INTRODUCTION
Almost three decades ago the legal community lost Robert Cover, one of its most creative minds, at the far too young age of forty-two. A champion of civil rights and a brilliant constitutional theorist, Cover's final years yielded a flourishing of seminal articles on legal narratives.Footnote 1 His “Nomos and Narrative,” “Obligation: A Jewish Jurisprudence of the Social Order,” and, especially, “The Folktales of Justice: Tales of Jurisdiction” focused renewed attention on the profound nature and formative role of law's stories.Footnote 2
Heeding Cover's appeal to expand the legal canon by examining rich literary texts from the past, this article explores a critical dimension of such texts that is often neglected. After introducing a crucial distinction between primary and secondary legal myths, this article demonstrates how the latter are especially prone to being adapted and transformed in the very process of their narration. It is the manifold expressions of legal meaning embedded in these multiple versions that capture the diverse normative claims of a “paideic community.” The body of the article exemplifies this seminal dimension of legal stories by analyzing several different renditions of a profound early myth involving a fundamental clash between the rule of law and sovereign power (which Cover briefly studied in “The Folktales of Justice”).Footnote 3 Inspired by Cover's life and works, this article charts new directions for the study of foundational legal narratives by way of example.
Cover's landmark studies should be situated within a larger scholarly context. The 1980s marked the heyday of the law and literature renaissance that sought to mine literary expressions of juristic themes, and conversely to heighten sensitivities to the rhetorical dimensions of normative writings.Footnote 4 In addition, Cover's study of legal narratives intersects with the critical legal studies movement that thrived at the same time. As Cover demonstrated, legal stories often revolve around themes of power and violence.Footnote 5 They also serve as a means of expression for the disempowered. Deconstructing the formal legal edifice, the “Crits” sought to expose formidable underlying interests and influences, and Cover provided complementary lines of inquiry relevant to their project.Footnote 6 Finally, because legal narratives also offer means of expression for smaller paideic communities, studying such stories draws attention to minority groups. In this sense, Cover was contributing to the civil rights movement, whose formative phases matched the main decades of Cover's life.Footnote 7
Yet Cover's writings on law's stories also transcend these three legal movements and have a sui generis quality to them. Through his studies, Cover introduced, and elaborated upon, an ambitious new legal theory that borders on the anarchic. In place of rulers and other political forces dominating the socio-legal order, Cover proclaimed the supremacy of a polyvalent normative universe. In this cosmos, legal stories play an essential role.Footnote 8
Under Cover's expansive definition of law, which encompasses principles, ambitions, and rights, legal stories serve as a rich repository of normative values and aspirations. Further, according to Cover, law operates among an amalgam of individuals and groups, and legal myths are a mode of expression for their collective voice. Likewise, law functions within a complex matrix of historical, societal, ethical, and political forces, and legal narratives reflect the multiple dimensions of this dynamic enterprise.Footnote 9
Moreover, Cover contended, folktales also constitute a vehicle for legal transformation. Conceiving of law as a bridge built out of committed social behavior, Cover located formative building blocks in the materials of the legal narratives of each community. They represent current normative commitments, as well as an imagined alternative state, and the way of connecting the present to a possible projected future. From this perspective, law develops not only through legislation or judicial decisions but also by way of the legal stories that are told.Footnote 10
The dual characterization of law's stories as filtering the communal imagination and enabling the construction of a path towards an ideal “alternity” explains the special role of legal narratives for marginal groups. Lacking state authority and unable to deploy the violence of law, these myths afford a singular tool for the disempowered. Moreover, whereas the exercise of law by state officials is an act of power, a “jurispathic” act, smaller paideic communities develop law as an act of meaning, an act of “jurisgenesis.” For the latter, normative stories become a primary vehicle for law's genesis.Footnote 11
Much of Cover's fascination with Jewish law, and especially Jewish lore, stems from this feature.Footnote 12 Lacking sovereignty for almost two millennia, Jews nevertheless developed an elaborate legal tradition over the course of this volatile period.Footnote 13 In fact, their robust normative system served as a vital force for a largely disempowered Jewish people. Throughout its various phases, the Jewish legal tradition was perpetually sustained by its formative legal myths which enabled it to either resist power or envision an ideal alternity without power.
Cover's pioneering interpretation of the role and nature of legal stories, and especially Jewish legal stories, has had a transformative effect on scholarship ever since.Footnote 14 Nevertheless, Cover's account has certain limitations. Most notably, Cover ironically imposes a normative and teleological frame on legal narratives that obscures their diverse nature. A crucial part of Cover's project is to challenge the monolithic nature of state-generated law that overshadows the legal variety that emerges from paideic communities. Yet, despite recognizing the multiplicity of normative perspectives within a polity, Cover offers too narrow a description of the voices within a minority community.Footnote 15 In the process of transmission, such communities tell and retell their foundational myths, and along the way adapt or even transform their essential meanings. In addition, they at times relay secondary stories that can be subversive to primary ones and that further complicate legal discourse over time. By characterizing certain sacred legal myths as normative narrations that form discrete bridges to superior destinations, Cover veils the plurality of ideas—sometimes even competing ones—that are generated by a community through the very act of narration. Indeed, the proliferation of disparate versions of a given myth is an essential feature of legal narratives.Footnote 16
A parallel point was underscored by Judith Resnik in her probing reappraisal of “Nomos and Narrative.”Footnote 17 Seeking to extend Cover's normative critique of Bob Jones University v. United States, 461 U.S. 574 (1983), to issues such as Muslim headscarves in France, Resnik also highlights a lacuna in Cover's analysis. According to Resnik, Cover never addresses situations where there is conflict within paideic communities about their own practices and authoritative interpretations. Confronting an undifferentiated other, Cover fails to interrogate the power within such paideic communities. With a deliberate emphasis on the question of gender equality, Resnik grapples with the formidable question about which members of such communities have the authority to make community law.
Even as Resnik is right to raise this criticism, certain elements of her analysis need to be modified. While Resnik frames her commentary as describing an omission in Cover's thought, I would argue that Cover's analysis falters in his conceptualization of the distinct narrative bridges of paideic communities. Further, Resnik's particular emphasis on authority within paideic communities is misplaced. A primary interest of Cover concerns how paideic communities generate law in the absence of power, and, by extension, an absence of authority. Narration supplies them with a normative medium, in lieu of traditional instruments of law. The rhetorical channel, however, is more open-ended and more resilient to hierarchies. Indeed, one of the essential characteristics of legal narratives is that their transmission often leads to a multiplicity of tellings and retellings. It is precisely here where dissident voices within the paideic community find robust expression.Footnote 18 The locus of differentiation is not in praxis or authoritative interpretation but rather in the very act of narration.
An important illustration of the plural narrations of a myth that can be generated by a paideic community is the diverse ways it portrays the inevitable confrontation between the rule of law and sovereign power. Cover is too quick to assume that minority voices that describe such encounters champion law over power.Footnote 19 In fact, often the disempowered submit to power, or they attempt to reclaim, or even exalt power. In a similar vein, a thorough examination of Jewish reflections on law and power reveals a more complex record than Cover recognized.Footnote 20 Rather than viewing these reflections as building normative bridges that rise above the threats of power, a better description would be that Jews puzzled over the core tension between law and power, struggling to come to terms with this phenomenon and offering different possible resolutions. Their legal stories, especially the secondary myths I refer to below, mediate this process.
A dramatic range of Jewish responses to law's clash with sovereign power is reflected in the diverse narrations of the myth of one epic trial in Jewish antiquity and late antiquity, which we can label “the trial of the Judean king.” In a section in his “Folktales,” Cover offers a penetrating analysis of this trial. Yet, characteristically, Cover homes in on one account of this trial, which he privileges as normative, rather than on the assorted portrayals that have been refracted by a paideic community.
