Tai Lieu Chat Luong POLITICS AND THE LIMITS OF LAW This Page Intentionally Left Blank Nostalg ia Jew ishness is a lullaby for old men gumming soaked white bread. , moder nist Yiddish poe t CONTRAVERSIONS JEWS AND OTHER DIFFERENCES DANIEL BOYARIN, CHANA KRONFELD, AND NAOMI SEIDMAN, EDITORS The task of “ The Science of Judaism” is to g ive Judaism a decent bur ial. , founder of nine tee nth-ce ntur y philolog ical Jew ish Studies This Page Intentionally Left Blank POLITICS AND THE LIMITS OF LAW secularizing the political in medieval jewish thought MENACHEM LORBERBAUM Stanford Universit y Press • Stanford, Califor nia 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.
— (Contraversions) Includes bibliographical references and index. Judaism and politics—History—To . Maimonides, Moses, ‒—Contributions in political science. Nissim ben Reuben Gerondi, ?‒—Contributions in political science.
Contraversions (Stanford, Calif.''—dc Original printing Last figure below indicates year of this printing: Typeset by James P. Minion and Copperplate ACKNOWLEDGMENTS has benefited from the generosity of many indi- viduals and institutions, and I would like to express my gratitude for the friendship and encouragement I have received. David Hartman created the Shalom Hartman Institute in Jerusalem, a spiritual 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 and Noam Zohar, my colleagues at the Shalom Hartman Institute, have always been there for me, reading my work and never tiring of my formulations and reformulations.
Most of this book was written at the School of Social Science of the Insti- tute for Advanced Study at Princeton, where I was privileged to have Michael Walzer 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 the tradition of Jewish political thought. No atmosphere could be as conducive to this work as that of the Institute for Advanced Study.
An earlier version of this work was submitted as a Ph. dissertation to the Hebrew University of Jerusalem. My thesis adviser, Aviezer Ravitzky, has been a constant source of encouragement in its maturing into a book. Gerald Blid- stein, Yaron Ezrahi, Warren Zev Harvey, Allan Silver, and Israel Tashma read early versions of this work; their insights and comments were most helpful.
vii The Department of Jewish Philosophy at Tel-Aviv University provided a superb scholarly framework within which to develop my ideas. I am grateful to my colleagues for their support. Parts of this work were presented at semi- nars and colloquiums, and I have benefited from the comments of Sara Klein- Braslavy, Shlomo Biderman, and Yael Tamir. The late Jacob Levinger and the late Gershon Weiler actively participated in those encounters.
The work on this book was completed while on sabbatical from Tel-Aviv University. The Koret Jewish Studies Publications Program generously subsidized the publication of this book. My editor, Nessa Olshansky-Ashtar, has worked tirelessly to make this a better book. Philosopher, critic, and editor, she has been the best reader an author could hope for.
Finally, I wish to thank Daniel Boyarin, editor of the Contraversions se- ries; Helen Tartar of Stanford University Press; and my copyeditor, Robert Burchfield, for their dedicated work. viii ACKNOWLEDGMENTS CONTENTS xi INTRODUCTION: DIVINE LAW AND SECULAR POLITICS 1 The Polity, 3; Biblical and Talmudic Background, 6; Synopsis, 13 PART 1: MAIMONIDES 1 THE NATURAL FOUNDATIONS OF POLITICS 17 “Man Is Political by Nature,” 18; Modern Interpretations, 24; Polity and Society, 25; Medieval Interpretations, 28; Naturalizing Divine Law, 30 2 THE INSUFFICIENCY OF LAW 35 Maimonides on Law, 35; From Law to Politics, 41 3 THE CODE ON THE PRIORITY OF POLITICS 43 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 ix 4 CONSTITUTIONAL CRISIS AND MESSIANIC RESOLUTION 70 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 5 THE KAHAL AS A POLITY 93 The History of Public Law, 95; Communal Authority, 100; Nahmanides, 106; Solomon ibn Adret (Rashba), 112; Conclusion, 122 6 THE AUTONOMY OF POLITICS 124 Politics, 127; The Structure of the Polity, 134; Divine Law, 138; Impasse, 143 CONCLUSION: SECULARIZING POLITICS 151 Turning to Modernity, 156 163 193 209 213 x CONTENTS PREFACE is often neglected by students of political theory. Yet some of the questions that engage them are precisely those that engaged the medieval philosophers—for example, the relationship between religion and state. Medieval philosophers’ attempts to understand religion and the polity can provide new perspectives on the viability of an accommodation be- tween revelation and legislation, the holy and the profane, the divine and the temporal.
