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Published online by Cambridge University Press: 05 May 2015
Many legal systems have foundational stories about their provenance, serving to heighten the stature and authority of the normative order. Yet, these primary myths are often complicated by secondary ones that describe later climactic moments. A prevalent plot of this latter kind involves a defiant political actor who contests the jurisdiction of the courts and relates the legal order's response to this daunting challenge. The crucible of struggle forges a formidable legal institution that can withstand assault or a weaker one that limply survives.
Such stories captivate the collective legal imagination of a paideic community, a process first analyzed by the late Robert Cover. Hence they are preserved, told, and retold. However, the morals of secondary stories are more variable. Precisely because they examine moments of disturbance and conflict their implications are frequently in dispute. Thus, the very act of narration aims to amplify core truths implicit in these tales and announce their essential lessons.
The narrative history of the epic “trial of the Judean king” among Jews in antiquity and late antiquity affords a striking instance of this phenomenon. Making a lasting impression on the Jewish legal imagination of this period, the trial's impact and perpetual legacy are nevertheless highly contested. While the enduring lesson of the trial revolves around the relationship between law and power, what that legacy is depends entirely on the way the tale of the trial is told and, perhaps more importantly, retold.
1 For more on Cover's life, see Calabresi, Guido, Graetz, Michael J., Black, Barbara A., Wizner, Stephen, Davis, David Brion, Rostain, Tanina, Fiss, Owen M. & Ponet, James, Tributes to Robert M. Cover, 96 yale law journal 1717 (1987)Google Scholar. See also Minow, Martha, Introduction: Robert Cover and Law, Judging, and Violence, in Narrative, Violence and the Law: The Essays of Robert Cover 1–12 (Minow, Martha, Ryan, Michael & Sarat, Austin eds., 1992)Google Scholar.
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3 See Cover, The Folktales of Justice, supra note 2, at 183–90.
4 See White, James Boyd, Thinking about Our Language, 96 Yale Law Journal 1960 (1987)CrossRefGoogle Scholar. For more on the law and literature movement, see Melanie Williams, Empty Justice: One Hundred Years of Law, Literature, and Philosophy (2002); Weisberg, Richard H., Literature's Twenty-Year Crossing into the Domain of Law: Continuing Trespass or Right by Adverse Possession?, in Law and Literature: Current Legal Issues (Freeman, Michael & Lewis, Andrew eds., 1999)Google Scholar; Levinson, Sanford, Some (Brief) Reflections about Law and Literature, 10 Cardozo Studies in Law & Literature 121 (1998)CrossRefGoogle Scholar; West, Robin L., Communities, Texts, and Law: Reflections on the Law and Literature Movement, 1 Yale Journal of Law & the Humanities 129 (1988)Google Scholar.
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7 See Cover, Robert M., The Origins of Judicial Activism in the Protection of Minorities, 91 Yale Law Journal 1287 (1982)CrossRefGoogle Scholar. For more on Cover's personal engagement in social justice causes, see Lukinsky, Joseph & Abramson, Robert, Robert Cover: A Jewish Life, 45 Conservative Judaism 4, 5 (1993)Google Scholar; Wizner, Stephen, Tribute to Robert M. Cover, 96 Yale Law Journal 1707 (1987)Google Scholar.
8 The term “anarchic” was used by Cover in describing his own theory. See Cover, The Folktales of Justice, supra note 2, at 181 (“My position is very close to a classical anarchist one—with anarchy understood to mean the absence of rulers, not the absence of law.”). Cover's studies of legal narratives have been the subject of several scholarly studies. See Brooks, Thorn, Let a Thousand Nomoi Bloom? Four Problems with Robert Cover's Nomos and Narrative, Issues in Legal Scholarship (2006)CrossRefGoogle Scholar; Alder, John, Robert Cover's ‘Nomos and Narrative’: The Court as Philosopher King or Pontius Pilate, Issues in Legal Scholarship (2006)CrossRefGoogle Scholar; Mullendar, Richard, Two Nomoi and a Clash of Narratives: The Story of the United Kingdom and the European Union, Issues in Legal Scholarship (2006)CrossRefGoogle Scholar; Post, Robert, Who's Afraid of Jurispathic Courts: Violence and Public Reason in Nomos and Narrative, 17 Yale Journal of Law & the Humanities 9 (2005)Google Scholar; Soifer, Aviam, Covered Bridges, 17 Yale Journal of Law & the Humanities 55 (2005)Google Scholar; Berkowitz, Beth A., Negotiating Violence and the Word in Rabbinic Law, 17 Yale Journal of Law & the Humanities 125 (2005)Google Scholar; Wizner, Stephen, Repairing the World through Law: A Reflection on Robert Cover's Social Activism, 8 Cardozo Studies in Law & Literature 1 (1996)CrossRefGoogle Scholar; Koniak, Susan P., When Law Risks Madness, 8 Cardozo Studies in Law & Literature 65 (1996)CrossRefGoogle Scholar; and Stone, Suzanne Last, In the Pursuit of the Counter-Text: The Turn to the Jewish Legal Model in Contemporary American Legal Theory, 106 Harvard Law Review 813 (1993)CrossRefGoogle Scholar.
9 See Cover, The Supreme Court, 1982 Term – Forward: Nomos and Narrative, supra note 2, at 4–25; Cover, The Folktales of Justice, supra note 2, at 182–83.
10 See Cover, The Supreme Court, 1982 Term – Forward: Nomos and Narrative, supra note 2, at 9–10; see also Michael Ryan, Meaning and Alternity, in Narrative, Violence and the Law: The Essays of Robert Cover,supra note 1, 267–76.
11 See Cover, The Supreme Court, 1982 Term – Forward: Nomos and Narrative, supra note 2, at 40–44; Cover, The Folktales of Justice, supra note 2, at 181–82. Likewise, the stories that are told from within a state are heroic when they represent ways of resisting the state's power. See id.
12 For a discussion of this dimension in Cover's writings, see Berkowitz, supra note 8. Berkowitz, Beth, Negotiating Violence and the Word in Rabbinic Law, 17 Yale Journal of Law & the Humanities 125 (2005)Google Scholar; Fraade, Steven D., Nomos and Narrative before Nomos and Narrative, 17 Yale Journal of Law & the Humanities 81 (2005)Google Scholar; Levine, Samuel L., Halacha and Aggada: Translating Robert Cover's Nomos and Narrative, 1998 Utah Law Review 465 (1998)Google Scholar; Dane, Perry, The Public, the Private, and the Sacred: Variations on a Theme of “Nomos and Narrative,” 8 Cardozo Studies in Law & Literature 15 (1996)CrossRefGoogle Scholar; Tikva Frymer-Kensky, Towards a Liberal Theory of Halakhah, Tikkun, July 1995; Adler, Rachel, Feminist Folktales of Justice: Robert Cover as a Resource for the Renewal of Halakhah, 45 Conservative Judaism 40, 40–55 (1993)Google Scholar; Stone, In the Pursuit of the Counter-Text, supra note 8; Tucker, Gordon, The Sayings of the Wise Are Like Goads: An Appreciation of the Works of Robert Cover, 45 Conservative Judaism 21 (1993)Google Scholar.
13 See Cover, Obligation: A Jewish Jurisprudence of the Social Order, supra note 2, at 68.
14 For Cover's wider (direct or indirect) influence, see, e.g., Edwards, Linda H., Once Upon a Time in Law: Myth, Metaphor, and Authority, 77 Tennessee Law Review 883 (2010)Google Scholar; Law and the Humanities: An Introduction (Sarat, Austin, Anderson, Matthew & Frank, Cathrine O., eds., 2010)Google Scholar; Garet, Robert R., Natural Law and Creation Stories, in Religion, Morality, and the Law: Nomos XXX 218–62 (Pennock, J. Roland & Chapman, John W. eds., 1998Google Scholar; L. H. LaRue, Constitutional Law as Fiction: Narrative in the Rhetoric of Authority (1995); Kahn, Paul W., Community in Contemporary Constitutional Theory, 99 Yale Law Journal 1 (1989)CrossRefGoogle Scholar; Tushnet, Mark V., Anti-Formalism in Recent Constitutional Theory, 83 Michigan Law Review 1502 (1985)CrossRefGoogle Scholar.
