thing; imple-
menting it in practice is anotherespecially vhen . . . the mutual respect,
trust, and tolerance of a united nation is lacking.
. . . The gravity of the problem is grounded not only in the divi-
sion betveen parties but in the conict betveen tvo dierent conceptions
of |udaism and betveen tvo opposing programs for shaping the character of
the |evish people and of the state of Israel
a. laith in Torah from heaven, strict adherence to the
8hulhau Arulh and to practices considered traditions fromSinai, and
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a desire (overt or concealed) to impose the lavs of the Torahas
interpreted by the Council of Distinguished Scholars of the Agu-
dah or the rabbinical leaders of the Mizrachiupon the state and
all its citizens by force of state |mamlalhti | lav
b. Belief in freedom of conscience and in the liberty of
each person to think, speak, and act as he sees t, provided that he
does not harm the rights of another or of the state
Those vho demand freedom of conscience and of religion . . . in-
clude not only freethinking |secularists| vho perceive any imposition |of
Torah lav| as an assault upon their conscience but also many traditional and
religious persons vho themselves adhere to the 8hulhau Arulh and carefully
observe all traditional norms. Nevertheless, they viev the transformation
of religion into a political tool and the attempt to impose religious prac-
tice by state pover as morally damaging to the state and as a perversion of
the spirit of |udaism. They are opposed to political parties based on religion,
vhich they viev as detrimental to popular respect for religion. They viev
the politicization of the rabbinate and the mixing of divine and human re-
lations vith . . . factional maneuvers as unvholesome to both religion and
state. Many simply . . . desire that the state restrict itself to relations betveen
man and his fellovs.
16
The religious debate in Israel is further complicated by the particu-
lar nature of the |evish religion. The problem of religion in Israel does not
resemble the problem of church and state in Christian countries. The |ev-
ish religion is fundamentally dierent from the Christian religion. It is not
satised vith abstract dogmas but is grounded in positive and negative com-
mandments that encompass the full span of human life from birth to death,
leaving no neutral ground free of religious concern. lurthermore, the |evish
religion is a national religion and has absorbed vithin it the entire heri-
tage of the |evish people from its inception to the present. The national and
religious aspects are not easily separated.
The blending of |these tvo| is not a novelty in our history. . . . In
o. As opposed to the relations betveen man and Godsee the traditional distinction in
Mishnah \oma :,.
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Religious Signicance ,
our earliest literature, the origin of our people |is tvice described| rst, the
common descent from the line of Abraham and the sons of Israel |the line
of |acob|; second, the covenant made betveen God and His servant Moses
and the people The Iord our God made a covenant vith us at Horeb. It
vas not vith our fathers that the Iord made this covenant, but vith us, the
living, every one of us vho is here today (Deut. :).
The . . . separation of church and state adopted in the United States
did not result from antireligious arguments, but, on the contrary, from a
deep attachment to religion and a desire to assure for every citizen com-
plete religious freedom. |But| this comfortable arrangement, even vere it
adopted in Israel, vould not solve the problem. |evish holidays have a dual
meaning both religious-cosmic and historical-national. . . . A |ev need not
be observant in order to appreciate the great value of the observance of the
Sabbath and the holidays as days of rest and as commemorations that lend
|evish color and historical continuity to our public life. Passover, Pentecost,
and Tabernacles too have both historical and national-religious meaning. . . .
The religious partiesfor religious and other reasonscannot rest
content vith the national and social aspects of the Sabbath and the holi-
days. . . . Anyone committed to |the idea of | a religious partya political
party being rst and foremost an instrument for poveris |thereby| com-
mitted, vittingly or not, to establishing religion in the state.
|Ben-Gurion goes on to describe the legal arrangements established
under the Ottomans, sustained during the British mandate, and subsequently
adopted by the state of Israel. Under these arrangements, marriage and di-
vorce, and certain other matters of family lav, are regulated by |evish, Mus-
lim, and Christian religious courts.Lds.|
In the state of Israel, tvo opposite objections to this arrangement
are advanced. Some object to granting state |mamlalhti | authority to the rab-
binate and to imposing its yoke on | |evish| citizens vho disavov the rabbis
and their authority and have no interest in their rulings. Others object to
restraining the rabbis by state lav and subjecting them to sovereign |mam
lalhti | authority. Still others velcome state-ordained rabbinic jurisdiction
indeed, they seek to expand it as far as possible. At the same time, they seek
to free the rabbinate from its subjection to the state and its legislative insti-
tutions, placing the rabbinate above the state and its institutions.
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,o The State of Israel
The existing arrangement is the product of compromise. And as is
common vith compromises, it does not satisfy everyone. This compromise
vas accepted to prevent a religious vara var for religion and a var against
religion that vould seriously obstruct the integration of the exiles, . . .
the rst of the states priorities. The compromise can endure only if people
vith opposing outlooks regarding religion and spiritual matters are able to
demonstrate mutual tolerance and respect by virtue of |evish solidarity.
|Granting| ocial |mamlalhti | status to the rabbinate in a state committed
to freedom of conscience and religion, vhich contains both religious parties
seeking the rule of religion and traditionalists vho oppose such rule, as vell
as a large free-thinking |secular| public, creates a dangerous mineeld. Such
a status is possible |only| if those interested in its existence accept volun-
tarily and faithfully the authority |of the state| and the limitations it entails.
Benets are accompanied by burdens; state authority entails restrictions. The
rabbinate must not overstep the bounds . . . set by the state, and may not
intervene in matters outside the jurisdiction determined by lav. Unless the
rabbinate accepts the yoke of the state and its lavs vithout qualication, it
cannot morally obligate citizens vho entirely disavov rabbinic authority.
Human conscience, vhether religious or moral . . . is far more
poverful than lav. But those vho act on their conscience in opposition to
state lav must accept all the consequences of their actions, including the
punishments vhereby the state defends its authority. . . . In any event, they
are not entitled to request from the state authority to impose their vill upon
others against their ovn consciences.
The capacity for compromise is an essential condition for the exis-
tence of any community. . . . Hov much more so is this capacity required
in the state of Israel' There is no need to precipitate decisions that might
be severely obstructive to the integration of the exiles and to . . . political
|mamlalhti | cooperation. |Of course,| not all debates nor all decisions can or
should be avoided. No abstract rules can distinguish the areas for |clear-cut|
decision from the areas for compromise. \et it is certain that there is no ne-
cessity at present to reach decisions in matters of opinion and faith, in vhich
ve shall long continue to be divided. History has a sequence, and one must
distinguish betveen the primary and the tangential, betveen the permanent
and the temporary. An uncompromising confrontation on the status of reli-
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Religious Signicance ,;
gion in the state . . . has the potential to explode the nation. In the best
case, it vill delay the process of internal consolidation, vhich is the essential
requirement . . . for the existence of the state.
Connentary. Hobbes and Rousseau in Israel
During the ,:os a vell-knovn professor at the Hebrev Univer-
sity remarked that for the foreseeable future Israel could not expect to pro-
duce philosophers of the rst rank because the leisure that philosophical re-
ection requires vas unavailable amid the continuing crises of Israeli social
and political life. \et in Israel a famous public intellectual such as \eshayahu
Ieibovitz could, in a political forum, casually connect his conception of the
state to that of the political theorist Thomas Hobbes. And Israels rst prime
minister, David Ben-Gurion could, on behalf of his conception of mamlalh
tiyut, invoke Rousseaus general vill. Perhaps the truth vas more nearly the
reverse of vhat the professor proclaimed in Israel, philosophy so ourishes
that even in addressing the needs of the hour prominent intellectuals and
public gures could not express their political opinions vithout reference
to the history of philosophy. Or perhaps there is a third and more precise
alternative that people vho must think and speak on the run may invoke
the names of famous philosophers or philosophical notions to dramatize a
critical point that bears a limited, but nevertheless instructive, connection
to the philosopher or notion invoked.
But passing reference or dramatic allusion may obscure important
complexities. Indeed, despite the appeal to Hobbes, Ieibovitz vas, in deci-
sive respects, not a Hobbist. And, notvithstanding his invocation of the gen-
eral vill, Ben-Gurion vas, in crucial vays, no Rousseauian. My purpose in
saying this is not to accuse either one of committing malpractice as a politi-
cal theorist. Rather, vhat I vish to suggest is the need on our part to engage
in political theory to make sense of their arguments. When this is done, and
the arguments behind the allusions are brought into focus, ve can see that
Ieibovitz and Ben-Gurion do not, in eect, oer us a stark choice betveen
Hobbes and Rousseau. Instead, the juxtaposition of their opinions invites us
to connect a point about the purpose of the state that Ieibovitz had in mind
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,: The State of Israel
vhen he declared a philosophical alliance vith Hobbes to a claim about the
preconditions of the state that Ben-Gurion sought to vindicate in terms of
the general vill.
Ieibovitzs immediate objective is to oppose religious Zionists
vho ascribe a religious signicance to the state of Israel. Iike Hobbes, Ieibo-
vitz rejects the viev that the goal of the state is perfection or redemption
and argues instead that the state of Israel, like all states, vas properly estab-
lished for the sake of peace and security and nothing more. But this viev
does not a Hobbist make. lor Hobbes reaches his conclusion about the lim-
ited goal of the state by a distinctive line of reasoning that Ieibovitz does
not follov. Unlike Hobbes, vhose conclusions about the state are rooted not
only in his materialist metaphysics but also in his account of the restless pas-
sions that rule human conduct, Ieibovitz derives the states limited role in
part from reections about the dignity of the individual and in part from re-
ections on the exalted meaning of service of God. But perhaps the most
fundamental dierence is this vhereas in Le:iathau Hobbes famously argues
that civil peace requires the elimination of private judgments about right
and vrong, Ieibovitzs fame in Israel rests, in signicant measure, on his
outspoken and unrelenting moral criticism of state policy pursued by the
duly elected Israeli government in the administration of the West Bank and
Gaza Strip. Thus, Ieibovitzs Hobbes-like demand that the authority of the
state be restricted to matters of peace and security and his extremely un-
Hobbesian public opposition to the Israeli exercise of state authority spring
from the same source devotion to the Torah and a severe moral conscience.
In referring to Rousseaus general vill, Ben-Gurions principal aim
is to identify one of the crucial preconditions for democracy in Israel. Iike
Rousseau, Ben-Gurion understood that political societies vill not prosper or
endure if they are not grounded in shared beliefs, practices, and purposes.
And vith Rousseau, Ben-Gurion believed that religion is a vital element in
politics. But in contrast to Rousseau, for vhom the general vill signies the
logic of legitimacy, a formula by vhich the lavs issuing from a popular as-
sembly can legitimately bind each member of the state, Ben-Gurion invoked
the general vill to denote a particular peoples passionate attachment to its
common descent and common destiny. And there is an important dier-
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Religious Signicance ,,
ence betveen Rousseaus civil religion and the civil purposes to vhich Ben-
Gurion sought to put the |evish religious tradition. Rousseaus civil religion,
vhich stands opposed to private religious belief, supplies the defect of par-
ticularistic revealed religions by teaching sentiments of solidarity and the
duties of patriotism and citizenship. In contrast, Ben-Gurions mamlalhtiyut
blurs the distinction betveen private and civil religion in the eort to de-
rive mutual respect, trust, and tolerancequalities of mind and heart that
vould enable secular and religious |evs, despite radical dierences of opin-
ion, to cooperate in maintaining the statefrom |evish religious sources.
Ben-Gurion knev that the quest for mutual accommodation in-
volved considerable costs from the perspective of radical intellectuals as
vell as from that of ultraorthodox extremists. And he understood that the
outcome of such a quest vas not predetermined. By the very use of the term
mamlalhtiyut, he implied that the private sphere could not be counted on to
produce the requisite public spirit, and that therefore the cause of democ-
racy in Israel required the state to play a major role in teaching citizens hov
to share the common good of freedom. In advising the contending factions
in Israel that in a free and democratic society benets are accompanied by
burdens, Ben-Gurion sav in Israel in the early ,os vhat thoughtful par-
ticipants on both sides of the American debate about liberalism and commu-
nitarianism in the ,,os came to recognize the question for liberal democ-
racies is not vhether to protect rights or foster responsibility, but hov to
strike the elusive balance betveen them.
But perhaps Ben-Gurions mamlalhtiyut suppresses certain funda-
mental issues that are brought into focus by Rousseaus radical formulations.
When the general vill, folloving Rousseau, is understood as the articula-
tion of a logic of legitimacy and not as an appeal to common descent and
destiny, then the problem of hov members of Israels non-|evish minori-
ties can viev the lavs of the state as a reection of their good emerges as a
crucial issue for democracy in Israel. And vhen civil religion is understood
in opposition to particular revealed religions and as an institution to be pro-
moted for distinctly secular political purposes, then certain dangers spring
into viev, dangers to democracy and to |udaism that stem from enlisting the
|evish tradition on behalf of state purposes. lor it is reasonable to suppose
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oo The State of Israel
that the |evish tradition cannot be a vital source of political education for
all Israels citizens, especially its Arab minority; and that in making use of
resources vithin |udaism for public purposes vell-meaning democrats run
the risk of distorting or debasing |udaism by turning it into a tool of the
state.
In the Lthi.s, Aristotle emphasizes the importance of seeking the
appropriate degree of precision in each kind of inquiry. In a highly charged
public forum in vhich observant |evs debate the religious signicance of
the state of Israel, a reference to Hobbes may carry connotations not present
to the minds of Hobbess seventeenth-century readers and may lack speci-
cations of prime importance to tventieth-century scholarly interpreters. In
a state document vritten by the prime minister in the aftermath of a daring
var for independence and in the face of numerous daunting political chal-
lenges, an invocation of the general vill may, in addressing the needs of the
hour, slight the needs of scholarly exactitude. In the eort to understand pre-
cisely vhat gures such as Ieibovitz and Ben-Gurion argued, ve must not
ascribe to them a precision in speaking and vriting foreign to the demands
of their speeches and publications.
One revard is that unseen connections come into focus. Lven if
Ieibovitz vere correct that peace and security and nothing more ought to
be the goal of the Israeli state, Ben-Gurions analysis suggests that the state
vould at its peril neglect the resources vithin the |evish tradition that might
enable its gloriously and excruciatingly diverse citizenry to pursue peace and
maintain security. And even if Ben-Gurion vere correct that in Israel those
resources must also be marshaled to foster a democratic disposition and the
virtues of freedom, Ieibovitzs stern voice transmits Hobbess varning that
the passions stirred by religion pose a perennial threat precisely to the goods
of peace and security that liberal democracy arms.
Ieter Berlouit:
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|evish and Democratic State o
A jeuish auo Demo.rati. 8tate
A jeuish auo Demo.rati. 8tate
o. Iavs of the State of Israel loundations of Iav, and Basic Iav
Human Dignity and Iiberty
Laus oj the 8tate oj Israel (ocial Lnglish translation), ,:o, p. :; 8ejer haChullim (Iavs
of the State of Israel), ,,o (Hebrev), p. o.
!he De.laratiou oj Iuoepeuoeu.e oj the state oj Israel promises to eusure the |asi. rights
oj all its .iti:eus. Israel ooes uot ha:e a .omplete .oustitutiou or |ill oj rights. It has a
|ooy oj |asi. laus aoopteo o:er a perioo oj se:eral oe.aoes that are ultimately meaut
to .om|iue iu a .oustitutiou. !hese laus ha:e au o:errioiug regulati:e status :is:is
oroiuary laus, auo it is here that Israeli juoges turu jor legally |iuoiug statemeuts a|out
the :alues oj the state auo the rights oj its .iti:eus. Cue su.h |asi. lau is preseuteo here,
aloug uith auother lau aimeo at guioiug legal iuterpretatiou. !hese are jolloueo |y
three arti.les jrom leaoiug 8upreme Court justi.es, pu|lisheo shortly ajter the passiug
oj the Basi. Lau ou Humau Diguity auo Li|erty. !hese arti.les attempt to oetermiue
the .outours oj juture juoi.ial iuterpretatious. !he arti.les oo uot ha:e the spe.i.ity
oj au a.tual oe.isiou iu a .ase, they ha:e iusteao the pouer oj ioeologi.al statemeuts
uritteu uith au eye to juture appli.atious.
loundations of Iav, ;o,:o
. Where the court, faced vith a legal question requiring decision,
nds no ansver to it in statute lavor case lavor by analogy, it shall decide it
in the light of the principles of freedom, justice, equity, and peace of Israels
heritage.
Basic Iav Human Dignity and Iiberty, ;:,,:, ;,,
. Basic human rights in Israel are founded upon recognition of the
value of human beings, of the sanctity of their lives and of their being free.
They vill be respected in the spirit of the principles included in the decla-
ration establishing the state of Israel.
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o: The State of Israel
a. The purpose of this basic lav is to protect human dignity and
liberty so as to anchor in a basic lav the values of the state of Israel as a |evish
and democratic state.
A Li|eral 8e.ular Iositiou
. Aharon Barak, The Constitutional Revolution Protected Basic
Rights
Mishpat |mimshalLau auo Co:erumeut iu Israel, (,,:; Hebrev), o.
Chiej justi.e Baral has playeo a ley role iu the mo:e auay jrom legal jormalism auo
touaro li|eral juoi.ial a.ti:ism iu the Israeli 8upreme Court. !his is au example oj a
li|eral iuterpretatiou oj the rst .lause oj the Basi. Lau. Humau Diguity auo Li|erty.
What is a |evish state and vhat is the relation betveen the phrase |evish
state and the phrase democratic state Are there foundational values in-
ferred from Israels being a |evish state vhich vould not be inferred from
Israels being a democratic state Can contradictory values be inferred from
the |evish versus the democratic character of the state
These questions vill no doubt be examined in the future by the
courts. In my opinion, the phrase |evish and democratic does not contain
tvo contradictory elements but rather consonance and harmony. The con-
tent of the phrase |evish state vill be determined according to the degree
of abstraction imparted to it. In my opinion, this phrase should be under-
stood at a high level of abstractionvhich vould unite all members of the
society, revealing vhat they hold in common. The level of abstraction must
be so elevated so that it vill coincide vith the democratic character of the
state.
Indeed, the state is |evish not in the halakhic sense, but in the sense
that |evs have the right of aliyah |immigration|, and that their national cul-
ture is the culture of the state (expressed, for example, in the language and
in the days of rest). The foundational values of |udaism are the foundational
values of the state. I mean the values of love of mankind, the sanctity of life,
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|evish and Democratic State o
social justice, doing vhat is good and right,
17
the protection of human
dignity, the rule of lav over the legislature, etc.the values |udaism has be-
queathed to the vorld at large. The appeal to such values is on a universal
level of abstraction corresponding to the democratic character of the state.
Therefore, one must not identify the values of the state of Israel as a |evish
state vith mishpat i:ri. One should not forget that there is in Israel a substan-
tial non-|evish minority. Indeed, the values of the state of Israel as a |evish
state are those universal values common to the members of a democratic
society, vhich have grovn out of |evish tradition and history. Alongside are
those values of the state of Israel vhich grov out of the democratic nature
of the state. The merger and concurrence betveen these tvo vill forge the
values of the state of Israel.
A ^atioualReligious Iositiou
z. Menachem Llon, Constitution by Iegislation The Values of a |ev-
ish and Democratic State in Iight of the Basic Iav Human Dignity and
Personal lreedom
!el A:i: |ui:ersity Lau Re:ieu, ; (,,; Hebrev), ooo:.
justi.e Llous oisagreemeuts uith justi.e Baral ser:e to oeliueate the argumeut |etueeu
li|eral se.ularism auo mooeru orthoooxy iu Israeli .ulture. Llous argumeut here im
pli.itly aooresses Barals positiou. Llou too seels a .ouseusual meauiug jor jeuish
auo oemo.rati., |ut he uos it iu the operati:e .ouseusus oj the Kuesset. He :ieus
the traoitioual |ooy oj jeuish lau as the spe.i. sour.e oj the jeuish :alues that the
legislator has iu miuo. Iu .omparisou to Baral, Llou leuos a parti.ular .outeut to the
jeuish .ompoueut oj the lau oj the Iouuoatious oj Lau.
It is vell knovn that in its interpretation of a legal phrase the court must also
take into account the purpose of the legislation and the legislative history
;. Deut. :::. In contemporary legal use, folloving the Rabbinic tradition, the phrase com-
monly denotes equity.
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o The State of Israel
so as to explicate the vords of the lav. . . . In this basic lav, the legislator
has done us the service . . . of clearly statinginsofar as this is possible in
legal phraseologythe purpose of these basic statutes namely, to establish
the values of the state of Israel as a jeuish auo oemo.rati. state. This double-
valued purpose . . . is but one; each illuminates the other and each comple-
ments the other, and they are thus unied in our hands. Therefore, the terms
human dignity and liberty, and all the statutes of this basic lav, vill be
interpreted as serving to accomplish this double-valued purpose.
. . . Prior to the passing of the Basic Iav on Human Dignity and
Iiberty, Israeli judges vere not obligated to expound this double-valued pur-
pose. Court rulings had only attended to expounding the term oemo.rati.
state, and had discussed at length, and delved into the meaning of, demo-
cratic values. . . . In contrast, the great majority of Israeli judges have not
attended to the values of the state of Israel as a jeuish state vhile interpreting
basic rights. . . .
