Introduction
Many consider the political thought of Rabbi Nissim ben Reuben of Girona (RaN, ca. 1310–1380) to be innovative and daring, especially in comparison with other political theories in medieval Jewish thought. It has been argued that in his homily no. 11 RaN recognizes a secular politico-legal system headed by the king, which parallels the halakic-religious legal system under the control of the judicial authority.
The beginning of RaN's homily is formulated incisively and clearly, leaving no room for ambiguity in the reading. As it is typically read, the homily encourages its readers to find in it a possibility for legitimizing a secular regime and law, both at the philosophical and the halakic level. This reading of the homily has become all the more prominent in the last three generations given the commitment of many followers of the halakah to a secular Jewish political framework.Footnote 1 Nevertheless, the ostensibly secular politico-legal model proposed by RaN is not without its difficulties. Some of these difficulties follow from logical and philosophical problems in the model itself, others from discrepancies between RaN's statements within the body of the homily or from discrepancies between the homily and RaN's other writings.
Below we attempt to reexamine the political thinking of RaN against the background of these difficulties. We suggest that at the beginning of the homily RaN sketches a conceptual model of secular and religious authorities that is not meant to be taken at face value, but subsequently in the homily a practical model is described that is radically different from the conceptual one. The homily is, in fact, built around the tension between these models, and RaN's proposed dynamics between the two are likely to provide solutions to the difficulties that arise.
We have offered this suggestion elsewhere,Footnote 2 and in the last part of this article we repeat the main points briefly. The innovation in this article is the attempt to read the homily dynamically against the background of the life situation (Sitz im Leben) of fourteenth-century Christian Spain. Within the framework of this time and place we focus on two areas: that of political history and that of philosophy. The article examines primarily the question of how the dynamic reading of the homily fits the time and place of its writing.
The King's Law: Interpretive Trends
RaN's political theory is outlined in one of his homilies,Footnote 3 which is part of a com-prehensive set of homilies about weekly portions of the Torah.Footnote 4 The work appears to have been written in Barcelona in the third quarter of the fourteenth century.Footnote 5 All the sections of the work address basic philosophical and theological issues. The Bible and the weekly portions serve merely as starting points for the philosophical discussion and, therefore, we can regard the book of homilies as a theoretical work.Footnote 6 Nevertheless, the philosophical/theological discussion is not the only intent of the work. The homilies are also intended to uplift the listeners and strengthen the spirit of those who study them with respect to the salvation that is to follow.Footnote 7
At the beginning of his homily, RaN proposes a dual government-legal system derived from the double role of the law. On the one hand, the law is meant to achieve social order—“political settlement” or “a political order.” On the other hand, it strives to achieve justice and discover the truth—“true just law”—by enforcing Torah commandments. To carry out these radically different functions, different and separate authorities are needed: the judicial authority (“the judges”) is appointed to “judge the people by the true just law itself.” The ruler (“the king”) is charged with the “political order.” The separation of authorities produces two legal systems: “the authority of the judge is limited to Torah law,” whereas “the king is not bound to Torah law the way the judge is,” and his judgment does not necessarily conform to Torah law.Footnote 8
The judges’ judicial system is precise and decisive, unlike that of the king. Although the king is required to aim his judgment at upholding the law for the betterment of the people,Footnote 9 it is not clear that he is obligated by some form of judicial framework. The amorphousness of the king's justice is liable to result in excessive deviation from Torah law, and RaN appears to be averse to this.Footnote 10 What is, after all, the degree of the king's autonomy in exercising justice? Is he not subject at all to the authority of Torah law, or is his authority allowed to deviate from it in limited areas of the law or under specific circumstances?
Halakic authorities and researchers disagree on these matters because of the tension between RaN's sharp analytical model that appears to recognize the sweeping judicial powers of the king and the distaste for recognition of an independent legal system that is not subject to Torah law. Within this controversy we identify two opposite trends: one that views the king's law sympathetically and strengthens it, and a critical trend that strives to narrow its sway as much as possible.
The Empowering Approach
The common approach in research empowers the king's law. According to this approach, the king maintains an independent legal system that is not subject to Torah law. The laws and verdicts of this system are derived from the needs of society and change from time to time according to changes in circumstances. The empowering approach is buttressed by various justifications.
Blidstein and Enker regard the king's law a political necessity. The conceptual law of the judges is incapable of dealing on its own with reality, and therefore inevitably requires the real law of the king to fulfill this need.Footnote 11 The vital need and force of the king's law is derived from this argument.Footnote 12
Shalom Rosenberg argues that the king's law is vital from a theological/legal point of view and that it contains solutions for improving the law: the ordinances of the Torah are universal and have been legislated “for the general cases.” It follows that in special cases the law is liable to deviate from the “right path” and there is a need for its correction to ensure that it is fair and just. As a legislative authority, the king is charged with this correction. According to this approach, the proper structure of the halakah mandates the existence of an autonomous and permanent “correction” mechanism that operates in parallel with the general and dogmatic law.Footnote 13
According to a different approach (that of Menachem Lorberbaum and Aviezer Ravitzky), the empowerment of the king's law is the result of an overall constitutional conceptFootnote 14 that endeavors to separate religion from the stateFootnote 15 and to secularize politics.Footnote 16 In a religious world it is necessary to reinforce the authority of the secular branch in order to grant it autonomy vis-à-vis the parallel religious branch.
