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Constructing Justice: The Selective Use of Scripture in Formulating Early Jewish Accounts of the Courts*

Published online by Cambridge University Press:  18 December 2018

David C. Flatto
David C. Flatto*
Affiliation:
The Hebrew University of Jerusalem
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Abstract

Elaborate depictions of the court system in Second Temple and rabbinic literature signify its centrality for the Jewish legal tradition. Rather than offering positivistic descriptions, these representations are better thought of as templates of how to organize justice. While historically less informative, they are vivid expressions of the early Jewish legal imagination and its fascinating fixation on the architecture of justice.

A measure of the ahistoric quality of early accounts of judicial administration is their considerable exegetical strata. This article surveys how four seminal Second Temple and rabbinic works constructed accounts of the judiciary on the foundation of Scripture. The variances among them unfold from decisive hermeneutical choices, beginning with the threshold question of which among several, internally inconsistent, biblical sources to select as a base text. What animates these various choices, in turn, are competing conceptions of the origin and nature of legal authority within a religious tradition that enshrines the role of law.

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Articles
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Harvard Theological Review , Volume 111 , Issue 4 , October 2018 , pp. 488 - 515
Copyright
Copyright © President and Fellows of Harvard College 2018 

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Footnotes

*

I would like to thank Professors Daniel R. Schwartz and Jon D. Levenson for their helpful comments. I would also like to thank Dean Hari M. Osofsky and my colleagues at Penn State Law, as well as Professor Tom Baker and the Gruss Program of Penn Law School, for supporting my research while I worked on this project.

References

1 See Elon, Menachem, The Principles of Jewish Law: History, Sources, Principles (trans. Auerbach, B. and Sykes, M. J.; 4 vols.; 1st ed.; Philadelphia, PA: Jewish Publication Society, 1994) 1:6–10Google Scholar.

2 The primacy of the courts is likewise emphasized in Urbach’s survey of the halakhic system. See Urbach, Efraim E., The Halakhah: Its Sources and Development (trans. Posner, Raphael; Masada: Yad la-Talmud, 1986) 7–10Google Scholar. See also Albeck, Shalom, Law Courts in Talmudic Times (Ramat-Gan: Bar-Ilan University Press, 1980) (Hebrew)Google Scholar.

3 These will be surveyed in what follows.

4 See Mishneh Torah (standard editions), Hilkhot Mamrim, 1:1.

5 See Mishneh Torah (standard editions), Hilkhot Sanhedrin, in Sepher Šopheṭim. Likewise, both the Tur and Shulkhan Arukh begin Ḥošen Mišpaṭ with Hilkhot Dayyanim.

6 Elon explicitly cites the work of Gedalyahu Alon. See The Jews in their Land in the Talmudic Age, 70–640 C.E. (ed. Levi, Gershon; trans. Levi, Gershon; Cambridge, MA: Harvard University Press, 1989) 185–252Google Scholar. Additional works include Mantel, Hugo, Studies in the History of the Sanhedrin (Harvard Semitic; Cambridge, MA: Harvard University Press, 1961) 1–4, 54–101, 303–306CrossRefGoogle Scholar (which surveys much earlier scholarship), and Schürer, Emil, The History of the Jewish People in the Age of Jesus Christ (175 B.C.–A.D. 135) (ed. Schürer, Emil, Vermès, Géza, and Millar, Fergus; 5 vols.; Edinburgh: T&T Clark, 1973–87) 2:199–226Google Scholar. For further analysis, see Goodblatt, David, “Sanhedrin,” in The Encyclopedia of Religion (New York and London: Macmillan, 1987) 13:60–63Google Scholar. A similar approach was endorsed more recently by Shmuel Safrai. See, e.g., “Jewish Self-Government,” in The Jewish People in the First Century: Historical Geography, Political History, Social, Cultural and Religious Life and Institutions (ed. Safrai, S. and Stern, M.; 2 vols.; Assen: Van Gorcum, 1974–76) 1:379–80CrossRefGoogle Scholar.

These studies rely upon rabbinic literature as well as other writings from Second Temple literature, such as Josephus. In fact, much historiography of the courts depends on a range of material from Josephus’s writings, even when their historicity is far from clear. For example, even as meticulous a scholar as Martin Goodman treats the Apion passage, discussed further below, as having empirical value (Rome and Jerusalem: The Clash of Ancient Civilizations [London and New York: Allen Lane, 2007] 312).

