When setting forth its view of power—the legitimate use of violence—and the disposition of power in society, the Mishnah’s authorship describes matters in a manner that is fundamentally political, inventing a political structure and system integral to its plan for the social order. Israel forms a political entity, fully empowered in an entirely secular sense, just as Scripture had described matters. To political institutions of the social order, king, priest, and court or civil administration, each in its jurisdiction, is assigned the right legitimately to exercise violence here on earth, corresponding to, and shared with, the same empowerment accorded to institutions of Heaven. These institutions moreover are conceived permanently to ration and rationalize the uses of that power. The picture is this-worldly, but, not distinguishing crime from sin, it is not secular, since the same system that legitimates king, high priest, and court posits in Heaven a corresponding politics, with God and the court on high exercising jurisdiction for some crimes or sins, the king, priesthood, or court down below for others.
Among prior Judaisms only the scriptural system had set forth a politics at all. The appeal to politics in setting forth a theory of the social order of their particular “Israel” will have provoked some curiosity among, for one example, the framers of the Judaism portrayed by the Essene library uncovered at Qumran, and, for another, the framers of the Christianity of the Land of Israel in the first century. Both groups, heirs of the ancient Scriptures as much as were the framers of the Mishnah, found in politics no important component of the systemic structure they set forth. By contrast, the integration, within a systematic account of the social order, of a politics will not have surprised the great figures of Greco-Roman philosophy, Plato and Aristotle for example. That fact takes on consequence when we note that the Pentateuch simply does not prepare us to make sense of the institutions that the politics of Judaism for its part designs. The pentateuchal politics invokes priest and prophet, Aaron and Moses, but knows nothing of a tripartite government involving king, priest, and sage; nor do the royal narratives concede empowerment to the priest or sage. On the other hand, as we shall see, knowledge of the Politics of Aristotle and the Republic of Plato gives perspective upon the politics of the Mishnah.
The Pentateuch, for its part, while definitive of the principles and details of the distributive economics of the Mishnah, contributes nothing to the Mishnah’s scheme of routine government by king and high priest and sages’ court. The Pentateuch’s prophetic rule and constant appeal to God’s immediate participation in the political process, by contrast falls into the category of a politics of charisma. The difference is not merely that the Pentateuchal institutions appeal to prophet and priest; it also is a difference in how the structure works as a political system. The pentateuchal myth serves to legitimate coercion. Rule by God’s prophet, in the model of Moses, governance through explicitly revealed laws that God has dictated for the occasion—these conceptions play no active and systemic role whatsoever in the formulation and presentation of the politics of Judaism. Philosophical systems use politics, by contrast, to set forth the rules and unchanging order of legitimate exercise of power, its teleology and its structure. Plato and Aristotle make no place for godly intervention on any particular occasion.
And for their part, among the types of political authority contained within the scriptural repertoire, the one that the Mishnah’s philosophers reject is the prophetic and charismatic. The one that they deem critical is the authority governed by rules in an orderly, rational way. The principal political figures—king, high priest, the disciple of the sage—are carefully nurtured through learning of rules, not through cultivation of gifts of the spirit. The authority of sages in the politics of Judaism in particular does not derive from charisma, e.g., revelation by God to the sage who makes a ruling in a given case, or even general access to God for the sage. So the politics of the Pentateuch—structure and system alike—in no way forms the model for the politics of the Mishnah. Hence the correct context for the classification of the Mishnah’s politics must be located elsewhere than in a Judaism between the Pentateuch’s and the Mishnah’s, ca. 500 B.C. to A. D. 200. But what about the Greco-Roman tradition of philosophical politics?
With the pentateuchal precedent in mind, we can hardly judge as an indicator of the philosophical character of the Mishnah’s politics merely the presence of a highly orderly and systematic political structure and system. Three specific traits, however, direct our attention toward the philosophical classification for the Mishnah’s politics in framing a systemic composition. That is so even though, to be sure, the parallels prove structural and general, rather than detailed and doctrinal, unlike the case with economics.
First, like the politics of Plato and Aristotle, the Mishnah’s politics describes only a utopian system, a structure of a fictive and a fabricated kind: intellectuals’ conception of a politics. Serving the larger purpose of system-construction, politics of necessity emerges as invention, e.g., by Heaven or in the model of Heaven, not as a secular revision and reform of an existing system. While in the middle second-century Rome incorporated their country, which they called the Land of Israel and the Romans called Palestine, into its imperial system, denying Jews access to their capital, Jerusalem, permanently closing their cult-center, the Temple, the authorship of the Mishnah described a government of a king and a high priest and an administration fully empowered to carry out the law through legitimate violence. So the two politics—the Mishnah’s, the Greco-Roman tradition represented by Plato’s and Aristotle’s—share in common their origins in intellectuals’ theoretical and imaginative life. The two constructions form an instance, within that life, of the concrete realization of a larger theory of matters. In strange and odd forms, the Mishnah’s politics falls into the class of the Staatsroman, the classification that encompasses, also, Plato’s Republic and Aristotle’s Politics. But, admittedly, the same characterization may be said of the strange politics of the Pentateuch.