The separation of religion and state has long been a central theme in Western political history and thought. Since the Enlightenment, this separa- tion has served to uphold the individual citizen’s freedom of conscience. In medieval political thought, the doctrine of the separation of religion and state 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 and the autonomy of human political agency against theocratic claims of divine sovereignty and clerical authority.
This book explores the emergence and elaboration of the fundamental political concepts of medieval Jewish thought, primarily concepts related to political agency, political life as a distinct domain of human activity, and constitutional politics. I will analyze the two basic institutions of the Jewish polity as the thinkers in question envisioned it: monarchy and the law. xi The very notion of Jewish political thought may seem paradoxical. The Jews were exiled from their country upon the failure of the Great Rebellion ( ): what politically relevant wisdom can be culled from the thought of a people in exile whose sovereign power has been suspended? There is, how- 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 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, understood themselves through a political discourse they shared with contemporary Christians and Muslims. The medieval Jewish conception of politics grew out of the fertile en- counter of a religious tradition emphasizing the role of law with two very different influences: Greek philosophy as appropriated by Islamic philoso- phers and the reality of life in communities situated within Christian and Muslim empires. Scholars and philosophers who found themselves at this cultural crossroads reformulated the meaning of divine law and its relation to human political life.
Medieval Jewish thinkers assumed, of course, the existence of a revealed law. They saw themselves as expositors of revealed truths rather than cre- ators of new ones. Much of their philosophical creativity was expressed in exegetical 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 political discourse, 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 than half 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. xii PREFACE POLITICS AND THE LIMITS OF LAW This Page Intentionally Left Blank INTRODUCTION: DIVINE LAW AND SECULAR POLITICS Josephus was the first to brand the constitution of the Mosaic law a theoc- 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 God.1 Similar characterizations were put forward by later writers, both Jew- ish and Gentile.
In Leviathan, Thomas Hobbes describes the regime of the Jews as the Kingdom of God—“a reall not a metaphoricall Kingdome.”2 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 was to be (after the death of Moses) his sole Viceroy, or Lieutenant.3 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- 1 ence between that commonwealth and the church. The laws estab- lished there concerning the worship of one invisible Deity were the civil laws of that people, and a part of their political government, in which God himself was the legislator.4 According to Josephus, Hobbes, and Locke, then, the political regime pre- scribed by the Jewish religion is theocracy. 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 concen- tration of power and authority in human hands, thus creating an egalitarian society.5 On the other hand, in Jewish Theocracy, Gershon Weiler argues that divine rule, as practiced by God’s worldly representatives, creates a society in- herently inimical to the modern democratic polity. Theocracy, on his ac- count, precludes human political autonomy.6 All these thinkers assert that a political dimension is integral to the Jew- ish religion and, further, that the political regime they envisage is one in which God is sovereign. Politics is ultimately a divine prerogative.
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 the Middle Ages—embraces the secularization of politics, affirming human, as opposed to divine, political agency. Indeed, it does so after giving careful consideration to the theocratic critique of politics. This critique, going back to the Bible, is based on two main arguments, one theological, the other moral.
The theological argument claims that the realm in which human ini- tiative discharges itself is that of observing God’s law and obeying God’s commandments, while in the political arena, human initiative is an illusion, lacking any true efficacy. The moral argument is that power corrupts, and hence, were individuals to be granted sovereignty, that is, to be crowned monarchs, they would subjugate rather than serve their compatriots.