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 (2017), 34-57; and Jonathan S. Milgram, From Mesopotamia to the Mishnah: Tannaitic Inheritance Law in Its Legal and Social Contexts (Mohr Siebeck, 2016). 12 Many scholars have concluded that rabbinic norms, as presented in tannaitic literature, were not operative at the time. See, e.g., Seth Schwartz, Imperialism and Jewish Society, 200 B.C.E. to 640 CE. (Princeton, N.J., 2001), 69-70, 111-13. But there are dissenting views. See, e.g., Ranon Katzoff, “P. Yadin 21 and Rabbinic Law on Widows’ Rights,” Jewish Quarterly Review 97:4 (2007), 545-575. 13 While the several accounts examined below were written in very different contexts, their variances cannot be attributed to different historical practices, but derive from different underlying sources, hermeneutics and ideologies. Still, the different contexts no doubt contribute to their divergent ideologies. Moreover, it is certainly plausible that these ideologies had a secondary impact on historical practice. 14 This list only refers to the more developed Pentateuchal templates. For other arrangements, see, e.g., Bernard M. Levinson, Deuteronomy and the Hermeneutics of Legal Innovation (New York: Oxford University Press, 1997), 110. For a brief overview of biblical sources on judicial administration in their Ancient Near Eastern context, see Raymond Westbrook and Bruce Wells, Everyday Law in Biblical Israel: An Introduction (Louisville: Westminster John Knox, 2009), 35-40. For fuller treatments, see Hans J. Boecker, Law and the Administration of Justice in the Old Testament and Ancient Near East, trans. Jeremy Moiser (Minneapolis, Minn.: Augsburg, 1980); and Raymond Westbrook ed., A History of Ancient Near Eastern Law (Leiden: Brill, 2003).

3 together in this context)15 describe Moses as a supreme legal authority serving atop a hierarchy of associate judges: officers of bands of thousands, hundreds, fifties and tens of people. These officers, who are selected based on a set of distinguishing character traits, are delegated judicial authority over lesser matters, whereas great or difficult matters are presented to Moses.

(2) The Temple Judiciary: Deut 16:18-20/17:8-13—These two complementary passages describe judges and officers serving in every town throughout tribal Israel.16 When a “baffling matter” remains unresolved it is to be brought before the levitical priests and judge who preside in the cultic center, the Temple.

(3) The Elders: Numbers 11:14-17, 24-30—This passage, which is perhaps relevant as well, describes the selection of seventy elders who are endowed with a prophetic spirit. Henceforth, the council of elders will share the burden of leadership with Moses, which arguably includes administering legal matters.

Each of these passages reflect a discrete judicial arrangement:17 The supreme arbiter is a single head in the Mosaic Judiciary; the levitical priests and a judge in the Temple Judiciary;18 or the elders alongside Moses in the Elders passage. Whereas the Temple Judiciary establishes fixed venues with an epicenter in the Temple, the other formations are not anchored in a location. The Mosaic Judiciary contains several tiers; the Temple Judiciary consists of two levels; while the Elders source only depicts a leading body. In the Mosaic Judiciary, great or difficult matters are (immediately?) presented to the supreme arbiter; in the Temple Judiciary, this only transpires when the matter remains unresolved; and in the Elders source, no standard is specified. The sources likely diverge as well on the mode of supreme adjudication. Nowhere does the Pentateuch harmonize or coordinate these disparate accounts (referred to below as the “Pentateuchal judicial sources”).

Early rabbinic, as well as other seminal late Second Temple, depictions of the judiciary were formulated against the backdrop of this biblical legacy. Even though numerous

15 In the Samaritan Bible, Deut 1:9-18 is inserted after Exod 18:24. See Moshe Weinfeld, Deuteronomy 1- 11: A New Translation with Introduction and Commentary (New York: Doubleday, 1991), 140. For further analysis, see Baruch J. Schwartz, “The Visit of Jethro: A Case of Chronological Displacement?: The Source-Critical Solution,” in Nili Sacher Fox et al., eds., Mishneh Todah: Studies in Deuteronomy and its Cultural Environment: In Honor of Jeffrey H. Tigay (Winona Lake, Ind.: Eisenbrauns, 2009), 29-48; Stephen L. Cook, “The Tradition of Mosaic Judges: Past Approaches and New Directions,” in On the Way to Ninveh: Studies in Honor of George M. Landes (ed. Stephen L. Cook and S. C. Winter; Atlanta; Scholars Press, 1999), 286-315; and Joel S. Baden, Rethinking the Supposed JE Document (Ph.D. diss., Harvard University, 2007), 134-41. 16 For their complementary nature, see B. Levinson, Deuteronomy and the Hermeneutics of Legal Innovation, 110-116 17 See also Hanoch Reviv, “The Traditions Concerning the Inception of the Legal System in Israel: Significance and Dating,” Zeitschrift fur die altetestamentliche Wissenschaft 94 (1982), 566-75; and Weinfeld, Deuteronomy 1-11, 139-40. 18 On the reference to, and identity of, the judge, see Rofé, “The Organization of the Judiciary in Deuteronomy,” 92-112; and Weinfeld, Deuteronomy 1-11, 134-141.

4 works from this corpus deem the normative sections of the Pentateuch to be binding,19 given the disparate, or even dissonant, nature of the above sources, they could not simply defer to a canonical arrangement of legal authority. Postbiblical works that build upon the foundation of the Pentateuch had to selectively draw upon biblical sources in constructing their portraits of justice.20

The article below surveys how four seminal early postbiblical works—the writings of Qumran, Josephus, Philo, and the Mishnah—constructed accounts of the judiciary on the foundation of one or more of these biblical passages.21 A comparative survey reveals the substantial scriptural base and exegetical layer that shapes the judicial arrangements preserved in each of their respective expositions. The variances among them, moreover, unfold from decisive hermeneutical choices, beginning with the threshold question of which biblical source to select as a base text. What animates these various choices, in turn, are competing conceptions of the origin and nature of legal authority within a religious tradition that enshrines the role of law.

While these four postbiblical works reflect very different cultures and theologies, a comparison of their respective accounts of legal authority is illuminating both in terms of the ways they diverge and converge with one another. The range of alternate schemes brings what is distinctive in each work’s template of judicial administration into sharper relief. But the differences among them also betrays a crucial commonality. Rather than tracing to different historical practices, the divergences most directly emanate from the different foundational texts and hermeneutic elaborations that shape each account. These judicial paradigms are essentially literary and programmatic in nature.

The goals of this article are thus several: (1) to expose the underlying tension among the Pentateuchal judicial sources which is reflected in their checkered afterlife in a series of seminal postbiblical writings; (2) to explore the rich and varied constructions of legal authority recorded in these postbiblical writings and to probe their jurisprudential underpinnings; and (3) to underscore the literary and programmatic dimension of these writings more generally.

Qumran’s Rule of the Congregation

19 To be sure, not all postbiblical works operate with this assumption (i.e., certain works in Qumran and early Christian writings). See the overview of John J. Collins, “The Literature of the Second Temple Period,” in The Oxford Handbook of Jewish Studies (ed. Martin Goodman; Oxford: Oxford University Press, 2002), 53-78. 20 For an analysis of rabbinic uses of Pentateuchal sources, see David Henshke, “The Number of Judges in Ancient Israel,” The Jewish Law Annual 17 (2007), 27-61. Henshke (p.29) assumes that the Elders source reflects the judicial scheme that is intended for perpetuity. But this is more of an assertion, than an argument. 21 These authors offer profoundly divergent conceptualizations of the biblical and Jewish tradition— apocalyptic, political-historical, naturalistic-philosophical and halakhic—and yet they all strikingly accent the Pentateuch’s normative materials, and underscore the centrality of legal principles. Moreover, they all share the commonality described below.

5 A particularly interesting Qumran text relating to the administration of justice, which builds upon an earlier biblical source, is a passage in the relatively brief Rule of the Congregation (1QSa). Transcribed in the same scroll as the Rule of the Community (1QS), the Rule of the Congregation seems to supplement its content.22 Whereas the Rule of the Community stipulates rules governing the sectarian community in the present, the Rule of the Congregation lays out rules for the future that will bind all of Israel who will join its path in the messianic era. 23 Both scrolls are commonly dated to the Second Century BCE, and are marked by a similar sectarian ideology. The relevant passage appears in a middle section of the Rule of the Congregation, which Charlotte Hempel argues originated as a discrete literary unit that was only later embedded in a messianic framework.24

This section delineates a series of regulations and duties incumbent upon each member of the congregation (“all the armies of the congregation…all native Israelites”) at successive stages of maturity. 25 After prescribing a curriculum and legal instruction for early childhood up until age ten (studying the book of hagy, learning the laws of the covenant, and receiving instruction in the precepts);26 the obligation to join the congregation, marry, testify and proclaim regulations at age twenty; and a mandate to assume a foundational role in the congregation and lead the cultic service of the congregation at age twenty- five;27 the regulations assign judicial responsibilities at the next stage:28

And at thirty years (of age) he shall approach to arbitrate in disputes and ju[dg]ments, and to take his place among the chiefs of the thousands of Israel, the officers of a hundreds, officers of fi[f]ties, [officers of] tens, the judges and the officials of their tribes in all their families, [according to the dec]ision of the sons of [Aar]on , the priests… ] (1QSa 1:15-16, emphasis added).