Second and more to the point, the Mishnah’s sages stand well within the philosophical mode of political thought that begins with Aristotle, who sees politics as a fundamental component of his system when he says, “political science . . . legislates as to what we are to do and what we are to abstain from;” and, as to the institutionalization of power, I cannot imagine a more ample definition of the Mishnah’s system’s utilization of politics than that.1 While that statement, also, applies to the Pentateuchal politics, the systemic message borne by politics within the Pentateuchal system and that carried by politics in the Mishnah’s system do not correspond in any important ways. Aristotle and the philosophers of the Mishnah utilize politics to make systemic statements that correspond to one another, in that both comparison and contrast prove apt and pointed. Both spoke of an empowered social entity; both took for granted that on-going institutions legitimately exercise governance in accord with a rationality discerned by distinguishing among those empowered to inflict sanctions. Both see politics as a medium for accomplishing systemic goals, and the goals derive from the larger purpose of the social order, to which politics is subordinated and merely instrumental.
But, third, the comparison also yields a contrast of importance. Specifically, since political analysis comes only after economic analysis and depends upon the results of that prior inquiry into a social system’s disposition of scarce resources and theory of control of means of production, we have no choice but to follow up the results of the preceding chapter and compare the politics of Aristotle and the politics of the Mishnah, just as we did the economics of each system. For when we know who commands the means of production, we turn to inquire about who tells whom what to do and why: who legitimately coerces others even through violence. And here the Mishnah’s system decisively parts company with that of the Pentateuch and also with that of Aristotle.
As to the former, the distributive economics of the Pentateuch, in the Priestly stratum at the foundations, assigns both economic and political privilege to the same class of persons, the priesthood, effecting distributive economics and distributive politics. But that is not the way things are in the Mishnah’s politics, which distinguishes the one in control of the means of production from the one control of the right legitimately to commit violence. The former, the householder, is not a political entity at all, and, dominant as the subject of most sentences in the economic tractates, he never appears in the political expositions at all.
When we come to Aristotle, the point in common underlines the difference. For their part, both Aristotle and the Mishnah’s philosophers give the same answer about what “person” (in our century we prefer “class” or “caste” or other more abstract and impersonal categories) forms the commanding presence in control of the means of production, the householder. For Aristotle and for the Mishnah’s sages, the fundamental unit of economic thought and the generative social metaphor of their respective systems was the householder. The givens of the thought-world of the Mishnah’s framers’ theory of economics, embedded in a larger systemic plan, in fact correspond point by point with the economic program of Aristotle. And that statement simply does not apply to the pentateuchal politics. Accordingly, the context in which the political structure and system of the Mishnah finds its proper place is the Greco-Roman philosophical one; the differences from the pentateuchal politics, both in detail and in overall structural traits, decisively remove the Mishnah’s politics from the scriptural tradition. But these same differences set the Mishnah’s politics apart from Aristotle’s as well.
So, as I said, that important point of difference from Aristotle is to be seen only within the context of the similarity that permits comparison and contrast. While the economics of Aristotle and the economics of Judaism commence with the consideration of the place and power of the person (“class,” “caste,” economic interest) in control of the means of production, the social metaphors that animate the politics of the two systems part company. Aristotle in his Politics is consistent in starting with that very same person (“class”) when he considers issues of power, producing a distributive politics to match his distributive economics. But the Mishnah’s philosophers build their politics on with an altogether different set of building blocks. The simple fact is that the householder, fundamental to their economics, does not form a subject of political discourse at all and in no way constitutes a political class or caste. When the Mishnah’s writers speak of economics, the subject of most active verbs is the householder; when they speak of politics, the householder never takes an active role or even appears as a differentiated political class. In this sense, the economics of the Mishnah is disembedded from its politics, and the politics from its economics. By contrast the economics and politics of Aristotle’s system are deeply embedded within a larger and nurturing, wholly cogent theory of political economy.
The difference is of sufficient weight to justify amplification. For Aristotle, both economics and politics originate in the agglomeration of households into a village and of villages into a city or polis, which supplied the social metaphor of his thought on political questions. But the politics of the philosophers of the Mishnah does not follow suit. The politics of Judaism appeals to a fundamental building block selected out of the political entities, persons or classes, of the social order, who in no way correspond to the householder of the economics of Judaism. These are, as I said, the king and the priest, representing the monarchy and the Temple, and the court or administration, made up of what they called sages, representing what we should call the civil service and bureaucracy. These institutions are represented in their order and hierarchy, king at the top, priest on the one side, sage on the other. In heaven above, of course, God stands at the top, corresponding to the king.2
It is for a very simple reason that we know that these three classes of persons—king, priest, sage—defined the political structure and controlled the political system. When we ask, who legitimately invoked violence and inflicted penalties, whether to persons or to property, whether individual or social, the point of differentiation among the appropriate institutional powers invariably turns, here on earth, upon those three classes and no others. It goes without saying that the householder, the building block of economy and society, in command of the means of production (so far as the economics of the Mishnah was concerned), in no way defined a point of differentiation on the correct imposition of legitimate violence. The point at hand is simple. The economics of the Mishnah and the economics of Aristotle bore important parts of the systemic message of the respective systems, and, we realize, it was essentially the same message. But, while the politics of the Mishnah falls into the category of a philosophical politics in comparison with the politics of Aristotle, the systemic message assigned to the political component was not the same as the systemic message assigned to Aristotle’s politics.
What, precisely, was the systemic message assigned to the political components by the system-builders of the Mishnah? It concerned the hierarchical classification of society, just as our account of the philosophy of the Mishnah has led us to anticipate. In the present context, the sense is a simple one. Since society is viewed as classified and hierarchized, the task of politics is to designate who is on top, who in the middle, and who on the bottom: who does what to whom in that well-ordered social structure that the Mishnah’s framers envisaged? The hierarchical ordering of power through a theory of politics comes to expression in a political myth, one that we discern when we identify, in particular what differentiates the sanctions, that is to say, power in its brute and pure form, among the several jurisdictions. Then how to differentiate jurisdictions, which is to say, how to discern the hierarchical ordering effected through politics, which is to say, systemically expressed through the imagined structure and system embodied in legitimate sanctions?