For Cover's (direct or indirect) influence on the study of Jewish law, see, e.g., Jeffrey L. Rubenstein, Stories of the Babylonian Talmud (2010); Fraade, Steven D., Ancient Jewish Law and Narrative in Comparative Perspective: The Damascus Document and the Mishnah, 24 Dine Israel 65 (2007)Google Scholar; Simon-Shoshan, Moshe, Halakhic Mimesis: Rhetorical and Redactional Strategies, 24 Dine Israel 101 (2007)Google Scholar; Stone, Suzanne Last, On the Interplay of Rules, ‘Cases,’ and Concepts in Rabbinic Legal Literature: Another Look at the Aggadot on Honi the Circle-Drawer, 24 Dine Israel 125 (2007)Google Scholar; Wimpfheimer, Barry Scott, Talmudic Legal Narrative: Broadening the Discourse of Jewish Law, 24 Dine Israel 157 (2007)Google Scholar; Winter, Steven, The Cognitive Dimension of the Agon between Legal Power and Narrative Meaning, 87 Michigan Law Review 2225 (1989)CrossRefGoogle Scholar.
15 See Cover, The Supreme Court, 1982 Term – Forward: Nomos and Narrative, supra note 2, at 46–68.
16 Thus, while Cover focuses on a normative universe held together “by the force of interpretive commitments”—a characterization that loosely attaches to Jewish thinkers from antiquity and late antiquity—he tends to obfuscate the rich diversity of their legal output, including their multiple renditions of the same legal myth. For more on this phenomenon within Jewish writings of late antiquity, see Symposium, What is (the) Mishnah, 32 AJS Review Symposium 221 (2008)Google Scholar; Friedman, Shamma, A Good Story Deserves Retelling, in Creation and Composition: The Contribution of the Bavli Redactors (Stammaim) to the Aggada 71–100 (Rubenstein, Jeffrey L. ed., 2005)Google Scholar; Jeffrey L. Rubenstein, Talmudic Stories: Narrative Art, Composition and Culture (2003).
17 See Resnik, Judith, Living Their Legal Commitments: Paideic Communities, Courts, and Robert Cover, 17 Yale Journal of Law & the Humanities 17 (2005)Google Scholar.
18 This is partially a function of the oral nature of these retellings, which contributes to their fluidity. See Martin Jaffee, Torah in the Mouth (2001); Shamma Y. Friedman, On the Origins of Variant Traditions in the Talmud Bavli, 7 Sidra: A Journal for the Study of Rabbinic Literature, 66, 66–102 (Hebrew); Yaakov Zussman, The Oral Law—Simply Understood as it Sounds, in Mehqere Talmud 3, Muqdash li-Zikhro shel Profesor Ephraim Elimelech Urbach 289–385 (Yaakov Zussman & David Rosenthal eds.) (Hebrew).
19 See Cover, The Supreme Court, 1982 Term – Forward: Nomos and Narrative, supra note 2, at 46–68; Cover, The Folktales of Justice, supra note 2, at 182–204.
20 Moreover, Jewish writings need to be more properly contextualized. Rather than attributing the Jewish perspective to the way disempowered Jews respond to an absence of power, a more accurate description would recognize the historic centrality of law within Judaism (from certain sections in the Bible onward), acknowledge a degree of Jewish empowerment (especially during various phases of the biblical and late Second Temple period), and register the plural Jewish ideas which emerge about power. For a further discussion of some of these themes, see Flatto, David C., The King and I: The Separation of Powers in Early Hebraic Political Theory, 20 Yale Journal of Law & the Humanities 61 (2008)Google Scholar; The Historical Origins of Judicial Independence and Their Modern Resonances, 117 Yale Law Journal Pocket Part 8 (2007)Google Scholar; and my forthcoming book, Justice Unbound: Separation of Powers in the Early Jewish Imagination (Harvard University Press).
21 The literature is voluminous. For several helpful treatments:
On Hammurabi, see Raymond Westbrook, A History of Ancient Near Eastern Law (2003); Martha T. Roth, Law Collections From Mesopotamia and Asia Minor (2d ed. 1997)Google Scholar; Roth, Martha T., Ancient Rights and Wrongs: Mesopotamian Legal Traditions and the Laws of Hammurabi, 71 Chicago-Kent Law Review 13 (1995)Google Scholar; Hans J. Boecker, Law and the Administration of Justice in the Old Testament and Ancient East (Moiser, Jeremy trans., 1980)Google Scholar; The Babylonian Laws (Driver, G. R. & Miles, John eds., 1960)Google Scholar.
On Solon, see The Cambridge Companion to Ancient Greek Law (Gagarin, Michael & Cohen, David, eds., 2005)CrossRefGoogle Scholar; Solon of Athens: New Historical and Philological Approaches (Blok, Josine H. & Lardinois, Andre P. M. H. eds., 2006)CrossRefGoogle Scholar.
On the Twelve Tables and Justinian, see Barry Nicholas, An Introduction to Roman Law (1962); David Johnston, Roman Law in Context (1999); Peter Stein, Roman Law in European History (1999); Jill Harries, Law and Empire in Late Antiquity (1999).
On Henry II, see John H. Langbein, Renee Lettow Lerner & Bruce P. Smith, History of the Common Law: The Development of Anglo-American Legal Institutions (2009); J. H. Baker, An Introduction to English Legal History (4th ed. 2002).
On Napoleon, see John Henry Merryman and Rogelio Pérez-Perdomo, The Civil Law Tradition: An Introduction to the Legal Systems of Europe and Latin America (3rd ed. 2007); Manlio Bellomo, The Common Legal Past of Europe, 1000–1800 (1995).
22 The literature is voluminous. For several helpful treatments, see James Kugel, How to Read the Bible 233–79 (2007); John Collins, Introduction to the Hebrew Bible 125–42 (2d ed. 2014); Moshe Greenberg, Some Postulates of Biblical Criminal Law, in Essential Papers on Israel and the Ancient Near East 333–52 (Frederick E. Greenspahn ed., 1991)Jon D. Levenson, Sinai and Zion: An Entry into the Jewish Bible (1985); Shalom M. Paul, Studies in the Book of the Covenant in the Light of Cuneiform and Biblical Law 1–10, 27–42 (1970); Yehezkel Kaufman, The Religion of Israel, From Its Beginnings to the Babylonian Exile 231–40 (trans. Moshe Greenberg 1960).
23 The literature is voluminous. For several helpful works:
On the Investiture Controversy, see Harold Berman, Law and Revolution: The Formation of the Western Legal Tradition 94–119 (1983); Uta-Renate Blumenthal, The Investiture Controversy: Church and Monarchy from the Ninth to the Twelfth Century (1988).
On Cook and James I, see Catherine Drinker Bowen, The Lion and the Throne: The Life and Times of Sir Edward Coke (1552–1634) (1957); Alan Cromartie, The Constitutionalist Revolution: An Essay on the History of England, 1450–1642 (2006).
On Marbury v. Madison, see Paul Kahn, The Reign of Law: Marbury v. Madison and the Construction of America (1997); William E. Nelson, Marbury v. Madison: The Origins and Legacy of Judicial Review (2000).
24 I thank Barry Wimpfheimer for sharing an Association of Jewish Studies 2005 Conference paper with me that explored certain dimensions of the trial's multiple narrations in rabbinic literature and Josephus, especially addressing its midrashic underpinnings, which introduced me to several references and helped spark my interest in this topic.
On the trial of the Judean king (i.e., the trial of Herod or Jannaeus or a Hasmonean King), see Menahem Kahana, Sifre Zuta Deuteronomy: Citations from a New Tannaitic Midrash 282–86 (2002) (Hebrew); Zvia Kefir, King Jannaeus and Simeon b. Shetach: An Amoraic Legend in Historical Garb, in 3 Tura 85–97 (1994) (Hebrew); David M. Goodblatt, The Monarchic Principle: Studies in Jewish Self-Government in Antiquity 112 (1994); J. Mclaren, Power and Politics in Palestine: The Jews Governing Their Own Land 67–79 (1991); Joshua Efron, Studies on the Hasmonean Period 190–96 (1987); Cover, The Folktales of Justice, supra note 2; E. P. Sanders, Jesus and Judaism 313 (1985).
