preliminary thoughts on structures of 'sovereignty' and the deepening gap between judaism...

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2014 23: 215Journal for the Study of the PseudepigraphaArye Edrei and Doron Mendels

between Judaism and Christianity in the First Centuries CEPreliminary Thoughts on Structures of 'Sovereignty' and the Deepening Gap

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Journal for the study of the Pseudepigrapha Vol 23.3 (2014): 215-238 © The Author(s), 2014. Reprints and Permissions: http://www.sagepub.co.uk/JournalsPermissions.nav DOI: 10.1177/0951820714528630 http://JSP.sagepub.com

Preliminary Thoughts on Structures of ‘Sovereignty’ and the Deepening Gap between Judaism and Christianity in the First Centuries CE ARYE EDREI AND DORON MENDELS Arye Edrei: Faculty of Law, Tel Aviv University, Tel Aviv 69978, Israel Doron Mendels: The Department of History, The Hebrew University of Jerusalem, Mount Scopus, Jerusalem 91905, Israel

Abstract It is claimed that one important reason for the parting of the ways between Judaism and Christianity in the rst centuries of the Common Era was the fact that the Christians ‘outsourced’ their legal system to their host country (e.g. Rome). At the same time, the Jews created their own ‘civil and criminal’ law-code and strictly adhered to it, inter alia, by founding their own law-courts. Their legal autonomy led to the idea of political sovereignty on the one hand, yet contributed to their speration from the gentile environment on the other. This development may also be one of the reasons that many of the Rabbis and their constituencies moved eastward to the Parthian Empire, which was—due to its feudal system—quite tolerant towards Jewish legal thought and practice. In contradistinction, Christianity was not bound by its own particularistic legal sovereignty and thus could more easily integrate in the Roman Empire. Its sovereignty was perceived as theological and not political. Keywords: F. Fukuyama, law-codes, legal systems, Christian dogma, political versus religious authority, Eusebius the Church Father, Th. Hobbes, Macchiaveli, Jewish law courts, Parthian Empire, Roman Empire.

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216 Journal for the Study of the Pseudepigrapha 23.3 (2014)

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1. The Question and the Thesis There have been many attempts and notable efforts by historians of the late ancient period—church historians and Judaic scholars alike—to explain the gap that widened progressively between Judaism and Christianity in the rst two centuries of the Common Era.1 In this short article, we wish to put forth our initial thoughts on what we consider to be a catalyst for the widening gap between the two reli-gions. We will explore the rabbinic aspiration to develop a system of civil law and an autonomous community structure in contrast to the fact that no such aspiration existed among Christians in that period. We will contend that this fact had a signi cant influence on the schism between the two religions. We wish to emphasize already here that this article is not about the legal status of either Jews or Christians, but on the stance of both religions to the notion of sovereignty. It is a well-known fact that ancient Christianity greatly restricted the obligation to observe biblical religious commandments, and bibli-cal law in general. This fact has been discussed at length within the context of our deliberation—the parting of the ways. However, we wish to view this phenomenon in a broader light, and to emphasize a number of points. Beyond the commitment to biblical commandments and laws in general, we will pay particular attention in this article to civil law. This area was developed by the Rabbis as part of their efforts to develop the law and to emphasize its status and its importance. In contrast, the Christians abandoned this area even more so than other parts of the biblical normative system. The commandments and laws that the Rabbis emphasized served as a vehicle for separation and social seclusion, yet similar laws were not prevalent in Christianity. While the rabbinic tradition sought to develop an isolated community with its own legal system, Christianity tended to rely on the legal sys-tem of the country within which the Church functioned. Interestingly, Judaism was the only religion in the ancient world that developed a comprehensive system of civil law that overtly addressed secular and communal matters. Christianity, for its own reasons, did not develop a

1. For a good discussion, see A. Klostergaard-Petersen, ‘At the End of the Road: Reflections on a Popular Scholarly Metaphor’, in J. Adna (ed.), The Formation of the Early Church (Tübingen: Mohr Siebeck, 2005), pp. 45-72 (with some of the older literature).



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‘civil’ law during its rst centuries, but rather relied on Roman law. For this reason, Christianity was able to integrate more easily into the various elements of the Roman public sectors, such as the market, the army, and the public administration, and to a certain degree, gradually assimilated into it. Not only did the Rabbis not forego the law and its signi cance, they strengthened its importance as a component of reli-gious observance. As a result, civil law attained an important position of status in Jewish religious thought, and the Rabbis broadly devel-oped what is referred to today as ‘civil (and criminal) law’. Emphasis on the law and its separation mechanisms was a cornerstone in the developing concept of communal sovereignty in Jewish thought. At the same time, the Christians did not emphasize the law and did not develop a legal system of their own, but relied on the sovereignty of the host state.2 The essence of our argument lies in the realm of political science. We hold that it is logical to assume that the gap that existed between the Jewish and Christian approaches to legal sovereignty signi cantly influenced the schism between them. The sovereign approach of the Rabbis was inherent to Jewish religion. In effect, its roots can be found prominently in the Bible, which connects the religious commu-nity to a particular geographical location, and presents both legal and political systems as integral parts of the religious commandments. The law of Moses, and subsequently the prophetic teachings, speak about the establishment of an autonomous and sovereign society in the Land of Israel, and create a very clear bond between the religious ritual and the legal system and its ‘civil’ law, as well as a clear bond between the Temple as the exclusive location for both the religious ritual and the supreme legal institutions. The autonomous society described by the Bible is not only a society free of idolatry, but also a society based upon a unique political government that has a religious standing. The right to the land, that is, the right of the society to exist, is conditioned in prophetic teachings not only on being a society of faith that accepts

2. In his book The Prince, Machiavelli already noted that Christian values (i.e. ethical and political principles) are incompatible with the ‘modern’ state, and that Pagan values are much more suitable for such a state. In his monumental work on Machiavelli, Isaiah Berlin explains this stance in a brilliant manner: see ‘The Origi-nality of Machiavelli’, in his The Proper Study of Mankind: An Anthology of Essays (London: Pimlico, 1998), pp. 269-325.




