the prophet and the law in early judaism and the new testament

Cardozo School of Law

The Prophet and the Law in Early Judaism and the New TestamentAuthor(s): Bernard S. JacksonSource: Cardozo Studies in Law and Literature, Vol. 4, No. 2 (Autumn, 1992), pp. 123-166Published by: Taylor & Francis, Ltd. on behalf of Cardozo School of LawStable URL: http://www.jstor.org/stable/743314 .

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The Prophet and the Law

in Early Judaism and the New Testament*

Bernard S. Jackson

I. Introduction

Ancient debates between Judaism and Christianity have profoundly affected both Judaeo-Christian relations down to the present day, and the internal development of Judaism itself. Take, for example, the words of Paul, which have resounded down the centuries:

The qualification we have comes from God; it is he who has qualified us to dispense his new covenant - a covenant expressed not in a written document but in a spiritual bond; for the written law condemns to death, but the spirit gives life. (2 Corinthians 3:6, New English Bible)

Or, in the famous phrase of the King James version:

For the letter killeth, but the spirit giveth life.

Similarly, Romans 2:29 (New English Bible):

The true Jew is he who is such inwardly, and the true circumcision is of the heart, directed not by written precepts but by the Spirit; such a man received his commendation not from men but from God.

The "letter" comes to be associated with "the Law," and "the Spirit" with the Holy Spirit, and all too easily the phrase takes on connotations not merely of theological disputes (justification by works or faith; revelation via a written text or to the individual heart or conscience):' it even takes on connotations of "The Law killeth Jesus" and so gets mixed up with the deicide charge and the centuries of anti-Semitism which that charge was used to justify.

Theological understanding is thus vital to communal relations. This paper addresses a related issue to that of letter and

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spirit, namely the tension between law and prophecy, as worked out in the various uses made of the tradition of the "prophet-like-Moses."

II. The Role of the Prophet in Relation to the Law in the Old Testament

A. Moses as Prophetic Medium of Divine Verbatim Revelation of Law

Recall the concluding words of the Pentateuch (Deuteronomy 34:10-12):

There has never yet risen in Israel a prophet like Moses whom the Lord knew face to face: remember all the signs and portents which the Lord sent him to show in Egypt to Pharaoh and all his servants and the whole land: remember the strong hand of Moses and the terrible deeds which he did in the sight of all Israel.

Of course, the main function of Moses in the history of Israel was to mediate the law: it was for that purpose that God knew him face to face. Nevertheless, the accolade accorded to him is that of

supreme prophet. The "signs and portents" (ha'otot vehamoftim)2 are merely evidence that Moses gave the law as a true prophet;3 they are the means by which the prophet establishes his status, not the essential function he is there to perform.

A tantalizing story in Jeremiah 36:1-23 illustrates some of the

mechanics, in the period of the monarchy, of the continuation of this

prophetic function.

(1) In the fourth year of Jehoiakim son of Josiah, King of Judah, this word came to Jeremiah from the Lord: "Take a scroll and write on it every word that I have spoken to you about Jerusalem and Judah and all the nations, from the day that I first spoke to you in the reign of Josiah to the present day. Perhaps the house of Judah will be warned of the calamity that I am planning to bring on them, and every man will abandon his evil course; then I will forgive their

wrong doing and their sin."

(4) So Jeremiah called Baruch son of Neriah, and he wrote on a scroll at Jeremiah's dictation all the words which the Lord had spoken to him. He gave Baruch this instruction: "I am prevented from going

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to the Lord's House. You must go there in my place on a fast-day and read the words of the Lord in the

hearing of the people from the scroll you have written at my dictation... "

(8) Baruch... did all that the prophet Jeremiah had told him to do... (10) Then Baruch read Jeremiah's words in the House of the Lord out of the book in the hearing of all the people; he read them from the room of Gemariah... in the upper court at the entrance to the new gate of the Lord's House. Micaiah son of Gemariah... heard all the words of the Lord out of the book and went down to the palace... There Micaiah repeated all the words he had heard... then the officers sent Jehudi... to Baruch with this message: "Come here and bring the scroll from which you read in the people's hearing."

(15) So Baruch... brought the scroll to them, and they said, "Sit down and read it to us." When they heard what he read they turned to each other trembling and said, "We must report this to the King." They asked Baruch to tell them how he had come to write all this. He said to them, "Jeremiah dictated every word of it to me, and I wrote it down in ink in the book." The officers said to Baruch, "You and Jeremiah must go into hiding so that no- one may know where you are."

(20) When they had deposited the scroll in the room of Elishama the adjutant-general, they went to the court and reported everything to the King. The King sent Jehudi to fetch the scroll. When he had fetched it from the room of Elishama the adjutant-general, he read it to the king and to all the officers in attendance... When Jehudi had read three or four columns of the scroll, the King cut them off with a penknife and threw them into the fire in the brazier. He went on doing so until the whole scroll had been thrown on the fire.

We are not told a great deal about the content of this scroll, except that it was likely to be offensive to the king (many things could qualify), but it is by no means to be excluded that the scroll would have contained some normative material. Particularly interesting is the light here cast upon the way in which holy books could be infiltrated

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into the temple archive, with the complicity of court officers - despite their sensitivity to the political dangers. Perhaps this casts light upon the famous incident a few years before, when, in the reign of King Josiah, a scroll (which many now identify with Deuteronomy) hitherto apparently unknown was discovered in the archive.4

B. Prophet as Authorized Reformulator of the Law

A major role of the Old Testament prophet is to remind the people of some covenantal obligation which has been entered into at an earlier stage, and which the people appear to be violating. Take the following example, concerning Jeremiah in the reign of King Zedekiah (Jeremiah 34:12-14 ):

Then this word came from the Lord to Jeremiah: These are the words of the Lord the God of Israel: I made a covenant with your forefathers on the day that I brought them out of Egypt, out of the land of slavery. These were its terms: "Within seven years each of you shall set free any Hebrew who has sold himself to you as a slave and has served you for six years; you shall set him free."

Jeremiah reminds the people of the law stated in Exodus 21:2 about the liberation of slaves, that a male slave taken for debt must be released in the seventh year. This is a law which, according to the narrative in Jeremiah 34, the people have neglected, and the prophet causes them to re-covenant. There may be a new act of covenanting. Nevertheless, the prophet clearly has the authority to use a different form of words to express the original law:5

Jeremiah 34:14: "Within seven years (mikets sheva shanim) each of you shall set free any Hebrew who has sold himself to you as a slave and has served you for six years" - expressed in the apodictic form.

Exodus 21:2: "When you buy a Hebrew slave, he shall be your slave for six years, but in the seventh year he shall go free and pay nothing" - expressed in a variety of the casuistic form.

Such a capacity to reformulate is significant, since there would come a time when the verbal formulation, as well as the substance, of the law would become inviolate from change. Clearly, the Biblical prophet retained the capacity, in reminding the people of the law, to use his own words to express it.6 Indeed, there is a talmudic source which suggests that it is of the essence of prophetic revelation that its

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formulation is unique: "I have a tradition from my grandfather's house that the same communication is revealed to many prophets, but no two prophesy in the identical phraseology."7

C. The Prophet as Amender of the Law: the "Prophet-like-Moses" Tradition

In the course of his valedictory address, Moses enunciates God's promise that in the future there will arise prophets like Moses (kamoni), whom God will inspire to communicate his commandments (Deuteronomy 18:15-19):

These nations whose place you are taking listen to soothsayers and augurs, but the Lord your God does not permit you to do this. The Lord your God will raise up a prophet from among you like myself, and you shall listen to him. All this follows from your request to the Lord your God on Horeb on the day of the assembly. There you said, "Let us not hear again the voice of the Lord our God, nor see this great fire again, or we shall die." Then the Lord said to me, "What they have said is right. I will raise up from them a prophet like you, one of their own race, and I will put my words into his mouth. He shall convey all my commands to them, and if anyone does not listen to the words which he will speak in my name I will require satisfaction from him. But the prophet who presumes to utter in my name what I have not commanded him or who speaks in the name of other Gods - that prophet shall die." If you ask yourselves, "How shall we recognize a word that the Lord has not uttered" this is the answer: When the word spoken by the prophet in the name of the Lord is not fulfilled and has not come true, it is not a word spoken by the Lord. The prophet has spoken presumptuously; do not hold him in awe.

The passage contains a double admonition to obey such a prophet: elav tishme'un in verse 15,8 and the threat to require satisfaction from anyone not obeying him (v.19).

The coming of such a prophet is not described in Deuteronomy as a one-off, once-and-for-all event; the "prophet-like- Moses" is not an eschatological prophet. There is no suggestion in the text of a Messiah figure who will come to herald the end of days. Nor is this a second coming of Moses himself. It is a promise that, from time to time, prophets will arise who will have an authority

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comparable to Moses, as the bearers of divine commands. The rabbis were to identify at least three historical figures whom they consider to have possessed just this kind of authority, and in each case they allude to a command by that prophet contrary to the Mosaic law:9 the first (even before Moses) is Abraham, who commanded the sacrifice of Isaac;10 the second, the prophet Micaiah, who ordered a colleague to smite him;11 the third (the locus classicus), the prophet Elijah, who ordered sacrifice outside the Temple.12

This text was to prove of enormous significance in the subsequent history of both Judaism and Christianity.

D. Opposition: the False Prophet

There was a fine line in the Bible between the genuine and the false prophet, but, given the authority enjoyed by the genuine prophet, this was a line which it was vital to draw. We have seen in the case of Moses the stress laid upon his capacity to perform otot and moftim (A. above), and the "prophet-like-Moses" passage itself explicitly raises the question of recognition, and offers non-fulfillment of a "word" (which could certainly include, and perhaps in the context does not go beyond, a promise to perform miracles) as a

falsification.13 However, the absence of such a falsification does not entail recognition of the prophet's status. According to Deuteronomy 13:1-5:

When a prophet or dreamer appears among you and offers you a sign or a portent and calls on you to follow other Gods whom you have not known and worship them, even if the sign or the portent should come true, do not listen to the words of that prophet or that dreamer. God is testing you through him to discover whether you love the Lord your God with all your heart and soul... That prophet or that dreamer shall be put to death, for he has preached rebellion against the Lord your God...

Even success in performing otot and moftim is no sufficient condition of true prophetic status; there is also a test as to the content of his teaching: not even a true prophet has the authority to command idolatry. The theme of the relationship of the prophet to Mosaic law is central to this passage, too. For the verse immediately preceding this passage is the famous (in rabbinic terms) bal tosif: "See that you observe everything I command you: you must not add anything to it, nor take anything away from it." Indeed, in the chapter division of the Hebrew Bible, this verse commences the chapter (13:1), followed immediately by the law of the false prophet. The underlying logic of

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the discourse is thus the following: (1) You, ordinary Israelites, have no authority to alter the law; (2) a genuine prophet-like-Moses may do so, on proving his status, but (3) even one who proves his status with otot and moftim is really false if he commands idolatry.

III. The Prophet at Qumran

The model of the prophet-like-Moses appears to have been important to the sect of Qumran. Various indications suggest that the sect's major leader, the moreh hatsedek (the Teacher of the Righteousness) was claiming a form of prophetic authority.14 He reformulated many of the rules, and restated them in a new collection (another mishneh torah). These rules of Qumran are written in a style of Hebrew relatively close to that of the Bible, particularly the priestly sections; as in Jeremiah's reformulation of the law on slavery, no embarrassment is apparent at Qumran in reformulating Biblical rules

nor even in offering an entirely new text in which they are systematized.

There is also a second more radical use made of the prophet- like-Moses tradition at Qumran.15 "Original rules" (hamishpatim harishonim) of the Community are said to be applicable "until the coming of the prophet and the Messiahs of Aaron and Israel."16 Clearly, this trio of eschatological figures would have the authority to abrogate the "original rules." The identity of "the prophet" with the prophet-like-Moses has been plausibly claimed because of the discovery at Qumran of a collection of testimonia (proof-texts), found in one of the smaller fragments (4QTest.), which includes the text of Deuteronomy 18 on the prophet-like-Moses.17

The functions of the prophet noted in sections II.B-C supra are thus clearly manifest in the Qumran literature. And the prophet- like-Moses tradition is taken to include an authority to change the law

though this power is here deferred until the eschatological, messianic future.

These Old Testament and Qumran sources represent a long- standing and important Jewish institution, which we find interpreted in different ways in the New Testament and rabbinic Judaism.

IV The Role o fJesus in the New Testament

A. Jesus as a Prophet-like-Moses

Vermes has argued that the earliest title claimed by (or on behalf of) Jesus was that of "prophet," but that the more specific identification of Jesus with the "prophet-like-Moses" arose only in the

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Gospel of John, well after Jesus' death.18 This argument, however, assumes a radical understanding of the prophet-like-Moses model, that it necessarily entails a capacity to make permanent changes in the law, and is understood only in an eschatological, messianic context. In fact, the nuances of the model are themselves found within the New Testament. There is evidence in the synoptic gospels that the original claim was non-radical and non-eschatological, indeed, quite in conformity with what we shall find to be the early rabbinic understanding of the prophet-like-Moses.