The Restrictive Approach
At the other end is an approach, shared by Aharon Kirschenbaum and others, that limits the king's law. According to this opinion, the king's law does not represent an autonomous, comprehensive, or permanent system. In practice, it is an exceptional legal arrangement, periodic and temporary, alongside an exclusive legal system— the law of the judges. According to the restrictive approach, the “king's law” (in RaN's view) is identified with Maimonides's din hamalkut (the law of the land). Maimonides decreed that the king is entitled, in specified circumstances, to mete out punishment that exceeds Torah law: the king is entitled, by virtue of the law of the land, to kill “murderers who are not subject to the death penalty by court order,” murderers against whom there is no “clear evidence,” and rebels “against the king of Israel.”Footnote 17 The law of the land being mentioned is permanent, unlike the temporary authority of the court to rule by emergency powers. Nevertheless, “it cannot be that the king is needed in every conflict and every offense day after day. Only royal matters and special offenses were brought before the king as a first instance, and he or his court would judge according to law and according to royal standards.”Footnote 18 In other words, the law of the land and the king's law are not a comprehensive legal system that is an alternative to Torah law but a limited and residual system that exists alongside the regular law.Footnote 19
Critique of the Trends
There are difficulties surrounding the various interpretive trends presented above. The empowering approach grants broad autonomy to the king in the legislative and judicial areas. Autonomy of this type is problematic both from a substantive and a procedural point of view. Substantively, the very existence of an alternative legal system casts a heavy shadow on Torah law. It is not reasonable that the halakah would authorize, de jure, a rival legal system and allow it, de facto, permanently to undermine it. In many cases, the autonomy of the king's law obviates Torah law and turns it into a burden.Footnote 20 At the same time, the empowerment of the king's law is associated with the occasional helplessness of the judges to reach a “true and just” verdict. A legal system whose values are justice and truth and that is unable to achieve proper legal outcomes is a failing system.Footnote 21
The questions surrounding the justice of the judges are not merely legal but also religious. The judges’ law represents G-d's legal sovereignty. Thus, it appears that a weakening of Torah law and the empowerment of its rival, the king's law, means the precedence of the kingdom of earth over the kingdom of heaven.
A difficulty of another order points to an organizational-procedural flaw. It is difficult to manage a legal system that has two heads. It is not reasonable that a litigant should be entitled to turn, as a first instance, to the judges, and if the verdict is not to his satisfaction to appeal to the king in order to achieve the desired results.Footnote 22 This possibility degrades the legal system as a whole.
The difficulties of the restrictive approach are primarily interpretive. Denying the autonomy of the king's law and restricting him to states of emergency only does not fit well with the structure and content of RaN's homily. At the beginning of the homily RaN suggests an analytical model based on the functions of the law and determines the functions of the legal authorities based upon it. The differentiation between the king and the judges is, thus, conceptual and a matter of principle and not merely the result of practical necessity. In other words, the distinction is intended to meet basic and permanent social needs and we cannot attribute to it temporary functions limited to states of emergency.
The Dynamic Approach
Given the difficulties of the previous approaches, we propose here a different approach for interpreting RaN's homily: a dynamic approach. The first two approaches rely on various statements by RaN in the homily, some of which limit the king's law and some that empower it. Both approaches try to render the status of the king's law permanent vis-à-vis the law of the judges.
According to our proposed model, RaN indeed refers to the king's law using different and, at times, contradictory statements. The range of statements expresses a dynamic relationship, saturated with tension and contradictions, between an idea that grants the king's law a superior status and broad scope of action and a reality that limits the king's law and its jurisdiction (see section 5 below). The roots of the idea are in RaN's dualistic thinking that requires the duplication of the legal system. Its branches are intertwined with RaN's halakic writings, where he entrusts the legal system entirely to the judges, who are subject to the authority of Torah law.Footnote 23 The homily oscillates between the statement of the idea, on the one hand, and halakah and practice, on the other. In the background, additional forces were shaping the homily, some political, others theological or philosophical. We review these forces in the next two sections.
Historical Background
The Homily—Its “Life Situation” (Sitz im Leben)
RaN's homily was not delivered behind closed doors. When delivered as part of a homily, reflection in general, and political reflection in particular, is not a monologue or a theoretical lecture. The preacher conducts a dialogue with his environment by means of the homily, which is a tool for expressing his opinion on matters of topical interest, and in the course of the homily the preacher responds to various opinions in his environment on the topic at hand.Footnote 24 The homily carries on two types of dialogue.
One dialogue is practical and focuses on the issue of the division of judicial and penal authority. The source of inspiration for this issue is the rivalry between the king (or his representatives in the Jewish community) and the rabbinic courts dealing with this matter (the topic of the present section). Another dialogue is theoretical and deals with the relation between the religious and the political branches of government. The source of inspiration for this debate is the fertile discussion on the subject in the general political thought of the fourteenth century (the topic of the next section).
The two types of dialogue have one common denominator: a basic assumption about the separation of the religious and political authorities and the conclusion that the former takes precedence over the latter. The assumption and the conclusion together support the development of the homily, as suggested below.