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God’s rule and rejects idolatry, but also on being a just society with a just government that functions according to Mosaic law.3 It is no wonder that after the Reformation in Europe, we nd a fasci-nating movement among political scientists, particularly in Holland and England, who turned to rabbinic literature—the Talmud and the Midrash—in order to understand the biblical political model, and its relevance to their time. In their opinion, it is impossible to understand the biblical political model from Christian sources because they were disassociated from it and did not deal at all with the biblical political order. In contrast, claimed these Hebraists, the Talmudic Jews engaged broadly in interpretation of biblical political order, and they therefore cannot be understood without studying the related Talmudic exegesis.4 Indeed, the engagement of Talmudic literature with the laws of the biblical monarchy and state reflects an approach that enhances the importance of independent government and separation, and suggests that such a community is a necessary prerequisite for the existence of a religious community. 2. The Jewish Position Rabbinic Judaism sought to develop a ‘state within a state’, or more precisely ‘a community within a state’. As we will see further on at greater length, Rabbinic Judaism placed emphasis on its own legal culture, as distinct from the law of the host state. This Rabbinic politi-cal stance, when contrasted to Christian political theology, explains the difference between the Christian aspiration to spread out and the Jewish aspiration for seclusion. Interestingly, the manner in which the Rabbis expanded the scope of certain rituals and religious laws also reflects their eagerness to establish a separate community of believers. Augustine pointed out the uniqueness of this phenomenon, and the large gap between Christian-ity and Judaism in this context, already in the fth century:

3. Perhaps for that reason Machiavelli mentioned Moses in the same breath as the Pagans Cyrus, Romulus, and Theseus (Berlin, The Proper Study of Mankind, Chapter 6). 4. This fascinating phenomenon is discussed in the recent work of Eric Nelson, The Hebrew Republic: Jewish Sources and the Transformation of European Political Thought (Cambridge, MA: Harvard University Press, 2010).




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This is really a wonder, that the Jewish tribe did not forfeit its law, neither under the rule of idolatrous monarchs nor under the hegemony of the Egyptians. In this way, they remained separate from other tribes and people. Every king or caesar who found them in his land was unable to effect a reality in which the Jews were not separated from the other people by means of observance of their laws.5

It is not completely clear to what Augustine was referring when dis-cussing Jewish law—whether he was referring only to religious and ritual law, or, as it seems to us, also, or perhaps primarily, to the civil legal code. Indeed, there is no question that religious laws, such as the laws of kashrut (dietary laws) and the Sabbath, promoted the social separation and communal seclusion of the Jews, for by means of the observance of these commandments, ‘the Jews are separated from the family of nations’.6 This topic has been covered already in scholarly literature. The fact that we wish to emphasize in this study is that one of the six orders of the Mishnah, the order of Nezikin (Damages), deals completely with civil law, including laws of acquisition, damages,

5. Contra Faustum, Migne, PL vol. 42(8), p. 261. 6. Some rabbinic laws in these two areas were designed specifically to create social separation. For example, the Rabbis prohibited food cooked by gentiles, the bread of gentiles, the milk of gentiles, oil of gentiles, and the cheese of gentiles—all for the purpose of creating distance and seclusion. See, for example, the m. Avod. Zarah 2.6 and the associated discussions in the Babylonian Talmud and the Jerusalem Talmud. This topic has been discussed at length in the scholarly literature, and this is not the place to expand upon it. Even the prohibition of drinking wine handled by gentiles, which is generally justified by the concern that the wine was used for idola-trous libations, might also logically be explained by the reasoning of ‘because of marriage’ (i.e. in order to prevent marriages with gentiles), or in simple terms, to create social distance. Also in the context of Sabbath observance, the Rabbis created innovative concepts and halakhic rules related to separation and seclusion. The most prominent example is the rabbinic enactment which forbids transporting items on the Sabbath between different private domains, between houses within a courtyard or between courtyards in an alley. The Rabbis enacted the ‘eruv chatzerot’, which per-mits carrying between the houses if the inhabitants agreed to become partners. This permit is not valid, however, when one of the residents is a gentile. The Talmud explains the invalidation of the permit in this case by the desire of the Rabbis to encourage Jews not to live in the vicinity of non-Jews (see m. Eruv. 6.1-2 and b. Eruv. 62.2). Thus, we find many Rabbinic enactments and decrees that were designed to shape the community and isolate it from the gentile environment, a goal that was accomplished through acceptance of the commandments rather than through theo-logical ideas.




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monetary and property issues, documents, jurisprudence, and punish-ment. Of course, these topics arise frequently in other parts of the Mishnah, as well as other rabbinic sources. We are not going to con-duct a historical examination of the degree to which this system actually functioned and exerted influence. Suffice it to say that in the two versions of the Talmud, there is much documentation of instances in which Jewish courts issued rulings relating to litigation between Jews.7 The more important point from our perspective is the ideal that the Rabbis were trying to promote—the ideal of a separate legal system. Even more interesting is the fact that the Rabbis continued to deal with the laws of the monarchy and laws of state, even though their deliberations were completely theoretical given the fact that they had no government to conduct. Yet, the very fact that they dealt with such issues demonstrates an aspiration and thought process that was an integral part of their religio-political worldview. It should be added that the Rabbis rejected a missionary approach and that they had no aspiration to proselytize others. They fashioned the Torah as a national Torah without universalistic goals. They did, however, establish mini-mum requirements for humankind called the ‘Seven Noachide Laws’, which included the prohibitions of murder, adultery, etc.8 The most important and interesting point in this regard, in our opinion, is the Noachide law called ‘dinim’, which places an obligation upon every human society to establish a fair and egalitarian system of justice. In essence, the Rabbis argued that every society needs a system of justice and that they therefore should create their own legal system, but they did not presume that the Jewish legal system should be adopted by other nations. In reality, the Rabbis actually viewed civil law as an integral part of their own religious and national identity. Thus, even though they argued that every nation should establish a fair judicial system, they were not prepared to share their own system with them. The stubborn insistence that one is obligated to be subordinate to the

7. See, for example, H. Ben Menachem, Judicial Deviation in Talmudic Law (New York: Harwood Academic Publishers, 1991); Ma’asei beit din ba-Talmud ha-Bavli: zurot sifrutiot ve-hashlakhot historiyot, Proceedings of the American Academy for Jewish Research 49 (1982), pp. 23-40. 8. b. Sanh. 56a. See Bernard S. Jackson, ‘The Jewish View of Natural Law’, JJS 52 (2001), pp. 136-45; Suzanne Stone, ‘Sinaitic and Noahide Law: Legal Plural-ism in Jewish law’, Cardozo Law Review 12.3-4 (1991), pp. 1157-214.