In the Sermon on the Mount, Jesus says (Matthew 5:17-18):

Do not suppose that I have come to abolish the law and the prophets; I did not come to abolish, but to complete.19 I tell you this: so long as heaven and earth endure, not a letter not a stroke will disappear from the law until all that must happen has happened...

Is the phrase "the law and the prophets" a hendiadys, referring to the Torah itself, or to Torah in general? Or does it mean the law, the Torah, and the Nevi'im, the prophets, as separate bodies of literature? Or might it indicate, as I suspect, a specific reference to Deuteronomy 18? I suggest that it is the law of the prophet that Jesus claims here to fulfill. That certainly gives the greatest force to "I have come" - the claim that an historical act fulfills the promise of an historical act, that God would "raise up" such a prophet. Moreover, the activities of Jesus conform to what we know to be the role of such a prophet. I suggest that Jesus in the Sermon on the Mount claims precisely the authority of a prophet-like-Moses.

B. Jesus as Reformulator of the Tradition

One aspect of this is apparent from what follows immediately in the Sermon on the Mount: a prophetic reformulation of some of the Decalogue commands:

You have learned that our forefathers were told, "Do not commit murder; anyone who commits murder must be brought to judgement." But what I tell you is this: anyone who nurses anger against his brother must be brought to judgement. If he abuses his brother he must answer for it to the court...

Of course, there is a consciousness here of opposing versions; this goes beyond the example of Jeremiah, giving a linguistically distinct but substantively identical version to the original. But the version given here is offered not as a better, or privileged, interpretation: it is

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presented rather as the original meaning, not as interpretation at all. Despite the affinity, which Daube has noted,20 with a rabbinic form of argument, "the tone is not academic but final, prophetic, maybe somewhat defiant. Nor is there any reasoning. The correct attitude is simply stated."21 Nor is there conceived to be any conflict with the existing law; rather, Jesus claims to provide a more complete version of it.22 By implication, a prophet-like-Moses can indeed add to the law,23 just as Moses did himself in the valedictory addresses which make up much of the normative material of Deuteronomy, and just as the Teacher of Righteousness did in formulating the serakhim at Qumran. But in making such use of the prophetic power, we may note, neither Moses nor the Teacher of Righteousness claimed to be an eschatological or messianic figure.

We may contrast with the Sermon an incident where Jesus does appear as engaged in debating rival interpretations. In Matthew's version (12:9-14):

He went onto another place and entered their synagogue. A man was there with a withered arm, and they asked Jesus, "Is it permitted to heal on the Sabbath?" (They wanted to frame a charge against him.) But he said to them, "Suppose you had one sheep which fell into a ditch on the Sabbath; is there one of you who would not catch hold of it and lift it out? And surely a man is worth far more than a sheep! It is therefore permitted to do good on the Sabbath." Turning to the man he said, "Stretch out your arm." He stretched it out, and it was made sound again like the other. But the Pharisees, on leaving the synagogue, laid a plot to do away with him.

Here, Jesus engages in elaborate argument - including a kal vahomer (an a fortiori inference) - in justification of his position. He does not claim his view to be self-evident, the result of either prophetic reformulation or change. And indeed, we know that comparable matters had for some time been debated. At Qumran, there were rules which prohibited, on the Sabbath, both the lifting of an animal out of a ditch, and even the saving of a man drowning in a pit or water hole, through the use of a rope or other instruments.24 The kal vahomer of Jesus would therefore not have been self-evident. The legal interpretation of the situation was, at the very least, controversial.

C. Jesus as Deviator from the Law

Elsewhere, Jesus' teaching and authority seem of a rather

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different nature. This is the Matthaean version of an incident reproduced (with variations) in all three of the synoptic gospels (Matthew 12:1-4; cf., Mark 2:23-26, Luke 6:1-4):

Once about that time Jesus went through the cornfields on the Sabbath; and his disciples, feeling hungry, began to pluck some ears of corn and eat them. The Pharisees noticed this, and said to him, "Look, your disciples are doing something which is forbidden on the Sabbath." He answered, "Have you not read what David did when he and his men where hungry? He went into the House of God and ate the sacred bread, though neither he nor his men had a right to eat it, but only the priests."

The clear implication of the Pharisees' question is that, according to Pharisaic law at the time, such Sabbath gleaning was not permitted. Jesus replies by citing a precedent: that of David (before he became king), who ate and allowed his soldiers to eat the bread of the temple, even though, according to the law, it was reserved for the priests. The force of the precedent, according to Jesus' argument, derives from the analogous justifications in the two cases: David allowed it because his soldiers were hungry; the disciples are doing it for the same reason, they are hungry.25

Jesus is not here claiming to set a precedent, that it will always be permissible to pluck ears of corn on Shabbat. Nor is he even offering a rival interpretation of the law (as in the dispute over sabbath healing): that it is permitted to pluck ears of corn on Sabbath, contrary to the Pharisaic interpretation. Rather, Jesus here claims an authority comparable to that of David, to suspend the law on a particular occasion.

A second example of this suspensory power might be considered a little trivial. As the story of the New Testament reaches its climax, Jesus travels to Jerusalem for the Passover (Matthew 21:1-5):

They were now nearing Jerusalem; and when they reached Bethphage at the Mount of Olives, Jesus sent two disciples with these instructions: "Go to the village opposite, where you will at once find a donkey tethered with her foal beside her; untie them, and bring them to me. If anyone speaks to you, say, 'Our master needs them'; and he will let you take them at once." This was to fulfill the prophecy which says,26 "Tell the daughter of Zion, 'Here is your King, who comes to you in gentleness,

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riding on an ass, riding on the foal of a beast of burden.' "

How can the disciples just go and take someone's ass? It is private property. And the three synoptic gospels show differing degrees of embarrassment or concern about this apparent breach of the law. Jesus is asking his disciples to steal, in order to enable him to enter Jerusalem in this way, and thereby to fulfill the prophecy. Here, in Matthew, Jesus anticipates that the owner will consent, once the particular need is pointed out. In Mark, this argument is elaborated: the disciples are to promise to return the animal without delay. Mark (uniquely) then goes on to record an actual challenge by "some bystanders," who, on receiving this assurance, allow the disciples to proceed.27 But in Luke, which on this occasion has claims to be the oldest of the traditions, Jesus simply says: If anyone asks you, just say "the Lord has need of it."

In rabbinic terms, this amounts to tsorekh hasha'ah, the needs of the hour. Again here, there is no claim either to create a precedent or to adopt a new interpretation of the law; rather, we have a claim of authority to suspend the law on one particular occasion, a purely ad hoc measure.28 Such an authority to authorize a deviation29 is the principal theme of the rabbinic exegesis of the prophet-like- Moses passage (V. C, infra).

Not all the claims of Jesus to deviate from the law follow this moderate conception of the authority of the prophet-like-Moses. There are other sources where more radical claims are made, not merely to authorize suspension of the law on an ad hoc basis, but to amend it in perpetuity, and even to replace the old covenant with a new one in which, for example, circumcision would no longer be required of converts.30 We have seen how such a claim, still made in the name of the prophet-like-Moses, was associated at Qumran with messianic and eschatological expectations (section III, supra). Recall also the temporal limitation of Jesus' affirmation of the Law in the Sermon on the Mount: "so long as heaven and earth endure," i.e., until the eschaton. John understands the prophet-like-Moses model in a similar way,31 and Peter, as recorded in Acts 3:22-23, explicitly uses Deuteronomy 18 as a proof text in preaching the second coming of Jesus (see further, infra, section VID). Small wonder that this proved disturbing to the rabbis.

V The Early Rabbinic Sources

A. The Rabbinic Appropriation of the Prophetic Model

The Rabbis located prophetic authority within a history of

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tradition which commenced with Moses and ended with themselves. As the famous Mishnah Avot 1:1 puts it:

Moses received the law from Sinai and committed it to Joshua and Joshua to the elders, and the elders to the prophets, and the prophets committed it to the men of the great synagogue...

There was thus no antithesis or conflict between law and prophecy; between the rabbi on the one hand and the prophet on the other. Prophecy itself was claimed to have ceased, but prophetic authority, itself inherited from Moses, was conceived to have been handed on to the rabbis. And while the prophetic medium of revelation was, for the most part, replaced by another - the interpretative, argumentative mode of the rabbis, as developed in the Oral Law - we can still trace within the rabbinic literature a continuation of those functions in relation to the law which originated in the prophet-like-Moses tradition. I shall discuss the ways in which the rabbis appropriated these particular aspects of prophetic authority.

B. Mishnah as Restatement of Law

The Mishnah is itself to be understood in this context. Its very title harks back to Deuteronomy, which, as suggested above, can itself be regarded as a first example of the genre. According to the theory of the Oral Law, the Mishnah was not a later invention; it was given to Moses and handed down the chain of tradition. Just as Deuteronomy was conceived to complete the written Torah, so the Mishnah was taken (for the moment) to complete33 the Oral law. In both cases, "repetition" takes the form of a new formulation of rules - even introducing some entirely new material - but nevertheless the thematic links, and perhaps even more the repetition of the act of enunciation, in the first case by the prophet Moses himself, in the second by those who so prominently claimed to have inherited his mantle, justified the conclusion that the second document was essentially the completion of the first. The compiler of the Mishnah was not, as we have seen, the first to make such a claim in the post- biblical period. Exactly the same had been done by the Teacher of Righteousness in the serekh of the Qumran community.

C. The Rabbinic Power of Suspension of the Law

The rabbinic exegesis of the prophet-like-Moses texts explores the relationship of the various elements of the Biblical tradition (the test of status by "signs," the authority over the law, and the relation to false prophecy) in a manner such as to preserve the force of the institution without opening the door to radical,

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eschatological, and specifically christological interpretations. Consider first Sanhedrin 90a:

R. Abbahu said in R. Johanan's name: in every matter (bakol), if a prophet tells you to transgress (im yomar lekha avur) the commands of the Torah, obey him, with the exception of idolatry: should he even cause the sun to stand still in the middle of the heavens for you (as proof of divine inspiration), do not harken to him.

Here a typical ot is mentioned as the means by which the prophet seeks to prove his authority over the law. But the case falls squarely within Deuteronomy 13: since he is telling you to commit idolatry (the case envisaged in Deuteronomy 13), he is proved thereby to be a navi sheker, despite the performance of the miracle. This apart, there is a general authority of a prophet to command you to transgress, la'avur divre Torah. That sounds very radical. But a baraita earlier on the same page suggests an important distinction:

Our Rabbis taught: if one prophesies so as to eradicate (la'akor) a law of the Torah, he is liable (to death); partially to confirm and partially to annul it, R. Shimon exempts him.34 But as for idolatry, even if he said, 'Serve it today and destroy it tomorrow,' all declare him liable.

There is thus a distinction between a command to transgress a law (avur) in R. Johanan's dictum, and an instruction to "eradicate" (la'akor) a law. The former - ad hoc suspension - is (with the exception of idolatry) within the authority of the prophet-like Moses; the latter - a permanent annulment (a breach of bal tigra) - renders the prophet guilty of false prophecy.35

There is a second terminological distinction between these two passages, which further supports this distinction. In the first passage, the dictum of R. Johanan, it is significant that the language here is im yomar lekha - supposing that the prophet speaks to his audience directly, in the second person singular. Thus the text contemplates direct communication on a particular occasion. He is not making a general pronouncement; he is merely suspending the law on this particular occasion and for those whom he addresses. The second text lacks this direct speech audience. It contemplates a prophecy permanently to uproot a law of the Torah, directed to the people generally.

Without more, this argument might appear to hang on two relatively arbitrary linguistic choices. But support comes from a third

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passage, in Yevamot. This is an exegesis of the Biblical phrase, elav tishme'un, which is used to express the obligation of the Israelites to obey the prophet-like Moses (Yevamot 90b, Sifre ad Deuteronomy 18:15):

Come and hear: unto him ye shall harken, even if he tells you36 "Transgress (avur) any of all the commandments of the Torah" as in the case, for instance, of Elijah on Mount Carmel,37 obey him in every respect in accordance with the needs of the hour.

The example shows clearly that the prophet-like-Moses tradition is understood as conferring an authority to suspend the law in particular cases. Elijah authorized his followers to sacrifice on Mount Carmel at a time when, at least according to later tradition, the cult had already been centralized. According to tradition, he departed from the law. Why? In passages which go into greater detail, the argument is put: if the followers hadn't been allowed to sacrifice to our God there, on Mount Carmel, they would have adopted idolatry, and sacrificed to alien pagan gods there. The passage then continues: hakol lefi sha'ah, everything depends upon the circumstances of the time. But if the time is right and the prophet authorizes the suspension, shema lo, you must obey him.