This article honors Cover's legacy by continuing his analysis of this foundational legal story. Throughout this article, the indelible imprints of Cover's insights are apparent: Cover's essential enlargement of what constitutes law; his insistence on situating norms within their narrative context; his deep awareness of the enduring struggle between law and power; his striking amplification of the violence enabled by law; and his profound sensibilities that Jewish normative and narrative writings are a rich source for interrogating questions of authority and justice.
Inspired by Cover, and amplifying certain motifs that were central to his project, this article also seeks to overcome the limitations of his work that I described above. It offers an original study of the manifold mythical expressions of the epic trial of the Judean king. Rather than identifying one bridge, this article discerns multiple and competing paths that are constructed out of alternative retellings of one legend.
The body of this article is organized into four parts. Part I provides methodological background. It describes a sub-genre of legal narratives that we can label “foundational legal stories,” and it further introduces an important distinction between primary foundational legal stories—depicting the establishment of a legal system—and secondary ones—capturing crucial moments when the legal system confronts and (in some form) overcomes existential challenges. A prominent example of a secondary foundational story in Jewish jurisprudence of antiquity and late antiquity is the legend of the trial of the Judean king, which is told and retold in Jewish writings from this period.
Parts II—IV, which make up the heart of the article, offer an extensive analysis of the various retellings of this secondary story. In contrast with previous scholarship, which addressed the historicity of this trial, this analysis focuses on its literary record and presents a novel interpretation of the jurisprudential implications of these varied accounts. Specifically, Part II analyzes the best-known version of this epic trial, the Babylonian Talmudic account, which Cover analyzed in his “Folktales.” After discussing the advantages and drawbacks of Cover's analysis, I advance a revised interpretation of the trial's essential message according to the Talmud that emphasizes the irreconcilable clash between law and power.
Part III explores a parallel midrashic version of the epic trial that apparently was unknown to Cover. Analyzing this parallel alongside the Babylonian Talmudic account sheds additional light on both versions. The midrashic version presents a remarkable proclamation of legal supremacy, where the rule of law fully applies to absolutist rulers. Part IV returns to the earliest accounts of this epic trial, found in the writings of Josephus. While Cover was aware of the Josephan parallels, he marginalized their normative significance because of their historiographic nature. However, as I argue below, Josephus's accounts are carefully constructed and have much juristic value. They portray a world where sovereign power and violence dominate the administration of justice.
The legend of this epic trial revolves around a fundamental confrontation between justice and power, a tension that runs through much of jurisprudence. The several versions of this myth all grapple with this dynamic and the ways it shapes the nature of political and legal authority. Surveying them sequentially, as I do in in Parts II–IV, displays an array of early Jewish responses to the systemic clash between these spheres. The Conclusion returns to the theme of legal myths in Cover's thought and in legal traditions more generally.
A historic episode in antiquity, then, spawns a myth with three separate, and even contradictory, narrations about the ultimate relationship between the rule of law and sovereign power. One account depicts the irreconcilable conflict between law and power and calls for a stark division between these realms; a second concludes that law binds the powerful; and, finally, a third declares that the powerful control the law. The parts below explore the different retellings and legacies of this seminal folktale.
I: METHODOLOGICAL BACKGROUND
Many legal systems have foundational stories about their provenance, often describing a leading figure or group playing a monumental role or associated with a primary act or text. Hammurabi erected a stele enumerating the legal rights of the Babylonians. Solon established the legal principles of the Athenians. The first and second Decemvirate promulgated the Twelve Tables for the Roman plebeians. Justinian collated the classical writings of the jurists in Byzantium. Henry II consolidated the jurisdiction of the Westminster Court of Common Pleas. Napoleon codified the law in post-revolutionary France.Footnote 21 Rooted in historical events, the legacy of these stories transcends their historical record. Filling the collective legal imagination of a paideic community, these foundational stories reverberate as they are told and retold.
In a similar vein, Jewish law has its foundational story that traces its origins back to God's revelation of the law at Mount Sinai. At the culmination of Israel's exodus from Egypt, Moses ascends the sacral mountain and mediates an eternal covenant between God and the priestly Israelite nation. In return for God's election of Israel, the people pledge to obey God's commandments. Upon descent from the mountain, Moses delivers the Covenantal Tablets recording the Decalogue and transmits a plethora of additional laws that inaugurates the Israelite legal tradition.Footnote 22
These storied accounts offer portraits of decisive moments with definitive and far-reaching normative consequences. Each event that is described announces the advent of a novel legal tradition, launching a new era in jurisprudence. Yet these primary myths are often accompanied or subverted by secondary ones that describe climactic moments from later phases, which are frequently less triumphant and more fraught with danger, but are no less transformative. Whether depicting a battle for control over legal jurisdiction or an existential threat to the courts posed by a defiant political actor, these accounts also portray how the legal order responds to such daunting challenges. The crucible of struggle forges a formidable legal institution that can withstand assault or a weaker one that limply survives.
Legal systems are also shaped by accounts of such moments. A recalcitrant Henry IV had to yield to the papal (legal) authority of Gregory VII during the Investiture Controversy. Lord Coke refused to succumb to the absolutist demands of James I. Justice Marshall adroitly outmaneuvered Madison and Jefferson and emphatically upheld the supremacy of the federal judiciary.Footnote 23 Likewise, Jewish jurisprudence during antiquity and late antiquity preserves a similar tale describing an existential challenge to the legal system that was encountered when leading judges confronted a powerful ruler: the story of the trial of the Judean king.Footnote 24
While the historical kernels of these secondary myths are at times hard to reconstruct or corroborate, their importance transcends their facticity and relates to their enduring legacies. Such stories captivate the collective legal imagination of a paideic community. Hence they are preserved, told, and retold. When it comes to primary foundational myths, their overall purpose is plain: to heighten the stature and authority of the normative order. For example, recounting how the Decemvirates authored the Twelve Tables promotes the venerable and ancient roots of Roman jurisprudence.Footnote 25 However, the morals of secondary stories are more variable. Precisely because they examine moments of disturbance and conflict their implications are frequently contested. Thus, the very act of narration aims to amplify core truths implicit in these tales and announce their essential lessons.
The narrative history of the tale of the trial of the Judean king among Jews in antiquity and late antiquity affords a striking instance of this phenomenon. Making a lasting impression on the Jewish legal imagination of this period (in contrast with later periods, when the influence of this tale evidently wanes), the trial's impact is nevertheless highly contested. Several retellings not only differ on a host of details, but also radically diverge on the principal moral of the story. Each narration steers the tale in a different direction, and boldly underscores a distinct lesson about the relationship between law and power. Below I briefly summarize the historical background to this trial before turning to an analysis of each narrative version.
Five literary sources, which can be grouped into three sets of texts, describe the trial of the Judean king in antiquity and late antiquity: two are recorded by Josephus (these have much in common), and three are collected in rabbinic literature (one is very elliptic).Footnote 26 Given that Josephus was both more chronologically and geographically proximate to the original event and was focused upon preserving Judean history, it is likely that his accounts are more historically accurate than the rabbinic ones.Footnote 27 Nevertheless, here as elsewhere, Josephus's accounts have a narrative quality, too, which suggests that it would be a mistake to overly rely on their accuracy.Footnote 28 Moreover, internal inconsistencies in Josephus's renditions call into question the reliability of his accounts.Footnote 29 What seems most prudent from a historical perspective, then, is to adopt a more conservative methodology. A high degree of credibility can be assigned to “facts” that are common to all of these respective versions and likely form the historical kernel that was then embellished or adapted in the multiple retellings of Josephus and the rabbis.Footnote 30
All of the accounts agree on the following: During the Hasmonean period (approximately 152–37 BCE)—either in the intermediate phase (the reign of Alexander Jannaeus) or at its tail end (the end of the reign of Hyrcanus II and the beginning of the political career of Herod)—a Hasmonean king is involved in a prominent trial (in some capacity).Footnote 31 The defendant in the trial is a powerful political actor (either the king or a rising figure who is pursuing the throne) who is summoned before the leading sages. Reluctant to submit to their jurisdiction, the powerful defendant defiantly resists the trial proceedings. Opposing the recalcitrant defendant is a leading (Pharisaic) sage by the name of Sameas or Simeon, who daringly insists upon the rightful jurisdiction of the sages. However, other sages do not share his temerity, and they cower before the intimidating tactics of the powerful defendant. With the parties locked in a dramatic stalemate, the episode takes a tragic turn. The cowardly sages (excluding Sameas/Simeon) all perish, evidently due to their failure to assert their authority before the powerful defendant.