The Jews’ Authority to Punish in Christian Spain
1. THE TWELFTH AND THIRTEENTH CENTURIES: JUDICIAL AUTONOMY
In the course of the twelfth and thirteenth centuries, the Jews of Christian Spain enjoyed self-determination and autonomy.Footnote 25 Autonomy enabled them to maintain their status as a separate political entity.Footnote 26
Jews enjoyed judicial autonomy in several areas. In Castile in the thirteenth century, especially in the days of Alfonso X (1252–1284), the Jews maintained an independent judicial system in matters of capital punishment (dine nefashot). Civil matters between individuals (concerning human relations) were also judged by the Jews themselves through the mukademin-adelantado (Spanish governor), the elders, and the rabbis. Even appeals that were heard in the royal court by the king's Christian judges (alcaldes) were tried by virtue of the law with the advice and in the presence of the adelantado and the rabbis.Footnote 27 Jews in Catalonia and Aragon also received judicial autonomy, including the authority to mete out punishment. An important document from Calatayud (1229) attests to the fact that King James I, the Conqueror, allowed the town's Jews to elect four honorable citizens (probi homines) as adelantados, who had the authority to pursue criminals, arrest them, and sentence them to death.Footnote 28 In the community of Barcelona (1241) the king authorized the “offense adjudicators” (berure 'averot) to impose various punishments on those who offended the leaders of the public, including fines and banishment from the city.Footnote 29
2. THE FOURTEENTH CENTURY: EXPANSION OF JUDICIAL AUTONOMY
In the fourteenth century the judicial autonomy of the Jews was expanded. King James II (1291–1327) granted broad judicial rights to the Jews. For example, according to one document, in response to a request by the community, he authorized in 1302 the hanging of a Jewish informer.Footnote 30 Similarly, King Pedro IV (1336–1387) granted broad privileges to the Aragon community, including especially extensive authority in judging matters of life and death.Footnote 31 The responsa of decisors of the period, R. Asher ben Ihiel (Harosh), and his son, R. Yehuda, attest to the extensive judicial autonomy of the Jews. In his responsa, Harosh discusses the appropriate punishment for someone who blasphemes in public:
You surprised me by asking me about matters of death penalty. Because in all the countries I heard about, they do not judge in matters of life and death except here, in Spain. And I was very surprised when I came here how they were judging in matters of life and death without a Sanhedrin, and told me that with the authorization of the king, he and the community condemn in order to save [lives], for how much blood would be spilled if they were sentenced by the Gentiles! And I allowed them to act according to their custom although I never agreed with them about wasting a life. I see, however, that you all agree to extirpate the evildoers from among yourselves. And certainly, public blasphemy … and thus judge him as you see fit.Footnote 32
Harosh was of Ashkenazi-German origin, where judicial authority in matters of the death penalty was never considered. When he arrived in Spain (1304), he was surprised to encounter rabbinic courts that passed death sentences. Harosh wondered about the unusual custom and did not agree with it, but he accepted it based on the authority that Jews received from the king and because of the national-social interest in exercising the authority (“the community condemn[s] in order to save”).Footnote 33
The tension between the normative difficulty in passing a death sentence and the sociopolitical need for such punishment can also be detected in the answer given by R. Yehuda ben Harosh to the elders of Cordoba:
It is a known fact that since the day the Sanhedrin was exiled from the chamber of hewn stones (lishkat hagazit) the death sentence was abolished among the Jewish people, and the law now is to contain further degradation in our generation, and blessed be G-d who moved the hearts of the kings of this country to allow the Jewish people to sentence and extirpate the evildoers, without which there would be no existence for the Jewish people in this country. And some Jews will save the Jewish judges who would have been killed by the judges of the Gentiles, and the sentences of death penalty that we pass are not all according to the Torah …Footnote 34
The authority to punish that the Spanish kings granted to Jewish communities is the main factor in the background of the two responsa. From these responsa we can glean the frequency of the phenomenon and its indispensability for the Jewish community.
3. THE END OF THE FOURTEENTH CENTURY: DIMINISHING AUTHORITY
In the 1370s and 1380s, and perhaps earlier, steps were taken to narrow the judicial authority of the Jews, apparently in reaction to the expanded judicial autonomy in the previous two generations. The narrowing of authority was based on two main arguments: professional and religious. In the professional sphere, the legal establishment in Aragon regarded with suspicion the Jewish community that ruled in matters of capital punishment based on the halakah. Local jurists claimed that the application of an ancient legal system (the halakah) contradicted the advanced local legal system based on Roman law. In 1377 the professional criticism led to a royal decree that significantly narrowed the judicial authority of rabbinic courts in criminal matters. The order removed the authority of Jewish courts to rule in cases that could result in the death penalty or the cutting off of a limb (according to common law). Moreover, Jewish courts were prohibited from ruling in matters between Jews and Gentiles.Footnote 35
The second argument for limiting the judicial autonomy of the Jews was religious. In 1379 one of the leaders of the Jewish community was executed following a ruling by a rabbinic court. In the city of Burgos, at the time of the coronation of King Juan I (younger son of King Enrique II), Joseph Pijo, who was the general comptroller of Enrique II, was sentenced to death as an informer and executed with the authorization of the king's officials. In the assembly of the Cortes it was claimed, in response to the execution, that
the Jews would name rabbis and judges from among themselves and were given the authority to rule in all judicial matters that arise among themselves, financial as well as those involving capital punishment, and it is a great sin to agree to it and approve it, for it has been said by the prophets that at the time of the coming … of Christ … he will annul all their sovereignty and freedom.Footnote 36