D. Restriction of the Tradition

The rabbis both appropriated and restricted the tradition of the prophet-like-Moses.38 The interpretation which cited Elijah as an example of the authority conferred in Deuteronomy 18 became the basis of a rabbinic power of legislation in emergency situations.40 Appropriation was facilitated by an interpretation, that the prophet does not have to perform miracles in proof of his status provided that he is mumheh lekha shehu tsadik gamur,41 publicly known to be righteous. The principle was adopted that eyn navi rashai lahadosh od davar me'ata: a prophet has no greater power to innovate than a rabbi,42 and this was graphically illustrated in a comment by Maimonides:

Even if 1000 prophets like Elijah and Elisha take one view, and 1001 rabbis take an opposite view, we follow the majority.43

To say that, however, seems at the same time to make a vital concession: each prophet, though counted as no more than a single rabbi, is at least counted as that. What would Rambam's view have been had the numbers been reversed, had 1000 rabbis been opposed

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by 1001 prophets? On the face of it, the implication seems not to be totally excluded, that majority opinion is not necessarily that of the rabbinic authorities.44

Some aspects of rabbinic restrictiveness of the "prophet-like- Moses" tradition appear directly to allude to Christian concerns. The baraita in Sanhedrin 90a records that if a prophet seeks "partially to confirm and partially to annul (a law of the Torah), R. Simeon exempts" (but by implication the majority condemn). From the rabbinic standpoint, this could well be a description of the approach of the Sermon on the Mount. Again, the phrase yakim lekha (Deuteronomy 18:15) attracts a comment in Sifre (ad loc.) that this means velo lagoyim: a "prophet-like-Moses" will minister to the Jews, not the gentiles. This sounds very much like an argument designed to rebut any suggestion that Jesus had fulfilled this role.

It is, in fact, possible to assemble an impressive list of institutions where rabbinic law appears to have developed in response to the growing influence of the Christian story. We might view in this light rejection of the authority of the bat kol45 (contrast the role of the phbn ek tou ouranou on the occasions of the baptism and transfiguration of Jesus); the rejection of miracles in proof of halakhic propositions (as still attempted by R. Eliezer in the famous story of the oven of Okhnai, the Babylonia Talmud, Bava Metsia 59b); the rejection by the rabbis of testes singulares, which, I have argued, were used in the New Testament in proof of the divinity of Jesus;46 and indeed the disappearance in Palestine (but not in Babylonia) of extra- legal reasoning in judicial decision-making.47

E. Historical Summary

We are now in a position to summarize the development of the status of the "prophet-like-Moses" in relation to the law in both Christian and Jewish sources. There existed both eschatological and non-eschatological models of the "prophet-like-Moses" in the Second Commonwealth period, with corresponding differences in relation to the Law. The non-eschatological prophet was viewed in terms of the sectarianism of the period: he could authorize individual actions which suspended the Law, teach his sect his own interpretation of the law, and judge individual cases against the Law. Of these three functions, the first is directly and the third indirectly attested in the rabbinic sources and the second is manifested at Qumran. Reflections of all three are found in the New Testament, sometimes in the context of the first phase of an overtly two-phase historical account in which the historical Jesus represents the non-eschatological "prophet-like- Moses" while the eschatological prophet, who will possess the power to abrogate law - a model denied by the rabbis but anticipated in the

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Qumran Community Rule - is identified with the Jesus of the Second Coming (Matthew, Acts). Ultimately, rabbinic Judaism decided that it had had enough of the whole concept. The continuation of prophecy was denied48 and even the power of the prophet to suspend the law in

particular cases came to be transferred to the rabbinic law court itself. Even the great Moses himself, the very source of the tradition ("There has never yet risen in Israel a prophet-like-Moses" - Deuteronomy 34:10-12), came to lose his prophetic identification and became Moshe Rabbenu. The tradition that an eschatological Elijah would come to resolve outstanding doubts in the law survived, but on the whole Judaism preferred to leave the question of the status of the law in the eschatological age in respectful silence.

VI. The Trial ofJesus

I turn from the authority of the prophet over the law, to the authority of the law over the prophet - specifically, to the vexed question of the trial of Jesus. I offer what, to my knowledge, is a new

insight on the trial, and in the concluding section argue that there are common underlying thought processes linking this theme to that explored in the earlier sections of this paper.

A. The Difficulties Facing an Historical Account

Volumes have been written on the trial of Jesus. There are many apparent anomalies in the accounts of the trial of Jesus and many problems from the viewpoint of the legal historian.49

The problems are twofold, literary and historical: on the one hand, the gospel accounts themselves contain notable internal

discrepancies; on the other, the story they tell is significantly at odds with contemporary law and practice, both Jewish and Roman.

As to the internal coherence of the gospels, just a few of many discrepancies may be noted:50

(1) The arrest: the synoptic gospels see the arrest as made by an armed crowd sent out by the Jewish authorities (variously described)51 alone, while John writes that the arrest was carried out by a cohort of Roman troops in company with "the officers from the chief priests and the Pharisees."52

(2) The charge: while the charge in the Jewish hearing is ultimately blasphemy in Matthew 26:65 and Mark 14:64, in both accounts the condemnation is followed immediately by a contemptu- ous challenge to the prophetic status of Jesus: "Now, Messiah, if you are a prophet, tell us who hit you" (Matthew 26:68), suggestive of an account in which the charge had actually been false prophecy." No charge is mentioned in either Luke or John.

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(3) Time and place of the Jewish proceedings: Mark and Matthew have two phases of procedure before the Jewish authorities: at night, they led Jesus "to the high priest... And Peter had followed him at a distance, right into the courtyard (aul&n) of the high priest (Mark 14:53-55, suggestive that this is the private residence of the High Priest; cf., Matthew 26:57-59); "And as soon as it was morning the chief priests... with the elders and scribes, and the whole council (holon to sunedrion) held a consultation" (Mark 15:1, cf., Matthew 27:1). In Luke it is stated explicitly that Jesus was taken at night to "the high priest's house" (oikon, 22:54), but the questioning does not occur then or there: "When day came... they led him away to their council" (eis to sunedrion, 22:66).54 John has Jesus taken at night,55 first to the father-in-law of Caiaphas, Annas (himself a high priest), then to Caiaphas, then the following morning56 to the praetorium.

(4) Identity of the body conducting the Jewish proceedings: Mark stresses the involvement of "the whole council (holon to sunedrion)" at both stages of the Jewish proceeding, the morning proceeding being conducted by "the chief priests, with the elders and scribes, and the whole council" (15:1); Matthew fails to mention either the scribes or the Sanhedrin in relation to the morning proceeding (27:1); in Luke it is "the assembly of the elders of the people [who] gathered together, both chief priests and scribes" and who led Jesus to the Sanhedrin (22:26); John records no meeting of the Sanhedrin, nor even the presence of other high priests, elders or scribes at the interrogation by Annas.

(5) The high priest's question and Jesus' reaction: In Mark, Jesus eventually responds to the question of the high priest: "Are you the Christ, the Son of the Blessed?" with the words: "I am (ego eimi); and you will see the Son of man seated at the right hand of Power, and coming with the clouds of heaven," which is immediately interpreted by the high priest as a confession of blasphemy (14:62-64); in Matthew, the question is: "tell us if you are the Christ, the Son of God," to which Jesus retorts "You have said so (su eipas). But I tell you, hereafter you will see the Son of man seated at the right hand of Power, and coming on the clouds of heaven" (26:63-66), but this is interpreted as a confession, as in Mark; in Luke, the question to which Jesus responds is: "Are you the Son of God, then?" (after a question about "the Christ" is avoided) and he replies, without more: "You say that I am" (humeis legete), again interpreted as a confession (22:70- 71); in John, there is no specific accusation: "The high priest then questioned Jesus about his disciples and his teaching" and Jesus replies that he has always preached publicly, and the question should be posed of his audience (18:19-21).

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(6) Did the Jews claim the right to exercise capital jurisdiction?57 John 18:31 has the Jews deny that they have jurisdiction to condemn an accused to death: "It is not lawful for us to put any man to death;"58 Mark and Matthew; have the Sanhedrin effect just such a condemnation (" 'What is your decision?' And they all condemned him as deserving death" (katekrinan auton einai enochon thanatou - Mark 14:64); "'What is your judgment?' They answered, 'He deserves death' " (hoi de apokrithentes eipan, enochos thanatou estin - Matthew 26:66). Luke, though recording a proceeding before the Sanhedrin, mentions no verdict given by it."

(7) The charges before Pilate: these are not stated in Mark or Matthew, but are left to be inferred from Pilate's question: "Are you the King of the Jews?" (8, infra); following that, the accusers level "many [unspecified] charges" (Mark 14:4, Matthew 26:13-14). In Luke, we find a much more specific accusation: "We found this man perverting our nation, and forbidding us to give tribute to Caesar, and saying that he himself is Christ a king" (23:2), then (after the su legeis) "He stirs up the people, teaching throughout all Judea, from Galilee even to this place" (23:5). In John, "Pilate went out to them60 and said, 'What accusation do you bring against this man?' They answered him, 'If this man were not an evildoer (kakopoios), we would not have handed him over' " (18:29-30), but this leads Pilate eventually to put the "King of the Jews" question to Jesus (18:33).

(8) Pilate's question and Jesus' reaction: The pattern of reluctance and ambiguous answer is followed also in the accounts of the interrogation by Pilate. In all four gospels, the question posed is "Are you the King of the Jews?" (Mark 15:2, Matthew 27:21, Luke 23:3, John 18:33), but here the "you say so..." form of response (su legeis, in all three), echoing that to the high priest in Matthew and Luke (1V, supra), and found here in all three Synoptics (but not in John, where the answer is theologically puzzling to Pilate, leading him to the question: "What is truth?") is not interpreted by the interrogator as a confession, as is shown by the continuation of accusations (and Jesus' silence in the face of them) and the nature of Pilate's response (especially in Luke).61

(9) The attitude of Pilate: in both Luke and John, Pilate explicitly seeks to exonerate Jesus: "And Pilate said to the chief priests and the multitudes, 'I find no crime in this man"' (Luke 23:4; cf., John 18:38, where the audience is "the Jews"), whereas in Mark and Matthew the result of the interrogation is that Pilate "wondered" (thaumazein, Mark 15:5, Matthew 16:14).

(10) Luke, uniquely, includes some form of hearing before Herod Antipas (presumably in his capacity as tetrarch of Galilee).62

(11) The relations between the Jewish authorities and the

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crowd: in Mark 15:11-15, it is "the chief priests [who] stirred up the crowd to have him release for them Barab'bas instead," and Pilate, "wishing to satisfy the crowd" (who are shouting: "Crucify him"), accedes to their request. Matthew's account is similar: "Now the chief priests and the elders persuaded the people to ask for Barab'bas and destroyJesus" (27:20). Luke, by contrast, has the leadership join in the shout: "But they all ["the chief priests and the rulers and the people," 23:13] cried out together, "Away with this man, and release to us Barab'bas" (23:18). John does not mention "the crowd" at all; though he refers on occasion to "the Jews," in context this means "the chief priests and the officers," and it is they who shout "Crucify him, crucify him!" (19:6).

Equally difficult is the relationship between the gospels and contemporary law, both Jewish and Roman. As to the former, Kermode summarizes some of the difficulties:63

Many scholars accept that there could not have been a night trial before the Sanhedrin;64 that although it is true that capital sentences had to be confirmed the following morning,65 this could not be done on a feast day; that no accusation of blasphemy could have succeeded on the evidence;66 that even if it had, the penalty would have been stoning and the matter would not have gone before the Roman governor.

Additional problems arise in relation to the reliance upon a confession,67 and perhaps also the absence of "forewarning."68

As for the relationship to Roman Law, the release of Barab'bas is perhaps the most noted problem.69 It is far from clear that a Roman prefect (a lesser status than that of procurator)70 had the power to pardon a convicted of a capital offence. Equally unclear is the extent of his powers of delegation, both of investigative and police powers, such as would be needed to make historical sense of the relations between the Jewish and Roman authorities.71 Nor, when it came to the Roman hearing, is it clear whether there would have been a charge under Roman criminal statutes (and, if so, which)72 Or under the more general procedure extra ordinem.73

B. The Trial as a Literary Construction

An alternative approach to the trial narratives is to view them not according to the criteria of history, but rather of literature as a literary text constructed to allude to a wide variety of Old Testament texts, with the theological purpose of showing that Jesus was himself the fulfillment of prophecy.

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There is no doubt that the Passion narratives contain an immense amount of Old Testament allusion. Kermode offers the following catalogue:74

The false witnesses at the Sanhedrin trial fulfill texts in Psalms 35 and 109; the silence of Jesus before his accusers fulfills Psalm 38 ("I behave like a man who cannot hear and whose tongue offers no defence," here assimilated to the "malicious witnesses... question me on matters of which I know nothing" of Psalm 35) and from the Suffering Servant passage in Isaiah 35 ("He was afflicted, he submitted to be struck down and did not open his mouth"). The spitting and buffeting are related to a whole cento of texts; the covering of the face has been traced to a misunderstanding of another Suffering Servant verse (53:3). Matthew omits it, Luke adds a bit of narrative to explain it. The blows of the servants fulfill Isaiah 50:6. As to the Crucifixion, Mark "contents itself with portraying the picture of the crucified in a few verses according to the 'Passion Testimonies.' " Mark has wine mingled with myrrh, from Proverbs 31; Matthew, reworking him, remembers Psalm 69 and substitutes gall for myrrh. The division of garments fulfills Psalm 22; the eclipse, the last words, the vinegar and the death cry all have Old Testament sources. This list could be much longer...