Situated in the context of the Hasmonean period, whether earlier or later, the above account is also historically plausible. If the trial transpired during the lifetime of Alexander Jannaeus, as claimed by certain rabbinic sources, there were significant tensions between him and the Pharisaic sages. These were largely due to the intense sectarianism that fractured the Judean people during this period.Footnote 32 More specifically, various sources depict Jannaeus as being squarely caught within the sectarian conflict, switching his allegiances between Pharisees and Sadducees and trying to manipulate the loyalties of these various groups.Footnote 33 Breaking with the Pharisees later in his career, Jannaeus evidently had direct clashes with them and even killed many of them. Moreover, Jannaeus's reign marks a particularly expansionist phase of Hasmonean rule, when the monarchy assumes the trappings of Hellenistic kingship. These developments could easily have elicited a traditionalist response, where leading sages remind the king of his limits and the need for his obeisance to traditional law.
If the trial occurred at the end of the Hasmonean period, during the reign of Hyrcanus II and at the dawn of Herod's ascent, the underlying tensions are likewise understandable. As elaborated upon below, Herod, a non-Hasmonean, aims to usurp the crown from the Hasmonean line (and he eventually succeeds, by an amalgam of a strategic marriage, shrewd diplomacy, and, especially, brute force). The sages, in turn, challenge his right to the crown in light of his questionable Idumean (i.e., non-Jewish) lineage. Herod's ruthless tactics and pagan manner further aggravate his relationship with the leading sages.Footnote 34
More generally, throughout the Hasmonean period Jewish governance was in flux, and the parameters of Jewish leadership were perpetually being renegotiated.Footnote 35 The rise of the Hasmonean dynasty marked a shift in the monarchic (to a non-Davidic family) and priestly (to a non-Zadokite) lines, and its decline signaled yet another transition, and these changes were all highly controversial. With royal and priestly authority up for grabs, the control and durability of legal authority was also likely being contested. To the extent that this trial transpired at a later phase, Judean sovereignty was by then very weak and operated at the mercy of the Romans (Pompey raids Judea in 63 BCE). In such a precarious atmosphere the need to assert internal authority in a political trial makes much sense. Finally, the larger seismic shifts that transpired in the classical world—the changeover from Hellenistic to Roman supremacy, and then the dramatic transformation that took place inside the Roman world with the collapse of the Republic and the rise of the Principate—may have emboldened challengers of the Judean king and made the need for the king to affirm his own authority even more of a necessity.Footnote 36
The kernel of the story of the trial, therefore, not only is corroborated by multiple attestations but also has the ring of truth. Beyond these core “facts,” however, it is hard to know what, if anything, is historically reliable in these several accounts. Nevertheless, what cannot be gainsaid is the importance of the memory of the trial in the collective imagination of Jewish antiquity and late antiquity. Josephus repeats the tale of the trial in two different works spanning some twenty years. The rabbis, who live centuries later and are generally far less interested in history, recount this episode multiple times as well. While the enduring lesson of the trial revolves around the relationship between law and power, what that legacy is depends entirely on the way the tale of the trial is told, and perhaps more importantly, retold. I will now examine each retelling in succession.
II: THE TRIAL IN THE BABYLONIAN TALMUD
The last of the narrations of the trial of the Judean king, the account recorded in the Babylonian Talmud, offers the best starting point for an analysis of this literary myth, as the moral of this tale is clearly articulated in this source. In general, rabbinic literature is less interested in historiography, and if an historical episode is the focus of rabbinic writings it is often for a programmatic purpose.Footnote 37 In the present context, the Talmud's immediate aim is to explain a problematic normative teaching of the Mishnah.
The opening chapters of the Mishnah in tractate Sanhedrin map out the design and jurisdiction of the judiciary.Footnote 38 In this context, the second chapter addresses the legal role and status of the leading executive figure, the monarch. Here, the Mishnah delineates a seemingly straightforward rule: “The king may neither judge nor be judged . . . .”Footnote 39 Yet stating that the king cannot judge is also highly problematic, as it contravenes much biblical and historical precedent and is therefore difficult to accept at face value. Accordingly, the Babylonian Talmud responds to the Mishnah's declaration by significantly qualifying its scope.Footnote 40 Citing the teaching of Rabbi Pappa,Footnote 41 the Talmud elaborates:Footnote 42
This refers only to the kings of Israel; kings of the house of David, however, both judge and are subject to judgment. For it is written, “O House of David, thus said the Lord: Render just verdicts, morning by morning”[Footnote 43]—and if they are not subject to judgment, how can they judge others (i.e., a rhetorical question)? For . . . Resh Laqish expounded [thus]: “Examine yourself and only then examine others!”
According to the Babylonian Talmud, the Mishnah's teaching records only a secondary rule. The primary rule, applicable to the Davidic line, maintains that kings participate in, and are subject to the jurisdiction of, the judiciary. The Mishnah merely presents an alternate rule that treats non-Davidic kings of Israel differently. Here the Babylonian Talmud invokes a distinction that originated in the biblical period with the post-Solomonic monarchic schism between the Northern kingdom of Israel (non-Davidic kings) and the Judean kingdom (the Davidic dynasty).Footnote 44 In later biblical legacy, non-Davidic rule is often associated with political and spiritual corruption and even national catastrophe.Footnote 45 Accordingly, in various rabbinic traditions, Davidic kings are portrayed as ideal rulers, while non-Davidic kings are depicted as having an inferior status that is only reluctantly tolerated.Footnote 46
In the present context, Rabbi Pappa associates the Mishnah's alternate scheme with non-Davidic kings, an arrangement that the anonymous Talmud in the continuation traces to the disturbing legacy of the trial of (the non-Davidic) King Jannaeus. The Talmud, thus, invokes the story of the trial to provide an etiology for the Misnhah's perplexing secondary rule. On a deeper level, as I argue below, the Talmud's rich, if telescopic, account of the trial subtly conveys a seminal message about the relationship between law and power.
The Talmudic account of the trial begins with a capital offense associated with King Jannaeus, a crime that evidently falls under the jurisdiction of the sages, led by Simeon b. Shetah:Footnote 47
B1. (a) But why this prohibition of non-Davidic kings [judging or being judged]? (b) Because of an incident which happened when a slave of King Jannaeus killed a man. Simeon b. Shetah said to the sages: Be bold and let us judge him.
The sages send the king a summons, which he grudgingly answers, but also partially defies:
B2. They sent for the king saying your slave killed a man. The king sent the slave to them. They sent to the king saying you must appear with him for the Torah says (in the case of a goring ox), “If warning has been given to its owners,”[Footnote 48] [teaching], that the owner of the ox must come and stand by his ox (i.e., so too the owner of a slave who has killed must appear in court). He appeared but sat down before the court. Then Simeon b. Shetah said, Stand on your feet, King Jannaeus, so witnesses may testify against thee. For you do not stand before us but before He who spoke and the world was created.
Even when the king finally arrives before the sages, he spurns their judicial authority. Yet Simeon persists in his demand that the king submit to the jurisdiction of the sages, as they represent divine justice. Having met his match in the courageous Simeon, King Jannaeus shrewdly turns to the feeble associate judges, aiming to drive a wedge between them and Simeon:
B3. The king replied, I will not act by your [Simeon's] word but upon the words of your colleagues. He then turned to the left and to the right, but all looked at the ground.