When we understand the differentiating force of myth that imparts to politics its activity and dynamism, we shall grasp the systemic message, conveyed through the political component of the system, that animates the structures of the politics and propels the system. Appealing to a myth of taxonomy, the politics of the system accomplishes its tasks by explaining why this, not that, telling as its foundation story a myth of classification of power. The myth appeals in the end to the critical bases for the taxonomy, among institutions, of a generalized power to coerce. When we move from sanctions to the myth expressed in the application and legitimation of those sanctions, we see a complex but cogent politics sustained by a simple myth.
Specifically, the encompassing framework of rules and institutions and sanctions is explained and validated by the myth of God’s shared rule, counterpart to God’s shared ownership of land. That dominion, exercised by God and surrogates on earth, is focused partly in the royal palace, partly in the Temple, and partly in the court. But which part falls where and why? The political myth of Judaism answers that particular question, and, consequently, the Judaic political myth comes to expression in its details of differentiation, which permit us to answer the generative question of politics, who imposes which sanction and why?
Four types of sanctions, deriving from four distinct institutions of political power, each bearing its own mythic explanation, are to be differentiated. When we follow these points of differentiation, we shall be prepared to recognize how vastly the politics changed in the successor-documents, for, as we shall see, the later politics makes no such differentiation but recognizes only one legitimate political institution on earth.
For the Mishnah’s politics, the first is what God and the Heavenly court can do to people. The second is what the earthly court can do to people, and that type of sanction embodies the legitimate violence of which political theory ordinarily speaks. The third is the sanction imposed by the cult’s requirements, which can deprive people of their property as legitimately as can a court. The fourth is the sanction that is self-imposed: conformity to consensus.
Then the issue becomes, whose consensus, and defined by whom? Four types of coercion, including violence of various kinds, psychological and social as much as physical, are in play. The types of sanction within the system that are exercised by other than judicial-political agencies surely prove violent and legitimately coercive, even though the violence and coercion are not the same as those carried out by courts.
The exercise of power, invariably and undifferentiated in the name and by the authority of God in Heaven to be sure, is kept distinct. Concrete application of legitimate violence by [1] Heaven covers different matters from parts of the political and social world governed by the policy and coercion of [2] the this-worldly political classes. And both sorts of violence have to be kept distinct from the sanction effected by [3] the community, not through institutional force and expression, but through the weight of attitude and public opinion. The politics works in such a way that all political institutions, God and the court and the Temple and the monarchy, the agencies with the power to bestow or take away life or property or to inflict physical pain and suffering, work together in a single continuum and in important ways so cooperate as to deal with the same crimes or sins.
The orderly character of the hierarchization of power is shown by a simple fact. Quite absent from the politics is God’s direct intervention, and that difference decisively distinguishes the Mishnah’s from the Pentateuch’s political theory. For in the Mishnah’s system God’s intervention on an ad hoc and episodic basis in the life of the community does not serve to explain obedience to the law in the here and now. What sort of evidence would indicate that God intervenes in such wise as to explain the obedience to the law on an everyday basis? Invoking God’s immediate presence, a word said, a miracle performed, would suffice. But in the entirety of the more than five hundred fifty chapters of the Mishnah and the much larger corpus of the Tosefta, no one ever prays to have God supply a decision in a particular case.
There is no counterpart to Moses’s asking God whether women can inherit, absent a male heir, for instance. Since a paraphrase of the later position that, anyhow, prophecy had ceased, can readily account for that fact, it is more to the point to observe that no judge appeals to God to put to death a convicted felon. If the judge wants the felon killed, he kills him. But, it may be argued, the Mishnah’s system indeed does appeal to extirpation, meaning that Heaven too participates in the system. That is quite so, but because of the hierarchical order that is set forth. For when God intervenes, it is on the jurisdiction assigned to God, not the court. And then the penalty is a different one from execution. Penalties fall into four classifications:
[1] what Heaven does,
[2] what cultic institutions do,
[3] what the civil administration and court system),
[4] what is left to the coercion of public opinion, that is, consensus, with special attention to the definition of that “public” that has effective opinion to begin with.
That final realm of power, conferring or withholding approval, proves constricted. The first three prove critical.
[1] God takes care of deliberate violation of God’s wishes. If a sin or crime is inadvertent, the penalties are of one order, if deliberate, of a different order. The most serious infraction of the law of the Torah is identified not by what is done but by the attitude of the sinner or criminal. If one has deliberately violated God’s rule, then God intervenes. If the violation is inadvertent, then
[2] the Temple imposes the sanction. And the difference is considerable. In the former case, God through the Heavenly court ends the felon’s or sinner’s life. Then a person who defies the laws as these concern one’s sexual conduct, attitude toward God, relationships within the family, will be penalized either (if necessary) by God or (if possible) by the earthly court. That means that
[3] the earthly court exercises God’s power, and the myth of the system as a whole, so far as the earthly court forms the principal institutional form of the system, emerges not merely in a generality but in all its specificity.
These particular judges, here and now, stand for God and exercise the power of God. In the latter case, the Temple takes over jurisdiction; a particular offering is called for, as the book of Leviticus specifies. But there is no need for God or the earthly court in God’s name to take a position. The power of social coercion, e.g., ostracism, is systemically unimportant.
Power therefore flows through three distinct but intersecting dominions, each with its own concern, all sharing some interests in common.
