Social Philosophy and Policy Foundation, Bowling Green, OH, USA
7.1 Historical Overview of Ancient Jewish Legal Thought
In addition to Greek and Roman legal 1 thought, the other major ancient source for Western legal philosophy is the Judeo-Christian tradition. Jewish law took shape over two millennia, from the legendary Mosaic code (as early as the thirteenth century B.C.) until the completion of the Talmud (seventh century A.D.). After emerging as a Jewish sect (first century A.D.), Christianity soon became a separate religion and developed a view of law in explicit and sharp contrast with Judaism. This chapter offers a brief overview of early Jewish and Christian legal thought, which is indispensable for an understanding of the subsequent history of medieval philosophy of law.
The Jewish legal tradition has its source in the Tanakh—the Hebrew Bible, known to Christians as the Old Testament—and especially, the Pentateuch, the first five books, called the Torah in Hebrew.2 According to tradition the five books of the Pentateuch—Genesis, Exodus, Leviticus, Numbers, and Deuteronomy—were written by Moses, except for the final verses describing Moses’ death. But most modern biblical scholars regard the Pentateuch as a later redaction from earlier texts composed by different authors at different times (see Segal 1967). Four main strata are generally distinguished: J (where God is called Yahweh or Jehovah), E (where God is called Elohim), D (Deuteronomy), and P (reflecting the viewpoint of priests).3 Exodus recounts the liberation of the Israelites from bondage in Egypt and the establishment of their legal system (perhaps late thirteenth century B.C.). After delivering the ten commandments (Decalogue) orally to Moses on Mount Sinai, God inscribed them on two stone tablets (Exod. 24:12, 32:15–16, 34:28; Deut. 4:13, 5:22), and Moses also wrote down all the laws given to him in the book of the covenant (Exod. 24:4, 34:27). The commandments are recorded in Exodus 20:2–17 (cf. Deut. 5:6–21), and other regulations are found in the rest of Exodus as well as in Leviticus (see Stamm and Andrew 1967). Moses may be compared to Asian kings like Hammurabi when he is said to “represent the people before God” (Exod. 18:19), but it is noteworthy that the laws are presented as part of a covenant (berit) of God with the Israelites: “If you will obey me faithfully and keep my covenant, you shall be my treasured possession among all the peoples. Indeed all the earth is mine, but you shall be to me a kingdom of priests and a holy nation” (Exod. 19:5–6). The Israelites collectively swore an oath to abide by the agreement (24:3–8). The obligation to obey the laws of Moses thus seems to rest on a form of social contract theory: The laws of Moses have authority over the Israelites because they have explicitly consented to obey them. Deuteronomy 29:14–15 makes explicit that the parties to the original covenant also bound their descendants.4
The Mosaic code encompassed not only civil laws (“You shall not murder,” “You shall not commit adultery,” “You shall not steal,” “You shall not bear false witness against your neighbor”; see Exod. 20:13), but also many religious regulations (“You must have no other gods besides me,” “Remember the sabbath day and keep it holy”; see 20:3, 8), dietary rules (“You shall not boil a kid in its mother’s milk”; see 23:19), and so forth. Many crimes carried severe punishments including religious offenses: “Whoever sacrifices to a god other than the Lord alone shall be proscribed” (22:19; cf. Lev. 17:29). “Whoever does work on the sabbath day shall be put to death” (Exod. 31:15). Jewish law was distinctive in its requirement that all male babies be circumcised on the eighth day after birth (Lev. 12:3).
Scholars have noted many similarities between the Mosaic code, especially Exodus 20:22–23:13, and the laws of the Sumerians, Babylonians, Assyrians, and Hittites (see the Prologue to this volume). “It is generally agreed that Israel took over the laws in question from their neighbors in the ancient Oriental world, and it is natural to regard the Canaanites as intermediaries passing on the regulations which are common to the laws of Israel and those of their neighbors” (Eissfeldt 1975a, 563; cf. Smith 1960).5 Like the code of Hammurabi, Mosaic law affirms the lex talionis (law of retaliation): “[T]he penalty shall be life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, bruise for bruise” (Exod. 21:23–4; cf. Lev. 24:17–20). It is, however, disputed whether early Jewish law ever adhered strictly to the principle that perpetrators must suffer the same harms they had inflicted on others. The two sacred tablets were deposited in the ark of the pact or testimony and kept in the holy of holies within the tabernacle (Exod. 16:34, 25:16; cf. 31:18). Finally, the tribe of Levites were ordained as a priestly caste responsible for enforcing the laws (32:25–9).