As Simeon is let down by his cowardly colleagues, the narrative shifts its focus to their profound failure as jurists:
B4. Then Simeon b. Shetah said to them, Are you wrapped in thought? Let the Master of thoughts [God] come and call you to account. Instantly, Gabriel [the angel] came and smote them all to the earth [and they died].
In an extraordinary deus ex machina that reflects the heavenly source of justice, Gabriel metes out the harshest of punishments against the spineless judges. In the aftermath of this bloody climax, a new rule of jurisdictionFootnote 49 is announced:
B5. Then it was stated: The king may neither judge nor be judged, testify nor be testified against.
According to the Babylonian Talmud, the Mishnah's secondary rule, then, originated as a response to an ugly encounter between King Jannaeus and the sages.Footnote 50 To avoid future confrontations it was decided that insolent kings, such as Jannaeus, and evidently by extension all other non-Davidic kings (or perhaps even a wider range of kings), may not be judged and, therefore, should be separated from the judiciary altogether.Footnote 51 Presumably Davidic kings, who are considered pious, do not pose such a threat and continue to follow the original design wherein a king can judge and be judged.
Michael Walzer further unpacks the two different rules described by the Babylonian Talmud, which he conceptualizes as two distinct models.Footnote 52 (1) An ideal model for Davidic kings: the king rules alongside, and as a part of, the judiciary. While the king must act within institutional constraints and is subject to the jurisdiction of the court (i.e., without the privilege of sovereign immunity), he reciprocally gains the capacity to participate in the judiciary.Footnote 53 (2) An alternative model for non-Davidic kings (i.e., the secondary rule of the Mishnah): the ideal model functions only if the king subjects himself to the jurisdiction of the court and willingly cooperates with the judges. If, however, the king refuses to respect the authority of the court, then the ideal structure collapses (Walzer describes this as a constitutional breakdown). The alternative model is instituted because of the prevalence of recalcitrant kings in the non-Davidic monarchy.
What is the attitude of the Babylonian Talmud toward these two models? From Walzer's lexicon it seems clear that the ideal model constitutes the ultimate political vision of the Talmud. This is plainly the implication of R. Pappa's teaching, which projects the jurisprudence of Davidic kings in an optimal light. Similarly, the inferiority of the alternative model seems to emerge from its association in the Talmud with the infamous King Jannaeus (who is strongly censured in the Babylonian tradition).Footnote 54 Nevertheless, the extension of the alternative model to all non-Davidic kings (or perhaps even a wider range of kings) raises the possibility that this template represents a legitimate theory of governance (and is not just an outcome of a constitutional breakdown). Moreover, the fact that the Mishnah exclusively records the alternative model—and the ideal model is only inferred and reconstructed—heightens the significance of the alternative model or minimally lends it a more basic and less exceptional quality.
A fuller distillation of the Babylonian Talmud's ideology emerges from a careful parsing of its narrative of the Jannaeus trial. While in the most immediate sense, the Talmudic tale of the trial explains the origins of the alternative model of the Mishnah, in a deeper sense it offers a penetrating comment about these two different models or juridical perspectives. A critical examination of several insights of Cover and Walzer concerning the Talmudic account of the trial helps illuminate the way it calibrates between these two perspectives.
On one level, the Babylonian Talmud's narrative of the Jannaeus trial reinforces the ideal model. Even as the Talmud relays the Jannaeus episode that led to the implementation of the alternative model, it reminds us that it offers a reluctant solution.Footnote 55 In “The Folktales of Justice,” Cover underscores this point by demonstrating the essential role the unfolding narrative plays in the above Talmudic passage.Footnote 56 While the Mishnah records perhaps the only pragmatically viable setup (the alternative model announced, according to the Talmud, in the aftermath of the trial), the Talmud makes clear that Simeon, as depicted throughout the narrative, courageously pushed for a different kind of solution (the ideal model). In Cover's words: “The gesture of courage is conjoined with pragmatic concession” in the Babylonian Talmud, and “still the gesture of courage is the aspiration.”Footnote 57 The Talmudic myth thus inspires us to transcend power and specifically here, emboldens judges to “speak truth to power” by trying the recalcitrant king and not electing for “prudential deference . . . the great temptation, and the final sin of judging.”Footnote 58 Extending Cover's analysis may also imply that the Babylonian Talmud endorses both aspects of the ideal model, wherein the king judges and is subject to judgment,Footnote 59 which would further link the king and the court.Footnote 60
Yet, as much as Cover amplifies Simeon's role in the Talmudic narrative, he mutes its crucial normative reasoning. Recall that the Babylonian Talmud adduces the Jannaeus trial as an etiological tale that justifies a difficult normative ruling of the Mishnah. Pace Cover, who contrasts the tale with its normative punch line (labeling it a pragmatic concession), an integrated reading suggests that the entire account leads up to its legal apogee.Footnote 61 The ultimate legacy of the Jannaeus trial for the Babylonian Talmud is reflected in the manner in which it anchors the holding of the Mishnah.
Walzer's characterization of the Mishnah's rule, as framed by the Talmudic narrative, is in this sense preferable to the one articulated by Cover. Instead of merely labeling the Mishnah's rule as a pragmatic concession, Walzer suggests that it constitutes an alternative model that arises from the failure to incorporate kingship within a constitutional structure.Footnote 62 Elaborating on the implications of this model (where the rabbinic court withdraws from the political sphere due to a constitutional collapse), Walzer interestingly discerns the seeds of a later pattern in Jewish history whereby religious actors reclaim authority only in the absence of a strong, defiant political figure. By exploring the conceptual significance of the alternative model (announced in the aftermath of the trial, according to the Talmud), Walzer avoids a facile interpretation that would cast it as an immediate response to an egregious occurrence or even as signaling a broader pragmatic concession. Instead, he distinguishes an alternative model that becomes embodied in a legal rule.Footnote 63
Even Walzer, however, understates the implication of the Babylonian Talmud's rendition of the trial by describing the alternative model as arising from a contingency, a constitutional breakdown. Rather, according to the Talmud the alternative model constitutes a deliberate administrative law that responds to the inherently unstable relationship between law and power. Given the prodigious and problematic challenge of constructively integrating powerful kings into the legal system, as suggested by the Babylonian Talmud's narrative of the trial, the Mishnah judiciously codifies a norm of separation.Footnote 64
The full force of this normative conclusion can be better appreciated by considering the dramatic reversal recorded in the final section of the Talmudic narrative, which ultimately countermands the trope, lauded by Cover, of law triumphing over power.Footnote 65 While Cover is correct that the Babylonian Talmud underscores the heroism of Simeon and the validity of the divine mandate behind his position,Footnote 66 the final phase of the Talmudic account (B5)—which proclaims the Mishnah's alternative model—crucially overrides his view. Rather than vindicating Simeon and heeding his emphatic demand to submit to the divine call of justice, the narrative remarkably champions the king's stance.Footnote 67 Despite God's proximate presence among the sages (B2, B4)—which is especially manifest in the divine punishment of the cowardly ones (B4)—the Babylonian Talmud concludes that power and law are irreconcilable and these spheres must be kept apart. In other words, while one would have expected the Talmudic narrative to fully support Simeon's ideology and hail the supremacy of sacral law at all costs,Footnote 68 here the position of the king is vindicated or at least affirmed, and the lesser sages who fail Simeon's mandate are protected from failing again.