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Jewish legal system was not based on the notion that it was more just or more suitable, but because it was theirs, and made them unique. The Rabbis engaged in the study of law and jurisprudence not only as an instrument for maintaining the society, but as part of the Divine law which one is to study and learn. Indeed, approximately one sixth of the Mishnah and a quarter of the Babylonian Talmud deals with societal order, which today is called civil and criminal law. Hence, the Rabbis engaged in the study and development of private and public Law with the same, or perhaps even greater, intensity and motivation that they brought to the study of religious and ritual law. The separa-tion of the legal system that the Rabbis promoted related both to the law itself and to the judicial system. In their worldview, it is forbidden for a Jew to litigate with another Jew in a non-Jewish court, and conversely, there is no place for a non-Jew in the Jewish courts. The halakhah that the Rabbis sought to establish in the context of the dispersion and exile was the system that most approximated the biblical model of Jerusalem as they understood it—that is, a reality in which the place of ritual service and the place of civil law are intertwined and interdependent. The institutions of justice are thus described in Deut. 17.8-11:

If there arise a matter too hard for you in judgment, between blood and blood (capital), between judgment and judgment (civil), and between afflic-tion and affliction (skin afflictions), even matters of controversy within your gates; then shall you rise up and go up to the place which the Lord your God shall choose. And you shall come unto the priests the Levites, and unto the judge that shall be in those days; and you shall inquire; and they shall declare to you the sentence of judgment…

In the application to their world, the ritual commandments and the civil and criminal laws are integrated—they are studied and observed in the same manner and have equal value.9 The judge who rules in a civil controversy between two people is also the ruling authority in other halakhic matters. Turning to a non-Jewish court to solve matters 9. This legal worldview also explains the clash between the Jews of the Land of Israel and the Seleucids. The book of 1 Maccabees, our main source for the Macca-bean revolt, makes it clear that the clash occurred because of the total abolishment of the Jewish legal system by Antiochus IV (1 Macc. 1.41-42): ‘Then the king ordered all in his kingdom to become one people, and that everyone should forsake his own laws’ (cf. in general B. Renaud, ‘Le Loi et les Lois dans les Livres des Maccabees’, RB 68 [1961], pp. 39-67).




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of litigation would thus be considered a breach of the religion. It is no wonder that the Rabbis extended their authority to the continuation of the aforementioned verse in Deuteronomy: ‘You shall not turn aside from the sentence which they shall declare to you to the right, nor to the left’. In the Mekhilta, at the beginning of Parshat Mishpatim, the Midrash states as follows:

Rabbi Elazar ben Azariah states: ‘If a gentile rules according to the laws of Israel, is his ruling valid? Therefore the Torah teaches “Ve-Eleh Ha-Mishpatim” (“and these are the laws”)—You judge according to their laws, but they cannot judge according to yours. Thus they said: “A writ of divorce given under compulsion exercised by a Jewish court is valid, by a non-Jewish court it is invalid. However, if a non-Jewish court flogs him and says: Do what the Israelite authorities command you—it is valid”.’10

The content of the law is not the determining factor, but rather the jurisdiction. Thus, a ruling issued by a non-Jewish court that is in accordance with Jewish law is not valid. It is perhaps even more signi-ficant that a ruling issued by a Jewish court based on the non-Jewish law is valid. The important requirement is that ‘you judge’, the demand for the separation, or more precisely isolation, of the judicial system. The example provided in the continuation of the Mishnah, sharpens the point even more. It stipulates that a writ of divorce issued under compulsion, which is valid when initiated by a Jewish court, is invalid when demanded by a non-Jewish court. However, when the non-Jewish court demands a writ of divorce as the implementation of a ruling issued by a Jewish court, it is valid. The Babylonian Talmud cites a Beraita in the name of Rabbi Tarfon that expands upon this concept:

R. Tarfon used to say: In any place where you find heathen law courts, even though their law is the same as the Israelite law, you must not resort to them since it says: ‘These are the judgments which you shall set before them’.11

The prohibition of turning to a non-Jewish court was discussed at length by the Rabbis and became a prominent element of their world, to the point that a person who utilizes a non-Jewish court came to be considered as one who desecrates God’s name:

10. Mekhilta of R. Yishmael, Mishpatim (ed. Horowitz-Rabin), p. 246. 11. b. Git. 88b, and in parallel sources in the name of other tannaim.




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‘Before them’, and not before gentiles: How do we know that Jewish liti-gants who have a controversy between them cannot appear before gentiles, even if they know that they judge [on this issue] in the same way as the Jewish law? Because the Torah says: ‘before them’—and not before non-Jews. For anyone who leaves Jewish judges and goes before non-Jews, first denies God, and afterwards denies the Torah, as it says (Deutero-nomy 32:31): ‘For not like our Rock is their rock—yet our enemies judge us’.12

This position is not by coincidence, nor is it the result of later histori-cal circumstances. The insistence on the importance of the courts of the Jewish community and the prohibition to approach other judicial systems was preserved as a central principle throughout the Middle Ages. Thus, for example, Maimonides summed the issue up as follows:

One who litigates before non-Jewish judges, even though they rule in accordance with Jewish law, is an evildoer; and it is as if he has blas-phemed and rebelled against the Torah of Moses our master.13

Clearly the issue at stake is the court, and not the substance of the law. In another place, the Mishnah discusses the evaluation of damages, and establishes that it can only be done by ‘free men who are Jewish (lit. “sons of the covenant”). The Talmud explains that this ‘excludes gentiles’.14 We can learn about the essence of the approach that invalidates the testimony of gentiles in a Jewish court from the following Mishnah:

All documents that are accepted in non-Jewish courts, even if they were signed by gentiles, are valid except for writs of divorce and of emancipa-tion. Rabbi Simon says: These are also valid. They were only pronounced [to be invalid] when drawn up by unauthorized persons. (m. Git. 1.5)

The testimony of a gentile in a non-Jewish court is considered trust-worthy and valid. In other words, it is clear that the testimony of a non-Jew is invalid only in a Jewish court, but not in a non-Jewish

12. Tanhuma, Parshat Mishpatim, Section 3. 13. Maimonides, Mishneh Torah, Hilkhot Sanhedrin 27.7. See also: Rashi and Ramban on Exod. 21.1. There are many medieval sources relating to this issue. See Menahem Alon, Ha-Mishpat Ha-Ivri (Jerusalem: Magnes Press, 1998), pp. 11ff. 14. m. B. Kam. 1.3; b. B. Kam. 15a. See also b. Yev. 47a: ‘Rabbi Nahman bar Yitshak said: This is what you say to him: “According to your own words you are a gentile, and there is no testimony by gentiles” ’.