The Cortes then recommended prohibiting the Jews from imposing the death sentence, the cutting off of limbs, and banishment in criminal matters, and further recommended invalidating any rulings and ordinances they might issue in these matters. King Juan I accepted the recommendation, which became law. The law stated that Jews were entitled to judge only in their suits (financial matters and claims); criminal matters came before one of the local Christian judges of their choice.Footnote 37
In addition to these two arguments, the intra-Jewish sociopolitical factor also played an important role. The community organization was controlled on the one hand by rabbis and scholars and on the other by the rich elite.Footnote 38 There were frequent tensions and power struggles between the centers of power in the community. The rabbis and dignitaries of the community clashed with the wealthy citizens who had connections with the monarchy.Footnote 39 The rabbis and dignitaries controlled the judicial authority and used it to punish their opponents who affronted them. For their part, those close to the monarchy asked the king to limit the judicial authority of the rabbis and judges. Eventually, the intra-community struggle became a confrontation between the king of Spain and the Jewish judicial institutions. We saw one example above (that of Pijo). The law passed by King Juan I came as a result of the close relations between Pijo and the king's father, Enrique II.Footnote 40
Two of the responsa written by Rivash, apparently in the same period,Footnote 41 show the objections of the rabbis to the death penalty and physical punishment. Their reservations reflect the defensive stance of the Jews in light of official criticism of these punishments. In one of the responsa, Rivash warns the adelantado of one of the communities (Teruel) that they judge informers in Aragon:
But at present the rabbinic court has no authority to rule in matters of capital punishment, except with the king's authorization, and it is necessary to have the verdict ratified by the judges of the land who are not of our faith, so that they do not suspect us of judging unjustly and illegally. And in this day and age, capital cases are being tried in emergency situations, for they canceled capital cases, but the court flogs and punishes not according to law but according to momentary needs …Footnote 42
In another responsum, Rivash objects to the death penalty and the cutting off of the limbs of murderers in Salamanca, in Castile:
You already know that all cases of capital punishment tried at this time [where the law of the land has been allowed] are not according to the law, as capital cases have been abolished. But for the sake of public benefit, the court flogs and punishes not according to the Torah, if called on to do so by emergency needs… . And we ought to follow this closely in the cases we try because of public policy …
And if I were the judge in the king's court, this is what I would do, and I would not be more lenient with them, unless it was the desire of the relatives of the murdered …
There are good and sufficient reasons for us to be lenient with those who injure … not to punish them, except according to the statements of Rabbi Huna because an uplifted arm shall be broken …Footnote 43 For you already know that in this country we are not used to ruling in capital cases, nor to cutting off an arm or a leg, for the law is in the hands of the king.
For you, who know the law, and know the legal custom of the land and its judges, and how it is customary to deal in emergency cases in these matters, do as they do and do not deviate from the custom of the Torah …Footnote 44
The two responsa indicate that the death penalty and corporal punishment were imposed in fact by the king (in Castile), and even if the Jewish courts (in Aragon) obtained authorization to impose these punishments, they were expected to exert their authority according to the norms accepted in local courts.
4. THE AUTHORITY TO PUNISH AND RAN’S HOMILY
RaN's homilies appear to have been written in the third quarter of the fourteenth century.Footnote 45 As noted, at that time the issue of the authority to punish was on the public agenda and occupied a central place in RaN's homily.Footnote 46 It is reasonable to assume that RaN addressed this issue not for theoretical purposes. As homilies usually are, this one, as well, is addressed to a wider public in response to events in the community. It is reasonable, therefore, to read the homily against the background of the sociopolitical events of the time that were likely to affect the authority to punish.
We have seen that in the period when the homily was written the scope of the judicial autonomy of the Jewish community had been reduced. It was especially the authority of the judicial institutions to punish that was curtailed. For various reasons, the central government limited the authority of the Jewish community to punish with the support of factions within the Jewish community that were close to the government. Thus, a conflict developed between the various layers of the Jewish judicial authority (adelantado, officials empowered by the public to judge offenders and judges), on the one hand, and the king and his entourage, on the other.Footnote 47
It was in this atmosphere that the homily was written. In its first part, the homily starts with an idyllic hypothetical situation in which there is no rivalry between the authorities. The institutions work side by side, discharging essentially different functions. The judges of the community are supposed to impose punishment according to Torah law, which is why they received judicial autonomy. The king, by contrast, legislates and judges based on local law, which changes according to the needs of the moment. Separation between the activities of the authorities is supposed to prevent any possibility of conflict between them.Footnote 48
But these idyllic conditions have difficulty prevailing in a complex political reality. The idea of judicial autonomy is subject to criticism from both directions. Jurists demand that the judicial authority adjust itself to the law of the land and the advanced Roman law. By contrast, the religious authority strives to suppress the political institutions of the community. As a result of the confrontation between the authorities, the judicial branch is asked to suspend its operations and its authority is to be transferred entirely to the king. In practice, an ultimatum is presented here: the judges are to judge by the king's law, otherwise the king will do the work of the judges.
In its second part, the homily meets the challenge of the critics: “When there is no king in Israel, the judge unifies both authorities, that of the judge and that of the king.” What is the meaning of this statement?