The Heavenly court attends to deliberate defiance of Heaven, the Temple to inadvertent contradiction—therefore not defiance—of Heaven.
The earthly court attends to matters subject to its jurisdiction, by reason of sufficient evidence, proper witnesses, and the like, and these same matters will come under Heavenly jurisdiction when the earthly court finds itself unable to act.
Who then tells whom to do what? Power comes from two conflicting forces: the commanding will of God, the free will of the human being. Power expressed in immediate sanctions is mediated, so too, through these same forces: Heaven above, human beings below, with the Temple mediating between the two. Power works its way in the interplay between what God has set forth in the law of the Torah and what human beings do, whether intentionally, whether inadvertently, whether obediently, whether defiantly.
The myth differentiates and therefore of necessity also hierarchizes, and the point of differentiation within the political structures, supernatural and natural alike, lies in the attitude and intention of a human being. A person who deliberately comes into conflict with the system, rejecting the authority claimed by the powers that be, does so deliberately or inadvertently. The myth accounts in the end for the following hierarchization of action and penalty, infraction and sanction:
[1] If the deed is deliberate, then one set of institutions exercises jurisdiction and utilizes supernatural power.
[2] If the deed is inadvertent, another institution exercises jurisdiction and utilizes the power made available by that same supernatural being.
The ordering of power-relationships and the hierarchization of the political institutions present, therefore, a single, well-composed political structure and system. And that brings us to the politics portrayed in the successor-writings, with the difference simply characterized in this way: from a realm of order and hierarchy (in this context, a redundant combination) in which power is diffused but well focused, we turn to a disorderly politics indeed.
The successor-system speaking on its own, not in response to the Mishnah, exhibits none of the traits of the Mishnah’s politics, but sets forth those of its own. Where the Mishnah’s politics is orderly and hierarchical, the Yerushalmi’s scarcely effects differentiation within the Israelite sphere at all; it has one political entity and class, not three on earth, corresponding to the one in heaven. It knows not the marvelously differentiated and classified penalties and sanctions on which the Mishnah’s authorship lovingly dwells in such tractates as Keritot and Sanhedrin, but a quite undifferentiated system of sanctions, each serving for the correct context. And context is always the point of differentiation: doing what one can, when one can, where one can, appealing to Heaven to do the rest. These points of difference in due course will serve to highlight the more profound differences between the philosophical politics of the Mishnah and what I shall show is the religious politics of the Yerushalmi, differences to be observed only in the constructive account to be set forth in Part Two. It suffices here to draw the contrast and establish the simple fact that the Mishnah’s and the Yerushalmi’s politics bore little in common, except so far as the latter simply paraphrased and clarified details of the former.
The Talmud of the Land of Israel and related writings portray not the (imagined) orderly and inner-facing politics of Israel living by themselves under God, king, priest, and sage, but the palpable chaos of Jews living among gentiles, governed by a diversity of authorities, lacking all order and arrangement. The politics of the Mishnah is classified with that of philosophers, in abstract terms thinking about logic and order. The politics of the successor-documents shows us politicians deeply involved in the administration of the concrete social group, describing its “Israel” as a real-life community. The later authorships, in the fourth and fifth centuries, prove analogous not philosophers but men of affairs, judges, lawyers, bureaucrats, heads of local governments. That general thesis corresponds to the results of our overview of the treatment of philosophical economics in the Yerushalmi and its friends. We recall that there we found an interest in not theory but practice, and the important distinctions and points of clarification all had to do with the workaday application of the law. That observation justifies the view that the Yerushalmi and related writings show us how men of affairs faithfully read but realistically translated philosophy into public policy.
True, both the Mishnah’s and the successor-documents’ politics in the end put sages in charge of everything. But in the first system sages formed one component of a well-ordered structure, in which monarchy, priesthood, and clerkdom formed a cogent structure and together, each doing its assigned task, administered an orderly world in an orderly way. In the second, sages are represented as the sole legitimate authority, competing to be sure with such illegitimate authorities as the patriarch within, the gentile government of Rome beyond. The practical politics then dealt with Jews who lived under both rabbis near at hand, settling everyday disputes of streets and households, and also distant archons of a nameless state, to be manipulated and placated on earth as in heaven. But the Yerushalmi’s portrait of legitimate power, as distinct from illegitimate violence, appeals then to the legitimation of the Torah serving solely for the sages, while the Mishnah’s account differs in ways now entirely obvious.
Indeed, what I find most striking as I look back upon the Mishnah’s politics is that while legitimate power is carefully parceled out, illegitimate power is ignored. In the Yerushalmi’s politics by contrast, the issue is the distinction between illegitimate power, worked by patriarch within and Rome beyond, and legitimate power, focused solely upon sages. The issues thus shift, even while the category remains the same. That shift seems to me to indicate a decay in categorical cogency; the Mishnah’s category of politics is preserved but then bypassed, as issues not formerly considered intervene and drastically revise the character of the whole—even in its initial context and definition. When, therefore, we turn to the counterpart category to philosophical politics, all the more shall we see how a new cogent category simply supplants the received and preserved one.
