This article originally appeared in
 the Alberta Jewish News, Calgary

Drifting above the Law*

Until the previous American administration, many of us simply accepted the premise that nobody is above the law as a foundation of a just and of democratic government.

Of course this has not always been the case. Until quite recently almost all societies were ruled by monarchs who ruled with some degree of absoluteness, or even claimed divine status. They were not elected by popular vote, nor were there effective mechanisms in place for enforcing their adherence to the law.

It is debatable whether the Bible was actively commanding the appointment of kings, or merely conceding that monarchy is a permissible option. At any rate, its principal stress was on setting limits to royal power and ensuring that it is subordinated to the Torah. The prophet Samuel opposed the people’s demand for an institutionalized monarchy, which he saw as a betrayal of their trust in God; and he had to be prodded by the Almighty to accede reluctantly to their wishes.

In the fourteenth century, Rabbi Nissim of Gerona outlined a theory of separate monarchical and judicial branches of government that should not trespass on each other’s area of authority. He deemed the judiciary to be primary in that it is charged with applying the laws of the Torah. Nevertheless, the king is assigned the authority to overrule judicial verdicts in order to protect the community—for instance, by applying extra-judicial penalties to serial criminals who would otherwise evade retribution on account of the cumbersome Jewish laws of testimony and “Miranda'' notifications. According to Rabbi Nissim, Samuel’s objection was not so much to the Israelites’ demanding a king as to their wanting the king to exercise judicial functions.

Josephus Flavius told a story about young Herod son of Antipater who, while serving as governor of Galilee under the nominal kingship of John Hyrcanus, was indicted for killing a zealot resistance fighter without proper trial. The Jewish leadership warned the ineffectual Hyrcanus that Antipater and his sons were becoming the de facto rulers and must be halted before they became unstoppably powerful.

Herod did submit to being tried before the Sanhedrin, but not without bringing along a cohort of armed supporters. This threat of violence did in fact succeed in intimidating all his judges and accusers except for a lone prosecutor named Sameas who vocally berated the spineless political and judicial leadership. Hyrcanus capitulated to Roman pressure to postpone judgment and thereby facilitate Herod’s escape. Josephus recounts that Sameas did achieve eventual vindication when Herod captured Jerusalem and killed Hyrcanus and the entire Sanhedrin—except for the embittered Sameas who had opened the gates to facilitate his entry into the city.

The Talmud recounted the same event, albeit with some changes in detail. In its version, the defiant defendant was the Hasmonean king Yannai [one midrashic tradition refers vaguely to “one of the Hasmonean kings”] and his prosecutor was Simeon ben Shaṭaḥ. It describes dramatically how Simeon turned to his right and left, only to find that his spineless colleagues had buried their heads in the sand like so many Republican senators. The Talmud has it that the cowardly judges later suffered divine punishments for their cowardice.

Babylonian sages adduced this episode as background to the Mishnah’s ruling that “a king does not judge and is not judged,” They explained that the ruling was not directed at righteous kings of the house of David, but only to the ‘kings of Israel,” evidently referring to the ruthless figures who reigned over the second Jewish Commonwealth and could intimidate potential judges from issuing honest verdicts.

Outside the Jewish domain, ancient authors acknowledged that their kings were a law unto themselves.

The satirist Horace illustrated this truth by alluding to Sophocles’ story of how King Agamemnon had denied burial to the warrior Ajax and justified his cruel decision on the grounds that he was the king (“because I say so”), whereas the person who objected to him was a mere plebeian. End of discussion.

In this connection the commentator Pomponius Porphyry cited a Greek adage “moroi kai basilei agraphos nomos”; “for a madman or a king the law is unwritten.” Its apparent meaning is that these two classes of persons, albeit for different reasons, are outside the control of the laws that apply to everybody else.

A very similar saying—in transliterated Greek (and with some grammatical awkwardness that is understandable from a rabbi who had been raised in Babylonia)—appears in the Midrash and the Jerusalem Talmud in an exposition by Rabbi Eleazar ben Pedat: “para basileos ho nomos agraphos”—for a king the law is not written.

