Introduction
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.Footnote 1 By highlighting the courts upfront, Elon 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.Footnote 2 Beyond the common ancient procedures of turning to a local sage or elders for a decision, or the nearest Temple for cultic instruction, biblical literature presents more elaborate judicial schemes.Footnote 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,Footnote 4 dedicates a whole volume of his halakhic code to delineating rules of judges and the courts.Footnote 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.Footnote 6 On some level, he is certainly correct in 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.Footnote 7 Functioning 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 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.Footnote 8 Mishnaic accounts are written in a schematic and formulaic style, and contain elements that are undeniably utopian.Footnote 9 Moreover, the Mishnah contains plural accounts that are mutually inconsistent with one another.Footnote 10 Finally, these accounts contain a considerable Scriptural or exegetical layer,Footnote 11 a point I will return to shortly.
Rather than offering positivistic descriptions (a premise which recent historiography has rejected more generally),Footnote 12 rabbinic and other early postbiblical representations of the courts are better thought of as templates of how to organize justice.Footnote 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 consequential choice of which among several relevant Pentateuchal sources to follow as a guidepost.
The Pentateuch records multiple passages relating to the configuration of legal authority, 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. The plurality of arrangements found in the Pentateuch are essentially disparate and establish profoundly different ways of structuring the administration of justice:Footnote 14
(1) The Mosaic Judiciary (Ex 18:13–26/Deut 1:9–18): These two parallel passages (which have several important discrepancies but can nevertheless be coupled together in this context)Footnote 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.Footnote 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 (Num 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 reflects a discrete judicial arrangement:Footnote 17 the supreme arbiter is a single head in the Mosaic Judiciary; the levitical priests and a judge in the Temple Judiciary;Footnote 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 (perhaps 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 sources” or “Pentateuchal judicial sources”).
Early rabbinic, as well as late Second Temple, depictions of the judiciary were formulated against the backdrop of this complex biblical legacy. Even though many works from these periods deem the normative sections of the Pentateuch to be binding,Footnote 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 draw selectively upon biblical sources in constructing their portraits of justice.Footnote 20
In what follows, this article 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.Footnote 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 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. 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 betray 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 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
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.Footnote 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, which will bind all of Israel who will join its path in the messianic era.Footnote 23 Both texts 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.Footnote 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.Footnote 25 From early childhood until age ten, members study the book of hagy, learn the laws of the covenant, and receive instruction in the precepts.Footnote 26 Then, at age twenty, they are obligated to join the congregation, marry, testify and proclaim regulations. Five years later, they are called on to assume a foundational role in the congregation and perform the cultic service of the congregation.Footnote 27 And, at the next stage, they are assigned judicial responsibilities:Footnote 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 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.Footnote 29
Mature members of the congregation who reach the age of thirty are ordered (or are eligible) to join the judicial ranks and adjudicate disputes alongside (or following the rulings of) the priests.Footnote 30
Whereas most of this regulatory scheme is comprised of original materials, the judicial prescript plainly invokes the Mosaic Judiciary source in its paraphrase of Deut 1:15 (see the emphasized words above).Footnote 31 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 several stellar characteristics of judges that appear in this same biblical source (Deut 1:13, 15 and Exod 18:21, 25): “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…. “Footnote 32
Magnifying the biblical roots should not obscure the novelty of the scroll’s judicial scheme, 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.
During 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 preside alongside, or following the teachings of, the priests).
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 iudices (judges), but they adjudicate based on the facts alone.Footnote 33 According to the scroll’s regulation, however, each member of the congregation who reaches a mature age must (potentially) serve as a judge equipped with the knowledge he amassed after intensively studying the requisite curriculum and living according to the laws of the covenant.
At the same time, this rule also reflects the centrality of (revealed sectarian) law for the social identity of the congregation (a foundational trope in sectarian ideology).Footnote 34 Members of the congregation become increasingly involved in the legal sphere over the stages of their lives. First, they receive an early education in the laws and legal instruction. Next, they enter the holy congregation that is committed to adhering to the law. They also have a duty to testify and proclaim the regulations. Finally, at a mature stage, they join (or are eligible to join) the judiciary. Legal knowledge is essential for all congregational members, and legal responsibilities are mandated as core functions within the community (alongside temple and military service).