Given the rivalry between the two authorities and the fact that it is not possible for both to serve within one realm, one of them must be preferred. RaN states his preference in the third part of the homily, and it is a clear one: “most matters of law are handled by the Sanhedrin and a minority by the king.” This conclusion indirectly specifies that the leaders of the community, who are close to the monarchy, are subject to the judges and others responsible for Torah law. The development of the homily moves in the direction of this conclusion by describing a transition from a theoretical and ideal politico-legal model to a real one. This description may be a response to the erosion of the judicial autonomy of the community. It emphasizes the authority of the judicial branch and demands respect and jurisdiction for it. RaN's conclusions clearly state the superiority of the judges over the king.
5. THE POLITICO-CONSTITUTIONAL SITUATION IN SPAIN IN THE THIRTEENTH AND FOURTEENTH CENTURIES
In the previous section we examined the homily from the point of view of Jewish political reality. The theoretical relationship between judge and king was compared with the relationship between the political authorities within the Jewish community. In parallel with the Jewish political examination, a comparative examination against the background of Spanish political reality is in order. In this arena as well, the king's authority was diminished relative to that of the judges. This was true of Spain in general and especially of Catalonia, the principality in which RaN lived.
The position of the king was strengthened in Spain in the twelfth and thirteenth centuries, after the Reconquista. In parallel, the law of the state became consolidated and developed following the revival of Roman law in Europe toward the end of the twelfth century and in the course of the thirteenth.Footnote 49 In Castile the king knew to base his expanding authority on the developing legislation. The general state law that was accepted there increased the king's power, although recognition of the validity of local custom and of the rights of the nobility continued.Footnote 50 By contrast, in Catalonia and Aragon the king's increased power ran into opposition.Footnote 51 King Peter III (1276–1285) surrendered to pressure and constitutional dictates by the church and the nobility, and his authority weakened.Footnote 52 The king was forced to grant privileges to the nobility and to additional social groups in order to defuse tensions with them.Footnote 53
The status of the king of Catalonia was hurt also because of socioeconomic reasons. From the middle of the fourteenth century, Catalonia changed from an agrarian, feudal society into one whose economy was based on trade. As a result of this socioeconomic change, the status of merchants and of the middle class in general increased, and that of the elites (the nobility and the king) diminished.Footnote 54 These social changes had political consequences: the status of the Cortes as a judicial body was strengthened based on the representation of the middle class within it.Footnote 55
RaN's homily addresses the political events in his environment at this point in time: the homily argues in favor of a reduction in the status of the king and an increase in the powers of the judicial authority. The homily was written in parallel with an analogous political event in RaN's state. A trend toward the strengthening of the judicial body (the Cortes) at the expense of the king was felt in Catalonia at the end of the thirteenth century and during the course of the fourteenth.
RaN's Homily against the Background of Political Thought in the Fourteenth Century
In his homily, RaN suggests a constitutional and legal model for the relationship between the religious authority (the judges) and the political authority (the king). The homily is in fact a tractate in political theory. Viewing the homily against the historical and geographical context in which it was born is essential, as in the case for writings of this type in general, especially writings on the relationship between the authorities. The European Christian world of the fourteenth century was greatly concerned with the question of the relations between political and religious authorities. Therefore, it is reasonable, indeed necessary, to read the homily against the background of its environment.
Historical Background
In the fourteenth century, Europe underwent a deep crisis during which several radical developments occurred. At the beginning of the century a severe demographic problem developed. The population grew at an increased rate and a severe and continuing shortage of food developed. Approximately fifty years later the plague (1347–1351) created a reverse demographic problem as a substantial portion of the population of Europe perished.Footnote 56 At the same time, Europe underwent significant territorial changes as various rulers attempted to enlarge their family holdings.Footnote 57
These social and political upheavals were the motivating factor in the rethinking of the proper state institutions and of the relations between them. The method, language, and content of the politico-philosophical discourse had been greatly enriched at the turn of the fourteenth century as a result of developments in the judicial (the ius commune) and philosophical (Aristotelian language) arenas.Footnote 58
The renewed political thinking was influenced deeply and directly by a series of confrontations between king and pope. The most prominent conflict broke out between the king of France Philip IV (1285–1314) and Pope Boniface VIII (1294–1303). The conflict started over the issue of the taxation of the clergy. Initially, the authority to tax the property of the church belonged to the pope. In 1294 Philip attempted to tax the church to finance his war against England. Boniface responded immediately. In February 1296 the pope issued a bull (Clericis laicos) forbidding taxation of the clergy without his approval.
A second conflict erupted in 1301 around the issue of the judicial authority of the clergy. Philip ordered the arrest of Bernard Saisset, Bishop of Pamiers and repre-sentative of the church in France, on charges of blasphemy, heresy, and treason. This constituted a breach of an essential principle and canon law that gave the pope exclusive authority to judge the clergy. Boniface demanded the immediate release of the bishop and issued a bull that prohibited the king from judging members of the clergy (December 1301). The king convened the General Estates (a council of the lords of France, the clergy, and the middle class), which condemned the papal bull and voiced support for the king. Boniface responded firmly and on 18 November 1302 published the bull Unam sanctam (“a single holy one”). In Unam sanctam, Boniface affirms the superiority of the pope over the secular government. The bull presents a harmonious political model of two authorities, secular and religious, united under a mystical body (corpus misticum) represented on earth by the pope. There is a clear hierarchy between the two authorities, and the church is at the top of it.Footnote 59
Political Theory in the Fourteenth Century
1. DUALISTIC PRINCIPLE
The fourteenth century produced a rich body of writings in the field of political theory. These writings were based on two assumptions: the crisis-laden reality can serve as the foundation for establishing a new political order, and that new political order is necessarily based on a dualistic principle and the separation of authorities between king and church.