7 The most important revisionist accounts are Efron, Joshua, Studies on the Hasmonean Period (Leiden: Brill, 1987) 287–338Google Scholar; and Goodblatt, David, The Monarchic Principle: Studies in Jewish Self-Government in Antiquity (Texte und Studien zum antiken Judentum; Tübingen: Mohr Siebeck, 1994) 77–130, 232–76Google Scholar. For a broader treatment of the courts, see Hezser, Catherine, The Social Structure of the Rabbinic Movement in Roman Palestine (Texte und Studien zum antiken Judentum; Tübingen: Mohr Siebeck, 1997) 186–95Google Scholar; and Lapin, Hayim, Rabbis as Romans: The Rabbinic Movement in Palestine, 100–400 CE (Oxford and New York: Oxford University Press, 2012) 98–125CrossRefGoogle Scholar. For a measured response to some of the above studies, see Shapira, Haim, “The Court in Yavneh: Status, Authority and Functions,” in Studies in Mišpaṭ ‘Ivri and Halakhah: Judges and Judging (ed. Habba, Ya’akov and Radziner, Amihai; Ramat-Gan: Bar-Ilan University Press, 2007) 305–34 (Hebrew)Google Scholar.

8 Even the revisionist scholarship referenced in the previous note has not adequately recognized the exegetical dimension of the postbiblical descriptions of the courts, nor the plurality of the underlying Pentateuchal sources which they draw upon. But recent scholarship has begun to take greater notice of the literary dimension of these passages. See, for example, Rosen-Zvi, Ishay, “The ‘Protocol’ of the Yavneh Court: A New Perspective on Tosefta Sanhedrin Chapter Seven,” Tarbiz 78 (2009) 447–77 (Hebrew)Google Scholar; Berkowitz, Beth A., Execution and Invention: Death Penalty Discourse in Early Rabbinic and Christian Cultures (New York: Oxford University Press, 2006)CrossRefGoogle Scholar; Hidary, Richard, Dispute for the Sake of Heaven: Legal Pluralism in the Talmud (Brown Judaic Studies; Providence, RI: Brown Judaic Studies, 2010)Google Scholar; and Cohn, Naftali S., The Memory of the Temple and the Making of the Rabbis (1st ed.; Divinations: Rereading Late Ancient Religion; Philadelphia, PA: University of Pennsylvania Press, 2013CrossRefGoogle Scholar). See also the important earlier work of Weiss cited in note 112.

9 For examples of the latter, see Efron, Studies on the Hasmonean Period, 292.

10 Certain works cited in note 7 touch on inconsistencies among the various passages, but even a thorough list would understate the point. These are dramatically different templates. See the discussion below. See also David C. Flatto, Justice Unbound: Separation of Powers in the Early Jewish Imagination, chapter six (forthcoming from Harvard University Press, 2019).

11 Recent works on the use of Scripture, or lack thereof, in rabbinic literature include Kahane, Menahem, “The Relations Between Exegeses in the Mishnah and Halakhot in the Midrash,” Tarbiz 84 (2016) 17–76 (Hebrew)Google Scholar; Bar-Asher Siegal, Michal, “Uncovering Midrash: The Hebrew Slave in the Mekhilta deRabbi Ishmael,” Journal of Jewish Studies 68 (2017) 34–57CrossRefGoogle Scholar; and Milgram, Jonathan S., From Mesopotamia to the Mishnah: Tannaitic Inheritance Law in Its Legal and Social Contexts (Tübingen: Mohr Siebeck, 2016)CrossRefGoogle Scholar.

12 Many scholars have concluded that rabbinic norms, as presented in tannaitic literature, were not largely operative at the time. See, for example, Schwartz, Seth, Imperialism and Jewish Society, 200 B.C.E. to 640 C.E. (Jews, Christians, and Muslims from the Ancient to the Modern World; Princeton, NJ: Princeton University Press, 2001) 66–74, 111–13Google Scholar. But there are dissenting views. See, for example, Katzoff, Ranon, “P. Yadin 21 and Rabbinic Law on Widows’ Rights,” Jewish Quarterly Review 97 (2007) 545–75CrossRefGoogle Scholar.

13 While the several accounts examined in this article were written in very different contexts, their variances cannot be attributed simply to different historical practices, but are primarily derived from different underlying sources, hermeneutics, and ideologies. Still, the different contexts no doubt contribute to their divergent ideologies. Moreover, it is certainly plausible that these ideologies had a secondary impact on historical practice, although, obviously there was no centralized, organized Jewish court system that fully resembles any of these templates at any period under discussion.

14 This list only refers to the more developed Pentateuchal templates. For other arrangements, see, for example, Levinson, Bernard M., Deuteronomy and the Hermeneutics of Legal Innovation (New York: Oxford University Press, 1997) 110Google Scholar. For a brief overview of biblical sources on judicial administration in their Ancient Near Eastern context, see Westbrook, Raymond and Wells, Bruce, Everyday Law in Biblical Israel: An Introduction (1st ed.; Louisville, KY: Westminster John Knox Press, 2009) 35–40Google Scholar. For fuller treatments, see Boecker, Hans J., Law and the Administration of Justice in the Old Testament and Ancient Near East (trans. Moiser, Jeremy; Minneapolis, MN: Augsburg Publishing House, 1980)Google Scholar; and Westbrook, Raymond, A History of Ancient Near Eastern Law (ed. Westbrook, Raymond; Handbook of Oriental Studies; Leiden and Boston: Brill, 2003)CrossRefGoogle Scholar.