The fact that this alternative model becomes normative—that it is recorded as the default position of the Mishnah and is extended (at least) to all non-Davidic kings—notwithstanding the force of Simeon's position, needs to be understood. Here the narrative leaves a gap, which must be supplied by the interpreter. Perhaps a rare hero such as Simeon can overcome the resistance of a powerful ruler, but his stance can hardly be adopted as a widespread norm. Alternatively, even Simeon required the support of divine intervention, and such a heavenly act is too intrusive, possibly too dangerous, for the ordinary modus operandi of the normative system. Essentially, the narrative acknowledges that standard judicial procedures are inadequate to restrain a powerful ruler, which may signal that the court system cannot sustain such an expansive jurisdiction. A third aspect of the trial narrative that may have steered the Talmud away from Simeon's stance is its violence. Confronting the craven sages leads to a bloodbath, while compelling the defiant litigant requires maximum force. Here the problematic violence of the law—so underscored by Cover in another contextFootnote 69—is fully on display. In order to contain the violent ruler (who is guilty of bloodshed by association), the legal institution must commit an act of violence (both to its own judicial actors and the litigant). Speaking truth to power now demands overpowering the powerful. Allowing such violence of the law ultimately commits too much violence to the law.Footnote 70 Lastly, humbling powerful rulers,Footnote 71 in the manner of the narrative, may have too many negative collateral consequences—ranging from the threat of their retribution to the possibility of their marginalization—to be a viable option. One or more of the above explanations likely underpins the sharp turn in the Talmudic narrative away from the approach of Simeon.
The overall lesson of the trial for the Babylonian Talmud, then, is about the limits of law and its irreconcilability with sovereign power.Footnote 72 Although, as Simeon demonstrates, on an axiological level law transcends power, the court's jurisdiction must recede before sovereign power in order to protect the integrity of the legal system and allow it to function properly. A theological notion may underlie this conclusion as well. Recall how the Talmudic narrative trumpets God's looming presence in the court. Perhaps a divine legal system can only maintain its sanctity or operate effectively among those who recognize law as a manifestation of God's justice. Coercing a political actor who denies this creed is a futile exercise, or worse, even undermines the special fabric of sacral law. Be that as it may, the trial according to the Babylonian Talmud's account poignantly captures the irreconcilable clash between power and justice and emphasizes the need to keep these domains apart.
III: THE TRIAL IN THE MIDRASH TANHUMA
The analysis in Part II focused on the legacy of the account of the trial as redacted in the Babylonian Talmud, meaning, as understood in light of the introductory and concluding editorial glosses (B1a, B5) that frame the narrative. As argued above, these clauses,Footnote 73 which invoke the trial episode as background for the mishnaic ruling that a king may neither judge nor be judged, transform the entire meaning of the trial legend as transmitted in the Babylonian Talmud. Yet, the kernel of the story (B1b–B4) read independently of its larger Talmudic (and mishnaic) setting has an essentially opposite connotation. Read as a stand-alone account, the narrative actually trumpets the broad jurisdiction of the court of sages that reaches all litigants, even a defiant king (in contrast with the Mishnah's rule).Footnote 74 When King Jannaeus, who is summoned by the sages, attempts to undercut their authority, the brave Simeon demands his submission.Footnote 75 In justifying his bold stance, Simeon proclaims that the sanction of the sages emanates from on high: “For you do not stand before us but before He who spoke and the world was created.”Footnote 76 This motif is dramatically confirmed when the other sages, who shrink before Jannaeus, are instantly judged from the heavens. Shifting its focus to the judges who now assume the position of the guilty party, the narrative suggests that a judge abdicating judicial responsibility is a grave offense, perhaps worse than murder. Stripped of its editorial case, the story of the trial conforms precisely to Cover's thesis, as it champions Simeon's position that the rule of law must prevail over all litigants.
It is quite plausible that the kernel that emerges from this form criticism resembles an earlier iteration of the trial legend.Footnote 77 Likewise, source criticism helps peel away different accretions from the Talmudic tale and reveals a more rudimentary account of the trial, which was filled out with several discrete rabbinic teachings.Footnote 78 Support for the hypothesis of an earlier kernel is also found in a couple of parallel accounts of the trial recorded elsewhere in rabbinic literature, especially the Midrash Tanhuma, which maintain that rabbinic judges should judge the king, as described below. Moreover, the Tanhuma's rendition lacks the interpolated rabbinic teachings, and in this respect as well may resemble a preliminary version of the Talmudic account.Footnote 79 Indeed, scholars have argued more generally that a synoptic study of parallels between the Tanhuma and the Babylonian Talmud reveals that the version of the Tanhuma often corresponds to an earlier redaction of the Babylonian Talmud (which was then reworked by the later Tanhuma).Footnote 80 In any event, these parallel rabbinic accounts clearly diverge from the tale as recorded in the (later) redacted Babylonian Talmud, and underscore the sweeping jurisdiction of rabbinic judges.
The earliest of these parallel rabbinic texts is a brief passage in the Sifre Zuta. Commenting on Deuteronomy 19:17, this early tannaitic source alludes to the trial in a few spare words:Footnote 81
“Then both parties to the dispute shall appear (before God)”[Footnote 82] . . . even the king and a layman. And they taught about the episode involving King Jannaeus . . . before Simeon b. Shetah.
According to the Sifre Zuta, the verse from Deuteronomy mandating the appearance of both litigants before God translates into a summons to appear before the (rabbinic) court, echoing the rabbinic theme encountered above that the (rabbinic) tribunal serves as a proxy for divine justice. Further, the Sifre Zuta adds, the court's reach even extends to cases involving the king as a litigant. Evidence for broadening the court's jurisdiction to include a royal subject is adduced from the trial of King Jannaeus before Simeon. The Sifre Zuta thus rules, in contrast to the Mishnah, that kings are judged.
An elaborate rendition of this position is found in the Tanhuma.Footnote 83 Although this is a relatively late midrash, and this particular passage contains certain signs of a late redaction,Footnote 84 its substantive similarity to the Sifre Zuta and the kernel of the Babylonian Talmud, and its lack of interpolations, suggests that these three rabbinic sources reflect a distinct recension of the legend of the trial, whose core is quite early.Footnote 85 Certain minor differences differentiate these three passages as well. For example, whereas Sifre Zuta does not hint at the debatable nature of its teaching, and presumes that the king is subject to the court's jurisdiction, the Tanhuma openly probes whether a king may be summoned before the court, even as it emphatically concludes, like the Sifre Zuta, that a king is indeed subject to the court's authority.Footnote 86 In addition, the Tanhuma's account is the most expansive of the versions, especially in one prominent respect. It extends the narrative of the trial by adding a crucial and resounding denouement that strongly reinforces the sweeping jurisdiction of the court.
The Tanhuma's rendition of the trial involves Simeon and several unidentified actors: an unnamed Hasmonean king (who is directly accused),Footnote 87 an unknown opposing litigant, and a generic angel. The underlying legal complaint is also not specified, although the terminology suggests a civil offense rather than a capital one.Footnote 88 While the anonymity may bear on the dating of the passage,Footnote 89 its literary effect is to focus the account on Simeon, and the vindication of his position. Moreover, the reference to an unnamed king may extend the implications of this story to all kings.