22 It is also found in scrolls from the fourth cave. See S. Pfann, ‘Cryptic Texts: 4Q249a–z and 4Q250a–j: Introduction’ in Qumran Cave 4: XXVI: Cryptic Texts and Miscellanea, Part 1 (DJD XXXVI; Oxford: Clarendon, 2000). 23 See Jacob Licht, The Rule Scroll [Hebrew] Megillat ha-Serakhim: mi-Megillot Midbar Yehudah (Bialik Institute: Jerusalem, 1965), 241–270; Lawrence H. Schiffman, The Eschatological Community of the Dead Sea Scrolls: A Study of the Rule of the Congregation (Atlanta: Scholars Press, 1989). For a dissenting position, see H. Stegemann, “Some Remarks to 1QSa, to 1QSb, and to Qumran Messianism,” RevQ 17 (1996): 479-505. 24 Hempel further argues that the original core has parallels in the Damascus Code. See Charlotte Hempel, The Qumran Rule Texts in Context: Collected Studies (Mohr Siebeck, 2013), 47-64. But see infra note 34. 25 Elsewhere in Qumran there are parallel lists. See War Scroll (DSW 6:13-7:3). See also CDC 14:6-9. See Lawrence H. Schiffman, Sectarian Law in the Dead Sea Scrolls: Courts, Testimony, and the Penal Code (Chico, Calif. Scholars Press, c1983), 30. 26 See Bilha Nitzan, Philosophy and Practice in the Dead Sea Scrolls: Theology, Wisdom, Law, and Biblical Exegesis: Collected Articles [Hebrew] (Jerusalem: Yad Ben Zvi, 2014), chapter 5. 27 The above characterization follows certain interpretations of these lines. See the works cited supra note 23. 28 The translation is from the Florentino García Martínez, and Eibert J. C. Tigchelaar, The Dead Sea Scrolls Study Edition (Leiden; New York: Brill, 1997), with minor revisions.

6 Mature members of the congregation who reach the age of thirty are ordered to join (or are eligible to join) the judicial ranks, and adjudicate disputes alongside (or following the rulings of) the priests.29

Whereas most of this regulatory scheme is comprised of original materials, the judicial prescript plainly draws on the Mosaic Judiciary source in its paraphrase of Deut 1:15 (see the emphasized words above).30 This same verse resurfaces in the scroll in a related paragraph that describes an assembly convening for legal (or military or advisory) matters. Employing similar terminology, the latter passage also alludes to three of the characteristic of judges that appears in this same biblical source (Deut 1:13, 15 and Exod 18:21):

All the wi[se men] of the congregation, the intelligent and those learned in perfect behavior and the men of valor, together with [the officers of the tri]bes and all their judges, their officials, the officers of thousands, the officers of [hundreds,] of fifties and of tens…(1QSa 1:28-29, emphasis added).31

Magnifying the biblical roots should not obscure the novelty of the scroll’s judicial prescript, which corresponds to its choice of a foundational Pentateuchal source. Although this can be easily glossed over when read in sequence with the other sundry regulations, it is precisely when this prescript is situated within this multi-tiered regulatory framework that its significance emerges.

At early stages of development each child of the congregation studies a preset curriculum; at subsequent phases he joins the congregation; and at an advanced stage each member assumes (or is eligible for) judicial responsibility. Jettisoning more conventional judicial arrangements, the Rule of the Congregation does not assign legal authority to the ruler and his council, or the elders and leading sages. Instead the scroll stipulates that all members of the congregation who reach a certain age are nominated as (at least potential) judges (and serve along with, or following the teachings of, the priestly caste).

This rule embodies an ambitious conception of popular justice that in a certain sense eclipses other popular schemes prevalent in classical law. Athenian law employs a jury system, but presumes no prior legal knowledge of the jurors. Similarly, Roman law relies upon a roster of citizens to serve as iudeces, but they adjudicate based on the facts

29 My reading is in agreement with Moshe Weinfeld, “Judge and Officer in Ancient Israel and in the Ancient Near East,” Israel Oriental Studies 7 (1977): 65; Joseph M. Baumgarten, Studies in Qumran Law (Leiden: 1977), 186; and Henshke, “The Number of Judges in Ancient Israel,” 30, n.11. For a contrary reading, see Licht, The Rule Scroll, 258, 263, and Schiffman, Sectarian Law in the Dead Sea Scrolls, 34- 35. 30 The primary source for this clause is Deut 1:15. This is evident from its final words “the officials of their tribes,” which here also includes the word “officers,” an interpolation from Deut 16:18. The idiom of to “approach to arbitrate in disputes” draws on terminology from Deut 25:1. 31 In this paragraph, the judges with these characteristics seem to be separate from the officers of thousands, etc.

7 alone.32 But according to the scroll’s regulation, each member of the congregation who reaches a mature age must (potentially) serve as a judge after intensively studying the requisite curriculum and living according to the laws of the covenant.

At the same time, this rule also reflects the pervasive centrality of (the revealed sectarian) law for the social identity of the congregation (a foundational trope in sectarian ideology).33 Each member of the congregation becomes increasingly involved in the legal sphere over the stages of his life. First, he receives an early education in the laws and legal instruction. Next, he enters the covenantal community that is committed to adhering to the law. Afterwards, he has a duty to testify and proclaim the regulations. Finally, at a mature stage, he joins (or may join) the judiciary. Legal knowledge is essential for all congregational members, and legal responsibilities are core congregational functions (alongside temple and military service).

The Rule of the Congregation’s extraordinary conception of a popular judiciary—which coheres with the scroll’s vision of an Israelite society forged by a covenantal and intensifying commitment to sacral law34—aligns best with the arrangement advanced by the Mosaic Judiciary. Only this biblical source assembles a judiciary by selecting upstanding judges from the masses that exercise authority over sectors of the population (see Exod 18:21, 25 and Deut 1:9- 15). In contrast, the Temple Judiciary source turns to the cultic heads and a (leading) judge to administer justice, and the Elder source arguably relies upon a leader and a council of elders for a similar function. In searching for a biblical antecedent, the Rule of the Congregation rightly identifies the Mosaic Judiciary as a decisive precursor

In fact, the selective citation and exegesis of the Mosaic Judiciary source in the Rule of the Congregation further accentuates the popular nature of its jurisprudence. Rather than designating outstanding members from the public (as stated in Scripture), the scroll (which does not initially list distinguishing qualifications for the judges) implies that every member of the congregation is (at least potentially) elevated to the judiciary at a mature age. 35 Moreover, the scroll altogether omits mention of Moses (or a single figurehead) leading the judicial hierarchy of officers of thousands/hundreds/fifties/tens. Instead, the scroll focuses upon the organic leadership that is cultivated from the public— i.e., all mature members of the congregation—who exercise judicial power collectively

32 For these reasons parallels that are sometimes drawn are inexact. See, e.g., Yonder M. Gillihan, Civic Ideology, Organization, and Law in the Rule Scrolls (Leiden; Boston: Brill, 2012), 455-87. On Athenian juries, see Adriaan Lanni, Law and Justice in the Courts of Classical Athens (New York: Cambridge University Press, 2006). On Roman iudeces, see David Johnston, Roman Law in Context (Cambridge, Mass.: Cambridge University Press, 1999). 33 See Aryeh Amihay, Theory and Practice in Essene Law (Oxford: Oxford University Press, 2016), and the review of prior scholarship on pp. 3-9. 34 This especially fits with the opening of 1QSa and its expansion of the community to all of Israel (pace Hempel), although an enduring tension in the scroll between parity and hierarchy continues to be manifest. See John J. Collins, Beyond the Qumran Community: The Sectarian Movement of the Dead Sea Scrolls (Grand Rapids, Mich.: Eerdmans Pub., 2010), 77-78. 35 The broad qualification of all congregational members of a certain age as judges sheds light on the disqualification of senile judges specified 1QSa 1: 20-21.

8 alongside the priests36 (the latter evidently serve as a superior legal authority, perhaps in lieu of Moses).37

Notably, the officers of thousands/hundreds/fifties/tens are mentioned in several other Qumran scrolls, indicating the importance of the Mosaic Judiciary source in this corpus.38 Some references speak only of the underlying groups of thousands/hundreds/fifties/tens (not the supervising officers),39 as subdivisions of the entire community. It is plausible that in the Rule of the Congregation, as well, the division of the congregation into sectors precedes the classification of the judicial officers. The selection of these officers, in turn, draws from sectors of the population.