For references to earlier scholarship see Efron, supra, 190–96 (1987) and Louis Finkelstein, 2 The Pharisees: The Sociological Background of Their Faith 684 n.6 (1938).
25 See Nichols, supra note 21; Johnston, supra note 21.
26 See Parts II–IV for the exact references.
27 For a summary of the life and times of Josephus, see Steve Mason, Introduction to Josephus Flavius: Translation and Commentary (Mason, Steve ed., Feldman, Louis H., trans., 2000)Google Scholar; Louis H. Feldman, Flavius Josephus Revisited: The Man, His Writings, and His Significance, in Aufstieg und Niedergang der Römischen Welt 21.2 (1984); Tessa Rajak, Josephus: The Historian and His Society (1983).
28 For more on the challenges of interpreting Josephus's historiography, see Milikowsky, Chaim, Josephus between Rabbinic Culture and Hellenistic Historiography, in Shem in the Tents of Japhet: Essays on the Encounter of Judaism and Hellenism 159–200 (Kugel, James ed., 2002)Google Scholar. For a comparison of the historicity of Josephus's accounts with rabbinic literature, see Cohen, Shaye J. D., Parallel Historical Tradition in Josephus and Rabbinic Literature, 91 World Congress of Jewish Studies 1, 7–14 (1986)Google Scholar; Noam, Vered, Did the Rabbis Know Josephus's Work? 81 Tarbiz 367–95 (2013)Google Scholar (Hebrew); Noam, The Story of King Jannaeus (b. Qiddushin 66a): A Pharisaic Reply to Sectarian Polemic, 107 Harvard Theological Review 1, 31–58 (2014)CrossRefGoogle Scholar. Vered Noam and Tal Ilan are continuing to explore this theme in their forthcoming work, Josephus and the Rabbis: A Literary-Historical Investigation of the Parallel Traditions in Josephus and Rabbinic Literature (Hebrew). One should also note the skeptical position (rejecting the link between Josephus's accounts of the trial of Herod and the rabbinic trial narratives) of James VanderKam, From Joshua to Caiaphas: High Priests after the Exile 359–62 (2004).
29 See Part IV below. Thus, in Part IV I analyze Josephus's accounts of the trial as a myth or aggadah that he relays (where Josephus may act as more of a transmitter of the myth, than its author). However, I believe that my analysis should be equally compelling to those who treat these sections in Josephus's writings as historical accounts.
30 For more on the challenges of early Jewish historiography, and the need for employing this careful methodology, see Rubenstein, Talmudic Stories, supra note 16, at 1–33; Wimpfheimer, Barry Scott, Richard Kalmin's Jewish Babylonia between Persia and Roman Palestine, 78 Journal of the American Academy of Religion 312, 312–15 (2010)CrossRefGoogle Scholar (book review); Gafni, Isaiah, Rabbinic Historiography and Representations of the Past, in The Cambridge Companion to the Talmud and Rabbinic Literature 295–312 (Fonrobert, Charlotte Elisheva and Jaffee, Martin S. eds., 2007)CrossRefGoogle Scholar; and Friedman, A Good Story Deserves Retelling, supra note 16.
31 For more historical background, see Martin Goodman, Rome and Jerusalem: The Clash of Ancient Civilizations (2007); Peter Schaefer, The History of the Jews in the Greco-Roman World (rev. ed. 2003); Gafni, Isaiah, The Historical Background of Rabbinic Literature, in The Literature of the Sages 1–34 (Safrai, Shmuel ed., 1987)Google Scholar.
32 For more on Jewish sectarianism in antiquity, see Shaye J. D. Cohen, From the Maccabees to the Mishnah, 119–66 (1987); Albert Baumgarten, The Flourishing of Jewish Sects in the Maccabean Era: An Interpretation (1997); Eyal Regev, Sectarianism in Qumran: A Cross-Cultural Perspective (2007).
33 See Efron, Studies on the Hasmonean Period, supra note 24, at 147–89.
34 For more on the life of Herod, see Peter Richardson, Herod: King of the Jews and Friend of the Romans (1996); Aryeh Kasher, King Herod: A Persecuted Persecutor: A Case Study in Psychohistory and Psychobiography (2007). For more on Herod's lineage, see Shaye J. D. Cohen, The Beginnings of Jewishness: Boundaries, Varieties, Uncertainties 13–24 (1999).
35 See Goodblatt, The Monarchic Principle, supra note 24; Lawrence H. Schiffman, From Text to Tradition: A History of Second Temple and Rabbinic Judaism (1991).
36 For more on this tumultuous period, see William W. Batstone & Cynthia Damon, Caesar's Civil War (2006). For larger changes in the Roman world and their influence on the Judean world, see Goodman, supra note 31.
37 See Gafni, supra note 30, 295–312.
38 See Mishnah Sanhedrin chapters 1–5 for a discussion of the design, jurisdiction and procedure of the judiciary. The Mishnah was redacted in the early third century of the common era in Palestine. The Babylonian Talmud, which is an expanded commentary on the Mishnah, was redacted in the sixth and seventh centuries in Babylonia. The Babylonian Talmud was often considered by later rabbinic authorities to be the authoritative statement of all rabbinic traditions up until its time, notwithstanding its many bold and innovative teachings. For the dates and characterizations of these and other rabbinic works cited herein, see Herman L. Strack & Gunter Stemberger, Introduction to the Talmud and Midrash (Bockmuehl, Markus trans., 1992)Google Scholar; Stone, supra note 8, at 816 n.13 (1993).
39 Mishnah Sanhedrin 2:2 (translation mine).
40 Encountering the Babylonian Talmud after noting the manifestly different plain sense of the Mishnah raises the question of what accounts for the Talmudic revision (indeed, the Mishnah's plain sense is no doubt its original intention). Yet, employing a panoramic lens, one recognizes that the Babylonian Talmud's jurisprudence corresponds to the wider conception of Jewish and classical law. The Mishnah espouses a minority view, relying upon a relatively anomalous Deuteronomic tradition, see Deuteronomy 17, which separates kingship from the judicial role. The Babylonian Talmud resists the Mishnah's anomalous position. Jettisoning the Mishnah's juridical and administrative structure, the Babylonian Talmud harmonizes the core mishnaic teaching with popular biblical and contemporary conceptions regarding the king's judicial role and his participation in the normative system. For a fuller discussion of the Mishnah's plain sense, and the Babylonian Talmud's revision, see Flatto, The King and I, supra note 20. Yet even the Babylonian Talmud's position is ultimately more complex, as reflected in its narration of this trial. See infra.
41 The printed text refers to Rabbi Joseph, but certain reliable manuscripts attribute this teaching to R. Pappa. For an additional analysis of this passage, see Yair Lorberbaum, Disempowered King: Monarchy in Classical Jewish Literature 96–102 (2011).
42 Babylonian Talmud Sanhedrin 19a.
43 Jeremiah 21:12.
44 See 1 Kings 11:29–39.
45 See Jon Douglas Levenson, Sinai and Zion: An Entry into the Jewish Bible 188–206 (1985).
46 See Midrash Tannaim Devarim 17:14 (introducing a binary even among Davidic kings between righteous ones who behave properly (such as David), and those who fail to behave properly (such as Solomon)). For more on the distinction between Davidic and non-Davidic kings in post-biblical literature, see, e.g., Tosefta Sanhedrin 4:4, 11; Tosafot Sanhedrin 20b; Hameiri, Bet Habehira LeHorayot, 279; Hameiri, introduction to Psalms; Nahmanides, Genesis 49:10; and Maimonides, Hilkhot Melakhim, 1:7–11.