15 In the Samaritan Bible, Deut 1:9–18 is inserted after Exod 18:24. See Weinfeld, Moshe, Deuteronomy 1–11: A New Translation with Introduction and Commentary (1st ed.; The Anchor Bible; New York: Doubleday, 1991) 140Google Scholar. For further analysis, see Schwartz, Baruch J., “The Visit of Jethro: A Case of Chronological Displacement?: The Source-Critical Solution,” in Mishneh Todah: Studies in Deuteronomy and its Cultural Environment in Honor of Jeffrey H. Tigay (ed. Fox, Nili Sacher, Glatt-Gilad, David A., and Williams, Michael J.; Winona Lake, IN: Eisenbrauns, 2009) 29–48Google Scholar; Cook, Stephen L., “The Tradition of Mosaic Judges: Past Approaches and New Directions,” in On the Way to Nineveh: Studies in Honor of George M. Landes (ed. Cook, Stephen L. and Winter, S. C.; Atlanta, GA: Scholars Press, 1999) 286–315Google Scholar; and Joel S. Baden, “Rethinking the Supposed JE Document” (PhD diss., Harvard University, 2007) 134–41.

16 For their complementary nature, see Levinson, Bernard M., Deuteronomy and the Hermeneutics of Legal Innovation (New York: Oxford University Press, 1997) 110–16Google Scholar.

17 See also Reviv, Hanoch, “The Traditions Concerning the Inception of the Legal System in Israel: Significance and Dating,” in Zeitschrift für die alttestamentliche Wissenschaft 94 (1982) 566–75CrossRefGoogle Scholar; and Weinfeld, Deuteronomy 1–11, 139–40.

18 On the reference to, and identity of, the judge, see Rofé, Alexander, “The Organization of the Judiciary in Deuteronomy,” in The World of the Aramaeans (Journal for the Study of the Old Testament Supplement; Sheffield: Sheffield Academic Press, 2001) 99–101Google Scholar.

19 To be sure, not all postbiblical works operate with this assumption (such as certain works in Qumran and early Christian writings). See the overview of Collins, John J., “The Literature of the Second Temple Period,” in The Oxford Handbook of Jewish Studies (ed. Goodman, Martin; 1st ed.; Oxford: Oxford University Press, 2002) 53–78Google Scholar.

20 For an analysis of rabbinic uses of the Pentateuchal judicial sources, see Henshke, David, “The Number of Judges in Ancient Israel,” in The Jewish Law Annual 17 (2007) 27–61Google Scholar. Henshke assumes that the Temple Judiciary source reflects the judicial scheme that is intended for perpetuity. But this is more of an assertion than an argument (ibid., 29). See also Fraade, Steven D., “‘If a Case is Too Baffling for You to Decide …’ (Deuteronomy 17:8–13): Between Constraining and Expanding Judicial Autonomy in the Temple Scroll and Early Rabbinic Scriptural Interpretation,” in Sibyls, Scriptures, and Scrolls: John Collins at Seventy (ed. Baden, Joel, Najman, Hindy, and Tigchelaar, Eibert; Journal for the Study of Judaism Supplements 175; Leiden: Brill, 2017) 1:409–31Google Scholar.

21 Even though these authors offer profoundly divergent conceptualizations of the biblical and Jewish tradition—apocalyptic, political-historical, naturalistic-philosophical, and halakhic—they all strikingly accent the Pentateuch’s normative materials, and underscore the centrality of legal principles. Moreover, they all share the commonality described in the next paragraph.

22 It is also found in scrolls from the fourth cave. See Pfann, Stephen, “Cryptic Texts: 4Q249a–z and 4Q250a–j: Introduction” in Qumran Cave 4: XXVI: Cryptic Texts and Miscellanea, Part 1 (ed. Pfann, Stephen and Alexander, Philip; DJD XXXVI; Oxford: Clarendon Press, 2000)Google Scholar.

23 See Jacob Licht, Megillat ha-Serakhim: mi-Megillot Midbar Yehudah [The Rule Scroll] (Jerusalem: Mosad Byalik, 1965) 241–70 (Hebrew); Schiffman, Lawrence H., The Eschatological Community of the Dead Sea Scrolls: A Study of the Rule of the Congregation (Society of Biblical Literature Monograph; Atlanta, GA: Scholars Press, 1989)Google Scholar. For a dissenting position, see Stegemann, Hartmut, “Some Remarks to 1QSa, to 1QSb, and to Qumran Messianism,” RevQ 17 (1996) 479–505Google Scholar.

