Politics And The Limits Of Law _ Secularizing The Political In Medieval Jewish Though.pdf

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POLITICS AND THE LIMITS OF LAW

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CHANA KRONFELD, AND

NAOMI SEIDMAN, EDITORS

T h e t a s k o f “ T h e S c i e n ce o f Ju d a i s m”

i s to g ive Ju d a i s m a d e cen t b u r i a l

 ,

founder of nine tee nth-ce ntur y

philolog ical Je w ish Studies

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POLITICS AND THE LIMITS OF LAW

secularizing the political

in medieval jewish thought

MENACHEM LORBERBAUM

S t a n f o r d U n i v e r s i t y P r e s s • S t a n f o r d , C a l i f o r n i a

Stanford University Press

Stanford, California

©  by the Board of Trustees of the

Leland Stanford Junior University

Printed in the United States of America

on acid free, archival-quality paper.

Library of Congress Cataloging-in-Publication Data

Lorberbaum, Menachem

Politics and the limits of law : secularizing the political

in medieval Jewish thought / Menachem Lorberbaum.

p cm — (Contraversions)

Includes bibliographical references and index.

 --- (alk paper)

 Judaism and politics—History—To .

 Maimonides, Moses, ‒—Contributions

in political science  Nissim ben Reuben Gerondi,

?‒—Contributions in political science.

I Title II Contraversions (Stanford, Calif.)

     has benefited from the generosity of many viduals and institutions, and I would like to express my gratitude for thefriendship and encouragement I have received.

indi-David Hartman created the Shalom Hartman Institute in Jerusalem, aspiritual community where the ideas I have written about could freely be ex-plored and discussed I thank him for his nurture and support and for show-ing me that honesty is the condition for commitment Moshe Halbertal andNoam Zohar, my colleagues at the Shalom Hartman Institute, have alwaysbeen there for me, reading my work and never tiring of my formulations andreformulations

Most of this book was written at the School of Social Science of the tute for Advanced Study at Princeton, where I was privileged to have MichaelWalzer as a teacher and a friend His guidance and tutelage have been inspir-ing This book is one of the fruits of our collaborative efforts to revitalize thetradition of Jewish political thought No atmosphere could be as conducive

Insti-to this work as that of the Institute for Advanced Study

An earlier version of this work was submitted as a Ph.D dissertation to theHebrew University of Jerusalem My thesis adviser, Aviezer Ravitzky, has been

a constant source of encouragement in its maturing into a book Gerald stein, Yaron Ezrahi, Warren Zev Harvey, Allan Silver, and Israel Tashma readearly versions of this work; their insights and comments were most helpful

Blid-ACKNOWLEDGMENTS

The Department of Jewish Philosophy at Tel-Aviv University provided asuperb scholarly framework within which to develop my ideas I am grateful

to my colleagues for their support Parts of this work were presented at nars and colloquiums, and I have benefited from the comments of Sara Klein-Braslavy, Shlomo Biderman, and Yael Tamir The late Jacob Levinger and thelate Gershon Weiler actively participated in those encounters The work onthis book was completed while on sabbatical from Tel-Aviv University.The Koret Jewish Studies Publications Program generously subsidized thepublication of this book My editor, Nessa Olshansky-Ashtar, has workedtirelessly to make this a better book Philosopher, critic, and editor, she hasbeen the best reader an author could hope for

semi-Finally, I wish to thank Daniel Boyarin, editor of the Contraversions ries; Helen Tartar of Stanford University Press; and my copyeditor, RobertBurchfield, for their dedicated work

“Man Is Political by Nature,” 18; Modern Interpretations, 24;

Polity and Society, 25; Medieval Interpretations, 28;

Naturalizing Divine Law, 30

Maimonides on Law, 35; From Law to Politics, 41

Monarchy—A King Must Be Appointed and Honored, 44;

The King and the Sanhedrin, 47; The King’s Right to

Command, 51; The King’s Right to Punish, 55; Royal

Law, 61; Consent, 65; The Maimonidean Monarchy—

Instrumental or Natural?, 67

CONTENTS

4 CONSTITUTIONAL CRISIS AND MESSIANIC

The Maimonidean Polity, 70; Politics and Religion, 72;

Tension, 75; The Messianic Polity, 77; The Utopian

Vision, 83; The Messianic Age and the Utopian Vision, 87; Conclusion, 89

PART 2: GERONDI

The History of Public Law, 95; Communal Authority, 100; Nahmanides, 106; Solomon ibn Adret (Rashba), 112;

Conclusion, 122

Politics, 127; The Structure of the Polity, 134; Divine Law, 138; Impasse, 143

  is often neglected by students of political theory Yetsome of the questions that engage them are precisely those that engaged themedieval philosophers—for example, the relationship between religion andstate Medieval philosophers’ attempts to understand religion and the politycan provide new perspectives on the viability of an accommodation be-tween revelation and legislation, the holy and the profane, the divine andthe temporal.