What are the values of the state of Israel as a |evish state Hov are
ve to discover them and by vhat measure We have already cited the chair-
person of the Constitution, Iav, and |ustice Committee |Member of Knes-
set Iynn, vho spoke| . . . in the Knesset about the importance of reaching
a broad consensus of all the parties of the Knesset for the said legislation.
Iater in that speech, MK Iynn also made reference to the meaning imparted
by the legislator to the concept of the values of the state of Israel as a jeuish
state
. . . We vere avare of the fact that ve could not pass a basic lav
establishing the values of the state of Israel as a |evish and demo-
cratic state, vithout reaching a broad consensus of all the parties of
the Knesset. . . . The lav begins vith a ceremonious declaration,
proclaiming that it is intended to protect human dignity and lib-
erty so as to anchor in lav the values of the state of Israel as a |evish
and democratic state. The lav thus stipulates in its rst clause that
ve hold ourselves committed to the values of Israels heritage and
|evish heritage. . . . The lavdenes several fundamental individual
liberties none of vhich stands in contradiction to Israels heritage
or to the full range of values prevalent and accepted today in the
state of Israel by all the house parties.
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|evish and Democratic State o
. . . In this context I vish to recall vhat I have repeatedly stated
concerning the manner in vhich ve should consult the sources of Israels
heritage in accordance vith the lav of the loundations of Iav (,:o)
. . . It is vell knovn that the vorld of |evish thought through-
out its generations is, like the vorld of the halalhah itself, . . . lled
vith diering opinions and contradictory positions. Opposing liti-
gants vould have no diculty culling grounds for their arguments
and opinions from the labyrinth of the sources. That is the situation
in each and every issue, and so it is regarding the issues of free-
dom of opinion and freedom of speech and other issues ve vill
discuss belov. It is clear, and goes vithout saying, that all the posi-
tions together contribute to deepening and enriching the vorld of
|evish thought in its dierent periods of time. The scholar seeking
knovledge must distinguish betveen vords pronounced for a par-
ticular time and place and those pronounced for all time, betveen
accepted opinions and exceptions, and make other similar distinc-
tions of meaning. lromthis rich and great treasure the scholar must
drav |visdom| to address the needs of his generation and time.
I presume that the judges of Israel vill not all see eye to eye regarding the in-
terpretation of the concept the values of the state of Israel as a jeuish state,
just as the judges of Israel do not alvays see eye to eye regarding the interpre-
tation of the concept the values of the state of Israel as a oemo.rati. state. . . .
The plurality of dierent opinions and positions is an honor to a thoughtful
society. . . . All the more so in our young state, vhich is deeply pondering
its path and its social and spiritual culture. It is also the manner of judges
to ponder over the exposition and meaning of basic values and overarching
principles. Hence, it is entirely possible that the concept the values of the
state of Israel as a jeuish state vould be interpreted in accordance vith one
or another understanding of the heritage of Israel. . . . Only he need do no
more than repeatedly emphasize that just as the concept of a oemo.rati. state
is to be interpreted by stuoyiug the halalhot of democracy |as practiced| in
the enlightened democracies, so too ought the concept of a jeuish state be
interpreted by stuoyiug the |evish sources at the heart of |udaism and eugagiug
them.
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oo The State of Israel
A 8e.ular Iuterpretatiou oj jeuish 1alues
. Haim Cohn, The Values of a |evish and Democratic State Lxam-
ining the Basic Iav Human Dignity and Iiberty
Haprallit ju|ilee Bool, edited by M. Deutch ( |erusalem Hebrev Bar Association, ,,;
Hebrev), pp. .
Lile Llou, Cohu seels to gi:e positi:e .outeut to the jeuish :alues oj the state. |ulile
Llou, houe:er, he oraus ou the De.laratiou oj Iuoepeuoeu.e rather thau jeuish lau
to euumerate these :alues.
. . . The values and foundational principles |of the lav| are intermeshed A
legislator or judge vho determines these principles is articulating the values
aspired to or existing in the life of the state.
And this is vhat the legislator did in the lav of the loundations of
Iav (,:o). This lav stipulates Where the court, faced vith a legal ques-
tion requiring decision, nds no ansver . . . it shall decide it in the light of
the principles of freedom, justice, equity, and peace of Israels heritage. . . .
The principles of liberty, justice, equity, and peace are, as every one agrees,
democratic values; and vhen they grov out of the heritage of Israel, they
are |evish values. It thus follovs that the values of the state of Israel as a |ev-
ish and democratic state must include liberty, justice, equity, and peace as
present in the heritage of Israel, although they are not exhausted by them.
This is not only a reasonable exposition of the Basic Iav |Human Dignity
and Iiberty|, it is also a reasonable exposition of the lav of the loundations
of Iav. The legislator certainly did not intend to provide room for principles
that do not faithfully reect the values of the state.
Trying nov to enumerate the values of the state of Israel as de-
ned in the legislation and in the Declaration of Independence, ve arrive at
something like this long list
. Human dignity
:. Human liberty
. |evish aliyah and the ingathering of exiles
. Developing the land for the prosperity of all its inhabitants
. Lqual rights to all citizens vithout regard to any dier-
ences of religion, race, or gender
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|evish and Democratic State o;
o. |ustice
;. Peace
:. lreedom of religion
,. lreedom of conscience
o. lreedom of speech
. lreedom of education
:. lreedom of culture
. The culture of Israel, the heritage of Israel
. The vision of the prophets of Israel
. The achievements of science
o. Iabor, art, pioneering
;. Tolerance
:. Mutual help
,. Iove of mankind
:o. Lquity
. . . The Basic Iav declares the values of the state of Israel to be
jeuish auo oemo.rati.. The greatness of this lav inheres in the mutual abode
created by the legislator, uniting |udaism and democracy as a pair. Not that
he makes the eort to clarify for himself and for the people vhat the |evish-
ness of the state or its democratic quality is, and vhat they share or hold in
common. All this he leaves to the interpreters. . . .
An initial interpretive problem arises concerning the conjunctive
and in |evish and democratic. It could be interpreted as setting |ev-
ish and democratic apart as if there vere tvo creatures set loose in the
state vith nothing in common. . . . According to this interpretation, it is
incumbent upon the judgeor the legislatorto choose a |evish value or a
democratic value as the issue at hand demands. He vould at one time have to
prefer one and reject the other, and at another time, the opposite. He could
at most contrive an ad hoc mixture of elements of both values vhen the
matter at hand permits it and justies it.
I cannot accept this kind of interpretation. To me, a |evish and
democratic state is not a state in vhich |udaism and democracy are engaged
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o: The State of Israel
in constant dispute and obstinate competition, vhether political or ideo-
logical. lor that ve vould not need a Basic Iav. We may presume that the
legislator did not intend the perpetuation of evil but rather the advancement
of good. The conjunctive and must be interpreted as combining |udaism
and democracy into one supreme value|udaism that is democratic and a
democracy that is |evishas if |udaism and democracy vere one each illu-
minates the other and each complements the other, and they are thus unied
in our hands.
18
This is a true innovation and constitutes real progress The
interpreters task is to impart the supreme framing value vith normative
legal content conforming to |udaism and democracy together.
. . . In the eyes of the religious members of the legislature a |evish
state should perhaps aspire to be a halakhic state; maybe this is the reason
they gave |the state| this name and predicate in the Basic Iav. Maybe the
secular MKs |Members of Knesset|, or some of them, agreed to this name
and predicate simply oving to political considerations and not fromany con-
nection to |udaism. These matters do not add or detract from the objective
interpretation of the terms. Similarly, it makes no dierence if one vould
hold the possible position that the state is |evish only insofar as it is the
state of the |evish people.
. . . The distinction (made by Ben-Gurion) betveen a state gov-
erned by lav and a halakhic state is parallel in common parlance to the dis-
tinction betveen a democracy and a theocracy. Lven if you vere to say that
a true or pure |evish state ought to be a halakhic statea position I am
far from maintaininga |evish and democratic state cannot be a halakhic
statenot because the norms of halalhah are necessarily undemocratic, but
because the vhole system is antidemocratic. With respect to a specic norm,
the state can be a lav-abiding state and a halakhic state at one and the same
time. This is the case vhen the halakhic norm is authorized as lav by legal
democratic procedure. But a democratic legislator vould betray his charge
vere he to adopt the halalhah as such. The result vould beperhaps in the
eyes of an individual vho abides by the mit::ota |evish state, but it vould
certainly be an undemocratic state, and the state is not meant to be |evish
unless it is democratic. In other vords, the |evishness of the state cannot
:. Cohen is quoting Llon ( :).
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|evish and Democratic State o,
be halakhic or religious; it must be a |udaism sanctioned by the values of
democracy.
Connentary. Against the Idea of a |evish State
Astate is home to its people, to its inhabitants. Some states are good,
even though none is so good that it cannot be bettered; some are bad. They
have no value in themselves. Their value depends on their being good homes
for their inhabitants (and on other factors as vell). Can Israel be a good state,
can it be a (good) home for its inhabitants, vhile its constitution declares it
a |evish state This is the question that Aharon Barak is confronting in his
exposition ( ). He does not state it as such, for as a judge he uses an inter-
pretive method. He asks himself Is there a vay of interpreting the lav that
is consistent vith Israel being a good state He is committed to giving an
armative ansver even if in order to do so he has to empty the lav of all or
much of its content. Interpreting statutes out of their meaning is the judicial
vay of neutralizing immoral or unjust lavs. His ansver to my question is
\es, Israel can be both a |evish state and a good state, provided ve under-
stand by a |evish state a state that embraces the values vhich |udaism gave
the vorld, namely, the love of mankind, the sanctity of life, social justice,
equity, protecting human dignity, the rule of lav over the legislature, etc.
Notice that in the same sense lrance too can be a |evish state. It
too can embrace the values that |udaism gave to the vorld, namely, the love
of mankind, the sanctity of life, social justice, equity, protecting human dig-
nity, the rule of lav over the legislature, etc. Indeed, it may vell be said that
in that sense no state can be a morally good state unless it is a |evish state.
Some may regard this as a reductio ad absurdum of Baraks inter-
pretation of the lav. But that vould be a mistake. It vould disregard the
fact that courts have the pover to interpret a morally unacceptable lav out
of existence. I do not mean that they have the pover to do so vhenever
they nd some moral blemish in the lav. But they have it vhen the lav
is morally unacceptable, as the Israeli Basic Iav Human Dignity and Iib-
erty, ,,:, ,,, is. To shov that it is morally unacceptable one has to shov
that an interpretation that does not expunge its content renders it immoral.
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o The State of Israel
That is more than one can do in a brief commentary. Instead I vill mention
and dismiss as morally unacceptable three possible interpretations, and then
comment briey on a more reasonable fourth interpretation.
The lav may be interpreted to mean that the |evish religion should
have special privileges in Israel, perhaps that |udaism be a state religion.
Alternatively it may give people vho are |evish special standing in the state,
endov them vith rights that other inhabitants do not have (to a certain ex-
tent this happens in Israel oving to other lavs, and even more so oving to
governmental practices). I vill take it for granted that given the character
of Israels population, a large proportion of vhich is secular or avovs other
religions, and a large proportion of vhich is not |evish, both these inter-
pretations render the lav morally unacceptable. Some of the reasons for this
vill become clear later in my comments.
A third interpretation says that Israel is to be a |evish state in that it
should uphold values that are uniquely |evish, that is, values vhichunlike
the universal values Barak refers toare not universal values of mankind but
specically |evish values. Baraks comments imply an avareness of the dif-
culties vith the idea of special |evish values. Morality is universal, and so
are values generally. Lthnic or national values are the false values of national
self-aggrandizement and chauvinism.
But often vhat are mentioned as special values are but particular in-
stances of universal values. This brings us to the fourth interpretation, vhich
I vant to dvell on. It regards the |evishness of the state as consisting in its
dedication to implementing universal values, as Barak vould have it, but to
implementing them in the form they took in |evish history. According to
this interpretation of the notion of a |evish state, the state vould apply the
universal principles of justice and morality, just as Barak says; but vhenever
their implementation could take dierent forms, the |evish state vould im-
plement them vhere possible in the forms they vere given in |evish com-
munities in the past.
Does this interpretation make the lav morally acceptable It is nec-
essary and inevitable that the pursuit of universal values takes local forms. To
give an example, think of the political virtues of democracy and social jus-
tice, inasmuch as they involve protecting inhabitants from poverty and de-
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|evish and Democratic State
privation. If ve think of but four Western democraciesGermany, lrance,
Britain, and the United Statesve nd a vivid illustration of hov democ-
racy can be implemented in a variety of vays. The democratic institutions of
these countries dier in many respects the relations betveen the executive
and the legislature, the constitutional roles of the courts, the electoral sys-
tems, and more. None of them is perfect, but improvement in each should
proceed fromvithin the constitutional practices established in it, rather than
by rejecting themin favor of alien institutions. Similar dierences exist in the
institutions that implement social justice. lor example, methods of provid-
ing healthcare in Canada, Britain, lrance, and Germany (the United States
falls far short of the minimum required to be a good candidate here) vary
videly, but all of them are capable of being improved vithin the connes
of the basic institutional principles they are based on.
So could not Israel, as a state, implement universal values in the
vays and forms familiar from |evish traditions vithout being immoral Not
so. The examples shov the rationality of a state relying on its ovn tradi-
tions and practices, or the traditions and practices of its population. If doing
that vould make Israel into a |evish state, then in the same sense the United
States is an American state, Britain a British state, and so on. We cannot but
vonder vhy Britain can be a British state vithout a lav that declares it to be
so. The reason is that folloving established traditions to give eect to uni-
versal values in ones country is simply the rational and the moral thing to
do. It does not require a special lav to decree that that should be done. It
is the course that any rational legislature vill almost automatically pursue
and that the courts vill follov in matters entrusted to them. That is vhy
all the morally decent countries of the vorld have the character they have
and follov the traditions of their people vithout the need to declare I am
a Danish state, I am a Norvegian state, and so on. They are that by being
morally decent.
But the natural vay of understanding the resort to |evish vays of
implementing universal values is dierent from the above. It is not an appeal
to the practices and institutions that grevin Israel over the years. It appeals to
the traditions of the |evish people throughout their history. Israel, according
to this interpretation, is a nev and exceptional state built on immigration
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: The State of Israel
from dierent |evish communities vhose traditions can be revived on the
soil of Israel only vith deliberate eort. Understood in this vay, the fourth
interpretation, too, renders the lav morally unacceptable.
There is no value in preserving traditions as an end in itself. Many
people have a sentimental attachment to the traditions of their ancestors
and vish to see them preserved. Others rebel against them in vhole or in
part. That is the vay human civilizations evolve. No, my earlier remarks
about the rationality of implementing universal traditions in vays that are
sensitive to local traditions have nothing to do vith nostalgic preservation.
They have nothing to do vith reviving |evish institutions of the time of the
Second Temple, or from eighteenth-century Poland, or fourteenth-century
Spain. They relate to the rationality of keeping to existing institutions as
they evolved in the life of the population of Israel vhile striving to improve
them in a vay consonant vith their basic character, rather than overhauling
their foundations in favor of models derived from other countries.
So, as Barak sees, only an interpretation that expunges the lavs con-
tent avoids making it morally unacceptable. Israel should live by universal
values, implementing them in accordance vith its ovn traditions and prac-
tices and those of its population. This morally acceptable interpretation does
not regard the lav as giving a special importance or role to the ancient tra-
ditions of |evish communities. It is important to remember in this context
that in Israel not only is the interpretation of the traditions of the |evish
people controversial, as |ustice Llon points out, but the very desirability of
resorting to the traditions is controversial. By and large, that recourse is re-
jected by Israeli Palestinians and by those vho still adhere to the original
ideals of the Zionist movement, vhose goal vas normalization and vhose
adherents found inspiration in the best Luropean ideas of the time. That tra-
dition found its most inspiring expression in Herzls Altueulauo and in the
vritings of Borochov and other social Zionists.
This interpretation of the lav makes it redundant it merely states
the obvious. But does it render it harmless It does render it as harmless as
judicial interpretation can, but the lav is still one that some of us vould
rather not have. One reason for that is that as it stands, the lav invites mis-
interpretation. \ou may say that every lav is open to misinterpretation, so
that cannot be an argument against having the lav. But not every lav has
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|evish and Democratic State
to be denuded of content or made redundant to avoid all other interpreta-
tions, vhile in this case all interpretations make the lav morally unaccept-
able. Moreover, the eort to denude the lav of content is itself damaging.
The courts must do that to avoid a morally unacceptable interpretation. But
it is better, much better, to avoid the need to do that, especially since in
the process it is dicult to avoid some intellectual dishonesty or untruths,
such as the preposterous claims made by Barak regarding the contribution
of |udaism to the moral enlightenment of the vorld.
It is time, hovever, to turn to the main objection to the lav that
ve are discussing, an objection that is not overcome by interpreting it out of
all content,for even then it remains a symbolic presence, and its symbolic
meaning makes it impossible for the state to be home to a large proportion
of its people those vho are not |evish. lor Israel to be my home I must be
able to say that this is my state, and if I am not |evish, then unless I suer
from false consciousness, a |evish state cannot be my state. It cannot be my
state not because Ia non-|evdo not vant to have it as my state. I cannot
have it as my state because it declares that it is not mine. Its being a |evish
state, the state of the |evs, is ocial. lor many in Israel this means that Israel
is the state of the |evs vherever they are. Some non-Israeli |evs value that
knovledge. They like to feel that the state of Israel is their state, that it is
more theirs than it is the state of its non-|evish inhabitants. But even if ve
disregard that aspect of the question, the problem is still vith us. So long as
Israel denes itself as a |evish state, it cannot be home to those of its people
vho are not |evish. Indeed, so long as that is the case, they are not really its
people.
The people of Israel are the Israeli |evs. It also has, unfortunately,
a large non-|evish population. Of course, they should be treated humanely,
and their rights should be respected. They are not to blame that they are not
living in their proper countries, just as lrench |evs should not be blamed for
the fact that the circumstances of their lives make them live in lrance. They
are a tolerated minority.
Such enlightened attitudes are indeed to be found in lrance, and
in other countries, just as they are to be found in Israel. Some lrench people
regard their country as lrench and regard lrench |evs as a tolerated minority.
Most lrench |evs resent this. In most Western countries such attitudes are
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The State of Israel
rejected by the governments, vhich insist that they have no second-class citi-
zens. Morally speaking, a state is the home of all its inhabitants, and none are
second-class; none of them belong to tolerated minorities. The lav of most
Western countries is consistent vith this viev. So far as I knov, Israel and
Germany are the only ones that dene themselves as the state of an ethnic
group, a denition vhich is symbolic but vhich in both countries has practi-
cal consequences. In both of themthis blemish on their lavcultivates racism,
hatred, and the inability of part of their population to regard themselves as
equal citizens in their homeland.
joseph Ra:
Connentary. A Multicultural |evish State
|udicial opinions are rhetorical performances. Those vho vrite
them must inevitably be concerned vith the likely responses of their in-
tended audiences. The actual litigants compose one such audience, although,
as a matter of fact, particularly as one moves from the trial to the appellate
level, the more important audience consists of persons observing the case
from a distance. These range from lavyers seeking guidance for future cases
to citizens concerned about the general sociopolitical issues raised by a given
case. These audiences vill be receptive to dierent rhetorics. The lavyer may
vant careful parsing of traditional legal materials and tend to ignore extra-
neous commentary as mere vindovdressing. The lay audience, on the other
hand, may vant reassurance about the character of the society in vhich they
live; vhat the lavyer dismisses as irrelevant may, for the laity, be treated as
constitutive of the society itself.
Although the issue of multiple audiences vill arise in any society
that is divided betveen professionals and laity, it is especially acute in vhat
ve have learned to call multicultural societies. Almost by denition, such
societies are composed of a number of signicantly dierent subpopulations.
Lven if they all speak, in some literal sense, the same languagealthough
in Israel that surely is not the casethey vill nonetheless resonate to dif-
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|evish and Democratic State
ferent possible sentences vithin that language. What vill be appealing to
one part of the population vill not simply be dierent from vhat appeals to
another. Instead, the dierent rhetorics are likely to be oppositional vhat
vill sound like music to some ears vill sound like chalk across the black-
board to othersquite independent, incidentally, of the decision reached. To
vin for the vrong reasons or by reference to the vrong rhetoric may sig-
nicantly diminish any joy attached to the victory itself, perhaps by under-
scoring its precariousness.
Sovhat should one expect fromjudges in the de facto multicultural
state of Israel Were Israel in fact uot multiculturalvere it a homogeneous
country of religiously observant |evs vith shared notions of vhat obser-
vance requiredit is hard to believe that the rhetorical practices of its judges
vould excite much interest, save in the most detached academic sense. Once
one concedes, hovever, the multicultural nature of the actual society, then
one must ask vhether judges, vhen vriting their decisions, ought to adopt
the most neutral, because most universalist, rhetoric possible. Or, alterna-
tively, should they actively attempt to insert more particularist references to
explicitly |evish lav or vhat the lav of the loundations of Iav calls the
principles of freedom, justice, equity, and peace of Israels heritage (We
must put to one side the extremely important question of vhether there is
any singular Israel|i| heritage that could generate determinate principles
in regard to such abstractions as freedom, justice, equity, and peace.)
