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Menachem Lorberbaum is Lecturer in Jewish Philosophy at Tel Aviv University and Research Fellow at the Shalom Hartman Institute, Jerusalem. He is co-editor of The Jewish Political Tradition: Volume 1, Authority.

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POLITICS AND THE LIMITS OF LAW

Stanford University Press

Contents

PREFACE...............................................................xiINTRODUCTION: DIVINE LAW AND SECULAR POLITICS.........................1The Polity............................................................3Biblical and Talmudic Background......................................6Synopsis..............................................................13PART 1: MAIMONIDES1 THE NATURAL FOUNDATIONS OF POLITICS.................................17"Man Is Political by Nature"..........................................18Modern Interpretations................................................24Polity and Society....................................................25Medieval Interpretations..............................................28Naturalizing Divine Law...............................................302 THE INSUFFICIENCY OF LAW............................................35Maimonides on Law.....................................................35From Law to Politics..................................................413 THE CODE ON THE PRIORITY OF POLITICS................................43Monarchy-A King Must Be Appointed and Honored.........................44The King and the Sanhedrin............................................47The King's Right to Command...........................................51The King's Right to Punish............................................55Royal Law.............................................................61Consent...............................................................65The Maimonidean Monarchy-Instrumental or Natural?.....................674 CONSTITUTIONAL CRISIS AND MESSIANIC RESOLUTION......................70The Maimonidean Polity................................................70Politics and Religion.................................................72Tension...............................................................75The Messianic Polity..................................................77The Utopian Vision....................................................83The Messianic Age and the Utopian Vision..............................87Conclusion............................................................89PART 2: GERONDI5 THE KAHAL AS A POLITY...............................................93The History of Public Law.............................................95Communal Authority....................................................100Nahmanides............................................................106Solomon ibn Adret (Rashba)............................................112Conclusion............................................................1226 THE AUTONOMY OF POLITICS............................................124Politics..............................................................127The Structure of the Polity...........................................134Divine Law............................................................138Impasse...............................................................143CONCLUSION: SECULARIZING POLITICS.....................................151Turning to Modernity..................................................156NOTES.................................................................163BIBLIOGRAPHY..........................................................193NAME INDEX............................................................209GENERAL INDEX.........................................................213

Chapter One

MAIMONIDES' political theory naturalizes politics. In the Guide, political authority is legitimized by an appeal to nature rather than by an appeal to revelation or divine command. Nevertheless, Maimonides' conception of politics grows out of his understanding of Torah as divine law. He bases his theory of government on the premise that politics is natural and law divine. The coming chapters chart the development of this conception, showing that ultimately Maimonides is unable to resolve the tension between divine and natural.

The consistency of particular doctrines through Maimonides' various presentations in his different works cannot be taken for granted. Indeed, it is much debated in the literature. Philosophy and legal codification, however compatible, inhabit distinct realms of discourse. Obviously, there is no simple correspondence between theoretical contentions about any given subject and judicial rulings to which they may be germane. The distinctions between divine law, natural law, and nomos are not paralleled by those between halakhah, Noahide law, and dina demalkhuta dina (the law of the kingdom is law); the distinction between Davidic kings and Israelite kings cannot be viewed simply as a particularization of the distinction between the rule of wisdom and the rule of law. But while the meanings and application of these concepts differ significantly, these differences do not preclude the possibility of comparison, they merely mandate meticulousness. Maimonides himself, it should be noted, presented philosophical discourse as "the science of the Law in its true sense" (Guide, Introduction, p. ?).

I will, therefore, separate Maimonides' treatment of the questions at hand in the Guide from their treatment in the Code. Ultimately, this methodological stricture will serve to illustrate the fact that the two are fundamentally compatible.