The separation of religion and state has long been a central theme inWestern political history and thought Since the Enlightenment, this separa-tion has served to uphold the individual citizen’s freedom of conscience Inmedieval political thought, the doctrine of the separation of religion andstate played a different role On the one hand, it served to maintain the in-tegrity of religious law—whether canon law, Islamic law, or Jewish law—vis-à-vis the monarch; on the other, it upheld the autonomy of the monarch andthe autonomy of human political agency against theocratic claims of divinesovereignty and clerical authority

This book explores the emergence and elaboration of the fundamentalpolitical concepts of medieval Jewish thought, primarily concepts related topolitical agency, political life as a distinct domain of human activity, andconstitutional politics I will analyze the two basic institutions of the Jewishpolity as the thinkers in question envisioned it: monarchy and the law

PREFACE

The very notion of Jewish political thought may seem paradoxical TheJews were exiled from their country upon the failure of the Great Rebellion

a people in exile whose sovereign power has been suspended? There is, ever, no need to assume that political insight is essentially linked to the exer-cise of sovereignty, for the exercise of sovereignty does not exhaust the range

how-of politically meaningful activity Further, the question displays a misreading

of medieval Jewish life Jewish communities in the Middle Ages both enjoyed

a wide degree of political autonomy and, as I hope to show, understoodthemselves through a political discourse they shared with contemporaryChristians and Muslims

The medieval Jewish conception of politics grew out of the fertile counter of a religious tradition emphasizing the role of law with two verydifferent influences: Greek philosophy as appropriated by Islamic philoso-phers and the reality of life in communities situated within Christian andMuslim empires Scholars and philosophers who found themselves at thiscultural crossroads reformulated the meaning of divine law and its relation

en-to human political life

Medieval Jewish thinkers assumed, of course, the existence of a revealedlaw They saw themselves as expositors of revealed truths rather than cre-ators of new ones Much of their philosophical creativity was expressed inexegetical commentary on the revealed law, that is, the Bible and the Tal-mud, whose legitimation they in turn sought Attention to such interpreta-tion is thus fundamental to penetrating their thought

I hope to show that there is unquestionably a tradition of Jewish politicaldiscourse, a tradition based on the canonical sources of Jewish law but in-corporating elements from the Greek philosophical tradition as well Al-though the classics of Jewish political thought were formulated more thanhalf a millennium ago, there is much in the corpus of Jewish political writ-ing that remains vital today and has a great deal to contribute to the ongo-ing constitutional debate on church/state relations and to the theory, in-creasingly relevant, of theocratic societies

POLITICS AND THE LIMITS OF LAW

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Josephus was the first to brand the constitution of the Mosaic law a racy In contrast to other known regimes—monarchy, oligarchy, and democ-racy—the regime of the law of Moses, he argues, is a theocracy, the rule of

Jew-ish and Gentile In Leviathan, Thomas Hobbes describes the regime of the

Ac-cording to Hobbes,

by the Kingdome of God is properly meant a Common-wealth,

insti-tuted (by the consent of those which were to be subject thereto) for

their Civill Government, and the regulating of their behaviour, not

onely towards God their King, but also towards one another in point

of justice, and towards other Nations both in peace and warre; which

properly was a Kingdome, wherein God was King, and the High priest

John Locke, too, in his Letter concerning Toleration, describes the Jewish

reli-gion as a theocracy

For the commonwealth of the Jews, different in that from all others,

was an absolute theocracy; nor was there, or could there be, any

differ-INTRODUCTION: DIVINE LAW

AND SECULAR POLITICS

ence between that commonwealth and the church The laws lished there concerning the worship of one invisible Deity were thecivil laws of that people, and a part of their political government, in

According to Josephus, Hobbes, and Locke, then, the political regime scribed by the Jewish religion is theocracy

pre-The characterization of Judaism as straightforwardly theocratic is echoed

in the twentieth century by various Jewish philosophers, some approving,

others critical In Kingship of God, Martin Buber describes premonarchic

Is-rael as a holy anarchy According to Buber, God’s reign precludes the tration of power and authority in human hands, thus creating an egalitarian

divine rule, as practiced by God’s worldly representatives, creates a society herently inimical to the modern democratic polity Theocracy, on his ac-

All these thinkers assert that a political dimension is integral to the ish religion and, further, that the political regime they envisage is one inwhich God is sovereign Politics is ultimately a divine prerogative

Jew-The theocratic conception of politics is undeniably rooted in the Bible.However, the worldview of rabbinic Judaism, expressed in biblical exegesis,legal codes, and philosophical treatises—especially as it developed in theMiddle Ages—embraces the secularization of politics, affirming human, asopposed to divine, political agency Indeed, it does so after giving carefulconsideration to the theocratic critique of politics This critique, going back

to the Bible, is based on two main arguments, one theological, the othermoral The theological argument claims that the realm in which human ini-tiative discharges itself is that of observing God’s law and obeying God’scommandments, while in the political arena, human initiative is an illusion,lacking any true efficacy The moral argument is that power corrupts, andhence, were individuals to be granted sovereignty, that is, to be crownedmonarchs, they would subjugate rather than serve their compatriots.The rabbinic tradition does not even consider theocracy as a form of gov-ernment Its foundational text, the Mishnah, speaks of a monarchic regimeand implicitly distinguishes between law and human politics The medievalauthorities elaborate on this theme, arguing that human nature necessitatesthe existence of secular temporal politics

The Polity

In the Jewish religion, divine law as revealed to humankind is presented in atext known as the Torah, also known as the Five Books of Moses, or Penta-teuch The law thus set forth and its oral explication are referred to as the

“path,” the halakhah The halakhah is a system of norms directing the lives

of both the individual and the community It thus seeks to order the publicdomain, mandating specific social and political institutions and offices,

This study considers two important questions raised by the juxtaposition

of law and political life What is the place of politics in a community that fines itself as bound by divine law? And what might the constitutionalarrangements of a polity designed for such a community be like?

de-I will inquire into the particulars of these legal and political institutionsand the relations between them: between the monarchy and the Sanhedrin,

the highest juridical institution; between the kahal, the community, and the

these basic social and political arrangements to assess the considerationsabout the nature and goals of political association upon which they rest