The Tanhuma's account reads as follows:Footnote 90
(a) There was an episode involving a person who had a legal claim against a king from the Hasmonean dynasty, and he came and appeared before Simeon b. Shetah. He [the person] said, I have a legal complaint against the king. Simeon b. Shetah inquired of the judges presiding with him, if I summon the king, will you reprove him? They answered affirmatively. He [Simeon] summoned him [the king], and he [the king] arrived, and they offered him a seat next to Simeon b. Shetah. Simeon b. Shetah said to him [the king] arise upon your feet and provide a legal account. He [the king] said to him [Simeon], is one allowed to judge the king? He [Simeon] faced rightward and the judges hid their faces in the dirt, he faced leftward and the judges hid their faces in the dirt. The angel then came and smote them into the earth until they expired. (b) Immediately the king was shaken. Simeon b. Shetah said to him [the king] arise upon your feet and provide a legal account, for you are not standing before us, but rather before He who spoke and the world was created [God]. Immediately he [the king] arose to his feet and gave a legal account . . . .Footnote 91
In the Tanhuma's narration, after the king is summoned into court Simeon insists that he stand up, without providing a justification. Although the Hasmonean king parries with an assertion of a privilege of sovereign immunity,Footnote 92 which the other judges meekly accept (or are scared to defy), he is forcefully taught otherwise. An intervening angel fatally punishes the other judges—a crushing display of divine justice—and then Simeon reiterates his demand. Now, for the first time, he loudly proclaims that the judges serve as a proxy for divine judgment. By only inserting this rationale at this later point in the narrative, the Tanhuma especially spotlights the latter stages of the trial. In a crucial coda (beginning at (b) in the citation above) that is absent from the Babylonian Talmud (and inconsistent with (B5), the conclusion of the redacted Talmudic account), the Tanhuma depicts Simeon judging the once audacious king who has now been thoroughly humbled. The Tanhuma thereby maintains the juridical focus on the guilty king throughout the narrative,Footnote 93 in contrast with the Babylonian Talmud. The entire sequence of the Tanhuma underscores that nobody is above sacral law or exempt from its precincts, including powerful sovereigns.
In all, the legend of the trial of the Judean king as narrated in this second set of rabbinic texts imparts a very different message about the confrontation between law and power than the redacted Talmudic account. Whereas the tale as presented in the redacted Talmud calls for the separation of these realms, the narrative recorded in the second set of texts proclaims the supremacy of law to sovereign power. In the Sifre Zuta, jurisdiction over the king is simply asserted, and the trial is adduced as supporting evidence. In the Talmudic kernel, Simeon declares judicial authority over the king, and the sages who refuse to try the king are fatally punished. In the Tanhuma, judicial authority over the king is proclaimed, and then fully executed. In these various ways the second set of texts projects the sweeping rule of law, and its capacity to check and bind sovereign power.Footnote 94 In contrast, the redacted Talmud retreats from this conclusion. Notwithstanding the ascendancy of law, the redacted Talmudic narrative restricts the jurisdiction of the sages in the face of absolutist power, and arguably thereby better secures law's sacral nature.
IV: THE TRIAL IN JOSEPHUS'S WRITINGS
All of the narratives of the trial of the Judean king in rabbinic literature must be contrasted with Josephus's historiography (even as they share certain resemblances, described in Part I). Unlike the rabbinic versions that depict the king as the defendant (in the Babylonian Talmud, King Jannaeus is a kind of co-defendant), in Josephus's accounts King Hyrcanus serves as the judge (along with the Sanhedrin—see note 124) and a youthful Herod—a royal aspirant—is charged with murder and summoned to trial but evades conviction. Beyond these and various other factual discrepancies (several of which I refer to below), the most profound difference relates to the overall legacy of the trial.
Whereas rabbinic literature primarily refers to the trial in order to justify or expound upon rabbinic teachings, Josephus chronicles this event as a part of the history of the late Hasmonean and early Herodian periods.Footnote 95 While on the surface Josephus merely records a political episode, the thrust of his accounts makes a forceful statement about the nexus between law and power. Indeed, in a sense the entire trial revolves around this very point.Footnote 96
Josephus describes the events leading up to the trial of Herod both in the Jewish War and Jewish Antiquities (the actual trial is only portrayed in Antiquities),Footnote 97 and scholars have analyzed numerous parallels and distinctions between these two versions, as well as various internal inconsistencies within the (longer) Antiquities account.Footnote 98 Overall, the similarities in these accounts outweigh their differences, and together they relay a significant teaching about law as an expression of power politics. Still, focusing on several discrepancies between these respective accounts, as well as problems that arise within each, offers an important point of entry into Josephus's distinctive rendition of this episode.Footnote 99
Most basically, Josephus's two narrations convey conflicting signals about whether a trial, or at least its initial stages, ever took place. The War never mentions the trial. The later Antiquities account, which likely builds on two distinct earlier sources, has opposite connotations.Footnote 100 Whereas Antiquities 14.171–175 describes the trial procedure, Antiquities 14.176 sounds like Herod evaded the trial. Perhaps in the aggregate this suggests that (at least in the mythical memory) only an initial stage of the trial transpired, which raises a descriptive question of whether this even constitutes a trial or is best characterized as a dismissal before a trial.
Beyond this apparent tension, a review of Josephus's treatments of this trial reveals multiple explanations for why Herod's trial ended or was avoided, or more specifically why Herod was not convicted. The following reasons are stated, or at least hinted at, in Josephus's two accounts: (1) Sextus Caesar, the Roman governor of Syria, instructed Hyrcanus to discharge Herod (War, Antiquities),Footnote 101 and even threatened Hyrcanus to make sure he complied with the discharge order (Antiquities);Footnote 102 (2) Hyrcanus released Herod because he loved him (War, Antiquities);Footnote 103 (3) Herod escaped from the trial and ran northward to Roman Syria (War);Footnote 104 (4) Hyrcanus delayed the trial for a day and helped Herod to escape northward to Roman Syria (Antiquities);Footnote 105 and (5) Herod intimidated Hyrcanus and the Sanhedrin during the trial, and they freed him because they were too scared to try him (Antiquities).Footnote 106 While some of these explanations can overlap, others are independent from one another or even mutually exclusive.Footnote 107 In the aggregate, they inconsistently suggest that Herod escaped or was acquitted, or that his trial was adjourned.Footnote 108 Minimally, Josephus is guilty of “overkill” by supplying (much) more than one explanation.Footnote 109
Not only is Josephus confusing or confused, but so apparently are the trial's protagonists. Josephus describes Hyrcanus and Herod as misunderstanding each other's intentions following the trial. Upon arriving in Roman Syria after the trial, Herod expects a second summons that never arrives.Footnote 110 Similarly, Hyrcanus expects Herod to launch an avenging attack, which also never (fully) happens.Footnote 111 Moreover, Josephus's overall portrait of these two figures is difficult to follow. In a somewhat dizzying sequence, Josephus paints Hyrcanus not only as a weak person but also as a manically inconsistent figure. Over the course of a few passages (in both War and Antiquities), Hyrcanus's attitude toward Herod is described as animated by jealousy, anger, love, and fear.Footnote 112 Further, Hyrcanus is both intent on trying Herod and the opposite.Footnote 113 Josephus's portrait of Herod is also perplexing. While Josephus's initial account of Herod offers a glimpse of a shrewd and calculating political actor, Herod's lingering anger about the trial (or the threat of the trial) seems irrational, even reckless.Footnote 114 An explanation offered by Josephus for Herod's behavior (stating that Herod was planning to respond with force if summoned a second time, but then suggesting that he was intent on marching against Hyrcanus in any event) only compounds the problem.Footnote 115 Indeed, Antipater and Phasael do not seem to understand Herod's obstinacy, as they point out his good fortune in escaping the trial (and even emphasize that he should feel gratitude toward Hyrcanus).Footnote 116 To summarize, there is much confusion in Josephus's accounts about whether Herod ever stood trial; and why Herod was discharged (or how he evaded his trial). Also, Josephus offers a contradictory portrait of Hyrcanus, and depicts a calculating Herod caught up in what seems to be irrational anger about a matter that was settled in his favor, perhaps with the assistance of Hyrcanus.
While some of these inconsistencies can be attributed to Josephus's two accounts and the likely disparate sources from which he culled in composing them,Footnote 117 I would conjecture that Josephus provides multiple explanations for the trial's conclusion and projects uncertainty onto the trial's protagonists because he is confused by these events. Nevertheless, if one returns to the basic outline of the narrative that Josephus records, one can reconstruct a fairly coherent account of this momentous trial (i.e., perhaps Josephus is transmitting a narrative of the trial that he does not fully comprehend). The various stages of the trial, as narrated, are coordinated around its heightened stakes—which are abundantly clear to the protagonists (even if they are less plain to Antipater, Phasael, and others). Hyrcanus and Herod, as represented in this narrative account, realize throughout that the trial is not really about murder, notwithstanding the official charge. Rather, the entire trial—from its cause of action to its adjudicators to its outcome and aftermath—revolves around controlling the monarchy and is propelled by the substantial bond between royal and legal authority. In order to bring this point into sharper relief, in the discussion that follows I first contextualize the trial within the historical period in which Josephus situates it and then analyze the essence of the trial narrative.
