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1 Draft 11/28/17 Not for Circulation Without Author's Permission Constructing Justice: the Selective Use of Scripture in Fo draft 11/28/17 not for circulation without author’s permission Constructing Justice: The Selective Use of Scripture in Formulating Early Jewish Accounts of the Courts (forthcoming HTR) David C. Flatto In the opening pages of his magisterial overview of Jewish law, the late Justice Menachem Elon underscores the venerable pedigree of the Jewish court system, which traces back to the Bible.1 Emphasizing this point upfront rightly draws attention to the notable focus in Jewish discourse on the judicial process. Whereas modern democracies have understood that a commitment to the rule of law requires the establishment of a well-designed judiciary, ancient legal systems primarily stressed substantive law. But the Jewish legal tradition, among others, always focused on process alongside substance. In addition to elaborating legal rules, doctrines and dialectic arguments, the foundational works of Jewish law concentrated on devising structures for administering law.2 Beyond the common ancient procedures of turning to a local sage or elders for a decision, or the nearest Temple for a cultic instruction, biblical literature presents more elaborate judicial schemes.3 Similarly, the Mishnah includes an entire tractate (Sanhedrin) devoted to the organization and function of the courts. Maimonides, who describes the high court in Jerusalem as the core of the Oral Law,4 dedicates a whole volume of his halakhic code to delineating rules of judges and the courts.5 The vivid depictions of the courts in seminal Jewish writings signal their centrality, but the nature of these portraits deserves renewed attention. Elon’s overview implies that literary accounts of the courts reflect legal practice, an assumption shared to varying degrees by much classical scholarship. 6 On some level, he is certainly correct in 1 See Menachem Elon, The Principles of Jewish Law: History, Sources, Principles, trans. B. Auerbach and M. J. Sykes (Philadelphia: Jewish Publication Society, 1994), Vol. 1, 6-10. 2 The primacy of the courts is likewise emphasized in Urbach’s survey of the halakhic system. See Efraim E. Urbach, The Halakha: Its Sources and Development (Ramat Gan: Masadah: Jerusalem: Yam La- Talmud, c 1986), 7-10. See also Shalom Albeck, Law Courts in Talmudic Times, [Hebrew] (Ramat Gan: Bar Ilan University Press, 1980). 3 These will be surveyed below. 4 See Hikhot Mamrim 1:1. 5 See Hilkhot Sanhedrin in Sefer Shoftim. Likewise, both the Tur and Shulkhan Arukh begin Hoshen Mishpat with Hilkhot Dayanim. 6 Elon explicitly cites the work of Gedalyahu Alon. See The Jews in their Land in the Talmudic Age, 70- 640 C.E. (Cambridge, Mass.: Harvard University Press, 1989), 185-252. Additional works include Hugo Mantel, Studies in the History of the Sanhedrin (Cambridge, Mass.: Harvard University Press, 1961), 1-4, 54-101, 303-306 (which surveys much earlier scholarship), and Emil Schurer, The History of the Jewish People in the Age of Jesus Christ (175 B.C.- A.D. 135) (Edinburgh: T&T Clark: 1973-87, Vol. 2: 199-226). For further analysis, see David Goodblatt, “Sanhedrin,” The Encyclopedia of Religion (New York and London, 1987), Vol. 13, pp. 60-63. A similar approach was endorsed more recently by Shmuel Safrai. See, 1 contending that the institution of Jewish courts has existed for centuries. But ascribing biblical and postbiblical accounts to praxis distorts the nature of these passages, and misunderstands their significance. For example, the various descriptions of judicial administration recorded in the Mishnah can hardly be considered historical for several reasons enumerated in recent scholarship.7 Living under the sovereignty of an imperial regime, rabbinic courts at most had limited jurisdiction. Further, various descriptions of the courts within rabbinic literature are contradicted by external and even internal reports. In fact, scattered throughout the rabbinic corpus are statements that indicate that the rabbinic courts were not fully operative. A literary analysis of these writings points to other features that reinforce this conclusion, which have not been adequately stressed to date.8 Mishnaic accounts are written in a schematic and formulaic style, and contain elements that are undeniably utopian. 9 Moreover, the Mishnah contains plural accounts that are mutually inconsistent with one another.10 Finally, these accounts contain a considerable Scriptural or exegetical layer,11 a point I will return to shortly. e.g., “Jewish Self-Government,” The Jewish People in the First Century, Vol. I, ed., S. Safrai and M. Stern (Assen, 1974), 379-80. These studies rely upon rabbinic literature as well as other writings from Second Temple literature, such as Josephus. In fact, much historiography of the courts depends on a range of material from Josephus’s writings, even when their historicity is far from clear. For example, even as meticulous a scholar as Martin Goodman treats the Apion passage discussed below as having empirical value. See Rome and Jerusalem: The Clash of Ancient Civilizations (London: Allen Lane, 2007), 312. 