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court. The invalidation of the testimony of a non-Jew derives not from a lack of trust, but from the desire for isolation and separation—the exclusion of non-Jews from the Jewish courts.15 3. The Christian Position Paul already alluded to the Christian stance on this issue in his Epistle to the Romans:

15. The Jerusalem Talmud (y. Git. 1.4) states the following in this context: ‘A document that was produced in Bet Shean and the witnesses were non-Jews… Resh Lakish says that it is valid… What is the reasoning of Resh Lakish?… Rabbi Yudan says, so as to not close the door before a person who tomorrow wants to borrow money and can’t find [a lender].’ Bet Shean was a city in which most of the residents were gentiles, and according to the explanation of the Jerusalem Talmud, the position of Resh Lakish is that a document from Bet Shean with non-Jewish witnesses should be validate because disqualification of the witnesses in a city like Bet Shean would cause the cessation of loans. However, it is clear from the statement that this is an exception, and that the ideal would be if the community could sustain itself in accordance with the Jewish witnesses and courts of law. Indeed, the Babylonian Talmud explains this law using Shmuel’s dictum that ‘the law of the land is the law’. The Tosafot (Git. 9b, ‘Even though’), explained that the testimony of a non-Jew is invalid because ‘he is not your brother in the fulfillment of the commandments’. In other words, it is clear that in the discussion of this issue among the Rishonim (early medieval scholars), the issue is not one of credibility, but of being part of the community. The judicial system is separated for the exclusive use of ‘brothers’. Rabbi Mordechai Ben-Hillel (Germany, thirteenth century) in Gittin (1:324) cites the opinion of Rabbeinu Yakir, who held that gentiles whom we know to be telling the truth are not disqualified as witnesses—although he rejects this opinion and states that the testimony of a non-Jew is valid in the general system because they are telling the truth, but in our courts they are disqualified because they are not ‘brothers in the fulfillment of the commandments’. Thus, the judicial system is exclusive and is designed to serve only the Jewish community. Maimonides wrote in the Mishneh Torah, Hilkhot Edut (The Laws of Testimony) 9.4 as follows: ‘Slaves are disqualified as witnesses from the Torah, for it says regarding witnesses: “You shall do to them what they tried to do to their brother”. From this we learn that his brother is like him—just as his brother is Jewish (the son of the covenant), so too the witness must be Jewish. How much more so with regard to gentiles—if slaves who observe some commandments are invalid, should not gentiles even more so be invalid [because they observe no commandments].’ Thus, Maimonides too understood that the disqualification derived from a desire for separation (that he is not your brother in the fulfillment of the commandments), and not from a lack of credibility.




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Let every person be subject to the governing authorities. For there is no authority except by God’s appointment, and the authorities that exist have been instituted by God. So the person who resists such authority resists the ordinance of God, and those who resist will incur judgment (for rulers cause no fear for good conduct but for bad). Do you desire not to fear authority? Do good and you will receive its commendation, for it is God’s servant for your good. But if you do wrong, be in fear, for it does not bear the sword in vain. It is God’s servant to administer retribution on the wrongdoer. Therefore it is necessary to be in subjection, not only because of the wrath of the authorities but also because of your conscience. For this reason you also pay taxes, for the authorities are God’s servants devoted to governing. Pay everyone what is owed: taxes to whom taxes are due, revenue to whom revenue is due, respect to whom respect is due, honor to whom honor is due. (Rom. 13.1-7)16

Paul continues here the idea that already appeared in the sayings of Jesus: ‘If so, grant unto Caesar what is Caesar’s, and unto God what is God’s’ (Mt. 22.21). He claims that the only law that is valid for Christians is the law of the sovereign state, and that the Church has no presumption of having a separate judicial system. Rather, it views the law of the sovereign as divinely ordained. In the continuation of his words, Paul argues that the Church itself must suffice with the uni-versal ethic reflected in the Ten Commandments. As such, the civil law of the Old Testament no longer has force, and there is certainly no need to develop a new Christian civil law. Thus, for example, and only for the purpose of demonstration, the biblical ‘law of the mon-archy’ that describes the desirable political organization, the laws of sabbatical and jubilee years that deal with the redistribution of property throughout the generations, and the laws of slaves have no force vis-à-vis the Christians, and do not even serve as a vision for a proper state in Christian thought.17 In all of these areas, Christian 16. See also Tit. 3.1: ‘Remind them to be subject to rulers and authorities, to be obedient, to be ready for every good work’. So too in 1 Pet. 2.13-17: ‘Be subject to every human institution for the Lord’s sake, whether to a king as supreme or to governors as those he commissions to punish wrongdoers and praise those who do good. For God wants you to silence the ignorance of foolish people by doing good. Live as free people, not using your freedom as a pretext for evil, but as God’s slaves. Honor all people, love the family of believers, fear God, honor the king.’ 17. See Nelson, The Hebrew Republic. Indeed, in sixteenth-century political thought and the deliberations on the ideal structure of the state, a number of Christian thinkers raised the argument that it was necessary to return to rabbinic sources and Talmudic literature in order to understand the divine biblical vision of the proper




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thought gives great latitude to the state. In the Rabbinic tradition, by contrast, the biblical civil law went through a very significant process of exegesis and development. Even though there was no Jewish state at the time, Jewish tradition never stopped promoting the idea of the importance of a Jewish state based on the divine biblical law. At the same time, Christianity continued to promote and develop ethical con-cepts that might help in the crystallization of the community, but would not contribute in any way to the creation of a state, or anything similar.18 Our first example is the Church Father Eusebius of Caesarea (around 300 CE). Here we encounter a new explanation of history that interferes with the traditional order. According to Eusebius, such Old Testament figures as Enoch, Noah, Abraham, Isaac and Jacob were already ‘Christians in fact, if not by name’. He states in H.E. 1.4.6:

If the line be traced back from Abraham to the first man, anyone who should describe those who have obtained a good testimony for righteous-ness, as Christians in fact, if not in name, would not shoot wide of the truth. For the name signifies that through the knowledge of Christ and his teaching the Christian man excels in sobriety and righteousness, in control of life and courageous virtue, and in the confession that God over all is but one; and for zeal in all this they were not inferior to us.

state, since Christianity did not deal at all with this subject. This argument, which undoubtedly derived from the Reformation and the Protestant criticism of the Church, claimed that the Church abandoned the divine word in a variety of places relating to the vision for a proper state. Thus, Christians who wish to explore this vision have no choice but to study rabbinic literature that dealt with these laws continuously. This is the result of the fact that the Church abandoned this area consciously as part of its theology, in contrast to rabbinic thought. 18. Berlin, ‘The Originality of Machiavelli’, p. 289, in a clear manner states that Machiavelli differentiates ‘between two incompatible ideals of life, and therefore two moralities. One is the morality of the pagan world: its values are courage, vigour, fortitude in adversity, public achievement, order, discipline, happiness, strength, justice, above all assertion of one’s proper claims and the knowledge and power needed to secure their satisfaction… Against this moral universe…stands in the first and foremost place Christian morality. The ideals of Christianity are charity, mercy, sacrifice, love of God, forgiveness of enemies, contempt for the goods of this world, faith in the hereafter… Machiavelli lays it down that out of men who believe in such ideals, and practice them, no satisfactory human community, in his Roman sense, can in principle be constructed.’