47 Babylonian Talmud Sanhedrin 19a–b.
48 Exodus 21:29 (referring to the owner of a goring ox). The citation of the verse, according to the Talmud, teaches a notion of vicarious responsibility, which applies to masters. See Sifre 190; Babylonian Talmud Baba Kamma 112b. The extension of the principle of vicarious liability to a master of a slave is problematic, and has led some to speculate that Simeon's assertion of jurisdiction in the narrative ironically, and perhaps deliberately, reaches beyond conventional norms. See Mishnah Yadayim 4:7. I thank Jeffrey Rubenstein for this insight.
In terms of the identity of the slave, some have seen here an allusion to Herod (who is identified as the murderer by Josephus). See Maharsha ad loc.; see also Babylonian Talmud Baba Batra 3b. I thank Amram Tropper for this reference.
49 It is unclear from the Talmud whether this is a formal legislative enactment, or a prudential decision that was announced, which, according to the Talmud, apparently gained normative stature by being recorded in the Mishnah.
Paragraph (B5) includes the four different clauses of the Mishnah's rule (a king not judging, nor being judged, not testifying, nor being testified against), although in context one would only expect the second and fourth. This likely reflects that (B5), at least as presented in the Talmud, is a later addition. See infra.
50 On historical and legendary references to a court of sages or Sanhedrin (see infra note 75), and for additional information about its relationship to Hasmonean (non-Davidic) kings, see Goodblatt, The Monarchic Principle, supra note 24, at 77–130.
51 An additional Talmudic gloss explains that one who is not subject to the jurisdiction of the court cannot enjoy the privileges of judging: “[A]nd if they are not subject to judgment, how can they judge others? For . . . Resh Laqish expounded [thus]: Examine yourself and only then examine others!” See Babylonian Sanhedrin 18b, 19a. While Resh Laqish's teaching was likely originally intended in a more general sense, the anonymous Talmudic editors apply it here as a juridical principle. See, e.g., Midrash Eichah Rab. Parsha 3, 50 (containing what may be the original context of Resh Laqish's teaching, even though it is attributed there to R. Oshaya),
It should also be noted that in the body I have assumed, like most traditional interpreters, that the story of the trial is a gloss on the Mishnah, as understood in light of Rabbi Pappa's teaching. Nevertheless, as Gerald Blidstein has pointed out to me, the entire story, including the coda (B5), never specifies that it is referring only to non-Davidic kings, and it could be that its original intent was to refer more broadly to all kings. This would be consistent with the plain sense of the Mishnah, but not the way the Mishnah came to be understood in light of Rabbi Pappa's teaching. This alternative understanding would actually further punctuate the point I make below about the significance of the coda (B5).
52 See The Jewish Political Tradition 139–41 (Walzer, Michael, Lorberbaum, Menachem & Zohar, Noam J. eds., 2000)Google Scholar.
53 Although even the Babylonian Talmud (Babylonian Sanhedrin 18b), relying on an earlier teaching of the Tosefta (Tosefta Sanhedrin 2:15), implies that a king (presumably even a Davidic one) may not join the high court of the Sanhedrin.
54 See, e.g., Babylonian Qiddushin 66a. For more on the relationship of Simeon and King Jannaeus, see Joshua Efron, Studies on the Hasmonean Period, supra note 24, 143–205.
55 Yet, the extension from King Jannaeus to all non-Davidic kings according to the Talmudic account may suggest that the alternative model is the more common and realistic one, and that therefore is the default model (which is therefore represented in the Mishnah, according to the Babylonian Talmud). Seen in this light, the ideal model remains more utopian and aspirational. I thank Yoni Friedman for contributing to this insight.
56 See Cover, The Folktales of Justice, supra note 2, at 183–90.
57 Id., at 190.
58 Id. In the same vein as Cover, one can add that the Talmudic narrative fittingly shifts the focus of the trial from the king to the weak judges, since they are the ones who most need to internalize the court's mandate.
While Walzer and Cover focus on the Babylonian Talmud, they each make helpful observations relating to the plain sense of the Mishnah. At the same time, their even richer analysis of the Babylonian Talmud is incomplete. They do not fully address the Babylonian Talmud's treatment because they (Cover, more than Walzer) primarily focus on whether the king can be judged, but they do not sufficiently grapple with the issue of whether the king can join the judiciary and the interrelationship between this issue and the question of sovereign immunity. Moreover, they do not sufficiently consider how the steps of the narrative lead to its coda (B5).
59 Cover concludes that for the Babylonian Talmud ideally “there must be a jurisdiction of the judges which the King cannot share,” id., although a more accurate description of the Talmudic ideal is that the king and the judiciary should not be separated (i.e., the king must submit to the court's justice, but he also jointly participates in the administration of justice).
60 Like Walzer and Cover, later interpreters of the Mishnah tend to read the mishnaic text through the lens of the Babylonian Talmud. Therefore, medieval, early modern, and modern commentators, including critical scholars, interpret the Mishnah as presenting a secondary rule that applies only to non-Davidic kings. According to this understanding, the ideal model—that is, the integrated scheme of the Babylonian Talmud—remains the preferred juridical scheme, which is of course contrary to the plain sense of Mishnah Sanhedrin. See, for example, the summary of traditional commentators in Pinhas Kehati, Mishnah Masekhet Sanhedrin 363 (1966). For modern critical commentaries, see Ephraim E. Urbach, The Sages: Their Concepts and Beliefs 441 (Abrahams, Israel trans., 1975)Google ScholarJacob N. Epstein, Mevo'ot Le-Sifrut Ha-Tanna'im (Introduction to Tannaitic Literature) 55, 417–19 (1957); and Hanoch Albeck, Shishah Sidre Mishnah Masekhet Sanhedrin 174 (1953).
61 There is a larger methodological point here about how to interpret Talmudic narratives: Are they elaborating upon inherent normative ideas that are advanced by the halakhic materials cited in the same context, or are they providing alternative perspectives? There is also a narrower point that applies in this specific context: The entire narrative is about the legal system, and it is therefore especially likely that the normative punch line (which announces an innovation in the legal system) is its ultimate legacy. This would suggest, then, that the final line presents a deliberate legal arrangement, and not just a pragmatic solution that is conceptually at odds with the ideology of the narrative.
62 The Talmudic response, as described by Walzer, is an alternate model that is nevertheless inspired by realpolitik considerations, and one senses that it would hardly have satisfied idealistic sages such as Simeon. I offer a different interpretation of the Talmudic response below. See also Finkelstein, Maurice, Judicial Self-Limitation, 37 Harvard Law Review 338–64 (1924)CrossRefGoogle Scholar (regarding the withdrawal described in the Talmudic account).
63 See Lon L. Fuller, The Morality of Law 33–94 (1964).
64 In the Babylonian Talmud's rendition of the trial the culmination is an enactment about kings—which is certainly broader than Jannaeus and even sounds like it extends to all kings (Davidic and non-Davidic alike). Within the larger frame of the Babylonian Talmudic passage (in particular, R. Pappa's teaching), however, the sweep of the enactment must be limited to non-Davidic kings. See supra note 51.
65 The etiological nature of the tale not only encompasses its ultimate legislation, but the process by which this enactment was reached—that is, the key is not only the punch line, but the explanation of how we got there. Methodologically, I am assuming that the Talmud is advancing a coherent ideological argument, which seems far preferable to assuming it is clumsily relating the Mishnah to an incident which it knows.
66 Notice the shift of the litigants from the king to the other sages. See supra note 58. Perhaps the sin of the judges is worse, because they especially should abide by their mandate, while the king is just being a king. See also the explicit verse in Deuteronomy 1:17 charging judges not to fear any person.
67 The conclusion is that a king is not judged, which apparently also necessitates, by a law of parity, that the king does not judge, or better yet, necessitates a more sweeping separation between the king and the judiciary. A less likely alternate reading is that given the divine nature of judging, which has just been reinforced, the king is now deemed especially unsuitable to act as a proxy for God and serve as a judge.
68 Usually when the Talmud retreats from this position it is in order to make room for another spiritual value, like the primacy of human agency in the halakhic process. See, e.g., Babylonian Talmud Bava Metzia 59a. This raises the crucial interpretive question of what is the underlying value that is animating the retreat in this passage. See below.