Among theologians, however, one text has enjoyed primacy as the model for the trial and death of Jesus: the Suffering Servant song in Isaiah 53.75 Lane's commentary on Mark, for example, finds in Isaiah 53:4-12 "an account of obedient suffering, expressed by the sustaining of mockery, by silence before accusers, by forgiveness, by intercession for the many, by burial with the condemned..."76 But the Suffering Servant passage in Isaiah is notoriously difficult. The establishment of the Hebrew text is not without its difficulties, and it is virtually impossible for a translator - particularly a Christian translator - to approach it entirely independently of its christological use.77 Take the passage from Lane, here quoted. The terms "accusers" and "burial" suggest trial on the one hand, execution on the other. But neither element is clearly present in Isaiah.78 Indeed, it is quite possible to read the Suffering Servant passage as the song of a servant who was oppressed but saved, and who did not suffer death.79 A comparison of the New English Bible with older translationss8 is instructive. The Servant is certainly threatened with death, but in the event the Lord

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"healed him who had made himself a sacrifice for sin; so shall he enjoy long life and see his children's children" (Isaiah 53:10). Indeed, Lane himself comments that "Judaism was totally unprepared for a suffering and crucified Messiah."8l However, the theme of the threatened servant, who is prepared to sacrifice himself, was well- known in Judaism: as in the story of Isaac. The Suffering Servant certainly contributes to the literary construction of the Passion, but its contribution is theological (vicarious atonement) rather than narrative (trial, death, and resurrection). We may outline the following combination of major themes which contribute to the Passion: (1) A narrative of an obedient servant saved by God (Isaac); (2) A narrative of a prophet threatened in a trial but (again) saved (Jeremiah);82 (3) A liturgical song of an oppressed servant who suffers physical oppression to atone for the guilt of others, but is saved by God and healed (Isaiah). The first two of these are narrative sources, the third poetic. I suggest that this is significant in terms of the types and history of "prophetic fulfillment." Consider the following analysis of Matthew's story of the thirty pieces of silver, which the chief priests offer Judas to betray Jesus:83

Matthew invented this sum of money, but for him invention almost always follows a set form. His view of what might have happened is under the control of his respect for the Old Testament repertoire of Messianic prophecies and figures; so he finds his thirty pieces of silver in Zechariah (11:12): "They weighed for my price 30 pieces of silver." There is no evident consonance between the context of this- passage in Zechariah and Matthew's new use of it. And although this silver sounds a plausible price - in the ordinary way passes the test of narrative plausibility - it is important to see that it belongs, in a sense, to another plot altogether, a plot founded on occult connections between the new narrative and many old ones, a plot not at all dependent on sequentiality or plausibility. There may be a constellation of texts, of which the new one is the essential illuminant, that which confers an ultimate, unsuspected meaning. But since this is a narrative, such consonances have to be inserted into the syntagmatic flow.

Kermode argues that it is because of this lack of "syntagmatic flow" that "Matthew finds himself embarked upon a sub-plot;"84

He remembers two texts in Jeremiah: in the first the

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prophet buys a flask at the potter's house and breaks it at the burial ground, as a sign that the kings have filled Jerusalem with innocent blood; in the second he buys a field for 17 shekels of silver; Matthew's Judas confesses that he has betrayed the blood of the innocent, and casts his silver into the Temple (this is from Zachariah's "I cast them into the Lord's house"). Since such money could not be received in the Temple, the chief priests use it to purchase the potter's field to bury strangers in.

Matthew proceeds to build his "sub-plot" on these texts, and leads up to an explicit "fulfillment citation" at Matthew 27:9-10. The importance of this analysis resides in the fact that the fulfillment citation (to a narrative incident in Jeremiah) is made at Kermode's level of sub-plot; the mere literary allusion, to Zechariah's 30 shekels, with its lack of narrative analogy, was not regarded as sufficient to justify a fulfillment citation.

In fact, we need not rely upon a literary analogy for the source of the vicarious atonement theme within the Passion narrative. Von Rad sees the Servant himself as embodying the prophet-like- Moses tradition. For Moses himself not only mediates the Law but also, as Von Rad points out, "suffers... and at the last dies vicariously for the sins of his people."85 There is an element of christological reading-back here too. Nevertheless, the Moses narrative does contain some elements which may have contributed not only to the Servant Song but also to the account of the Passion. Moses tells the people that it is "because of you" (lema'anhem) that God had refused him entry to the promised (Deuteronomy 3:2; cf., 4:21), which perhaps suggests vicarious guilt86 if not necessarily vicarious atonement; he stresses the forty days and nights he spent without food or water in interceding for the Israelites (Deuteronomy 9:18; cf, v.25); but the account of Moses's passing (Deuteronomy 34) is narrated entirely without theological overtones.

But even if the narratives concerning Moses are taken into account within the construction of the Passion narratives, we still lack a basis for the judicial process which forms so prominent a part of the gospel stories.

C. The Trial of Jesus and the Trial of Jeremiah

The trial of Jeremiah supplies that basis.87 It provides a model for an entire narrative segment of the Passion narrative, rather than a source of literary allusion for some individual elements, phrases, etc.

This is the account of Jeremiah's trial, according to the translation of the Revised Standard Version. I have divided it into

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segments, for ease of analysis. A: (26:1) In the beginning of the reign of Jehoi'akim the son

of Josi'ah, king of Judah, this word came from the Lord, (2) "Thus says the Lord: Stand in the court of the Lord's house, and speak to all the cities of Judah which come to worship in the house of the Lord all the words that I command you to speak to them; do not hold back a word.

B: (3) It may be they will listen, and every one turn from his evil way, that I may repent of the evil which I intend to do to them because of their evil doings.

C: (4) You shall say to them, 'Thus says the Lord: "If you will not listen to me, to walk in my law which I have set before you, (5) and to heed the words of my servants the prophets whom I send to you urgently, though you have not heeded, (6) then I will make this house like Shiloh, and I will make this city a curse for all the nations of the earth."' (7) The priests and the prophets and all the people heard Jeremiah speaking these words in the house of the Lord.

D: (8) And when Jeremiah had finished speaking all that the Lord had commanded him to speak to all the people, then the priests and the prophets and all the people laid hold of him, saying, "You shall die! (9) Why have you prophesied in the name of the Lord, saying, 'This house shall be like Shiloh, and this city shall be desolate, without inhabitant?' "

E: And all the people gathered about Jeremiah in the house of the Lord.

F: (10) When the princes of Judah heard these things, they came up from the king's house to the house of the Lord and took their seat in the entry of the New Gate of the house of the Lord.

G: (11) Then the priests and the prophets said to the princes and to all the people, "This man deserves the sentence of death, because he has prophesied against this city, as you have heard with your own ears."

H: (12) Then Jeremiah spoke to all the princes and all the people, saying, "The Lord sent me to prophesy against this house and this city all the words you have heard. (13) Now therefore amend your ways and your doings, and obey the voice of the Lord your God, and the Lord will repent of the

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evil which he has pronounced against you. (14) But as for me, behold, I am in your hands. Do with me as seems good and right to you. (15) Only know for certain that if you put me to death, you will bring innocent blood upon yourselves and upon this city and its inhabitants, for in truth the Lord sent me to you to speak all these words in your ears."

I: (16) Then the princes and all the people said to the priests and the prophets, "This man does not deserve the sentence of death, for he has spoken to us in the name of the Lord our God."

J: (17) And certain of the elders of the land arose and spoke to all the assembled people, saying, (18) "Micah of Mo'resheth prophesied in the days of Hezeki'ah king of Judah, and said to all the people of Judah: 'Thus says the Lord of hosts, Zion shall be plowed as a field; Jerusalem shall become a heap of ruins, and the mountain of the house a wooded height.' (19) Did Hezeki'ah king of Judah and all Judah put him to death? Did he not fear the Lord and entreat the favor of the Lord, and did not the Lord repent of the evil which he had pronounced against them? But we are about to bring great evil upon ourselves."

K: (20) There was another man who prophesied in the name of the Lord, Uri'ah the son of Shemai'ah from Kir'iath- je'arim. He prophesied against this city and against this land in words like those of Jeremiah. (21) And when King Jehoi'akim, with-all his warriors and all the princes, heard his words, the king sought to put him to death; but when Uri'ah heard of it, he was afraid and fled and escaped to Egypt. (22) Then King Jehoi'akim sent to Egypt certain men, Elna'than the son of Achbor and others with him,

L: (23) and they fetched Uri'ah from Egypt and brought him to King Jehoi'akim, who slew him with the sword and cast his dead body into the burial place of the common people.

M: (24) But the hand of Ahi'kam the son of Shaphan was with Jeremiah so that he was not given over to the people to be put to death.

Most of the above segments find significant reflections in the gospel accounts of the trial of Jesus.88 Thus:

a: Jeremiah, like Jesus, preaches in the court of the Temple;89

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b: He does so following a divine mission, but with no guarantee of success;90

c: He prophesies the destruction of the temple;91

d: There is priestly involvement in arresting92 and charging93 the prophet alleged to be prophesying falsely;

e: There is some form of hearing in the Temple itself (i.e. within priestly jurisdiction);94

f: The secular authority then convenes a court;95

g: The priests take the lead in framing the accusation before the secular authority;96

h: The accused prophet defends himself, reasserting the

genuineness of his mission;

i: The secular rulers tell the priests that they have decided to exonerate the prophet;97

j: A parallel is cited from the prophetic mission of Micah;

k: Comparison is made with the fate of another accused;98

1: The latter suffers execution by the secular authority;99

m: Jeremiah escapes this fate, but stress is placed upon the potential role of the people as responsible for the life-or- death decision.'00

Whether Jeremiah is presented as coming like a prophet-like-Moses is not clear; certainly, he comes to command obedience to God's (existing) law, and obedience to God's prophets, on pain of divine punishment, is explicitly enjoined (A-C). It is in D-I that the most striking parallels occur. For we find here, in the trial of Jeremiah, the same antithetical roles of priestly and secular authority as in the case of Jesus. Indeed, the story of Jeremiah suggests sources for what historians regard as two of the most perplexing features of the trial of Jesus, namely the dual procedure (E-F), and the privilegium paschale. Jeremiah's fate, in escaping condemnation, is compared to that of another accused prophet, who was not so fortunate, just as the fate of Jesus comes to be compared with (indeed, bound up with) that of Barab'bas.

There is, of course, one difference between the trial of Jeremiah and that of Jesus. It is clear that the charge against Jeremiah was indeed false prophecy, that he claimed falsely to be speaking in the name of God. The explicit claims of the gospels are that the

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charge against Jesus was blasphemy. We have, however, seen that the gospels themselves do contain hints of a charge of false prophecy, and in narrative terms, a charge of false prophecy makes a great deal of sense. Such a charge would give a far greater narrative coherence to the gospels as a whole: Jesus, who in his ministry was seen to exemplify the prophet-like-Moses (and who explicitly referred to the suspensory power in defending his authorization of Sabbath gleaning), is charged with having crossed that boundary with false prophecy to which the Deuteronomic text is so sensitive. But such a narrative would not, as Brandon has pointed out,101 be coherent with the fact of crucifixion.102 A possible explanation for the choice of "blasphemy" is offered below.103

D. Moses, Jeremiah, Jesus: a Living Tradition

The relations between the three figures of Moses, Jeremiah, and Jesus may be summarized in terms of family resemblance. There is a set of characteristics: each figure partakes of a considerable number of them, though not of all. Thus, Moses performs miracles in proof of his authority, he is regarded as a prophet, he achieves the liberation of the Israelites from Egypt, he gives the law, he breaks the first set of tablets and has to obtain another. Jeremiah is also a prophet, he is associated with the writing of divine revelation in the form of a book,'04 his first scroll is destroyed and has to be

rewritten;105 he offers authoritative reformulations of the law, he even offers a "New Covenant," he preaches in the Temple against the very institution of the Temple106 and in language evocative of the authority of a prophet-like-Moses,107 and he is put on trial. Indeed, it has been

suggested that Jeremiah may have consciously seen himself as the referent of the (then, perhaps, recently discovered) text of Deuteronomy 18:15.108 Jesus performs miracles, he preaches in the

Temple against at least some of the institutions of the Temple, he is seen by some as a liberation leader against the Romans, he proclaims authoritative new versions of the law, he suspends the law on particular occasions (in line with the rabbinic understanding of the authority of the prophet-like-Moses), he is accused in some accounts of false prophecy, he is put on trial.

Many details could be added: the infant escape of both Moses and Jesus from genocidal decrees, the miraculous feeding of the

people by both Moses (the procurement of the manna) and Jesus,o09 the reluctance of Jesus as compared to that of Moses, the opposition to both Jesus and Jeremiah from members of their own families,110 the

walking on the water as compared with the parting of the Red Sea, the

suffering of Jesus compared with the denial of access to the Promised Land to Moses. But we should have some methodological criterion of

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the significance of such parallels, some dividing line - as suggested above - between what might reasonably have been intended to be communicated to whom. On this basis, it is perhaps important to distinguish the main narrative line from, on the one hand, narrative details, and on the other, theological interpretations of those narrative details. The synoptic gospels, at least, are not predominantly written in theological or even sermonic language. They evoke, in their style, the narratives of Genesis rather than the prophets or wisdom literature. Yet undoubtedly, some audiences would have existed who would have "read" the narratives in terms of a more sophisticated theological interpretation, for whom, no doubt, vicarious suffering and vicarious atonement would be more important than the details of who did what. And even to those for whom a straight narrative line was the most important factor, there is no such thing as fact or history without implications. To even the simplest Christian audience of the narrative line, the story is being told of the Lord Jesus, the Messiah, the Christ. That he should have perished in circumstances of such shame and disgrace required, above all, explanation and justification. There could be no language of explanation and justification other than that of the religious tradition itself.