I am disinclined to oer an abstract, theoretical response. My ovn
political preferences are in line vith a version of liberalism that, as much
as possible, avoids religious language in the public square, including the
courts. But there are many vho disagree, and it is dicult, especially if one
is a pragmatist, to explain vhy these citizens must necessarily bear the cost
of being marginalized so that liberals feel no discomfort vhen reading judi-
cial opinions. And marginalization or alienation may be the least of it;
at some point one might be concerned about even more basic questions of
legitimation, loyalty, and, at the extreme, insurrection.
The American Supreme Court justice Oliver Wendell Holmes once
said that general propositions do not decide concrete cases, and it is espe-
cially dicult to believe that one theoretical proposition should be disposi-
tive as to societies as dierent as the United States, lrance, Israel, and Italy,
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o The State of Israel
to name only four that are vell vithin the Western tradition. The prac-
tical issue is this To assert, dogmatically, that judges ought never refer to
specically |evish sources is to say at the same time that judges must de-
prive themselves of any advantages, relative to important audiences vithin
Israeli society, attached to such references. After all, it is at least thinkable that
some of the bystanders might nd more persuasive (as vell as more generally
legitimate) opinions that invoke Rashi or contemporary halakhic decisors,
vhereas they vould turn avay from opinions (and perhaps the courts them-
selves) reaching similar results but failing to discuss any such references. No
judge should be expected to engage in such self-denial, especially if the per-
ceived legitimation costs are high. Although analytic jurisprudes may prop-
erly separate lav from the rest of the social order, no one concerned vith the
actual operation of a legal system can aord to do so, and judicial rhetoric
must alvays absorb the myths and symbols of the vider society.
To the extent, then, that a signicant portion of Israels population
takes halakhic arguments seriously, one might vell expect crafty judges to
veave such arguments into their ovn opinions, vhether or not the judges
themselves are suciently observant to regard them as dispositive reasons.
The same may be said, perhaps, of arguments dravn from Israels heritage,
an ill-disguised euphemismfor the history of the |evish people. Lven secu-
lar |evs, after all, might vell nd appealing the kind of apologetics associated
vith vriters like Abba Lban or, in this collection, Aharon Barak, vho hero-
ically attempt, vith vhatever degree of plausibility, to identify that heritage
vith the most attractive features of Western liberalism.
So vhat is the problem The ansver, of course, is that Israel is uot,
sociologically speaking, an exclusively |evish state, even if ve ignore the
bitter cleavages vithin the |evish population. It contains a signicant and,
demographers vould suggest, increasing Arab population, some of it Mus-
lim, some Christian (and some, undoubtedly, secular), all united in the viev
that halalhah is not their lav, the history of the |evish people not their history.
lor the judiciary to look only to |evish materials vhen the court, faced
vith a legal question requiring decision, nds no ansver to it in statute lav
or case lavor by analogy is guaranteed to cause insult, to reinforce the sense
of marginalization and alienation that cannot possibly be good for the future
of the state of Israel.
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|evish and Democratic State ;
Perhaps one should learn from the changing norms of American
judges. It vas once quite common for them to refer to the United States as a
Christian country or to oer the specic teachings of Christianity as sup-
port for some legal proposition or other. This has been replaced vith the evo-
cation of a |udeo-Christian tradition that, vhatever its historical prove-
nance, is clearly designed to recognize the demise of the Christian hegemony
of an earlier era and to announce the symbolic integration of |evs as core
members of American society. (One is curious about the future of this rheto-
ric as the American people come to include an increasing number of Mus-
lims. Will ve see references to the Abrahamic traditions This vould not
resolve any questions presented by the immigration, especially from South-
east Asia, of persons vho are outside any religious tradition identied vith
the holy land of Israel.)
If it is unrealistic, and perhaps even impolitic, to expect Israeli
judges to adopt a relentlessly secular rhetoric, it may still be feasible to ask
that greater attention be paid to the multicultural nature of Israels heri-
tage and then to pay due rhetorical respect, say, to the teachings of Islam
and Christianity, especially vhen particular legal controversies involve issues
likely to be important to all Israelis. If, as one suspects is often the case, these
teachings do not in fact conict, it is hard to see vhat the costs vould be
of such broadened reference. Committed secularists might object, although
this vould not be very important unless the actual results of the decisions
vere oensive as vell. Perhaps more important vould be the objection of
ardent Zionists, vho might see any approving reference to the teachings of
the Quran, say, as the equivalent of vaving the vhite ag of surrender in
regard to the classic vision of a hegemonically |evish state. This is only to
underscore that the ostensibly theoretical debate about sources of lav for the
Israeli judge is deeply linked vith the far more fundamental conict, vithin
both Israeli-|evish society and the vider community of self-conscious |evs,
about the contemporary relevance of classical Zionism, vith its linkage to
the nineteenth-century ourishing of organic nationalism and the critique
of liberal universalism.
But it is hard to say vhat classical Zionism, vhich vas mostly a
secular politics, vould say about this subject. Its protagonists vould presum-
ably expect the judges of a Zionist state to refer to the historical experiences
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: The State of Israel
of the |evish people and perhaps even to some secularized version of hala
lhahlike Llons mishpat i:rialthough this latter expectation, especially,
might vell be qualied by modernist commitments to democracy, freedom,
justice, and so on. But even if this is a legitimate starting point in a state vith
an :o percent |evish majority, it cannot be the stopping point, for there is
also the remaining :o percent vho must also be considered. And other legal
resources are available that derive fromboth religious and political traditions.
Indeed, Israeli courts have regularly referred to the teachings of British and
even Ottoman lav, and several justices, including Haim Cohn and Aharon
Barak, have made good use of American materials. One might expect (and
vish) for suitable use of Muslim and Christian sources as vell, vhether for
reasons of rhetorical legitimation or the substantive visdom found in them.
Of course, all of these sources are contested and require interpretation
exactly like |evish lav. Might one suggest that this rich salmagundi of ma-
terials vill produce a specically Israeli tradition to refer to the record of
the courts ovn readings (and, inevitably, misreadings) of both |evish and
non-|evish sources
8aujoro Le:iusou
Connentary. A |evish Democratic State
Israel denes itself as a |evish democratic state. This dual nature
is, for some, a source of moral and political discomfort. It violates, so it is
argued, a basic democratic principle that of cultural-national neutrality. I
question this claim and argue that the ideal of cultural neutrality is both
theoretically inconsistent and politically unrealistic. No actual state can be
free of all particularist features, so each state should democratically deter-
mine the particular set of characteristics it chooses to endorseand |evish-
ness is as legitimate a form of particularism as any.
Democratic theory is in no vay committed to the ideal of neu-
trality. This ideal has been introduced to political theory in conjunction vith
a particular type of liberalism that requires state institutions to take upon
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|evish and Democratic State ,
themselves only coordinating and mediating roles and refrain from adopting
perfectionist or symbolic ones. By narroving the range of issues in vhich
the state intervenes, liberal neutrality places the state at an equal distance
from all its citizens, reassuring them all that the state vill treat them vith
equal concern and respect.
This ideal of state neutrality misconstrues the role of culture in pub-
lic life. Trying to restrict culture to the private sphere, it empties the state
of its symbolic role. The result is a state that can serve all its citizens impar-
tially but cannot be a home to any of them. A home is not an institution,
not even a fair and ecient one, but a place to vhich one is tied emotion-
ally, vhich reects ones history, memories, fears, and hopes. A home cannot
have merely universal features; it must alvays be embedded in the particular.
So here is the source of the tension if Israel is a home to the |ev-
ish people, its non-|evish citizens vill feel estranged from it. Must it then
shed its particularist nature, be a state like all others Israel should indeed
aspire to normality. But every state must operate vithin a cultural-historical
context; it must have an ocial language(s), a ag, an anthem, public holi-
days, and public celebrations. It must build monuments, print money and
stamps, adopt a historical narrative and a vision of the future. As feminists
and members of national and racial minorities discovered long ago, the idea
that a state can be void of any cultural, historical, or linguistic aliation is
a misleading illusionvhich is not only naive but also oppressive.
It is therefore one of Israels advantages that it openly declares its
cultural national bias. This allovs those vho are harmed by this biasmainly
its Palestinian citizens, but also other non-|evsto explain the source of
their grievances. Must a just democratic state do more than acknovledge
these grievances
Democratic life constantly produces losers, and loss is alvays a
source of discontent. The modern conception of democracy is, in many
vays, majoritarian. It assumes that all citizens must be alloved to partici-
pate in an open democratic process, and then the majority vins. There are
obvious limits to majoritarianism. The majority should not use its pover to
oppress the minority or violate its rights. But vhen is the fact that the mi-
noritys preferences and interests are not accepted a matter of oppression or
violation of basic rights, and vhen is it simply a fair but painful defeat
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:o The State of Israel
One might argue that oppression occurs vhen members of a cer-
tain group become permanent losers. But in the democratic game, members
of many groups are permanent losers vegetarians, opera lovers, individu-
als vith eccentric or expensive tastes, commonly fail to convince others to
support their demands. Do members of all these groups deserve special pro-
tection If they do, vhat is left of the idea of majoritarian decision making
Novadays it is common to ansver this question by draving a distinction
betveen identity-providing aliations and all others. Individuals, it is as-
sumed, can endure dierent kinds of losses, but not ones relating to their
identity.
But the politics of identity does not require the naive illusion that
politics could be emptied of cultural, national, or religious content or that
particularist features could be restricted to the private sphere; it does not
phrase its argument in terms of cultural neutrality. On the contrary, it takes
for granted the symbolic, emotional aspects of politics and structures its aims
in accordance vith them.
Once a politics of identity allovs dierent groups to come out of
hiding and occupy public space, all groups, majority and minorities alike,
openly compete to imprint state institutions vith their particular features.
Lven if the competition is perfectly fair, the minoritys success must be less
than that of the majority. Apolitics that recognizes identity thus cannot solve
the problem of marginalization. Is the imbalance betveen the majority and
the minorities unfair Does it violate democratic principles I daresay not.
Democratic states must treat all citizens equally, but they cannot, nor should
they, equalize the inuence of the majority and a minority.
It follovs that Israel can be a |evish democratic state as long as
this dual nature expresses the preferences of the majority of its citizens. Its
non-|evish citizens must be given a due place in public life, but this vill
not redeem their sense of estrangement. The Palestinian citizens of Israel are
bound to feel excluded. Iike vomen in the army and secular |evs in reli-
gious neighborhoods, they vill alvays feel the unease of those vho do not
t the reigning social and cultural norms. This feeling of alienation vill not
disappear even if Palestinian citizens come to be treated vith respect, their
rights guaranteed, their participation assured, and their fair share of social
services secured. The only vay for them to feel included is to give up those
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|evish and Democratic State :
identifying features that set them apart and to assimilate into the majority.
A fev choose this vay, but for most Palestinians, as for most diaspora |evs,
it is not a viable option. They do not vish to surrender their identity. This
decision has a price that cannot be avoided.
Iike other states Israel cannot avoid adopting a set of particular-
ist features. By majoritarian means it has decided that |udaism vill be its
reigning culturethough other cultures can play a secondary role. There is
then no reason vhy Israel should not establish the cultural preferences of its
citizens by lav, as it establishes by lav their economic or distributive prefer-
ences. \et Israel ought not adopt a lav that vould prevent future majorities
fromchanging the character of the state in accordance vith their preferences.
This implies that the present election lav banning political parties that ques-
tion the |evish nature of the state is antidemocratic and should therefore be
repealed.
Israel can retain its |evish character only so long as |evishness en-
joys democratic support. Hence democratic values take precedence over |ev-
ish ones. The tvo descriptions of the state, |evish and democratic, thus play
dierent roles the formers role is mainly interpretative; it translates the uni-
versal into local terms. The latter sets the universal foundations and marks
the boundaries of acceptable interpretations. As a result, democratic inter-
pretations of |udaism vill take precedence over nondemocratic ones. This is
vell exemplied by the lav of the loundations of Iav, vhich states that
the court ought to rule in the light of the principles of freedom, justice,
equity, and peace of Israels heritage. The decision to specify vhich of the
many values found in Israels heritage is to be adopted by the court is meant
to assure that Israel vill drav from its heritage a political morality that ts
democratic values and attitudes.
The priority given to democratic values in the legal sphere is rarely
admitted, and the tension betveen |udaism and democracy is ignored or
veiled. One vay to veil the tension is to claim that at some abstract level,
|udaism and democracy coincide. |ustice Aharon Barak is the main advocate
of this approach. The content of the phrase |evish state, he argues, should
be understood at a high level of abstraction vhich vould unite all members
of the society, revealing vhat they hold in common. The level of abstraction
must be so elevated so that it vill coincide vith the democratic character
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:: The State of Israel
of the state. Baraks position reects a presumption dominant among liberal
philosophers that at the core of all reasonable doctrines lies a set of shared
values. The vay to resolve conicts betveen such doctrines is to elevate
the discussion to as high a level of abstraction as possible. The vork of ab-
straction, |ohn Ravls argues, is a vay of continuing public discussion vhen
shared understandings of lesser generality have broken dovn. We should be
prepared to nd that the deeper the conict, the higher the level of abstrac-
tion to vhich ve must ascend to get a clear and uncluttered vievof its roots
(Ioliti.al Li|eralism, ,,o, p. o).
Is it true that raising issues to a higher level of abstraction vill solve
the conicts surrounding them Consider some examples. The most crucial
political question of all is the source of authority. lor |udaism, as for any
other religion, the source of authority is divine; for democracy it is human.
At vhat level of abstraction can this disagreement be resolved As it is incon-
ceivable that a political system could leave the question of authority open,
and as it is quite clear that Israel has chosen the democratic approach, the role
played by |evish and democratic in the denition of the state should be
reevaluated. We do not have tvo competing descriptions; rather, the |evish-
ness of the state is limited by its democratic nature.
Can other, less fundamental tensions betveen |udaism and democ-
racy be resolved by means of abstraction Think about the legitimacy of
abortions, the right of vomen to serve in religious courts, issues concerning
euthanasia, the right to commit suicide, or the right to vaive ones rights.
None of these issues can be resolved by raising the level of abstraction.
While individuals vith dierent fundamental commitments may
agree on hov to act, ve suspect that they reach this conclusion for very dif-
ferent reasons. If ve examine these reasons, ve vill be faced vith a deeper
controversy than the one ve began vith. If ve raise the debate to a higher
level of abstraction, ve vill reach metaphysical issues concerning the exis-
tence of God and the role he plays in our vorld, vhich are impossible to
settle. Ravls and Barak are misled by their ovn theories, vhich exclude
a priori all those interpretations that do not share the humanitarian demo-
cratic perspective. Given that exclusion, abstraction must logically lead to
agreement. Actual political life, hovever, does not mimic such theories. The
participants are more diverse, and not all of them share reasonable or demo-
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|evish and Democratic State :
cratic presuppositions. Under such circumstances, abstraction might inten-
sify conict rather than reduce it.
Are |udaism and democracy doomed to be in permanent conict
The ansver is probably yes. But there are vays of ameliorating such conicts,
not by means of abstraction but by concrete compromises based on specic
patterns of behavior. This vas Ben-Gurions approach. It is not necessary at
present, he argued, to reach decisions in matters of opinion and faith, in
vhich ve shall long continue to be divided. Ben-Gurion vas seeking a com-
promise, even though he knev that compromises are, by nature, transient
and untidy. But he understood that although compromises may be imsily
grounded, they are politically more desirable and more just than many tidy,
abstract solutions.
Israel can be a |evish and democratic state if its citizens aspire that
it be one, and if |udaism and democracy concur on a vide enough range
of practices to allov such a state to function. At present, both conditions
are fullled. As for the future, Israel vill be able to retain its |evish identity
only if it maintains a |evish majority and is able to inspire among its |evish
citizens democratic modes of behavior.
Yael !amir
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Clossary oj ^ames
The place-names in parentheses indicate vhere the person vas born and died,
vhen that is knovn, or vhere the person resided for the major part of his life.
Abraham b. David of Posquieres; Rabad(Provence, c. :,:), talmudic
scholar. Born in Narbonne, Rabad moved to Posquieres, vhere he
established a yeshivah that became a center for the study of Talmud
in Provence. His vorks include commentaries on talmudic litera-
ture, responsa, homiletic discourses, and critical glosses (hassagot) on
famous vorks of rabbinic literature, including Maimonides Mish
ueh !orah, for vhich he became knovn as |aal hahassagot (master
of the glosses).
Abravanel, Isaac b. |udah(IisbonVenice, ;o:), statesman, philoso-
pher, and biblical exegete. Born into one of the leading Portuguese
|evish families, Abravanel vas an important gure in the court of
King Alfonso Vand, later, in Spain, in the court of Isabel and lerdi-
nand. He chose exile over conversion and left Spain in ,:, living
subsequently in a number of Italian cities. He is best knovn for his
biblical commentaries and for three books on messianism.
Abulaa, Abraham b. Samuel(SpainSicily, :oafter :,), kabbalist,
founder of the school of Prophetic and Practical Kabbalah. Abu-
laa believed that, given the correct mystical doctrines and prac-
tices, prophecy vas possible even in the exile. In Sicily, in :,o, he
prophesied the beginning of the messianic era, and many |evs, be-
lieving him, prepared to leave for Palestine. He vas opposed by the
most prominent rabbinical authority of the time, Solomon b. Abra-
ham Adret (see entry), vho accused him of being a false prophet.
The controversy resulted in a ban on Abulaa that forced himto ee
from Sicily to a tiny island near Malta. He defended his Kabbalah
against Adret in his letter 1e2ot liYehuoah.
Abulaa, Meir; Ramah(Spain, ;o:), talmudist and poet. Abulaa
vas actively involved in the Toledo lahal, for vhich he promulgated
:
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:o Glossary of Names
important tallauot. He vorked in various literary genres, among
them halalhah and Hebrev poetry, and participated in contempo-
rary religious disputes, e.g., the debate over Maimonides viev of
resurrection.
Adret, Solomon b. Abraham; Rashba(Barcelona, c. :c. o), Spanish
rabbi, communal leader, halakhic authority, and kabbalist. Adret,
a disciple of Nahmanides (see entry), vas one of the central g-
ures in the development of vhat may be called the constitutional
lav of the lahal. He vrote commentaries on the Talmud and other
halakhic books, but he is probably best knovn for his thousands
of responsa, many of vhich deal vith communal mattersmost
importantly, the authority of the |erurim and rabbinic courts.
Agudat \israellit., Association of Israel; vorld |evish movement and po-
litical party, founded in Katovitz, Poland, in ,:, in opposition to
Reform and to Zionism. Agudat \israel seeks to preserve ortho-
doxy by adherence to halalhah as the governing principle for both
private and public |evish life.
Albo, |oseph(Spain, d. ), philosopher and preacher. Albo is the author
of 8ejer haIllarim (Book of Principles), a treatise on the articles of
faith that also deals extensively vith the philosophy of lav. Albo
vas a disciple of Hisdai Crescas and the student and colleague of
Nissim Gerondi (see entry). He vas inuenced by both Arabic and
Christian vriters, including Thomas Aquinas.
Ari. 8ee Iuria, Isaac b. Solomon
Asher b. \ehiel; Rosh (also knovn as Asheri)(GermanySpain, c. :o
:;), rabbi and halakhist. Asher vas born into an Askkenazi pietist
family. In Worms he studied under Meir b. Baruch of Rothenburg
(see entry), vho appointed him a member of the citys |et oiu. After
the imprisonment of Meir, Asher vas probably the leading gure
of German |evry. But, fearing to suer Meirs fate, he left vith his
family for Spain, settling nally in Toledo, vhere he accepted the
position of rabbi. He promoted the methodology of the tosasts
in Spain and tried to establish Ashkenazic miuhag (customs) there.
Among his vritings are Iislei haRosh, a collection and codication
of previous halakhic decisions and commentaries, and about one
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thousand surviving responsa. His son |acob vas the author of the
!ur.
Ashi(Babylonia, c. :;:: c.r.), prominent amora. Ashi studied under
Rava and Rav Papa, among others; after the latters death (;;:)
and until his ovn, he headed the yeshivah of Sura. With the co-
operation of his older contemporary Ravina (see entry), Ashi began
editing the Babylonian Talmud, a task continued by later amoraim,
particularly Ravina II b. Huna (see Ravina entry).
AshkenazGermany.
Ashkenazia |ev from Ashkenaz; later, from central and eastern Lurope.
Contrasted vith Sephardi, a |ev from Spain; by extension, a |ev
from the Orient. Ashkenaz and Sepharad designate tvo distinct
halakhic traditions vithin |udaism from the Middle Ages on.
Avtalyoncolleague of Shemaiah. 8ee also Shemaiah and Avtalyon
Barak, Aharon(IithuaniaIsrael, ,o), Israeli jurist. Born in Kovno,
Barak emigrated to Israel in ,;. He studied lav at the Hebrev
University, vhere he became a professor (,;). Iater (,;) he vas
appointed attorney general. In ,;: Barak vas nominated as a jus-
tice of the Supreme Court and in ,, became its chief justice.
He is perhaps the leading defender in Israel of an American-style
judicial reviev.
Basyatchi, Llijah b. Moses(Constantinople, th and oth centuries), the
most important Karaite scholar of his time, regarded as the nal
decider. His code of lav, Aooeret Lliyahu, became the Karaite equiv-
alent of the Rabbanite 8hulhau Arulh.