A loose federation of Israelite tribes invaded Palestine and fought with difficulty against the Canaanites and Philistines, until the establishment of a monarchy that reached its apogee early with Kings David (1013–973 B.C.) and Solomon (973–933 B.C.). God promised to David that his family and kingdom would be established forever, and his throne would endure for all time (2 Sam 7:10). Solomon is extolled for his “divine wisdom to execute justice.” The anecdote in which he judges the claims of two women to be mother of the same child recalls the judicial role of Mesopotamian kings (1 Kings 3:16–28, 4:29– 34, 10:23–4). But even Solomon succumbed to pagan gods through the wiles of his many foreign wives. A major theme throughout the Hebrew Bible is the struggle against intermarriage with non-Israelites and against heathen practices such as idol worship and child sacrifice. After his death, Solomon’s kingdom split into two: Israel in the north was annihilated in 722 by the Assyrians, and Judah in the south fell in 586 to the Neo-Babylonian Empire. During this period of division and decline, a series of prophets—including Isaiah, Jeremiah, and Ezekial—advocated social justice and religious reform. Jeremiah complains that the priests, “the guardians of the teaching [torah],” ignored God (Jer. 2:8).
King Josiah (ruled ca. 640–609) instituted religious reforms in an effort to save the kingdom of Judah. After “a scroll of the teaching [torah]” was rediscovered in the temple (2 Kings 22:8), Josiah read it to the assembled population and “solemnized the covenant before the Lord: that they would follow the Lord and observe his commandments, his injunctions, and his laws with all their heart and soul; that they would fulfill all the terms of this covenant written upon the scroll. All the people entered into the covenant” (23:3). Passover was celebrated according to the scroll of the covenant, idols were banned, worship was centralized in the temple, and Josiah followed “the teaching [torah] of Moses” (23:25). Many scholars believe that Deuteronomy, the fifth book of the Pentateuch, was written, or substantially redacted, at this time (Driver 1902; Weinfeld 1991; Mitchell 1991). Deuteronomy (Greek for “second law”) contains the first use of the word torah for an entire book rather than for a specific ritual or statute, for example, “When he is seated on his royal throne, he shall have a copy of this teaching [torah] written for him on a scroll by the levitical priests” (Deut. 17:18; contrast Lev. 6:2, 7; 7:1, and passim). This passage incidentally contains a reference to kingship (Deut. 17:14–15), which some scholars regard as anachronistic because the kingship was not established until two centuries after Moses. Deuteronomy 12–26 listed many commandments and statutes that were added to the Mosaic code. One noteworthy development is the injunction, “Parents shall not be put to death for children, nor children be put to death for parents: A person shall be put to death only for his own crime” (Deut. 24:16; cf. 2 Kings 14:6). This seems to be at variance with the principle of inherited or collective guilt implied by Exodus 20:5: “I the Lord your God am an impassioned God, visiting the guilt of the parents upon the children, upon the third and fourth generations of those who reject me.” In spite of Josiah’s reforms, Judah was conquered soon after by Nebuchadrezzar of Babylon, who forcibly relocated many of the Jews. During the Babylonian captivity (586–538) the Jewish community preserved its cultural identity through strict adherence to the Torah. After the Persian conquest of Babylon (538), the Jews were permitted to return and rebuild the temple in Jerusalem, although the Jews remained under Persian rule (538–332).
In 444 B.C. the Persian king Artaxerxes granted legal authority to Ezra, a Jewish scribe living in Babylon, who “had dedicated himself to study the teaching [torah] of the Lord so as to observe it, and to teach laws and rules to Israel” (Ezra 7:6, 10). Ezra was permitted to return to Judea and to “appoint magistrates and judges to judge all the people in the province of Beyond the River who know the laws of your God, and to teach those who do not know them” (7:25). Ezra and his Levite colleagues read and interpreted the Torah to an assembled multitude (Neh. 8:1–3, 7–8). They said that God had handed the Israelites over to foreign conquerors to punish them for rebelling against Mosaic law. God kept his covenant, even though the Israelites had done injustice (9:26–33). The chastened people concluded that their survival hinged on strict conformity to the teaching of Moses, and they swore an oath to obey the law of Moses and fulfill all the commandments, rules, and statutes of God (10:29). The story of Ezra implies an ongoing tradition of judicial interpretation (midrash halakhah) by scholars or scribes (soferim). Such interpretation was necessary because the ancient laws had to be respected, but often they seemed inconsistent or unclear in application. For example, Exodus 21:5–7 states that if a slave denies that he wants to be free, he will be a slave for life; but Leviticus 25:40 states that a slave will work for his master only until the jubilee year (which occurs every forty-ninth year). Although these two statements seem contradictory, the interpreters tried to harmonize them: “the slave […] was to be offered his freedom on the seventh year” (Zohar 1998, 205). According to tradition, the oral Torah was transmitted from Moses to Joshua to the elders to the prophets and finally to the Great Assembly (keneset ha-Gedolah) of teachers, which was founded by Ezra and continued until the time of Simeon the Just (d. ca. 270 B.C.). The tasks of the assembly were to “be deliberate in judgment, raise up many disciples, and make a fence around the Torah” (Tractate Avot 1.1–2, as cited in A. Cohen 1995, xxxvii).