The dualistic principle (Duo sunt) had been recognized since 494 in a letter from Pope Gelasius I to Anastasius I, the emperor of the Eastern Roman Empire: one authority is under the bishop (auctoritas sacrata pontificum), the other under the king (regalis potestas).Footnote 60
The dualistic principle was reinforced in the fourteenth century by Aristotle's dichotomous theory: just as individuals live a double life (duplex vita) of body and soul, so does the citizen live a double civic life (duplex civilitas) vis-à-vis the state and the church.Footnote 61 Another allegory, also Aristotelian, represents the relation between the authorities as that between the head (the pope) and the heart (the king).Footnote 62
The dualistic principle invited tension and conflict between the authorities. Therefore, various suggestions were proposed for settling the relations between the two. Some of the proposals favored the church, others the secular authorities.
a) The pro-church approach preferred the church over the secular government. It was supported by two works written at the University of Paris in 1302–1303 against the background of the conflict between Boniface and King Philip. The author of one of the works, Giles, a Roman, granted superiority to the church owing to its many qualities, including historic precedence.Footnote 63 According to James of Viterbo, Giles's colleague, the precedence of the spiritual power derives from the fact that it represents divine grace as opposed to secular power, which represents nature. Because nature is subject to divine grace, the king must be subject to the church.Footnote 64
The pro-church approach enjoyed the support of jurists as well. In their opinion, the king should be perceived as a vassal of the pope, in feudal terms, based on the oath of fealty the king swore to the Holy See at the time of his coronation. For his part, the pope/feudal lord owes loyalty to the king/vassal and must treat him with justice.Footnote 65
A pro-church stance appears also in the writings of Baldus de Ubaldis, one of the most prominent jurists and political theorists of the Middle Ages.Footnote 66 Baldus accepts the authoritative papal argument (plenitudo potestatis) and affirms the right of the church to rule (hierocracy). In his opinion, the church replaces the people as sovereign. It is “the mother of the Empire” and its status relative to the king and the people is that of a guardian or protector.Footnote 67 This is the basis of the pope's authority to depose a ruler. Baldus describs this authority through the allegory of the sun and the moon:
The Pope is God's messenger to a greater degree than the king is. One may compare the Pope to the sun [and the king to the moon] because the sun is larger in size, nobility, function, and glory than the moon is.Footnote 68
b) The pro-royalist approach was supported by several scholars. John of Paris, in a response to Giles, redefines the limits of papal power in an attempt to protect the king from the claims of the pope. John's writings are consistent with the theme that separates religious and secular powers because they are different in essence.Footnote 69 The monarchy is defined as naturalist in Aristotelian terms:
It is clear that man needs to live in common and benefits from it … especially under a government that is for the good of the public [ruled] by the king. Similarly, it is clear that such a rule follows from natural law because man by nature is a civil, political, and social animal.Footnote 70
Thus, the secular/natural realm is granted to the king, with no dependence on the spiritual/religious authority. The ruler can, therefore, punish the pope if it has been found that he has committed an offense in secular matters. By contrast, in spiritual matters the ruler can depose the pope only with the consent of the cardinals.
Another prominent intellectual of the time, Dante Alighieri,Footnote 71 also adopted a pro-monarchist approach. In his work De monarchia Dante describes the relationship between the king and the pope using the allegory of the sun and the moon, similarly to Baldus. According to Dante, the king resembles the sun and the moon: his authority is autonomous just as the sun has its own light (“secular rule does not follow from spiritual rule”).Footnote 72 At the same time he is inspired by the pope and in this respect he is similar to the moon, which is illuminated by the sun.Footnote 73 Dante regards kingship and papacy as autonomous and parallel institutions with complementary functions: the function of the king is to lead people to paradise on earth (“the joy of life”); the function of the pope is to lead people to the celestial Eden (“the joy of eternal life”).Footnote 74
Marsilius of PaduaFootnote 75 based his pro-royalist position on a purely theological argument. In his conception, the pope and the clergy need not hold any secular power but should focus on their sacred celestiality and should be satisfied with a purely spiritual life without property or political power.Footnote 76 The legislator and sovereign, that is, the king, is supposed to hold the political power exclusively. The basis for Marsilius's position is naturalistic (he may have been influenced by his education as a physician): the state is like a living body, and to maintain its functioning it requires harmony between the organs. Harmony is established by means of the law, justice, and the benefit of the public. The assumption is that the legislator knows and supports the laws that best serve the interest of the public exactly as a living organism strives to maintain its existence and health to the best of its ability. Thus, the political power must be granted to the king, the legislator. Handing this power over to the pope and the clergy is liable to cause it to be exercised in a misguided or biased manner, for the benefit of the church and not of the public.Footnote 77
William of OckhamFootnote 78 based his pro-monarchist view on ethical grounds. He argues that the values of truth and human sovereignty must be preferred over other values. Because the king's secular power is likely to advance these values, sovereignty must be in his hands.Footnote 79 Not only did William of Ockham support the king, he also agitated against the pope and published several critical pamphlets in which he called for limiting the authority and power of the pope according to the Franciscans’ “principle of poverty.”Footnote 80
2. HARMONIOUS DUAL INSTITUTIONS
The idea of institutional dualism is presented in general as a rivalry between authorities in which one eventually prevails over the other. Nevertheless, a type of dualism is possible in which two autonomous authorities operate in parallel without one suppressing the other. Baldus de Ubaldis gives political and especially legal expression to this idea. On the one hand, Baldus emphasizes the autonomy and superiority in governance by the church through the principle of plenitudo potestatis, meaning that the authority is in the hands of the church. On the other hand, the king also has supreme authority, suprema potestas.Footnote 81