Ben-Gurion, David(RussiaIsrael, ::o,;), Israeli statesman, rst
prime minister, and defense minister. Ben-Gurion vas the domi-
nant gure in the labor movement in Palestine and, as head of the
|evish Agency, played a leading role in the struggle for Israels in-
dependence. Although he vas committed to the socialist parties
of the yishu:, he stressed the ideal of mamlalhtiyut (stateness or
political consciousness, civic spirit) in an attempt to bring together
the |evish communitys disparate groups and factions, religious and
secular, vithin one political framevork.
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Ben Sira, Simeon b. |esus(Palestine, :d century i.c.r.), Hebrev aphorist,
author of !he 1isoom oj Beu 8ira (Lcclesiasticus). The book (prob-
ably completed around :o i.c.r.) is vritten in the style of biblical
visdom literature, but it is less focused on the royal court and more
sympathetic to the priesthood. !he 1isoom oj Beu 8ira vas preserved
as a vhole in the Christian Bible (Apocrypha), but many sections
of the original Hebrev are extant; a fev verses are quoted in early
Rabbinic sources.
Bergman, Samuel Hugo(Prague|erusalem, ::,;), philosopher. Dur-
ing his student days at Prague, Bergman met Martin Buber (see
entry), vho had a lasting inuence on his vork. After emigrating
to Palestine in ,:o, he became the rst director of the National
Iibrary and, aftervards, in ,::, a philosophy professor at the He-
brev University. He vas a founding member of Berit Shalom (a
movement supporting a |evish-Arab binational state). Bergmans
main intellectual interests vere in the philosophy of science and
religion.
Berlin, Naphtali Tzvi |udah; Netziv(PolandRussia, :;,), rabbi and
rosh yeshi:ah. Berlin headed the famous yeshivah at Volozhin for
some forty years, transforming it into a spiritual center for east
Luropean |evry. He joined the Hibbat Zion movement and urged
observant |evs to support the settlement of Palestine. His vork in-
cludes important commentaries on the Torah as vell as on extra-
talmudic Rabbinic texts.
Bet Hillel. 8ee Hillel the Llder
Bet Shammai. 8ee Hillel the Llder
Boethusfounder () of a religious and political party that existed in the
last centuries of the Second Temple period (st century i.c.r.st
century c.r.), evidently a branch of the Sadducees (see entry).
Breuer, Isaac(HungaryIsrael, ::,o), orthodox spokesman and
thinker. Breuer vas one of the intellectual leaders of Agudat \is-
rael, rst in Hungary, then (after ,o) in Palestine, vhere he helped
to organize the Poalei Agudat \israel (an ultraorthodox socialist
party), of vhich he became the president. He vas the grandson of
Samson (b.) Raphael Hirsch (see entry), vhose heritage he sought
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to preserve and pass on. Though initially opposed to Zionism, he
came to see in it the hand of Providence.
Buber, Martin(AustriaIsrael, :;:,o), philosopher, theologian, and
biblical critic. Born in Vienna, Buber studied in German univer-
sities, nishing his education in Berlin, vhere Georg Simmel vas
among his teachers. He vas active in the early Zionist movement.
Buber began his |evish studies as a scholar of Hasidism, and he
developed his ovn theological position, rst articulated in I auo
!hou (,:), alongside his interpretations of hasidic vritings. He
defended a philosophy of dialogue, vhich also found expression
in socialist politics and, after he emigrated to Palestine (,:), in
his leadership of Berit Shalom (see Bergman entry). Together vith
lranz Rosenzveig, he translated the Bible into German, producing
also a series of books interpreting biblical textsthe most impor-
tant of these is the Kiugship oj Coo (,:).
Cohen, Hermann(Germany, ::,:), German philosopher. Cohen be-
gan his studies at the |evish Theological Seminary in Breslau, then
studied philosophy at the University of Berlin and became a lead-
ing gure of the Marburg school of neo-Kantianism. He developed
a liberal interpretation of |udaism that emphasized monotheism
and morality, but remained himself traditionally observant and vas
critical of Reform |udaism. Cohen vorked out an interpretation of
|evish lav that vas consistent vith Kantian moral philosophy. He
rejected Zionism as a betrayal of the universal messianic ideal.
Cohn, Haim(GermanyIsrael, ,), Israeli jurist. Cohn vas born in Iu-
beck and settled in Palestine in ,o. He studied at Abraham Isaac
Kooks yeshivah (Merkaz ha-Rav) in |erusalem (see Kook entry),
then returned to Germany to study lav. He vas Israels attorney
general from ,o to ,: and again from , to ,oo, and the
legal and judicial system of the nev state oves much to his vork.
In ,oo he vas appointed a justice of the Supreme Court, vhere
he vas one of the leading defenders of liberalism in both religious
and civic aairs.
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Dessler, Lliyahu Lliezer(RussiaIsrael, :,,), a leading gure of the
Musar movement (founded by Rabbi \israel of Salant, vho em-
phasized moral perfection over traditional learning). After serving
as a director of a center for advanced Talmud study in Gates-
head, Lngland (,o), Dessler accepted an invitation to become
the spiritual director of Ponevezh yeshivah in Bene-Berak, Israel.
He brought elements of Kabbalah and Hasidism into his Musar
ideology.
Domb, \erahmiel Israel Isaac(PolandLngland, ,;), anti-Zionist
spokesman. Born in Iodz to a hasidic family, Domb studied in his
youth at a yeshivah in Iublin. During World War II he ed to
Iondon and developed close contacts vith the Satmar leader, \oel
Teitelbaum. lrom the early ,os, Domb vas one of the main ide-
ologists of the Neturei Karta (Guards of the City), the most radical
anti-Zionist branch of ultraorthodox |evry. He published numer-
ous pamphlets and articles; among his books are Lt ^isayou (,;:)
and Haatalot (,:o).
Duran, Shimon b. Zemah; Tashbetz(MajorcaAlgiers, o), halak-
hic authority, religious philosopher, and physician. In his youth in
Palma, Duran studied Talmud and halalhah as vell as medicine.
After the persecutions of , he left for Algiers and became a mem-
ber of Perfets (see entry) |et oiu. Duran served on a commission ap-
pointed by the Algiers community to deal vith questions of matri-
monial status and vas the chief author of its ordinances, observed
in North Africa for hundreds of years. He succeeded Perfet as chief
rabbi of Algiers and vas considered the supreme halakhic authority
of his generation. He is mostly knovn for his responsa.
Liger, Akiva b. Moses(Germany, ;o:;), rabbi, communal leader, op-
ponent of Reform. In : Liger became the rabbi of Posen, vhere
he established a large yeshivah. He played a major role in shaping
the earliest orthodox response to the Reform movement. He vas
the father-in-lav of Moses Sofer (see entry).
Linhorn, David(GermanyU.S.A., :o,;,), rabbi and reformer. Linhorn
received a rabbinical education and also studied philosophy in vari-
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ous German universities. In :: he vas nominated as rabbi of
Wellhausen but vas rejected by the government because of his lib-
eral vievs. After serving in several other Reform congregations
among them Mecklenburg-Schverin, vhere he succeeded Samuel
Holdheim (see entry)he left for the United States. lrom :oo he
vas the rabbi of Congregation Adath Israel, Nev \ork. Linhorn
vas one the leading advocates of radical reform. Among his vorks
is the prayer book Clat !amio (vritten in German), vhich vas the
basis for the rst |uiou Irayer Bool.
Lliezer b. \ittzhak Hakohen (of Worms)(Germany, th century), scholar.
Born in Worms, Lliezer moved to Mainz and studied under Ger-
shom Meor ha-Golah and |udah b. Meir Hakohen (see entries).
After Gershoms death he headed the yeshivah in Mainz. Only frag-
ments of his vritings have survived, preserved in the books of
Rashis school (see Rashi entry).
Llimelekh of Iyzhansk(Galicia, ;;:;), t:aooil of the third generation
of Hasidism. Llimelekh vas a disciple of Dov Baer, the Maggid
of Mezhirech, and the leading theoretician of practical tzaddik-
ismvhich held that the t:aooil vas not solely a spiritual gure
but a leader in all spheres of life, acting out in his ovn life a dialec-
tical tension betveen oe:elut (bonding vith God) and the practical
vork of communal service. Apparently unable to endure this ten-
sion, Llimelekh vithdrev from the community in his last years.
Llon, Menachem(GermanyIsrael, ,:), Israeli jurist. Born in Dussel-
dorf, Llon emigrated to Palestine in ,. lrom ,oo he taught
|evish lav at the Hebrev University. In ,; he published a three-
volume account of mishpat i:ri (Lnglish translation, ,,), designed
to make possible the integration of halakhic concepts and decisions
into the Israeli legal system. He vas appointed to Israels Supreme
Court in ,;;.
Lssenesa religious sect in the last half of the Second Temple period (:d cen-
tury i.c.r.end of the st century c.r.) that made its rst appearance
sometime after the Hasmonean revolt (o;oo i.c.r.). Though the
matter is disputed, the Qumran sect, vhose members lived a com-
munal life and emphasized strict observance of the purity lavs, vas
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probably Lssene. The discovery of the Dead Sea scrolls shed nev
light on the sects practices and beliefs.
Gerondi, Nissim b. Reuben; Ran(Spain, o;), talmudist and halak-
hic authority, physician in the royal court. Born in Gerona, he later
moved to Barcelona, vhere he played a leading role in commu-
nal aairs and headed a yeshivah. Among his disciples vere Isaac
b. Sheshet Perfet (see entry) and Hasdai Crescas. Gerondis main
vorks are his Novellae on the Talmud (in vhich he folloved the
tradition of Nahmanides and Adret; see entries), a commentary on
Isaac Alfasis halalhot, and Derashot haRau, tvelve sermons or public
lectures, one of them devoted to kingship.
Gershom b. |udah Meor ha-Golah(Germany, c. ,ooo::), one of the
rst talmudic scholars in Ashkenaz. Probably born in Metz, he later
headed a yeshivah in Mainz; among his pupils vere the teachers of
Rashi (see entry), vho summed up Gershoms reputation Rabbenu
Gershom . . . vho enlightened the eyes of the exile |meor hagolah|,
and upon vhom ve all depend. Gershom is knovn in later litera-
ture as the author of many tallauot, both the ban on bigamy and the
prohibition of the divorce of a vife against her vill are attributed
to him.
Grodzinski, Hayyim Ozer(Iithuania, :o,o), talmudic scholar and
leader of Iithuanian Orthodoxy. Grodzinski vas present at the
founding of Agudat \israel in ,: and later served on its Council
of Sages. A strong opponent of Zionism, of the Reform movement,
and of secular education, he defended the traditional vay of life of
the Iithuanian yeshi:ot and small tovns.
Haddayah, Ovadyah(SyriaIsrael, :,,o,), rabbi. Born in Aleppo, Had-
dayah vas brought to |erusalem in :,: and studied at \eshivat
Porat \osef, vhere (from ,:) he taught Talmud and Kabbalah.
Haddayah later refounded the kabbalist yeshivah Kehal HasidimBet
Ll in |erusalem. He vas a member of the |et oiu of the |erusalem
Sephardi community and from , served as the chairman of the
rabbinical high court of appeals.
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Halevi, |udah. 8ee |udah b. Samuel Halevi
Herzl, Theodore (Binyamin Zeev)(HungaryAustria, :oo,o), founder
of political Zionism. As a young man, Herzl studied lav, but dedi-
cated himself to literature and playvriting. Witnessing the Drey-
fuss trial in Paris (:,), he concluded that the only solution to the
|evish question vas a |evish state. His manifesto Der juoeustaat
(The State of the |evs) vas published in :,o, and the remaining
years of his life vere vholly devoted to Zionist advocacy and orga-
nization. In Basel, in :,;, he convened the rst Zionist Congress
and founded the World Zionist Organization.
Herzog, Isaac(PolandIsrael, :::,,), rabbinic scholar, chief rabbi of
Israel. Born in Poland, Herzog moved to Ireland and served as rabbi
in Belfast and Dublin. In ,o he vent to Palestine, succeeding
Abraham Isaac Kook (see entry) as chief rabbi. A fervent Zionist,
Herzog founded the Mizrachi lederation of Great Britain and Ire-
land. In Israel he sought to meet the challenges posed to the halak-
hic tradition by the conditions of political sovereignty. Herzog vas
responsible for the enactment of important tallauot in matters of
personal status.
Hillel the Llder(BabyloniaPalestine, end of st century i.c.r.st century
c.r.), probably the most prominent sage of Second Temple |uda-
ism. A native of Babylonia, Hillel spent his early days in |erusalem,
joining the circle of Shemaiah and Avtalyon (see entry); he and his
rival Shammai succeeded them as leaders of the Pharisees. A school
of disciples, Bet Hillel (opposed by Bet Shammai until the destruc-
tion of the Temple) and a rabbinic dynasty descended from him.
Though still debated among the later sages, the vievs of Bet Hillel
vere decisive in shaping the halalhah of the Talmud. A number of
Hillels tallauot vere probably adopted during his lifetime, among
them the pros|ul.
Hirsch, Samson (b.) Raphael(Germany, :o:::), rabbi, leader of nine-
teenth-century German Orthodoxy. Born in Hamburg, Hirsch
studied Talmud vith his father and history and philosophy at the
University of Bonn. In : he vas nominated as rabbi of the rst
separatist Orthodox congregation, Adass |eshurun, in lrankfurt,
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vhere he served until his death. Hirschs key doctrinal commit-
ment is to the concept of !orah im oerelh eret: (Torah vith vorldly
occupation, i.e., secular educationbased on Mishnah Avot ::).
On this concept he built a religious ideology and an educational
system, the tvo intended as ansvers to the multiple challenges of
the Reform movement and modernity. His main vorks are Iggerot
!:ajou (Ietters from the North), Hore|, and a commentary on the
Torah.
Holdheim, Samuel(Germany, :oooo), a leading Reform rabbi in Ger-
many. Born into a strict religious family, Holdheim received a tra-
ditional |evish education. After serving as a rabbi in lrankfurt (on
the Oder), he moved to Berlin (:;), vhere he introduced far-
reaching ritual reforms. He distinguished the religious and ethical
content of |udaism, vhich is binding for all time, from its political-
national content, vhich can be revised (or discarded). |evs, he ar-
gued, are politically bound only by the lavs of the state in vhich
they live.
HorebMount Sinai.
Ibn Migash, |oseph b. Meir Ha-Ievi(North AfricaSpain, o;;), tal-
mudic scholar. Ibn Migash studied under Isaac Alfasi and succeeded
him as head of the yeshivah in Iucena, Spain, occupying this posi-
tion until his death. Maimon, Maimonides father, may have been
one of his pupils, and Maimonides occasionally relies upon his
vievs. Ibn Migash had a signicant impact on the study of Talmud
in Spain and Provence, but very little of his vork has survived.
Isaac b. Moses of Vienna Isaac Or Zarua(BohemiaGermany, c. :oc.
:o), halakhic authority. Isaac is usually referred to by the title of
his halakhic compendium, Cr 2arua. Because of its great length,
the book had only a limited circulation. But it vas frequently
quoted in secondary sources and in this vay had an impact on later
scholars. Cr 2arua is a valuable collection of halakhic rulings and
customary practices from the High Middle Ages (see also headnote
to ;,, ).
Isaac Or Zarua. 8ee Isaac b. Moses of Vienna
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Ishmael b. AbrahamIsaac Hakohen of Modena(Italy, ;::), rabbi and
halakhic authority. Ishmael of Modena vas among the rabbis for-
mally asked by Napoleon, in May :oo, to respond to tvelve ques-
tions concerning the status of |evs as citizens of lrance. Although
Ishmael vas not sympathetic to the |evish enlightenment, his vrit-
ings and rulings reect an eort to narrov the gap betveen the
demands of the nev secular politics and the requirements of the
legal tradition.
|osephus llavius ( |oseph b. Mattathias)(PalestineRome, c. :after oo
c.r.), general, historian, apologist; vriter in the |evish-Hellenistic
tradition. |osephus vas born in |erusalem into a priestly family re-
lated to the Hasmonean dynasty. At the beginning of the rebellion
in oo c.r., he vas appointed commander of the Galilee, but vhen
the var in the north vas almost lost, he vent over to the Roman
sidein vhat seems to have been an act of treachery tovard his
comradesbecoming an adviser to Titus and Vespasian. After the
var, |osephus moved to Rome, vhere he vrote (in Greek) a history
of the rebellion and an account of the history, culture, and religion
of the |evish people (Autiquities). In this vork, and also in his re-
sponse to critics of |udaism, Agaiust Apiou, he appears as a defender
of his people, arguing for the spiritual value and practical utility of
their religion and its ethical superiority to Hellenism.
|udah b. Meir Hakohen(Germany, th century), rabbi and halakhic au-
thority. |udah vas a disciple of Gershom Meor ha-Golah. About
forty of his responsa vere preserved among the responsa of his
teacher. His book, 8ejer haDiuim (Book of the Iavs), and his other
responsa are no longer extant.
|udah b. Samuel Halevi(SpainPalestine||, before o;), Hebrev
poet and philosopher. Born in Toledo, after years of studying and
traveling he settled in southern Spain, vhere he vorked as a physi-
cian. Around o Halevi decided to emigrate to eret: yisrael, a
decision that reected a lifetimes yearning, expressed in both his
religious-philosophical and poetic vritings. Halevis philosophy is
contained in his famous book, !he Ku:ari (nished c. o), vhich
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is subtitled The Book of Refutation and Proof on Behalf of the De-
spised Religion. !he Ku:ari is both an argument against the Kara-
ites (see entry) and a critique of eorts to provide a fully rationalist
account of |udaism. His philosophy emphasized the bond betveen
God and Israel, to be fully realized only in eret: yisrael.
|udah the Prince (ha-Nasi)(Palestine, second half of the :d and beginning
of the d century c.r.), patriarch of |udea and redactor of the Mish-
nah. |udah, referred to simply as Rabbi, vas the son of Rabban
Simeon b. Gamaliel and a direct descendant of Hillel (see entry). His
erudition, judgment, and political skill in dealing vith the Roman
authorities raised the patriarchate to its highest point of eective-
ness and authority. His main achievement vas the editorial orga-
nization of existing lavs (and legal disputes) in the Mishnah.
Karaites|evish sect originating in eighth-century Babylonia, vith pos-
sible Sadducee or Lssene origins (see entries). Its doctrine is char-
acterized primarily by a critique of rabbinic interpretation, a denial
of the Oral Iav, and a defense of scriptural literalism. (The term
laraim comes from |euei milra, children of the Bible.) Karaite
criticism forced the advocates of rabbinic |udaism (Rabbanites) to
respond defensively but also to reconsider and elaborate their ovn
vievs. Among those vho rose to the challenge vere Saadiah Gaon
and |udah Halevi (see entries).
Kook, Abraham Isaac(IatviaPalestine, :o,), rabbi, kabbalist, and
philosopher. In ,o Kook emigrated to Palestine, vhere he served
as rabbi of |aa, then of |erusalem; in ,: he vas elected the rst
Ashkenazi chief rabbi of Palestine. Kook developed a unique viev
of the dialectical role of Zionism in |evish history, holding that
the return to Palestine, though initiated by secular (even antireli-
gious) |evs, had redemptive signicance. He called for a spiritual
reneval of |udaism as the necessary completion of the political re-
neval sought by the Zionist movement.
Ieibovitz, \eshayahu(IatviaIsrael, ,o,), scientist, philosopher, so-
cial critic. Ieibovitz vas born in Riga and studied chemistry, medi-
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cine, and philosophy. In , he joined the Hebrev University,
vhere he taught organic biochemistry and neurophysiology. Ieibo-
vitzs religious vritings argue for an absolute duty to serve God.
Religious |evs must accept the yoke of halalhah for its ovn sake
(lishmah), rejecting all other ends, including physical or spiritual
perfection or the improvement of society. In the rst years of the
state of Israel, Ieibovitz hoped that national independence vould
stimulate innovative halakhic legislation to meet the challenges of
statehood. When these hopes vere frustrated, he became an advo-
cate of the radical separation of religion from the state.
Iilienblum, Moses Ieib(Iithuania, :,o), Hebrev vriter, social
critic, and political journalist. Born near Kovno, Iilienblum vas
one of the leaders of the east Luropean Haslalah, and then, tovard
the end of his life, of the Zionist movement Hibbat Zion. At the
age of tventy-ve he published important articles in the veekly
HaMelit: arguing for religious reform. Iilienblum also called for
the liberation of vomen, defended individual freedom, and criti-
cized |evish communal leaders. In :;:, he turned to socialism;
his famous article Mishnat Llisha ben Avuyah is one of the earliest
|evish calls for a revaluation of physical labor.
Ioev, |udah b. Bezalel; Maharal(Prague, c. :oo,), rabbi, talmudist,
kabbalist, and moralist. A scholar of both |evish and secular studies
(particularly mathematics), Ioev is a transitional gure betveen
medieval and early modern intellectual life. In his voluminous
vorks in the elds of ethics and theology he interprets Rabbinic
aggaoah in light of his mystical philosophy. He vrote extensively on
the relationship betveen God and Israel, on the mediating role of
the Torah, and on the moral-political meaning of the |evish exile.