Palestine was conquered by Alexander the Great in 332 B.C. and ruled successively by the Ptolemies (301–200 B.C.) and Seleucids (200–168 B.C.). At first the Israelites enjoyed some autonomy, and King Antiochus III (ca. 198 B.C.) permitted the Jews to govern by their own laws and establish a senate (sanhedrin), which became like a supreme court presided over by the high priest. But there were increasing conflicts between Hellenizing and orthodox Jews, until King Antiochus IV (ruled 175–163 B.C.) issued an edict requiring the Jews to abandon their customs and religious practices such as circumcision “and so to forget the law and change all their statutes” (1 Macc. 1:49). Called upon to be “zealous for the law and stand by the covenant” (2:27), the Jews rebelled under Maccabean leadership in 168 and achieved freedom until the Roman conquest in 63 B.C. Throughout this period Jewish society was supported and unified by the “three pillars of ancient Judaism—the one God, the one Torah and the one Temple” (Schwartz 2001, 49). But two major factions disagreed over the Torah: the Sadducees (named after Zadok, a Levite priest; see Ezek. 40:46), who were associated with the wealthy and established priestly class, and the more populist Pharisees, who arose from the class of scribes. The Sadducees insisted on strict adherence to the written Torah, whereas the populist Pharisees accepted the oral Torah along with the written law. The Pharisees were also receptive to ideas such as the resurrection of the dead and postmortem reward and punishment determined by one’s conformity during life to the law of Moses—ideas which were repudiated by the literalist Sadducees. The Pharisees were influenced by Greek ideas, although the extent of this influence is debated by scholars. During the third and second centuries B.C. in Alexandria, first the Hebrew Tanakh was translated into Greek as the Septuagint, then the rest of the scripture. This required a Greek reconstruction of Jewish concepts. For example, the Hebrew word torah was rendered as nomos in Greek. In the second century B.C. Aristobulus, an Alexandrian Jew, wrote a Greek commentary on the Pentateuch, arguing that Moses was a source for Greek philosophy.
Later Philo (Judaeus) of Alexandria (15? B.C.–A.D. 50?) wrote extensive treatises in Greek on Jewish religion and Mosaic law. He was deeply steeped in the writings of Plato, whom he called “that sweetest of all writers” (Prob.13). Yet he praises Moses as “the most admirable of all the lawgivers who have ever lived in any country either among the Greeks or among the barbarians […]. [H]is are the most admirable of all laws, and truly divine, omitting no one particular which they ought to comprehend” (Mos. II.12). Philo views Moses as a philosopher, king, and prophet rolled into one (Mos. II.2–3). Moses was the living law (empsuchos nomos) (I.162, II.4). Philo upholds the Mosaic principle that “one must not add anything to, or take anything from the law […], for there is nothing which has been omitted by the wise lawgiver which can enable a man to partake of entire and perfect justice” (Spec. IV.143). But he also argues that the law must often be interpreted in an allegorical sense (Leg. III.236). Moses began the Torah with the creation of the world, “under the idea that the law corresponds to the world and the world to the law, and the man who is obedient to the law, being by so doing, a citizen of the world [kosmopolitês], arranges his actions with reference to the intention of nature, in harmony with which the whole universal world is regulated” (Opif. 3). This view of law presupposes the Hellenistic Stoic view of the world (kosmos) as a city (polis) (Opif. 143; cf. Clement, Strom. 6.172 = SVF III.327). The cosmic city possesses a constitution, which Philo calls “the right reason [orthos logos] of nature, which in more appropriate language is denominated law, being a divine arrangement in accordance with which everything suitable and appropriate is assigned to every individual” (Opif. 143). Philo thus expresses the notion of natural law in terms of his own idea of divine reason (logos):
The unerring law is right reason; not an ordinance made by this or that mortal, a corruptible and perishable law, a lifeless law written on lifeless parchment or engraved on lifeless columns; but one imperishable, and stamped by immortal nature on the immortal mind. (Prob. 46)6
This concept of law had a profound impact on early Christian philosophers (cf. Opif. 20; see Goodenough 1933 and 1940; Tobin 1983; Runia 2001, 142–3; Najman 1999 and 2003).