"Man Is Political by Nature"

It has been explained with utmost clarity that man is political by nature and that it is his nature to live in society. He is not like the other animals for which society is not a necessity. -Guide 2:40, p. 381

These lines from the Guide, echoing Aristotle on human political nature, are found at the heart of Maimonides' discussion of prophecy. After explaining that "the call to the Law followed necessarily" only from Moses' prophetic understanding (2:39 p. 378), Maimonides addresses the nature of the Torah as divine law. Yet the Aristotelian terminology may obscure rather than illuminate Maimonides' position. It is characteristic of the Islamic philosophic tradition Maimonides draws upon to downplay the differences between Plato and Aristotle and, in effect, to Platonize Aristotle. This is especially so with regard to politics. Aristotle's Politics was not known to philosophers of the early Middle Ages, although Al-Farabi may have had access to an abridged version. Plato's Republic, Laws, and Statesman were the basic texts in light of which Aristotle's Ethics was read.

The import of the proclamation that "man is political by nature" is not self-evident. Let us consider the passage. Maimonides first states that human beings' political nature "has been explained with utmost clarity." There appears to be no other passage in the Guide where Maimonides claims that an assertion has been explained "with utmost clarity." Throughout the Guide, Maimonides takes the role of explicator. Although the person to whom the book is addressed does not join in the dialogue, the speaker/explicator assumes his presence. The many subtle variations in the manner in which the speaker addresses his reader are integral to the course of the argument. The speaker points out familiar assumptions (for example, 1:26, 1:50, and 2:3) and at times exhorts the reader to pay particular attention to something (for example, 3:4, 5, 7, and 12). But generally, as noted, the speaker assumes the role of explainer. Many chapters end with the exhortation "know this" or "understand this," and many of the book's arguments close with the formula "the matter has thus been explained." In 2:40, however, Maimonides seems to be using this phrase to introduce a new premise rather than to indicate that a proposition has been proven. Where and by whom has it been explained that "man is political by nature"?

Maimonides may be referring to Greek or Arab philosophers who made similar assertions. But it is more likely that he is referring the reader to remarks he himself makes earlier in the Guide in 1:46 and 1:72 apropos discussion of other matters. That is, he is calling upon the reader to recall these earlier remarks, which support the opening pronouncement of 2:40. The ensuing discussion then ties the two passages together, clarifying their wider significance.

In 1:72 Maimonides presents man as a microcosm, a model for comprehending the structure of the universe. Maimonides points out that although such a comparison could have been drawn using any animal, since all animals are organic unities, humans are chosen as the analogue because only humans possess a rational faculty by virtue of which they are able to govern their lives. This rational capacity is closely linked to their being a social and political animal.

Both elements of the Aristotelian definition of human beings as "rational animals" are important: we can ignore neither man's basic animal nature and needs nor his rationality. To understand human nature it is necessary to compare human beings to other animal species. Whereas many other animals can live solitary lives, the human's very existence demands a political life:

Let us suppose the case of an individual belonging to the human species that existed alone, had lost the governance of its conduct, and had become like the beasts. Such an individual would perish immediately; he could not last even one day except by accident-I mean if he should happen to find something he might feed on. For the foods through which he exists require the application of some art and lengthy management that cannot be made perfect except through thought and perspicacity, as well as with the help of many tools and many individuals, every one of whom devotes himself to one single occupation. For this reason one is needed who would rule them and hold them together so that their society would be orderly and have continued existence in order that the various individuals should help one another. (1:72, p. 191)

Maimonides stresses that individuals cannot achieve material self-sufficiency; subsistence calls for collaborative effort. The need for a ruler arises from this condition. Maimonides does not explain here how it is that the ruler would "hold them together," but presumably the element of holding a society together makes this individual more than just a manager; it makes this person a ruler. And it is because human society has a ruler that it is distinctively political.