69 See Cover, supra note 5. In the context of his analysis of the Jannaeus Trial, Cover emphasizes the violence that is perpetrated by a powerful king, but downplays the violence of the law that must be unleashed in response to the king. See Cover, The Folktales of Justice, supra note 2, at 189–90.
70 This may be especially true in rabbinic jurisprudence where a general aim of judicial procedures is to achieve order and stability by settling disputes through the compliance of the litigants. See, e.g., Mishnah Avot 1:8; Babylonian Talmud Sanhedrin 6b, 7b.
71 A fallout may occur as a result of humbling both political leaders and judicial authorities.
72 Indeed, the tale seems to revolve around the role of the courts and the scope of its jurisdiction, more than the position of the king. The thrust of the Talmudic story seems to turn on a crucial theme relating to judicial autonomy and supremacy. Administering law against a recalcitrant political leader dangerously bends the rules of legal adjudication and the terms of legal discourse toward the arc of absolutism. Law can only succeed in this context as a triumphant act of power, emphatically enforced against a litigant by crushing him. Even the inner makeup of the rabbinic court already begins to precariously crumble before rabbinic eyes in this tale, as a distinct verticality emerges that hierarchically separates Simeon and the other rabbinic judges. When Gabriel descends from on high and smashes the sages “to the earth” the irreparable fissure is all but too tragically apparent. Further, this scene can be seen as a failed revelation, where heaven crushes humanity, and divine law leaves no space for mortal judges. Moreover, the futility of enforcing rabbinic norms and the steep price of a collapse of rabbinic jurisprudence looms all the larger in late Babylonian rabbinic society, which has such limited political power and which depends on voluntary halakhic solidarity for its most basic socio-religious vitality.
Retreating in order to save the rule of sacral law, and the independent legal authority of rabbinic sages, is therefore profoundly consonant with the deeper spirit of rabbinic jurisprudence. Here is a story worth telling.
As far as Davidic kings are concerned, evidently, according to the Talmud, they submit to the law and do not assert their power in the legal arena. But see supra note 51.
In another forum, I hope to explore several seminal themes that surfaced in the various narrations of the trial of the Judean king that are related to legal and political authority; the clash between law and power; and the nature of sovereignty, and to bring these ideas from early Jewish jurisprudence into conversation with Western legal and political thought, and modern constitutional jurisprudence. For brief reflections on some of these themes, see infra notes 136, 150, and 151.
73 I refer to the opening gloss, as well as the final gloss, whose content is alluded to in the opening gloss.
74 This reading of the Talmudic kernel is somewhat similar to the ideal scheme in the redacted Babylonian Talmud—although the ideal scheme requires a reciprocal relationship between the king and the court, and also recognizes the consequences of a breakdown in its scheme as reflected in the Jannaeus trial, while this reading focuses on the court's broad jurisdiction (due to its divine mandate) reaching all litigants, even the king, which is substantiated by the Jannaeus Trial.
How to square this reading with the Mishnah's rule, Mishnah Sanhedrin 2:2, that a king is not judged is a more difficult question. Perhaps the original kernel did not follow the tannaitic tradition of this Mishnah, and instead follows the tannaitic tradition recorded in the Sifre Zuta passage cited below (which also may coincide with the tradition reflected in Mishnah Sanhedrin 2:4 about a king judging). Alternatively, and this is purely conjecture (and runs opposite to Rabbi Pappa's teaching in the Babylonian Talmud), perhaps this kernel was originally understood to apply to non-Davidic kings, while Davidic kings were understood to be covered by the Mishnah. See infra note 88; see also Kahana, supra note 24. As I have argued elsewhere, Davidic kings are plainly within the orbit of the Mishnah. See Flatto, The King and I, supra note 20.
75 The legal authority is not necessarily the Sanhedrin in this account, and may just be the sages who administer justice and serve as a proxy for divine authority.
76 This theme is emphasized in various other rabbinic sources, see, for example, Babylonian Sanhedrin 7a, and has been discussed by Barry Wimpfheimer in an unpublished AJS paper. See supra note 24. See also Haim Shapira, For the Judgment is God's—On the Divinity of Judging, 26 Bar-Ilan Law Review 320 (2010).
77 For more on this kind of form criticism, see Rubenstein, Talmudic Stories, supra note 16; Rubenstein, supra note 14.
78 One can identify the sources of certain of these interpolations. See, e.g., Sifre Deut 19:17; Yerushalmi Sanhedrin 1:5; Babylonian Talmud Shevuot 30a; Babylonian Talmud Bava Batra 4a; see also Efron, Studies on the Hasmonean Period, supra note 24, at 190–96; Kahana, Sifre Zuta Deuteronomy, supra note 24.
79 The Midrash Halakha inserts in the Tanhuma are less elaborate, which may suggest that the rabbinic interpolations were inserted at a later phase in the Babylonian Talmud's development.
80 See infra notes 84–85.
81 See Kahana, supra note 24, at 282–86. The Sifre Zuta must be examined with critical care since it is a reconstructed midrash, reconstructed in part from a medieval Karaitic commentary. For more on this and other halakhic midrashim, see Kahana, Menahem, The Halakhic Midrashim, in The Literature of the Sages, Second Part, 4–106 (Safrai, Shmuel, Safrai, Zeev, Schwartz, Joshua & Tomson, Peter T. eds., 2007)Google Scholar.
82 Deuteronomy 19:17.
83 For more background on the Tanhuma, see Marc Hirshman, Aggadic Midrash, in The Literature of the Sages, Second Part,supra note 81, at 107–32.
84 The Tanhuma sometimes reworks traditions from the Babylonian Talmud, which is reflected in certain later redactional features, such as repetitions. For instance, in this passage there is the clumsy doubling of Simeon's demand that the Hasmonean king stand up. But the Tanhuma sometimes reworks traditions that trace to an earlier version of the Babylonian Talmud.
85 For more on the dating of the Tanhuma, its different literary phases, and its relationship to the Talmud, Babylonian, see Marc Bregman, The Literature of Tanhuma-Yelamdenu (1st ed. 2003)Google Scholar (Hebrew); Solomon Buber, Midrash Tanhuma (1964) (Hebrew); Abraham Epstein, Kidmot Hatanhuma, 5 Beit Talmud 7, 7–23, 53–55 (1886) (Hebrew). I thank Dov Weiss for these references.
86 The version of the trial in Midrash Tanhuma is very similar to the kernel of the Babylonian Talmud, but evidently involves a civil dispute; records an initial request of the litigant, as well as Simeon's preliminary consultation with his colleagues; portrays the Hasmonean king as the direct subject of the trial, not as the master of the culprit; never records Simeon's rebuke of the other judges, nor his appeal for a divine punishment to be meted out against them; only registers later on in the passage Simeon's stern warning about God's presence in the court; and concludes with the king's submission. Although there are certain traces in this retelling that appear to be later embellishments (e.g., Simeon twice demands that the king stand up and ultimately prevails fantastically over the humbled king), the core account may be quite early and is consistent with the Sifre Zuta and the Babylonian Talmud's kernel.
87 This likely reflects the uncertain historical identity of the king in the actual trial, which may be further suggested by the alternate identities recorded in the parallel sources (Jannaeus in the Babylonian Talmud, and Hyrcanus and Herod in the writings of Josephus).
88 Perhaps this can be helpful for harmonizing the Tanhuma's teaching with the ruling in Mishnah Sanhedrin 2:2, an issue that is particularly acute given the line in the Tanhuma, “is one allowed to judge the king?,” which seems to be answered affirmatively. See infra notes 92 and 93. Perhaps one can only judge a king in a civil matter (although this seems counterintuitive). Alternatively, perhaps the Tanhuma is consistent with the tradition of the Sifre Zuta (and Mishnah Sanhedrin 2:4). In addition, perhaps one should distinguish between Davidic and non-Davidic kings (or some other division between Hasmonean and other kings). Finally, perhaps the Tanhuma should be understood in more of a homiletic sense, that kings are subject to God's judgment, and not in a literal normative sense. These possibilities require further investigation. See supra note 74.