24 Hempel further argues that the original core has parallels in the Damascus Code. See Hempel, Charlotte, The Qumran Rule Texts in Context: Collected Studies (Tübingen: Mohr Siebeck, 2013) 47–64CrossRefGoogle Scholar. But see note 35.

25 1QSa 1:6–19. There are similar lists elsewhere in Qumran literature. See War Scroll (1QM 6:13–7:3). See also CDC 14:6–9. See Schiffman, Lawrence H., Sectarian Law in the Dead Sea Scrolls: Courts, Testimony, and the Penal Code (Chico, CA: Scholars Press, 1983) 30Google Scholar.

26 See Bilha Nitzan, Philosophy and Practice in the Dead Sea Scrolls: Theology, Wisdom, Law, and Biblical Exegesis: Collected Articles (Jerusalem: Yad Ben Zvi, 2014) chapter five (Hebrew).

27 The above characterization follows certain interpretations of these lines. See the works cited in note 23.

28 The translation is from The Dead Sea Scrolls Study Edition (ed. Florentino García Martínez and Eibert J. C. Tigchelaar; Leiden: Brill, 1997), with my own minor revisions.

29 1QSa 1:15–16 [italics added].

30 My reading is in agreement with Weinfeld, Moshe, “Judge and Officer in Ancient Israel and in the Ancient Near East,” Israel Oriental Studies 7 (1977) 65–88, at 65Google Scholar; Baumgarten, Joseph M., Studies in Qumran Law (Studies in Judaism in Late Antiquity; Leiden: Brill, 1977) 186Google Scholar; and Henshke, “The Number of Judges in Ancient Israel,” 30, n. 11. For a contrary reading, see Licht, The Rule Scroll, 258, 263, and Schiffman, Sectarian Law in the Dead Sea Scrolls, 34–35.

31 The primary source for this clause is Deut 1:15 (see also Exod 18:25). This is evident from its final words “the officials of their tribes,” which here is preceded by the word “judges,” an interpolation from Deut 16:18. The phrase “approach to arbitrate in disputes” draws on terminology from Deut 25:1.

32 1QSa 1:28–29 [italics added]. In this paragraph, the judges with these characteristics seem to be separate from “the officers of thousands.”

33 For these reasons, parallels that are sometimes drawn are inexact. See, for example, Gillihan, Yonder M., Civic Ideology, Organization, and Law in the Rule Scrolls: A Comparative Study of the Covenanters’ Sect and Contemporary Voluntary Associations in Political Context (Studies on the Texts of the Desert of Judah; Leiden and Boston: Brill, 2012) 455–87Google Scholar. On Athenian juries, see Lanni, Adriaan, Law and Justice in the Courts of Classical Athens (Cambridge and New York: Cambridge University Press, 2006) 15–40CrossRefGoogle Scholar. On Roman iudices, see Johnston, David, Roman Law in Context (Cambridge and New York: Cambridge University Press, 1999) 116–18CrossRefGoogle Scholar.

34 See Amihay, Aryeh, Theory and Practice in Essene Law (New York: Oxford University Press, 2017)CrossRefGoogle Scholar, and the review of prior scholarship on pages 3–9.

35 This vision also coheres with the opening of 1QSa which expands the community to all of Israel (pace Hempel), although an enduring tension in the scroll between parity and hierarchy continues to be manifest. See Collins, John J., Beyond the Qumran Community: The Sectarian Movement of the Dead Sea Scrolls (Grand Rapids: Eerdmans, 2010) 77–78Google Scholar.

36 The broad qualification of all congregational members who reach a certain age to serve as judges sheds light on the disqualification of senile judges specified in 1QSa 1:20–21.

37 The exact relationship between these two judicial bodies is not entirely clear.

38 This too, then, is a kind of exegetical addition. See also 1QS 5:21–22. The priestly priority is also manifest in 1QSa 1:2, 2:3, 12–13, 19–20. See generally, Angel, Joseph L., Otherworldly and Eschatological Priesthood in the Dead Sea Scrolls (Studies on the Texts of the Desert of Judah; Leiden and Boston: Brill, 2010)CrossRefGoogle Scholar.

39 See 1QM 4:1–5; 1QS 2:21–3; 11Q19 57:4–5, 58:1, 4. See also Henshke, “The Number of Judges in Ancient Israel,” 29, n. 10.

40 See Henshke, “The Number of Judges in Ancient Israel,” 30, n. 11.

41 See, for example, 1 Mac 3:55. See also Weinfeld, “Judge and Officer in Ancient Israel and in the Ancient Near East,” 65–88; and Weinfeld, Deuteronomy 1–11, 137–41.

42 A similar conflation occurs elsewhere in the scrolls. See, for example, 1QSa 1:25–29 (referenced in the next line), CDC 13:1–4.