Of course, any legal system is at the mercy of political power But thequestion of the adequacy of the provisions made by a system of law for theexistence of a viable political regime remains I will examine the limits that

Jewish law, halakhah, imposes upon itself vis-à-vis political power for the

sake of social order and the consequences of this self-limitation for politicaljustice

To facilitate this investigation, I will explore the political tradition thatemerged in medieval Jewish Spain, focusing primarily on two thinkers,

Mai-monides, then the later developments, for which Maimonides’ ideas providedthe conceptual basis, in the area of public law governing Jewish communallife The most important attempts to articulate the theory of public law are

the thirteenth and fourteenth centuries The tradition of public law receivesits fullest theoretical exposition in Gerondi’s sermonic essay on politics

Maimonides needs no introduction His monumental codification of the

law in the Mishneh Torah (henceforth, Code) and his philosophical tion of Judaism in The Guide of the Perplexed are the preeminent classics of

exposi-Jewish thought Maimonides views the Torah as the sole law governing ety but proposes a monarch with broad powers to legislate and punish inde-pendently of it Although committed to the law’s authority and a proponent

soci-of the view that in messianic times the law and political life will be in mony, his conception of the law is such that politics in the realm of the ac-tual precedes the law, and justice may at times be sacrificed for the sake ofpolitical stability

har-All work on Maimonides’ conception of politics and law is indebted tothe great achievements of Maimonidean scholarship in the twentieth cen-tury Leo Strauss initially demonstrated the political quality of Maimonides’work, both in terms of its content and in terms of its exposition Strauss’sMaimonides is a political philosopher Strauss inquired into the relation be-tween philosophy, law, and the multilayered quality of Maimonides’ writingswith this characterization in mind yet did not examine Maimonides’ legalwritings His neglect of Maimonides’ legal work is in part a matter of prin-ciple, intended to underscore the greater dignity Strauss’s Maimonides ac-cords philosophy In part, it is a matter of a pragmatic division of labor inMaimonidean scholarship between research requiring expertise in philoso-phy and that calling for expertise in Jewish law

The important critics of the bifurcation of Maimonides into philosopherand jurist are David Hartman and the late Isadore Twersky Their work,however, focuses on the overall relation between philosophy and law in

Political Concepts in Maimonidean Halakha is an attempt to fill this gap It

provides a detailed and highly useful commentary on the Code’s Laws cerning Kings and their Wars It does not aspire, however, to provide an in-tegrated account of the two salient components of Maimonides’ politicaltheory—the philosophical, and the legalistic One of the goals of my study

con-is to fill thcon-is lacuna

Another goal is to place Maimonides in a tradition of secularizing tudes to politics in Jewish law Rooted in the Bible and Talmud, this traditioncontinues after Maimonides in the elaboration of the communal law thatguided the political lives of Diaspora Jewry Although much scholarly atten-tion has been devoted to the political history and legal codes of medieval Jew-ish communities, hardly any studies have been conducted on the political

atti-theory that emerged from the experience of Jewish political existence Thework of Nahmanides, Adret, Gerondi, and their students attests to a fascinat-ing incorporation of the themes of classical political science into halakhicdiscourse and decision-making on matters of public law Because politicalscience, unlike theology and metaphysics, was not perceived as dangerous tothe integrity of faith and the authority of religion, the Barceloneans, despiteantiphilosophical leanings, were willing to incorporate its concepts and in-sights into their work as interpreters of Jewish law The Barcelona schoolwent on to have critical impact on the development of Jewish law, the dis-semination of Kabbalah, and the emergence of a critical attitude to philoso-phy—particularly, Maimonidean philosophy—in Jewish culture.

Gerondi represents a widespread tradition of thought and practice rondi’s sermon on politics, which sketches the constitutional contours of anenvisioned Jewish monarchy, constitutes the fullest theoretical exposition ofthe tradition of public law Whereas Maimonides cautiously undertook tobalance the official authority of divine law, the one law of the polity, and the

Ge-de facto predominance of royal Ge-decree and legislation, Gerondi is muchbolder He openly speaks of two legal systems, distinguishing between the re-ligious role of divine law and the social role of the monarch, in effect limit-ing the scope of the former Divine law loses the political force it possesses inMaimonides’ account and is relegated to a predominantly ritualistic role.Taken together, these traditions, the philosophical Maimonidean and theantiphilosophical Nahmanidean or Barcelonean, suggest a range of possibil-ities for political activity This broad scope is made possible by circumscrib-

ing the domain of the halakhah Moreover, the positions articulated by these

traditions are not merely speculative but reflect actual juridical practice, andchanging perceptions of communal government Significantly, they repre-sent an explicit commitment to a political realm independent of divine law,that is, to the secularization of politics.10

As I use the term, secularization refers to the setting aside of certain areas

of human activity as beyond the purview of religious norms Politics, the vising of constitutional arrangements, is, in this conception, a worldly activ-ity, not a divine prerogative This sense of the term differs from that of sec-ularization as the historical process by which Western culture went frombeing religious to being secular, a fundamental societal transformation Inthis latter sense, “secularization connotes emancipation from the authority

de-of the Church and the emergence de-of independent values, norms,

pat-terns of authority, behavior and knowledge.” This process also includes the

I am not claiming that the two types of secularization are causally linked

—that modern secular culture has its roots in the more restricted ization of politics in the Middle Ages And obviously I am not claiming thatthe thinkers in question should be interpreted as in any way championingsecularization in the broader sense, as prophets or harbingers of the radicalsecularization of Jewish culture and society that has occurred in the twenti-

did not possess the concept of secularization They view their conceptions

as falling squarely within the parameters of the rabbinic tradition less, their interpretation of the sources on these matters is, from our per-

my-an understmy-anding of how the great medieval thinkers strove to harmonizethe realities of human existence with the ideals of divine law, we will alsogain insights that may be useful in working through present-day constitu-tional conflicts in Israel, which are, in essence, conflicts between different vi-sions of the best realizable order