During the Babylonian exile began the Diaspora, the dispersion of Jews throughout the world. Scattered Jewish communities tried to preserve their religious and cultural identity through a careful study of the Torah. This was also a period of remarkable ferment during which many sects sprang up, including the Essenes, who were mystics and ascetics who regarded matter as evil. The most successful movement, Christianity, hailed Jesus of Nazareth as the lord and long awaited messiah (“anointed one” and deliverer, the successor of King David) (see Matt. 16:16). Jesus acted as a teacher (rabbi) and healer. Although his professed aim was to fulfill the Mosaic law, his followers hailed him as the Son of God and the founder of a new religion that would transform or supplant Judaism, although some continued to comply with the Torah (see the following section). An influential faction, the Zealots, refused to pay taxes to the Romans and led a revolt that resulted in disastrous defeat and the destruction of the temple in Jerusalem (A.D. 70). After putting down further rebellions under self-proclaimed messiahs in the second century, the Romans expelled the Jews from Jerusalem and for a time even prohibited the practice of Judaism. Flavius Josephus (37–95?) reported the foregoing events in the Jewish Antiquities and the Jewish War. Although his writings contain valuable information, Josephus can be unreliable because he wanted to make the Torah palatable to his Greco-Roman readership. Following Philo, Josephus depicted Moses as a legislator in the Platonic mold:
He believed that it was above all necessary for one who manages his own life nobly and to legislate for others, first to study the nature of God and then having contemplated His works with his reason [nous] to imitate as far as possible that best model [paradeigma] of all and to try to follow it […]. In legislating he did not start with contracts and mutual rights of the citizens; rather, when he led their thoughts up to God and the construction of the world and convinced them that we humans are the finest of God’s works on earth, and after he had obtained their pious obedience, he easily persuaded them of everything else. (Ant. I.19, 21; cf. Philo, Opif. 3, Mos. II.48)
Thus Josephus explains why the Torah begins with Genesis, Moses’ account of God’s creation.
After the suppression of the temple priests and traditional political elites, the rabbis, who were spiritual heirs of the Pharisees, became the dominant force within Jewish society.7 As scholars and teachers of sacred scripture, the rabbis increasingly provided spiritual leadership for their communities and presided over weddings and other rites. They had at their disposal the midrash, commentary preserved since the Babylonian captivity. The oral tradition had been continued under a succession of zugot or “pairs of leaders,” from the early second century B.C. until the early first century A.D., when Hillel as patriarch founded a school and propounded seven rules of midrashic exegesis, thus initiating the age of the sages (tannaim) which lasted through the second century A.D. (see Elon 1994, vol. 3: chap. 28). The Romans permitted Jewish sages such as Johanan ben Zakkai to establish rabbinical schools and thus preserve the Torah. These ensured a period of revitalization of Jewish religion, culture, and law. In order to establish a comprehensive and consistent set of laws, the patriarch Judah ha-Nasi, “the Prince” (135–217 A.D.), commissioned the sages to compile a code of laws called the Mishnah (Moore 1927–1930). There were already several oral mishnayos in existence, and the new Mishnah presented these in a more concise, written form. The Mishnah was organized in six sections dealing with agricultural laws, the sabbath and festivals, family law, torts and financial laws, rules for sacrifices, and dietary laws. This incorporated the oral Torah, comprised of explanations given by God to Moses of the written Torah and supplementary interpretations of later sages and teachers. The Mishnah recognizes different sorts of rule: a commandment contained in the Torah (mitzvah, e.g., do not work on the sabbath), a rabbinical decree on how to apply a commandment (gezeirah, e.g., do not touch a tool on the sabbath), or a rabbinical enactment not based on the Torah (takkanah, e.g., the wife is to light a candle on the sabbath). The commandments of the Torah were more binding in principle, but they often needed to be interpreted or qualified.