Several of the Qumran references to officers of thousands/hundreds/fifties/tens also clearly appeal to the military function of this distribution, which was a way of arranging military legions in antiquity.40 Recall that Scripture mandates that the officers be “men of valor (hayil)” (Exod 18:21, 25). In the Rule of the Congregation, likewise, where members of the congregation have military as well as judicial responsibilities, the citation of the Mosaic Judiciary source may be a way of eliding these congregational roles.41 In this vein, the later paragraph in the Rule of the Congregation that refers to an assembly convening for legal or military purposes aptly invokes the epithet of “men of valor.”

In sum, the original template for judicial administration that is presented in the Rule of the Congregation relies upon the Mosaic Judiciary source (as recorded in Deut 1:9-18), while omitting the leading judicial role of Moses (and to a certain extent the elitist criteria) as described in the biblical verses. According to this scroll, the administration of justice is a popular duty that contributes toward the construction and development of a congregation of Israel dedicated to upholding (the revealed sectarian) law. Divided into sectors of thousands/hundreds/fifties/tens, the congregation supplies mature officers, who (are eligible to) assume judicial (as well as military) responsibilities, alongside the priests.

Josephus

Josephus underscores the foundational nature of law within the Jewish polity in his writings, an emphasis which assumes greater urgency in the wake of the destruction of

36 The exact relationship between these two judicial bodies is not entirely clear. 37 This too, then, is a kind of exegetical addition. See also 1QS 5:21-22. The priestly priority is also manifest in 1QSa 1:2, 2:3, 12-13, 19-20. See, generally, Joseph L. Angel, Otherworldly and Eschatological Priesthood in the Dead Sea scrolls (Brill, 2010). 38 See 1QM 4:1-5; 1QS 2:21-3; CDC 13:1-2; 11Q19 57:4-5, 58:1,4. See also Henshke, “The Number of Judges in Ancient Israel,” 29, n.10. 39 1QSa 1:21-22, CDC 13:1-2. 40 See, e.g., 1 Mac 3:55. See also Weinfeld, “Judge and Officer in Ancient Israel and in the Ancient Near East,” 65-88; and Deuteronomy 1-11, 137-141. 41 This also occurs in various ways elsewhere in the scrolls. See, e.g., 1QSa 1:25-29, CD 13:1-4.

9 the Second Temple.42 Accordingly, he ascribes to the judiciary a vital role in the Jewish constitution (politeia). His two main accounts of legal authority in Antiquities and Apion, which are derivative from Scripture, carefully expand upon underlying Pentateuchal sources in projecting the judiciary’s leading position. In contrast with Qumran’s Rule of the Congregation, however, Josephus’s accounts primarily rely on the Temple Judiciary source, which I will evaluate after surveying his treatment of the other Pentateuchal sources.

In the third volume of Antiquities, Josephus’s history of Jewish civilization which he authored in Rome in the late first century CE, Josephus summarizes the Exodus narrative up until Sinai (based upon materials from Exod 1-18). Here he restates, and subtly reorients, the Mosaic Judiciary source (Ant. 3.66-74, based upon Exod 18). It is significant that Josephus treats this biblical chapter within a narrative section and never suggests that it establishes the perennial judicial system. Further, he does not incorporate or cross-reference this material in his subsequent restatement of the laws, a point I will return to below.43

After describing the reunion of Jethro and Moses,44 Josephus records Jethro’s advice concerning the delegation of judicial authority to inferior officials (which he proclaims to be wise advice worthy of public recognition). Josephus interpolates various minor changes into his rendition and also accentuates a couple of notable exegetical motifs. First, he describes Moses as not only retaining responsibility for “great” matters, but also tending to the “well-being of the multitude,” through his intensive service of God.45 Presumably, this unique mode of leadership is difficult to replicate as a lasting model of authority.

Moreover, throughout the episode Josephus stresses that the hierarchical arrangement designed by Jethro has a military function and purpose. 46 As Louis Feldman notes, Josephus twice refers to Moses in these passages as a “general” (strategos, see Ant. 3.65, 67).47 Further, he revises and reformulates the plan for selection of subordinate officers:

Following my advice concerning worldly matters you will muster your army with provisions and you will appoint designated leaders over groups of ten thousand of them, then over thousands, and after them you will subdivide them into five hundred and again into hundred and then into fifties. You will appoint leaders

42 See David C. Flatto, “Theocracy and the Rule of Law: A Novel Josephan Doctrine and its Modern Misconceptions,” 28 Dine Israel 5 (2011). 43 Contrast, for example, the way Josephus records Passover laws in Ant. 3.248 based upon Exodus 12. Still, Josephus’s privileging of the Mosaic Judiciary source as recorded in Exod 18 (as opposed to Deut 1) may also contribute to its lack of influence on his restatement of the laws. 44 Ant. 3.63-65. 45 Ant. 3.68-69. 46 As described above, the military dimension of this judicial arrangement is already manifest in the biblical verses, but Josephus amplifies it considerably in his restatement. 47 See Feldman, p.248, n.141. Steve Mason, Judean Antiquities 1-4 trans. and commentary Louis H. Feldman (Leiden: Brill, 2000). The translations above are from this edition.

10 over them who will subdivide and arrange them in groups of thirty, in groups of twenty, and in groups of ten…. (Ant. 3:70, emphasis added).

Referring to a popular army, Josephus invokes new numerical subdivisions that arguably correspond to figures utilized in Roman military encampments. 48 Capping off this section, Josephus places a final sentence in the mouth of Jethro regarding the distinct advantages of his hierarchical plan, which includes (albeit indirectly) a military benefit:

Thus both goals will be achieved: The Hebrews will obtain justice, and you, by serving God, will make Him more benevolent to the army (Ant. 3.72).

Incorporated into a larger narrative setting, the Jethro episode is deliberately laid out by Josephus after the preceding paragraphs (Ant. 3.40-61) that describe the Israelite war with the Amalekites (based upon Exod 17:8-16). There, Josephus expands upon the scriptural narration of the battle, and projects Moses as a military leader who devises a successful war strategy.49 In the aftermath of the war, Jethro and others admire the general who led Israel in their recent triumphs:

And they honored with praise their general (=Moses), on account of whose excellence all had happened for them as desired. Ragouelos (=Jethro) enlarged in details many praises of the multitude because of their gratitude to Moses, while he marveled at Moses because of his gallantry in saving his friends (Ant. 3.63-65).

In this rendition of Exodus 17-18, Josephus seamlessly transitions from one military chapter to the next.

So Josephus does record the hierarchic arrangement of officers of the Mosaic Judiciary source (Exod 18), but within a narrative section. In fact, he skillfully stitches this unit into his restatement of the Exodus narrative. The legacy of the Mosaic Judiciary source for Josephus includes the unique nature of Moses’ leadership and divine service; Jethro’s sage advice and its public acknowledgement;50 and the advantages of a military-judicial arrangement (themes which resonate in the historical context in which he is writing).51 The Mosaic Judiciary source, however, does not serve as a “constitutional” blueprint of a permanent judiciary.

In the continuation of Antiquities 3, Josephus tracks the narrative of the book of Numbers. One should recall in this vein Josephus’s declaration in the opening of

48 See Feldman, p.248, n.147. The leaders evidently act as commanders. 49 According to the plain sense of the biblical verses, Joshua leads the battle (with the possible allusion that God truly wages the war), and there is no hint that Moses is directly involved in any aspect of warfare. See 3.50. See also 3.61-62. 50 See Ant. 3.73-74. It is notable that even though Jethro’s scheme is singled out as sage advice, it is not incorporated into the constitutional scheme. 51 The first two themes relate to the singularity of the Jews, alongside the universality of wisdom, a tension that is manifest throughout Josephus’s writings and life. The third boasts of the past military prowess of biblical Israel, as well as the conditions of its success, which has added poignancy on the heels of the crushing defeat that the Jews recently endured.

11 Antiquities that he will give a comprehensive and accurate restatement of the Torah.52 Yet when he comes to Num 11 (Ant. 3:295-300), Josephus excludes entirely the verses from the Elders source regarding the seventy elders.

It is not obvious what motivates this editorial omission. Perhaps this biblical chapter’s presentation of prophecy or the divine spirit clashes with Josephus’s perspectives on these matters. 53 Alternatively, this chapter’s insinuation of the inadequacy of Mosaic leadership may detract from Josephus’s portrayal of Moses as an ideal leader. Notice how even in the portions of this chapter that Josephus records (concerning the complaints of the ravenous masses), he refuses to ascribe skepticism and incredulity to Moses. On the contrary, he bolsters Moses’s reputation and displays Moses over the course of this trying episode as a steadfast and resolute leader.54 According to Josephus, Moses remains unwavering and devout throughout the entire tenure of his consummate leadership. Lastly, perhaps Josephus recognizes the incongruity of the council of seventy with the judicial model he espouses in the legal sections of Antiquities.