Further, arriving at an understanding of these theories in their own text makes it possible to situate them in the tradition of political thought ingeneral In the concluding chapter, I relate the positions of Maimonides andGerondi to those of such early modern conceptualizers of politics: Machia-velli, Hobbes, and Spinoza

con-Biblical and Talmudic Background

The medieval Jewish thinkers worked within the conceptual framework of

halakhah, the body of Jewish law Their understanding of politics was

de-fined in terms of this system, and it is within the context of exploring thissystem that awareness of the space for politics arises The question of the re-lation between politics and law has deep roots in the Bible and the Talmud,the foundational texts of Rabbinic Judaism Two discussions in these sources,

in particular, are pivotal: the discussion in tractate Sanhedrin of the Talmudabout whether the king is subject to judgment by the Sanhedrin and the bib-lical debate over the monarchy The former sets out the institutional struc-ture within which the relations between politics and the law are manifested;the latter raises the more general question of the theological valuation of hu-man political autonomy I will briefly sketch the contours of these classic ex-changes in order to lay the groundwork for our analysis of the medievalthinkers

Tractate Sanhedrin comes closest to what might be considered a naic constitutional document It assumes a monarchic form of government.The basic governmental institutions are the Sanhedrin, which is judicial and

priesthood, which is sacerdotal However, only one paragraph is devoted to

dis-cussion of the Sanhedrin and its functions takes up most of the other tenchapters of the tractate The effect of this distribution is to present themonarchy and priesthood as fitting into the framework of the highest legalinstitution; as the name of the tractate attests, in the eyes of the Mishnah,the Sanhedrin is the predominant institution The various national institu-

tions are subject to the law, while the reverse is not the case Halakhah is not

the law of a king, a people, a state, or a temple, it is God’s law The law serves

as the context within which all other institutions are defined The drin, the institution charged by the law with its interpretation and applica-tion, is preeminent

Sanhe-This interpretation is strengthened by the order of the tractates followingtractate Sanhedrin Tractate Makkot, originally part of Sanhedrin, continues

to expound the penal code and discusses the laws of testimony and evidence.Tractates Shevu’ot and Horayot deal with legal procedure, and Eduyot andAvot establish the authority of the rabbinic tradition of legal interpretation.The fact that whole tractates of the Mishnah are devoted to a detailed ac-count of the judicial system and its responsibility and authority to enforce

Thus the following paragraph is quite striking:

The king neither judges, nor is he subject to judgment; he neither

The monarch is placed outside the reach of the law, and the law, in turn, isout of the reach of the monarch What is the import of this division betweenpolitical and legal functions? Does it reflect a kind of executive immunitydesigned to protect monarchs from legal suits that would undermine theirability to function, or is it a pragmatic assessment of political reality, namely,the inability to control monarchic power?

The Babylonian Talmud leans to the latter interpretation In its sion of this paragraph, it quotes Rav Yosef, who restricted its application tothe kings of Israel, that is, to non-Davidic kings In his view, kings of theHouse of David both judge and are subject to judgment This distinctionfollows a tragic historical experience with non-Davidic kings The Talmudrelates that King Yannai had a slave who was accused of having committed amurder Shimon b Shatah held the king responsible for his slave’s action andcalled to the Sages: “Set your eyes upon him, and let us judge him” (BT San-

finally agreed to appear in court for trial:

He came and took a seat Shimon b Shatah said to him: “King Yannai,stand on your feet and hear the testimony against you; and it is not be-fore us that you stand, but before Him who spoke and brought theworld into being.” [Yannai] answered, “Not as you say, but as yourcolleagues say!” He turned to his right, and they pressed their faces tothe ground; he turned to his left, and they pressed their faces to theground Then Shimon b Shatah said to them: “You possess thoughts;let the Master of Thoughts come and take revenge upon you!” Imme-diately, [the angel] Gabriel came and knocked them to the ground,and they died At that point it was established that “The king neitherjudges, nor is he subject to judgment; he neither testifies, nor is testi-

According to the Talmud, the Mishnaic rule is rooted in actual political perience Yet the precise nature of this bad experience is in need of furtherelaboration Is the passage indeed to be read as a story about a tyrannicalking, that is, about a tyrant who could not be controlled by the judicial es-

ex-tablishment? Or does it tell us about the failure of the Sanhedrin to stand up

to tyranny and support Shimon b Shatah? Either interpretation is plausible,and each may be correct The story may well be about both the abuse of po-litical power and the weakness of those charged with guarding the law TheTalmud concludes, in any case, not with delegitimation of the monarchy butwith accommodation To avoid conflict, expectations are lowered—the king

is relieved of accountability to the law

This lowering of standards for actual practice is accompanied by the tivation of the image of an ideal Davidic king who will “Render just verdicts,morning by morning; rescue him who is robbed from him who defrauded

be-tween the realms of politics and law, without connection to the behavior ofthe monarch, the Babylonian Talmud regards the functional division as a re-sponse to the flawed character of specific kings

