JEWISH TRADITIONS OF LAW
HUMAN LAW AND HUMAN JUSTICE Julius Stone ( Faculty of Law) Sydney 1965.
P 22: s 6 Hebrew Doctrines of “Justice According To Law”
The truth is that what above all divide the idea of justice and the administration of justice from vengeance , are the limits and procedures of law for determining guilt and penalty. And it was the Mosaic law more clearly and completely than ever in the Greek tradition, which gave us the notion of “Justice-according-to-law” It was in the land of Israel that for the first time , the ideas of justice and law were inextricably interwoven with each other and even identified.[63] In the Utopias of perfect justice built by Ovid in his Metamorphoses[64] by Marx and Engels in their communist theory of law[65] and by Isaiah [66] , Ovid and Marx-Engels see justice as perfect when there are neither laws nor judges . But for Isaiah , on the other hand, justice is perfect rather in a perfect judge, and in an understanding and enforcement of laws which guarantee their observance. It was the Old Testament which for the Western world, pointed the truth that ( with whatever additions or qualifications we please) justice revolves around obedience to the law.
This of course is true only for law approximating to justice. In the emergence of these Jewish notions, law was justice and justice was law. Because both proceeded from God. [67] From the beginning the Jews based themselves on denial of the separation of powers at the divine level.
( p 23) DIVINE AND KINGLY JUDGMENT
“The Lord is our judge; The Lord is our lawgiver; the Lord is our King.”[68] And this merger at the divine level carried with it, by dramatic paradox, that on the human level, justice and protection from tyranny [69] require separation of powers. For the minor role of royal legislative power , and the absence of any right of the king to be final judge , follow from the king’s subjection to God and the law. This kingly subjection which elsewhere was to be a constant centre of spiritual , political and military struggle, was not seriously in question among the Jews, [70] nor was it allowed to be reduced to mere formulae and piety. The prophet Nathan’s denunciation of David to his face was a divine judgment based on law that the King could not alter; and the king accepted it as such. [71]
Of course , initial lack of differentiation between the divine and the secular law , and the endowment of law with divine sanction, absoluteness and immutbility are common in early legal orders. It is in what came after , rather than in the beginnings that the specific Jewish features seemed to emerge. As to what did come after , a full analysis free of apologetics and adequately based both in biblical and Talmudic teaching , and contemporary legal history is long overdue. [72] Yet even now certain tentative features can be pointed out. One is the persistence of the divine attribution of the undifferentiated legal order even into the contemporary politics of the State of Israel. This is no doubt explained in part by the remarkable phenomenom of the maintenance of the law of the Torah , during nearly 2000 years after the destruction of the State, as a law in some way in force independently of any particular territorial organisation. [73] Yet there is a long period before that to be explained. No doubt in part the explanation is to be found in the powerful charismatic role of the prophets. There is probably to be added the nature of the contents of the Torah itself, above all the comprehensiveness and detail of its precepts, which left little scope for the secular invention of starting points entirely outside its ambit. Finally there is the role assumed by Jewish tradition , not
Page 24 EARLY HORIZONS
only by priests and prophets, but also and above all by the reason and reasonings of men of learning.