In the present context, the main point worth emphasizing is that Josephus clearly did not think that the councilor model was important enough (in a normative or any other sense) to register it here. Likewise, Josephus never cross-references the Elders source in the legal sections of Antiquities. Interestingly, in Josephus’s other works he does refer to a contemporary council of seventy (see Jewish War 2.570-71 and the parallel passage in Life 79), which makes its omission in Antiquities even more pronounced.

The main section in Antiquities dedicated to the judiciary appears in the latter of two lengthy units (recorded in Ant. 3 and 4) where Josephus summarizes many of the norms of the Torah.55 Whereas the first unit (Ant. 3.224-286, recorded following Sinai and the laws of the tabernacle) 56 is primarily dedicated to laws of purity and sacrifices and loosely follows the tone and order of Scripture, 57 the second unit (Ant. 4.196-301, recorded during the fortieth year in the desert) is a discretely crafted presentation of civil laws (drawn from Exod 20-23, Deuteronomy and other scriptural cross-references).58 Josephus emphasizes repeatedly the importance of this latter set of laws that form the “constitution” (politeia) of the Jews and are vital for their political welfare going

52 See, e.g., Ant. 1.17. See also Apion 1.42. 10.218, and his introduction to the laws of the polity in Antiquities 4.196-197. 53 Josephus’s own view is that prophecy is not foreclosed, whereas this episode may have the opposite connotation. See Jonathan Klawans, Josephus and the Theologies of Ancient Judaism (Oxford; New York: Oxford University Press, 2012), 160, nn.100, 101. See also Christopher T. Begg, “Two Ancient Rewritings of Numbers 11,” Revista Catalana de Teologia 32 (2007 [appeared 2008]) 299-317. 54 See Ant. 3.297-8, and compare to Num. 11:10-15, 19-20, 21-22. See also Ant. 3.265-268. Painting Moses in a heroic light fits well with Josephus’s project of authoring an epic history of the Jews. 55 See David Nakman, “The Halakhah in the writings of Josephus” [Hebrew] (Ph. D. diss. Bar Ilan University, 2004), 62-164. 56 Sinai is Ant. 3.75-94; the Tabernacle laws are Ant. 3.95-223. 57 The language is descriptive. The materials are a selection of commandments mainly from Lev 1-Num 7. 58 The second unit also includes rationales for numerous commandments. See Nakman, Supra note 55.

12 forward.59 In this context, Josephus presents the laws of the judiciary, based exclusively upon the Temple Judiciary source.60

Beginning with Deut 16:18, Josephus in Ant. 4.214 paraphrases the biblical mandate of placing judges and officers in each town gate by stating that each city should be ruled (archetosan) 61 by seven men (presumably the judges), and two Levite assistants (presumably the officers).62 Parenthetically, a court of seven judges is also mentioned by Josephus in Ant. 4.287 in his restatement of Exod 22:7 (adjudicating a theft claim involving a bailee), where the verse instructs the defendant to “appear before God.” By this substitution Josephus implies that seven judges are a standard tribunal.63

Supplementing Ant. 4.214, the next paragraphs (Ant. 4.215-217) draw on the adjacent verses Deut 16:19-2064 to underline the honor due to judges, the ban on bribery, and the duty to judge with integrity. Immediately after (Ant. 4.218), Josephus skips over Deut 16:21-17:7 that relates to unrelated topics and addresses the central judiciary of Deut 17:8-13, i.e., the continuation of the Temple Judiciary source. In Josephus’s rendition, the two complementary passages of the Temple Judiciary source (Deut 16:18-20 and 17:8-13) merge when the municipal judges (presumably including the Levites) present unresolved cases to the higher judges who preside in the Temple:

If the judges do not understand how to decide about matters that are lined up before them—and many such occurrences befall men—let them send the case up intact to the holy city and let the high priest and the prophet and the council of elders (gerousia) come together and decide what seems best.

In Josephus’s restatement, “the levitical priests and judge” of Deut 17:9 are rendered as the high priest, prophet and gerousia, a significant elaboration. This triad, as Sara Pearce has persuasively argued, parallels the successors of Moses described elsewhere in Antiquities:65 Eleazar the High Priest, Joshua the Prophet, and the gerousia. Just as the tribunal of seven is described as ruling locally, the central judiciary is comprised of leading officials. A proximate passage (Ant. 4.224), discussing the optimal form of government, brings to light the full significance of this identification. Josephus there hails an aristocracy as far superior to a monarchy, and makes clear that aristocratic officials— by which he means some of the same triad of leaders—are to govern by administering

59 See the discussion and notes in Flatto, Justice Unbound, 181-186. 60 Josephus in a sense had to draw upon the Temple Judiciary source in his account of legal authority, given the structure of Ant. 4. 196-301, but it is notable that he did not also incorporate the other Pentateuchal sources, evidently due to their incompatibility. 61 Josephus notably conflates legal and political authority. See Flatto, “Theocracy and the Rule of Law,” which explores this phenomenon, and its historical context. 62 See 2 Chron 19:1, 34:13 and Neh. 8:11. 63 See Jewish War 2.570-1, where these tribunals also surface in a historical context, implying their enduring functional role. See also Ant. 11.192. 64 As well as Exod 22:27. 65 Ant. 4.186. See also Ant. 4.165 and 4.311 and 9.4. See Sarah J. K. Pearce, The Words of Moses: Studies in the Reception of Deuteronomy in the Second Temple Period (Tubingen: Mohr Siebeck, 2013), 120-141.

13 God’s laws. The stakes of the construction of the central judiciary are now more evident. More than an adjudicative organ, it is the central sovereign body.

The judicial scheme of Ant. 4.214-218, then, presents an important part of Josephus’s “constitutional” blueprint, which revolves around rule by law. By conceptualizing sovereignty in this manner Josephus formulates a vibrant political vision which can flourish even in present circumstances. Josephus deliberately introduces this section with a separate norm (Deut 31:10-13, 6:7-9) that accents the centrality of law, and follows it with other legal procedures (the evidentiary rules of Deut 17:6, 19:15-19). 66 He comprises its core by relying upon, and linking, the main passages of the Temple Judiciary source, with no recourse to the other Pentateuchal sources.

A similar reliance upon the Temple Judiciary source is evident in Josephus’s description of legal authority in Against Apion (an impassioned defense of Judaism against its gentile critics), even as the judicial mechanics are amended in light of the novel political- theological conceptualization of this later work. Here, Josephus famously revises his characterization of the optimal regime, now labeling it a theocracy (not an aristocracy)— the rule of God, which for Josephus means the rule of God through sacral laws. 67 Accordingly, Josephus emphasizes the sovereignty of God, the centrality of God’s Temple,68 the legal authority that is exercised by God’s priests as supreme officials, and the supremacy of sacral law:

…What could be finer or more just than [a structure] that has made God governor of the universe, that commits to the priests in concert the management of the most important matters, and in turn, has entrusted to the high priest of all governance of the other priests?...That involved closer supervision of the law and of the other life-habits; for the priests have been appointed as general overseers, as judges in disputes, and with responsibility for punishing those condemned…He (=the high priest), together with the other priests, will safeguard the laws, will adjudicate in disputes, and will punish those who are convicted. Whoever disobeys him will pay a penalty as if they were sacrilegious to God himself (Ag. Ap. 2.184-89). 69

Reworking his Antiquities scheme, Josephus here interprets the Temple Judiciary source70 (and other Scriptural verses) as establishing a theocratic system of divine law

66 See Ant. 4.210-11; and 4.219-2.223. 67 See Ag. Ap. 2.164-166ff. For an analysis, see Flatto, “Theocracy and the Rule of Law.” 68 In both Ant. 4 and Ag. Ap. 2 Josephus emphasizes the centrality of the Temple, even as these works are edited well after its destruction. See Seth Schwartz, Josephus and Judean Politics (Leiden; New York: E.J. Brill, 1990), 44. It seems that for Josephus the Temple remained a central fixture in his political vision and social imaginary. It is also plausible that he wishes to emphasize to the Romans the Temple’s ongoing importance for the Jews. See also J.W. 6.241. 69 See also Apion 2.193-194. 70 The reference to the high priest and priests is an allusion to Deut 17:9 (compare to Philo’s interpretation of this verse discussed below). Notably, the last line contains a reference to the punishment recorded in Deut 17:12, which is omitted from Ant. 4.218. See also Pearce, The Words of Moses, 306-326.

