This article originally appeared in
            the Alberta Jewish News, Calgary

With Rod or Whip*

In light of current controversies over the legitimacy and scope of police departments, it might be instructive to glance at how some similar issues have been addressed in Jewish tradition.

The modern Hebrew word for police: “shoṭer,” has a venerable biblical pedigree. The Israelites were commanded to appoint judges and shoṭerim in order to ensure a righteous society in their homeland; and yet the precise functions of the shoṭer are not stipulated. Comparisons with occurrences elsewhere in scripture and cognate languages indicate that it designated an administrative official. Ibn Ezra explained that they constituted the political leadership that was the source of judicial authority. The same term was used, for example, to designate the Hebrew officers (from the tribe of Levi, according to rabbinic tradition) whom the Egyptian taskmasters appointed to oversee the slaves.

Early rabbinic texts assigned the shoṭer the specific task of enforcing judges’ decisions by force —“with a rod or whip”—especially if the parties refuse to accept the verdicts. The Maharal of Prague explained that it would be beneath the dignity of judges to soil their hands personally in scuffles with recalcitrant litigants.

When referring to their own judicial structures the rabbis of the Talmud employed a more precise term: the “sh’liaḥ beit din” (agent of the court) whose job descriptions chiefly involved enforcing judges’ directives such as carrying out sentences.

Another category of enforcer mentioned in the Talmud and Midrash was the “agoranomos,” a prominent official in Hellenistic societies whose functions were adapted into the talmudic legal system. This was the market overseer who regulated—by force, if necessary—weights, measures and prices.

Making allowances for the vagaries of the nomenclature, I shall be conveniently translating all those official titles as “police.”

Jewish biblical exegetes expressed differing opinions about the degree to which the Torah allows the police independent authority in the exercise of their duties. Rabbi Elijah Mizrachi astutely summarized two prevalent approaches: On one side stand those who regard the police as the main wielders of power. They are the ones who can coerce parties to obey the judges’ decisions, whereas (as argued by Rabbi Eleazar in the Midrash Tanḥuma) the courts only issue theoretical verdicts that might be disregarded by the citizenry. The alternate position held that genuine power lies exclusively in the hands of the judges, whereas the police possess no authority other than what the judges confer upon them.

Maimonides’ code of Jewish law blended the diverse functionaries from the biblical and talmudic sources into a cohort of police who circulate through the marketplaces to regulate prices and weights, with a mandate to impose corporal punishment on violators.

But he also assigned them some duties for which there was no evident source in the earlier Jewish literature: For example, his police are authorized to actively patrol public areas—or even private residences—to forestall immodest partying, drinking and socializing between the sexes. Rabbi Jacob Zvi Mecklenburg ingeniously inferred such duties from the Torah’s stipulation that the judges and officers be appointed “throughout thy tribes.”

However, it is more likely that Maimonides was drawing here not on Jewish precedents but on the norms of his Muslim environment where an official known as the “muḥtasib” was responsible for enforcing not only commercial integrity, but also personal morality and even religious orthodoxy and ritual practice. In fact these areas also fell under the jurisdiction of the ancient Hellenistic “agoranomos.” Nevertheless Maimonides refrained from assigning such intrusive authority to the Jewish policeman.

There is some ambivalence or inconsistency regarding the circumstances that warrant the police employing “rods and whips,” as distinct from merely arraigning defendants before the judges. The Torah ordained that perpetrators of involuntary manslaughter were allowed to flee to specially designated cities of refuge where they would be protected from the victims’ “blood avengers.” This fuelled intense rabbinic discussions to specify the distinctions between categories of premeditated homicide, unavoidable accidents, and manslaughter through negligence. In this connection Abba Shaul proposed in the Mishnah that a policeman (“agent of the court”) should be completely exonerated if he caused a death in the performance of his duties. He derived this from the fact that the Torah illustrates the law with a case of chopping wood in the forest, a purely discretionary activity. This implies that if the death occurred while performing one’s duty (including disciplining of children or students!), then there would be no liability whatsoever, not even as involuntary manslaughter.

In keeping with his view that agents of the court are authorized to use physical force in enforcing the law, Maimonides understood that the sages were speaking about a policeman’s unintentional killing of a suspect who was resisting arrest—including, apparently, one who had not been officially declared guilty. Only in such equivocal cases was it necessary for Abba Shaul to expound that the officer was not even punishable for manslaughter—but this was only because of his involvement in a Torah-mandated activity.

Maimonides’ arch-critic Rabbi Abraham ben David, the “Ra’avad” of Posquières, protested that there was no talmudic source for Maimonides’ interpretation. He therefore proposed a different understanding of the case, based on a scenario that is mentioned elsewhere in the Mishnah in connection with a court bailiff who caused a culprit’s death by fatally exceeding the number of lashes he was supposed to administer (although that source actually declares the bailiff guilty of manslaughter and subject to exile to a sanctuary city).

Underlying these discussions are differing views about the proper roles of police and the limits that should be set to their use of force. All this resonates strongly with our current controversies about public policy. I find no indication that the rabbis’ involvement with these questions arose in response to actual incidents, nor that they contemplated situations of deliberate police brutality. More probably they were doing their best to balance the practical necessity for law enforcement with their conviction that the police themselves must be answerable before the law.


Return to the main index of Eliezer Segal's articles

My email address is: eliezer.segal@ucalgary.ca

[*]
  • First Publication:
    • The Alberta Jewish News, Edmonton and Calgary, November 3, 2020, p. 14.
  • For further reading:
    • Baron, Salo W. “The Economic Views of Maimonides.” In Essays on Maimonides: An Octocentennial Volume, edited by Salo W. Baron, 127–264. New York: Columbia University Press, 1941.
    • Blidstein, Gerald J. “Muḥtasib and Shoter—The Shape of Cultural Diffusion.” In Sobre La Vida y Obra de Maimónides: I Congreso Internacional (Córdoba, 1985), edited by Jesùs Pelaez del Rosal, 37–43. Córdoba: Ediciones el Almendro, 1991.
    • Foster, Benjamin R. “Agoranomos and Muhtasib.” Journal of the Economic and Social History of the Orient 13, no. 2 (1970): 128–44.
    • Sperber, Daniel. “On the Office of the Agoranomos in Roman Palestine.” Zeitschrift Der Deutschen Morgenländischen Gesellschaft 127, no. 2 (1977): 227–43.
    • Taragin, Moshe. “She’liaḥ Beit Din She-Harag be-Shogeg.” Text, February 13, 2018. [Hebrew]