7. REASON OF THE LEARNED OF EACH GENERATION AND THE HEBREW JUDICIAL PROCESS On the one hand, Jewish energies were for the most part
not channelled into metaphysical and cosmological speculation. The Greek problem of reconciling human law with divinely ordained law scarcely arose for the Jews, for whom, during the formative period of the tradition the two never became separated. On the other hand, within this very unity the Jews were able to accommodate human reason within the system of revealed law. For however comprehensive and detailed the written law(Torah) the unwritten law (Halakha or oral tradition) was given a place beside it being deemed to have been given to Moses by God , also on mount Sinai, for transmission from generation to generation throughout time, with all that this implied. The presence of the written law, and the divine origin maintained for it, meant that the unwritten law came into the charge of the exegetes ( keepers of scripture), rather than speculative philosophers. For the unwritten law could not be at large, but must respect every revealed precept and word. Yet the scholarly reason was not enslaved by these limits, its product being not seen as proceeding from any mere subsidiary source , nor as at all inferior in divine sanction. The legal fiction involved( if it be one) was all but discarded in the Talmudic rationalisation that “Whatever a competent scholar will yet derive from the Law, that was already given to Moses on Mt Sinai. [74]
The discoveries of reason to rank so high, must of course be anchored to the revealed text, though this might be only by the use of an adjective or a word or syllable variants, or the choice of one of conflicting texts., and that even in most strained interpretation. The standing that was discovered was measured moreover by reason and competence in scholarship.[75] The Halakha emergent from individual learning became perfected as it became Minhag, that is accepted among the learned. Of competence in scholarship, the fellowship of scholars alone was judge. The fellowship in turn was open to all the learned as such. (page 25)
Interpreters of this kind , though working with the divine law itself, resembled the great Roman juriconsults, or the great judges of the common law tradition, than the esoteric priestly interpreters common in primitive society. The rabbi’s resembled the juriconsults also in receiving no remuneration as such; many distinguished rabbi’s earned their living as humble manual workers. On this matter, even to this day, the Jewish tradition has rallied little to the kingly patent or commission of office, even priestly office, as a credential of either scholarship or wisdom.[76] Each Generation in turn , this generation seemed to assume, could receive through its intelligence and experience, the eternally expanding word of the Divine Lawgiver. [77], And while the influence of this pattern on Mediaevil scholasticism is obvious, Jewish tradition was for the most part free of any operative hierarchy of authority, or of organs for declaring dogmas. A recent penetrating study , available only after this chapter was written, has sought to formulate the principles (or methods) on which the learned rabbis, whether in academics or courts , elaborated the rules of the Halakha.[78] Lack of space forbids more detailed consideration here, though any reader of Chapters 7 and 8 of our own study Legal Systems and Legal Reasoning will be struck by deep similarities to modern appellate process, both in respect for traditional authority, and adept use of techniques in turning authority to present purposes. The rabbis often reinterpreted even the weightiest texts, even neutralised them with each other,[79]gave weight to some particular interpreters, but not absolutely,[80]
[63] S. W. Baron , 1 Social and Religious History of the Jews ( 2nd Ed 1953) 25, points out that probably one of the oldest parts of the bible is the so called Book of the Covenant, containing essentially civil and criminal laws, that most of the Decalogue is concerned with conduct in daily life, and the earliest prophetic writer , Amos, has as his theme justice, especially in controlling the innate powers of the strong. Cf on the Central Concern for justice in the Covenant Code , as “characteristic”above all in Israelite law. G mendenhall op cit supra n 45 at 16.
[64] Metamorphoses I 89-93
[65] See Sone Social dimensions ch 10
[66] Isaiah 11
[67] Hence the absence of a distinct concept of natural law or equity, on which see infra s 7; and also the secondary role of sanctions on which see Kagan, op cit supra n 44 at 135. and cf F H Knight in Nomos justice 1-23 at 2n.
[68] Isaiah 33.22
[69] Cf generally S Freehof, “The natural Law in the Jewish Tradition” ( 1951) 5 Nat L Ins Proc 15 at 17.
[70] The question did arse at a late stage when, following upon armed intimidation by Herod of the Sanhedrin in connection with the pending trial of one of his servants, a rule was adopted by the Sanhedrin forbidding Kings ( other than of the House of David) either to sit in judgment or to be brought to judgment. The matter of course faded quickly into insignificance with the final downfall of self government in the ancient kingdom. In other nations where subjection had later to be fought for, Jewish positions already taken were an important base of operations. Cf generally on the later influence of Hebrew thought , Woodrow Wilson , quoted in hertz op cit supra n 45 at 406; and Friedrich Philosophy of Law at 8-12 esp (at 9) on the Puritan revolution in the 17th Century.