In order to anchor this extraordinary vision of a popular judiciary—which coheres with the Rule of the Congregation’s vision of an Israelite society forged by an escalating commitment to sacral lawFootnote 35—the scroll appeals specifically to 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. The Elders 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 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 only 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.Footnote 36 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—that is, all mature members of the congregation—who exercise judicial power collectively alongside (or following the teachings of) the priestsFootnote 37 (the latter evidently serve as a superior legal authority, perhaps in lieu of Moses).Footnote 38
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.Footnote 39 Some references speak only of the underlying groups of thousands/hundreds/fifties/tens (not the supervising officers),Footnote 40 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 designation 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 division, which was a way of arranging military legions in antiquity.Footnote 41 Recall that Scripture mandates that the officers be “men of valor” (ḥayil) (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.Footnote 42 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 of the judges) as described in the biblical verses. According to this scroll, the administration of justice is a popular duty, which also contributes to the construction and development of a congregation of Israel dedicated to upholding (revealed sectarian) law. Divided into sectors, 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 that assumes greater urgency in the wake of the destruction of the Second Temple.Footnote 43 Accordingly, he ascribes to the judiciary a vital role in the Jewish “constitution” (politeia). His two main accounts of legal authority in Jewish Antiquities and Against 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). Restating and subtly reorienting the Mosaic Judiciary source (Ant. 3.66–74, based upon Exod 18), 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 shortly.Footnote 44
After describing the reunion of Jethro and Moses,Footnote 45 Josephus records Jethro’s advice concerning the delegation of judicial authority to inferior officials (which he proclaims to be wise advice that is worthy of public recognition). Josephus interpolates various minor changes into his rendition and also accentuates a couple of notable exegetical motifs that are relevant to the narrative setting. 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.Footnote 46 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.Footnote 47 As Louis Feldman notes, Josephus twice refers to Moses in these passages as a “general” (strategos, see Ant. 3.65, 67).Footnote 48 Further, he revises the plan for selecting subordinate officers:
Following my advice concerning worldly matters you will muster your army (straton) 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 over them who will subdivide and arrange them in groups of thirty, in groups of twenty, and in groups of ten.Footnote 49
Referring to divisions within the army, Josephus invokes new numerical figures that arguably correspond to figures utilized in Roman military encampments.Footnote 50 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.”Footnote 51
Incorporated into a larger narrative frame, 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.Footnote 52 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.Footnote 53
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’s leadership and divine service; Jethro’s sage advice and its public acknowledgement;Footnote 54 and the advantages of a military-judicial arrangement (which are themes that also resonate in the historical context in which he is writing).Footnote 55 The Mosaic Judiciary source, however, does not serve as a “constitutional” blueprint for 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 Antiquities that he will give a comprehensive and accurate restatement of the Torah.Footnote 56 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.Footnote 57 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 projects Moses over the course of this trying episode as a steadfast and resolute leader.Footnote 58 Indeed, 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.Footnote 59 Whereas the first unit (Ant. 3.224–86, recorded following Sinai and the laws of the tabernacle)Footnote 60 is primarily dedicated to laws of purity and sacrifices and loosely follows the tone and order of Scripture,Footnote 61 the second unit (Ant. 4.196–301, recorded during the fortieth year in the desert) is a discretely crafted presentation of civil laws (selected from Exod 20–23, Deuteronomy, and other scriptural references).Footnote 62 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 forward.Footnote 63 In this context, Josephus presents the laws of the judiciary, based exclusively upon the Temple Judiciary source.Footnote 64
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)Footnote 65 by seven men (presumably the judges), and two Levite assistants (presumably the officers).Footnote 66 Parenthetically, Josephus also refers to a court of seven judges in his restatement of the Scriptural instruction to a defendant to “appear before God (Exod 22:7).” In making this substitution, Josephus implies that seven judges comprise a standard tribunal.Footnote 67
Supplementing Ant. 4.214, the next paragraphs (Ant. 4.215–217) cull from the adjacent verses Deut 16:19–20Footnote 68 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, that is, 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:Footnote 69 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. 4.223–24), discussing the optimal form of government, brings to light the full significance of this identification. Josephus there hails an aristocracy as superior to a monarchy, and makes clear that aristocratic officials—by which he means, presumably, some of the same triad of leaders—are to govern by administering 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. 4.214–18, 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 political vision which can flourish even in present circumstances. Josephus deliberately introduces this section with separate norms (Deut 31:10–13, 6:6–9) that accent the centrality of law, and he follows it with other legal procedures (the evidentiary rules of Deut 17:6, 19:15–19).Footnote 70 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 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.Footnote 71 Accordingly, Josephus emphasizes the sovereignty of God, the centrality of God’s Temple,Footnote 72 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. Footnote 73
Reworking his Antiquities scheme, Josephus here invokes the Temple Judiciary sourceFootnote 74 (and other Scriptural verses) in establishing a theocratic system of divine law that is administered by the high priest and priests.Footnote 75
In sum, in both Antiquities 4 and Apion 2 the fundamental role of law and its administration are associated with 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 deems “constitutionally” superior to the monarchy. Refining 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 upon the Mosaic Judiciary source and Josephus’s writings that primarily draw 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 a general analysis of Philo’s Special Laws 4.151–92 elsewhere.Footnote 76 Now, 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 elaborate excursus (151–87), Philo offers a glowing appraisal of monarchy (or rulership),Footnote 77 which is built upon a careful exegesis of Deut 17:14–20 (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 monarchic powers or responsibilities,Footnote 78 Philo echoes themes of Hellenistic kingship and extols the king as an ideal ruler. In particular, Philo incorporates a Pythagorean idea that conceives of the king as a living embodiment of the law (nomos empsychos) with a supreme role of administering laws.Footnote 79
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.Footnote 80 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 sourceFootnote 81 to fill out his sketch:
The person who has been judged worthy to fill the highest and most important office (=the king)Footnote 82 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 through 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.Footnote 83
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)—heeds Jethro’s advice and sets up a judiciary,Footnote 84 in which he addresses supreme matters and subordinate judges adjudicate inferior matters.Footnote 85 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.