Iuria, Isaac b. Solomon(Palestine, ;:), kabbalist, referred to as Ha-
Ari (the Iion, acronym of the divine Rabbi Isaac). Iuria is the
most innovative kabbalist of the period folloving the expulsion
of the |evs from Spain. Born in |erusalem and raised in Lgypt, he
settled in Safed in o,, gathering students around him. His fol-
lovers believed that he vas infused by the holy spirit and that the
prophet Llijah spoke to him of hidden things. Some of his teach-
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ings suggest that he thought himself to be the Messiah, the son of
|oseph. Iurias time in Safed vas brief; he died in an epidemic only
three years after his arrival. The overabundance of his thoughts, so it
is said, prevented him from vriting them dovn. His oral teachings
vere gathered and variously systematized by his disciples, primarily
by Hayyim Vital.
Maharal. 8ee Ioev, |udah b. Bezalel
Maharam. 8ee Meir b. Baruch of Rothenburg
Maimonides, Moses; Moses b. Maimon; Rambam(SpainLgypt,
:o), rabbi, codier, philosopher, and physician; the most promi-
nent |evish thinker in the post-talmudic era. Born in Crdoba,
Maimonides vandered vith his family through North Africa; they
settled in Cairo, vhere he later headed the |evish community. Mai-
monides rst important vork vas his Commentary to the Mishnah
completed at age thirty-three. His greatest achievements vere the
halakhic code Mishueh !orah (:o) and the philosophical treatise
!he Cuioe oj the Ierplexeo (,o). The Mishueh !orah, vritten in He-
brev, systematically organizes the vhole of |evish lav. The Cuioe,
vritten in Arabic, vas designed for readers vhose faith had been
undermined by philosophical criticism. The book aimed to harmo-
nize philosophy and |udaism, thus enabling a reneved, but also a
rened, religious faith. Although his philosophical vievs vere the
subject of erce opposition, his inuence on the development of
|udaism vas enormous.
Meir b. Baruch of Rothenburg; Maharam(Germany, c. :,), tosast,
halakhic authority, communal leader. Meir vas born in Worms and
died in prison after an eight-year incarceration ordered by the em-
peror Rudolph. He played a critical role in establishing the public
lavof the German communities. We have more than a thousand of
his responsa, most of them dealing vith matters of mamoua. busi-
ness transactions, real estate, inheritance, partnerships, community
property, and taxation. He greatly inuenced later codiers, par-
ticularly |acob b. Asher, author of the !ur (see Asher entry), vhose
father vas Meirs student (see also headnote to ;,, :).
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Meiri, Menachem b. Solomon(Provence, :,o), rabbi and commen-
tator on the Talmud. Meiri is best knovn for his interpretive sum-
mary of the Talmud, Bet haBehirah, vhich untypically includes
halakhic conclusions. He vas a follover of Maimonides, both in
philosophical bent and in halalhah, like him, he engaged in secular
and scientic studies. He vas apparently in touch vith Christian
scholars and vas one of the earliest advocates of tolerance tovard
gentile society.
Mendelssohn, Moses(Germany, ;:,:o), enlightenment philosopher and
|evish thinker. Born in Dassau, Mendelssohn became a central g-
ure in the Luropean intelligentsia; among his friends vas the dra-
matist Gotthold Lphraim Iessing. Responding to German critics of
the |evish religion, he dedicated himself to the defense of |udaism
and German |evs, arguing for the separation of religion and state
and urging equal rights for |evish citizens. Within the |evish com-
munity, he insisted upon the obligatory status of religious lavin the
modern vorld. His main vorks are jerusalem (;:) and a German
translation of the Pentateuch vith the Biur (interpretation).
Mizrachireligious Zionist movement, founded in ,o: as a religious fac-
tion in the World Zionist Organization.
Mizrahi, Llijah(Constantinople, c. o:o), the most prominent rabbi
in the Ottoman empire of his time. Mizrahi played a leading role in
the |evish community of Constantinople, headed a yeshivah vhere
both Talmud and secular subjects vere taught, and gave halakhic
decisions on many dierent matters. He vas actively involved in
the absorption of exiles from Spain and Portugal. As a vriter, he is
chiey knovn for his supercommentary to Rashis commentary on
the Torah.
Nahman (b. Simhah) of Bratzlav(MedzibezhUman, ;;::o), hasidic
t:aooil, the founder the Bratzlav sect. Nahman vas a direct de-
scendant of Israel Baal Shem Tov, the founder of Hasidism. After a
visit to Palestine (;,:), he settled in Bratzlav, vhere he developed
a circle of disciples and follovers. He vas a controversial gure,
accused of being a Sabbatean and a lrankist. His personality vas
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dicult, his teachings paradoxical; he demanded from his adher-
ents complete loyalty and faith. Nahman perceived himself as a
messiah, hence he could have no successor as the t:aooil of his
sect. Among his vorks (all of them transcribed by his close disciple
Nathan Sternhartz) are Lilute Moharau and 8ipure Maasiyot.
Nahmanides, Moses b. Nahman; Ramban(SpainPalestine, ,:;o),
rabbi, prominent talmudist, kabbalist, and biblical commentator;
also a poet and physician. Born in Gerona, Nahmanides vas the
chief rabbi of Catalonia and the most inuential |evish gure of
his generation. In :o he vas forced by the king to participate in
a public disputation in Barcelona vith the apostate Pablo Chris-
tianivhich ended in a rare |evish victory. Tovard the end of
his life he emigrated to Palestine. Many leading halakhists of the
next generation, including Solomon b. Abraham Adret (see entry),
vere his students. His vorks include interpretations of the Talmud,
halakhic monographse.g., Mishpat haHerem (Iavs Concerning
Bans) responsa, sermons, and letters. He also vrote a classic com-
mentary on the Torah that incorporates kabbalistic readings of the
text.
Perfet, Isaac b. Sheshet; Rivash(SpainNorth Africa, :oo:), rabbi and
halakhic authority. Perfet vas born and studied in Barcelona
under, among others, Nissim Gerondi (see entry)vhere he acted
unocially as rabbi. Iater he moved to Saragossa; driven fromthere
by the anti-|evish riots of ,, he vent eventually to Algiers. Per-
fet is best knovn for his responsa, vhich inuenced subsequent
halalhahincluding Karos 8hulhau Arulh.
PhariseesHebrev perushim, the separated ones; a religious and politi-
cal party or sect during the Hasmonean period (o;; i.c.r. The
Pharisees argued (against the Sadducees; see entry) for the validity
of the Oral Iav and the authority of the sages. Their doctrine and
traditions vere folloved by the tauuaim.
Qumransite of the community that composed or collected the Dead Sea
scrolls.
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Rabad. 8ee Abraham b. David of Posquieres
Rabbenu Tam. 8ee Tam, |acob b. Meir
Ramah. 8ee Abulaa, Meir
Ran, ha-Ran. 8ee Gerondi, Nissim b. Reuben
Rashba. 8ee Adret, Solomon b. Abraham
Rashbam. 8ee Samuel b. Meir
Rashi; Solomon b. Isaac(lrance, ooo), the most prominent |evish
exegete of both the Bible and the Talmud. Born in Troyes, vhere
he lived all his life, his reputation extended throughout the |ev-
ish vorld. Rashi interpreted the Talmud line by line, opening the
text to a much vider audience than ever before. His vork gained
such authority and popularity that almost all printed editions of the
Talmud include it. No less inuential is Rashis biblical commen-
tary, vhich follovs Scripture line by line and interprets it according
to both the peshat (literal meaning) and the midrashic understand-
ing. Beside being the ultimate exegete, Rashi vas also a halakhic
authority; some of his rulings are scattered in his talmudic com-
mentaries, and some appear in his responsa.
Ravinaabbr. of Rav Avina, Babylon, a name shared by several Babylonian
amoraim. The tvo most prominent are Ravina I (d. ::), a disciple
of Rava and a student and colleague of Rav Ashi; and Ravina II b.
Huna (d. ,,), probably a nephev of Ravina I, vho served as judge
in Babylonia. According to tradition, Ravina and Rav Ashi mark
the closure of the talmudic era. It is not entirely clear vhich Ravina
is meant.
Rivash. 8ee Perfet, Isaac b. Sheshet
Rosh. 8ee Asher b. \eheil
Saadiah (b. |oseph) Gaon; Saadiah al-layyumi(LgyptBabylonia, :::
,:), talmudist, halakhic authority, philosopher, grammarian, and
leader of Babylonian |evry in the gaonic era. Born in layyum,
Lgypt, Saadiah settled in Baghdad. Among his vorks are halak-
hic monographs (a genre rst developed by him) and defenses of
rabbinic |udaism against the Karaites (vhich provoked erce re-
sponses). His philosophical treatise, !he Bool oj Beliejs auo Cpiu
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ious, vritten in Arabic, vas one of the earliest |evish philosophical
vorks, reecting Greek and Arabic inuence. Here he tried, among
other things, to provide rational reasons for the principles of the
Oral and Written Iav.
Sabbateanisma movement of follovers of Shabbetai Zevi (o:o;o), vho
claimed to be the messiah but later converted to Islam. The term
became a pejorative epithet for any kind of false messianism.
Sadducees (Hebrev Tzedukim)political-religious party of the Hasmonean
period. The Sadducees vere a conservative group, composed largely
of the upper classes of |evish society priests and aristocrats. They
controlled the |erusalem Temple and, much of the time, the San-
hedrin. Their opponents vere the Pharisees (see entry); the rivalry
endured until the destruction of the Temple. Both parties acknovl-
edged the authority of the Torah, the Written Iav, but the Sadduc-
ees rejected the Oral Iav, refusing to recognize any commandment
that they could not nd plainly revealed in the text of Scripture.
Salmon b. |eroham(Baghdad or PalestineSyria, ,oc. ,oo), Karaite
scholar. Salmon studied in Lgypt, then settled in |erusalem and later
in Aleppo. His main vork is the Bool oj the 1ars oj the Loro, an anti-
rabbinic polemic, vritten in rhyme, aimed directly against Saadiah
Gaon (see entry). See also headnote to ;;, :o.
Samuel b. Meir; Rashbam(lrance, c. o:c. ;), commentator on the
Talmud and the Bible. Born in northern lrance, Samuel vas the
grandson of Rashi and the elder brother of |acob Tam (see entries).
He vas a tosast of the rst generation. Among his main vorks
are his continuation of Rashis unnished commentary on the tal-
mudic tractate Bava Batra and his commentary on the Pentateuch,
vhich, more than any other medieval commentary, aims to reveal
the literal meaning ( peshat) of Scripture.
Sasportas, |acob(North Africa, c. oo,:), rabbi, opponent of Sabbatean-
ism. Born and educated in Oran, Sasportas traveled videly, serving
as a rabbi in Iivorno and Amsterdam, among other places. He vas
videly knovn as a talmudic scholar and a rm defender of the tra-
ditional halalhah. At several points in his life, Sasportas vas engaged
in erce disputes vith various opponents. His best-knovn vork is
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!:i:at ^o:el !:e:i, vhich contains his criticism of Sabbatean ide-
ology and practices and of the prophet Nathan of Gaza.
Sephardia |ev from Spain; by extension, a |ev fom the Orient. 8ee also
Ashkenazi
Shammai. 8ee Hillel the Llder
Shemaiah and Avtalyon(Palestine, late st century i.c.r.), the fourth pair
(:ugot, mentioned in tractate A:ot), vho received the tradition from
\ehudah b. Tabbai and Shimon b. Shatah. Talmudic tradition de-
scribes Shemaiah and Avtalyon as descended from proselytes. The
rst vas uasi and the second a: |et oiu (head of the court). Shammai
and Hillel, the fth pair, vere their disciples. Shemaiahs dictum
(Avot o) Iove vork, hate lordship, and seek no intimacy vith
the ruling pover reects his attitude tovard the government of
his time.
Sherira (b. Hanina) Gaon(Babylonia, c. ,ooooo), talmudist and halak-
hic authority, a leading gure of the gaonic period. Born into the
exilarchs family, Sherira vas nominated (at the age of seventy)
to be Gaon of Pumpedita, vhere he revived an academy in radi-
cal decline. Sherira helped to establish the Babylonian Talmud as a
canonical corpus for |evs around the vorld. Almost half of the re-
sponsa preserved from the gaonic period are vritten, most of them
jointly, by him and his son, Rav Hai Gaon, vho succeeded him in
Pumpedita. On his famous Iggeret Rav Sherira (The Lpistle of
Sherira Gaon), see headnote to ;;, ,.
Shomer Hatzairleft-ving Zionist socialist youth movement, founded in
Vienna in ,o.
Sofer (Schreiber), Moses; Hatam Sofer(GermanyHungary, ;o::,),
rabbi, halakhic authority, and leader of Orthodox |evry. Born in
lrankfurt, Sofer vas appointed rabbi of Pressburg in :oo; there he
remained for the rest of his life, founding a yeshivah that became
a center of Orthodoxy. Sofer vas uncompromising in his struggle
against haslalah and the early Reform movement. He vrote com-
mentaries on several tractates of the Talmud and a very large num-
ber of responsa.
Spinoza, Baruch(Holland, o:;;), philosopher. Born into the Portu-
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guese |evish community of Amsterdam, Spinoza as a very young
man became a critic of the conventional |udaism of his time and
soon, in the eyes of the communal elders, a heretic. He vas formally
excommunicated on |uly :;, oo. lour years later, Spinoza left
Amsterdam to settle in Rijnsburg, vhere he entered into a philo-
sophical dialogue vith liberal Protestants. His major philosophi-
cal vork, the Lthi.s, vas published posthumously. His !heologi.al
Ioliti.al !reatise is one of the earliest exercises in biblical criticism;
it is also a sophisticated critique not only of |udaism but, implicitly,
of Christianity as vell. (See also headnotes to ;, ; ;:, o; and
;, :.)
Tam, |acob b. Meir; Rabbenu Tam(lrance, c. oo;), talmudic scholar,
halakhic authority. The grandson of Rashi, Tamvas the most prom-
inent scholar of his generation. He settled in Ramepert, a small
tovn, but exercised halakhic authority all over lrance and Ger-
many. Tam lived through the persecutions and murders of the Sec-
ond Crusade, vhich devastated the Ramepert community. Most of
the Tosafot are based on his interpretations and rulings. Among his
other vorks is 8ejer haYashar, vhich includes responsa and talmudic
commentaries.
\annai, Alexander (c. :o;o i.c.r.), Hasmonean king of |udea and high
priest (o;o). In his reign |udea reached its peak in terms of
political pover and territorial extent. \annai ruled like a Hellenis-
tic tyrant, killing his political enemies. Through most of his reign,
he vas opposed by the Pharisees, vho criticized him for claiming
both the priesthood and the throne. There vas apparently a rec-
onciliation tovard the end of his life, perhaps some sort of politi-
cal alliance. He vas succeeded by his vidov, Salome Alexandra, a
Pharisee supporter.
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Clossary oj !erms
aoam hashu:lit., prominent person; a leading sage or rabbi; on some
vievs, one vhom the lahal must consult before enacting legisla-
tion.
aggaoahlit., that vhich is told or conveyed; the non-halakhic part of
Rabbinic literature.
aleoahlit., binding; the binding of Isaac upon the altar by his father,
Abraham (see Gen. ::).
aliyahlit., ascension or rising; the immigration of |evs to the Iand of
Israel.
am haaret: (pl. amme haaret:)lit., people of the land. In Rabbinic He-
brev, a person vithout knovledge of Torah; applied pejoratively
to those vho did not belong to the class of the halhamim.
amauahfrom the root denoting truth and promise keeping; a solemn
joint agreement and commitment. In modern Hebrev, amauah (he:
ratit) is the term for social contract.
amora (pl. amoraim)sages of the Talmud (Babylonian and Palestinian,
roughly :ooooo c.r.); distinguished from the earlier tauuaim.
auoossomeone vho is forced to act against his or her vill, either by human
agents or by natural circumstances, and is therefore inculpable; also,
a forced convert.
aushe luesset hageoolahlit., Men of the Great Assembly, a supreme au-
thority of the |evish people, precursor of the Sanhedrin, tradi-
tionally said to have functioned in the early days of the Second
Commonvealth.
ashamlit., guilt, guilt oering; one of the sacrices.
a:a:ellit., a rough and rocky mountain. A:a:el goata special sacrice
on the Day of Atonement, sent to a:a:el, an unspecied place in
the |udaean Desert.
|araita (pl. |araitot)lit., external; traditions and teachings of the tauuaim,
not embodied in the Mishnah but often quoted in the Gemara (see
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|at lollit., echo, reverberating sound; occasionally in Rabbinic literature,
divine voice, a substitute for prophecy.
|eritcovenant, treaty. In its mundane sense, primarily a political and mili-
tary treaty, often specically that betveen monarch and vassal. In
biblical and |udaic religion, the special relationship established be-
tveen God and, rst, the patriarchs, starting vith Abraham, and
then their descendants, the people of Israel.
|erurimselectmen, local ocials elected (or appointed) to govern or repre-
sent the lahal.
|et oiucourt, sometimes high court or Sanhedrin.
Bet Yoseja commentary upon the !ur (see entry) vritten by |oseph Karo,
vhich became an authoritative textbook of halalhah and formed
the basis for Karos code, 8hulhau Arulh.
|imahdais on vhich the Torah is read in the synagogue.
oaat torahlit., opinion of Torah, vhich goes along vith emuuat halhamim,
faith in scholars. In modern ultra-Orthodoxy, these phrases des-
ignate the authority of leading scholars to decide in (all) areas of
policy that vere not traditionally subject to halakhic jurisdiction.
Characteristically, pronouncements of oaat torah are made vith no
reasons provided (see also headnote to ;o, :).
oatlit., lav, ordinance, custom, punishment; in modern Hebrev, reli-
gion.
oeoraytalavs (halalhot) mentioned in or derived from the vritten Torah;
opposite of oera||auau.
oera||auaulavs (halalhot) ordained by the rabbis (secondary legislation);
opposite of oeorayta.
oerashahinterpretation, argument, homily. 8ee also midrash.
oe:elutcleaving; in |evish mysticism and Hasidism, cleaving to God.
oiua oemallhuta oiualit., the lavof the |secular, usually foreign| kingdom
|mallhuta, Aramaic equivalent of the Hebrev mallhut| is lavthat
is, the lavs of the kingdom supersede |evish lav, typically in civil
aairs.
oiu torah() lav of Torah; opposite of oeorayta, lav of the sages. (:) strict
lav; opposite of equity.
elohimGod, the Iord; also judges.
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Glossary of Terms ;
emuuat halhamimfaith in the sages; commitment to follov the opinion of
a halham. See also oaat torah, headnote to ;o, :.
ephoo and hosheuephoo, covering, vest; hosheu, breastplate, specically
the high priests breastplate, tied to the ephoo. On the breastplate
tvelve precious stones designate the tvelve tribes of Israel. See
Lxodus ::; see also urim and thummim.
eret: yisraelIand of Israel.
Gaon (pl. Geonim)title of the heads of the Babylonian academies in the
post-talmudic period (roughly ;oo c.r.).
Gemarafrom the Aramaic, lit., to learn or infer; the main part of the
Talmud.
get (pl. gittiu)legal document, usually vrit of divorce.
halham (pl. halhamim)sage, learned person, scholar of the Torah. !almio
halham (pl. talmioe halhamim), lit., student (disciple) of a sage,
usually designates a scholar; also, the learned class, opposite of am
haaret:.
halalhahlit., practice, accepted opinion; |evish lav in general or a spe-
cic instance of it.
halit:ahlit., untying, removing; the ceremony of removing the ya|ams
(levirs) shoe, vhich exempts him and his brothers childless vidov
from marrying each other (see Deut. :).
Hanukkahlit., inauguration, consecration; the eight-day festival com-
memorating the rededication of the Temple in o i.c.r. after its
desecration under Antioch Lpiphanes.
hareoimlit., those vho are anxious |because of fear of God|; members
of the ultra-Orthodox movement, a nineteenth- and tventieth-
century response to haslalah, Zionism, and reform.
hasio (pl. hasioim)lit., pious. The term designates members of pietistic
groups, notably during the Second Commonvealth and in thir-
teenth-century Germany. More recently, and most of the time in
this volume, it designates members of the movement knovn as
Hasidism, founded by Israel Baal Shem Tov (Besht) at the end of
the eighteenth century in eastern Lurope.
haslalahlit., culture, enlightenment; the |evish enlightenment in Lurope
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in the eighteenth and nineteenth centuries, initiated in Germany
by Moses Mendelssohn. An adherent of haslalah is a maslil.
hattatlit., sin, transgression; sin oering, one of the sacrices.
heremban, excommunication, strengthened by the use of an oath. Talmudic
lav knovs the punishment of placing under a ban. Medieval hala
lhah emphasized in addition a more severe penalty called herem
vhich became the ultimate sanction for the rule of the lahal. Often,
the legislation of the lahal took the form of a conditional herem.
Anyone vho does X shall be placed under herem. Thus, herem also
denotes the acts of legislation and the decrees passed.
hol (pl. hullim)lav, rule, custom; traditionally distinguished from mishpat.
According to a common viev, hullim designates lavs vhose rea-
sons vere not revealed, vhereas mishpatim designates the rational
lavs.
Hoshen Mishpathosheu, breastplate; mishpat, lav; the fourth column
of the !ur and the fourth part of the 8hulhau Arulh, dealing vith
criminal and civil lav.
hullim. See hol.
huppahcanopy, bridal chamber, hence also, vedding.
isuraprohibition, primarily of a ritual nature; also, ritual matters in |ev-
ish lav. The term encompasses all realms of halalhah not dened as
mamoua.