The Mishnah’s politics breathes the pure air of public piazza and stoa, the politics of the Talmud of the Land of Israel and its associated Midrash-compilations, the ripe stench of private alleyway and courtyard. That is why the comparison of the Mishnah’s politics with philosophical politics, the Yerushalmi’s with an other-than-philosophical politics is amply justified.3 The image of the Mishnah’s politics is evoked by the majestic Parthenon, perfect in all its proportions, conceived in a single moment of pure rationality. The successor-system is a scarcely-choate cathedral in process, the labor of many generations, each of its parts the conception of diverse moments of devotion, all of them the culmination of an ongoing and evolving process of revelation in the here and now. The Mishnah’s system presents a counterpart to Plato’s Republic and Aristotle’s Politics, a noble theory of it all. In literary terms, in the transition from the Mishnah to the successor-writings we leave behind the strict and formal classicism of the Mishnah, like Plato’s Republic describing for no one in particular an ideal society never, in its day, to be seen. We come, rather, to focus upon the disorderly details of the workaday world, to be sure taking the utopian Mishnah along with us in our descent into the streets where people really do commit acts of violence against one another, and where authority really does have to sort out legitimate acts and on-going institutions able to perform such acts from illegitimate ones.
In light of the fate of the Mishnah’s economics, we hardly find surprising the dual reception accorded to the Mishnah’s politics, which was to be amplified, on the one side, supplanted, on the other. As to the first of the two now-familiar modes of dealing with the received system’s categories, the evidence of the Yerushalmi, Genesis Rabbah, Leviticus Rabbah, and Pesiqta deRab Kahana shows us the continuing authority of the inherited politics. That is hardly surprising. But how has the category of politics been revised or broadened, essentially within the limits defined by the received definition? The question of the rest of this chapter is whether we find recognition of other authorities able to coerce and otherwise utilize legitimate violence, beyond king, temple, court. The decay—within the theoretical structure—of the received political institutions of course is the fact, as the sage becomes the recognized government, the king and high priest in the persons of their avatars, the patriarch and the priesthood, now no longer accorded legitimate rights of violence of any kind at all. The former is represented as illegitimate, a part of an illegitimate alien government; the latter is treated as no longer a political entity at all, since the most violent act a given priest can commit is to seize the priestly rations owing to the priesthood in general by a particular farmer. Then what sorts of power does the sage alone now exercise, and how is the inherited politics revised?4
The basic shift in political thinking is marked by two complementary traits. In the representation of the Yerushalmi and its associated compilations, the high priest is now absent; and, more to the point, the king is less differentiated, like the priesthood now more remote; while the sage is ever more differentiated, always concretely present in the here and now. Let me make this point clear. When the Yerushalmi’s framers speak independently and not as Mishnah-exegetes, the role of the king is no longer differentiated within an overarching system of sanctions; the king is now treated in general terms and not in a specific way. There is no recognition whatsoever that the king or patriarch legitimately inflicts some sanctions, the sage others. Now what the patriarch does is illegitimate, and what the sage does, always and everywhere legitimate violence. The differentiation of sanctions focuses upon what the sage does in one kind of case, what he does in some other, and not upon what the king does in one kind of case, what the sage does in some other. It follows quite naturally that the role of the sage is much more richly differentiated, amplified by cases for instance, so that the focus of political discourse, defined as it is by the legitimate exercise of power, comes to bear solely on the sage and his court. The king occupies center-stage—but in parables, in which the king or prince stands for everyman, not in concrete accounts of legitimate violence, let alone in autonomous exercises on the differentiation of the authorities that exercise legitimate violence.
We anticipate that the Yerushalmi will spell out the Mishnah’s points entirely within the framework of the Mishnah’s structure and system. It is when the authorship of the Yerushalmi speaks not about the Mishnah but about other matters that it will make its own statement, and there, we see, that statement attests to a system quite different from the Mishnah’s politics. Let us take only one example of how when the Yerushalmi’s exegetes read the Mishnah’s rules of politics, they paraphrase and amplify what the Mishnah says, while when they take initiatives on their own, they make an altogether different statement. That will suffice to show us once again the familiar fact that, when they read the Mishnah, the successor-authorships amplify and clarify, but do not innovate. It is only when they move on to their own program that they make a statement particular to themselves, and, when they do, it is not the statement of the Mishnah at all, but a different one, signified by categories for which the Mishnah makes no place.
Here is a single instance of the Yerushalmi’s reading of the Mishnah on politics. It is already familiar to us. I give the Mishnah-passage in bold-face type, then the Talmud’s treatment of the passage in regular type.