43 See Flatto, David C., “Theocracy and the Rule of Law: A Novel Josephan Doctrine and its Modern Misconceptions,” Dine Israel 28 (2011) 5–30, at 5Google Scholar.

44 Contrast, for example, the way Josephus records Passover laws in Ant. 3.248 (i.e., the first unit of laws) based upon Exodus 12. Notwithstanding this example, the fact that Josephus privileges the Mosaic Judiciary source as recorded in Exod 18 (as opposed to Deut 1) may also contribute to its lack of influence on his restatement of the (second unit of) laws (which is largely based on Deuteronomy). See the discussion of the two units below.

45 Ant. 3.63–65.

46 Ant. 3.68–69.

47 The military dimension of this judicial arrangement is already manifest in the biblical verses (see note 41), but Josephus amplifies it considerably in his restatement.

48 See Judean Antiquities 1–4 (ed. Steve Mason; trans. Louis H. Feldman; Flavius Josephus, Translation and Commentary Vol. 3; Leiden and Boston: Brill, 2000) 248, n. 141. The translations are from this edition.

49 Ant. 3:70–71 [italics added].

50 See Judean Antiquities 1–4, 248, n. 147. The leaders evidently act as commanders.

51 Ant. 3.72.

52 According to the plain sense of the biblical verses, Joshua leads the battle (with the possible allusion that God truly wages the war), and there is no hint that Moses is directly involved in any aspect of warfare. See Ant. 3.50. See also Ant. 3.61–62.

53 Ant. 3.65

54 See Ant. 3.73–74. It is notable that even though Jethro’s scheme is labeled by Josephus as sage advice, it is not incorporated into the constitutional scheme.

55 The first two themes relate to the singularity of the Jews, alongside the universality of wisdom, a tension that is manifest throughout Josephus’s writings and life. The third boasts of the past military prowess of biblical Israel, as well as the conditions of its success, which has added poignancy on the heels of the crushing defeat that the Jews recently endured.

56 See, e.g., Ant. 1.17. See also Ag. Ap. 1.42., Ant. 10.218, and the introduction to the laws of the polity in Ant. 4.196–97.

57 Josephus’s own view is that prophecy is not foreclosed, whereas this episode may have the opposite connotation. See Klawans, Jonathan, Josephus and the Theologies of Ancient Judaism (Oxford and New York: Oxford University Press, 2012) 160 nn. 100, 101CrossRefGoogle Scholar. See also Begg, Christopher T., “Two Ancient Rewritings of Numbers 11,” in Revista Catalana de Teologia 32 (2007 [appeared 2008]) 299–317Google Scholar.

58 See Ant. 3.297–98, and compare to Num 11:10–15, 19–20, 21–22. Painting Moses in a heroic light fits well with Josephus’s project of authoring an epic history of the Jews.

59 See David Nakman, “The Halakhah in the Writings of Josephus” (PhD diss., Bar Ilan University, 2004) 62–164 (Hebrew).

60 Sinai is recorded in Ant. 3.75–94; the Tabernacle laws are recorded in Ant. 3.95–223.

61 The language is descriptive. The materials contain a selection of commandments derived mainly from Lev 1–Num 7.

62 The second unit also includes rationales for numerous commandments. See Nakman, “The Halakhah in the Writings of Josephus,” note 59.

63 See the discussion and notes in Flatto, Justice Unbound, chapter four.

64 Josephus may have been inclined to draw upon the Temple Judiciary source in his account of legal authority, given the Deuteronomic foundation and structure of Ant. 4. 196–301, but it is notable that he did not also incorporate the other Pentateuchal sources, evidently due to their incompatibility.

65 Josephus notably conflates legal and political authority, as I continue to emphasize in the next paragraphs. See also Flatto, “Theocracy and the Rule of Law,” which explores this phenomenon and its historical context.

66 See 2 Chron 19:1, 34:13 and Neh. 8:11.

67 See Ant. 4.287. See also J.W. 2.570–71, where these tribunals also surface in a historical context, implying their enduring functional role. See also Ant. 11.192.

68 Other verses may have also influenced these paragraphs, including Exod 22:27, 23:6–8, Lev 19:15, Deut 1:17.

69 Ant. 4.186. See also Ant. 4.165, 4.171, and 4.311. See Pearce, Sarah J. K., The Words of Moses: Studies in the Reception of Deuteronomy in the Second Temple Period (Tübingen: Mohr Siebeck, 2013) 311–20CrossRefGoogle Scholar. Note that the High Priest and gerousia are also referenced in Ant. 4.224.