Kabbalahlit., tradition; the common term for |evish mysticism.
lahal (pl. lehillot)lit., gathering, community. In biblical literature, con-
gregation of vorship. In medieval Hebrev and thereafter, the local
|evish community, specically as a political entity; sometimes, the
assembly of its members.
lal :ahomera fortiori; an inference fromminor to major, one of the thirteen
means dened by the tauuaim for the interpretation of the Torah.
laretlit., cutting o. In talmudic lav, divine punishment through pre-
mature or sudden death; distinguished from capital punishment.
lashrutnoun derived from lasher (kosher), lit., propriety, lavfulness;
ritual lavfulness, especially of food.
Kesej Mishueha commentary on Maimonides Mishueh !orah vritten by
|oseph Karo.
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Glossary of Terms ,
letu|ah (pl. letu|ot)marriage contract, xing, among other things, the
amount of money or other goods due to the vife on her husbands
death or upon being divorced.
li||ut: meoiui. See meoiui.
liooushiumarriage, the act of betrothal.
lehatuotto stipulate, to make conditions. See teuai.
letela measure of volume for dry objects; also, a land measure.
lishmahlit., for its ovn sake; used to indicate purity of intention, exclud-
ing any ulterior motive.
lula:palm branch, one of the four species of plants ritually used on the
Sukkot festival.
maamaolit., standing up, place, status; committee of lahal ocials.
mahloletdispute, controversy, disagreement.
mallhutkingdom, kingship, monarchy, empire, also government; the name
of the tenth serah in Kabbalah. Mallhutimonarchical, kingly,
majestic.
mamlalhtiyutfrom the same root as mallhut, statehood, sovereignty; also,
statism, civic consciousness. See also headnote to ;o, ,.
mamoua (pl. mamouot)lit., property or vealth; civil and scal matters in
|evish lav, opposite of isura.
mam:er (pl. mam:erim)according to biblical lav, a mam:er (and his or her
descendants) is excluded from the congregation of the Iord. Rab-
binic halalhah interpreted mam:er to mean a child born from in-
cest or adultery, and the exclusion as prohibiting marriage to any
Israelite (save another mam:er or a convert).
mashlauta (pl. mashlautot)mortgage, a loan transaction vhereby landed
property is transferred to the creditor vith the privilege of redemp-
tion by returning the loan.
maslil (pl. maslilim). An adherent of haslalah.
megillahlit., scroll; specically, the book of Lsther. The public reading of
Lsther is the central ceremony of the festival of Purim, a mit::ah
ordained by the Rabbis.
meoiuah. See meoiui.
meoiuipolitical. Derived from meoiuah, state, country, also province, re-
gion; in medieval |evish philosophy, a translation of polis. Ki|
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|ut: meoiuipolitical societycommunity; a possible translation of
body politic. Yishu:/sioour meoiuipolitical order.
Melhiltalit., treatise; name of tvo tannaitic midrashic vorks on Lxodus
attributed to Rabbi Ishmael and Rabbi Shimon b. \ohai.
midrashcommentary, sermon, study, textual interpretation; homiletical
interpretation of Scripture (see Michael lishbanes introductory
essay, Iav, Story, and Interpretation Reading Rabbinic Texts).
miuhagcustom. Denotes a binding practice that, unlike, e.g., mit::ah
oeorayta or tallauah, stems from a rooted custom. A custom in this
sense usually has the halakhic status of oera||auau.
miuimheretics.
miuutheresy. In Rabbinic literature, miuut refers to early Christianity and
Gnosticism; later, the termrefers to any rejection of the |evish faith
and more generally the |evish vay of life.
miuyau (pl. miuyauim)religious quorum, consisting of at least ten Israelite
adults.
Mishnahlit., repetition; verbal teaching by repeated recitation; also,
study, opinion; hence,, codication of oral lavs, compiled in six
orders by |udah the Prince in the early third century c.r. A section
of the Mishnah is a mishnah.
Mishueh !orahlit., repetition of the Torah; Hebrevname of the fth book
of the Pentateuch, Deuteronomy. Also, in most references here, the
name of Maimonides halakhic code.
mishpat (pl. mishpatim)judgment; justice; social and moral lav, ordinance;
opposite of hol.
mishpat i:rilit., Hebrev lav; a construction of tventieth-century jurists
vho carved out of halalhah a body of lav vithout its theologi-
cal references and ritual codes so that this (secularized) version of
the legal tradition could be incorporated, vhenever opportunities
arose, into Israeli civil and criminal lav.
mituageo (pl. mituagoim)lit., opposed, opponent; opponent of Hasidism.
mit::ah (pl. mit::ot)commandment, precept, lav, religious duty, some-
times also obligation. The term usually refers to the precepts of the
vritten Torah, yet there are specic instances in vhich it is used for
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Glossary of Terms
rabbinically ordained rituals (e.g., megillah and Hanukkah); hence
there are mit::ot oeorayta and mit::ot oera||auau.
mooaaa legal term for protest, disclaimer.
uasi (pl. uesiim)in modern Hebrev, president; in biblical Hebrev, chief-
tain, ruler, ocer; in talmudic Hebrev, head of the Sanhedrin, e.g.,
|udah the Prince.
ueilahlit., locking, shutting, closure, conclusion; the concluding prayer,
close to sunset, on the Day of Atonement.
Noahide Codederived from Genesis ,, vhich is interpreted as listing lavs
ordained for Noah and his sons after the ood. lrom Rabbinic lit-
erature on, it denotes universal lavs binding on all human beings,
among them the prohibitions against murder, theft, incest (adul-
tery), and idolatryin contrast to the Torah of Moses, vhich binds
Israelites only. According to some |evish medieval thinkers, the
term denotes a |evish version of natural lav.
nomosfrom the Greek uomoi, human lav, opposite of physis, the lav of
nature. Used in medieval Hebrev to indicate human lav in con-
trast also to divine lav (see headnotes to ;:, and ).
ohel moeoin the Bible, the tent of congregation (see, e.g., Lxod. ;);
according to some biblical sources, the Tabernacle (see, e.g., Lxod.
,:).
paruas (pl. paruasim)lit., provider; prominent individual (usually vealthy)
functioning as leader of the community.
perutahlit., the smallest coin, groat; used for the minimal amount of
value.
peshatplain meaning (of a text), as distinct from its midrashic exposition.
posel (pl. poslim)lit., arbiter, decider; rabbinical scholar vho pronounces
in disputes about halakhic questions.
pros|ulfrom the Greek pros |oule, a declaration made in court, before the
execution of a loan, to the eect that the lav of the Sabbatical year
shall not applyan innovation of Hillel the Llder (see headnote to
;o, ).
rabbilit., master; talmudic scholar; an honoric title (see introduction
to ;o and the introductory essay by Menachem Iorberbaum and
Noam |. Zohar, The Selection, Translation, and Presentation of the
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Texts). Rabbi vith a capital R is used here to indicate one of the
tauuaim or amoraim.
reshutlit., permission, license, opposite of prohibition; often used to
designate a normatively neutral realm contrasted vith the realm
covered by mit::ah or Torah.
ruah halooeshthe holy spirit; prophetic inspiration.
Sanhedrinfrom the Greek syueoriou, the supreme council of the |evs dur-
ing the Second Temple period and at some points during the age of
the tauuaim, sometimes referred to as the high court; also a tractate
of the Mishnah and Talmud.
sataulit., hostile being, hinderer, accuser; the Angel of Lvil or Death;
Satan.
seaha measure of volume for both dry objects and liquids.
serah (pl. serot)sphere. In Kabbalah, the ten serot are the ten divine ema-
nations or potencies.
shaatue:a mixed veave of vool and linen, the vearing of vhich is for-
bidden; guratively, mixing things together, confusion.
Shabbatfrom the root denoting rest or cessation of labor; Sabbath, sev-
enth day of the veek, day or period of rest; also a veek.
shelhiuahdivine presence, Godhead; royalty, royal residence.
she:uah (pl. she:uot)oath, vov, testament; also curse.
shemalit., hear, listen, pay heed; an abbreviation of 8hema yisrael YH1H
eloheuu YH1H ehao, Hear O Israel' The Iord is our God, the Iord
is one (Deut. o), the |evish credo (recited by observant |evs
tvice daily).
shojet (pl. shojtim)judge, magistrate, political leader.
8hulhau Arulhlit., prepared table; authoritative code of |evish religious
and civil lav vritten by |oseph Karo in the sixteenth century.
sioour meoiui. See meoiui
8ijralit., book; halakhic midrash to Ieviticus, also knovn as !orat Ko
hauim (Iav of Priests) and 8ijra oe|ei Ra| (Book of the School of
Rav), produced by the tannaitic school of Rabbi Akiva.
8ijretannaitic halakhic midrash to the books of Numbers and Deuter-
onomy.
Simhat Torahlit., rejoicing of the lav; the festival that falls after the
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seventh (and last) day of Sukkot, at vhich the community com-
pletes the annual reading of the Torah and starts it once again.
sojer (pl. sojrim)scribe.
sugya (pl. sugyot)talmudic pericope, a unit of talmudic discussion.
sullahlit., booth; pl. Sukkot, the least of Tabernacles, for vhich booths
are erected, vhere |evs dvell or eat for seven days.
tallauah (pl. tallauot)regulation, remedy, rule, reform, improvement; an
ordinance of the rabbis or the lahal, opposite of lav of the Torah.
!allauat hameoiuaha regulation by the rabbis or the lahal for the
sake of lav and order or for the improvement of the state, society,
or community. See also tilluu.
talmio halham. See halham.
Talmudlit., study, learning, instruction; the Mishnah and the Gemara
together, the Gemara being the commentaries of the amoraim on
the Mishnah. The Babylonian Talmud (Talmud Bavli) vas compiled
about oo c.r.; the |erusalem or Palestinian Talmud (Talmud \eru-
shalmi) vas compiled about ; c.r.
tauua (pl. tauuaim)rst generations of Rabbinic sages, distinguished from
the later amoraim. The tannaitic sayings are recorded in the Mish-
nah, Tosefta, and the |araitot.
teuaicondition, term, stipulation. Lehatuotto stipulate, to make condi-
tions.
terumahlit., oering, donation; priestly tithe on produce.
tilleu-lit., repaired, corrected; regulated; enacted a tallauah.
tilluurepair, correction, reform, amendment, improvement, regulation.
!illuu hameoiuahestablishing lav and order in the state or im-
proving its vell-being. !illuu olamlit., repairing the vorld; re-
forming society. !illuu seoer meoiuirepairing the political order.
!allauah laolamgeneral improvement to the vorld or society.
Tishah be-Avthe ninth day of the month of Av, the traditional date of the
destruction of the lirst and Second Temples, a day of fasting and
mourning.
Torahlav, doctrine, dogma; instruction, theory; specically, Gods lav. In
its narrov sense, Torah denotes the lav of Moses (the Pentateuch);
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Glossary of Terms
more broadly, the entire body of valid instruction in the |evish
tradition.
Toseftalit., supplement; tannaitic |araitot compiled as a supplement to
the Mishnah a generation after the Mishnah vas vritten, according
to the tradition. It vas redacted according to the six orders of the
Mishnah.
Tosafotlit., additions; supplements to and commentaries on the Talmud
vritten by rabbinic scholars (the tosasts) in Germany and lrance
in the eleventh to thirteenth centuries. They are printed along vith
Rashis commentaries on either side of the traditional talmudic
texts.
!urabbreviation of Ar|aah !urim (lour Columns), an early fourteenth-
century codication of rabbinic halalhah vritten by |acob b. Asher
in Spain.
t:aooil (pl. t:aooilim)righteous, virtuous, just, pious, God-fearing. In Ha-
sidism, a leader vho has spiritual qualities and magical abilities.
t:eoalahlit., justness, fairness, righteousness; charity; also good deed,
piety, mercy.
t:i||urpublic, community, congregation.
urim and thummimdevices referred to in the Bible for producing oracles,
attached to the breastplate of the high priest. See also ephoo and
hosheu.
yishu:lit., population, settlement; the |evish population in the Iand of
Israel, particularly before ,:.
yishu: meoiui. See meoiui.
\igdal|evish medieval hymn, incorporated in the daily prayers, based on
the thirteen articles of the credo composed by Maimonides.
\om KippurDay of Atonement, the culmination of the |evish High Holi-
days.
:elhutright, privilege, prerogative; also merit or acquittal.
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Commeutators
Peter Berkovitz, Iav, George Mason University, Arlington, Virginia
David Lllenson, |evish Thought, Hebrev Union College|evish Institute
of Religion, Ios Angeles
Menachen Fisch, History and Philosophy of Science, Tel Aviv University
Michael Fishbane, Divinity School, University of Chicago
Any Gutnann, Politics, Princeton University
Moshe Halbertal, Philosophy, The Hebrev University, |erusalem
David Hartnan, Shalom Hartman Institute, |erusalem
Moshe Idel, |evish Philosophy, The Hebrev University, |erusalem
Lavrence Kaplan, |evish Studies, McGill University, Montreal
Bernard M. Levinson, Classical and Near Lastern Studies, University of
Minnesota, Minneapolis
Sanford Levinson, Iav, University of Texas, Austin
Menachen Lorberbaun, |evish Philosophy, Tel Aviv University
Yair Lorberbaun, Iav, Bar Ilan University, Ramat Gan
)onathan W. Malino, Philosophy, Guilford College, Greensboro, North
Carolina
Susan Neinan, Philosophy, Tel Aviv University
Cliord Orvin, Political Science, University of Toronto
Hilary Putnan, Philosophy, Harvard University, Cambridge
)oseph Raz, Iav, Balliol College, Oxford University
Avi Sagi, Philosophy, Bar Ilan University, Ramat Gan
Michael ). Sandel, Government, Harvard University, Cambridge
David Shatz, Philosophy, Stern College, \eshiva University, Nev \ork
Allan Silver, Sociology, Columbia University, Nev \ork
Suzanne Last Stone, Cardozo Iav School, \eshiva University, Nev \ork
Yael lanir, Philosophy and Lducation, Tel Aviv University
Michael Walzer, Social Science, Institute for Advanced Study, Princeton
Noan ). Zohar, Philosophy, Bar Ilan University, Ramat Gan

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Iuoex oj Bi|li.al auo Ra||iui. 8our.es
Page numbers of selections in this volume are marked vith . Only the rst page
number is listed.
He|reu Bi|le
Genesis
:,
:; xlvi, xlvii
::o xlvi
:,:o :
o xlvii
:: ::
,, o xlvi
: ::o
o:
;; o
:, o
:: :,
,o:
:o ;:
:o: ;
:: ,,
:;::
:;o
::: ::;
Lxodus
:o
: :o
,
: :o
:o:
:o, ::
, o
o, o:
:o;
:o;
: ,
:,
o;
:: ,
::
:: ::
,o ;o, ,
,o :
, ,
,
,o :
,;:o:
,: :o
,, o, :o, o
,; ::
,:o :o
:o xli
:o: :;, :
:o: :,,
:o:; :o
:o ::
:o; ,;
:o: o
:o , , o
:o, o
:o:o o
:, li
::: l
::, ,
:: ;
:;
:, ::o
::, ::
:; ,, ,
:: :
::: ;
::o ;,
o; :o
::;, :::
;
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: Index of Sources
Lxodus (continued)
;:
o ;
Ieviticus
:o
:o
:; :
xlix
:o:o ;:
o ;
o ;, ;:, ,o
o: :
:
: ,
:o :
, o
,: ,;
,: o, ,:
:, :,
: :o,
:;: lii
:: ,
:o o
: ,
:, ;:
Numbers
:, ,
;:, ::;
,: :::
:: o
:o ::o
:: ::;, :;:
o :,
o ;o, ;
:, :;o
:, :
: :,
:; :oo
:;
:; ::
:;:
; o
lii, liv
Deuteronomy
: :::, ::
:, ;: :
:,,
o ,, oo
: oo
, ,
o
: ,
::,
::,
: :,;
::
:: :,;
:;:: :::
o: oo
o: o:
o, o
: ,, ,o
: :;
::o
:,
:, :o,, ::,
::
: :o:
:
xlviii

, :;
o: o, ,
;; ::
;: ::, :
;: :, ;o, ,,
:, :
;, ::
;,o ::
;o :, :
; :o, :o:, :;,
::, ::, , :
; (Nahmanides
Commentary)
;: ::, :
; ::
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Index of Sources ,
; :, :
; (Abravanels
Commentary) o
; ;
;:o :, ,, ,
,:, ,
; ;, :, ;
;o ;
;; ;
;, ;
;:o , , :, o
: ;
:, :
:: :o
:,:: :, ::o
: ::,, :o, :;o,
::
:o o
:: :;o, ::
:, ::, :;o
::o ::, :;o
::: :o, :
,, xlviii
,; ,
:o
:
:,: o
:: :;
: :::
:o
:o o
:;
:, (Abravanels
Commentary) ;
:,, ,::
:,, ,
:, o;
:, :
:,:: ::,, :o,, :;o,
:;
o:o
o: o:, :o, :o,
:o,, :;
o :oo
:; :;
:; o;
:,:
:
:
:, o ;o
:, :
o :;
|oshua
:
, :;o
::: o
|udges
:: ,
oo, o, o
;:, :: o
;: :,
:::: o, :
:: o, :,
, :
: :o
o :o
;o o, :
: :
, :
:o:; ;:
:: o, o, :, o,

Samuel
::o ::, ,
:
:o :o:
; :
; :
; :
: :o, :::,
o:, ,:, ,
: :
: :;
:; :, , oo
:;: :,
:,: :
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oo Index of Sources
Samuel (continued)
: :
:; o
:,:o o, :
::o ;, :,
::: o
o ::;
oo ::o
o :o
:
:: :
: :
:: :
:o; oo
:
: :
o; ::,
::o ;:
,
: Samuel

, ;:
: :
o: oo
; :o
: ,
Kings
:
:o:
: :
, , :o
:, ;o,
: ,o
::o, :oo
:;
; ,
:;
::o :o,
:::: ::
:: :o, :
:::: ::
::; ::
: Kings
;
::: ::
::,:; :
Isaiah
: ::
:;
o :oo:
o o
o o
oo :o
:,
;
:: ,,
o
:o :
, oo
: :
:: :
: :
oo: o
|eremiah
o :o:
, ::;
:; ,o
:: :
::
;:
;: o
,:: :,
,: , ::
;, :o:
:: :
::; :,
:o :
:o :;
:o:o: :o:
:; :
::: ::
::;, :o
:,;
;
;
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Index of Sources o
,o ::
, ::
Lzekiel
::;
:, ::;
:: :
:o o
:oo, o::,
o: :
:o: o
Hosea
;; ,
: :
|oel
:;
Amos
:; ::
; :,
;o; :oo
; ::
Obadiah
::
Micah
:,:
, :;
,: :
: ::

o: o:, o
Habakkuk
o :;
Zephaniah
,
Zechariah
o ::;
o o:
o o,
:, o,
, ,, :o
Malachi
:, :o
:: :;o
: ::
Psalms
:; ;, ;
;: :
,: ;, ;:, ,
,, ;:
,o oo
: :,
:;:
o o
;::
;:;
::o; :,;, :,,
: :;
:o ,
,o: :,
o,::
: o
:
o ,
Proverbs
:, ;:
: ;:
o xlix
o
:: o,
:::
|ob
:::: :,:
o ,
Song of Solomon
;o :o
Iamentations


Lcclesiastes
o
:
: xl, xli
Lsther
:
,:; ;, :,
Daniel
o ;
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o: Index of Sources
Daniel (continued)
;: :
o: ::o
Lzra
::
o;: :;o
o: ,, o
Nehemiah
,:, ::o, o; :o
,; o, ;
oo :o
: ,
Chronicles
:o o
:::
: Chronicles
o :o
,o ;:
, o, o:,
:oo: ;
Apo.rypha
The Wisdom of Ben Sira
o o,
o:o ::
o: ::
Maccabees
:, :;
!auuaiti. 8our.es
Mishnah
Avot
:
: ,:
::
: o, o:, ::
:,
; ;, ,
Bava Batra
:o
Bava Kama
: li
Berakhot
:o
Lduyot
:
xxxii, :;;, , o
o o
: :
o; ,
Gittin
:;
Horayot
:o, :,, o
o: ,:
Makkot
o ;o
o :;
Megillah
,o
Nedarim

Orla
, :,
Sanhedrin
:,
: o
: ;, ,
xlvii
:
: :
Shevuot
: ,;
Shviit
o :;
\oma
,o
Tosefta
Bava Metzia
:, o;, ::,
:;, :,, ; :;
: o;
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Index of Sources o
Lduyot
:,
Hagigah
::
:, ,
Sanhedrin
; o
Sotah
:;
\evamot
o
o
Megillat Taanit
chap. o-Tevet ;;
Mekhilta Derabbi \ishmael
Bahodesh
, o :;, :
Beshalah
: :o;
Sifre Numbers
:,,
Sifre Deuteronomy
::o
, o:
o ;

Miorash
Midrash Psalms
: ;, ,,
Midrash Rabbah
Deuteronomy Shoftim
:, ,, :
Song of Songs
: :o
!almuo
|erusalem Talmud
Horayot
d ::
Megillah
;a ,
Peah
b o;
;a :,o
Sanhedrin
:oa :
Babylonian Talmud
Avodah Zarah
:a ;:
;a ;:
:;b ;:
Bava Batra
:b ,, o;, :
,a :, :, ::
:a :;
:ab ::
:b ::
::b :,
a
Bava Kama
ob oo
:ob :;
:b liii
a :
ab
b o
Bava Metzia
::b ,:
ob o
,b o:, :o,
:oo;, :, ,
Berakhot
;a :,
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o Index of Sources
Berakhot (continued)
b :,
:a :,
oa :;
Lruvin
b , o, ,
o
Gittin
,b ;, :
:b :
oab :;, :;,, ::o
ob ,:, o:
oa :o;
oob
:b :
Hagigah
b xli, :
Horayot
:b :
Hullin
,a :,
Ketubot
a :, ,
Kiddushin
a ,:, ,;, ,:
Makkot
::ab :;
::b :;;, :;:
Megillah
,b :,o
:oab ,o
Menahot
:,b :o:, o
b o
Moed Katan
oa o
ob o
Nedarim
:a o, ,
:a :o, :oo
Niddah
;a :;
Rosh Hashanah
:b o;, o:
Sanhedrin
a ;
;a
,a o
,ab :, o, :
:ob , ,, o
:a ::,
:;b ;;
:a :,
ob ;
oa ,, ;
:ob o:
:;a::b :
::a o:
::ab ::o
::b , o, ,, o:
:,a ::, :
,;a :;
Shabbat
oa ,
:a :;, :;,
oa ,
::a
oa ;:
Shevuot
:b ;
:,ab
Sotah
;ab
;b ,
Temurah
oa :o
\evamot
,a o

a ;, ,
\oma
o;b :, :, o;, ;
;b ,;
:a :,
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Iuoex oj ^ames
Page numbers of selections in this volume, listed under their authors names, are
marked vith ; commentaries and introductory material are labeled com and
intro, respectively. Only the rst page number is listed.