89 Anonymity is sometimes seen as a sign of an earlier tradition, but this is not foolproof. See Jacob Neusner, Judaism: The Evidence of the Mishnah 14–21 (2003). In this case perhaps, despite a later date, the details are forgotten or deliberately glossed over.
90 Midrash Tanhuma Shoftim, Siman 6.
91 The Tanhuma passage continues as follows:
From here we learn that litigants must act with reverence for it as if they are causing God to be judged, for this is how Jehoshaphat said to the judges “Be aware (what you are doing) you are not judging about a man, but about God (2 Chronicles 19:6).” Said Rabbi Hama b. Hanina come and see, for if the verse did not say it, one could not formulate it in such a manner, that flesh and blood is judging its Creator. God said to the judges you must act with reverence for it is as if you are judging Me. How so? If a man fulfills a positive commandment, I decree that he should be given one hundred fields. If you pass judgment concerning one (such field) which I decreed that he deserves, I will give him another from my own (possession), and I will consider it as if you took it (the field) from Me (by your verdict).
The end of the passage shifts gears and focuses on God's “presence” in the courtroom, not as a judge but as a litigant. Notably, according to this passage, then, God judges and is judged (which perhaps makes a striking statement about the all-encompassing nature of law, and its widespread applicability). On these themes, and other parallels in rabbinic literature, see Shapira, For the Judgment is God's, supra note 76.
92 The challenge of sovereign immunity is raised explicitly in this passage, while in the Babylonian Talmud's kernel the king may recognize that he is formally subject to the court's jurisdiction, even as he resists, defies, and flaunts its authority.
In the Tanhuma, it is unclear whether the Hasmonean king's presumption of sovereign immunity is based on widespread legal practice in the ancient world (which seems likely), or on some normative principle within Jewish law (which evidently does not pertain in such circumstances according to Simeon and the conclusion of this rabbinic passage). The placement of the throne or seat in the court alongside the leading sage, after the king is summoned as a litigant, which is where a royal judge presumably would sit (if he presided together with the sages), accentuates the ambivalence about this issue in the Tanhuma. In any event, the opposing litigant demands that the king appear as a litigant, and the sages initially concur with Simeon that the king should be summoned. Even the king seems to accept this to a certain extent, as he appears in court.
93 Unlike the Babylonian Talmud passage, the Tanhuma maintains its focus throughout the narrative on judging the king (note that it never records Simeon's rebuke of the other judges, nor his appeal for a divine punishment). This highlights the fact that according to the Tanhuma the legacy of the trial is that Simeon is correct and that the king should be judged, and therefore the king literally is judged. In other words, the original tentative question about whether a king should be judged is emphatically answered in the affirmative. While the judging of the king could be a later extension or development in the Tanhuma (the doubling over which seems clumsy may be indicative of a later accretion) the continuous focus on judging the king in the Tanhuma is actually smoother than the Talmudic account. In the Tanhuma, only the king is judged by Simeon; the other judges are dealt with directly by divine justice. Note that the Tanhuma's account of the trial, where Simeon actually judges the king, goes further than the Talmud's account (even Simeon's aspiration of courage in the Talmud, described by Cover, is ultimately held at bay by pragmatism).
94 The Tanhuma thus diverges from the redacted Babylonian Talmud, in which the sages' jurisdiction over the king is only envisioned in a cooperative dynamic (its broader support by Simeon is overridden by the lasting rabbinic decree of separation). The traditions of the Tanhuma, Sifre Zuta, and Babylonian Talmud (the kernel and the redacted version) differ from the rule of Mishnah Sanhedrin 2:2, in which the king is not judged (but see the parallel Tosefta passages). In fact, the plain sense of the Mishnah's juridical scheme, which starkly segregates the king from the court, sharply diverges from all of these other rabbinic sources.
95 The period referred to is the first century BCE. A more precise date for the trial is 47 BCE, when Herod was about twenty-five years old (even though Josephus says he was fifteen in Antiquities 14.158, this seems inaccurate in light of Antiquities 17.148). See Kasher, supra note 34.
96 It should be emphasized at the outset that the notions of legal and political authority found in Josephus's descriptive writings on the trial of Herod differ from the theocratic-juristic vision that Josephus advances in various programmatic writings, especially in Antiquities 4 and Apion 2. In Antiquities 4, Josephus restates sections of Deuteronomy 17 in a manner that is informed by his vision of legal administration: the high priest, prophet and council of elders (the gerousia) serve as higher judicial authorities. Josephus's reference to this latter council as a judicial body is an important addition to the underlying biblical verse, Deuteronomy 17:9, that mentions only “the levitical priests and the judge.” At the same time, Josephus expresses opposition to the very institution of the monarchy that goes well beyond any equivocation that may be detected in Deuteronomy 17:14–20. In an ideal system, according to Josephus, the rule of law will be supreme, and God will act as sovereign. If a king is selected, he must be concerned with justice and be subservient to the laws. Moreover, the king must solicit the counsel of the high priest and the advice of the elders (gerousia) before he acts. This suggests a dramatic form of subservience by the king to these latter two institutions. Josephus here never states that the king participates in the judiciary.
In Apion, Josephus's final work that offers a rich apology for, and theoretical account of, Judaism, Josephus advances an analysis of the Torah's unique political constitution (he labels this a “theocracy”), which is built upon a durable legal foundation. Given that the political strength of the Jewish tradition derives largely from its legal supremacy, the allocation of judicial responsibility within this system is crucial. Here, too, Josephus's model is clear: the high priest (not the king), along with the priestly class, is responsible for overseeing the judiciary and God's sacral law. For more on these sections in Josephus, see my articles, The King and I, supra note 20, and Theocracy and the Rule of Law: A Novel Josephan Doctrine and its Modern Misconceptions, 28 Dine Israel 5 (2011)Google Scholar.
The considerable differences between Josephus's expositions in Antiquities 4 and Apion 2 and his representations of the trial of Herod can be largely attributed to the fact that the trial occurs within a monarchic framework, which necessarily diverges from the anti-monarchic undercurrent of his programmatic writings. Moreover, I would add that the lasting legacy of the trial (that Josephus must have also internalized to a certain extent, notwithstanding my remarks below about his own confusion)—which underscores the abundant power that a sovereign wields over legal affairs—may be one of the indirect influences that inspired Josephus to formulate an alternate theocratic-juristic vision which he presents in his programmatic writings. That is, precisely because royalty tends to dominate legal affairs, Josephus envisions an ideal system of law that operates independently of royal intervention. This vision is only possible if the king is eliminated or subordinated, and an independent theocratic legal system governs society.
In the present context, I am focusing on Josephus's descriptive writings, in particular his writings about the Herod trial. Nevertheless, as I argue below, Josephus's accounts touch on political and structural issues, and do not merely offer descriptive chronicles of these events. With that background, I turn to Josephus's renditions of the trial, considering its function and message in his historical writings. See also infra note 150.
97 See Flavius Josephus, The Jewish War 1.201–15 (H. St. J. Thackeray trans., Loeb Classical Library 2004) (1926); Flavius Josephus, Jewish Antiquities 14.158–84 (Ralph Marcus trans., Loeb Classical Library 2004) (1933).
98 For several scholarly treatments, see Kasher,supra note 34; Tamar Landau, Out-Heroding Herod: Josephus, Rhetoric, and the Herod Narratives 226–27 (2006); Richardson, supra note 34, 108–12; Goodblatt,supra note 24, at 112–13; James S. McLaren, Power and Politics in Palestine: The Jews and the Governing of Their Land 67–79 (1991); Seth Schwartz, Josephus and Judean Politics 183–84 (1990); Richard Laquer, Der Jüdische Historiker Flavius Josephus 171–204 (1970) (German); and Efron,supra note 24, at 190–97 (including numerous secondary references cited by Efron in notes 209 and 210). See also Richard Kalmin, Jewish Babylonia between Persia and Roman Palestine 249 (2006).
99 In contrast with rabbinic literature, Josephus's accounts are riddled with more complexities, which have to be confronted in order to better understand the significance of this epic trial in Josephus's writings.