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The divine logos through various theophanies revealed his teaching to the first ancestors of the Christians—that is, the Jews, according to his view—in H.E. 1.2.6-16 (and elsewhere). Then, according to Eusebius, came Moses. The Jews multiplied while in Egypt and were influenced by the wayward behavior of the Egyptians and God sent:

Moses as a leader and lawgiver, thus verifying the promises given by the oracles of their progenitors… He promulgates a law that was suited to the moral condition of those who heard it. For they were unable through moral weakness to emulate the virtue of their fathers, inasmuch as they were enslaved by passion and sick in soul; so He gave them the polity that corresponded to their condition, ordaining some things openly and clearly, and implying others enigmatically, by suggesting symbols and shadows, but not the naked truth, for them to keep and observe. (P.E. 7.8.312d)

This actually means that the Mosaic Law was an interim system until the appearance of Jesus, who discarded it. Eusebius says in D.E. 1.5.1:

I have now proved that the old covenant and the law given by Moses was only applicable to the Jewish race, and only to such of them as lived in their own land. It did not apply to other nations of the world nor to the Jews inhabiting foreign soil.19

Eusebius says this even more clearly in 1.6.16-18:

The pre-Mosaic saints…waged their renowned contests for good, and were reckoned friends of God, and prophets. What need had they of the com-mandments of Moses, which were given to weak and sinful men? From all this it is abundantly proved that the word of God announced to all nations the ancient form of their ancestor’s religion, as the new covenant does not differ from the form of holiness, which was very ancient even in the time of Moses, so that it is at the same time both old and new. It is, as I have shown, very, very old; and, on the other hand, it is new through having been as it were hidden away from men through a long period between, and now come to life again by the Savior’s teaching. And it was in this intermediate period, while the ideal of the new covenant was hidden from men, and as it were asleep, that the Law of Moses was interposed in the interval…it was like a doctor to heal the whole Jewish race, worn away by the terrible disease of Egypt. As such it offered a lower and less perfect

19. The Midrash in Sifre Deuteronomy 43.17 (ed. Finkelshtein, p. 102), which states that the Jews have to observe the commandments outside of Israel in order not to forget them and preserve their knowledge of them for the time they would come back, may reflect an echo of the polemic on the validity of Jewish law outside the Land of Israel.




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way of life to the children of Abraham, who were too weak to follow in the steps of their forefathers… Moses tore them from their godless polyt-heism, he led them back to God, the Creator of all things; he drew them up as it were from the abyss of evil…therefore he forbade them to murder, to commit adultery… He rescued them from their wild and savage life, and gave them a polity based on better reason and good law as the times went… He enacted that they should conduct by certain mystic symbols the ritual that he ordained, which the Holy Spirit taught him in a wonderful way was only to be temporary; he drew a circle round one place and forbade them to celebrate his ordinances anywhere, except in one place alone, namely at the Temple in Jerusalem, and never outside it… And they have come to this impasse, although Moses himself foresaw by the Holy Spirit, that, when the new covenant was revived by Christ and preached to all nations, his own legislation would become superfluous, he rightly confined its influence to one place, so that if they were ever deprived of it, and shut out of their national freedom, it might not be possible for them to carry out the ordinances of his Law in a foreign country, and as of necessity they would have to receive the new covenant announced by Christ. Moses had foretold this very thing, and in due course Christ sojourned in this life, and the teaching of the new covenant was borne to all nations, and immediately the Romans themselves besieged Jerusalem, and destroyed it and the Temple there. At once the whole of the Mosaic law was abolished, with all that remained of the old covenant and its curse [mentioned before] passed over to those who became lawbreakers, because they obeyed Moses’ laws, when its time had gone by, and still clung ardently to it, for at that very moment the perfect teaching of the new Law was introduced in its place.

Obviously, most of this is not mentioned in the Old Testament. His view is important for our case here since early on the Christians said clearly and bluntly that they do not have and do not need a civil code of their own, whereas the Jews needed one. The argument of Eusebius establishes the assumption that Jewish law has no importance—that it was given by Moses to those who left Egypt because of their low moral standing at that time, but that is no longer needed. The biblical law that was given through Moses was in force only for the Jews in the Land of Israel. With the appearance of Jesus, Eusebius claims, Jewish law is no longer relevant because Christianity exists without an associated law, but rather through faith and ethics. In this way, Eusebius provides a theological anchor for the already existing Christianity vis-à-vis its lack of a legal system for its commu-nity. It is important to keep in mind that the nullification of the law came hand-in-hand with the nullification of the idea of the divine




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selection of the Jewish people. The lack of an approach of selection and the lack of binding commandments enabled Christianity to undergo a process of integration into Roman society and to ‘conquer’ it gradually. The opposite is true of the Jewish people. It was parti-cularly the idea of divine selection and the commandments that cloaked the aspiration for separation. The Christian approach created a clear process by which everything related to law and communal organization was ‘outsourced’ to the empire. This theology and the communal organization that flows from it contributed to the adoption of Christianity by the Roman Empire at the time of Constantine the Great. Christianity did not deal at all with the development of law, and did not create an approach of particularistic sovereignty. Rather, it relied on the universal state within which it existed. In other words, since Christianity negated a legal sovereign approach in the first few centuries of its existence, it was in need of a political context for its very existence. Even in the ancient period, a state could not exist on dogma alone, and the Christians were therefore unable to create an autonomous society in the absence of a political context. The Roman Empire was an ideal political context for this purpose because it was a universalistic sovereign entity that could integrate a religion that had no legal framework of its own to conflict with the Roman legal sys-tem. Thus, the aspects of Christianity that bothered the Romans at times were questions of faith, not of law. In any case, the empire in the final analysis also facilitated the spread of Christianity. The irony of history in the first few centuries of the Common Era was that even though the Christians wanted to integrate into the Roman legal and political systems, the Romans perceived them as a threat to their sys-tem during certain periods, fearing a Christian conspiracy to dominate the Roman Empire. It is therefore easy to understand that in the first few centuries, the Christians were the targets of Roman persecution much more than were the Jews.20

20. On the persecution of the Christians, see the still-useful book of W.H.C. Frend, Martyrdom and Persecution in the Early Church: A Study of a Conflict from the Maccabees to Donatus (Oxford: Blackwell, 1965), and for the later empire see P. Brown, ‘Christianization and Religious Conflict’, in Cambridge Ancient History, (Cambridge: Cambridge University Press, 1998), XIII, pp. 632-64, and D. Mendels, The Media Revolution of Early Christianity: An Essay on Eusebius’ Ecclesiastical History (Grand Rapids: Eerdmans, 1999), pp. 51-110.