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 4.151–1.92, 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.Footnote 86 Philo thus inverts the sequence of Deuteronomy 17, elaborating upon the monarchy verses (17:14–20) before restating the earlier verses of the Temple Judiciary source. Further, during his excursus on kingship Philo excludes the only explicit cross-reference to the priestly officials specified 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.”Footnote 87 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 exclusive 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 command of 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 identify a different set of supreme judges.
When Philo finally cites the verses of the Temple Judiciary source in the next paragraphs of the Special Laws (188–92), he seems to exacerbate matters further. Directing a judge who is uncertain about a resolution to refer the matter to supreme judicial authorities on the basis of 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”), Philo identifies the “levitical priests” as the priests, and “the judge” as the high priest: “he (=a 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?” Footnote 88
Failing to incorporate the king into this account, Philo never indicates how his conception of priestly supreme justice coheres with his expanded notion of kingship and royal 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 paragraphs 188–192, Philo, relying on the Temple Judiciary source, describes the high priest and priests as the supreme judicial authorities. When discussing royal justice, he 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.Footnote 89
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 paragraphs (188–192) openly address why the high priest and priests resolve the most factually obscure and difficult legal matters that confound lesser judges. As Philo explains, the priests, who are especially alert and punctilious in observing God’s laws (not brooking even slight errors) and additionally enjoy unique clairvoyance due to their prophetic capacities, are best equipped to resolve the most vexing matters.
In the earlier passage (169–175), where Philo identifies an alternate supreme judge, the royal ruler, he 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).Footnote 90 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.Footnote 91
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 “great” matters of Israel, who are routinely in a lowly position).Footnote 92 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 the “baffling matter”Footnote 93 described in Deut 17:8)Footnote 94—a distinction noted in certain later rabbinic texts.Footnote 95 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.Footnote 96 According to Philo, “difficult” matters (which cannot be resolved by common judges) 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,Footnote 97 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 rabbinic depictions of legal authority recorded in the Mishnah (compiled around the end of the second century CE) in comparison with the prior Second Temple works evaluated above.Footnote 98 In this context, I will limit my focus to a couple of passages in Mishnah 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.
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. In the course of delineating capital crimes that warrant specific modes 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. In this context, the Mishnah (in the second paragraph) introduces the procedure for resolving unsettled legal questions by way of a network of leading tribunals:Footnote 99
The elder who rebels against the court, as it is stated, “If there arises a baffling matter, etc. (Deut 17:8).”
There were three courts there: One at the entrance of the Temple Mount, one at the entrance 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 stated, “From that place which the Lord shall choose (Deut 17:10).”
If he (=the rebellious elder) returns to his city and teaches again the way he previously taught, he is exempt. But if he instructs to act, he is culpable, as it is stated, “The man that acts intentionally (Deut 17:12),” he is only culpable if he instructs to act.
He (=the rebellious elder) is not put to death by the court of his own city, nor the court of Yavneh, but he is brought to the Great Court in Jerusalem, where he is guarded until the festival and executed during the festival, as it is stated, “All the people shall hear and fear and do no more presumptuously (Deut 17:13)”—these are the words of Rabbi Akiva….
In an unusual string of Scriptural citations, the Mishnah cites Deut 17:8, 10, 12, and 13. Indeed, the entire passage is formulated against the backdrop of the Temple Judiciary source.Footnote 100
According to the Mishnah, unresolved legal questions—the “baffling matter” of Deut 17:8—which are debated among the judges in the municipal courts—presumably the judges in each and every town specified in Deut 16:18—must be brought forward to the central judiciary.Footnote 101 As the local judges head toward the center, they (literally and figuratively) ascend before a hierarchy of supreme tribunals, fulfilling Deuteronomy’s charge “to rise and ascend (Deut 17:8).” The judges present their respective hermeneutical derivations (kakh darašti)Footnote 102 before the leading tribunals, adopting Scripture’s use of the same root (d.r.š. “to inquire”).