Aaron, :, , ;;, ;, ::, :o, ,:
Aba, o
Abaye, ::, :,, :;o, :;,, :, :, ,
o
Abba b. Kahana, :o
Abigail, ;
Abimelech, :, :
Abishai, ,o
Abraham, ;o, ;, ,,, ::, :,, ::o, ,
Abraham b. David of Posquieres (Rabad),
, o
Abravanel, Isaac, ,, ;, ,,, , o, ,:.
Works Commeutary ou the Ieutateu.h,
;, o
Absalom, :o, ,o
Abulaa, Abraham b. Samuel, :o:, :,
:o, :,, :o. Works Commeutary
ou the Ieutateu.h, :; 8ejer haHajtarah,
:o
Abulaa, Meir (Ramah), ::, o. Works
Respousa, ,,
Adam, xlvii, :
Adret, Solomon b. Abraham (Rashba),
:o:, :o, :, :,, :, :, :,
;. Works Respousa, :, o:
Aha b. |acob, :,, , :, :
Ahab, ,, :o, :o,, :, ::o:, :
Ahad Haam (Asher Ginsberg), xxiii
Aharon ha-Kohen of Apta. Works Cr
haCauu: la!:aooilim, ::
Ahijah the Shilonite, :, ,
Ahikam son of Shaphan, :
Akaviah b. Mahallalel, :, , ,, :o,
:, o:, ;
Akiva b. \osef, :, :,, :o:, :o, o
Albo, |oseph, , ;;o. Works Bool oj
Iriu.iples, ;o
Alfasi, \itzhak, xxxiv
Amaziah (priest of Bethel), :oo
Amemar, ::, :,
Ami, Rav, :;;, o:
Amos, :o, :oo, :;,, ::
Anan,
Anatoli, |acob. Works Malmao ha
!almioim, :,
Apion, :,
Aquinas, Thomas, ;o
Aristotle, xxviii, ;:, :,, ,, ,. Works
Lthi.s, ;, oo
Asa, :o
Asher b. \ehiel (Rosh), xxxiv, :,
Ashi, Rav, :o, :,, ,o, o
Assi, Rav, :;;, o:
Augustine, ,
Avdimi b. Hama b. Hasa, ::
Avdimi of Haifa, ::
Avtalyon, ,;, ,
Azariah, o:, ;;
Balaam son of Beor, ;
Bamberger, Seligmann Baer, o,, ;;
Barak, Aharon, o,, o:, o, o,o,
:, o, :, :::
Basyatchi, Llijah. Works Aooeret Lliyahu,
::
Ben-Gurion, David, o;, o:, :;, ,o,
,;oo, o:, :
Ben Sira, Simeon, o,, ::
o
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oo Index of Names
Benor, Lhud, ;;
Berdichevsky, Micha |osef xxiii
Bergman, Samuel Hugo, :, o, o;
Berkovitz, Peter, ,; (com)
Berlin, Naphtali Tzvi |udah (Netziv), ,
, ;o
Blake, William, xxviii
Boethus, ::
Borochov, Ber, :
Breuer, Isaac, o;, :
Buber, Martin, o. Works Biblical
Ieadership, :; Kiugship oj Coo, ,,
o
Cain, xlvii, xlix
Camus, Albert. Works !he Myth oj 8isy
phus, oo
Capsali, Moses, o,
Charles V, oo
Cohen, Hermann, , :,, ,:,o
Cohn, Haim, o:, o,, oo, :
Cordovero, Moses, ::
Cyrus, ::
Dan, |oseph, o
Daniel, :, ::o
Dathan and Abiram, :
David, :;, , , :, , ,, :o,
:o, o;, ::, ,o
Dessler, Lliyahu Lliezer, ::, o.
Works Milhta: meLliyahu, :,,
Devey, |ohn, ;o
Domb, \erahmiel, o;, :
Dostai ben \ehudah, liv
Dov Baer, Maggid of Mezhirech, ::
Dubnov, Simon, ::o
Duran, Shimon b. Tzemah, ,, ::.
Works !ash|et:, ,
Durkheim, Lmile, xxiii
Lban, Abba, o
Ldels, Samuel Lliezer (Maharsha), :
Liger, Akiva, , :, ,o
Linhorn, David, :, o, o, ;;
Lleazar b. Azaria xl, xli, lv
Lleazar b. Hanokh, ,
Lleazar b. Pedat, :;o, :
Lleazar (priest), , ;, :;o
Lli, ::, ,
Lliezer b. Hyrcanus, o:, :o, :oo,
:, ,
Lliezer b. \ittzhak Hakohen, ,:
Lliezer b. |acob, ,
Lliezer b. Samuel of Metz, ;, ,
Lliezer b. Tzadok, :
Lliezer b. \oel Halevi (Avi ha-Lzri),
;, ,
Llijah, :o,, :, ::, ::, :o, :;o
Llimelekh of Iyzhansk, ::, o, .
Works ^oam Llimelelh, :,;; Holy
Lpistle, oo
Lllenson, David, ; (com)
Llon, Menachem, o:, o, oo, :,
:
Lsau, ;
Lzekiel, ;, , :, o, :, ::;
Lzra, xlii, , ::, ::, ,, ,o
lisch, Menachem, :: (com)
lishbane, Michael, xxxix (intro)
lreud, Sigmund, xxiii
Gamaliel, Rabban, :o
Geiger, Abraham, o, ;;
Gerondi, Nissim b. Reuben (Ran), ,
, oo, o, :, , oo, ;,
;;, ;;;:. Works Derashot ha
Rau, o
Gershom Meor ha-Golah, o:, ;, ,,
,:
Gideon, o, :, o:, :, :,
Grodzinsky, Hayyim Ozer, ;;
Gutmann, Amy, : (com)
Haddayah, Ovadyah, ;o
Halbertal, Moshe, :: (com)
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Index of Names o;
Halevi, Hayyim David, ::, :,, o,
o
Haman,
Hammurabi, :
Hanani, :o
Hananiah ben Azzur, :o, ::
Hanina b. Adda, :o
Hartman, David, xiii (forevord), :o
(com)
Hayyim Or Zarua, , ;, o. Works
Respousa, o
Hegel, Georg Wilhelm lriedrich, :o
Heller, \om Tov Iipmann. Works !osajot
Yom !o:, :,o
Herodotus, ,
Herzl, Theodore. Works Altueulauo, :;
Der juoeustaat, ;,
Herzog, Isaac, o, oo, ;
Hezekiah, :
Hillel, ,;, :;, :o, :, ::, :;;;,
:;,:o, :, :;, ;, ,:, o:, ;
Hinnena b. Kahana, o
Hirsch, Samson Raphael, o, o,, ;
;:
Hiyya b. Ashi, :;
Hobbes, Thomas, :;, o;, :,, ,;, oo.
Works Le:iathau, , ,:
Holdheim, Samuel, , ooo:. Works
Cu the Autouomy oj the Ra||is, ,
oo
Holmes, Oliver Wendell, :o,
Hosea, ;, :
Hushai the Archite, :o
Ibn Lzra, Abraham, :,
Ibn Migash, |oseph, ::, :,
Ibn Pakuda, Bahya. Works Duties oj the
Heart, ,o,, :,
Idel, Moshe, :o (com)
Imi, ::
Isaac bar Sheshet Perfet (Rivash), :, :,
;, ,, :o, ::. Works Respousa,
oo
Isaac Or Zarua, ;, ;;. Works Cr
2arua, ,
\itzhak, Rabbi, ::, :, :;o
Isaiah, :, :, :o, :o, :oo, :, :
Ishmael, ::, ;:
Ishmael of Modena, o, ,o
Isserles, Moses (Rema), oo
Ivya, :;
|acob, ::;
|acob b. Asher. Works !ur xxxiv
|ehoiakim, :
|ehoshaphat, , ::o:,
|eremiah, ;, :, ::, :o:, :o, :o, :o:,
:, :;,, ::, ::; ::, :
|eroboam son of |oash, ::
|eroboam son of Nebat, o, , :oo,
::
|esus, :
|ezebel, :o, :
|oab, ,o
|ob, ,, ,o
|onah ben Amitai, :o, :oo
|onathan, o
|osephus llavius, o,, ,,, :. Works
Autiquities oj the jeus, ,:, ,,;
Coutra Apiou, :,
|oshua bin Nun, xlii, o:, , :, ,,
:o, :;o, :;, :,, ;;, ::
|oshua son of |ehozada (priest), o:
|otham, ;
|udah b. Pazzi, :o
|udah Halevi, o, ;, ;;, o:, :.
Works !he Ku:ari, ,, oo, :,, :::,
o
|udah the Prince xxxiii, xliii, , :;o, :::,
;, o
Kahana, Rav, :
Kant, Immanuel, ;, :,, ,,o. Works
Critique oj juogmeut, ,
Kaplan, Iavrence, o (com)
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o: Index of Names
Karo, |oseph, xxxiv, :,. Works Bet Yosej,
ooo; Kesej Mishueh, :,; 8hulhau
Arulh, xxxiv, :o:, ;, ;;
Kaufmann, Walter, o:
Kierkegaard, Soren, , o, oo
Knohl, Israel, ;;
Kook, Abraham Isaac, , ::, o, o;,
:;. Works Mishpat Coheu, ;o; Crot,
:;; Crot haKooesh, :o
Korah, ;o, :, ::,, ;
Ieibovitz, \eshayahu, :, o, o;, ;,,
o;, o,, :o, ,;,:, oo. Works
Religious Praxis The Meaning of
Halakhah, ,;
Ievinson, Bernard M., : (com)
Ievinson, Sanford, (com)
Iieberman, Saul, ::
Iilienblum, Moses Ieib, :, ::, ::,,
o
Iocke, |ohn, o,. Works 8e.ouo !reatise oj
Co:erumeut, o
Ioev, |udah (Maharal), ,, :. Works
!ijeret Yisrael, o
Iorberbaum, Menachem, xxxii (intro),
o (com), o (com)
Iorberbaum, \air, ;; (com)
Iuria, Isaac (Ari), :,o, ;oo
Iuther, Martin, :,
Iynn, Uriel, o
Maccabees. Works |onathan, ::; |udah,
:;
Mattathias, :;. Works Simon, :;:,
Machiavelli, Niccolo, , ,, :o. Works
Dis.ourses, o; Iriu.e, o
Maimonides, xxiii, xxvii, o, ;;, ;;
;:, ::, :,, , , o:, ,:, :o, ::o,
:, :, :,, :;, :,, o, :::,,
oo, o:o,, ;, :, o:, :, :
:o, ::, :, :o, :. Works
!he Cuioe oj the Ierplexeo, o, :o, :,,
:; Mishueh !orah, xxiv, xxxiv, ,
o; Introduction to the Mishueh !orah,
:, , o;; loundations of the
Torah, ::, :o,; Iavs of Kings, ;
Iavs of Rebels, ::, :;; Iavs of
Robbery and Iost Property, , ;;;
Iavs of Sales, :; Iavs of Sanhedrin,
;o;; thirteen principles of, ::
Malino, |onathan W., , (com)
Manoah, :;
Mar Ukva, ;
Marsilius of Padua, ,
Marx, Karl, xxiii
Matthev. Works Gospel, ::
Medici, lerdinand, :
Meir, Rabbi, :
Meir b. Baruch of Rothenburg (Maharam),
::, , ;. Works Respousa, oo,
:
Meiri, Menachem b. Solomon, , :,
:, . Works Bet haBehirah, :,
:o
Mendelssohn, Moses, xxvii, , ,, ::,
o, o. Works jerusalem, ::
Mesharshia,
Messiah, ::
Micah, :, :, :, :;,
Micaiah, ::o
Micaiah son of Imlah, :::, ::
Mill, |ohn Stuart, ,
Mizrahi, Llijah, :, o:. Works
Respousa, o,
Modena, Ieone. Works Kol 8alhal, ::;
Molire, ,;
Moses, xlii, ::, ,, :,, ,, ,o.
Works as leader, ,, :o;; as legislator,
:,o; as prophet, , :o:, ::o, ::;
, :o,, :;o, :;:, :;; as rabbi, :;,
:, :o, :o:, :o, :,o, :,;, ;, o;
as ruler, o, , o; as t:aooil, :,:, o,
oo
Naboth, :o, :, :
Nahman of Bretzlav. Works Lilute Moha
rau, o
Nahman, Rav, :;;
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Index of Names o,
Nahmanides, :;, :, ::, :oo, :;, ,
o. Works Commeutary ou the !orah,

Napoleon, o, :, ,, oo
Natan, Rabbi, :o
Nathan,
Nathan of Gaza, ::
Nehemiah, ::, , ::, ,o
Nehemiah, Rav, :;
Nehorai, Rabbi, :, :
Neiman, Susan, ,: (com)
Nissi ben Noah, Rabbi, :::
Nissim of Avila, :o, :
Obadiah, ::, ::
Orvin, Cliord, , (com)
Otniel son of Kenaz, :o
Papa, Rav, ::, :,, :
Paul, :;,
Pedro II, oo
Philo, o, :
Phinehas, :, :;, :o
Plato, ,, ;:, ,, :o. Works !he Repu|
li., ;
Pollack, |acob, :,o
Polybius, ,
Putnam, Hilary, ; (com)
Raba, :,:
Rashi (Solomon b. Isaac), xxxiv, xxxvi,
:,, , :;o, ::, :oo, ::o, , o, :,
, o, ;, ;, o. Works Respousa,
,;
Rav, :, ::, :o:, :;, :
Rava, :,, , :,, :;:, :, :, ,
:,, ,, :, o
Ravina, :o
Ravls, |ohn. Works A !heory oj justi.e, ;;
Ioliti.al Li|eralism, ::
Raz, |oseph, o, (com)
Rehoboam, :, o, ,o
Rosenzveig, lranz, xxvii, ;:
Rousseau, |ean-|acques, ;, o:, ,;,,.
Works 8o.ial Coutra.t,
Rudolph I, :
Saadiah Gaon, :, o, ;;;, ,o, ,
o. Works !he Bool oj Beliejs auo
Cpiuious, , :,, :,, ;
Sagi, Avi, o (com)
Salmon ben |eroham, :. Works Bool
oj the 1ars oj the Loro,
Samuel, o, :o:, :,, :, ,
,oo, ,, :o:,
Samuel b. Meir (Rashbam), ;, :,
o, ;o, ;;
Sandel, Michael |., o (com)
Sasportas, |acob, ::, :, :, :;
Saul, :o, :o, , ,, :o, ::o, o
Schabur (Saper; king), ;
Scholem, Gershom, ,o
Shakespeare, :;
Shammai, ,;, :, :;, ;, ,:
Shatz, David, , (com)
Sheba son of Bichri, ,o
Shemaiah, ,;, ,
Sherira Gaon. Works Lpistle oj 8herira
Caou,
Shimei son of Gera, , o
Shimon b. Abba, :o
Shimon b. Gamaliel, :o, :;
Shimon b. Iakish, :, ::
Shimon b. Shatah, ,, ;;
Shimon b. \ehudah of Akko,
Shimon bar \ohai liv, , ;, ::, :, o
Shimon ben Azzai, :, ::
Shimon ben Zoma, :
Shmuel (amora), :, :o, :;;, ::o, o,
:, :, ;, ,, o, o, ,
;
Shmuel b. Nahmani, ,o
Shmuel ha-Katan, ::
Silberg, Moshe, o:
Silver, Allan, :: (com)
Simmel, Georg, xxiii
Simon the |ust, o,, ::;, ,
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;o Index of Names
Sofer (Screiber), Moses, :, :,, o,
;o. Works Respousa Hatam 8ojer, :,,
;;;:
Solomon, , , :o:, :o
Spinoza, Baruch, xxiii, xxvii, :, o, , ::,
o, ,, o, o;o:, ,, :o, :;:,
oo. Works !heologi.alIoliti.al !reatise,
, ;:, :, :o
Stone, Suzanne Iast, : (com)
Tam, |acob b. Meir, oo, o:, :, ,
;, :,
Tamir, \ael, : (com)
Tanhum b. Aha, :o
Tarfon, Rabbi, :o, ;:
Teitelbaum, \oel, o;
Thrasymachus, ;
Thucydides, ,
Tiktin, Shlomo, o
Titus, :o;
Tobiah, Rabbi, ::
Tonnies, lerdinand. Works Iuuoameutal
Cou.epts iu 8o.iology, ;o
Uriah son of Shemaiah, :o:, :
Uzziah, o:, ;, ;
Vital, Hayyim, ::
Voltaire, ::;
Walzer, Michael, xxi (intro), , (com),
:; (com), : (com)
Weber, Max. Works Au.ieut juoaism, :o
Weil, Meir, :
Weiss Halivni, David, ;;
Whitman, Walt,
\annai, Alexander, ,, o
\annai, Rabbi, ;, o
\ehoshua b. Hananyah, :o:o, :o,, :
\ehudah, Rav, :, ::, :o:, :o
\ehudah b. Ilai, ;, :, :, :;, :,
,, :, , :;, ,o
\ehudah b. Meir Hakohen, ,:
\emar b. Shlamia, :,
\ohanan, Rabbi, :, :o
\ohanan ben Zakkai, :, :o;, ;,
\onatan, Rabbi, ,o
\ose b. Halafta, :, ;, :o, o, , :,
\osef, Rav, :
\oshiyah, Rabbi, :o, :,
Zadok, ::
Zeira the |erusalemite, :o, :,
Zechariah, ::;
Zechariah ben Kevutal, ,;
Zedekiah, ,
Zedekiah son of Kenaanah, :::, ::,
::, :
Zerubabel, , o:o,
Zohar, Noam |., xxxii (intro), (com),
:;; (com), (com)
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Ceueral Iuoex
An alphabetical list of legal principles and political sayings frequently invoked
in traditional discourse appears under the entry Maxims.
Abstraction, o:, :::
Agudat \israel, :,,, :, ,
Aleoah, , ,,, o, o, oo
Am haaret:, ,:, :;
Anarchy, o, o, ,, :,o
Auschvitz, ,o
Babylonia, o:,
Babylonian Talmud, xxxiii, xliv, :, ::,;
authority of, :o;, ooo;; haslalah
viev of, :,o,
Ban (herem), :, ,, ;, ,oo,
,,o, ,:, o, o, o,,
Bat lol, o:, ::, :o, ::, ;:
Bet oiu, , :o:, :, :, ::,
:, ,:, ;. 8ee also State of Israel,
rabbinic courts in
Canaanite nations, ;
Capital punishment, xlvivii, :;:; for
false prophecy, ::; as kings preroga-
tive, o, ;, o:o, ;;o; of
rebellious elder, :, ::, :::,
Christianity, xxx, o; contrasted vith
|udaism, :, ,, ,,, ,
Christians, o
Circumcision, ,, o:, o, ;;, oo:
Citizenship, ::, , :
Civil religion, o:, ,,
Civil society, ;
Civil var, :o
Collective punishment, ::,
Commandments as duties, ,;,,, o,
o; as ends in themselves, ooo.