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Thomas Hobbes describes the lack of a civil law in Christianity and its reliance on its host government very well in his discussion of the ‘Christian State’ in the third section of Leviathan. Based on an analysis of classical texts from the early period of Christianity, Hobbes claims that the Church does not have the sovereignty to enact laws in any area, and that authority for such legislation is granted solely to the sovereign power without regard to whether that entity is Christian or not. Even if the host sovereign is Christian, its authority to enact legislation is a product of its sovereignty, and not its adher-ence to Christianity. Hobbes also argues that while classical Christian political theory transferred absolute authority for legislation to the host sovereign, it preserved a form of partial sovereignty for the Chris-tian community which was reflected in the bureaucratic structure that characterized the ancient Christian communities. Nevertheless, it could not enact legislation independently:

Seeing then our Saviour hath denyed his Kingdome to be in this world, seeing he hath said, he came not to judge, but to save the world, he hath not subjected us to other Laws than those of the Common-wealth; that is, the Jews to the Law of Moses, (which he saith (Mat. 5) he came not to destroy, but to fulfill,) and other Nations to the Laws of their severall Soveraigns, and all men to the Laws of Nature; the observing whereof, both he himselfe, and his Apostles have in their teaching recommended to us, as a necessary condition of being admitted by him in the last day into his eternall King-dome, wherein shall be Protection, and Life everlasting. Seeing then our Saviour, and his Apostles, left not new Laws to oblige us in this world, but new Doctrine to prepare us for the next; the Books of the New Testament, which containe that Doctrine, untill obedience to them was commanded, by them that God hath given power to on earth to be Legislators, were not obligatory Canons, that is, Laws, but onely good, and safe advice, for the direction of sinners in the way to salvation, which every man might take, and refuse at his owne perill, without injustice. (ch. 42, 285)

In his comments on ancient Christianity, Hobbes states:

For first, the Apostles power was no other than that of our Saviour, to invite men to embrace the Kingdome of God; which they themselves acknow-ledged for a Kingdome (not present, but) to come; and they that have no Kingdome, can make no Laws. And secondly, if their Acts of Councell, were Laws, they could not without sin be disobeyed. But we read not any where, that they who received not the Doctrine of Christ, did therein sin; but that they died in their sins; that is, that their sins against the Laws to which they owed obedience, were not pardoned. And those Laws were the Laws of Nature, and the Civill Laws of the State, whereto every Christian man had by pact submitted himself. (ch. 42, 286)




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Here too, he returns to his tripartite distinction between the law of the sovereign (not Christian), natural law, and Church dogma. Hobbes sees nothing essentially wrong with the absence of legislative powers for the Church in any matters that fall outside of dogma. On the contrary, he sees it as an ideal theological concept, based on the idea that the obligation to obey the law of the state is because the sovereign functions within the context of divine will. In the continuation of his comments, Hobbes raises the inevitable question of why the Church Council issues rulings if it has no authority to legislate. In his response, Hobbes distinguishes between ‘teaching’ and binding legis-lation, as follows:

The Apostles, and Elders of that Councell, were obliged even by their entrance into it, to teach the Doctrine therein concluded, and decreed to be taught, so far forth, as no precedent Law, to which they were obliged to yeeld obedience, was to the contrary; but not that all other Christians should be obliged to observe, what they taught. For though they might deliberate what each of them should teach; yet they could not deliberate what others should do, unless their Assembly had had a Legislative Power; which none could have but Civill Soveraigns. For though God be the Soveraign of all the world, we are not bound to take for his Law, whatsoever is propounded by every man in his name; nor any thing contrary to the Civill Law, which God hath expressely commanded us to obey. Seeing then the Acts of Councell of the Apostles, were then no Laws, but Councells; much lesse are Laws the Acts of any other Doctors, or Councells since, if assembled without the Authority of the Civill Soveraign. And consequently, the Books of the New Testament, though most perfect Rules of Christian Doctrine, could not be made Laws by any other authority then that of Kings, or Soveraign Assemblies. (ch. 42, 286-87)

In other words, even if the Church issues rules that are not in the name of the sovereign host, the rules are not binding even though they are issued in the name of God (‘we are not bound to take for his Law, whatsoever is propounded by every man in his name’). In the continuation, Hobbes discusses the role of the Bishop:

Bishop, a word formed in our language, out of the Greek Episcopus, signifieth an overseer, or Superintendent of any businesse, and particularly a Pastor or Shepherd; and thence by metaphor was taken, not only amongst the Jews that were originally Shepherds, but also amongst the Heathen, to signifie the Office of a King, or any other Ruler, or Guide of People, whether he ruled by Laws, or Doctrine. And so the Apostles were the first Christian Bishops, instituted by Christ himselfe: in which sense the Apostleship of Judas is called (Acts 1. 20.) his Bishoprick. And afterwards, when there were constituted Elders in the Christian Churches, with charge




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to guide Christs flock by their doctrine, and advice; these Elders were also called Bishops. Timothy was an Elder (which word Elder, in the New Testament is a name of Office, as well as of Age;) yet he was also a Bishop. And Bishops were then content with the Title of Elders. Nay S. John himselfe, the Apostle beloved of our Lord, beginneth his Second Epistle with these words, ‘The Elder to the Elect Lady’. By which it is evident, that Bishop, Pastor, Elder, Doctor, that is to say, Teacher, were but so many divers names of the same Office in the time of the Apostles. For there was then no government by Coercion, but only by Doctrine, and Perswading. The Kingdome of God was yet to come, in a new world; so that there could be no authority to compell in any Church, till the Common-wealth had embraced the Christian Faith; and consequently no diversity of Authority, though there were diversity of Employments. (ch. 42, 288-89)

Further on, Hobbes raises the question as to whether the Church hierarchy21 that was created in the Church communities in the first centuries of the Common Era attests to certain aspects of Church sovereignty. His response is twofold. First, the Church clerics do not come as a substitute for the sovereign, but are rather subordinate to it. Second, even the internal structure of subordination within the Church is organized by the secular law of the sovereign:

But here may some ask, whether the Pastor were then bound to live upon voluntary contribution, as upon almes, ‘For who (saith S. Paul 1 Cor. 7. 9) goeth to war at his own charges? or who feedeth a flock, and eatheth not of the milke of the flock?’ And again, (1 Cor. 9. 13.) ‘Doe ye not know that they which minister about holy things, live of the things of the Temple; and they which wait at the Altar, partake with the Altar’; that is to say, have part of that which is offered at the Altar for their maintenance? And then he concludeth, ‘Even so hath the Lord appointed, that they which preach the Gospel should live of the Pastors of the Church ought to be maintained by their flocks; but not that the Pastors were to determine, either the quantity, or the kind of their own allowance, and be (as it were) their own Carvers. Their allowance must needs therefore be determined, either by the gratitude, and liberality of every particular man of their flock, or by the whole Congregation. By the whole Congregation it could not be, because their Acts were then no Laws: Therefore the maintenance of Pastors, before Emperours and Civill Soveraigns had made Laws to settle it, was nothing but Benevolence. They that served at the Altar lived on what was offered. In what court should they sue for it, who had no Tribunalls? Or if they had Arbitrators amongst themselves, who should execute their Judgments, when

21. Eusebius documented their existence, and discussed the Church Synods and the Church ‘theological’ hierarchy to some degree. See Mendels, Media Revolution, pp. 151-77.




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they had no power to arme their Officers? It remaineth therefore, that there could be no certaine maintenance assigned to any Pastors of the Church, but by the whole Congregation; and then onely, when their Decrees should have the force (not onely of Canons, but also) of Laws; which Laws could not be made, but by Emperours, Kings, or other Civill Soveraignes. The Right of Tythes in Moses Law, could not be applyed to the then Ministers of the Gospell; because Moses and the High Priests were the Civill Soveraigns of the people under God, whose Kingdom amongst the Jews was present; whereas the Kingdome of God by Christ is yet to come. (ch. 42, 294)

When the Church and the state are one, they fulfill what Hobbes stated:

From this consolidation of the Right Politique, and Ecclesiastique in Christian Soveraigns, it is evident, they have all manner of Power over their Subjects, that can be given to man, for the government of mens externall actions, both in Policy, and Religion; and may make such Laws, as them-selves shall judge fittest, for the government of their own Subjects, both as they are the Common-wealth, and as they are the Church: for both State, and Church are the same men. (ch. 42, 299)

As an intermediate summary, we can say that both Machiavelli and subsequently Hobbes were the clear representatives of the approach that the Christian Church was not designed, nor able, to exercise sov-ereign political governance, and that there could be no state without a ‘secular’ political framework. 4. The Relationship to the Government and the Geographic Divide The decline of the rabbinic centers in Palestine was accompanied by growing rabbinic centers in Parthia. At the same time, Christianity developed in the first centuries within the Roman Empire. We suggest that the Parthian Empire, in contrast to the Roman Empire, was a much more comfortable fit for a community that aspired to legal autonomy. In other words, we wish to draw attention to the relation-ship between the approach of each religion to law and community and the respective empires in which they found themselves during this formative period. As we have already emphasized at the beginning of the present study, our discussion throughout this article does not refer to the actual legal status of Jews in the empires,22 but to their attitude to their own legal system in relation to that of the empire.

22. See A. Linder, ‘The Legal Status of The Jews in the Roman Empire’, in Cambridge History of Judaism (Cambridge: Cambridge University Press, 2006),




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This process had two conflicting implications. On the one hand, Christianity became more and more Roman in its political approach. On the other hand, its desire to assimilate into the legal and political structure of the Roman Empire led it at times to direct confrontations with the Roman rulers who feared a Christian conspiracy. When Constantine decreed Christianity to be the state religion in 312, Christianity had already absorbed the concepts and political language of the empire,23 and as a result, there was no conflict between the law of the empire and the Christian religious system that had developed during the several previous centuries. This fact facilitated the process initiated by Constantine. In contrast, a significant portion of Rabbinic Judaism existed beyond the borders of the Roman Empire, and established itself in the Parthian Empire. The relocation to a feudal, or somewhat feudal, empire that granted autonomy to its vassals greatly facilitated the Jewish aspira-tion to develop a segregated community and a separate legal system for adjudicating civil law. Thus the Jewish community exercised a considerable degree of independence and separation in the Parthian Empire and aspired to sovereign autonomy, while the Christian com-munity sought mainly a theological autonomy. A community cannot conduct its day-to-day functions based on dogma, and those elements of law, therefore, had to be outsourced by the Christians to the host Roman Empire.24 We would like to anchor our discussion here in the recent book by Francis Fukuyama on the beginnings of political organization.25 Fuku-yama claims that legal systems constituted the beginning of states. The laws that slowly came into being, such as English Common Law, or as one time events, such as the American Constitution, led to the creation of the various state institutions of those countries. In that

pp. 128-73; and A. Linder, ‘The Legal Status of Jews in the Byzantine Empire’, in R. Bonfil et al. (eds.), Dialectics of Minority and Minority Cultures (Leiden: Brill, 2012), pp. 149-217. 23. See Mendels, Media Revulsion, passim. 24. We wish to draw attention to an idea that is worthy of study in its own right. The absence of legal and political sovereignty in the Christian Church, and its reliance on a sort of theological sovereignty (dogma) may explain the phenomenon of heresy in the early Church as against Judaism that did not experience heresies. 25. Francis Fukuyama, The Origins of Political Order: From Prehuman Times to the French Revolution (London: Profile Books, 2011).




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light, Fukuyama claims that the reliance of the Christians on the Roman legal system led inevitably to its integration into the Roman Empire, for without a law, it could not develop an independent sover-eign framework. We believe that Judaism, in contrast, developed independent laws that led to its crystallization into a semi-sovereign independent community within the host state. As such, the move to the Parthian Empire by the Rabbinic Jews was not by chance. One of the prominent characteristics of the Parthian government was its total lack of centralization. It was essentially a feudal government that granted a relatively high degree of independence to its subjects. Indeed, it is important to note that Babylonia, the place in which the Jewish centers were located in the east, went through many significant political and cultural changes during the hundreds of years that it served as the primary center for Jewish life, a fact that could impact upon our argument. The Talmudic period overlaps with the Sassanid Empire, which began in the first third of the third century with Ardashir’s ascent to power. This was the beginning of a new period because, in contrast to the Parthians, the Sassanids established a centralized government, and even a centralized religion. Nevertheless, we believe—as other scholars have claimed—that the roots of the strength of Babylonian Jewry had already been established and devel-oped during the three hundred years of Parthian rule. It was during that period that the Babylonian Jewish community became the seminal component of the Jewish world, the first to compete and provide an alternative to the centrality of the Jewish community in the Land of Israel. It is clear that the decision of Rabbi Yehudah Ha-Nasi to organize and edit the Mishnah and transform it into a closed canon was influenced by the fact that he saw and understood that the Baby-lonian center was gaining in strength, and wished to impart to it the Torah of the Land of Israel. Scholars have already pointed out that the amora Rav, who experienced the transition from Parthian to Sassanid rule, reacted to the death of the last Parthian leader as follows: ‘When Artaban died, Rav exclaimed: “The bond is snapped” ’.26 There were