In the course of describing the lives of King Hyrcanus, Antipater, and his son Herod, Josephus recognizes this trial as an important episode that captures Herod's rising acclaim and the early resistance that he encountered. Transpiring during the waning years of the Hasmonean dynasty, the trial also exposes its increasing vulnerability. Riven by inner turmoil (civil wars and sectarian feuds) and dominated by the Roman conquest (Pompey invasion), the Hasmonean dynasty is in an enfeebled state by the middle of the first century BCE.Footnote 118 In the years preceding the trial, first Aristobulus and then his son Antigonus compete for the Hasmonean throne with Hyrcanus.Footnote 119 In order to resolve this dynastic controversy, Hyrcanus appeals to Caesar, a further reflection of the fragile state of Jewish affairs.Footnote 120 Although Hyrcanus manages to prevail, Antipater and his two sons—Phasael, a governor in Judea, and, especially, the younger Herod, a governor in the Galilee—continue to vie with him for royal power.Footnote 121
Animated by an insatiable ambition for power, Herod is no doubt emboldened in his pursuit of Hyrcanus's crown by these past events, and likely by the historic political changes in the Roman world.Footnote 122 Evidently eager to lay the groundwork for his royal quest, Herod kills Ezekias and a troop of bandits in the Galilee. He thereby brings stability to a region under his control, flexes his military prowess, and gains a notable reputation even among the Roman Syrians, all steps towards accumulating sovereign power.Footnote 123 In the aftermath of the killing, Herod is summoned to trial before King Hyrcanus and the Sanhedrin (the latter is mentioned only in Antiquities).Footnote 124 As stated above, Herod is never convicted.
The essence of the trial can now be discerned by focusing more carefully on the underlying offense, Herod's alleged crime of murdering bandits in the Galilee. The charge is made in Antiquities in the following terms:Footnote 125
Thus Herod . . . has killed Ezekias and many of his men in violation of our law which forbids us to slay a man, even an evildoer, unless he has first been condemned by the Sanhedrin to suffer this fate. He however has dared to do this without authority from you [Hyrcanus].
In other words, Herod is indicted for homicide, having acted without a prior condemnation of the Sanhedrin and/or authorization from the king. Similarly, according to the War, Herod acted “without either oral or written instructions from Hyrcanus, killing people in violation of Jewish law.”Footnote 126 To reformulate this, what defines Herod's act as ‘murder’ is that it was illicit; but had it been decreed or authorized by the king and/or the Sanhedrin then it would be considered a lawful punishment of, or an authorized strike on, dangerous bandits.Footnote 127
Notably, this indictment operates with assumptions about criminality and lawfulness that to the modern reader are profoundly Weberian in nature. To wit, the very same violent act is either a criminal violation (murder!) or a legal or political duty, depending upon the perpetrator and the conditions under which the act is perpetrated. Had the sovereign executed capital punishment against a notorious criminal, his act would be a faithful administration of justice; and had he subdued an at-large terrorist, his act would be an exemplary exercise of political authority. This highlights that an essential function of the sovereign is that he (licitly) perpetrates violence—for, as Weber teaches us, the sovereign monopolizes violence.Footnote 128
In the context of the trial narrative, the crucial point is that the sovereign, or king, is the quintessential figure who can authorize a licit killing of bandits. From the continuation of the account, it appears that the king manages this power both as the supreme legal authority (alongside the Sanhedrin) and as the principal political authority. Hyrcanus therefore reifies his exclusive royal standing by defining Herod's act as criminal. Law thus serves as Hyrcanus's instrument to subordinate Herod and suppress his royal aspirations.
From Herod's perspective, however, his act has the opposite connotation. Having assumed leadership in the Galilee, Herod deliberately asserts his control over the region by eliminating the menacing outlaws as a way of demonstrating his sovereignty.Footnote 129 The advisors who exert pressure on Hyrcanus to try Herod (according to Antiquities) sense the broader royal aspirations of Herod (and Antipater) and recognize how Herod's killing of Ezekias and the bandits serves his objectives:Footnote 130
But the chief Jews[Footnote 131] were in great fear when they saw how powerful and reckless Herod was and how much he desired to be dictator. These Jews came to Hyrcanus and asked in disbelief, “Do you not see that Antipater and his sons have girded themselves with royal power, while you have only the name of king given you?[Footnote 132] But do not let these things go unnoticed, nor consider yourself free of danger because you are careless of yourself and the kingdom. For no longer are Antipater and his sons merely your stewards in the government, and do not deceive yourself with the belief that they are; they are openly acknowledged to be masters. Thus, Herod, his son, has killed Ezekias . . . .”
Aiming to secure royal status, Herod pursues Ezekias and the bandits.Footnote 133 Following Herod's calculus, he does not need authorization from Hyrcanus. As rightful ruler over the Galilee, Herod's act constitutes a sovereign act of enforcement, and is the opposite of criminal.
By trying Herod, Hyrcanus therefore aims to subvert the royal symbolism of Herod's act. Charging Herod with murder serves as a way of defining Herod's actions as the unauthorized criminal act of a subject of the king and the legal authorities. Moreover, the very act of summoning Herod to court further reinforces this same hierarchy. This point is spelled out in a passage in the War that records the argument made by Hyrcanus's advisors that swayed him to subpoena Herod, “If he [Herod] is not king but still a commoner, he ought to appear in court and answer for his conduct to his king and to his country's laws, which do not permit anyone to be put to death without trial.”Footnote 134 What differentiates the king from his subject is that a king can never be summoned to court, while a subject of the king must answer before “his king and to his country's laws.” Formulated in mishnaic terminology, Josephus here describes a scheme, common throughout the world of antiquity, where the king judges (apparently, he serves as the leading judge),Footnote 135 but cannot be judged. Thus, while Herod's underlying act aims to assert his royal status, both Hyrcanus's indictment and subpoena undermine Herod's rank and signify that only Hyrcanus commands royal authority. The underlying act, indictment, and subpoena all cut to the heart of the question of who has monarchic standing.Footnote 136
For Herod, the very notion of being accused of murder and standing trial is therefore an unforgivable (double) affront to his royal aspirations. To offset the damaging implications of his appearance in court, Herod carefully calculates his response to the summons. He arrives in court with the accompaniment of an impressive, quasi-royal, entourage.Footnote 137 Moreover, during the course of the trial proceedings, Herod assumes an indomitable posture:Footnote 138
But when Herod stood in the Sanhedrin with his troops, he overawed them all, and no one of those who had denounced him before his arrival dared to accuse him thereafter; instead there was silence and doubt about what was to be done.
A more detailed description of Herod's manner before the court is offered by Sameas, in his rebuke of Hyrcanus and the other judges:Footnote 139
Fellow councilors and king, I do not myself know of, nor do I suppose that you can name, anyone who when summoned before you for trial has ever presented such an appearance. For no matter who it was that came before this Sanhedrin for trial, he has shown himself humble and has assumed the manner of one who is fearful and seeks mercy from you by letting his hair grow long and wearing a black garment. But this fine fellow Herod, who is accused of murder and has been summoned on no less grave a charge than this, stands here clothed in purple, with the hair of his head carefully arranged and with his soldiers round him, in order to kill us if we condemn him as the law prescribes, and to save himself by outraging justice . . . .