14 that is administered by the high priest and priests (a manifestation of Josephus’s priestly orientation).71

In sum, in both Antiquities 4 and Apion 2 the fundamental role of law and its administration derives solely from the Temple Judiciary source. This source coheres with, and shapes, Josephus’s jurisprudence in these respective works, notwithstanding their different contours. In Antiquities, Josephus builds upon the Temple Judiciary source to articulate a vision of a centralized judiciary playing a principal role within the polity. Specifically, Josephus describes a two-tiered judiciary comprised of municipal tribunals with initial jurisdiction and supreme officials, presiding in the Temple, to adjudicate hard cases. These officials are among the aristocratic leaders that Josephus prefers as “constitutionally” superior to the monarchy. Perfecting his conception of the best regime and its nexus to lawful order in Apion, Josephus introduces a novel taxonomy to characterize the Jewish polity as a theocracy. Here the dominant motif of God’s rule through law becomes paramount, as sacral priests serving in the Temple act as the mediators of divine law. In the shadow of the Temple’s destruction, Josephus evokes the symbol of the Temple, affirms the stature and role of the priesthood, and most significantly, constructs a Jewish polity on the foundation of God’s laws.

Philo

In contrast with the account of legal authority in Qumran’s Rule of the Congregation that relies exclusively upon the Mosaic Judiciary source and Josephus’s writings that primarily rely upon the Temple Judiciary source, Philo’s Special Laws, a philosophical- exegetical exposition of Pentateuchal norms written earlier in the first century CE in Alexandria, presents a highly original treatment of judicial administration that builds upon more than one source.

I have offered an extensive analysis of Philo’s Special Laws 4:151-192 elsewhere.72 Here I wish to focus on Philo’s conception of legal authority that is expressed in these sections, and the exegetical puzzle that is posed by his use of Pentateuchal sources. In an important excursus (151-187), Philo offers a glowing appraisal of the monarchy (or rulership),73 which is built upon a careful exegesis of Deut 17:14-20 (i.e., the verses about kingship that immediately follow the verses of the Temple Judiciary source). While the plain sense of Scripture betrays skepticism toward the king, and contains no positive declaration of

71 The import of the Temple Judiciary Source in Antiquities revolves primarily around the idea of a steadfast rule by law (administered by leading officials), rather than a hallowed cultic process rooted in a specific site, and in Apion this emphasis is even more pronounced. The core point is God’s rule through the eternal laws, where (now only) the priests serves as mediators. At the same time, the ongoing significance of the priesthood is evident throughout Josephus’s oeuvre. See, e.g., James S. McLaren, “Josephus and the Priesthood,” in A Companion to Josephus (ed. Honora Chapman and Zuleika Rodgers; Oxford: Wiley Blackwell, 2016). 72 See Flatto, Justice Unbound, chapter two. Translations below are based upon F.H. Colson and G.H. Whitaker, Philo, with an English Translation (The Loeb Classical Library: London, New York: Heinemann; Putnam, 1929). 73 Philo primarily uses the Greek word archon in this excursus, based on the Septuagint translation of this passage. At times, he uses the word basileos (e.g., 164, 168).

15 monarchic powers or responsibilities,74 Philo echoes themes of Hellenistic kingship, and extols the king as the ideal ruler. In particular, Philo invokes a Pythagorean idea that depicts the king as a living embodiment of the law (nomos empsychos), with a supreme role of administering laws.75

Singling out the king as the principal legal authority finds no support in the verses of the Temple Judiciary source that are recorded in the same biblical chapter. As noted, they ascribe legal authority to the “levitical priests and the judge” presiding in the Temple, not the king.76 Philo therefore must anchor his depiction of royal justice in other Scriptural passages. Among the Pentateuchal judicial sources enumerated above, Philo relies upon the Mosaic Judiciary source77 to fill out his sketch:

The person who has been judged worthy to fill the highest and most important office (=the king)78 should choose lieutenants to share with him the duties of governing, giving judgment, and managing all the other matters which concern the public welfare…For there was a time when Moses himself arbitrated questions of justice, laboring from morning till night, but afterwards when his father-in-law arrived and observed the vast burden of affairs which oppressed him though the perpetual flood of persons who had questions to settle, he gave the excellent advice that Moses should choose delegates to judge the smaller matters and keep himself in reserve for the greater and thus allow himself time to rest… (Special Laws 4.170-174).

In appealing to the Mosaic Judiciary source, Philo focuses upon Moses’s position atop a hierarchy of judges, while the Rule of the Congregation adduces the same source to describe its popular base. In Philo’s rendition, Moses—a paradigmatic royal ruler (a motif which Philo elaborates upon in Life of Moses)—sets up a judiciary (at the advice of Jethro),79 where he addresses supreme matters and subordinate judges adjudicate inferior matters. 80 The royal judiciary mirrors this structure according to Philo, as the king presides over a network of magistrates.

In terms of the other Pentateuchal judicial sources, Philo makes no mention of the Elders source in this context. This makes a good deal of sense. A conciliar model of elders is a horizontal arrangement that does not distinguish a single monarchic figure.

74 See, e.g., Jon D. Levenson, Sinai and Zion: An Entry into the Jewish Bible (San Francisco: Harper and Row, 1987), 190-193; Moshe Greenberg, Studies in the Bible and Jewish Thought (Philadelphia: Jewish Publication Society, 1995), 54. 75 See John W. Martens, One God, One Law: Philo of Alexandria on the Mosaic and Greco-Roman Law (Boston, Brill Academic, 2003), 31-66. 76 See Bernard Levinson, “The Reconceptualization of Kingship in Deuteronomy and the Deuteronomic History’s Transformation of Torah,” Vetus Testamentum 4 (2001): 511-34. 77 He relies upon the version of Exod 18. 78 See 151ff, where Philo describes the method of choosing the king. 79 See Moses, 173–75, where Jethro’s advice is described as “excellent advice” and “truly valuable advice.” However, his advice is treated in very different ways elsewhere. See Drunkenness, 36–40 and Names, 103–05. Moreover, as Louis Feldman points out, this episode is absent from the Life of Moses. See Studies in Josephus’ Rewritten Bible (Leiden: Brill, 1998), 41–43. 80 They also assist in governing.

16

What Philo does with the Deut 17:8-13 verses of the Temple Judiciary source that speak of the levitical priests and judge, however, is at first blush more problematic. While Philo systematically interprets verses from Deuteronomy 17 in sections 4.151ff, he initially bypasses Deut 17:8-13 (the Temple Judiciary source). Only after concluding his treatment of kingship does Philo refer to these verses about the judiciary—which I will return to shortly—but not as part of his depiction of royal authority and justice.81 Philo thus inverts the sequence of Deuteronomy 17, expounding upon the monarchy verses (17:14-20) before restating the verses of the Temple Judiciary source. Further, during his excursus on kingship Philo excludes the only explicit cross-reference to officials enumerated in the Temple Judiciary source. Namely, when Philo expands on the mandate that the ruler transcribe the summary of the law (Deut 17:18) he omits the latter clause of the biblical verse, “in the presence of the levitical priests.” 82 In Philo’s rendition, the king is never subordinated to the levitical priests (who have yet to be introduced or even referenced). On the contrary, the ruler’s singular sovereignty and independent jurisdiction—anchored in the Mosaic Judiciary source and other texts—are firmly established.

As the plain sense of Deuteronomy 17 sharply distinguishes between monarchic and judicial powers, Philo of course has good reason to circumvent Deut 17:8-13 in depicting a royal judiciary. But presumably he cannot simply ignore seminal verses from the same chapter he is elucidating that speak explicitly about judicial power. Philo’s novel understanding of the king’s commanding legal authority necessarily raises the hermeneutic question of how he explains the contrary implications of the verses of the Temple Judiciary source (Deut 17:8–13) that identifies a different set of supreme judges.

When Philo finally cites the verses of the Temple Judiciary source in the next section of the Special Laws (188–192), he seems to exacerbate matters further. Describing how obscure legal matters that are beyond the grasp of local judges should be addressed by supreme judicial authorities, Philo restates Deut 17:9 (“then you shall immediately go up to the place that the Lord your God will choose, where you shall consult with the levitical priests and the judge who is in office in those days”) by interpreting the “levitical priests” as the priests, and “the judge” as the high priest:83

“…he (=the local judge) should decline to judge the cases and send them up to more discerning judges. And who should these be but the priests, and the head and leader of the priests?”

Failing to incorporate the king into his account, Philo never indicates how his conception of priestly supreme justice coheres with his expanded notion of kingship and royal

81 In fact, Philo cites Deut 16:19–20 in establishing the king’s legal role, which magnifies the initial omission of Deut 17:8–13, since these verses are linked. See Alexander Rofe, Mavo le-Sefer Devarim [Hebrew] (Jerusalem: Akademon, 1988), 75. 82 Spec. Laws 4:160. 83 Likewise, elsewhere (Special Laws 3.31–36) Philo describes the high priest as the supreme judicial authority.