Alternatively, the Talmud’s apprehension may be an echo of biblical

not merely about the merits of monarchy as a form of government: an tablished tradition views the political enterprise in general as tantamount toidolatry Although the Mishnah takes monarchy for granted, other positionsare recorded in the rabbinic literature:

Nehorai says: They demanded a king only so that he might lead them

into idolatry, as it is said, “That we also may be like all the nations; and

that our king may judge us, and go out before us, and fight our

bat-tles” (I Sam.:) (Sifre, Deut )

The idolatrous element in politics is twofold First, the story of the ation of the monarchy is one of Israel’s assuming political agency at its owninitiative, severing its dependence on divine direction by opting to be ruled

cre-by man rather than cre-by God The desert period and the period of the Judgeshad been characterized by the immediacy of divine political activity, withGod directly responsible for and the provider of law and security In request-ing a king, Israel is opting for human political autonomy: “that our king may

Undeniably, there is a biblical voice that expresses a critical view of man political agency It is particularly manifest in the prophetic invective re-

hu-garding Israel’s self-delusion as to its power to conduct foreign affairs, in the

The high politics of the prophets is a function of the prophetic theology thatsees God as acting in history, indeed, as the only real political agent God,says the prophet Isaiah,

will punish the majestic pride and overbearing arrogance of the king

of Assyria For he thought,

“By the might of my hand have I wrought it,

By my skill, for I am clever:

I have erased the borders of peoples;

I have plundered their treasures,

And exiled their vast populations.”

.Does an ax boast over him who hews with it,

Or a saw magnify itself above him who wields it?

As though the rod raised him who lifts it,

Human political agency is only apparent These verses do not simply rejectprudential considerations in politics; they deny the relevance of human will

to the course of political action and deny any rational access to the trueguidelines for such action by those not endowed with prophetic knowledge

of divine intentions

The second idolatrous aspect of politics is the concentration of power inhuman hands that comes with political organization Power is a divine pre-rogative; it is allocated by God, not achieved by humans: “Remember that it

This theme has been forcefully developed by Buber Buber maintains thatthe pursuit of statehood is the classic political expression of idolatry He ar-gues that giving up the “holy anarchy” of the Judges for a centralized form ofgovernment and replacing the charismatic judge moved by the immediacy

of the divine spirit with an institutionalized hereditary monarchy is a saking of theocracy—God’s rule—for human power As God tells Samuel:

for-“For it is not you that they have rejected; it is Me they have rejected as theirking” (I Sam.:).20

A consequence of human appropriation of power is the subjugation of oneindividual to another Samuel’s description of “the law of the king” vividlyportrays the servitude that the nation, in demanding the change of regime, ischoosing The king will take their sons as soldiers to fight his wars and asworkers to till his land He will take their daughters as servants to keep hishouse and prepare his food Instead of the king’s belonging to the people, the

But note that the controversy over the monarchy goes on record as a bate Although the request for a king is portrayed in the Book of Samuel as an

charged controversy is quite unusual Typically, the Bible handles such putes in one of two ways Sometimes dissent is simply not acknowledged.Camouflaged by means of artful editing, divergent opinions and interpreta-tions are inserted into the biblical text as inconspicuously as possible Indeed,the art of biblical criticism consists in part in the reconstruction of these in-dependent voices In other cases, dissenters are presented as rebels againstGod and their opinions as heresy, as, for example, in the story of Korah’s at-tack on the priesthood—Korah and his followers are swallowed alive by the

In the matter of the monarchy, by contrast, the different views are notconcealed, nor are any of the parties to the dispute easily branded as heretics.This openness may be indicative of the fact that human political autonomy

is exercised through deliberation about the lessons of past experience andthe viability of various future courses of action The debate is not merely adistinct stage that precedes and possibly launches political existence, butrather the debate over the formation of the polity is an integral part of po-litical agency and is recorded in the Bible as such Indeed, it constitutes thequintessential political activity—the founding of a regime

Contra Buber, the Book of Judges, read as the work of the pro-monarchicschool, offers a devastating critique of the absence of organized political life

in ancient Israel, closing with the words: “In those days there was no king inIsrael: everyone did as he pleased [literally: that which was right in his own

Judges could not provide the inner stability needed to prevent the down of social order, nor could it adequately respond to the growing exter-nal security threat posed by the Philistines In response to this sorry state,

The kinds of fears that concern the prophets are allayed by tailoring themonarchy to address these anxieties: the king of Israel is part of the natural

both God and the law:

When he is seated on his royal throne, he shall have a copy of this

Teach-ing [torah] written for him on a scroll Let it remain with him and

let him read in it all his life, so that he may learn to revere the Lord hisGod, to observe faithfully every word of this Teaching as well as theselaws Thus he will not act haughtily toward his fellows or deviate from

Thus it is God who chooses the king and, as in the case of Saul, removes himwhen the king fails to abide by God’s commands

Although the pro-monarchists could, of course, provide no guaranteesthat the idolatrous aspects of politics would not come to plague an Israelitemonarchy, their eventual success revolutionized Israel’s religion and left alasting mark on its ideals and aspirations Monarchic government continued

in Israel for centuries, and upon the loss of political sovereignty, its tion became the focus of national aspirations

restora-Jewish political language and symbols were, to a great extent, forged in themonarchic tradition The monarchy centralized worship in the capital city ofits own creation, Jerusalem It generated a new theology in which God’s cov-enant with Israel passes through the king, who is held responsible for the

through the monarchy Moshe Weinfeld has argued that

the revolutionary innovations introduced during the reigns of Davidand Solomon, in the course of time became acceptable religious idealswhich through the prophets became fundamentals in Jewish andChristian eschatology the election of a king like all the other na-

tions gave birth to the idea of a light to the nations, and the temple and

king’s palace became a house of worship for all peoples, a worldcenter for peace.25

But perhaps the most important legacy of the debate over the monarchy

is the very fact that it was preserved, ensuring that constitutional debate

would remain an ongoing feature of the Jewish tradition Furthermore, thedebate between the theocratic and the secular conceptions of politics hasnever been finally resolved Particular thinkers or canonical works have atdifferent times leaned toward one of these options, but when consideringthe tradition as a whole, it is the ongoing debate itself over the question ofwhether politics is holy or profane, theocratic or worldly, that is characteris-tic of Jewish thinking about politics.