26. b. Avod. Zarah 10b. Rashi comments: ‘The bond is snapped: Our love, for our souls were bound together’. See Isaiah M. Gafni, The Jews of Babylonia in the Talmudic Era (Jerusalem: Magnes Press, 1990), p. 31. Gafni states: ‘An analysis of the internal structure of the Parthian Kingdom…would explain very well how it permitted the Jewish community to develop in its own special way. The Parthian Kingdom was




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certainly many factors that created the special bond between Rav and the Parthian king. Nevertheless, it is quite clear that Rav recognized that the Parthian regime enabled the Jewish community to develop unfettered, and did not view it as a nuisance. Rav’s arrival in Babylo-nia was a significant turning point in the history of Babylonian Jewry. Rav returned to Babylonia from the Land of Israel and brought with him the Mishnah of Rabbi Yehudah Ha-Nasi, which became the corner stone for the Babylonian Jewish creativity of the following centuries. Rav was one of the foundation stones of the Babylonian Talmud. It is important to keep in mind that he was a Babylonian who went to the Land of Israel to study with Rabbi Yehudah Ha-Nasi. As such, he was cognizant of the Parthian reality and the situation of the Jews in Babylonia at that time, as well as the situation of the community in the Land of Israel under Roman rule. His decision to return to Babylonia was certainly influenced by a number of factors, but it is logical to assume that one factor was his recognition of the favorable circum-stances of the Jewish community under Parthian rule as opposed to the communities under Roman rule, including the community in the Land of Israel. He almost certainly saw the Babylonian community at that time as the most fertile ground for the development of Jewish life and learning. Ironically, it was soon after Rav’s return to Babylonia that the political revolution that brought about the fall of the Parthian regime and the rise of the Sassanid regime took place. In the place of a feudal government with no aspiration for centralization, a government that sought both political and religious centralization came to power. Rav’s response to this revolution, recorded in the Babylonian Talmud, demonstrates his recognition of the benefits of the Parthian regime that enabled Judaism to flourish, and his fears regarding the political revolution underway.27 It is, of course, important to note that even the most troublesome periods of the Sassanid dynasty cannot be compared to the difficulty of the Roman decrees during the first half of the second century. We also know that the tension with the Sassanid regime and its religious priests subsided rather quickly, and that the

different from its Achmenid predecessor and the subsequent Sassanid Empire in this way—that in effect it never constituted a unified empire with a strong central govern-ment, but rather a loose confederation of countries.’ 27. See M. Beer ‘The Political Background and Activity of Rav in Babylonia’, Zion 55 (1985), pp. 155-72 (158-59).




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rulers became tolerant and moderate toward the Jewish community already from the end of the third century. The famous statement of the Babylonian amora Shmuel, a contem-porary of Rav, that ‘the law of the land is the law’ is probably also a reaction to the rise of the Sassanids and their demand for centrali-zation. We can deduce from the fact that this axiom was not needed previously that the Jews were able to live in the Parthian Empire as an autonomous community. In addition, an analysis of the cases in which Shmuel utilized this rule demonstrates that while it is clear that he clearly sought ways to satisfy the ruling powers, his main emphasis was on maintaining autonomy vis-à-vis what were for him the most central and important issues, the jurisdiction over any dispute between members of the Jewish community.28 There is no doubt that the aspiration of the Rabbis to shape the Jew-ish community as a separate community secluded from its surround-ings required an environment such as that provided by the Parthians. It would have been much more difficult for a legal separatist approach to develop under a centralized government such as that of Rome. This point is strengthened in light of the fact that the rabbinic desire for separation was not limited to areas of ritual and religion, but applied as well to areas that are usually an integral part of a centralized system, as if they wanted a ‘state within a state’. Paradoxically, feudal regimes provide naturally fertile ground for the development of autonomous, partially sovereign societies from all perspectives. In relating to Euro-pean feudalism, Fukuyama states:

From the standpoint of political development, the critical aspect of Euro-pean feudalism was not the economic relationship between lord and vassal but the decentralization of power it implied. In the words of the historian Joseph Strayer, ‘Western European feudalism is essentially political—it is a form of government…in which political authority is monopolized by a small group of military leaders, but is rather evenly distributed among members of the group. This definition, also associated with Max Weber, is the one I will use throughout this volume. The core of the institution was the grant of the fiefdom, benefice, or appanage, a delineated territory over which the vassal exerted some degree of political control. Despite the theo-retical revocability of feudal contracts, European vassals over time, turned their fiefdoms into patrimony, that is, property that they could hand down

28. See S. Shilo, Dina De-Malkhuta Dina: The Law of the State Is Law (Jerusalem: Defus Akademi Jerushalayim, 1975), pp. 4-43.




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to their descendants. They acquired political rights over these territories to raise armies, tax residents, and administer justice free from interference of the nominal lord. They were thus in no way the lord’s agent but rather lords in their own right. Marc Bloch points out that the patrimonial char-acter of later feudalism actually represented a degeneration of the institu-tions. But it is precisely this distributed character of political power within a feudal system that makes it unique.29

To the Jewish masses, there were many reasons—economic, political, and cultural—to wander eastward. However, the Jewish leadership went eastward not only in the wake of the masses, but also because of a calculated perspective on the possibility of advancing their idea of an autonomous community in the east more so than in the Roman west.30 The regime and the atmosphere in the Parthian Empire provided outstandingly fertile ground for the development of the rabbinic vision of the sovereign autonomous Jewish community. Thus the divide in language (Hebrew and Aramaic versus Greek and Latin), geography (West and East), and the perception of communal sovereignty (politi-cal and legal sovereignty versus a theological one) contributed to the parting of the ways that was basically caused by theological reasons.

29. Fukuyama, The Origins of Political Order, p. 106. 30. This may be yet another reason for the so-called split Diaspora, namely that the Rabbis did not naturally move westwards. See Doron Mendels and Arye Edrei, Zweierlei Diaspora. Zur Spaltung der antiken juedischen Welt (Göttingen: Vanden-hoeck & Ruprecht, 2010).



preliminary thoughts on structures of 'sovereignty' and the deepening gap between judaism...

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