17 justice. In section 151–187, Philo describes the king as the leading judicial official, and relying on the Mosaic Judiciary source, depicts the royal ruler as the head of the judicial hierarchy. But in the very next section 188–192, Philo, relying on the Temple Judiciary source, describes the high priest and priests as the supreme judicial authorities. When discussing royal justice, Philo never refers to a priestly role, and when discussing priestly justice immediately after, Philo never refers back to the king’s role. Beyond raising an exegetical question (which arises from the tension between the Mosaic Judiciary source and the Temple Judiciary source), Philo’s excursus suffers from an internal inconsistency: How do these two juxtaposing passages in the Special Laws fit together?

The exegetical key to understanding Philo’s treatment of monarchy, priesthood and the judiciary is to recognize that Philo differentiates between royal and priestly justice, or, between the Mosaic Judiciary source and the Temple Judiciary source. While the monarch has a leading judicial rank according to Philo, royal justice is set apart from priestly justice, which is led by the high priest. Based upon a highly original exegesis of Scripture, Philo here advances a novel judicial scheme comprised of two principal legal authorities, each with distinct posts.84

A careful reading of the respective passages in the Special Laws further suggests the different nature of each one of these supreme judicial roles, and the rationale behind the discrete assignments to the high priest (and priests) and king. The later section (188– 192) openly addresses why the high priest and priests resolve the most difficult legal matters that confound local judges. As Philo explains, the priests, who are especially punctilious about understanding and upholding God’s laws (not brooking even slight errors), and additionally enjoy unique clairvoyance due to their prophetic capacities (which they exercise in the Temple), are best equipped to resolve the most vexing legal matters.

In the earlier passage (169–175), where Philo identifies an alternate supreme judge, the royal ruler, Philo notably describes a different set of challenging matters that are referred to him for adjudication involving “great” questions (a term which appears in Exod 18:22).85 Defining this word explicitly in the course of his comments, Philo states:

And great (megalos) questions must not be understood, as some think, to mean cases where both the disputants are distinguished or rich or men in high office but rather where the commoner or the poor or the obscure are disputing with other more powerful, and where their one hope of escaping a fatal disaster lies in the judge (Special Laws 4.172, emphasis added).

That is, a “great” matter is where there is a gap in the social standing of the parties, which can lead to an abuse of justice. Such a “great” matter requires the oversight of a supreme figure (in an extraordinary homiletical flourish Philo describes how God judges the

84 This highly original dual scheme only has loose parallels in other legal system. See a discussion in Flatto, Justice Unbound, 73-75. 85 See Septuagint ad loc, which uses the term hyperogkon for “great” and brachea for “small” matters. In verse 26 it uses hyperogkon for “difficult” and elaphron for “small” matters.

18 “great” matters of Israel, who are routinely in a lowly position).86 By homing in on the class of “great” matters that fall under the ruler’s (or Moses’s) supreme jurisdiction, Philo invites a contrast to “difficult” matters referred to in other relevant verses (Exod 18:26, Deut 1:17, and perhaps sharing an affinity to the “baffling matter”87 described in Deut 17:8)88—a distinction noted in certain later rabbinic texts.89 Apparently, Philo likewise distinguishes between “great” matters and “difficult” matters, identifying two discrete kinds of supreme legal matters that are to be adjudicated at the highest ranks. Philo’s further teaching about the makeup of the supreme judiciary, however, has no parallel in rabbinic literature.90 According to Philo, “difficult” matters (which cannot be resolved locally) are directed to the high priest and priests, who are punctilious and prophetic, and are therefore qualified to be the leading jurists. In contrast, “great” matters, which do not pose a substantive challenge but have high social stakes,91 are to be handled (perhaps as a matter of original jurisdiction) by the ruler, whose imposing presence brings stability to a vulnerable situation and who has the standing to declare a definitive resolution.

If the Rule of the Congregation’s account of legal authority builds upon the Mosaic Judiciary source; and Josephus’s accounts rely upon the Temple Judiciary source; Philo anchors his jurisprudence in both sources, maintaining that different kinds of legal challenges are to be adjudicated in distinct venues.

Mishnah Sanhedrin

It is worth briefly considering later rabbinic depictions of legal authority recorded in the Mishnah (compiled at the end of the second century CE) in comparison with the Second Temple works evaluated above.92 In this context, I will limit my focus to two separate passages in tractate Sanhedrin, which is a composite and layered work in contrast with the sources discussed above. Examining the influence of the Pentateuchal judicial sources on these passages sheds new light on the Mishnah’s varied representations of the high court, and points to further lines of inquiry.

86 See Spec. Laws 4.179. Philo’s conception of the jurisdiction of a supreme legal authority over “great” matters shares a loose analogy to modern constitutional ideas of judicial review and the doctrine of “strict scrutiny,” which emphasizes the court’s heightened mandate to protect the vulnerable legal rights of minority groups. 87 Alt. translation of the biblical clause is “If you are baffled by a matter.” 88 Perhaps Philo focuses on the “baffling matter” alluded to in Deut 17:8, and contrasts these with the “great” matters referred to in Exod 18:22. 89 For example, in the Talmud these two terms are either interchangeable adjectives for difficult matters, or refer to two distinct grounds for the Sanhedrin’s jurisdiction, one for difficult matters, the other for great matters, understood unlike Philo as matters involving an eminent litigant. See b. Sanh. 16a. See also Mordechai Sabato, A Yemenite Manuscript of Tractate Sanhedrin and its Place in the Text Tradition (Yad Ben-Zvi, 1998), 47-48. 90 In b. Sanh. 16a the Sanhedrin adjudicates supreme legal matters (the only debate is whether its jurisdiction covers one or two kinds of supreme legal matters). 91 To give a modern analogy, think of litigation that is fraught with socio-political consequences, but where the actual legal issue in dispute is relatively straight forward. 92 Jacob N. Epstein argues that the first source analyzed below dates back to Temple times, but this is highly questionable. See Introduction to Tannaitic Literature, [Hebrew] (Jerusalem: Magnes, 1957), 56-7, 418. Hanoch Albeck implies that these descriptions contain historical data. See Shishah Sidre Mishnah Masekhet Sanhedrin (Jerusalem: Mosad Bialik, 1953), 163.

19

The scriptural backdrop plays an uneven role in two distinct accounts of legal authority recorded in Mishnah Sanhedrin. In one passage, a single Pentateuchal source shapes the entire judicial scheme. Delineating capital crimes that warrant a specific mode of execution, m. Sanh. 11:2-4 details the transgression and punishment of the “rebellious elder,” a sage who issues a religious instruction that contradicts the binding ruling of the supreme tribunal. Along the way (in the second paragraph), the Mishnah depicts the procedure for resolving unsettled legal questions by way of a network of leading tribunals:93

The elder who rebels against the court: It is written, “If there arises a baffling matter, between blood and blood, and between plea and plea, etc. (Deut 17:8).”

There were three courts in this area: one at the opening of the Temple Mount, one at the opening of the Temple Court, and one in the Chamber of Hewn Stone. They come to the court at the opening of the Temple Mount, and he (the rebellious elder) says, ‘Thus have I expounded, and thus have my colleagues expounded….’ Then if they had heard any tradition they told them. If not, they come to the court which is at the opening of the Temple Court … If not, both courts went to the Great Court in the Chamber of Hewn Stone, whence the Law (Torah) spreads to all Israel, as it is written, “From that place which the Lord shall choose (Deut 17:9).”

If he (the rebellious elder) returns to his city…he is only culpable if he instructs to act, for it is written, “The Man that acts intentionally, etc. (Deut 17:12)”….

The rebellious elder was not put to death by the court of his own city … for it is written, “All the people shall hear and fear (Deut 17:13)”…

In an unusual string of Scriptural citations, the Mishnah cites to Deut 17:8, 10, 12 and 13. Indeed, the entire passage is formulated against the backdrop of the Temple Judiciary source.94

According to the Mishnah, unresolved legal questions—the “baffling matter” of Deut 17:8—of unspecified subject matter—the same verse outlines a wide range of topics— which are debated among the judges in the municipal courts—the judges in each and every town specified in Deut 16:18—are brought forward to the central judiciary.95 As the local judges head toward the center, they (literally and figuratively) ascend before a

93 The second paragraph is its own literary unit, and has a complex relationship to the parallel tannaitic sources referred to infra note 116. The translation below is based on the Kauffman manuscript. 94 The last paragraph refers explicitly to local courts, perhaps based on Deut 16:18-20, as well as historic courts. The scriptural backdrop of this Mishnah is noted by J. N. Epstein, Introduction to the Text of the Mishnah, 3rd ed. [Hebrew] (Tel Aviv: Dvir and Magnes Press, 2000), 1131. See infra note 106 for additional references. 95 According to the Mishnah, the “baffling matter” is debated by the municipal judges. In contrast, in Josephus and Philo, the “baffling matter” is unknown.