Nor is that religious tradition silent on the cycle of identification here suggested. In Matthew 16:13, we find an historical claim that Jesus was identified by some with Jeremiah:

Now when Jesus came into the district of Caesare'a Philip'pi, he asked his disciples, "Who do men say that the Son of man is?" (16:14) And they said, "Some say John the Baptist, others say Eli'jah, and others Jeremiah or one of the prophets."

We have seen that Elijah was explicitly identified with the prophet- like-Moses tradition by the rabbis.

In Acts 7, we have an account of Stephen's defense in his trial. In it, he provides an account of Biblical history designed to show how it leads coherently to Christianity. His account of Moses selects from the law the prophecy of a future prophet-like-Moses (as well as stressing other narrative details where parallels could be drawn):

This Moses whom they refused, saying, 'Who made you a ruler and a judge?' God sent as both ruler and deliverer by the hand of the angel that appeared to him in the bush. (7:36) He led them out, having performed wonders and signs in Egypt and at the Red Sea, and in the wilderness for forty years. (7:37) This is the Moses who said to the Israelites, 'God will raise up for you a prophet from your brethren as

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he raised me up.' (7:38) This is he who was in the congregation in the wilderness with the angel who spoke to him at Mount Sinai, and with our fathers; and he received living oracles to give to us. (7:39) Our fathers refused to obey him, but thrust him aside, and in their hearts they turned to Egypt, (7:40) saying to Aaron, 'Make for us gods to go before us; as for this Moses who led us out from the land of Egypt, we do not know what has become of him.' (7:41) And they made a calf in those days, and offered a sacrifice to the idol and rejoiced in the works of their hands. (7:42) But God turned and gave them over to worship the host of heaven, as it is written in the book of the prophets.

Elsewhere, too, Acts stresses the parallel with the prophet- like-Moses tradition. Peter proclaims:

...and now, brethren, I know that you acted in ignorance, as did also your rulers. (3:17) But what God foretold by the mouth of all the prophets, that his Christ should suffer, he thus fulfilled (18) ... Moses said, "the Lord God will raise up for you a prophet from your brethren as he raised me up. You shall listen to him in whatever he tells you. And it shall be that every soul that does not listen to that prophet shall be destroyed from the people." (23- 24) ...And all the prophets who have spoken, from Samuel and those who came afterwards, also proclaimed these days.

What is noticeable about this version is not only the selection made from Deuteronomy 18, one which not only explicitly identifies Jesus with the prophet-like-Moses who will be sent in later days, but also the stress on his authority. That these two claims should be linked, with this emphasis, lends great credence to the view that there was a real authority dispute regarding Jesus even during his lifetime.

The Slavonic Josephus,111 too, provides an account of popular views regarding the status of Jesus: "Some said of him 'our first lawgiver is risen from the dead and hath performed many healings and arts,' while others thought that he was sent from God..."

E. History and Literature

I do not suggest that the whole New Testament account of the life and death of Jesus was a literary fiction, invented from nothing other than reflection upon Old Testament narratives. We do have

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some external sources, which may aid us in reconstructing an historical baseline. Notable is the statement of the Roman historian Tacitus, Annals 15.44,112 in describing the persecution of the Christians at Rome under Nero, that:

Auctor nominis eius Christus Tiberio imperitante per procuratorem Pontium Pilatum supplicio adfectus erat ("Christus, the founder of the name, had undergone the death penalty in the reign of Tiberius, by sentence of the procurator Pontius Pilatus").

The Antiquities of Josephus (XVIII.63-64) contains a passage about Jesus, the so-called testimonium flavianum, which at least attests the historicity of Jesus, even if its christological claims may be attributed to other hands.113 Then there is a remarkable passage in the Slavonic version of Josephus' Jewish War'14 which, though in some respects clearly influenced by Christian accounts,"s provides a sophisticated political account of the respective motivations of the parties:11"6

And many of the multitude followed after him and hearkened to his teaching; and many souls were in commotion, thinking that thereby the Jewish tribes might free themselves from Roman hands... And there assembled unto him of ministers one hundred and fifty, and a multitude of the people. Now... when they had made known to him their will, that he should enter the city and cut down the Roman troops and Pilate... he disdained us not [variant: but he heeded not]. And when thereafter knowledge of it came to the Jewish leaders, they assembled together with the high-priest and spake: "We are powerless and (too) weak to withstand the Romans. Seeing, moreover, that the bow is bent, we will go and communicate to Pilate what we have heard, and we shall be clear of trouble, lest he hear (it) from others, and we be robbed of our substance and ourselves slaughtered and our children scattered." And they went and communicated (it) to Pilate. And he sent and had many of the multitude slain. And he had that Wonder-Worker brought up, and after instituting an inquiry concerning him, he pronounced judgement.

Jesus was incited by others to lead a rebellion, the priesthood heard of it, feared it would fail with dire consequences to both the people and

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themselves, and decided to denounce Jesus to Pilate before the insurrection could begin, in order to avoid worse consequences.

And finally there are the controversial talmudic passages, some of which were censored since the Basle edition in the 16th century, not all of which may refer to Jesus,"7 but of which at least one, that in Sanhedrin 43a, probably does.118

These sources, taken together and with what is common to the gospel accounts, seem to me to establish the following: (1) There was an historical Jesus. (2) He had a considerable popular following amongst the Jews, who interpreted him in various theological ways, including the use of the "prophet-like-Moses" model. (3) He was in opposition to the Jewish establishment (especially the Temple priesthood) and was so perceived. (4) He was seen as a potential threat to stability by the Romans. (5) He was executed by the Romans.

But then, after Jesus' death, the story had first to be understood and then told. The details could not be superfluous or arbitrary: that was not the mode of sacred texts. The details, including the two-stage trial, were taken from the Old Testament. We cannot, of course, exclude the possibility that there was an inquiry, or trial, of some kind, but we have no reliable evidence of it. What we do have is evidence of how the events (whatever they were) were understood and communicated. It was in such a way as to stress their theological significance.

The blasphemy charge, in particular, highlights the opportu- nities for combining historical and narrative accounts. On the one hand, the traditional Jewish (or at least Biblical) understanding of blasphemy as an offense against God and the king may have been evoked, in its bipolarity, by the combined offense which Jesus apparently gave to the high priesthood on the one hand, and the Roman administration on the other. True enough, the purported dialogue in the Synoptics of the interviews with the high priesthood, in the context of which the blasphemy charge was pronounced, does not suggest "cursing" either God or the king, even if the parallel accusation of setting oneself up as a "King of the Jews" (what according to the Slavonic Josephus Jesus was certainly encouraged by some of his contemporaries to do) could be construed as a "cursing" of the secular authority. Yet even without importing into the narrative of the trial of Jesus the literal particularities of the Old Testament conception of blasphemy, it does seem that the choice of blasphemy may have been informed not just by historical events but by connotations of the blasphemy offense, as indicated elsewhere in Biblical literature. For there are three Biblical narratives in which blasphemy is evoked, and it is possible to read connotations of all of them [with, perhaps, differing degree of conviction] into the choice

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made by the synoptic writers at this particular point in the narrative. By far the most significant of the three, for present purposes,

is the accusation made by Jezebel against Naboth (I Kings 21). Here, Naboth is entirely innocent; all he seeks to do is to preserve his "vineyard," "the inheritance of my fathers," against the King Ahab's intimidatory offer to buy it. The accusation of Naboth stands as a paradigm case of false accusation, as is shown also by the manner and place of its citation in Sanhedrin 29a;11"9 it is pitched in terms directly evoking Exodus 22:28: "Naboth cursed God and the King." Whether there is more to the parallel than this - as might be argued, perhaps, from the presence in the Old Testament narrative of the "vineyard" theme [cf., Isaiah 5:1-7] - we need not here investigate. Suffice it to say that the theme of the Jewish establishment falsely accusing, and procuring120 the death of, a wholly innocent citizen, who sought only to preserve the inheritance of his fathers, is well established, and that in that theme blasphemy was the charge actually used. And there may be more. In the Talmud, Naboth's death is not the end of his story: he lives on in spirit form, and is able to participate in the ultimate divine judgment on Ahab, and indeed in other revelations and mani- festations.121

The same pattern of procuring witnesses to a false accusation is found in the trial of Stephen in Acts:122

Then some of those who belonged to the synagogue of the Freedmen (as it was called), and of the Cyre'nians, and of the Alexandrians, and of those from Cili'cia and Asia, arose and disputed with Stephen. But they could not withstand the wisdom and the Spirit with which he spoke. Then they secretly instigated men, who said, "We have heard him speak blasphemous words against Moses and God." And they stirred up the people and the elders and the scribes, and they came upon him and seized him and brought him before the council, and set up false witnesses who said, "This man never ceases to speak words against this holy place and the law; for we have heard him say that this Jesus of Nazareth will destroy this place, and will change the customs which Moses delivered to us."

A second narrative, that of the "blasphemer" in Leviticus 24, might also contribute to the connotations, though here I believe any literary connection is remote, a matter more of connotations possibly to be read in by an audience than those sought to be conveyed by the authors themselves. During the wandering in the wilderness, a quarrel

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arose between "a man of Israel" and "an Israelite woman's son, whose father was an Egyptian." The two quarreled, perhaps fought, and the latter "blasphemed the Name, and cursed." The issue is presented as an unclear one: "They put him in custody, until the will of the Lord should be declared to them." Moses consults God, who pronounces a verdict of death by stoning, and requires Moses to enact such a law for the future. Why the matter required oracular decision is not made clear: the recital of the pedigree of the defendant may well be relevant. In wider narrative terms, however, the point of the story will be understood as signifying the particular role of direct divine decision in a charge of blasphemy, so that the choice of this charge by the Synoptic writers may be taken to add further critical point to the criticisms at the high priesthood for handing Jesus over to Pilate.

There is also a third narrative relating to blasphemy. Describing the fright of the people in the wake of the activity by Tiglath-Pileser in disciplining Samaria and Damascus after the Syro-Ephraimatic War,123 he paints a narrative image of a people, who "will pass through the land greatly distressed and hungry; and when they are hungry they will be enraged and will curse their king and their God, and turn their faces upward..." [Isaiah 8:21]. The vision is evocative of the murmurings of the people against Moses during the period of the wilderness (perhaps an evocation also of the context of the blasphemer law of Leviticus 24), and it is clear that the "cursing" is vain, desperate, uninformed. This is not, as in the case of Naboth, a false accusation that someone blasphemed, but rather a prophecy that people will blaspheme for no reason. As in the case of the blasphemer in the desert, there is no prior reason for the offense, it arose in the heat of the moment, in the heat of the desert.

When taken together, this literary corpus, when viewed in its syntagmatic relations within the Old Testament, presents a kind of transformation: from a case where someone is truly accused of having factually blasphemed, and justifiably suffers death, though at the hands of divine decision (Leviticus 24); to a case of a knowingly false accusation of blasphemy, which results in death, brought about by the agencies of the secular authority and its judicial system (Naboth); to a fevered pronunciation of blasphemy, or the prophecy thereof, by people who know no better (Isaiah). Is it too far-fetched to see in the gospel accounts a further element in this line, one in which, though the primary connotation is that of the Naboth story - the execution of an innocent upon a false charge of blasphemy, there is also a connotation now attached to the accusers themselves, one comparable to that of Isaiah's prophecy regarding the actions of a people, oppressed and frightened by the prospect of outside intervention, who, in their own panic, blaspheme by [from the viewpoint of the

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New Testament writers] the action which they take.

VII. On Prophecy and Analogy'24

My argument raises questions about the nature of prophecy in the Judaeo-Christian tradition, and particularly about the notion of fulfillment of prophecy which is so central to both Judaism and

Christianity. There is a tendency in secular discourse to regard the

prophetic function as something magical, something primitive, something which we cannot quite take at face value: the prophet writes or preaches a prediction that a certain event will happen in the future; in the future that event quite unselfconsciously occurs; and then the prophecy is taken to have been fulfilled. I do not believe that this was the way fulfillment of prophecy was conceived to work. Rather, it was open to a member of the community, having read or heard a prophecy from an earlier era, to set about carrying it out deliberately to imitate what has been written earlier on and then to claim fulfillment of the prophecy. This was not conceived to be cheating, since God would only permit such actions to be done and to be recognised as a fulfillment if he really did intend the prophecy to be fulfilled in that way.

There is, therefore, no embarrassment in the claim of the

gospels that Jesus performed certain actions (such as authorizing the

taking of the foal section IV.C, supra) "in order that the prophecy of ... should be fulfilled." Perhaps it was this very phenomenon which

prompted what I see as a development from fulfillment of prophecies at the level of narrative structure to fulfillment of literary analogies, which call for more detailed knowledge of the sources, and which, as we find them in the gospels, can rest upon allusion to a combination of earlier sources.125

Prophetic fulfillment, as here described, rests upon particular conceptions of the nature of the language of revelation, and of the use of analogy in ascertaining, indeed constructing, its meaning. Prophecy therefore must take its place as part of a wider account of the development of Jewish epistemology.126 Within such a wider enterprise, a developmental view of the forms of analogy may contribute to our understanding of the process which led to the complex of prophetic claims which characterize the gospels. The distinction between narrative and literary analogy may be understood within such a developmental account.