The supreme power held by the two authorities together leads to a parallel relationship between them: the pope has superiority in the spiritual/religious domain, and the ruler in the earthly domain. The result is a legal separation of jurisdictions between the authorities: the jurisdiction of the pope is limited to a certain framework within which the pope acts as papa iustus. Deviation from the framework opens the pope's actions to criticism, which is liable to invalidate these actions. For his part, “the king is free from the laws” (princes legibus solutus est). According to Baldus's interpretation, the king is not subject to civil law but only to natural law and to divine (religious) law.Footnote 82 Although the king's authority to deviate from the law is legitimate, its use is not appropriate. As the originator of the legal and social order (lex regia), the ruler ought to abide by it in order to maintain the stability of the legal system.Footnote 83
RaN's Homily against the Background of Fourteenth-Century Political Thought
It is necessary to read RaN's homily against the background of contemporary political theory because the homily belongs to the field of political thought. In RaN's Christian environment, the subject was alive and vibrant, and one of its main issues was the relationship between the political and the religious authorities. The basic assumptions of Christian political theory can also serve as RaN's basic assumptions: according to one assumption, the very existence of a judicial authority in a religious state mandates institutional and normative dualism; according to another, the legal institutions and normative systems are autonomous.Footnote 84
These basic assumptions shape a dichotomous political model, from the institutional point of view, with separate religious and political authorities. Nevertheless, the dichotomy is primarily theoretical. In practice, there is rivalry and friction between the authorities and the normative systems. The gap between theory and practice pushes political theory to a point where it can no longer be satisfied with a theoretical model. In practice, it is necessary to decide which of the rival factions prevails in situations of friction. A sweeping, unilateral decision is not reasonable: it is difficult to accept a bottom line that releases the ruler from the need to abide by the law, and it is not reasonable to adopt a position that restricts the religious authority to narrow areas only. The decision is dynamic and oscillates in the space between the theoretical model and its practical realization. This is RaN's conclusion. Despite his dichotomous theoretical approach, he prefers in the end the rule of the religious authority and opts for restricting the power of the political authority. This conception is consistent with the general spirit of political theory in RaN's environment.
In the last two sections we described the various forces at work in the background of RaN's homily: on the one hand, actual political forces; on the other, theoretical, political thought. The general picture is that of two autonomous authorities, political and religious, that operate in parallel and maintain relations of rivalry. Although neither can subdue the other, the religious authority takes precedence over the political one.
In the next section we consider the homily against the background of RaN's philosophical and halakic theory and examine the manner in which it integrates with the forces operative in RaN's environment.
Development in the Homily: Dynamics and Dialectic
RaN's Dualistic Theory
We have suggested elsewhere that RaN's political theories be read against the background of his general theories.Footnote 85 As we have shown, RaN's thinking belongs to the anti-philosophical trend characterized by denial of the identity between the divine and the rational as the divine is explained in various metaphysical terms. A religious, anti-philosophical approach is almost necessarily dualistic: fundamental terms and epistemological tools, both rational and metaphysical, are mixed together.Footnote 86
Thus, RaN's dualistic thinking is the result of his anti-philosophical approach, which seeps also into his political attitudes. The duplication of government institutions in Israel, in his view, is derived from this duality.Footnote 87 The institution of the monarchy serves the natural and environmental needs of the citizens, whereas the function of the judicial system is to practice a true and just law that results in adherence to “divine matters.”Footnote 88 From the duality RaN also derives a normative duplication and distinguishes two types of legal functions: a) the religious/metaphysical function (divine inspiration, “the secular aspect of divine abundance”); and b) the natural function (protecting the social order, “the redress of our common matters” or “political benefit”). The dualistic political method reflected in the homily makes the homily ambivalent and motivates the various interpretive approaches toward it.
These approaches take opposite views, each relying convincingly on various paragraphs of the homily. This finding produces discomfort. How can one apparently harmonious homily include such conspicuous contradictions?
Careful examination of the structure of the homily and its development reveals that the disharmony is not incidental and that it contains much more than feelings. It is well planned and structured. RaN wishes to introduce a fundamental and permanent tension between the king and the judge, which results in a dynamic development that tends toward a narrowing of the king's law and a concurrent expansion of the law of the judges.
The Three-Stage Structure
The homily has a three-stage structure. The first stage distinguishes sharply between various roles of the judicial branch and independent legal authorities that separately discharge these functions. One function is sociopolitical (“political settlement”); the other is religious (“providing for the Torah laws,” “in case there is no injury to the social order in the offense”). Various punishments are derived from the functions, correspondingly, “as required by the correction of the political arrangement or by the needs of the moment,” and “according to just and true law.” The functions of the authorities and the purposes of punishment are different and separate and, therefore, they require different and independent institutions: the judges rule only according to justice and truth and the king acts to settle matters in this world.