20 hierarchy of supreme tribunals, fulfilling Deuteronomy’s charge “to rise and ascend (Deut 17:9).” The judges present their respective hermeneutical derivations (kah darashti)96 before the leading tribunals, echoing Scripture’s use of the same root (d.r.s. “to inquire,” Ibid).

The three tribunals that comprise the central judiciary are clustered around the Temple Mount, mirroring Scripture that locates supreme legal authority in the Temple (Deut 17:9). Arguably, the mishnaic scheme derives from the three terms in the verse, the priests, Levites and judge (Ibid),97 especially in light of a rabbinic tradition that divides the Temple area into three zones corresponding to the priestly (divine), levitical and Israelite encampments.98 Presiding atop the mountain in a Temple chamber, the “Place that God has chosen (Ibid),” the “Great Court” declares binding rulings. The Mishnah presents an arresting image of revelation of the law descending from the sacred mountain, as the courts perched at different elevations serve as guardians of religious traditions,99 and the lead court at its pinnacle announces authoritative instructions. Torah “spreads to all Israel (Mishnah)” from the Temple mountain, in fulfillment of Deut 17:9-12 (“…you shall carry out the verdict that is announced to you from that place that the Lord chose…”) and its echo in Isaiah 2:1-5 (“…For instruction (Torah) shall come forth from Zion, The word of the Lord from Jerusalem…”).100

Interpreted through a rabbinic prism, the “baffling matter” is not a factual indeterminacy, but a legal dispute; and the ultimate decree is not cultic or prophetic in nature, but a scholarly ruling of the supreme tribunal. 101 The elaborate institutional edifice that supports this arrangement is evident throughout the passage, and also impacts the casting of the sin of the rebellious elder as a dissenting judge, the details of which are beyond the scope of this study. In sum, the Temple Judiciary source, and this source alone, dominates this Mishnah’s conception of the leading courts.102

What is striking is how dissimilar the above Mishnah (m. Sanh. 11:2) is from the series of mishnayot that open tractate Sanhedrin (m. Sanh. 1:1-6) (the latter are clearly not cut from one clothe, 103 but, as redacted, they share an overarching scheme and can be described as a unit for present purposes). Scholars have long noticed the fundamental

96 They also present their respective rulings. 97 This suggestion is made by Ishay Rosen-Zvi, “The ‘Protocol’ of the Yavneh Court: A New Perspective on Tosefta Sanhedrin Chapter Seven,” [Hebrew] Tarbiz 78, no. 3 (2009), 475. 98 See t. Kelim B.Q. 1:13. 99 The lower Temple courts only resolve the debate among the municipal judges on the basis of religious traditions (shemuot). 100 Baruch Schwartz has convincingly argued that Isaiah 2 reworks themes of Deut 17:8-13. See Baruch J. Schwartz, “Torah from Zion: Isaiah’s Temple Vision (Isaiah 2:1–4),” in Sanctity of Time and Space in Tradition and Modernity, eds. A. Houtman et al. (Leiden: Brill, 1998), 11–26. 101 The plain sense of the verses may refer to a baffling factual matter that is resolved by an oracular pronouncement in the Temple. See B. Schwartz, “The Visit of Jethro,” 40-48. 102 This source exemplifies a broader phenomenon of rabbinic appropriation of the Temple. For an analysis of this motif, see Cohen, The Memory of the Temple, 39-56. 103 This needs further study. For now, see Avraham Weiss, On the Mishnah: A Collection of Studies [Hebrew], (Ramat-Gan: Bar-Oryan, 1969); Urbach, The Halakhah, 61-2; and Menahem Kahane, Sifre Zuta Deuteronomy: Citations from a New Tannaitic Midrash, [Hebrew] (Jerusalem: Magnes, 2002), 234-236.

21 discrepancies between these two representations of legal authority. M. Sanh. 11:2 speaks of a central judiciary comprised of three Temple courts (and implicitly of peripheral municipal courts), each labeled as ‘bet din at location x.’ These Temple courts invoke traditions or issue legal instructions in answering unresolved questions (horaah). The three Temple courts are arranged in a hierarchy, where queries are only posed to a superior court when the initial court cannot resolve them. M. Sanh. 1:1-6, in contrast, specifies the size, but not the location,104 of three tiers of courts: lower courts of three, capital courts of twenty-three, and a supreme court of seventy/seventy-one judges. Each tiered-court is referred to by its size, or as a ‘bet din of #,’ or as the ‘Great’ or ‘Minor’ Sanhedrin. These courts issue judicial verdicts in civil, capital or corporal cases (din), preside over rituals or make political decisions. Each tiered-court has original jurisdiction depending on the subject matter.

Earlier scholarship, which treated these mishnaic schemes as historic accounts, posited dubious, and at times fantastic, distinctions to harmonize them with one another.105 But these are clearly distinct rabbinic traditions, as becomes evident from their disparate use of Scripture.106 M. Sanh. 11:2 is built entirely on one Pentateuchal source, the Temple Judiciary source, in the pervasive manner described above. M. Sanh. 1:1-6, in turn, is a sui generis construct, 107 where Scripture only plays an ancillary role, and relies on altogether different Pentateuchal sources. 108 To wit, the first chapter of Mishnah Sanhedrin ignores the core of the Temple Judiciary source, but (in its several paragraphs)109 draws upon (other sections of) all three Pentateuchal judicial sources to varying degrees to fill out the details of its juridical scheme. Most markedly, the size of the Sanhedrin is derived from (or supported by) the Elders source:110

The Great Sanhedrin consisted of seventy-one (members)…Whence do we know that the Great (Sanhedrin) should consist of seventy-one? It is written: ‘Gather onto me seventy men of the elders of Israel (Num 11:16),’ and Moses [set] over them—behold [the number] seventy-one. R. Judah says seventy.

104 Nevertheless, m. Sanh. 1:5-6 refers to tribal and municipal courts, which seems unrelated to the numerical differentiation among the courts, and is likely a reflection of the non-uniform fabric of the mishnayot in the opening chapter of Sanhedrin. 105 See the references in Rosen-Zvi, “The ‘Protocol’ of the Yavneh Court,” 476, n.160. 106 Avraham Weiss already called attention to the distinct literary dimension of each passage. See Avraham Weiss, “On the Question of the Nature of the Court of Seventy-One,” [Hebrew] in Jubilee Volume in Honor of Louis Ginzberg on his Seventieth Birthday (New York, 1946), 201-09 (reprinted in On the Mishnah, Tel Aviv, 1969, 181-189. See also Richard Hidary, Dispute for the Sake of Heaven: Legal Pluralism in the Talmud (Providence, RI: Brown Judaic Studies, c2010), 301-307; and Rosen-Zvi, “The ‘Protocol’ of the Yavneh Court,” 28-9. 107 See supra note 103. 108 In addition to the three Pentateuchal sources, the opening chapter of Mishnah Sanhedrin invokes other exegetical sources such as Num 35:24-25. 109 Given that the opening chapter of Mishnah Sanhedrin is a composite, it is difficult to describe this as a “choice” like one can for the other uniform texts examined above. 110 M. Sanh. 1:6. See the parallel source in t. Sanh. 3:9. See also Sifre Num 92. The formulation of this sentence reflects the ambiguity of whether the size precedes or derives from the verse.

22 A more marginal reference to the Mosaic Judiciary source surfaces in one opinion cited in the continuation of the Mishnah regarding the minimal size of a city that hosts a (Minor) Sanhedrin (of twenty-three judges):

How many should there be in a city to make it eligible for a (Minor) Sanhedrin (of twenty-three)? …R. Nehemia says: Two hundred and thirty, to enable (the number twenty-three to correspond with) the “officers of ten.”