Herod's audacious appearance before Hyrcanus and the judges should be seen not only as irreverent or intimidating but as deliberately monarchic in nature. Donning the emperor's purple, with a perfectly groomed hairdo, Herod wears royal attire in order to display that he, as a king, is above the law.Footnote 140 Likewise, he does not act humbly before the legal authorities because he refuses to submit to their jurisdiction.
Yet, from Hyrcanus's perspective, although he balks at Herod's behavior and fails to subdue Herod,Footnote 141 the aborted trial has already bolstered his position. While at first blush Hyrcanus acts throughout this episode in a manner that seems confused and perhaps even spineless,Footnote 142 he achieves more through his uneven behavior than is immediately apparent. Monitoring Hyrcanus's apparently erratic conduct actually exposes the deliberate and resolute manner in which he aims to cut Herod down to size through the trial procedure. For the very act of summoning Herod, and then acquitting him, doubly achieves Hyrcanus's purpose: Herod must appear in court and respond to a homicide charge, which signifies his non-royal status; Hyrcanus's discharge of Herod, in turn, displays his (not Herod's) royal-judicial authority.Footnote 143
In a sense, Hyrcanus is availing himself of his only real option. Not summoning Herod would have meant capitulating to his act of royal usurpation. Trying Herod would have been far too confrontational and perilous.Footnote 144 Therefore, Hyrcanus adopts the optimal course of action for his purposes.
Although onlookers deem Hyrcanus cowardly (e.g., Sameas) or compassionate (e.g., Antipater), Herod has a keener perception of his opponent and what has transpired. Herod understands that his very appearance at the trial, along with the subsequent official discharge, cedes much to Hyrcanus in the struggle for sovereignty.Footnote 145 This is likely the reason why Herod remains so disturbed by his subpoena even after he escapes the trial. Herod therefore resolves not to reappear in court,Footnote 146 and even considers avenging his earlier appearance.Footnote 147 Rather than behaving rashly, the calculating Herod realizes that he has been bested by Hyrcanus's latest move of acquittal. Ultimately, Herod refrains from mobilizing troops, not out of gratitude to Hyrcanus or because of the pious lessons that Antipater and Phasael stress, but because he likely concludes that his competing show of strength at the trial was adequate for now.Footnote 148 Herod postpones further flaunting his “royal” powers until a later date. Sure enough, in time Herod is completely vindicated when the roles are reversed, and Herod serves as the royal judge in a subsequent trial against Hyrcanus.Footnote 149
The trial narrative recorded in Josephus's works, then, exposes a juridical universe that functions at the crux of power politics, and is animated by a fascinating and novel conception of sovereignty that is legalistic in nature.Footnote 150 Whoever exercises legal authority or controls the violence of law assumes the role of the sovereign.Footnote 151 Convening tribunals, subpoenaing commoners, and exercising the power to indict or acquit, the king can also confer a licit status on political actions. Presiding at the helm of the judiciary and delimiting the scope of legality, the king, almost by definition, stands immune from lawsuits.
This legalistic conception of sovereignty fuels the entire trial narrative in Josephus's accounts. When Herod senses a void in monarchic leadership, he attempts to assert his own royalty by assuming a regal posture, especially within the legal sphere. Responding to Herod's power grab, Hyrcanus attempts to contain Herod by entrenching his subordinate position under the rule of the king and the king's legal authority. Herod resists this demotion at the trial, but nevertheless is partially trapped under the king's legal procedures. Far from the rabbinic legacies of the trial story, Josephus's trial narrative reflects the legal supremacy of the king and the allure of legal authority for those who aspire to gain sovereign power.
CONCLUSION
In sum, the legacy of the narrative of the trial of the Judean king in Jewish antiquity and late antiquity runs the full gamut. According to the redacted Babylonian Talmud, it captures the irreconcilability of law's confrontation with political power; in the Midrash Tanhuma, the legendary trial demonstrates that law is all-encompassing and binds the politically powerful; and in Josephus, it exhibits how the politically powerful control the sphere of law. The very act of narration of this myth generates a plurality of perspectives.Footnote 152
Underlying these multiple narrations is a momentous historical event dating to the Hasmonean period, whose impact reverberated throughout antiquity and late antiquity. In a tense encounter between the judicial sages and a leading political actor the very viability of the legal system was put to an existential test. Threatening to topple the monumental legal edifice that had been constructed upon the foundations of Sinaitic revelation, a defiant, powerful figure challenged the validity and reach of sacral law. While the historical incident is shrouded in an impenetrable cloud of obscurity, the paideic community of antiquity and late antiquity mediated the significance of this critical encounter through their laden retellings of the tale of the trial.
In a thoughtful summary of his treatment of the trial in “The Folktales of Justice,” Robert Cover also distinguishes between the historical foundation and the mythical tale that rehearses this event. Cover's remarks are highly indicative of his overall theory of legal narratives:Footnote 153
In the historical . . . case of King Yannai [Jannaeus]/Herod, the gesture of courage is conjoined with pragmatic concession. It may be that had the craven colleagues of Simeon been more courageous, they would all have survived. It may also be that they all would have died and Simeon with them as their leader . . . . We can never be sanguine about the capacity of courage to rescue itself. Still, the gesture of courage is the aspiration . . . certainly rescued in the Talmudic account by a deus ex machina—the Angel Gabriel, himself. Nonetheless, were the gesture and aspiration of resistance not the principal motif of these stories, we would have no reason to remember them or to make them our own. We would need no myth to prepare us to cave in before violence and defer to the powerful. We must get the relative roles of myth and history straight. Myth is the part of reality we create and choose to remember in order to reenact. It is intensely personal and committed. History is a counter-move bringing us back to reality, requiring that we test the aspiration objectively and prudentially. History corrects for the scale of heroics that we would otherwise project upon the past. Only myth tells us who we would become; only history can tell us how hard it will really be to become that.
Even as Cover's sharp distinction between history and mythology has much appeal,Footnote 154 his characterization of each is drawn too narrowly. History records events as they transpire—whether they unfold neatly or chaotically, triumphantly or tragically. Facing the historical record can therefore leave us inspired, in despair, or can evoke a full range of other responses. To the extent we aim to retrieve history, however, there are formidable challenges. The shattering impact of critical events often generates confusion and controversy, which makes the prospects for accurate reconstruction improbable. Moreover, the problem of recovery is compounded by the passage of time, which creates an ever expanding chasm between the past and the present. In contrast, myths fill in the void of a fading antiquity. Moreover, they allow narrators and listeners to once again inhabit prior spaces and, as Cover says, to reenact encounters of bygone eras.
Yet Cover's definition of myths constricts their course to one possible outcome. According to Cover, myths coax us forward; they spawn, or at least aim to inspire, heroic behavior. Thus, the myth of the trial of the Judean king inspires the morally upright to speak truth to powerful figures. Cover is right in envisioning such a mythology. Indeed, the myth of the trial can be narrated as a tale in which the intrepid guardian of law prevails over an absolutist ruler (Tanhuma). But the myth can also be narrated in different ways. Perhaps the myth rehearses the deep, irreparable trauma of the destructive confrontation between law and power. Retelling the tale of the legendary trial refracts the acute existential threat that was barely survived. Therefore, the myth is oriented toward a more secure climax where a steadfast barrier is erected to ensure that this alarming encounter never recurs (the redacted Babylonian Talmud). Or perhaps the myth imagines the extensive machinations of powerful rulers who deftly exploit legal instruments while jockeying for control of the normative field (Josephus).
All of these narrations of the trial of the Judean king offer alternative resolutions to an epic clash between law and power. Their narrative arcs cannot be predetermined. Such narratives gesture at disparate ideas about the best ways to navigate a complex legal and political terrain. Only when one heeds the multiple retellings of the foundational myth of the trial of the Judean king can one discern the profoundly different narrative trajectories—and underlying conceptions of law, justice, and sovereignty—that emanate from a single tale.