MISHNAH-TRACTATE SANHEDRIN 2.1
A. |
A high priest judges, and [others] judge him; |
B. |
gives testimony, and [others] give testimony about him; |
C. |
performs the rite of removing the shoe [Deut. 25:7-9], and [others] perform the rite of removing the shoe with his wife. |
D. |
[Others] enter levirate marriage with his wife, but he does not enter into levirate marriage, |
E. |
because he is prohibited to marry a widow. |
F. |
[If] he suffers a death [in his family], he does not follow the bier. |
G. |
“But when [the bearers of the bier] are not visible, he is visible; when they are visible, he is not. |
H. |
“And he goes with them to the city gate,” the words of R. Meir. |
I. |
R. Judah says, “He never leaves the sanctuary, |
J. |
“since it says, ‘Nor shall he go out of the sanctuary’ (Lev. 21:12).” |
I
A. |
It is understandable that he judges others. |
B. |
But as to others judging him, [is it appropriate to his station?] |
C. |
Let him appoint a mandatory. |
D. |
Now take note: What if he has to take an oath? |
E. |
Can the mandatory take an oath for his client? |
F. |
Property cases involving [a high priest] – in how large a court is the trial conducted? |
G. |
With a court of twenty-three judges. |
H. |
Let us demonstrate that fact from the following: |
I. |
A king does not sit in the sanhedrin, nor do a king and a high priest join in the court session for intercalation [T. San. 2:15]. |
J. |
[In this regard,] R. Haninah and R. Mana – one of them said, “The king does not take a seat on the Sanhedrin, on account of suspicion [of influencing the other judges]. |
K. |
“Nor does he take a seat in a session for intercalation, because of suspicion [that it is in the government’s interest to intercalate the year]. |
L. |
“And a king and a high priest do not take a seat for intercalation, for it is not appropriate to the station of the king [or the high priest] to take a seat with seven judges.” |
M. |
Now look here: |
N. |
If it is not appropriate to his station to take a seat with seven judges, is it not an argument a fortiori that he should not [be judged] by three? |
O. |
That is why one must say, Property cases involving him are tried in a court of twenty-three. |
II
The discussion remains wholly within the framework of the Mishnah’s interests. Now in the following we leave that matter and move on to other questions. We also leave behind the politics of the king and the high priest and enter a new realm altogether. We have not the king but the nasi, the patriarch. And at stake in what follows is the very stark question, whose acts of violence are legitimate? and whose illegitimate? It goes without saying that the sages’ acts of violence are legitimate, and the patriarch’s not, even though sages have to concede greater power inheres in the patriarchal government than in theirs. The claim that “they”—sages—possess authority to administer sanctions to the patriarch now is at issue. The theoretical clarity of the Mishnah is lost in the practical politics of real power, and so we leave the Mishnah’s politics far behind. But that understates the shift. I cannot point to a single passage in the Mishnah or the Tosefta in which the several components of the political structure are represented as competing, let alone in which the sages’ component in political terms and contexts of legitimation of violence (as distinct from mere status) is set above that of the king or the high priest. The following therefore not only digresses from Mishnah-exegesis. It makes a point that is entirely beyond the framework of the Mishnah’s politics.5
III
This brief abstract suffices to make the simple point that the politics of the Mishnah, treated by the Yerushalmi, is carried forward without noticeable change as to basic structure and system. But when—as at III—the Yerushalmi then portrays power-relationships not in the context of Mishnah-exegesis, it provides a quite different picture.
Now we have not the king but the patriarch, not the sages’ court with clearly differentiated power to administer sanction, but with a generalized power to do what the sages want—if they can. And while the Mishnah’s king exercises violence legitimately, the Yerushalmi’s patriarch uses foreign troops and enjoys no more legitimacy than does the foreign government that has supplied those troops.
While, therefore, the politics of the Yerushalmi and related writings carries forward that of the Mishnah, a quite separate conception of political institutions and relationships also comes to expression. It is a political structure in which sages administer sanctions, a system in which sages make decisions; where others intervene, their sanctions—whether those of the patriarch or of the gentile—are illegitimate. Legitimate violence is executed solely by one political entity, which is the sages’ court. Demonstrating that fact suffices for the present stage in the argument; for all that is at stake just now is the demonstration that the politics of the Yerushalmi and its companions is other than philosophical.6
That observation draws our attention to the question of the sanctions legitimately in the hands of sages alone. These are differentiated not in principle but only in context: what works. And the differentiation is circumstantial, expressed through description of cases, never theoretical and principled. But there should be no doubt that violence, not merely voluntary acquiescence, is at stake. Sages’ power is political, not merely moral, routine and not charismatic in any sense. Thus sages are portrayed by the Talmud of the Land of Israel as exercising authority effected through concrete sanctions not only over their own circles, people who agreed with them, but over the Jewish community at large. This authority was practical and involved very specific powers.
The first and most important sort of power a rabbi under some circumstances and in some cases maintained he could exercise was to sort out and adjudicate rights to property and personal status affecting property. The rabbi is described as able to take chattels or real estate from one party and to give them into the rightful ownership of some other. The second sort of power rabbis are supposed to have wielded was to tell people what to do, or not to do, in matters not involving property rights. Here they could administer floggings, that is, violence in its most personal form. The Talmud alleges that rabbis could tell people outside the circles of their own disciples and estate how to conduct themselves. A rabbi is presented as able to coerce someone to do what that ordinary Jew might otherwise not wish to do, or to prevent him from doing what he wanted. That other authorities existed, and even competed with rabbinical authorities, is taken for granted. What is important to this part of our inquiry into systemic transformation is that the Yerushalmi portrays legitimate violence in a manner quite asymmetrical with the pattern set forth in the Mishnah.7
The Talmud of the Land of Israel takes for granted that rabbis could define the status of persons in such ways as to affect property and marital rights and standing. It is difficult to imagine a more effective form of social authority. The Talmud treats as settled fact a range of precedents, out of which the character of the law is defined. In those precedents, rabbis declare a woman married or free to marry; permitted as wife of a priest to eat food in the status of leave-offering or prohibited from doing so; enjoying the support of a husband’s estate or left without that support; having the right to collect a previously contracted marriage settlement or lacking that right. In all of these ways, as much as in their control of real estate, commercial, and other material and property transactions among Jews, the rabbis held they governed the Jewish community as effective political authorities. Whatever beliefs or values they proposed to instill in the people, or realize in the collective life of the community, they effected not through moral suasion or pretense of magical power. It was not hocus pocus but political power resting on the force of government authority. They could tell people what to do and force them to do it.8
The Talmud of the Land of Israel is remarkably reticent about the basis for rabbis’ power over the Jews’ political institutions: who bestowed this-worldly legitimacy and supplied the force? But the systematic provision of biblical proof texts for Mishnaic laws presents an ample myth for the law and its enforcement: sages acted by right of their mastery of the Torah and therefore in the status of Heaven. Given by God to Moses at Mount Sinai, the law of the Torah, including the Mishnah’s laws, represents the will of Heaven. But with all the faith in the world, on the basis of such an assertion about God’s will, the losing party to a litigation over a piece of real estate will surely have surrendered his property to the other side only with the gravest reservations—if at all. He more likely will have complained to some other authority, if he could. Short of direct divine coercion, upon which a legal system cannot be expected to rely, there had to be more reliable means of making the system work.