*Parts I-V of this paper were delivered as the Dorfler Memorial Lecture of the Leo Baeck College, January 1989, and as the Louis Caplan Memorial Lecture (Council of Christians and Jews and the Merseyside Jewish Representative Council), Liverpool, November 1989.

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A more technical version of sections II-V has appeared in French "J6sus et Moise: le Statut du Prophete I l'agard de la Loi," Revue historique de droit franqais et etranger 59 (1981), 341-360 and - more briefly in Italian - Atti del Secondo Congresso, F. Parente and D. Piattelli eds. (Rome: Carucci, 1983), 95-100 (Associazione italiana per lo Studio del Giudaismo, Testi e Studi 1). Versions of section 6 have been presented as a staff-student seminar at Lancaster University, January 1991, and at the J. Reuben Clark Law School of Brigham Young University (February 1992), the Jewish Studies Program of the University of Virginia (March 1992), the Conference on Law and Rhetoric, Cardozo Law School (March 23rd 1992), The University of Judaism (April 1992), the University of California at Los Angeles (April 1992), the University of Wisconsin Law School (April 1992) and the Sixth Round Table on Law and Semiotics (May 1992). Several colleagues have commented most helpfully on earlier drafts. I wish to thank, in particular, Jack Welch (BYU), Suzanne Last Stone and Arthur Jacobson (Cardozo), Scott Bartchy (UCLA), and Richard Jacobson (Wisconsin).

1. See Bernard S. Jackson, "Legalism," 30 Journal of Jewish Studies 1 (1979).

2. Cf., Exodus 4:17, 10:1-2 for the use of ot by Moses in seeking to persuade Pharaoh to release the Israelites.

3. Cf, the tests stressed in Deuteronomy in distinguishing between true and false prophets (section II.D, infra).

4. Joseph Blenkinsopp, Wisdom and Law in the Old Testament (Oxford: Oxford University Press, 1983), p. 96, suggests that the scroll found in the time of Josiah may itself have been a "plant." On the uses of the sefer, see Bernard S. Jackson, "Ideas of Law and Legal Administration:

a. Semiotic Approach," The World of Ancient Israel:

Sociological, Anthropological and Political Perspectives, R.E. Clements, ed. (Cambridge: Cambridge University Press, 1989), pp. 192-196.

5. This might appear to make too strong an historical claim as to the availability of the Exodus formulation to Jeremiah. This is not the place to defend such a claim. Suffice it to say that the discrepancy must have been available either to the redactor of Jeremiah or at least to the final redactors of the Pentateuch, and in either event was allowed to stand.

6. On repetition in the Old Testament, see Robert Alter, The Art of Biblical Narrative (London: George Allen and Unwin, 1981), ch. 5 ("The Techniques of Repetition").

7. The Babylonian Talmud, Sanhedrin 89a, attributed to Jehoshaphat, in debate with Ahab.

8. A phrase to which later the rabbinic understanding of the institution was exegetically attached - section V.C infra.

9. The Babylonian Talmud, Sanhedrin 89b; see furtherJackson, "J6sus," supra note * at 352 n. 51.

10. Abraham is called a navi in Genesis 20:7.

11. 1 Kings 20:35-36. This, of the three examples, is the only one where the command of the prophet was disobeyed; the threatened divine punishment (here, attack by a lion) duly occurs.

12. See section V.C infra.

13. On the relationship between otot and fulfillment of a davar, in the Old Testament and later sources, see furtherJackson, "J6sus," supra note * at 347-349.

14. Id, at 349 n.40.

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15. See further Suzanne Last Stone, "The Transformation of Prophecy," 4 Cardozo Studies in Law and Literature 167 (1992).

16. The 1QS 9:11; see furtherJackson, "J6sus," supra note * at 349 n.42.

17. F.F. Bruce, Biblical Exegesis in the Qumran Texts (London: The Tyndale Press, 1960), p. 49; Geza Vermes, The Dead Sea Scrolls (London: Collins, 1977), p. 185. 18. Geza Vermes, Jesus the Jew. A Historian's Reading of the Gospels (London: Collins 1973), p. 87ff.; see further, Jackson, "J6sus," supra note *.

19. Other translations: "fulfill," (Greek: pleroun); see furtherJackson, "Legalism," supra note 1 at 3f.

20. David Daube, The New Testament and Rabbinic Judaism (London: Athlone Press, 1956, rep. New York: Arno, 1973), pp. 55-62.

21. Id., at 58.

22. Id., at 60.

23. Deuteronomy 13:1, Masoretic Text; see section II.D, supra.

24. 1QS 11:13ff., 16ff.; see Lawrence H. Schiffman, The Halakhah at Qumran (Leiden: E.J. Brill, 1975), pp. 121-128. Rabbinic law would regard desecration of the Sabbath in the latter case as justified, in order to save life (pikuah nefesh). The incident concerning Jesus, however, is not one involving any immediate threat to life.

25. The hunger of David's men occurs in all three versions, even though it is only in Matthew that the parallel with the hunger of the disciples is stressed. If the justification rested solely in the general authority of Jesus, as might appear from the claim that "the Son of Man is sovereign over the Sabbath" (Matthew 12:8, Mark 2:28, Luke 6:5), there would be no need for the stress on this special circumstance. In fact, there are clear indications in all three synoptics that the sovereignty claim was not part of the original story. In Matthew and Mark it forms the conclusion to further (and different) arguments; in both Mark and Luke it is introduced by: "he also said to them" (kai elegen autois).

26. Zechariah 9:9.

27. Mark 11:1-7, clearly an artificial elaboration: there is no indication that the "bystanders" (tines ton ekei hestekoton, v.5) were the owners of the animal.

28. A further example: the use by Jesus of the oil given him by the woman at Bethany (Matthew 26:6-13, Mark 14:3-9, Luke 7:36-50, John 12:1-8); in Luke, the incident arises in the context of a challenge to Jesus' prophetic status; see furtherJackson, "J6sus," supra note * at 354.

29. Not to justify it expost facto; though we encounter that, exceptionally, in the story of the woman taken in adultery, which occurs only in a pericope attached to the Gospel of John (7:53ff.). The prophet, generally speaking, does not function as a judge in the Bible. We do have occasions when prophets intervene in individual cases of dispute, most notably cases where they remind the king of the moral authority of the law that the king runs the risk of overriding, like that of the prophet Nathan in relation to David. However, for John, the authority of Jesus is conceived primarily as that of a king-messiah, including judicial authority (5:22, ten krisin pasan dedoken t5 hui5). The incorporation of the woman taken in adultery pericope in John, and its exclusion from the synoptics, is therefore coherent with the approaches of both.

30. It was thus very much in the interests of the early Church, reflected particularly in the Pauline sources, to stress this form of authority. See particularly Vermes, Gospels, supra note 18 for this theme.

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31. 1:21, 6:14-15, 7:37-40; seeJackson, "J'sus," supra note* at 348, 356.

32. See Ephraim E. Urbach, "Matai piskah hanevu'ah," 18 Tarbiz 1 (1947), on the dating and significance of these traditions; see furtherJackson, "J6sus," supra note * at 357 n.72. See further section V.D, infra.

33. Even "fulfill," in the sense Daube attributes to pleroun in the Sermon on the Mount: supra note 20.

34. There is an implication here that the opinion of R. Shimon is a minority view, and that the majority regard this, too, as a case of false prophecy. It is tempting, though speculative, to see here an allusion to the Christian position.

35. See Maimonides, Hilkhot Yesode Hatorah 9:1, who expresses the rule (and extends it to heretical interpretation) in the terminology of the Biblical texts: im ya'amod ish veya'aseh ot o mofes veyomar shehashem shalhu lehosif o ligra mitsvah o lefaresh bemitsvah shelo shamanu mimoshe, hare zeh navi sheker.

36. Afilu omer lekha the same type of formulation, implying direct speech from the prophet to those he commands, as in the dictum of R. Johanan.

37. Where he offered a sacrifice on an improvised altar - 1 Kings 18:31ff. - despite the prohibition against offering sacrifices outside the temple.

38. For a summary of rabbinic attitudes towards the relationship between prophecy and law, see Stone, supra note 15 at sections III and IV.

39. Supra, text at notes 36-37.

40. Cf., Menachem Elon, Hamishpat Ha'Ivri (Jerusalem: Magnes Press, 1978), p. 1.426.

41. Rashi ad Deuteronomy 18:21.

42. Sifra ad Leviticus 27:34, Behukotai 13:7. See also Stone, supra note 15, section IV at 172, on Deuteronomy Rabbah 8:6.

43. Mishnah Commentary, Preface.

44. A traditional response I have encountered to this point is to say that Maimonides contemplates only prophets who are also recognized as halakhic experts.

45. The Babylonian Talmud, Baba Metsia 59b; see also Bernard S. Jackson, "The Concept of Religious Law in Judaism," Aufstieg und Niedergang der rojmischen Welt (Berlin: W. de Gruyter, 1979), Bd. 11.19.1, p. 46.

46. Essays in Jewish and Comparative Legal History (Leiden: E. J. Brill, 1975), ch. VII.

47. H. Ben-Menahem, Judicial Deviation in Talmudic Law (Chur etc.: Harwood Academic Publishers, 1991), ch.4.

48. See further Stone, supra note 15 at section IV at 175ff. and her insightful analysis of Sifre Deuteronomy 41, and its relationship to the chain of tradition in Mishnah Avot 1:1.

49. See especially Paul Winter, On the Trial of Jesus (Berlin: Walter de Gruyter, 1961; 2d revd. ed. by T.A. Burkill and G. Vermes, 1974); S.G.F. Brandon, The Trial of Jesus of Nazareth (London: Batsford, 1968; Paladin, 1971); Haim H. Cohn, "Reflections on the Trial and Death of Jesus," 2 Israel Law Review 332 (1967); id., The Trial and Death of Jesus (New York: Harper & Row, 1971); J. Duncan M. Derrett, Law in the New Testament (London: Darton, Longman and Todd, 1970), ch.17.

50. Still important is the study of E. Bickermann, "Utilitas Crucis: Observations sur les r6cits du proc!s de JYsus dans les Evangiles canoniques," 112 Revue de l'Histoire des Religions 169 (1935).

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51. Mark 14:43: "And immediately, while he was still speaking, Judas came, one of the twelve, and with him a crowd with swords and clubs, from the chief priests and the scribes and the elders"; Matthew 26:47: "While he was still speaking, Judas came, one of the twelve, and with him a great crowd with swords and clubs, from the chief priests and the elders of the people"; Luke 22:47: "While he was still speaking, there came a crowd, and the man called Judas, one of the twelve, was leading them... (52) Then Jesus said to the chief priests and officers of the temple and elders..."

52. John 18:12: "So the band of soldiers (speira) and their captain (chiliarchos) and the officers of the Jews seized Jesus and bound him." Cf, Winter, supra note 49 at ch.5, noting that it is particularly remarkable that John has Jesus arrested by Roman military personnel, given the decidedly Jewish feelings shown by John throughout. Indeed, John places the burden of responsibility for the death of Jesus on the shoulders of the Jews and exonerates the Governor completely. All the more striking, argues Winter, that he seems to preserve what may be an early and authentic tradition of the arrest by Roman troops. See also Winter on the relationship between John 18:12 and John 18:3: "So Judas, procuring a band of soldiers (speiran) and some officers from the chief priests and the Pharisees, went there with lanterns and torches and weapons," the latter perhaps seeking to conflate the two traditions.

53. Cf., J. Jeremias, The Eucharistic Words of Jesus (London: SCM Press, 1961), p. 79, arguing also that execution for this crime was required to be carried out at a feast "before all the people."

54. Alfred R.C. Leaney, A Commentary on The Gospel according to St. Luke (London: Adam and Charles Black, 2d ed., 1966), p. 274, comments that Luke's account "seems like a correction of the unlikely procedure in Mark of holding an inquiry in the middle of the night and another meeting in the early morning"; cf, Frank Kermode, The Genesis of Secrecy On the Interpretation of Narrative (Cambridge: Harvard University Press, 1979), p. 96f.

55. The arrest is made "with lanterns and torches" (18:3).

56. 18:28: "Then they led Jesus from the house of Caiaphas to the praetorium. It was early."

57. There is no need, in my view, to resolve this issue in historical terms. If the Jews had capital jurisdiction, it does not follow necessarily that they exercised it, or exercised it independently of Pilate's imprimatur. If they did not have it, it remains possible that they proceeded nonetheless - a possibility suggested by Josephus' account of the trial and execution of James, Antiquities XX.200: "Ananus thought that he had a favorable opportunity because Festus was dead and Albinus was still on the way. And so he convened the judges of the Sanhedrin and brought before them a man named James, the brother of Jesus who was called the Christ, and certain others. He accused them of having transgressed the law and delivered them up to be stoned" (Feldman's translation, Loeb edition) despite the claim of Josephus (at 202; see further Emil Schirer, The History of the Jewish People in the Age of Jesus Christ, revised ed. by G. Vermes and F. Millar (Edinburgh: T. & T. Clark, 1973), 11.222-223) that the Sanhedrin was not allowed to meet without the consent of the governor. We are not told here the nature of the charge, but the penalty is stoning (not hanging or crucifixion). Against the authenticity of this passage, see T. Rajak, Josephus (London: Duckworth, 1983), p. 131 n.73. For a detailed review from the Roman sources, see Schurer, 11.219-20 n.80.