7 The most important revisionist accounts are Joshua Efron, “The Great Sanhedrin in Vision and Reality,” in Studies on the Hasmonean Period (Leiden: Brill, 1987), 287-338; and David Goodblatt, The Monarchic Principle: Studies in Jewish Self-Government in Antiquity (Tubingen: Mohr Siebeck, 1994), 77-130, 232- 276. For a broader treatment of the courts, see Catherine Hezser, The Social Structure of the Rabbinic Movement in Roman Palestine (Tubingen: Mohr Siebeck, 1997), 186-195; and Hayim Lapin, Rabbis as Romans: The Rabbinic Movement in Palestine, 100-400 CE (Oxford: Oxford University Press, 2012), 98- 125. For a measured response to some of the above, see Haim Shapira, “The Court in Yavneh: Status, Authority and Functions,” in Studies in Mishpat Ivri and Halakha: Judges and Judging, [Hebrew] eds. Ya’akov Habba and Amihai Radziner (Ramat-Gan: Bar-Ilan University, 2007). 8 Even the revisionist scholarship noted in the previous note has not adequately noted the exegetical dimension of the postbiblical descriptions of the courts, nor the plurality of underlying Pentateuchal sources which they draw upon. But recent scholarship has begun to take greater notice of the literary dimension of these passages. See, e.g., Ishay Rosen-Zvi, “The ‘Protocol’ of the Yavneh Court: A New Perspective on Tosefta Sanhedrin Chapter Seven,” [Hebrew] Tarbiz 78, no. 3 (2009); Beth A. Berkowitz, Execution and Invention: Death Penalty Discourse in Early Rabbinic and Christian Cultures (New York: Oxford University Press, 2006); Richard Hidary, Dispute for the Sake of Heaven: Legal Pluralism in the Talmud (Providence, RI: Brown Judaic Studies, 2010); and Naftali S. Cohen, The Memory of the Temple and the Making of the Rabbis (Philadelphia: University of Pennsylvania Press, 2013). See also the important earlier work of Weiss cited infra note 106. 9 Efron, “The Great Sanhedrin,” 292 notes examples of the latter. 10 Certain works cited supra note 7 touch on inconsistencies among the various passages, but even a thorough list would understate the point. These are dramatically different templates. See below. See also David C. Flatto, Justice Unbound: Separation of Powers in the Early Jewish Imagination, chapter five (forthcoming). 11 Recent works on the use of Scripture or lack thereof in rabbinic literature include Menahem Kahane, “The Relations between Exegeses in the Mishnah and Halakhot in the Midrash,” [Hebrew] Tarbiz 84, no. 2 Rather than offering positivistic descriptions (a premise which recent historiography has rejected more generally),12 rabbinic and other early postbiblical representations of the courts are better thought of as templates of how to organize justice.13 In these works, one encounters a flourishing of programmatic expositions (including an impressive number and range) of the optimal design of the courts, which no doubt reflects the preeminence of law in the worldview of each author. In other words, while historically less informative, these are vivid expressions of the early Jewish legal imagination, and its fascinating fixation on the architecture of justice. They ought to command our attention as such. A measure of the ahistoric quality of Second Temple and rabbinic accounts of judicial administration is the considerable exegetical strata in these writings. The fact that these accounts are rooted in Scripture reflects that these passages represent idealized models of legal authority. Moreover, these passages selectively cite and adapt Scripture in creatively constructing these models—beginning with the formative threshold decision of which of several relevant Pentateuchal sources on legal authority to follow as a guidepost. A complicating feature of the configuration of legal authority in the Pentateuch is that it records multiple passages relating to this topic, including several descriptions of the supreme judiciary. This repeated motif highlights the salience of this subject matter, but also raises a basic hermeneutic question of how, or if, these sources relate to one another. For the plurality of arrangements found in the Pentateuch are essentially disparate, and establish profoundly different ways of structuring the administration of justice:14 (1) The Mosaic Judiciary: Exodus 18:13-26/Deut 1:9-18—These two parallel passages (which have several important discrepancies but can nevertheless be coupled 1-2 (2016), 17-76; Michal Bar-Asher Siegal, “Uncovering midrash: The Hebrew Slave in the Mekhilta deRabbi Ishmael," Journal of Jewish Studies 68
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