THOUGHTS ON THE PARASHAH
Rabbi Evan Hoffman – Congregation Anshe Sholom
Parshat Shoftim- פרשת שופטים
August 26, 2017 – ד אלול תשע”ז
This essay is sponsored by Eugeny Rubashevsky & Tatyana Tchaikovskaya in memory of Leib Rubashevsky Z”L.
Judges: Priests and Scholars
Scripture directs the Israelite where to turn to seek answers to perplexing questions of religious law: “And thou shalt come unto the priests the Levites and unto the judge that shall be in those days; and thou shalt inquire; and they shall decree unto thee the sentence of judgment (Deuteronomy 17:9).”
The verse is ambiguous. Is the High Court simply situated on the Temple grounds, in close proximity to the sacrificial cult? Or do the Temple officiants themselves function in a judicial capacity?
What do the sources tell us?
The Talmud understood the verse to emphasize a direct and close connection between the continued functioning of the priesthood and the dispensing of justice. When the priestly class ceases to carry out its cultic duties (i.e., when the Temple is in ruins), the High Court no longer has authority to render verdicts (Sanhedrin 52b). But, contrariwise, there is a Mishnah holding that the Sanhedrin can (theoretically) operate at all times and in all places (Mishnah Makot 1:10). Also relevant to our inquiry is this Torah verse: “And these things shall be for a statute of judgment unto you throughout your generations in all your dwellings (Numbers 35:29).”
We attempt to reconcile the sources by distinguishing between (a) cases involving the imposition of financial penalties or corporal punishment, which are under the purview of a Jewish court even absent a functioning (or standing) Temple, and (b) capital cases, which, in the circumstances of exile from Jerusalem and/or of the non-existence of the Temple, the court cannot accept on its docket.
The Talmud recognized the comparative impotence of post-Temple era courts. It specifically mentions their inability to execute an offender (Berakhot 58a). The Midrash supports the distinction between capital and non-capital cases. It cites the verse “And if a man comes presumptuously upon his neighbor to slay him with guile, thou shalt take him from Mine altar that he may die (Exodus21:14).” In other words: Only when there is a functioning altar does the court possess the power to impose capital punishment (Mekhilta d’Rashbi 21).
Rabbinic literature acknowledges that the ability of Jewish courts to impose the death penalty did not end with the destruction of the Temple. Rather, forty years before the Destruction, the Sanhedrin removed itself from its traditional location near the altar in the Chamber of the Hewn Stone to another, more distant spot on the Temple Mount (Shabbat 15a). It is claimed that it did so voluntarily, because the murder rate had climbed drastically and the court was unable to handle the resulting caseload (Avodah Zarah 8b). The Sanhedrin solved this practical problem, the Talmud asserts, by electing to hold its sessions away from the altar. In this way, the court, in effect, intentionally ousted itself of jurisdiction over capital cases.
Though this explanation from the Talmud is interesting, it seems more than a little contrived. The historically sound, simple, and compelling explanation is that the Sanhedrin stopped hearing capital cases because Rome stripped its Judean subjects of the right to execute criminals.
Separate from the reality of the physical proximity of the chambers of the High Court to that of the venue of the Temple service is the fact that the early judges and teachers of Israel were themselves priests or Levites. In Moses’ final blessing to the twelve tribes, he said that it is the Levites who “shall teach Jacob Thine ordinances and Israel Thy law; they shall put incense before Thee and whole-burnt offerings upon Thine altar (Deuteronomy 33:10).” The later prophets reiterate that Torah knowledge is found among the priests (Jeremiah 18:18), and that those seeking instruction in religious law must turn to them (Malachi 2:7). The entire system of Levitical emoluments was seen as subsidy enabling the Kohanim and Leviim to strengthen themselves in knowledge of God’s law (2 Chronicles 31:4).
The author of Chronicles describes the division of power during the days of King Jehoshaphat (though more likely he was projecting onto the days of that much earlier monarchy the chronologically later power structure of 4th century BCE Judea, with which he was personally familiar). Priests, Levites, and the heads of prominent Israelite families were called to Jerusalem to sit in a council of state. When religious matters were discussed, the priests took the lead; regarding political matters, the powerful Judahites had primary responsibility (2 Chronicles 19:8-11). This represents early evidence of lay participation in the Judean government, though it was limited to the socio-economic elite and was restricted to secular affairs. We do not yet read of non-priestly scholars, learned in Torah, sitting on a High Court and determining religious law.
The earliest source mentioning lay scholars’ taking a seat on the High Court is a letter purportedly written by Antiochus III and cited by Josephus. [Scholars are convinced that this letter is inauthentic to the extent that the Seleucid monarch did not himself write it, or dictate it to a court scribe, but it is accurate enough, substantively, to have convinced Josephus to rely upon it.] After wresting Eretz Yisrael from Ptolemaic control, Antiochus sent greetings of peace to the Jewish inhabitants of the Holy Land: “Let all of that nation live according to the laws of their own country. And let the senate and the priests and the scribes of the temple, and the sacred singers, be discharged from poll money and the crown tax (Antiquities 12, 3, 142).” In this letter, the “scribes of the temple” refers to non-priests who, through scholarly achievement, had won the right to sit on the governing council.