Synopsis

Although discussion of politics in the Jewish tradition is characterized by anongoing tension between theocratic and secularizing tendencies, the rab-binic literature inclines to the latter This is particularly apparent with regard

to its approach to the constitutional arrangements of the polity In that theyare in agreement with this general rabbinic understanding, Maimonides andGerondi are not innovators Their contribution lies in their explicit theoret-ical and legal elaboration of this viewpoint As noted, the commitment to asecularizing approach to politics cuts across the main currents of medievalJewish thought, the philosophical and the antiphilosophical

In the first two chapters, I examine Maimonides’ views on political tions—the ruler, the law, and the polity as formulated in his philosophicalworks Maimonides, I argue, views the Torah as the one law of the polity, but

analysis of the Maimonidean polity, revealing how very intractable the lem of reconciling divine law and human politics remains Maimonides’messianic theory is presented as an attempted solution

polit-ical theory Gerondi, I argue, rejects the Maimonidean naturalization of theTorah In its place, he argues for the autonomy of politics and its separationfrom divine law The polity he envisages is characterized by two laws: Torahlaw and royal law

background against which Gerondi formulated his views on politics In ticular, it examines the political theories of Nahmanides and his student Sol-omon ibn Adret in Barcelona and shows how they were used to provide a

par-theoretical grounding for the legislative and coercive authority exercised bythe Jewish communal self-government Maimonides’ understanding of theauthority of the community, which contrasts markedly with that of the Bar-celoneans, is discussed as well.

as-sumptions implicit in his theory are explored by contrasting Gerondi’s ideaswith those of the philosophical and antiphilosophical streams within me-dieval Jewish thought, particularly their conceptions of Torah as divine law.The chapter ends by arguing that Gerondi’s constitutional theory is ulti-mately unable to separate divine and temporal law, much as Maimonides’formulation is unable to fuse them

A final chapter takes a broader look at the theories, considering bothAbravanel’s rejection of the secularizing tradition in favor of an idyllic the-ocracy and Spinoza’s rejection of Torah law in favor of the sovereign’s su-premacy I conclude by considering the price of secularizing politics from

the perspective of the halakhah: first, the question of how to contain

politi-cal power, and second, that of implications for the feasibility of a halakhicstate The medieval thinkers, I argue, clearly uphold the secularization ofpolitics, rejecting the halakhic polity as untenable

PART 1: MAIMONIDES

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’ political theory naturalizes politics In the Guide, political

authority is legitimized by an appeal to nature rather than by an appeal torevelation or divine command Nevertheless, Maimonides’ conception ofpolitics grows out of his understanding of Torah as divine law He bases histheory of government on the premise that politics is natural and law divine.The coming chapters chart the development of this conception, showingthat ultimately Maimonides is unable to resolve the tension between divineand natural

The consistency of particular doctrines through Maimonides’ variouspresentations in his different works cannot be taken for granted Indeed, it is

compatible, inhabit distinct realms of discourse Obviously, there is no ple correspondence between theoretical contentions about any given subjectand judicial rulings to which they may be germane The distinctions be-

sim-tween divine law, natural law, and nomos are not paralleled by those besim-tween

halakhah, Noahide law, and dina demalkhuta dina (the law of the kingdom

is law); the distinction between Davidic kings and Israelite kings cannot beviewed simply as a particularization of the distinction between the rule ofwisdom and the rule of law But while the meanings and application of theseconcepts differ significantly, these differences do not preclude the possibility

1 THE NATURAL FOUNDATIONS OF POLITICS

of comparison, they merely mandate meticulousness Maimonides himself,

it should be noted, presented philosophical discourse as “the science of the

I will, therefore, separate Maimonides’ treatment of the questions at hand

in the Guide from their treatment in the Code Ultimately, this

methodolog-ical stricture will serve to illustrate the fact that the two are fundamentallycompatible

“Man Is Political by Nature”

It has been explained with utmost clarity that man is political by nature and that it is his nature to live in society He is not like the other animals for which society is not a necessity.

—Guide:, p 

These lines from the Guide, echoing Aristotle on human political nature, are

that “the call to the Law followed necessarily” only from Moses’ prophetic

divine law Yet the Aristotelian terminology may obscure rather than

tra-dition Maimonides draws upon to downplay the differences between Platoand Aristotle and, in effect, to Platonize Aristotle This is especially so with re-

early Middle Ages, although Al-Farabi may have had access to an abridged

version Plato’s Republic, Laws, and Statesman were the basic texts in light of which Aristotle’s Ethics was read.