Here the “officers of ten” of Exod 18:21/Deut 1:15 are envisioned as a consolidated quorum of twenty-three officers (=judges) who jointly adjudicate as a second-tier court.111 Finally, an echo of only the initial part of the Temple Judiciary source—i.e., Deut 16:18-20 (“Judges…in every town…within your tribes”)—is discernible in the Mishnah’s reference to courts in towns and tribes.112 Nowhere in these paragraphs is there any trace of the nucleus of the Temple Judiciary source—Deut 17:8-13.113

Highlighting the divergent use of the Pentateuchal judicial sources exposes the distinct literary-programmatic (i.e., non-historical) paradigms of these respective mishnaic passages. Yet, in one decisive sense these two accounts share a strong affinity. Both passages override the plain sense of the respective underlying Pentateuchal sources by depicting the leading judicial authority not as a single individual or an assembly of individuals, but as a court or a tribunal. Thus, m. Sanh. 11:2 renders the “levitical priests and judge” as the “Great Court in the Chamber of Hewn Stone,” and m. Sanh. 1:5-6 recasts Moses (or a leader) and the elders as the Sanhedrin or court of seventy/seventy- one and the “officers of ten” as members of a (Minor) Sanhedrin. Reflecting a hallmark of early rabbinic jurisprudence (what I have labeled elsewhere as “institutional justice”), 114 these constructs recognize per curiam legal authority in lieu of alternate arrangements relying upon powerful individuals that were common in the Bible and antiquity. An institutional archetype dominates rabbinic ideology in Roman Palestine during the second century.115

111 See the parallel in t. Sanh. 3:9. See the positions of Urbach, Kahane and Henshke discussed in Henshke, “The Number of Judges in Ancient Israel,” 31ff. 112 See also Sifre Deut 144. 113 The notable distribution of the Pentateuchal sources between these two mishnaic passages in theory raises the possibility that they are complementary accounts of the courts, but the visions are too incompatible to be read in this manner. 114 See Flatto, Justice Unbound, chapter six, which contrasts “institutional justice”—where justice is administered by a court comprised of evenly-statured sages—with the alternate schemes of royal, priestly and individual justice, and argues that “institutional justice” constitutes an original and dominant trend in rabbinic jurisprudence. 115 Elaborated over the course of the second century CE when the rabbinic movement began to coalesce, institutional justice was designed to serve an important social role. Seth Schwartz argues that institutionalization offered the rabbis “the strongest possible assertion of their own legitimacy.” The Ancient Jews from Alexander to Muhammad (Cambridge, Mass.: Cambridge University Press, 2014), 118, n.18. See also Cohn, The Memory of the Temple, 56.

23 Due in part to this shared institutional conception, these two passages were conflated from a very early stage. Thus, a Tosefta passage parallel to m. Sanh. 11:2 refers to Temple courts of a certain size:116

R. Yose said: At first there were no divisions within Israel except within the court of seventy-one in the Chamber of Hewn Stone… And there were other courts of twenty-three in the cities of Israel, and two courts of three in Jerusalem, one on the Temple Mount and one at the Rampart (Hel)…(t. Sanh. 7:1, emphasis added).

Notice how the opening paragraph associates the Temple courts with the numerical courts of m. Sanh. 1:1-6 (the latter are in italics).117

In a different respect, the Sifre also merges these schemes. In its exegesis of Deut 17:8-9 of the Temple Judiciary source, the Sifre invokes the principal subject matters of civil, capital and corporal cases referred to in chapter one of Mishnah Sanhedrin:

“If there arises a baffling matter…between judgment and judgment (Deut 17:8)”—whether in civil law, capital law, or corporal law…(Sifre Deut 152, emphasis added).118

Later in the same passage, the Sifre cites the Temple Judiciary scheme of m. Sanh. 11:2:119

“Then shalt thou arise (Deut 17:9)”: You must arise immediately, and in court. Hence the Sages have said: There were three courts there, one at the entrance to the Temple Mount…(Ibid).

The juxtaposition even implies that disputed civil, capital or corporal matters can be directed to the central Temple tribunals.

A parallel in Midrash Tannaim, 120 which echoes both of these Sifre paragraphs, is preceded by a revealing midrashic comment that may capture the roots of this conflation:

116 See the different versions of this passage recorded in t. Hag. 2:9, Sifre Deut 152, y. Sanh. 1:6, b. Sanh. 88b, and Gen. Rab. Parsha 70, which are not easy to harmonize with one another. For analysis, see H. Albeck, Mishnah, vol. 4, 164, n.5-6 and 458-59; Avraham Weiss, “On the Question of the Nature of the Court of Seventy-One,” 201-09; Lieberman, Tosefta Ki-Feshuta Hagiga, 1297-98. See also Rosen-Zvi, “The ‘Protocol’ of the Yavneh Court,” 25-8. In terms of the relationship of the Mishnah and the Tosefta, Hidary has argued that m. Sanh. 11:2 is a later, edited abridgement of this Tosefta. Hidary, Dispute for the Sake of Heaven, 301-307. See also Rosen-Zvi, “The ‘Protocol’ of the Yavneh Court,” 28-9. But the matter is actually more complex, as seen in the convergence described above. See also t. Shek. 3:17. 117 See also the related m. Midd. 5:4, which also seems to conflate this passage with the m. Sanh. 1:5-6; and compare with Sifre Num 116. 118 Translation based on Finkelstein edition. 119 See also Sifre Deut 144. 120 Midrash Tannaim on Deut 17:8 (translation based on Hoffmann edition).

24 “If there arises a baffling matter (Deut 17:8)”—Scripture comes to elevate the Great Court atop all other courts. Just as the Mosaic court is elevated atop all other courts, so too the Great Court in Jerusalem is elevated atop all other courts.

Notice how both the Mosaic Judiciary and the Temple Judiciary are presented in this midrash as institutional constructs, headed by a central court and supported by inferior courts—in sharp contrast to Philo, for example, who depicts the Mosaic Judiciary scheme as headed by a royal judge and lesser judges, and the Temple Judiciary scheme as directed by a high priest and priests. It is this shared trope of institutional justice, a foundational rabbinic construct, which contributes to the commingling of discrete mishnaic sources.

Later talmudic and post-talmudic traditions continue this process of convergence. But as original paradigms, the two respective accounts of legal authority recorded in Mishnah Sanhedrin build upon and adapt divergent Pentateuchal judicial sources to advance distinctive jurisprudential visions. Whereas the Qumran’s Rule of the Congregation builds upon the Mosaic Judiciary source, and Josephus emphasizes the Temple Judiciary source, and Philo presents a complex model relying on both of these sources, Mishnah Sanhedrin preserves two distinct paradigms of institutional justice: a thick account based upon the Temple Judiciary source, and an original design that is rounded out by selectively incorporating limited materials from the other sections of all three Pentateuchal sources.

Conclusion

The notable emphasis in early Jewish legal writings on the administration of justice is evident in the seminal Second Temple and rabbinic passages analyzed above. At the same time, their substantial exegetical core indicates that their significance is not as empirical accounts, but rather as idealized models of legal authority (which may, in some cases, have also had a secondary impact on praxis).121 Moreover, evaluating them in succession accentuates another salient feature of this discourse that signals its non-historical and idealized nature. Early Jewish literature is hardly uniform in its depiction of the administration of justice, but records a plurality of accounts of legal authority that grow out of alternate Pentateuchal sources.

A multiplicity of paradigms is already evident in the disparate sources found in the Pentateuch. The eclectic use of these sources in the above Second Temple and rabbinic depictions of legal authority reflects this variability. Each exposition navigates differently in privileging a certain Pentateuchal judicial source or set of sources. Several even choose one source text and marginalize or neglect the others altogether. Such categorical choices are spurred by deep, perhaps irreconcilable, tensions among the various Pentateuchal accounts of legal authority.

121 The point is not to altogether deny the historical value of these accounts, but to reorient the nature of the historical inquiry, i.e., to shift from using these sources as positivistic data to see them as expressing ideologies and values, which perhaps also informed actual praxis.

25 The range of juridical models takes on a further dimension in the postbiblical writings examined above. Building upon a given Pentateuchal source(s), each of the postbiblical works constructs an elaborate judicial structure. The constructs differ from one another not only in form, but in their underlying jurisprudence and social imaginary, which invites additional historical investigation to be taken up in future research into why each writer or thinker espoused the respective model and vision that he (or they) did.

The Qumran Rule of the Congregation advances a uniquely populist model of justice wherein all members of the congregation of a certain age (are eligible to) serve as judges alongside the priests. In Josephus’s writings, the administration of justice enables a grand vision of the rule of sacral law serving as the foundation of the polity. In this spirit, Josephus describes an established judiciary, centered around the Jerusalem Temple, where priests, and possibly other leading officials, administer laws. Philo advances a highly original jurisprudence that distinguishes between different kinds of supreme legal matters, and divides supreme jurisdiction between two leading authorities accordingly. Finally, Mishnah Sanhedrin records different kinds of institutional constructs. One represents a hierarchy of leading tribunals in the Temple area, which resolves debated legal matters through tradition and instruction. Another delineates three tiers of tribunals of different sizes that issue judicial verdicts, and divides jurisdiction among them based upon the nature of the subject matter.

More than their particular emphasis on legal administration, then, early Jewish writings record plural accounts of optimal juridical schemes. The flourishing of templates reflects different perspectives on how to organize, structure and administer law, and delegate, divide and stratify legal authority. A religious tradition that places an extraordinary emphasis on the role of law evokes such vigorous efforts to formulate the blueprints of justice. The brilliant designs, in turn, contribute to the vitality of Jewish law, and its enduring social impact over the centuries.

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