Another source confirms that lay scholars first held positions of leadership in the aftermath of the Syrian conquest of Eretz Yisrael in 198 BCE. The Damascus Document states that 390 years after the destruction of the First Temple, an assembly was called to order. “God took men of understanding from Aaron, and from (non-priestly) Israel wise teachersויקח מאהרן נבובים ומישראל חכמים… They dug the well that is the Torah.” The First Temple was destroyed in 586 BCE. Thus, the establishment of the learned High Court referred to by the Damascus Document can be dated to approximately 196 BCE. [The Damascus Document is the rare classical text that correctly states the length of the Second Temple era; in contrast is all of rabbinic literature, which, ahistorically, truncates the Persian period.]
This chronology is further supported by the fact that the earliest known proto-rabbinic figures mentioned in the chain of tradition (Avot 1:3-5) were active in the early second century BCE. While they did not serve as either the President or Head of Court as claimed by the rabbinic tradition (they were merely heads of the Pharisaic caucus), at least they were recognized jurists who enjoyed membership in the official council. Several of them were non-Levites.
Still, and despite the presence, for over two hundred years, of non-priests in the Sanhedrin, Philo of Alexandria (early first century CE) viewed the High Court as a priestly institution: “When he does not clearly comprehend a case by reason of its unintelligible character, he should send the matter before those who will understand it more accurately. And who can these judges be but the priests, and the ruler and the governor of the priests? For the genuine sincere worshippers of God are by care and diligence rendered acute in their intellects inasmuch as they are not indifferent even to slight errors (Special Laws 4, 190-191).”
Philo is here saying that when precision in examining the fine points of legal questions is needed, who better to turn to than the Kohanim, trained in the minutiae of cultic law? He then goes on to implicate prophecy, too, by asserting that revelations from God assist the priests in rendering proper verdicts.
Philo’s description of the Kohen Gadol’s sitting at the apex of a Judean judiciary composed exclusively of Aaronides may not have been accurate in his own generation, but it does describe the situation in Judea during the first few centuries of the Second Commonwealth, under Persian, Macedonian, and Ptolemaic rule. It is not surprising that Alexandrian Jewry, founded three hundred years before Philo by ex-Judean patriots, would perpetuate an outdated notion of the Judean hierarchy.
Temple officials were reluctant to acknowledge the end of the priestly monopoly over religious jurisprudence. Accordingly, we find in rabbinic literature stray references to the “Court of Priests” בית דין של כהנים. This court disagreed with the rabbis about the monetary value of a marriage contract (Mishnah Ketubot 1:5). It tried to usurp the authority of the Sanhedrin regarding the issue of accepting eyewitness testimony of the New Moon (Mishnah Rosh Hashanah 1:7). A court of priests was consulted when the text of a royal Torah scroll needed to be checked for accuracy (Tosefta Sanhedrin 4:7).
Even after the destruction of the Temple, certain elements within the priesthood continued the struggle for Kohanic leadership in determining halakhah. The selection of Elazar ben Azariah, a priest, to replace the deposed Gamliel as Pharisaic leader may have been made with a view towards placating a dissident priestly faction (Berakhot 27b). The same can be said of Tarfon’s service as acting head of the academy, following the deaths of his colleagues.
Rabbinic halakhah recognized that the ideal court would have some representation from both priests and Levites מצוה בבית דין שיהיו בו כהנים ולויים. However, that is to be considered only a preference. Even were a court composed entirely of Israelites, it remained validאף על פי שאין בו כהנים ולויים כשר (Sifre Deuteronomy 153).
In describing the process by which new members of the High Court were chosen to replace outgoing ones, no mention is made of tribal lineage as a factor. Several rows of disciples sat before the august judicial body, each student aware of his placement, which was based upon his scholastic ranking. When the need arose to appoint a new member to the court, each student was elevated, in order, to the next spot in the hierarchy (Mishnah Sanhedrin 4:4).
The history of the Jewish High Court in many ways reflects the evolution of our faith from the tribal cult of the Bible to the scholarly meritocracy of Rabbinic Judaism. From the days of Rabbinic Judaism to today, our religion allows anyone to achieve spiritual greatness through devotion to Torah study. Scholarly achievement is considered superior to both the priesthood and the monarchy (Avot 6:5). The latter depends solely on inheritance; the former reflects ability.
For the student of Torah it is exhilarating to know that, without regard to what may be his humble origins, his dedicating himself to assiduous study can lead to the acceptance of his interpretations as the authoritative understanding of God’s law.