100 Regarding the claim that Josephus here relied on two distinct sources (specifically, that Antiquities 14.171–76 is assumed to come from a distinct pro-Pharisaic source, in contrast with the rest of the Antiquities section which likely comes from Nicholas), see Josephus, Jewish Antiquities,supra note 97, at 14.171 note a; see also Schwartz,supra note 98, at 174 n.16.
101 Josephus, Jewish War, supra note 97, at 1.211; Josephus, Jewish Antiquities, supra note 97, at 14.170.
102 Josephus, Jewish Antiquities, supra note 97, at 14.170.
103 Josephus, Jewish War, supra note 97, at 1.211; Josephus, Jewish Antiquities, supra note 97, at 14.170.
104 Josephus, Jewish War, supra note 97, at 1.212.
105 Josephus, Jewish Antiquities, supra note 97, at 14.177.
106 Josephus, Jewish Antiquities, supra note 97, at 14.171–76. This reason can be inferred from Josephus's account, which states, “But when Herod stood in the Synhedrion with his troops, he overawed them all, and no one of those who had denounced him before his arrival dared to accuse him thereafter.” Id. Sameas proceeds to blame Hyrcanus and the Synhedrion for giving Herod such great license. All of this suggests that Hyrcanus and the Synhedrion refused to try Herod. The very next lines (14.177), which state that Hyrcanus saw that the members of the Synhedrion were bent on putting Herod to death, likely derive from a different source, see supra note 100, and offer a different reason why Herod was not convicted.
107 Josephus tries to harmonize some of them, saying that Herod escaped northward, thinking his escape was contrary to Hyrcanus's wishes. See Josephus, Jewish War, supra note 97, at 1.212.
108 Compare supra note 107 (stating that Herod escaped), with Id., at 1.211 and note a (stating that Herod was acquitted), and Josephus, Jewish Antiquities, supra note 97, at 14.177 (stating that the trial was adjourned).
109 The biblical scholar James Kugel uses the term “overkill” to describe a common phenomenon that occurs in early postbiblical literature, where a single interpretive text records two or more exegetical motifs to explain one specific textual problem. See James L. Kugel, The Ladder of Jacob: Biblical Interpretations of the Biblical Story of Jacob and His Children 7 (2006).
110 Josephus, Jewish War, supra note 97, at 1.212; Josephus, Jewish Antiquities, supra note 97, at 14.178.
111 Josephus, Jewish War, supra note 97, at 1.212–15 (stating that Herod “collected an army and advanced upon Jerusalem to depose Hyrcanus” but eventually yielded to his father and brother, who advised him to stop); Josephus, Jewish Antiquities, supra note 97, at 14.180–84 (stating that “Herod did come against him with an army” but adding that “Herod, however, was prevented from attacking Jerusalem by his father Antipater and his brother”).
112 Josephus, Jewish War, supra note 97, at 1.208, 210, 211, 213 (describing Hyrcanus's jealousy at Herod's rising acclaim; his anger at Herod's repeated successes, which was further fueled by malicious advisors who especially underscored the significance of Herod's execution of Ezekias and the bandits; his love for Herod that leads to the acquittal; and his concern about Herod's counter attack); Josephus, Jewish Antiquities, supra note 97, at 14.168, 170, 180 (describing Hyrcanus's anger, which was further kindled by the mothers of the bandits who had been killed by Herod; his love for Herod that leads to his acquittal; and his fear of Herod's counter attack).
113 Josephus, Jewish War, supra note 97, at 1.210–12; Josephus, Jewish Antiquities, supra note 97, at 14.168, 170.
114 Josephus, Jewish War, supra note 97, at 1.214–15; Josephus, Jewish Antiquities, supra note 97, at 14.180–84.
115 Josephus, Jewish War, supra note 97, at 1.212–15; Josephus, Jewish Antiquities, supra note 97, at 14.178–84. According to Antiquities, Herod relents from his aggressive plan only because he determines that he has already made an adequate showing of strength to the people when he first arrived at the trial. See Josephus, Jewish Antiquities, supra note 97, at 14.184. This explanation seems at odds with Josephus's description of Herod fleeing from Hyrcanus. See Josephus, Jewish Antiquities, supra note 97, at 14.177.
116 Josephus, Jewish War, supra note 97, at 1.214–15; Josephus, Jewish Antiquities, supra note 97, at 14.181–84.
117 Thus, conjecturing that Antiquities 14.171–76 derives from a different source, see supra note 100, may help to explain some inconsistencies, but certainly does not resolve all of them.
118 For more historical background, see supra notes 31, 98.
119 Josephus, Jewish War, supra note 97, at 1.187–201; Josephus, Jewish Antiquities, supra note 97, at 14.140–55.
120 Josephus, Jewish War, supra note 97, at 1.199; Josephus, Jewish Antiquities, supra note 97, at 14.143.
121 Josephus, Jewish War, supra note 97, at 1.201–03; Josephus, Jewish Antiquities, supra note 97, at 14.156–62. The following paragraph presents my reconstruction of Herod's behavior and likely motivations, as represented in the trial narrative.
122 This was the period of the Great Roman Civil War of 49 BCE–45 BCE, when Julius Caesar defeats Pompey, ending the First Triumvirate and initiating the final phase of the Roman Republic. For more background on these events, see 9 The Cambridge Ancient History: The Last Age of the Roman Republic, 146–43 B.C., 424–67 (J. A. Crook, Andrew Lintott & Elizabeth Rawson eds., 2008).
123 Josephus, Jewish War, supra note 97, at 1.204–05; Josephus, Jewish Antiquities, supra note 97, at 14.158–60.
124 The Sanhedrin (or Synhedrion) that is described in these passages is probably not a permanent institution but rather an ad hoc council, or even the king's council. For Josephus's use of this term, see Goodblatt,supra note 24, at 109–19.
125 Josephus, Jewish Antiquities, supra note 97, at 14.167.
126 Josephus, Jewish War, supra note 97, at 1.209.
127 There is an important nuance in Josephus's accounts here. He states that the killing was unauthorized, but also emphasizes that it was illicit because somebody was put to death without a trial. Evidently, what is being implied here is that such an act can be authorized either by way of royal sanction (i.e., a king may kill whomever is a threat) or by the verdict of a trial (led by the king and/or the Synhedrion). Thus, the killing or violence would be legitimate if they are an authorized attack or a punishment. Interestingly, these synoptic excerpts reflect an ambiguity about whose permission is necessary, the king or the Synhedrion. It is plausible that they each have the requisite authority, in the manner just described.
128 Max Weber, Politics as a Vocation, in From Max Weber: Essays in Sociology 78 (H. H. Gerth and C. Wright Mills eds. and trans., 1958).
129 See Josephus's characterization in the Jewish War, supra note 97, at 1.204–05, where Herod is described as acting as sovereign of the Galilee, in accord with his own monarchic pretenses. Herod's heroic act is both a sign of royalty and constitutive of royalty.
For a contemporary application of the notion that the sovereign can authorize the violence of others, see Eugene Kontorovich, The Piracy Analogy: Modern Universal Jurisdiction's Hollow Foundation, 45 Harvard International Law Journal 183 (2004) (describing how privateering constitutes a licit form of piracy that is authorized by the sovereign under the law of nations).
130 Josephus, Jewish Antiquities, supra note 97, at 14.165–67.
131 In War, the characterization is different, as those giving the advice are described as “malicious persons at court.” Josephus, Jewish War, supra note 97, at 1.208–09; see Schwartz,supra note 98, at 183–84.
132 Officially, Hyrcanus was an Ethnarch, but the Jews considered him to be their king. See Josephus, Jewish Antiquities, supra note 97, at 14.157, 172, 190ff.