58. In context, this is a denial of capital jurisdiction, and not merely of the power to execute a capital sentence without the consent of the Roman authority, since it appears as a response to Pilate's invitation: "Take him yourselves and judge him by your own law."

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59. Cf., David Flusser, "Jesus," Encyclopedia Judaica (Jerusalem: Keter, 1973), X.12. Winter, supra note 49 at 41, argues against the view that this is due to Luke's carelessness in copying Mark, noting that the author of Luke-Acts allows Paul to say in Acts 13:27-28: "The inhabitants of Jerusalem and their rulers..,. finding no cause of death [in Jesus], asked Pilate that he should be killed."

60. Presumably, the High Priest and his entourage; see IV, supra.

61. It is noteworthy that the synoptics are more consistent here than in V, supra, but this consistency may have more to do with the literary patterning of the relationship between the two interrogations than with the historicity of the dialogue.

62. See Leaney, supra note 54 at 280, comparing the role of Agrippa in the trial of Paul in Acts 25:13ff. According to Luke 13:31-32, Herod Antipas, who had already executed John the Baptist, sought also the death of Jesus. See Schorer, supra note 57 at 1.349-50; Flusser, supra note 59 at X.11. See also A.N. Sherwin-White, Roman Society and Roman Law in the New Testament (Oxford: Clarendon Press, 1963), p. 31, on the principles of forum delicti and forum domicilii. The possibility that Luke is here taking seriously the formal jurisdictional position may be supported by the fact that he does not present the Jewish hearing as a meeting of the Sanhedrin, but rather as a preliminary investigation before the High Priest; the formal jurisdiction of the Sanhedrin at that time was limited to the 11 toparchies of Judaea proper: See Schorer, supra note 57 at 11.218, 225. J.L. Scheler, "The Arrest and Trial," US News & World Report 108/15 (April 16th, 1990), p. 49, sees a diplomatic reason for Pilate's "referral," and notes that Pilate had been reprimanded by the emperor Tiberius for offending the Jewish leaders on two previous occasions."

63. Supra note 54 at 112. The annotations are mine. See further literature cited, supra note 49. See also J. Blinzler, The Trial of Jesus (Westminster MD: Newman Press, 1959), pp. 149-157.

64. See Mishnah Sanhedrin 4:1.

65. See Mishnah Sanhedrin 5:5.

66. Mishnah Sanhedrin 7:5 (death by stoning only where the Tetragrammaton was uttered after hatra'ah); in Sanhedrin 56a this is extended to cover use of one of the divine attributes, but this was later regarded as giving rise only to flogging. See especially Cohn, supra note 49 at 1971:129-134, though also rejecting the false prophecy hypothesis. Various attempts have been made to explain the blasphemy charge. J. Duncan M. Derrett, "The Trial of Jesus and the Doctrine of Redemption," Law in the New Testament (London: Darton, Longman & Todd, 1970), ch. 17, pp. 389-460, at Appendix II interprets killel as "defames," "undervalues" (comparing Leviticus 20:9), but it is not clear to me how, even if correct, this would assist the argument. Leonard W. Levy, Treason Against God: A History of the Offense of Blasphemy (New York: Schocken Books, 1981), especially pp. 60-62, argues that the gospel accounts of the trial of Jesus demonstrate a broadening of blasphemy to include not only reviling God but also "claiming his kinship, powers, attributes or honors." For criticism, see Milner S. Ball, "Cross and Sword, Victim and Law: A Tentative Response to Leonard Levy's Treason Against God," 35 Stanford L. Rev. 1007ff. (1983). Most recently, a strained attempt has been made by O. Betz, "The Temple Scroll and the Trial of Jesus," 30 Southwestern Journal of Theology 6 (1988), to explain the blasphemy charge in terms of first century interpretation. He argues that the Temple Scroll 64:6-13, in its interpretation of Deuteronomy 21:23 kilelat elohim, extends blasphemy to cover treason. Certainly, Deuteronomy 21:23 is there understood as an offense of (what we might call) treason: "If a man has informed against his people and has delivered his people to a foreign nation... If a

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man has committed a crime punishable by death and has run to the midst of the Gentiles and has cursed his people and the children of Israel" (Baumgarten's translation, Studies in Qumran Law (Leiden: E.J. Brill, 1977), 173). But this does not make it an offense of

blasphemy merely because of the common terminology of killel with Exodus 22:27. Moreover, there is not the slightest connection between the offense of "blasphemy" as here constructed in the Temple Scroll and the "confessions" of Jesus in Mark and Matthew, which prompt the condemnation for blasphemia. More generally, we should beware of too ready assimilation of the Greek concept of blasphemia in the New Testament with those Hebrew concepts which, for convenience, we refer to by the English word "blasphemy." The Greek term is not used in the Septuagint to render the "blasphemy" references in any of Exodus 22:27, Leviticus 24, or I Kings 21. On the relevance of this last (the accusation against Naboth), however, see infra section VI.E.

67. Tosefta Shebuot 3:8; Sifre Deuteronomy ad Deuteronomy 19:15; Tosefta Shebuot 5:4; Tosefta Sanhedrin 9:4, 11:1; see A. Kirschenbaum, Self-Incrimination in Jewish Law (New York: Burning Bush Press, 1970), ch.3; see also Samuel Mendelsohn, The Criminal Jurisprudence of the Jews (New York: Sepher-Hermon Press. 1991, Studies in Jewish Jurisprudence Vol. VI), p. 133f. [first published 1891].

68. The rabbinic batra'ah: Tosefta Sanhedrin 11:2: "If he be warned and answer nothing, or if he be warned and nod his head, or even say, 'I know,' he cannot be made liable to the death penalty; he is not liable until he say, 'I know; but even so I am committing the offence.' " We should not, however, assume uncritically that all aspects of Mishnaic law and procedure are to be read back to the early first century.

69. See Kermode, supra note 54: "It is most improbable that there could have been an event corresponding to the release of Barab'bas; that story may arise from an ideological need to distinguish Jesus from the zealots and freedom-fighters of the period..."

70. John P. Meier, "Jesus among the Historians," The New York Times (Dec. 21, 1986), Section 7, p.1, notes that Tacitus (see, infra, section VI.E) was in error in describing Pilate as a procurator, as now shown from an inscription discovered at Caesarea Maritima in 1961.

71. See Cohn, supra note 49 at 1971:11.

72. T.A. Burkill, "The Condemnation of Jesus, a Critique of Sherwin-White's Thesis," 12 Novum Testamentum 321 (1970); Winter, supra note 49 at 10, who regards Jesus as having been condemned for sedition under the Lex Cornelia e de Sicariis et Veneficis, under Digest xlvIII.8.3.4, and quotes Paul, Sententiae 5.22.1, for the availability of crucifixion here: auctores seditionis et tumultus vel concitatores populi, pro qualitate dignitatis, aut in crucem tolluntur aut bestiis obiiciuntur aut in insulam deportantur. Others have suggested the lexJulia de Maiestate.

73. Sherwin-White, supra note 62 at ch.2, argues that a general charge before Pilate, rather than a charge of a specific offense against Roman statutory criminal law, was compatible with jurisdiction extra ordinem. Against the notion of any Roman "trial" at all, see F. Millar, "Reflections on the Trial of Jesus," A Tribute to Geza Vermes, Essays in Jewish and Christian Literature and History, P.R. Davies and R.T. White, eds. (Sheffield: JSOT Press, 1990), p. 378.

74. Supra note 54 at 110. See also Kermode, supra note 54 at 85, on the use of Psalms 41:9, "Even my bosom friend, whom I trusted, who ate of my bread, betrays me"; at 86, on the 30 pieces of silver (Zechariah 11:12); and at 106 on Psalm 22.

75. A view not confined to theologians. See also J. Duncan M. Derrett, supra note 49, especially Appendix I, suggesting two trials in the narrative identified through the poetry.

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76. William L. Lane, The Gospel according to Mark (London: Marshall, Morgan and Scott, 1974), p. 487.

77. E.g., "pierced for our transgressions" (Isaiah 53:5, New English Bible), where the Hebrew is meholal (Jewish Publication Society: "wounded"). In uvehavurato nirpah lanu (Jewish Publication Society: "and by his bruises we were healed"), we may well have a reflection on the talionic formula: havurah tahat havurah, Exodus 21:25).

78. The closest the text comes to any reference to law is in "without justice, he was taken away" (v.8: me'otser umimishpat lukah). As for execution, the closest is "He was assigned a grave with the wicked, a burial place among the refuse of mankind" (New English Bible, v.9: vayiten et resha'im kivro).

79. After writing this, I found that Norman H. Whybray has comprehensively analyzed the Hebrew of the song and come to this conclusion, in his monograph significantly entitled

Thanksgiving for a Liberated Prophet: An Interpretation of Isaiah Chapter 53 (Sheffield: JSOT Press, 1990, JSOT Supplement Series 4).

80. Including that of the Jewish Publication Society.

81. Supra note 76 at 486.

82. Discussed further in section VIC, supra.

83. Kermode, supra note 54 at 86f.

84. Id.

85. Gerhard Van Rad, The Message of the Prophets (London: SCM Press, 1968), p. 227f.; partially approved by C.R. North, The Second Isaiah (Oxford: Clarendon Press, 1964), p. 21, who also provides a detailed philological commentary (see especially p. 238ff.) which

acknowledges many of the complications while opting for a traditional translation.

86. But it is not a pure case. As the leader of the people, Moses bears some personal responsibility for their actions, even when they are contrary to his instructions.

87. I have found no earlier version of this proposal in the literature on the trial of Jesus. Occasionally, however, some Christian commentaries on Jeremiah see in details of this

story adumbrations of the passion. Thus James Burton Coffman and Thelma B. Coffman, Commentary on Jeremiah of the Major Prophets (Springfield: Abilene Christian University Press, 1990), vol. 2, p.294, commenting on Jeremiah 26:7: "And the priests and the

prophets and all the people heard Jeremiah speaking these words in the house of Jehovah," observe: "that irresponsible and fickle Jerusalem mob, designated here as 'all the people,' that is, the majority, started yelling for the death of the holy prophet. They were fit ancestors indeed of the mob in that same city centuries afterwards who would

cry, Crucify him! Crucify him!" On verses 12-15, they comment [at 297]: "like the blessed saviour himself, Jeremiah submitted to the powers of the government, but warned them of the consequences." See also Andrew W. Blackwood, Jr., Commentary on Jeremiah (Waco, Texas: Word Books, 1977), p. 194: "The role of all the people [v. 7] is

ambiguous. Verse 8 shows them siding against Jeremiah, while verse 11 shows them neutral, verse 16 shows them supporting him, and verse 24 seems to indicate that they were against him. The situation may have been similar to Jesus' experience on Palm

Sunday and Good Friday, when large crowds shouted his praise and large crowds cried for his death."

88. In response to oral presentations of this material, I have been asked on a number of occasions whether the parallels here suggested are supported by linguistic parallels between the New Testament and the Septuagint version of Jeremiah 26 (in the

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Septuagint, ch.33) a version which differs in some details from the Masoretic Text (e.g., the establishment prophets in Septuagint are described as "false prophets"). That begs a number of important problems regarding the sources of knowledge of Jeremiah (oral or written, and if the latter in which language) which might have been available to the New Testament writers. However, my principal response, which also begs questions which cannot be addressed here, is that the parallel is one of narrative line, rather than

linguistic expression. Moreover, I am inclined to assume that the early form of communication of the story of the trial of Jesus was oral, and thus not itself fixed

linguistically. Nevertheless, a linguistic parallel such as the accusers' ekousate in Mark 15:64 and parallels, Septuagint Jeremiah 33:11) may well be regarded as thematic rather than linguistic. In short, my argument does not rest upon linguistic dependence upon the

Septuagint (or any other text), though this does not exclude points of influence in the final literary formulation.

89. Cf., Matthew 21:28ff.; Mark 12; Luke 19:47ff. In Matthew, his first actions there are acts of miraculous healing: Matthew 21:14.

90. The same verb, shama (to listen, obey), is used in relation to Jeremiah's mission as in the prophet-like-Moses text in Deuteronomy.

91. Cf., Matthew 24:1-2; Mark 13:1-2; Luke 21:5-6.

92. Cf., Matthew 26:47; Mark 14:43; Luke 22:52.

93. Cf, Matthew 26:59ff; Mark 14:55ff.

94. Cf, Matthew 26:57ff.; Mark 14:53ff.; Luke 22:54ff.

95. Cf, Matthew 27:11ff.; Mark 15:2ff.; Luke 23:1ff.

96. Cf., Matthew 27:12; Mark 15:3; Luke 23:2. William L. Holladay, Jeremiah, A Fresh

Reading (New York: Pilgrim Press, 1990), p. 31, notes that when the priests repeat Jeremiah's offending words to the civil authorities, they omit his reference to the Temple and speak only of his prophesying against the city. "To the princes this would make the issue appear to be treason rather than a religious dispute."