What these were, however, the Talmud of the Land of Israel hardly tells us. That silence underlines the political theory of the document: the sage now acts for Heaven, in the way in which, in the Mishnah’s politics, the king, high priest, and sage represented on earth a counterpart power and activity to the power and activity of Heaven. Then all parties, on earth as in heaven, carried out each its assigned and proper task. Now, it seems to me clear, the sage is the sole focus of legitimate authority on earth, and Heaven’s rule is no more explicit than is the role of the king (or high priest) legitimate. The differentiated foci of the Mishnah’s philosophical politics now give way to the unitary focus of the Yerushalmi’s theory of the same matter. What is clear is that politics, in theory, in the Mishnah represents a diffusion of power within an articulated order and hierarchy; the focus of power is now longer cogent; but multiple and incoherent, but legitimacy, by contrast, is now single and singular, and therein lies the shift.
The Talmud of the Land of Israel therefore is clear that rabbis competed with other authorities for rule over the Jewish community. But sages alone exercised power legitimately; all other political institutions by definition were illegitimate. True, the relationship of the rabbis as judges and administrators to other Jewish community judges and administrators who may have carried out the same tasks and exercised the same responsibilities in regard to the Jewish nation of the Land of Israel is not clarified either in cases or as to theory. But here too the silence is indicative: it is a tacit judgment, and a devastating, eloquent one. The Talmud’s picture of legitimate violence comes to concrete expression in its account of what rabbis could force people to do because of their political power and position. The sovereignty of rabbinical courts in property disputes derived from the power of the courts not only to persuade or elicit general support, but also to call upon the power of the state to transfer ownership of real and movable property from one party to another.
Another sanction derived from the public fear of ostracism and also the active support of the people at large. Determinations of personal status by rabbinical courts depended upon the power of public opinion that sages manipulated. While the courts might call upon the state to back up their rulings about property, they are not likely to have enjoyed equivalent support in matters to which the government was probably indifferent, such as whether a given woman was betrothed and so not free to marry anyone but the fiancé, on the one side, or whether she was not betrothed and so free to marry anyone of her choice, on the other. Persistent meddling in such affairs can have generated only widespread protest, unless the community at large acquiesced and indeed actively supported the right of the courts to make such decisions. Nonetheless, even behind these evidences of rabbinical authority, based as they are on sanctions of moral authority, as distinct from the imperial government’s ultimate threat of force, there still were elements of exchange of property or things of value.
As a matter of fact, the authorities who stood behind the Talmud of the Land of Israel preserved a vast number and wide variety of cases in which, so far as they were concerned, rabbinical courts exercised a kind of authority we may regard only as political and bureaucratic. Persons and property of Israel came under their authority. So the Talmud of the Land of Israel represents its authorities as judges of litigation and administrators of questions of personal status. Decisions are represented, moreover, as precedents, accepted in theorizing about law and uniformly authoritative for courts spread over a considerable territory. Accordingly, rabbinical judges saw themselves as part of a system and a structure, not merely local strong men or popular sages. A fully articulated system of politics and government, staffed by people who knew the Mishnah and how to apply its law to concrete cases and who had the full power to do so, is represented here. Rabbinical judges knew what to do and had full confidence in their authority to do it. The Talmud of the Land of Israel portrays rabbis’ power over the estates and possessions of the Jews, including communal property and behavior.
Rabbis furthermore made decisions or gave opinions in a domain quite distinct from that of property or of property joined to determination of personal status. These decisions influenced personal behavior in private, rather than coercing it in public. They were meant to establish rules for good public order and decent behavior. Whether rabbis enjoyed the power to force people to behave in the way they wanted is not at issue. So far as the issues at hand related not to property and public policy but to individual conduct, in general it was moral, rather than civil and political, authority that rabbis claimed to exercise. But the sanctions were every bit as rich in the potential for violence as those of a more narrowly political order.
The rabbi stood on the intersecting borders of several domains: political and private, communal and individual. He served as both legal and moral authority, decisor and exemplar, judge and clerk, administrator and governor, but also holy man and supernatural figure. What is important here is the representation of the rabbi—and the rabbi or sage alone, no longer also the high priest (or priesthood) and the monarch (or patriarch) as public authority deemed to exercise supernatural power. His task was to use his supernatural power in pretty much the same context and for the same purpose as he used his political-judicial and legal power and learning, on the one side, and his local influence and moral authority, on the other. In the following story the sage as public official protects the town from a siege and the illegitimate violence of the gentile.
Y. TAANIT 3:8.II.
A. As to Levi ben Sisi: troops came to his town. He took a scroll of the Torah and went up to the roof and said, “Lord of the ages! If a single word of this scroll of the Light has been nullified [in our town], let them come up against us, and if not, let them go their way.”
