Between Royal Absolutism and and Independent Judiciary: The Evolution of Separation of Powers in Biblical, Second Temple, and Rabbinic Texts

Even as Jewish political sovereignty waned during Late Antiquity, Judaism experienced a profound flourishing in the legal sphere. Confronting a changing political landscape, while encountering distinctive Greco-Roman power structures, Jewish thinkers and exegetes responded by developing bold and novel juristic conceptions. While much scholarship has examined the loss of Jewish power, this study shifts the focus to a crucial question which has been largely ignored: how did Jews think about power and authority in the absence of power, and how did this inform the nature of the societies they constructed in the absence of power? My essential answer is that they drew on their rich legal tradition to focus on law and legal authority as a unique political alternative to traditional rule. This thesis offers a wide-ranging exploration of this crucial dimension of the Jewish legalimagination in its formative stages.
In particular, this study examines representations of legal authority in seminal Jewish texts from the Second Temple and rabbinic periods. Given the primacy of law within Judaism, Jewish sages, thinkers, interpreters, transmitters and jurists from this era grappled with the ideal nature of the administration of justice and produced an impressive array of juristic schemes. Nevertheless, certain essential overriding themes pervade this diverse body of material.
Whereas ancient jurisprudence presumes that law emanates from the seat of power–with an absolutist king or emperor commanding authority in all realms, including the legal domain–a distinctive strand within Jewish jurisprudence advances a different paradigm. Although Ancient Near Eastern and much biblical literature project the king as the supreme judge, Deuteronomy 17 (the primary normative text about kingship and legal authority) dramatically revises this approach by establishing independent judicial officials operating beyond the reach of the king. This seminal, if anomalous, text assumes heightened significance in post-biblical literature.
Elaborating on Deuteronomy 17, post-biblical commentators present a variety of models of judicial administration. Philo attempts to harmonize Deuteronomy with the dominant biblical attitude toward kingship by restoring the monarch’s judicial role. Various Qumran texts seek to circumscribe the sovereign, and largely locate justice outside of the royal domain in priestly quorums. Moreover, certain writings build upon the Deuteronomic foundation in striking ways. A leading voice within tannaitic literature extends and institutionalizes the role of the judiciary and seeks to purge the legal edifice from additional influences of power (beyond royal intervention). At the same time, tannaitic writings elevate the distinct political responsibilities of a sovereign. A very different voice in early Jewish jurisprudence, especially manifest in Josephus’s writings, aims to eliminate political authority altogether and reconstitute the ideal polity upon the foundation of the rule of law. Abandoning the regnant notion of imperial law, such writings advance robust visions of law’s empire.
Proclaiming the supremacy of law and widening its scope, post-biblical writers insist that a legal system must operate independently of powerful political rulers. Without a land, sovereign authority, or coercive powers, and with restricted legal jurisdiction, leading Late Antique Jewish writers promote legal constructs which diverge from the surrounding cultures, and in certain remarkable ways prefigure–or even eclipse–ideas that only enter into Western political and legal tradition centuries later. This dissertation demonstrates that Jewish legalism is not an inevitable, or even a reluctant response to disempowerment, but rather a deeply-rooted ideology revolving around the centrality of law and its profound potential to structure a society and a polity.