133 Recall that Antipater competed with Hyrcanus, and Caesar granted Antipater the right to choose his office after bestowing the high priesthood upon Hyrcanus. See Josephus, Jewish War, supra note 97, at 1.196–201; see also id., at 1.203 (“[H]e took the organization of the country into his own hands, finding Hyrcanus indolent and with the energy necessary of a king.”); id., at 207 (“Antipater, in consequence, was courted by the nation as if he was king and universally honoured as lord of the realm.”); id., at 209 (“Hyrcanus, they said, had abandoned to Antipater and his sons the direction of affairs, and rested content with the mere title, without the authority, of a king. How long would he be so mistaken as to rear kings to his own undoing? No longer masquerading as viceroys, they had now openly declared themselves masters of the state, thrusting him aside.”). In a similar vein, Josephus describes the rise of Antipater and his sons, achieved in part by way of Herod's exercise of power in the Galilee, as leading to Antipater's receiving the nationwide “respect shown a king and such honor as might be enjoyed by one who is an absolute master.” Josephus, Jewish Antiquities, supra note 97, at 14.161–62. By extension, this kind of esteem accrued to Herod as well.
134 Josephus, Jewish War, supra note 97, at 1.209.
135 Throughout the accounts of Herod's trial, Josephus describes King Hyrcanus as the supreme legal official who subpoenas and discharges Herod, and who, alongside the Synhedrion (in the Antiquities account), judges the indicted defendant.
136 By charging Herod, Hyrcanus is using law as a political tool against Herod, which is consistent with the account's overall conception of the relationship between law and politics. Moreover, it seems clear that law is being used as a political instrument in the additional sense that Herod is charged, even though Hyrcanus and the Sanhedrin did not (or could not) pursue Ezekias and the bandits or punish them in court. Nevertheless, they refuse to delegate such responsibilities to another person, or at least not to a royal aspirant. Finally, it is worth noticing how the bandits' mothers try to use law against Herod, also suggesting its instrumentality. See Josephus, Jewish Antiquities, supra note 97, at 14.168.
137 Even though Josephus records Antipater's advice to Herod to walk a fine line between securing his own safety and not provoking a revolt, id., at 14.169, it seems clear that a primary motive for Herod is to appear monarchic. In a sense, this is Herod's best option at this point: he must make a royal showing, but if he makes it too boldly he will be in open revolt against Hyrcanus, which Herod apparently is not yet ready to be. However, shortly thereafter, when Herod escapes northward, he is willing to edge closer to an open revolt against Hyrcanus. Id., at 14.169.
138 See id., at 14.169, 171–74 (anticipating and then explicitly describing Herod's appearance).
139 Id., at 14.172–73 (originating, possibly, from a different source).
140 This may be the meaning of the following passage: “Thereupon the members of the Synhedrion became indignant and attempted to persuade Hyrcanus that all these things were directed against him.” Id., at 14.179. By “all these things” the members of the Synhedrion likely refer to Herod's purple dress and regal posture, as well his escape from the trial, which all can be interpreted as ways of undermining his subjugation to the law, and thereby defying King Hyrcanus.
141 When Sameas continues, “[b]ut it is not Herod whom I should blame for this or for putting his own interests above the law, but you (the members of the Sanhedrin) and the king, for giving him such great license,” the latter phrase includes allowing Herod to assume royal airs. Josephus, Jewish Antiquities, supra note 97, at 14.174.
142 First, Hyrcanus becomes infuriated and compels Herod to appear before the tribunal, and then he readily, and lovingly, acquits him from all charges. See supra notes 110–17 and the accompanying text.
143 Since Hyrcanus is officially discharging or acquitting Herod, and (at least officially) not just bowing to Herod's intimidating stature, Hyrcanus remains legally in charge. Hyrcanus thereby reinforces his royal legal authority and Herod's inferior status as a commoner who is subject to the law.
144 Especially because it is not clear whose side the Romans or the Judean people would support, given Herod's rising popularity, alongside his father and brother.
145 In other words, when Antipater states that Herod should not avenge his having been subpoenaed by Hyrcanus since ultimately Hyrcanus acquitted Herod, he seems to have missed what Herod (at least eventually) understood. Namely, even though Hyrcanus had discharged Herod, Hyrcanus had nevertheless succeeded in reinforcing his own royal legal authority and Herod's status as a commoner, thereby subtly but categorically damaging Herod's reputation and aspirations.
146 Josephus, Jewish War, supra note 97, at 1.212; Josephus, Jewish Antiquities, supra note 97, at 14.178.
147 Josephus, Jewish War, supra note 97, at 1.214–15; Josephus, Jewish Antiquities, supra note 97, at 14.180–84.
148 What seems to ultimately sway Herod to not avenge being subpoenaed is that he has already done enough to project his own royal image during the preliminary trial proceedings. See Josephus, Jewish War, supra note 97, at 1.215; Josephus, Jewish Antiquities, supra note 97, at 14.184.
149 See Josephus, Jewish War, supra note 97, at 1.229ff; Josephus, Jewish Antiquities, supra note 97, at 14.285ff; see especially Josephus, Jewish Antiquities,supra note 97, at 15.173.
150 Josephus's programmatic writings offer a very different portrait of legal and political authority, which may well be a response and alternative to his descriptive accounts of the trial scheme that underscore the deep nexus between law and power. See supra note 96.
151 According to Josephus's depictions of the trial of the Judean king, sovereignty, then, is identified through a distinct capacity: a monopoly over legal control. In other words, commanding legal supremacy or controlling the violence of the law is a critical dimension of sovereignty. Therefore, a competition over royal power is also, or even primarily, manifest in the legal sphere. That is, even in Josephus's accounts of the trial that emphasize power politics, one still senses the importance of law for political and social authority. Throughout these passages, a primary indicia of political power is controlling the law, and concomitantly being immune from its enforcement.
At first blush, this idea seems similar to standard conceptions of sovereignty. For an absolutist conception of sovereignty includes all powers, including legal powers. Thus, the sovereign exercises both political sovereignty, as well as legal sovereignty. But in the absolutist definition of sovereignty, legal authority is just one manifestation of a general command of powers. In contrast, Josephus's accounts operate with a more focused conception of sovereignty. What is fascinating about Josephus's renditions of this episode is that the theater where sovereignty is being established is entirely within the legal domain. It is the capacity to licitly authorize actions, define crimes, subpoena, judge, and acquit—all dimensions of legal authority—that define or constitute sovereignty. Josephus's accounts operate with what can be described as a “legalistic conception of sovereignty,” wherein the sovereign monopolizes the legal enterprise.
152 Multiple narrations of these tales—to invoke Peter Brooks's description of the function of narration—“give them shape, give them a point, argue their import, and proclaim their results.” Brooks, Narrativity of the Law, 14 Cardozo Studies in Law and Literature 1 (2002).
Cumulatively, these multiply narrated tales help construct Jewish law. Jewish law offers a profound exemplar of the prominence of narratives within legal discourse, as Cover already realized, and supports the growing claim of the importance of narrativity for fully comprehending the nature of law. In addition to the amalgam of halakhah and aggadah (rabbinic narrative), one also finds within early Jewish jurisprudence what can be described as the aggadah of the halakhah (or the halakhic process), meaning the meta-narratives that establish, frame, reinforce, shape, and perpetuate the halakhic system—or, what I have labeled as the foundational or secondary stories of Jewish law throughout this article (especially in Part I). These narratives help shape Jewish law, which belies any attempt to analyze them discretely from the field of law.
As emphasized in Part I, the importance of foundational and secondary legal tales as a genre extends beyond Jewish law. While such myths play a distinct role within the Jewish legal tradition, they also have much relevance for legal traditions at large. Stories are crucial vehicles of the culture of law and help construct our conceptions of law. Indeed, as argued in Part I, entire legal systems and traditions are anchored in foundational myths and shaped by secondary narratives. These stories (alongside other tools of the culture of law) can inform the nature and scope of law; the values of a legal tradition; the rights and liberties it protects; the roles of courts and leading officials within society; the way law operates in times of emergency; and many other matters. A study of law and its stories must encompass the tales that establish and sustain a legal tradition. The Law Stories Series, published recently by Foundation Press, reflects an increasing awareness of the significance of legal stories (broadly defined) in the academic community.
153 Cover, The Folktales of Justice, supra note 2, at 190.
154 For further meditations on a related theme, especially in the context of Judaism, see Yosef Hayim Yerushalmi, Zakhor: Jewish History and Jewish Memory (1982).