97. Cf., Matthew 27:23; Mark 15:13; Luke 23:4,14.

98. Cf., Matthew 27:15-18; Mark 15:6-15; Luke 23:18.

99. Cf., Matthew 27:32ff.; Mark 15:21ff.; Luke 23:26ff. (here, of course, Jesus, not the other accused). For the political background of the prophecy of Jeremiah and his life, see E.W. Nicholson, The Book of the Prophet Jeremiah, Chapters 26-52 (Cambridge University Press, 1975), pp. 1-10. He notes at 27 that the Biblical record that Israel persistently rejected the preaching of the prophets, and the suffering many of them had to endure [especially Jeremiah] as well as the execution of others eventually gave rise to the legends of the martyrdom of many of the prophets [for example Isaiah]. It is this, he argues, that forms the background of Jesus' saying "Oh Jerusalem, Jerusalem, the city that murders the prophets and stones the messengers sent to her!" (Matthew 23:37, Luke 13:34). See also Stone, supra note 15 at section IV, at 173 on Nehemiah 9:26 and rabbinic sources on the killing of prophets.

100. Cf., Matthew 27:20-23; Mark 15:12-15; Luke 23:18-26.

101. Brandon, supra note 49 at 1971:124f

102. Some recent writings have sought to suggest a Jewish practice of crucifixion: see especially Betz, supra note 66 at 5-8 (to which Professor Welch kindly drew my

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attention). Betz's starting point, the suggestion that the Jews in John 19:15 suggested crucifixion as a Jewish penalty, appears unwarranted by the text: "They cried out, 'Away with him, away with him, crucify him!' " But Pilate's response: "Shall I crucify your King?" clearly implies his understanding that they were asking him to conduct the crucifixion. This is not incompatible with the claim that follows, that "Then he handed him over to them to be crucified." They asked for an execution by Roman law; he agreed, but authorized them to carry it out themselves. There is nothing here to suggest that the Jews understood crucifixion as a Jewish form of capital punishment. Betz next refers to a passage in the Temple Scroll regarding hanging "on the wood." In fact, the normal Hebrew word for tree is used in the passage (etz), and the passage (together with another apparent reference to crucifixion in the Nahum Commentary) has been extensively discussed by J.M. Baumgarten, "Does TLH in the Temple Scroll Refer to Crucifixion?," Studies in Qumran Law (Leiden: E.J. Brill, 1977), pp. 172-182 [answering the question in his title in the negative].

103. See, supra, section VI.E [combining the historical bipolarity of the charge with its theological connotations, as derived from the false accusation of Naboth, 1 Kings 21:10].

104. "No earlier prophet [other than Moses] wrote down or dictated his material, as far as our evidence goes," Holladay, supra note 96 at 64.

105. Noted as a parallel with Moses by Holladay, supra note 96 at 64. Should we view the cutting of his scroll as later transformed into the execution of the prophet himself?

106. See Adam C. Welch, Jeremiah. His Time and His Work (Oxford: Basil Blackwell, 1955), p. 148ff., on the relationship between Jeremiah's preaching regarding the Temple and the Josianic reform some years earlier.

107. Holladay, supra note 96 17f., explicitly connects Jeremiah and the Deuteronomy 18 tradition, linking the phrases "whatever I command you you shall speak" [Jeremiah 1:7] and "behold, I have put my words in your mouth" [1:9] with Deuteronomy 18:18 ["I will put my words in his mouth, and he shall speak to them all that I command him"]. He suggests that no other call of a prophet in the Old Testament resembles this verse in Deuteronomy as closely. It attests to Jeremiah's conviction that he is the prophet-like- Moses. From this task of being a prophet he shrank. But Moses, Holladay notes, had hesitated in accepting his own call [Exodus 4:1-17].

108. Richard Jacobson, "Absence, Authority and the Text," 3 Glyph 137, 140 (1978), citing Jeremiah 15:16: "Thy words were found, and I did eat them; and thy words were unto me to me a joy and the rejoicing of my heart; Because Thy name was called on me, O Lord God of hosts." The following earlier articles by Holladay on Jeremiah's self- understanding as a prophet-like-Moses are cited by Jacobson, infra note 110 at 51 n.5: "Style, Irony, and Authenticity in Jeremiah," 81 Journal of Biblical Literature 44 (1962); "The Background of Jeremiah's Self-Understanding: Moses, Samuel and Ps.22," 83 Journal of Biblical Literature 153 (1964); "Jeremiah and Moses: Further Observations," 85 Journal of Biblical Literature 17 (1966).

109. These first two examples are both noted by David Daube, "Typology in Josephus," 31 Journal of Jewish Studies 18, 23f. (1980), in the course of a wide-ranging survey of typological connections, which stresses the rewriting of the earlier narrative in terms of the later. At 26f., he notes Josephus' self-construction as a second Jeremiah, and his reconstruction of the story of the surrender to the Babylonians in terms of Josephus' own relations to the Romans.

110. Martin Hengel, The Charismatic Leader and his Followers (Edinburgh: T & T Clark, 1981), p. 64, comparing Mark 3:21 and 6:1-6 with Jeremiah 12:6 and 11:21. See also

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Richard Jacobson: "Prophecy and Paradox," 38 Linguistica Biblica 49, at 3.6 (p.57) (1976).

111. Considered by Eisler to derive at least indirectly from an aramaic original by Josephus strongly contested by Zeitlin, who dates it to the seventh century. For the

literature, see Schorer, supra note 57 at 1.60-61.

112. Written in 110 C.E. There is recent archaeological evidence that Pilate, however, was

only a prefect and not a procurator. See supra note 70.

113. See Paul Winter, "Excursus II: Josephus on Jesus and James," in Schiirer, supra note 57 at 1.428-441, a revised version of his article in 1 Journal of Historical Studies 289 (1968); Z. Baras, "The Testimonium Flavianum and the Martyrdom of James," Josephus, Judaism and Christianity, L.H. Feldman and G. Hatai, eds. (Detroit: Wayne State

University Press, 1987), pp. 338-339, noting that Origen (185-254 C.E.) twice criticizes

Josephus for not having accepted Jesus as the Messiah (Contra Celsum 1.47; Commentary on Matthew 10:17), while later Eusebius (260-339 C.E.), cites the Testimonium Flavianum as evidence that he did. See also Cohn, Trial, supra note 49 at 308-312.

114. II. 174. See recently, Steve Bowman, "Josephus in Byzantium," Josephus, Judaism and Christianity, L.H. Feldman and G. Hatai, eds. (Detroit: Wayne State University Press, 1987), pp. 372-373, and 382 n.61 for the Eisler/Zeitlin debate in the 1930's. See also Cohn, supra note 49 at 312-16. The suggestion that the passage goes back to an original text of Josephus is based in part on a statement by Josephus himself in the preface to the Greek version that he wrote a book on the capture of Jerusalem in his native tongue, and that this formed the genesis of the Greek version.

115. The passage begins with a discussion of whether the wonder-worker should be called a man (cf., the Testimonium Flavianum) or an angel, in the light of his

appearance and works (which were "divine"); notes his activity as a healer; concludes with an initial exoneration by Pilate; then suggests that Pilate was bribed by a gift of

"thirty talents," as a result of which he gave permission to the Jews to crucify him.

116. Thackeray translation, Appendix to Loeb edition of Josephus, The Jewish War, IV, 648-650. Compare John 11:47-48: "So the chief priests and the Pharisees gathered the

council, and said, 'What are we to do? For this man performs many signs. If we let him go on thus, every one will believe in him, and the Romans will come and destroy both our

holy place and our nation.' " "Go on thus" can hardly have been a reference merely to

preaching and healing; it must be to something which the Romans would have regarded as threatening. The Slavonic Josephus may, of course, represent an interpretation of this

passage.

117. Sanhedrin 107b, placing Jesus in the time of King Jannai (104-78 B.C.E.); see The

Babylonian Talmud, Sanhedrin (London; Soncino Press, 1935), 11.736 n.2, concluding: "And a Master said: Jesus the Nazarene practiced magic and led Israel astray." See also David R. Catchpole, The Trial of Jesus (Leiden: E.J. Brill, 1971), p. 3. The passage also describes Jesus as a pupil of Joshua b. Perahyah (c.100 B.C.E.). Encyclopedia Judaica (Jerusalem: Keter, 1973), X.14-17 (this section translated from the Encyclopedia Hebraica) takes this to refer to the Jesus of the New Testament, but to reflect later rabbinic uncertainty about his dating. See also the "Ben Stada" passage in Sanhedrin 67b (an execution on the eve of the Passover, at Lod, for enticing to idolatry, on which see Cohn, Trial, supra note 49 at 303-308); Shabbat 116a-b, reflecting early Jewish anti- Christian polemic, though the object of derision is described merely as "a philosopher."

118. See The Babylonian Talmud, Sanhedrin (London; Soncino Press, 1935), 1.281: "It was taught: On the eve of the Passover Yeshu [Ms. M: the Nazarean] was hanged. For

forty days before the execution took place, a herald went forth and cried, 'he is going

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forth to be stoned because he has practiced sorcery and enticed Israel to apostasy. Anyone who can say anything in his favour, let him come forward and plead on his behalf.' But since nothing was brought forward in his favour he was hanged on the eve of the Passover [variant: and the eve of Sabbath]! Ulla retorted: Do you suppose that he was one for whom a defense could be made? Was he not a Mesith [enticer: Deuteronomy 13:9], concerning whom scripture says, Neither shalt thou spare neither shalt thou conceal him? With Yeshu however it was different, for he was connected with the government." Catchpole, supra note 117 at 6-9, argues for the historical authenticity of many of the details here, comparing "on the eve of Passover" with John 18:28; the mesith charge with John 18:19-24 (and see D.W. Wead, 11 Novum Testamentum 185 (1969); the allegation of sorcery with Matthew 12.24, Luke 11.15, Mark 3.22; Contra Celsum 11.9: "After this the Jew says: How could we regard him as God when in other matters, as people perceived, he did not manifest anything which he professed to do, and when we had convicted him, condemned him and decided that he should be punished, was caught hiding himself and escaping most disgracefully, and indeed was betrayed by those whom he called disciples?"; 1 Thessalonians 2:15 (Paul): "for you suffered the same things from your own countrymen as they did from the Jews, who killed both the Lord Jesus and the prophets" [on which see F. Gilliard, "The Problem of the Antisemitic Comma between 1 Thessalonians 2.14 and 15," 35/4 New Testament Studies 481 (1989) to which Prof. J. Welch kindly drew my attention]. Contra, Cohn, Trial, supra note 49 at 298-303, noting various incongruities in the talmudic passage, including the conflict between hanging and stoning and ultimately concluding (307) that it probably did not refer to the Jesus of the New Testament.

119. In the warning to be given to witnesses according to talmudic procedure found at the very head of the Gemara's commentary on the Mishnah's treatment of the examination of witnesses. See also Sanhedrin 48b, where the double accusation, of cursing God and the King, is explained as not legally necessary, but as having been made (in Naboth's case) in order to "increase the anger of the judges" again stressing the conspiratorial aspect of the false accusation.

120. Perhaps hinted at in Mark 14:55-56: "Now the chief priests and the whole council sought testimony against Jesus to put him to death; but they found none. For many bore false witness against him, and their witness did not agree." Cf., Matthew 26:59-60.

121. See Louis Ginzberg, Legends of the Jews, Vol. VI (Philadelphia: Jewish Publication Society, 1956), p.312, n.41 for sources; see also Sanhedrin 89a, 102b, Shabbat 149b.

122. 6:9-14. Schorer, supra note 57 at 11.219, takes this as good historical evidence of the exercise of Sanhedrin jurisdiction over blasphemy. But we must take into account not only the literary relationships between the Old Testament and the New, but also those within the New Testament (a theme not here explored). In citing John 19:7 (as well as Matthew 26:65) in support of "the fact... that Jesus is said to have stood before the Sanhedrin on account of blasphemy," they go beyond what is warranted by the text.

123. 734, 732 B.C.E.; see J. Ridderbos, Isaiah, trans. John Vriend (Grand Rapids: Zondervan Publishing House, 1985), p. 5.

124. For a sensitive development of this theme, see Stone, supra note 15 at section II

125. As in Kermode's arguments, supra, section IV.B, especially his account of the thirty shekels of silver.

126. This theme is taken up in some of my recent papers: "Analogy in Legal Science: Some Comparative Observations," Legal Knowledge and Analogy, P. Nerhot, ed. (Dordrecht etc.: Kluwer Academic Publishers, 1991), pp. 145-165 (Law and Philosophy Library, 12); "On the Nature of Analogical Argument in EarlyJewish Law," The Jewish Law Annual, forthcoming; "Practical Wisdom and Literary Artifice in the Covenant Code," Jerusalem 1990 Conference Volume, B.S. Jackson and S.M. Passamaneck, eds. (Atlanta: Scholars Press, 1992), pp. 65-92 (Jewish Law Association Studies, VI).

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the prophet and the law in early judaism and the new testament

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