The three tribunals that comprise the central judiciary are clustered around the Temple Mount, an expansion of Scripture that locates supreme legal authority in the Temple (Deut 17:8). Arguably, the threefold mishnaic scheme derives from the three terms in the verse, the priests, Levites, and judge (Deut 17:9),Footnote 103 especially in light of a rabbinic tradition that divides the Temple area into three zones corresponding to the priestly (divine), levitical, and Israelite encampments.Footnote 104 Presiding atop the mountain in a Temple chamber, the “Place that God has chosen (Deut 17:10),” the “Great Court” declares binding rulings.
The Mishnah thus presents an arresting image of the revelation of law descending from the sacred mountain. The courts perched at different elevations serve as guardians of religious traditions,Footnote 105 and the lead court at its pinnacle announces authoritative instructions. Torah “spreads to all Israel (Mishnah)” from the Temple mountain, in fulfillment of Deut 17:10 (“you shall carry out the verdict that is announced to you from the Place that God has chosen, observing scrupulously all their instructions to you”) and its echo in Isaiah 2:3 (“For instruction [Torah] shall come forth from Zion, The word of the Lord from Jerusalem”).Footnote 106
Interpreted through a rabbinic prism, the “baffling matter” is not a factual indeterminacy, but a legal dispute among judges. Accordingly, the ultimate instruction is not cultic or oracular in nature, but a scholarly ruling of the supreme tribunal.Footnote 107 Indeed, an elaborate institutional edifice 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.Footnote 108
What is striking is how dissimilar the above mišnah (m. Sanh. 11:2) is from the mishnayot that open tractate Sanhedrin (m. Sanh. 1:1–6) (the latter are clearly not cut from one cloth,Footnote 109 but, as redacted, they share an overarching scheme and can be described as a unit for present purposes). Scholars have long noticed the fundamental 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 disputed questions (hora’ah). The three Temple courts are arranged in a hierarchy in which 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,Footnote 110 of three tiers of courts: lower courts of three, capital courts of twenty-three, and a supreme court of seventy or seventy-one judges. Each tiered-court is referenced 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; preside over rituals; or make political decisions. Each tiered-court has original jurisdiction, depending on the nature of 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.Footnote 111 But these are clearly distinct rabbinic traditions, as becomes evident from their disparate use of Scripture.Footnote 112 M. Sanh. 11:2 is built entirely on one Pentateuchal source, the Temple Judiciary source, in the comprehensive manner described previously. M. Sanh. 1:1–6, in turn, is a sui generis construct,Footnote 113 in which Scripture only plays an ancillary role, and relies on altogether different Pentateuchal sources.Footnote 114 To wit, the first chapter of Mishnah Sanhedrin ignores the core of the Temple Judiciary source, but (in its several paragraphs)Footnote 115 refers to (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:
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. Footnote 116
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.Footnote 117 Finally, an echo of only the initial part of the Temple Judiciary source—that is, Deut 16:18–20 (“Judges… in every town… within your tribes”)—is discernible in the Mishnah’s reference to courts in towns and tribes.Footnote 118 Nowhere in these paragraphs is there any trace of the nucleus of the Temple Judiciary source—Deut 17:8–13.Footnote 119
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”),Footnote 120 these constructs privilege 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 CE.Footnote 121
Due in part to this shared institutional conception, these two passages were conflated from a very early stage. Thus, the opening section of a Tosefta passage which is parallel to m. Sanh. 11:2 refers to Temple courts of a certain size:Footnote 122
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 (Ḥel).Footnote 123
Notice how this passage associates the Temple courts with the numerical courts of m. Sanh. 1:1–6 (the latter are in italics).Footnote 124
In a different respect, the Siphrey also merges these schemes. In its exegesis of Deut 17:8–9 of the Temple Judiciary source, the Siphrey 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.”Footnote 125
Later in the same passage, the Siphrey cites the Temple Judiciary scheme of m. Sanh. 11:2: “’Then shalt thou arise (Deut 17:8)’: 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… .” The juxtaposition even implies that debated civil, capital or corporal matters can be directed to the central Temple tribunals.
A parallel in Midrash Tannaim,Footnote 126 which echoes both of these Siphrey paragraphs, is preceded by a revealing midrashic comment that may capture the roots of this conflation: “’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 JudiciaryFootnote 127 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 (or tannaitic) 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, 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 judicial 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 primarily as empirical accounts, but rather as idealized models of legal authority (which may, in some cases, have also had a secondary impact on praxis).Footnote 128 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 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.
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 the rule of sacral law to serve 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 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 just focusing 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 intensive 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.