[71] Freehof cit supra n 69 and cf Kagan op cit supra n 44 at 99, pointing out that in fact “Samuel protested against King Saul, Nathan against King David, Elijah against King Ahab, Elisha against King Jehoram, Jeremiah against Zedekiah, cf id 141. quoting E.R.Bevan Jerusalem under the High Priests ( 1958) 8. On the royal Legislative Power se Maimonides Hilkhot Melakhim iii-iv, Cohn “Jewish Law” speaks of a “Judicial usurpation”orf royal lawmaking power ; the word may not be apt either in terms of spiritual base , or of chronology. But see G Mendellsohn, op cit supra n 45 at 48 and see for example of rules issuing from particular kings, B Cohen, Law and Tradition in Judaism. (1959) 27.
[72] But Cohn ‘Jewish law” which reached us only in this part of the MS , was going to press , manifests so excellent a union of the qualities and mood required , that we may be hopeful it author, or some other
[73] On the growth to a degree of multiple local variations in the later dispersed communities see Cohn Jewish Law. 57
[74] Jerusalem Megillah IV 74d See freehof, cit supra n 64, 18-19. see also Cohn, “Jewish Law” 45-48 both on the general point and on the relation of this to the struggle between the Pharasees and Sadducees ; on the secular nature of rabbinical techniques of elaboration of the Halakha (53-54); on this elaboration as a solution to the problem raised by contradictory rules , both deemed to be divinely supported ( 48) ; on the paradox of the immutability of the divine law (including Halakha) making direct repeal almost impossible , as contrasted with the drastic powers of tacit abrogation by exegesis. (55-56); and on the particular rigidity within the Halakha of codifications by individual scholars in the eleventh ( Yitzhak Alfassi), twelfth ( Maimonides) , fourteenth ( Yaarkov ben Asher) and fifteenth ( Yosef caro) centuries ( 56-57, 60-61) and see also generally H L Strack intro to Talmud and Midrash (1931) H Silving , “Jurisprudence of the Old Testament” (1953) 28 NYULR 1129; and on the contemporary problems in Israel. Infra n 88.
[75] Cf Cohn< Jewish Law 53-54, who observes that in the Talmudic period, “the judicial and legislative functions were …………….monopolised by the scholars”: that the succession to them was by becoming “pupils of the wise” ; and that the methods of elaboration were adapted by choosing the most feasible, reasonable and acceptable law, but not necessarily the divinely inspired or willed law.
Competence in scholarship was supplemented or elaborated by other criteria. Thus a certain decisiveness was given ( though with unclear priority between them) to support by a majority of the learned , to later rather than earlier interpretations, and to skill as a judge.
[76] According to Horioth 13a “ a bastard who is learned in the law takes precedence over even a High Priest who is an ignoramus.” It should be added that such doctrines were less socially disturbing than they might have been if the office of High Priest had not already been obsolescent.
[77] Even says in effect Brachot 57a to the extent of modifying precepts as literally revealed by reference to the purpose of the precept as now understood.Freehof article cited 18-19; and see Kagan op cit 102-103, 156-160, 177. On the participation of every ew in this process cf id 158, and see R T Hurford Pharisaism (1912) 15-16.
[78] Cohn “Jewish Law” esp p 49-6, provides the rabbincal texts , see further Stone Social Dimensions Ch 3 s3.
[79] See supra N 76
[80] Hillek, Shammai and Akiba were those given the most general weight, though differentiated also inter se. Rav had special weight on ritual and Shmuel on private law. There were many other general rules; but of course such rules of pre-eminence usually became flexible in interplay with other methods of interpretation discussed above. See for a suggestive account of the effect of diversity of social and class backgrounds and economic preoccupations among the rabbis on their interpretations of the biblical texts. L Finklestein