It is a commonplace that in writing history the questions are often more important and interesting than the answers. Many others have emphasized, as David C. Flatto does, that law is at the core of Judaism, and mostly concern themselves with substantive legal matters. Flatto, however, and for the first time (16), asks an unusual, and very lawyerly, question (he teaches law as well as philosophy): Who has, and who should have, subject-matter jurisdiction to decide legal questions? On a deeper level, his question is of the relationship of law and power, basically instantiated here as to what extent should the judiciary function be subordinated to the political or executive.
Separation of powers is a basic concept of Western constitutionalism, associated with thinkers such as Montesquieu. But Flatto's answer to his question finds that in Jewish law these ideas go back to Deuteronomy and were further developed in Second Temple and rabbinic times. And in his brilliant conclusion, he diffidently finds “a greater affinity” between the ancient Jewish and the Western notions of separation of powers “than appears at first blush,” including in their “internal” and “stronger” versions, as described below (229–30).
In most of the Bible, the king, who was the lawgiver, also had jurisdiction to decide legal matters (what Flatto calls “strand 1”). But Deuteronomy 17 (“strand 2”) explicitly provides for independent judges, including priests. While strand 2 appears to be “marginal” and “anomalous” in Deuteronomy 17 itself, it traces “back to the idea of revelation” (24), and, following Steven Fraade, Flatto demonstrates that this is congruent with the rest of Deuteronomy (217–21).
The bulk of the book proceeds to demonstrate how Second Temple and rabbinic sources “by reversing, revising, expanding and recalibrating the Deuteronomic subordination of the king to an independent judiciary” (39) made strand 2 and its Second Temple and rabbinic progeny dominant (17, 27). Indeed, Flatto proposes that some of these texts went beyond strand 2's “basic version” of the separation of powers to an “internal version” in which powers are not only separated but widely disseminated among many actors, and, in the theocracy outlined in Josephus's Against Apion, to a “stronger version” in which the entire polity is reconstituted on law alone, and powers other than the law are eliminated. In brief, Flatto places the parabiblical book Psalms of Solomon squarely in strand 1. In different ways he finds royalist tendencies in Philo and in Qumran literature, but demonstrates that these texts are on the way to strand 2. As noted above, Josephus held that an ideal Jewish polity would be solely based on the rule of law spearheaded by a priestly elite. And, as noted below, he finds the judicial function in the rabbinic imaginaire, complicated in fact by the patriarch's roles, to have been vested solely in an institutionalized court system led by rabbinic sages and independent of any other authority.
Flatto's project could have focused entirely on the relationship of the judiciary to the executive rather than emphasizing context and providing the reader with extensive background both on the executive power and the judiciary function. Had he chosen focus over context, the result would have been a much shorter work, perhaps an article, which would have been easier to read. He was probably wise to make the second choice so that his book can be a resource for future scholarship on the subject he has introduced. (I might add here that while his sophisticated and nuanced arguments are entirely clear, I found Flatto's prose on occasion awkward, repetitive, and at times hifalutin.)
Flatto early on provides a statement of his methodology that is a model for historians generally and may be particularly useful to his intended audience: students of the biblical, Second Temple, and rabbinic periods. His use of the word “imagination” in the book's title allows him, among other things, to include periods when Jews had no political power or an executive function to which strand 1 might have subordinated the judicial function. Perhaps the most vivid example of “imaginary” subject-matter jurisdiction is Flatto's finding that “institutional justice”—“the Sanhedrin atop the judiciary”—is “the primary judicial model within rabbinic jurisprudence” (136) while totally avoiding “the thorny question of the historicity of the rabbinic court system” (137). He is explicit that this is imaginary: “the limits imposed by Roman rule . . . inspired rabbis to freely imagine how to construct legal power” (138).
But Flatto does not avoid that “thorny question,” but rather follows H. P. Chajes and others in claiming that Rome “prevented Jews from establishing an autonomous judicial system” (140). While that was true for much of the period he covers, by 398 CE, Roman law provided that when Jews chose to “litigate before Jews” a Jewish court's decision would be treated by Roman courts as binding. This was hardly an “autonomous judicial system,” nor was this system of trial-level adjudication consistent with a rabbinic model of institutional justice, but it made the decisions of Jewish courts under Jewish law enforceable throughout the empire.
I also disagree with his conclusion that the nesi'im of late antiquity began as political figures and became judges later (179). Rather, they began as rabbis, even if as “the patriarchs of the rabbis,” and as Flatto notes, acting as a judge was part of a rabbi's job description; they later developed into the political role of ”patriarchs of Israel.” And I wonder if Philo's “royalist” leanings might reflect the fact that his nephew married a Herodian princess and that his brother was a member of Antonia Minor's circle in Rome.
These quibbles do not detract from my firm conclusion that this book, and the new lens of subject-matter jurisdiction it provides, should be reflected upon by all students and scholars of ancient Jewish law, that is, by all students and scholars of ancient Judaism.