The import of the proclamation that “man is political by nature” is notself-evident Let us consider the passage Maimonides first states that humanbeings’ political nature “has been explained with utmost clarity.” There ap-

pears to be no other passage in the Guide where Maimonides claims that an assertion has been explained “with utmost clarity.” Throughout the Guide,

Maimonides takes the role of explicator Although the person to whom thebook is addressed does not join in the dialogue, the speaker/explicator as-sumes his presence The many subtle variations in the manner in which the

speaker points out familiar assumptions (for example,:, :, and :) and

at times exhorts the reader to pay particular attention to something (for

of explainer Many chapters end with the exhortation “know this” or stand this,” and many of the book’s arguments close with the formula “the

using this phrase to introduce a new premise rather than to indicate that aproposition has been proven Where and by whom has it been explained that

“man is political by nature”?

Maimonides may be referring to Greek or Arab philosophers who made

discus-sion of other matters That is, he is calling upon the reader to recall these

en-suing discussion then ties the two passages together, clarifying their widersignificance

compre-hending the structure of the universe Maimonides points out that althoughsuch a comparison could have been drawn using any animal, since all ani-mals are organic unities, humans are chosen as the analogue because onlyhumans possess a rational faculty by virtue of which they are able to governtheir lives This rational capacity is closely linked to their being a social andpolitical animal

Both elements of the Aristotelian definition of human beings as “rationalanimals” are important: we can ignore neither man’s basic animal nature andneeds nor his rationality To understand human nature it is necessary to com-pare human beings to other animal species Whereas many other animals canlive solitary lives, the human’s very existence demands a political life:

Let us suppose the case of an individual belonging to the human

species that existed alone, had lost the governance of its conduct, and

had become like the beasts Such an individual would perish

immedi-ately; he could not last even one day except by accident—I mean if he

should happen to find something he might feed on For the foods

through which he exists require the application of some art and

lengthy management that cannot be made perfect except through

thought and perspicacity, as well as with the help of many tools and

many individuals, every one of whom devotes himself to one singleoccupation For this reason one is needed who would rule them andhold them together so that their society would be orderly and havecontinued existence in order that the various individuals should helpone another (:, p )

Maimonides stresses that individuals cannot achieve material self-sufficiency;subsistence calls for collaborative effort The need for a ruler arises from thiscondition Maimonides does not explain here how it is that the ruler would

“hold them together,” but presumably the element of holding a society gether makes this individual more than just a manager; it makes this person

to-a ruler And it is becto-ause humto-an society hto-as to-a ruler thto-at it is distinctivelypolitical

Maimonides then further develops the idea that the human species’ pacity to battle the elements can be perfected only through “thought andperspicacity”:

ca-Because of this one finds in man the rational faculty in virtue ofwhich he thinks, exerts his perspicacity, works, and prepares by means

of various arts his food, his habitation, and his clothing Through it

he rules all the parts of his body in such a way that the ruling part acts

in the way it does and the ruled part is governed the way it is ruled.Because of this a human individual who, according to a suppositionyou might make, would be deprived of this faculty and left only withthe animal faculties, would perish and be destroyed immediately.(:, p )

involve the ability to rule and order subordinate elements for the sake of certed effort The sociopolitical and rational aspects of human beings are vir-tually interchangeable in Maimonides’ discussion: political rhetoric is used todescribe and explicate the function of practical reasoning Maimonides refers

con-to both politics and rationality as the capacity con-to govern conduct

of God, Maimonides offers the following parable:

For instance, if someone asks you, Has this country a ruler? you shall

answer him, Yes, undoubtedly And if he asks you, What proof is there

for this? you shall tell him, This proof is to be found in the fact that

while this money-changer is, as you see, a weak and small man and

this great amount of dinars is placed before him, this other big, strong,

and poor individual is standing in front of him and asking him to give

him as alms a carob-grain and that the money changer does not do

this, but reprimands him and drives him off by means of words For,

but for his fear of the ruler [sultan], the poor man would have been

quick to kill him or to drive him away and to take the wealth that is in

his possession Accordingly, this is a proof of the fact that this city has

a king (:, p )8

The distinctive achievement of the king, that which proves his presence inthe city, is the fact that asymmetry of individual physical strength does notundermine social order The fear instilled by the king ensures the bindingpower of social rules

role of rulers in maintaining order and peace Taken together, they explainthe transformation of an aggregate of human beings into a political society

In the opening lines of the chapter, Maimonides attributes to human naturetwo characteristics: it is political and it is social Assuming the reader’s priorknowledge, he does not explain why humans are social but simply assertsthat this is so He then moves forward from these premises to address thestructure of the polity

Maimonides begins by noting the tension between the diverse ity traits of individuals and the societal nature of man:

personal-Because of the manifold composition of this species you can

hardly find two individuals who are in any accord with respect to one

of the species of moral habits, except in a way similar to that in which

their visible forms may be in accord with one another Nothing

like this great difference between the various individuals is found

among the other species of animals For you may find among us

two individuals who seem, with regard to every moral habit, to

be-long to two different species Thus you may find in an individual

cru-elty that reaches a point at which he kills the youngest of his sons inhis great anger, whereas another individual is full of pity at the killing

This tension is resolved through politics:

Now as the nature of the human species requires that there be thosedifferences among the individuals belonging to it and as in addition so-ciety is a necessity for this nature, it is by no means possible that his so-ciety should be perfected except—and this is necessarily so—through

a ruler (:, p )

Politics, via the institution of ruling, the mastery of one human being overothers, is the necessary response to the inner tension arising from humanbeings’ natural diversity of character, which jeopardizes the possibility of so-cial life Although the ruler wields power in order to achieve certain ends, it

that the ruler possesses power, which is a natural endowment God “put itinto [the human species’] nature that individuals belonging to it should havethe faculty of ruling” (:, p ) It is the ruler who

gauges the actions of the individuals, perfecting that which is deficientand reducing that which is excessive, and who prescribes actions andmoral habits that all of them must always practice in the same way, sothat the natural diversity is hidden through the multiple points ofconventional accord and so that the community becomes well or-dered (:, p )