In the second stage RaN blurs the separation between the authorities. Whereas in the previous stage the judicial authority was limited to rule strictly according to the law, in this stage the authority is expanded to allow it to rule also not according to the law so that it may achieve social order. The blurring of the separation increases in the second stage of the homily by means of the rule “the court flogs and punishes not according to Torah law.”Footnote 89 This rule authorizes the judge to deviate from the law for the public benefit as an emergency measure. The authority to deviate contradicts the conceptual model that limits the law of the judges to Torah law and to exclusive considerations of truth and justice. Indeed, as a result of this rule, RaN redefines the authority of the judges more broadly both from the institutional and the normative points of view. From the institutional point of view it is proper to maintain, in principle, the separation between the authorities (the judges and the king), although at times the judge is likely to discharge the function of the king. This is what happens when the king devolves some of his authority to the judge, or when the king is absent and the judge acts as his substitute. From the normative point of view, RaN proposes to distinguish between the “Torah commandments” (and all that they imply) and whatever occurs “between people.” Torah commandments are religious obligations and are entirely outside the jurisdiction of the king. In the absence of the king, the values of the king's law are instilled into the law of the judges and, therefore, “whether it (the king's law) is according to the just law or according to momentary need, it is brought to court.” By contrast, the norms between people are different and are brought both before the king and before the judges; therefore, the norms are subject to the separation of authorities: “only justice is brought before the court … and their [the norms’] benefit in a broader sense is brought before the king, not before the judge.”
Based on the above, RaN redefines the law of the judges by its relation to the king's law. From the point of view of authority, the law of the judges covers naturally the Torah commandments, but it applies also to the norms between people, at least partially. By contrast, the king's law applies only to the order between people. From the point of view of its mission, the law of the judges is intended to bestow both divine grace and social order. The king's law, by contrast, is limited to a social purpose. From now on, the judges represent the judicial authority and do not need the king's law except as a supplement.
The third stage of the homily continues the trend that diminishes the status of the king's law. The diminution begins with an argument stating that the legal system based on a “strong” king's law is not proper and its adoption is tantamount to sin. This is how RaN interprets the people's demand that Samuel appoint a king for them similar to the other nations. In his opinion, the people sinned in their preferring the king's law over the law of the judges.Footnote 90 The elders’ choice of a king and preference for the king over the judges—“in matters between people” and for “what is needed for political order”—is tantamount to sin because it reflects a preference of “natural matters” over the “divine matter.”
A general view of the homily with all its stages reveals a significant erosion of the status of the king's law. At the beginning of the homily, the king's law appears as a concept and an exalted value; at the end, the basic assumption is that a broad and autonomous king's law involves sin. This statement elevating the king's law is replaced by a call to restrict its normative sway and to limit the autonomy of the king as a legislator.
From Utopia to Reality
According to our suggestion, the politico-legal approach in the homily is not uniform or static. The political model changes in the course of the homily from one form to another. This change is not incidental and cannot be regarded simply as an indication of RaN's change of disposition.Footnote 91 The homily appears to move deliberately and thoughtfully between a conceptual and theoretical model of judicial authority and the pattern of practical action assumed by this authority.
The theoretical model is not based on halakic sources. Its roots are in systematic, structured, and comprehensive thinking that vacillates between religion and philosophy, between revelation and wisdom. The homily at hand is the political thought-component in this system. It is based on a legal-theoretical analysis that examines the functions of judicial authority, the purposes of punishment, and the missions of the law. The dichotomous distinction between the judge and the king is derived from this analysis. Each authority is responsible for a different segment of the law and conducts its affairs according to different strategies and modes of operation. The theoretical model regards the king as an autonomous legal authority with broad jurisdiction.
By contrast, the practical pattern of operation is dictated by the halakah. The law of the judges is redefined according to the halakic rule “the court flogs and punishes not according to Torah law.” By virtue of the rule, the judges are responsible for the social order as well, and they are entitled to deviate from Torah law for the benefit of the public when the need arises. The leeway and legal flexibility granted to the judges make them the principal element of the judicial authority. With the empowerment of the law of the judges, the king's law is weakened and becomes a secondary factor, supplementary to the law of the judges. The king's legislative autonomy is significantly limited: the king is obligated by the letter of the Torah and is entitled to deviate from it only in a reasonable proportion. The limitation of the king's judicial autonomy has institutional consequences as well: the king is subject to the prophet's commandments and must view himself as a servant of the public and “as a slave over them, for the purpose of their betterment.”
Epilogue
The Jewish residents of fourteenth-century Christian Spain lived in a tense environment, mired in conflict. Within the Jewish community there was tension between those who wielded religious authority (rabbis and judges) and the leaders of the community who were close to the monarchy. Another conflict raged between the judicial authority of the community and the king concerning the scope of the judicial autonomy of the Jewish community. Above all these hovered the bitter rivalry, pervasive in Christian Europe, between the church and the king: the religious and political powers were constantly at war, neither one being able to vanquish the other.
This is the environment in which RaN's homily was written and this is the spirit that emanates from it. The idyllic beginning of the homily aspires to a harmonious coexistence between the judges and Torah law on the one hand and the king and state law on the other. This is the mark of RaN's theory. In the course of the homily, however, the idyllic spirit is replaced by qualification and criticism of the king's law. This is eventually the practical direction that the homily follows.