70 See Ant. 4.209–13, 219–23.

71 See Ag. Ap. 2.164–67. For an analysis, see Flatto, “Theocracy and the Rule of Law.”

72 In both Ant. 4 and Ag. Ap. 2 Josephus emphasizes the centrality of the Temple, even as these works are edited well after its destruction. See Seth Schwartz, Josephus and Judean Politics (Columbia Studies in the Classical Tradition; Leiden: Brill, 1990) 44. It seems that for Josephus the Temple remained a central fixture in his political vision and social imaginary (see note 75). It is also plausible that he wishes to emphasize to the Romans the Temple’s ongoing importance for the Jews. See also J.W. 6.241.

73 Ag. Ap. 2.184–89, 193–94.

74 The reference to the high priest and priests is an allusion to Deut 17:9 (compare to Philo’s interpretation of this verse discussed below). Notably, the last line contains a reference to the punishment recorded in Deut 17:12, which is omitted from Ant. 4.218. See also Pearce, The Words of Moses, 320–22.

75 The import of the Temple Judiciary Source in Antiquities revolves primarily around the idea of a steadfast rule by law (administered by leading officials), rather than a hallowed cultic process rooted in a specific site, and in Apion this emphasis is even more pronounced. The core point is God’s rule through sacral laws, where (now only) the priests serve as mediators. At the same time, the ongoing significance of the priesthood for Josephus (himself a priest) is evident throughout his oeuvre. See, for example, McLaren, James S., “Josephus and the Priesthood,” in A Companion to Josephus (ed. Chapman, Honora and Rodgers, Zuleika; Blackwell Companions to the Ancient World; Chichester, UK: Wiley Blackwell, 2016)Google Scholar.

76 See Flatto, Justice Unbound, chapter two. Philo includes this unit in an “appendix” to the Special Laws on the virtue of “justice.” Translations below are based upon F.H. Colson and G.H. Whitaker, Philo, with an English Translation (The Loeb Classical Library; London and New York, Putnam, 1958–62).

77 Philo primarily (and, as I have argued elsewhere, deliberately) uses the Greek word archon in this excursus, based on the Septuagint translation of this passage. At times, he uses the word basileus (e.g., 164, 168). Herein, I use the terms “kingship” and “rulership” loosely and interchangeably.

78 See, for example, Levenson, Jon D., Sinai and Zion: An Entry into the Jewish Bible (New Voices in Biblical Studies; San Francisco: Harper & Row, 1987) 190–93Google Scholar; Greenberg, Moshe, Studies in the Bible and Jewish Thought (1st ed.; JPS Scholar of Distinction; Philadelphia: Jewish Publication Society, 1995) 54Google Scholar.

79 See Martens, John W., One God, One Law: Philo of Alexandria on the Mosaic and Greco-Roman Law (Studies in Philo of Alexandria and Mediterranean Antiquity; Boston: Brill, 2003) 31–66Google Scholar.

80 See Levinson, Bernard, “The Reconceptualization of Kingship in Deuteronomy and the Deuteronomistic History’s Transformation of Torah,” in Vetus Testamentum 51.4 (2001) 511–34CrossRefGoogle Scholar.

81 He relies upon the version of Exod 18, where Jethro is prominent.

82 See Special Laws 4.151–57, where Philo describes the method of selecting the king on the basis of his merit.

83 Special Laws 4.170–73. See also 4.174–75.

84 See ibid. 4.173–75, where Jethro’s advice is described as “excellent advice” and “truly valuable advice.” However, his advice is treated in very different ways elsewhere. See Drunkenness, 36–40 and Names, 103–105. Moreover, as Louis Feldman points out, this episode is absent from the Life of Moses. See Louis Feldman, Studies in Josephus’ Rewritten Bible (Supplements to the Journal for the Study of Judaism; Leiden: Brill, 1998) 41–43.

85 They also assist in governing.

86 In fact, Philo cites Deut 16:19–20 in establishing the king’s legal role in 4.169, which magnifies the initial omission of Deut 17:8–13, since these verses are linked. See Alexander Rofe, Mavo le-Sefer Devarim (Jerusalem: Akademon, 1988) 75 (Hebrew).

87 Spec. Laws 4.160.

88 Spec. Laws 4.190. Likewise, elsewhere (Spec. Laws 3.31) Philo describes the high priest as the supreme judicial authority.

89 This highly original dual scheme only has loose parallels in the Bible (see 2 Chron 19:11) and other legal systems. Prior scholarship glosses over the tension between these passages by dubiously claiming that the king must refer difficult matters to the priests. See, e.g., Daniel-Nataf, Suzanne, Philo of Alexandria: Writings (ed. Daniel-Nataf, Suzanne; 5 vols.; Jerusalem: The Bialik Institute and the Israel Academy of Sciences and Humanities, 2000) 3:136 (Hebrew)Google Scholar; and Pearce, The Words of Moses, 291, 305. As argued, Philo studiously distinguishes between the king and priests. He deliberately inverts the order of Deuteronomy 17, and omits the cross-reference to the priests in Deut 17:18. Moreover, he models the king’s legal authority on the Mosaic judiciary of Exod 18. It is unthinkable that the Philonic king has to defer to the priests.