Miriam Galston has argued that the rules Maimonides has in mind at thisstage are “traditions” that “lack the formal character of promulgated laws.”She understands Maimonides as referring to a prepolitical community: “a

does not speak of law at this stage, this is not because it is prepolitical Onthe contrary, Maimonides speaks of the necessity of a ruler in the course ofexplicating man’s political nature He is characterizing the original form ofthe city and not a lower form as Galston suggests The point is not that the

community is prepolitical but that it is prelegal Maimonides presents themodel of political rule that precedes the giving of law Here he follows bothPlato and Al-Farabi, according to whom the wisdom of a live ruler is supe-rior to the rule of law Maimonides’ description echoes the Platonic prefer-

Indisputably, however, there are two aspects to ruling Its goal is the dering of society, a goal achieved through the correct use of power Thereare, therefore, two complementary political roles: that of legislator and that

or-of king In the initial description they appear to be filled by one and thesame person: “A ruler who gauges the actions of the individuals and whoprescribes actions and moral habits that all of them must always practice in

these qualities:

There is the one to whom the regimen mentioned has been revealed

by prophecy directly; he is the prophet or the bringer of the nomos.

Among them there are also those who have the faculty to compel

peo-ple to accomplish, observe, and actualize that which has been

estab-lished by those two They are a sovereign [al-sultan] who adopts the

nomos in question (:, p )

When Maimonides speaks about the role of the ruler in exercising power, he

the more general mudabber, which can also refer to the prophet (as, for

the king holds society together This power may or may not be exercised inaccordance with the law Politics in the narrow sense simply means wielding

It is clear that as there must be punishments, it is indispensable to

have judges distributed in every town There must be testimony of

witnesses, and a ruler [sultan] who is feared and held in awe and who

uses all sorts of deterrents and fortifies the authority of the judges and

In its fullest sense, politics is the ordering of a society through the exercise ofpower according to law A polity is an ordered association of people where

the power of the ruler and the order of law bond and regulate the divergentelements of society.

Modern Interpretations

Both medieval and modern interpreters of Maimonides have tended to derestimate the distinctively political quality of Maimonides’ position Con-sider two contemporary interpretations suggested for the proclamation that

un-“man is political by nature.” One of these, put forward by Lawrence Berman,focuses on its moral significance and disregards its political implications Adifferent approach is taken by Gershon Weiler, who is aware of the specificpolitical import this statement may have and seeks to undermine it.Berman was the first to follow Strauss’s suggestion that Maimonides’ po-litical thought be read against the background of his Islamic predecessorsand contemporaries Berman’s interpretation is given with a view to the eth-ical question of what constitutes the good life: is the contemplative or thepolitical life to be pursued? He examines Maimonides’ position on this ques-tion through an investigation of the two Islamic philosophers who exertedthe greatest influence on Maimonides’ philosophy, Abu Nasr MuhammadAl-Farabi and Abu Bakr Muhammad ibn Bajja Ibn Bajja argued for the pos-sibility of human beings’ union with the active intellect and for the pursuit

of the contemplative life But Maimonides, Berman argues, follows Al-Farabi

in upholding the ideal of imitatio dei (imitation of God), which implies

God created the world through reason, the philosopher creates a polity bythe use of reason

According to Berman, the import of Maimonides’ proclamation of man’spolitical nature is primarily moral: the good for man is determined by thefact that he is politically situated However, the degree of Maimonides’ com-mitment to political activism is questioned by many scholars, as is the de-gree of Al-Farabi’s When the issue of which virtuous path a person shouldchoose arises, Maimonides speaks in conflicting voices, and this ambivalence

is reflected in the interpretive controversies Berman’s focus is too narrow,and the import of man’s political nature is by no means restricted to its

Weiler’s Jewish Theocracy offers a different sort of deficient reading of

Maimonides on man’s political nature Weiler weakens Maimonides’ notion

of the political, making it more or less synonymous with the social ing to Weiler, Maimonides rejects the Aristotelian notion of the political asthat which pertains to a polity whose members “share in the civic life of rul-

Aristotle’s democratic conception of ruling, he must also reject Aristotle’sconception of politics Therefore, Weiler maintains, Maimonides cannot in-tend the dictum “man is political by nature” in its plain meaning In makingthis declaration, Weiler argues, Maimonides really means “social.” Humansare social animals in that they require a society to fulfill their material wants,and they are not self-sufficient.16

Although Maimonides is not interested in cultivating an Aristotelian izenry, this certainly does not imply that Maimonides lacks a notion of pol-itics Weiler construes politics as synonymous with the Aristotelian concept

cit-of citizenship He views political life as coterminous with democracy, moreparticularly, the type of democracy exemplified by the Athenian democracy.However, this reduction is unwarranted

Weiler’s larger agenda is to articulate the dangers posed by Jewish law to

Weiler conveniently disregards here what he remarks on earlier, namely, thatMaimonides follows Plato on many issues pertaining to political philosophy.According to Plato, nature requires that the intelligent and prudent rule over

agree-ment with Aristotle, and with Plato, on this point

Polity and Society

Weiler’s view notwithstanding, the distinction between the social and the litical is nonetheless important It will be useful to elucidate this distinction

po-by examining how it was understood po-by Maimonides’ predecessors and how

it in turn influenced his medieval interpreters I begin with Judah Halevi and