Rabbi Eleazar illustrated the point by means of a remarkable analogy: In the mortal realm, when a king issues an edict, he has the option of either carrying it out himself or delegating it to others. By contrast, the God of Israel does not impose commandments unless he is prepared to accept them upon himself (though in “unwritten,” voluntary status). The Talmud attached this bold remark to the words of the Torah, “They shall keep my charge... I the Lord consecrate them,” understood in the sense that the Lord is applying the same charge even to himself! For example, as Abraham bargained for the lives of the Sodomites, the Almighty “stood” respectfully before him in keeping with the precept “Thou shalt rise up before the hoary head and honour the face of the old man.״

A midrashic passage tells of a group of prominent first-century C.E. sages who preached this theme in Rome, and one wonders how it was received in the emperor’s own bailiwick.

The Greek slogan about the law being unwritten, in the sense of its not being applicable to kings (or madmen), contrasts sharply with its usage in rabbinic teachings. Rabbi Eleazar interpreted that even the master of the universe subjects himself to the same laws that obligate humans.

In all likelihood, this was precisely the contrast that the Jewish sages were trying to highlight.


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

[*]
  • First Publication:
    • The Alberta Jewish News Digital edition, June 17 2021, Edmonton and Calgary.
  • For further reading:
    • Ben-Shalom, Israel. The School of Shammai and the Zealots’ Struggle Against Rome. Jerusalem: Yad Itzhak Ben-Tsevi and Ben-Gurion University of the Negev Press, 1993. [Hebrew]
    • Cohen, Naomi G. “‘Agraphos Nomos’ in Philo’s Writings.” Daat: A Journal of Jewish Philosophy & Kabbalah 15 (1985): 5–20. [Hebrew]
    • ———. “The Jewish Dimension of Philo’s Judaism: An Elucidation of De Spec Leg Iv 132-150.” Journal of Jewish Studies 38, no. 2 (1987): 165–86.
    • Efron, Joshua. Studies on the Hasmonean Period. Studies in Judaism in Late Antiquity 39. Leiden ; New York: E.J. Brill, 1987.
    • Federbusch, Simon. Mishpaṭ ha-Melukhah be-Yisra’el. Jerusalem: Mossad Harav Kook, 1952. [Hebrew]
    • Flatto, David C. “Justice Retold: The Seminal Narrations of the Trial of the Judean King.” The Journal of Law and Religion 30, no. 1 (2015): 3–35.
    • Goodblatt, David M. The Monarchic Principle: Studies in Jewish Self-Government in Antiquity. Texte Und Studien Zum Antiken Judentum 38. Tübingen: J.C.B. Mohr (P. Siebeck), 1994.
    • Harvey, Warren Zev. “Liberal Democratic Themes in Nissim of Geronai.” In Studies in Medieval Jewish History and Culture, edited by Jay M. Harris and Isadore Twersky, 3:197–211. Harvard Judaic Monographs 8. Harvard University Press, 2001.
    • ———. “Rabbi Nissim of Girona on the Constitutional Power of the Sovereign.” Diné Israel 29 (2014): 91*-100*.
    • Heinemann, Isaak. “Die Lehre vom ungeschriebenen Gesetz im jüdischen Schrifttum.” Hebrew Union College Annual 4 (1927): 149–71. [German]
    • Kahana, Menahem. Sifre Zuta on Deuteronomy: Citations from a New Tannaitic Midrash. Jerusalem: Magnes Press, 2002. [Hebrew]
    • Kefir, Tziviah. “Yannai ha-Melekh ve-Shim‘on ben Sheṭaḥ (Sanhedrin 19a-b): Aggadah Amora’it be-Taḥposet Hisṭorit.” Ṭura 3 (1994): 85–97. [Hebrew]
    • Lieberman, Saul. Greek in Jewish Palestine: Studies in the Life and Manners of Jewish Palestine in the II-IV Centuries C. E. New York: The Jewish Theological Seminary of America, 1942.
    • ———. “How Much Greek in Jewish Palestine?” In Studies and Texts, edited by Alexander Altmann, 1. Biblical and Other Studies:123–41. Cambridge MA: Harvard University Press, 1963.
    • Martens, John W. One God, One Law: Philo of Alexandria on the Mosaic Greco-Roman Law. Studies in Philo of Alexandria and Mediterranean Antiquity 2. Leiden: Brill, 2003.