90 See Septuagint ad loc., which uses the term hyperogkon for “great” and brachea for “small” matters. In verse 26 it uses hyperogkon for “difficult” and elaphron for “small” matters.

91 Special Laws 4.172 [italics added]. Compare to 4.72–78.

92 See Spec. Laws 4.179. Philo’s conception of the jurisdiction of a supreme legal authority over “great” matters shares a loose analogy to modern constitutional doctrines of judicial review and “strict scrutiny,” which emphasize the court’s heightened mandate to protect the vulnerable legal rights of minority groups.

93 A more literal translation of the biblical clause is “If you are baffled by a matter.”

94 In other words, perhaps Philo contrasts the “baffling matter” of Deut 17:8 with the “great” matters referred to in Exod 18:22.

95 For example, according to b. Sanh. 16a these two terms are either interchangeable adjectives for difficult matters or refer to two distinct grounds for the Sanhedrin’s jurisdiction, one for “difficult” matters, the other for “great” matters, understood unlike Philo as matters involving an eminent litigant. See also Mordechai Sabato, A Yemenite Manuscript of Tractate Sanhedrin and its Place in the Text Tradition (Dissertation series; Jerusalem: Yad Izhak Ben-Zvi, 1998) 47–48.

96 According to b. Sanh. 16a, only the Sanhedrin adjudicates supreme legal matters (the only debate is whether its jurisdiction covers one or two kinds of supreme legal matters).

97 To give a modern analogy, think of litigation that is fraught with socio-political consequences, but where the actual legal issue in dispute is relatively straightforward.

98 Jacob N. Epstein argues that the first rabbinic source analyzed below dates back to Temple times, but this is highly questionable. See Epstein, Jacob N., Introduction to Tannaitic Literature (Jerusalem: Magnes Press; Tel Aviv: Devir, 1957) 56–57, 418 (Hebrew)Google Scholar. Similarly, Hanoch Albeck implies that these descriptions contain historical data (although he does not date the material). See Albeck, Hanoch, Šiššah Sidrey Mišnah Massekhet Sanhedrin (Jerusalem: Mosad Bialik, 1953) 163Google Scholar.

99 The second paragraph is its own literary unit, and has a complex relationship to the parallel tannaitic sources referred to in note 122. The translation below is based on the Kauffman manuscript.

100 The scriptural backdrop of this Mishnah is noted by Epstein, Jacob N., Introduction to the Text of the Mishnah (3rd ed.; Tel Aviv: Dvir; Jerusalem: Magnes Press, 2000) 1131 (Hebrew)Google Scholar. The last paragraph refers explicitly to local courts, presumably based on Deut 16:18–20, as well as historic courts. This paragraph also diverges in subtle ways from the previous ones. See note 112 for additional references.

101 The Mishnah leaves open the subject of the “baffling matter” (although m. Sanh. 11:3 refers to an example of a ritual matter) while the same verse outlines a wide range of topics. According to the Mishnah, the “baffling matter” refers to a matter whose resolution is debated by the municipal judges. In contrast, in Josephus and Philo, the “baffling matter” refers to a matter whose resolution is unknown.

102 They also present their respective teachings.

103 This suggestion is made by Rosen-Zvi, Ishay, “The ‘Protocol’ of the Yavneh Court: A New Perspective on Tosefta Sanhedrin Chapter Seven,” Tarbiz 78 (2009) 475 (Hebrew)Google Scholar.

104 See t. Kelim B.Q. 1:13.

105 The lower Temple courts can only resolve the debate among the municipal judges on the basis of religious traditions (shemuot).

106 Baruch Schwartz has convincingly argued that Isa 2:1–4 reworks themes of Deut 17:8–13. See Schwartz, Baruch J., “Torah from Zion: Isaiah’s Temple Vision (Isaiah 2:1–4),” in Sanctity of Time and Space in Tradition and Modernity (ed. Houtman, A., et al.; Jewish and Christian Perspectives; Leiden and Boston: Brill, 1998) 11–26Google Scholar.

107 The plain sense of the Deuteronomy verses may refer to a baffling factual matter that is resolved by an oracular pronouncement in the Temple. See B. Schwartz, “The Visit of Jethro,” 40–48.

108 This source also exemplifies a broader phenomenon of rabbinic appropriation of the Temple. For an analysis of this motif, see Cohn, The Memory of the Temple, 39–56.