B. Forthwith people went looking for the troops but did not find them [because they had gone their way].
C. A disciple of his did the same thing, and his hand withered, but the troops went their way.
D. A disciple of his disciple did the same thing. His hand did not wither, but they also did not go their way.
E. This illustrates the following apothegm: “You can’t insult an idiot, and dead skin doesn’t feel the scalpel.”
The power of the sage to ward off the siege was based upon his saintliness, which consisted in his obedience to the Torah and the peoples’ obedience to him. So whatever public authority the rabbi exercised is credited, in the end, to his accurate knowledge and sincerity in living up to his own teachings, on the one side, and the peoples’ willingness to accept his instructions, on the other. Nothing in the Mishnah prepares us for such an account of the supernatural politics focused upon the sage.9 And, concomitantly, the contrast between the sages’ legitimate power and the gentiles’ illegitimate violence underlines the contrast between the power of the Torah and the violence of the troops.
The illegitimacy of violence then forms a complementary component of the theory of politics of the Yerushalmi, a matter simply bypassed, for its irrelevance, in the Mishnah and the Tosefta. Tales about a Jewish authority who was not legitimate, we already realize, portray the patriarch as exercising authority over rabbis. Some of the patriarchal tales place the patriarch into close relationship with Romans of the highest rank, including the emperor. On the basis of these tales, we notice, the Talmud of the Land of Israel posits the existence, in addition to the rabbinical bureaucrats, of a patriarch who hired them, used their services for the administration of the local affairs of the Jewish nation in the Land of Israel, and validated their decisions, even while maintaining his autonomy from, and superiority over, the clerks who made those decisions. So in the Talmud’s view the context of rabbinical authority found definition in a figure at the margins of both the rabbinical estate, on the one side, and the Roman administration of the Land of Israel, on the other. The rabbinical judges and clerks depended for political legitimation of their decisions and orders upon that government beyond themselves, both close at hand, in the patriarchate, and far away, in the Roman government itself. But they clearly did not confuse the mere practicalities of politics with legitimacy, and they assuredly saw themselves as alone the legitimate political figures within Israel.
We should not confuse a theory of politics with a portrait of the political actualities of the time. The Talmud of the Land of Israel concedes that the rabbi was part of the administration of a man who stood at the margins of the rabbinical estate, one foot in, the other out. The sage was further limited in his power by popular will and consensus, by established custom, and by other sorts of Jewish local authorities. Furthermore, as the Talmud represents matters, the rabbi as clerk and bureaucrat dealt with matters of surpassing triviality, a fair portion of them of no interest to anyone but a rabbi, I should imagine. He might decide which dog a flea might bite. But would the fleas listen to him? Accordingly, the Talmud presents us with a politics that sort out inconsequentialities. On the one side, the rabbi could make some practical decisions. On the other, he competed for authority over Israel with the patriarch and with local village heads. And, in general, no Jew decided much. From the viewpoint of the Roman empire, moreover, the rabbi was apt to have been one among many sorts of invisible men, self-important nonentities, treating as consequential things that concerned no one but themselves, doing little, changing nothing.
These realities bear no more consequence for the political theory at hand than the everyday facts of life shaped the politics of the initial system, the one represented by the Mishnah and related writings. Just as we can find in the Mishnah’s systemic statement effected through a theory of politics not a single line that concedes legitimacy to things that have actually happened, so in the Yerushalmi’s we locate not a word that takes account of the givens of the day, and that is not at all surprising. What is not to be gainsaid is the systemic transformation, represented by the reconsideration not of the details of politics but of the very category. Thus far all we realize is that the received category is recapitulated when the Mishnah is under discussion, but re-presented when not. We do not yet know where, and how, the Judaic system attested by the Yerushalmi and Midrash-compilations associated with it have set forth not the Mishnah’s categories revised and reformed, but altogether new categories of their own: counterpart categories. To these we now turn.
1Cited by R. G. Mulgan, Aristotle’s Political Theory (Oxford: Clarendon Press, 1977), p. 3.
2The heavenly court of angels is undifferentiated and in the Mishnah plays no role.
3And what that other comparison yields will be clear presently.
4This formulation of matters deliberately ignores the wholly new definition of the political entity, Israel as family, and of power, merit. These are treated in a different systemic context, specifically, in Part Two Chapter Five, and Part Three Chapter Eight. What we see in Chapter Two and this chapter is the revision and expansion of the range of the received categories.
5Mishnah-tractate Horayyot proves this point. Developing the Pentateuchal rules of Leviticus Chapter Four, that tractates refers to the requirement of an authority who has sinned to bring an offering to the Temple. It knows nothing of removing such a person from office; that is not the issue. So the sinning ruler does not fall under the authority of the court of the sages. That is not the issue of the tractate as the Mishnah treats the subject of the sinning politician. Contrast Simeon b. Laqish’s statement!
6Classification of that politics within some other than the philosophical-systemic framework will receive ample attention in Part Two, Chapter Six.
7I omit reference to the companion-writings because they are not pertinent to the present issue at all, which pertains solely to the reception of the Mishnah’s politics and the disposition of that politics. I observe nothing pertinent to the Mishnah’s political theory in the Midrash-compilations, and the sole issue of this chapter, the reception of the Mishnah’s political structure and system and the diffusion of the power to inflict legitimate violence, is sufficiently worked out through a brief survey of the Yerushalmi’s consideration of the matter. In the treatment of the counterpart-category, Chapter Six, we shall review the political system and structure adumbrated in the Midrash-compilations that form companions to the Yerushalmi.
8The details are spelled out in my Judaism and Society: The Evidence of the Yerushalmi (Chicago, 1984: The University of Chicago Press), Chapter Three. Note also my Foundations of the Theology of Judaism. II. Israel (Northvale, 1991: Jason Aronson, Inc.).
9The supernatural power vested in Honi the Circle-drawer, M. Ta. 3:8, is not of a political order and does not involve the exercise of legitimate violence in the conduct of public policy.