See also Hullim, Mishpatim, Noahide
commandments
Commentary, as genre, xxiv, ::
Communal autonomy, :, o
Communal ocers appointees (|erurim),
o:; paruasim, ,:, ::o, :::,;
selectmen (|erurim), :, :, oo; Sen-
hores del Mahamad, ::;; tyranny
of, :,
Communists, ,
Community, xxix, ;o, ;o;;, :o
Compromise, , ,o, :
Conscience, o, o,;, ;, :, ,
,, ,o
Consensus, o
Consent, o, ;o, ;;, ,, :::, :,,
;, ;; centrality of, xxviii; coerced,
;, ::, :; collective, ,; and divine
omnipotence, ;; hypothetical, :, ,
o, ,o; and Oral Iav, :o
;; popular, , ; tacit, ,, o,
, ;, , , ;:, ;;;:;
unanimous, ,, ooo, :
Consent theory, o;, ,, :, ::, o
o
Conservative |udaism, ;;
Constitutionalism, xxviii, oo, :o. 8ee
also State of Israel, constitution of
Controversy (mahlolet), xliiiiv, :o,
:, , ;, :::, , ,, ,
;, o, o; origins of, :;, ;
for sake of heaven, ;, ,
Conversion, of minors, :
Converts, ,:
Courtyard, :o:;
;
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;: General Index
Covenant vith God, o;, :, o,
:oo,; conditionality of, :, :; Davi-
dic, :;, :; forced, :o; and future
generations, :, , :o, ;o; histori-
cal character of, ::;; narratives of,
o:, :o:; priestly, :o, ::,
:;; refusal of, ; reneval of, :, :;;
voluntary,
covenantal, xxxix, xl, ::;, :ooo;
Covenants, numbers of,
Criticism duty of, o; prophetic, :o,
:;,, :;;
Daat torah, :,,, o, oo
Day of Atonement, oo, o,; priestly
service on, ;;, ,o,;
Deorayta, xlii, :;o, :;,, ,;
Death by heaven, :::
Decalogue, :, :o
Democracy, , :, ::, :, o, o:,
o,, ,:, :o; emergent in lahal,
:; precedence of, :; theory vs.
practice, :. 8ee also Consent
Democratic theory, :
Dera||auau, xlii, ;:, :;, :;,
Deuteronomists, :, ,, ,; on
kingship,
Disclaimer (mooaa), ::
Disobedience, , :::; civil, o:, ,o;
of kings, o
Divine euence, :oo
Divine inuence, oo
Divine order, oo, o:o, :, oo, ::
Llders, o, , :, , ,o, :,
:;, , :
Llection, xxix, ::, :o, :::
Llective government, , ;:;,
Llites, :, , , oo, o
Lmancipation, xxiii, ::, :o, ,
Lmuuat halhamim, :,,o, o
Lquality before the lav, :o
Lssenes, :
Ludaemonism, ,, ,
Lxcision (laret), :;o
Lxilarch, xxix, :, :, o, ;, ;o;
Lxile, xxx, , ::, :::,, , ;, ::; a
nev lav for, :::; value of, ,. 8ee also
Obligation; Prophecy
Lxperts, ::
Lxpulsion from Spain, ,, ;,
lascism, :,
llorence,
lor the sake of heaven, xli, ;, o, :,
loreigners, marriage to, :, :
lreedom of opinion, :, o:
lreedom of religion, oo:, :o, ,
,, o;
Gemara, xlivlv
General vill, o:, ,:, ,;,:, oo
Gentile state, ; and custom, :, ,;
divine right of, :, ;; |evs as citi-
zens of, ::, ; and land ovnership,
,o; land ovnership by, :, ,,
;:; popular consent to, :, :,
; restrictions on, o, ,,
Geonim, xxxiv, :;, ::,
God absolute subordination to, :; as
condition of the good, ,; in history,
:oo; image of, xlvi, xlvii, o;; as king,
:;, o,, ,, :::, :, :, :o;
love of, ;,, ,,, ;,:o; self-limitation
of, :o, :o:; silence of, :o;; treason
against, , :o; visdom of, , ,
;:, oo;. 8ee also Kingdom of God
Good men of the tovn, :::, ::o,
,o,, ,,, o, o, ;:. See also
Kahal
Guilds, authority to regulate, ::, o;,
,:o
Guilt, transgenerational, xlix
Halalhah. atrophy of, ::,, oo; conserva-
tism tovard, :; innovation in, :o,
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General Index ;
::, :,,;, o:, oo, o;o:,
;;; realism of, ,;,:; reform of,
o, ;;; repeal of, :; Sephardi
attitude tovard, :,; undemocratic
character of, o:,. 8ee also Iav; Torah
Hanukkah, :;, :;,, ::, o, ::
Hasidism, ::, ::, o, o, ;, oo
Haslalah, ::,, :,, :,, o
Heresy, o, :;, o:o, o:o,, ;:, ;o;
Reform |udaism as, ;; of Spinoza, ;
Zionism as, :::
Hermeneutical rules, xliv, ::, :o:
High court (Sanhedrin), :;, :, :o,
:::o, :, :, :::, , , ;;,
:; and king, ;, :, o,
High priest, o, :o:,, ,o,:; and
king,
History meaning of, ::;, :,; Reform
use of, ;
Holidays, religious and national, signi-
cance of, ,
Holiness, abuse of, :,
Holiness School, ;;
Holy Spirit, ::o, ::, ::, :oo, oo, o,
o
House of David, :, :o, :, o, ,
;, :
Hullim, :, o:, :; benets of, :,
,; immutability of, ; optionality
of, :; rationality of, ooo:, ;, ;;
Idolatry, :, ,, ,, ::, ;,, :,, o:,
;:, :o; and kingship, :, :::,, :
Individual responsibility, , :, :,
:,o, ;o;, ;;
Individualism, :; critique of,
Ingathering of exiles, ,:, ,o, oo
Intellectuals, non-rabbinic, :, :, o:.
8ee also Llites
Interpretation, ::, :,, , ;; and en-
actment, ::o, ::; and immoral lavs,
o;, o,, ; and legal revision, :;,
:;:; pluralism of, ,,
Isought distinction, ,
Islam, xxx, ;:
Isura, :, :, o:,
|erusalem, o, :;:: :, :o, ::
|erusalem Talmud, xxxiii, xlv, :
|evish nationality and religion, ,;
Reform critique of, ;:
|evish state, :o, :o, ; destruction
of, , ::; and oiua oemallhuta oiua,
, :; and land ovnership, :o, o,
;;;:. 8ee also State; State of Israel
|udges (shojtim), o; rule of, :,o; book
of, o,, o, o, ,, :o, o,
|udicial hierarchy, :, , ;; appeal in,
:, :o
|udicial reviev, o, :, :
|ustice, o:, ,, o:, ::, :, o; deni-
tion of, :; retributive, l
Kabbalah, xxv, xxvi, :, :;, :,, ::,
:,o, , o, ;,; ecstatic, :o:;
Iurianic, o; theosophical, ::
Kahal, xxix, xxx, ;;o, ::, ,
o, ;o; and authority to legislate,
,,, ,;, o;, :, ;:;,; au-
tonomy of, ,, ,o, o; and |et oiu,
:, ,:; collapse of, ::, ;o, :o; con-
straints on, :, o; and doctrine of
kingship, ; eminent and humble
members of, ,, ,o, o; and rabbis,
:, :, , , :, ;:;,; and
regulation of marriage, oo; and right
of expropriation, ,,:, ,,, oo,
o:, ;; taxation by, ooo, o,
o, :; tyranny of, ooo
Karaites, :,, ::, ::;, o, o, ::,
, o, :, oo, ;, o,o,
:, :; children of, ::
Kingdom of God, o, , o; yoke of,
o, :;::
Kingdom of priests and a holy nation, :,
;
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; General Index
Kings, :; deication of, :::,;
disasters caused by, ,; divine right
of, :; as Gods sons, :; Hasmo-
nean, , o, :, o, ;, :;, ,;
honor of, , ;o; as idols, :; of
Israel, :, , :, o, , :,,
o; as messianic gures, :; right
to expropriate, ;, o;, ;
tyrannical, , o; and var, :, :,
;, ;, :. 8ee also House of David
Kingship, o; and autonomy of poli-
tics, :o; constitutional, , :, o,
,, ;o; Lgyptian and Mesopotamian
conceptions of, :, :; estab-
lishment of, :;, :o:; functionalist
understanding of, :; limits on,
o, ; and national sovereignty,
;o; opposition to, ; optionality of,
:, ; philosophical critique of,
o:; philosophical defense of, o;
and political agency, :, :o; practice
(mishpat) of, :, ;, :,, ;
royalist ideology of, :; and secular
politics, , oo:; theocratic critique
of, :; theology of, :o:;,
Knesset, o
Knovledge, :o:, :::; esoteric,
::, :;, :o, o, ;, ,. 8ee also
Lxperts
Iand of Israel, xxvi, ;, :;, :,, o,
o, o;, :::, ::, ,o; holiness of,
xxvi; and prophecy, xxvi
Iav, xxiv; amendment of, :; ana-
lytic conditions of, o, ,o, ,
o, :; ceremonial, , :o, :; codes
of, xxiv; divine, ;o;:, ;::, :, :
:o; divine religious, o:; governmental,
o:; kings, o, :, o, o, o, :,
, o, oo, ;o, ;;; moral,
,; natural, , oo:, ;o;, ;, ;,;
natural divine, ;,; oral, xlii, lii, :o,
::o, :::o, :::, , :;::, o,
,, o, :, ;; positive, ;o;,
;o; public, :o:;; purpose of, o:o,,
:; ritual, ,; social and moral, ,
, ;:, o:o; truly just, ooo;
vritten, xlii, :, ::o, o, ,, o.
See also Halalhah, Torah
Iav of Return, o:
Iavs of Hammurabi, :
Iegal errors, :o:
Iegitimacy, xxviii. 8ee also Gentile state;
State of Israel
Ievirate marriage,
Iiberalism, , :
Iike all the nations, :o, :;, :,
:::, :, :, :, , o, :
Iiturgy, disputes about, :oo
Iivorno, ::;
Majority rule, ;:, o:, ;:, :o,
:;, :, :, , ,,, o,
o;, , o, :,, ,:, ,:o
Mamlalhtiyut, ,o, ,;, ,,
Mamoua, xlvii, :;o, ::o, :, o:, ,
, o, ;, ;,
Mam:er, ,:, , ,,
Marriage and divorce, ,; civil, ,
, ,oo; halakhic, ;:,
;:
Maslilim, ::
Maxims
all Israelites are responsible for one
another, ;;
anything nev is everyvhere forbidden
by the Torah, :, :,, :,, o
build a fence around the lav, :,, :;o,
:::o, ,, :,, ;o
court has the pover to expropriate,
:;;o, ::o, ,,:, ,,, ;,
do not add (lo tosij ), :,, :o,, ::::
even a band of robbers cannot avoid
adhering to justice, ,, o:
everything depends upon the judgment
of the court, :o, ;
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General Index ;
follov the majority, :o, ;, ,
halham is superior to a prophet, ::
oo, :;, :;
halalhah follovs Bet Hillel, :o, ;,

halalhah follovs the latest authorities,

xl, :
halalhah follovs the majority, :
he is already under oath from Mount
Sinai, ;, ,;,
hold back and do not act, :;o
if they say of left that it is right, o,
, ::, , o:
it is not in heaven, o, o:, :oo;,
:o,,
|epthah in his generation is like Samuel
in his generation, ,:, o;:
king neither judges, nor is he subject to
judgment, o, :,,
lav |given| to Moses from Sinai, :o:
lav of the kingdom is lav (oiua oe
mallhuta oiua), o: oo, ;o;;,
;,
love truth and peace, o,
man is political by nature, xxviii, o,
needs of the hour, , o, :, o,
,, o:, o, :,, ::, :, :, o,
o, ;o, ;o, oo
render unto Caesar that vhich is
Caesars, ::
so that controversies should not
abound in Israel, :o, :::,
these and those are the vords of the
living God, o, ;, :, o
they may enforce their decree, :::,,
,, o;, :, :
things that are oral may not be com-
mitted to vriting, :::,
to the right or to the left, , ;o, :,
:o:, ::, :,;, , ::, , :
unless it excels in visdom and in
number, :;;, :
ve follov the codiers, ;;
vhat touches all should be decided by
all, ::, ;
you must not deviate, :;
you shall not become divided into
factions, :
Mekhilta, xxxiii
Membership, xxix
Men of the Great Assembly, xlii, :, :,
::;, oo
Messianism, xxviii, ,, ,o, :o, :o,
:o:, :;, ;, o, o;, ::. 8ee also
Redemption; Sabbateanism
Midrash, xliv
Midrash Rabbah, xxxiii
Minority opinions, :, :, o
Minors conversion of, :; and majority
rule, o;
Mishnah, xxxiii, xliii, :, ::,, ;,
;,
Mishpat i:ri, o:, o, :
Mishpatim, :, o;, ;, :
Mituagoim,
Mizrachi, ,
Muslims, o
Mysticism. 8ee Kabbalah
National sovereignty, ;o, :
Nationalism, o, ;; absolute and rela-
tive, ::o; liberal critique of, o;
religious, ::o
Natural right, transfer of, o,
Necessity, ,, o:
No share in the vorld to come, o
Noahide commandments, , ,, , ;:,
;o, :, ;
Nomos, o:, o, :, ;, o
Normality, o
Obligation, ::, ;, :; and consent,
; and exile, o; and future gen-
erations, :, ;o, o, o. 8ee also
Covenant vith God
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;o General Index
Orthodox |udaism, ;;, ::, :,, o, o,
o, :, o,;, ;;, o; as separatist,
;o;:
Palestinians, :, ,:
Parables of kings, :;:,, :o:
Particularism, :
Passover, xlii, ,
Perfectionism, ,:
Pharisees, o,, ,o, ::;, o,, ,
Pluralism, o, , ;, :, o,
o:, o; interpretive, ,. 8ee also
Controversy
Political agency, xxi, xxiii, :, :, o:;
and kingship, :, :o
Political association (hali||ut: hameoiui ),
;, ,
Political authority, problem of, xxviii
Political society, o:, o,, ;, o, :
Political theology, l
Politics ambivalence about, xxii; au-
tonomy of, , o; in exile, xxi; of
identity, :o; secular, , :o, o:,
o, :, :, . 8ee also Kingship;
Political agency
Precedence, rules of, ,:, :,
Priestly School, ;;;,
Priests corruption of, :o; as custodians
of lav, o:, ,o; as judges, ;o, ;:,
,; and king, ;; mediating role of,
o:, ;;; oracular function of, ;o,
;:, :; as rulers, o,, ::, :, :;,o,
,:,; as teachers, ;o
Private domain, :;
Private property, ;, ,,oo
Prominent person (aoam hashu:), :,
::o, :,,o, o, o;, ,:o, ::,
;:;,. 8ee also |udicial reviev
Prophecy contrasted vith sorcery, ::o,
::,; contrasted vith visdom, :o
:, :o; end of, ::; and exile, :;,
::; and individualism, ::; re-
quires visdom, ::, :; skepticism
about, ::,, :o; and testimony, :,
:; through a dim glass, :;:; truth
criteria of, :o, ::, :::, :::,
:o:, :o,;
Prophets, :; calling of, :o,; as crit-
ics, :o, :,; and kings, , :o,
:o, :; persecution of, :o:, :;
subversiveness of, :o
Iros|ul, :o, :;;;, :;,:, o:
Protest, :,, ,,
Protestantism,
Prudence, , , o:, :o:, :o,
:, :,
Public assets, ,o
Public domain, :o:;
Public nuisance, ,,oo
Public property, ,o, oo
Public vorks, :o
Purim, ;, ::, o
Rabbanites, :,, , , o,,
Rabbis charisma of, o, o; con-
trasted vith t:aooilim, ::; as legisla-
tors, :;:o; pride of, :,; and priests,
,o,:, :;;; and prophecy, :o,
::, ::o:, ::, ooo, o; ratio-
nality of, :o; tyranny of, ::::,
Racism,
Reason adequacy of human, :,, :o
oo, :o; of commandments, o, o
o,, o,; inadequacy of human, ; as
moral standard, o, :, ; sovereignty
of, ,o, ,:, o
Rebellious elder, :, o, ::,
o:o,, ;; vindication of, :,:
Rebellious son, :o
Reconstructionist movement, ;;, ;
Redemption, xxx, ooo, ,o, ,:. 8ee
also Messianism
Reform |udaism, ;;, :, :,, :,, ,
o, o, o,;, ;;o, , ;
as heresy, ;
Relativism, o
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General Index ;;
Religion and morality, ,o, ,:,, o,
oo
Religious vitality, :, ,
Representative government, ;;;:
Republicanism, o, ,:,
Responsa, as genre, xxv
Revelation, ;o, :o, ; and infallibility,
;:; as legislation, :; rationality of, :
Revisionists, ,
Rhetoric, judicial, ;
Rights, o, o;, ::; civil, :; human,
:, o; individual, ::, ,,, o;
minority, ,; property, o, ,. 8ee
also Natural right, transfer of
Rome,
Sabbateanism, ::, ,o
Sabbath, xlii, :, ;;, :, :o, ;:
Sadducees, o,, ,o, :, o,o, ;;, :,
,
Sanhedrin, tractate, ,
Schools of Hillel and Shammai, :o, :,
,,
Sectarianism, o,o, o, , :
Self-determination, o
Separation of civil and religious lav,
::,, :, o; from commu-
nity, o, :, o,, ;, ;, ;;;:;
of povers, o, ,. 8ee also State and
religion
8helhiuah, ::;, :;, :oo, oo
8hema, ,
Shomer Hatzair, ,
8hulhau Arulh, ::, :,,:, o:, ,,
Sifre, xxxiii
Skepticism, ,
Slaves, xlii, :o, ,:; Canaanite, ,; of
Lgypt, ,; of God, ,, :,, o, ,; of
kings, :, ,; of Persia, ::
Social contract, o, , ;
Social hierarchy, ,;,:, ::
8tam, xliv, xlv, liiilv
State binational, ,; as essentially secu-
lar, :;::, ,:; as home, o,, ,
,; necessity of, :::,; neutrality of,
, ::o; resistance to, :
State and religion, ; collision of, :;
::; separation of, ::, ;,, , o;,
o,, :;::, ,,; unity of, :
State of Israel basic lavs of, o:, o,;
constitution of, ;, o:; Declaration
of Independence of, ,o,, ,, o,
oo; as democracy, ,:,, ,:ooo;
and oiua oemallhuta oiua, ;; divisions
in, ,:; and doctrine of kingship, ;
and halalhah, ooo;, ;:;, ;, ,,
o:; as |evish and democratic, o:,
o,, o::; legitimacy of, oo;,
;o, ; multiculturalism in, ;
necessity of, o, ;:; non-|evish citi-
zens of, ;, ,,oo, o, , o,
::o; rabbinic courts in, oo, ;
;o, ,; as secular, o, o,, :;::; as
supreme happiness, :o; and theocracy,
o, o:
State of nature, , o
Supreme Court, ;, o:; values of,
oo;. 8ee also |evish state
Suspension of the ethical, o:
!allauah laolam, o
!allauat hameoiuah, ;
!allauot, ;, ,, :o
!aliou, lav of, xlii, lliv
Taxation, , ,o; avoidance of,
o, ; fair distribution of, o
, ;,; by lahal, :, ooo, o,
o, :; as kings prerogative, ,
o; limits on, ; and robbery, ,
o, :
Temple, ;;, ::, :, :::,, ,,
,o,:, :oo, ::, :o, ::;
!eshu:ah, :;
Text-centered society, , :;
Theocracy, , :;, ::o, o;, o,;o,
:, :,,, ooo:, :, o:; as an-
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;: General Index
Theocracy (continued)
archy, o, ,; critique of, oo;
and Greek political science, ,o,;
as priestly state, :;, ;,; rationalist
defense of, ,:,, ,
!illuu hameoiuah, o
!illuu meoiui, o:
!illuu olam, , o, :;, ::o, :, ,
,, oo, ;o
!illuu seoer meoiui, o
Toleration, o, o, ,:,, ,o, o;
Torah, xl, xli; gentile states abrogation of,
, :, ,, oo; as ideal lav, ,
:; lahal s abrogation of, o:; kings
abrogation of, o, :, ,, oo; limits
of, o:; many Torahs, , , ;;
prophetic abrogation of, :;; rabbinic
abrogation of, :;o, ::o; and reason, ,o;
tvo Torahs, :;, , :; vriting of,

Tosasts, school of, ;

Tosefta, xxxiii
Tovnspeople, :o, :;, ,o,, ,,,
,; and authority to regulate, ::. See
also Kahal
Tradition, xxxix, o, ; authenticity of,
o, ; boundaries of, xxiii; chain of,
:;, ::, :;, ::, :; genres of,
xxxii; and intertextuality, xxii, xxxv,
;; Karaite, ::; legal, :o, ::;,
:,, , oo, o:o,; permissible
diversity of, :
Traditionalism, :
Tyranny, , o; of majority, ::, oo.
8ee also Communal ocers; Kahal,
Kings; Rabbis
!:aooil, xxvi, ::, o; doctrine of, :,;
,,, o, oo:; healing pover of, :,:,
:,,; leadership of, oo; as ruler, oo
!:imt:um (vithdraval), o
Ultraorthodoxy, ::, :,, :, ,
Universalism, :o, :, ,:, o, ;
Venice,
Voluntary association, o, ;o, ;;, :o
Ways of peace (oarlhei shalom), ,
Wisdom, xxii, o:; renunciation of, o:,
o. 8ee also Prophecy; Prudence
1isseus.hajt oes juoeutums, xxv, ;
Witnesses, :; admonition of, in capital
cases, xlviixlix; responsibility of, l;
varning by, ;; vomen as, ;
Yishu:, divisions in, ,
Yishu: meoiui, o
Zionism, ,o, :o:, :, o, oo, :;, ;;
as heresy, :, ::
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