109 This needs further study. For now, see Weiss, Avraham, On the Mishnah: A Collection of Studies (Ramat-Gan: Bar-Oryan, 1969) (Hebrew) 133–54, 169–96Google Scholar; Urbach, The Halakhah, 61–62; and Kahane, Menahem, Siphrey Zuṭa’ Deuteronomy: Citations from a New Tannaitic Midrash (Jerusalem: Magnes Press, 2002) 234–36 (Hebrew)Google Scholar.

110 Nevertheless, m. Sanh. 1:5–6 does refer to tribal and municipal courts, which seems unrelated to the numerical differentiation among the courts, and is likely a reflection of the composite materials that make up the mishnayot that open the tractate.

111 See the references in Rosen-Zvi, “The ‘Protocol’ of the Yavneh Court,” 476, n. 160.

112 Avraham Weiss already called attention to the distinct literary dimension of each passage. See Weiss, Avraham, “On the Question of the Nature of the Court of Seventy-One” in Jubilee Volume in Honor of Louis Ginzberg On the Occasion of his Seventieth Birthday (New York: American Academy for Jewish Research, 1946; repr. Tel Aviv, 1969) 181–89 (Hebrew)Google Scholar. See also Hidary, Richard, Dispute for the Sake of Heaven: Legal Pluralism in the Talmud (Providence, RI: Brown Judaic Studies, 2010) 301–307Google Scholar; and Rosen-Zvi, “The ‘Protocol’ of the Yavneh Court,” 28–29.

113 See note 109.

114 In addition to the three Pentateuchal judicial sources, the opening chapter of Mishnah Sanhedrin invokes other exegetical sources such as Num 35:24–25.

115 Given that the opening chapter of Mishnah Sanhedrin is a composite text, it is difficult to describe this as a “choice” like one can for the other uniform texts examined previously.

116 M. Sanh. 1:6. See the parallel source in t. Sanh. 3:9. See also Siphrey Num 92.

117 See the parallel in t. Sanh. 3:9. See the interpretations of Urbach, Kahane and Henshke discussed in Henshke, “The Number of Judges in Ancient Israel,” 31–44.

118 See also Siphrey Deut 144.

119 The particular distribution of the Pentateuchal sources between these two mishnaic passages in theory raises the possibility that they are complementary accounts of the courts, but their respective visions are too incompatible to be read in this manner.

120 See Flatto, Justice Unbound, chapter six (which contrasts “institutional justice”—where justice is administered by a court comprised of evenly-statured sages—with the alternate schemes of royal, priestly and individual justice, and argues that “institutional justice” constitutes an original and dominant trend in rabbinic jurisprudence).

121 Developed over the course of the second century CE when the rabbinic movement began to coalesce, institutional justice was also in part designed to serve an important social role. Seth Schwartz argues that institutionalization offered the rabbis “the strongest possible assertion of their own legitimacy” (The Ancient Jews from Alexander to Muhammad [Cambridge, MA: Cambridge University Press, 2014] 118, n. 18). See also Cohn, The Memory of the Temple, 56.

122 See the different versions of this passage recorded in t. Hag. 2:9, Siphrey Deut 152, y. Sanh. 1:6, b. Sanh. 88b, and Gen. Rab. Parsha 70, which are not easy to harmonize with one another. For analysis, see Albeck, H., Mishnah, vol. 4, 164Google Scholar, nn. 5–6, 458–59; Avraham Weiss, “On the Question of the Nature of the Court of Seventy-One,” 201–209; Lieberman, Tosephta’ Kiphšuṭah Ḥagigah, 1297–98. See also Rosen-Zvi, “The ‘Protocol’ of the Yavneh Court,” 25–28. In terms of the relationship of the Mishnah and the Tosefta, Hidary has argued that m. Sanh. 11:2 is a later, edited abridgement of this Tosefta. Hidary, Dispute for the Sake of Heaven, 301–307. See also Rosen-Zvi, “The ‘Protocol’ of the Yavneh Court,” 28–29. But the matter is actually more complex, as seen in the convergence described above. See also t. Shek. 3:17.

123 t. Sanh. 7:1 [italics added].

124 See also m. Midd. 5:4, which seems to likewise conflate this tradition with m. Sanh. 1:5–6; and compare with Siphrey Num 116.

125 Siphrey Deut 152 [italics added]; translation based on Siphrey on Deuteronomy (ed. Louis Finkelstein; New York: Jewish Theological Seminary of America, 2001) (Hebrew).

126 Midrash Tannaim on Deut 17:8; translation based on Midrasch Tannaim zum Deuteronomium (ed. David Hoffmann; Berlin: H. Itzkowski, 1908) (Hebrew).

127 The “Mosaic court” referred to in Midrash Tannaim may (also) refer to the Elders source.

128 I do not mean to deny altogether the historical value of these accounts, but to reorient the nature of the historical inquiry; that is, to shift from primarily using these sources as positive data to seeing them as expressions of ideologies and values, which perhaps also informed actual praxis and/or contain certain traces of historicity.