Maimonides then further develops the idea that the human species' capacity to battle the elements can be perfected only through "thought and perspicacity":

Because of this one finds in man the rational faculty in virtue of which he thinks, exerts his perspicacity, works, and prepares by means of various arts his food, his habitation, and his clothing. Through it he rules all the parts of his body in such a way that the ruling part acts in the way it does and the ruled part is governed the way it is ruled. Because of this a human individual who, according to a supposition you might make, would be deprived of this faculty and left only with the animal faculties, would perish and be destroyed immediately. (1:72, p. 191)

Man's rational faculty and political capacities are intimately connected. Both involve the ability to rule and order subordinate elements for the sake of concerted effort. The sociopolitical and rational aspects of human beings are virtually interchangeable in Maimonides' discussion: political rhetoric is used to describe and explicate the function of practical reasoning. Maimonides refers to both politics and rationality as the capacity to govern conduct.

The other reference to man's political nature precedes 2:40 and is found in 1:46. In discussing the difference between direct and indirect knowledge of God, Maimonides offers the following parable:

For instance, if someone asks you, Has this country a ruler? you shall answer him, Yes, undoubtedly. And if he asks you, What proof is there for this? you shall tell him, This proof is to be found in the fact that while this money-changer is, as you see, a weak and small man and this great amount of dinars is placed before him, this other big, strong, and poor individual is standing in front of him and asking him to give him as alms a carob-grain and that the money changer does not do this, but reprimands him and drives him off by means of words. For, but for his fear of the ruler [sultan], the poor man would have been quick to kill him or to drive him away and to take the wealth that is in his possession. Accordingly, this is a proof of the fact that this city has a king. (1:46, p. 97)

The distinctive achievement of the king, that which proves his presence in the city, is the fact that asymmetry of individual physical strength does not undermine social order. The fear instilled by the king ensures the binding power of social rules.

Chapter 2:40 invokes these two elements-man's social nature and the role of rulers in maintaining order and peace. Taken together, they explain the transformation of an aggregate of human beings into a political society. In the opening lines of the chapter, Maimonides attributes to human nature two characteristics: it is political and it is social. Assuming the reader's prior knowledge, he does not explain why humans are social but simply asserts that this is so. He then moves forward from these premises to address the structure of the polity.

Maimonides begins by noting the tension between the diverse personality traits of individuals and the societal nature of man:

Because of the manifold composition of this species ... you can hardly find two individuals who are in any accord with respect to one of the species of moral habits, except in a way similar to that in which their visible forms may be in accord with one another.... Nothing like this great difference between the various individuals is found among the other species of animals.... For you may find among us two individuals who seem, with regard to every moral habit, to belong to two different species. Thus you may find in an individual cruelty that reaches a point at which he kills the youngest of his sons in his great anger, whereas another individual is full of pity at the killing of a bug or any other insect, his soul being too tender for this. (?:??, pp. 381-82)

This tension is resolved through politics:

Now as the nature of the human species requires that there be those differences among the individuals belonging to it and as in addition society is a necessity for this nature, it is by no means possible that his society should be perfected except-and this is necessarily so-through a ruler. (2:40, p. 382)

Politics, via the institution of ruling, the mastery of one human being over others, is the necessary response to the inner tension arising from human beings' natural diversity of character, which jeopardizes the possibility of social life. Although the ruler wields power in order to achieve certain ends, it is the ruler's own will and power that hold society together. It is presumed that the ruler possesses power, which is a natural endowment. God "put it into [the human species'] nature that individuals belonging to it should have the faculty of ruling" (2:40, p. 382). It is the ruler who

gauges the actions of the individuals, perfecting that which is deficient and reducing that which is excessive, and who prescribes actions and moral habits that all of them must always practice in the same way, so that the natural diversity is hidden through the multiple points of conventional accord and so that the community becomes well ordered. (2:40, p. 382)

Miriam Galston has argued that the rules Maimonides has in mind at this stage are "traditions" that "lack the formal character of promulgated laws." She understands Maimonides as referring to a prepolitical community: "a community or association-not a city." However, although Maimonides does not speak of law at this stage, this is not because it is prepolitical. On the contrary, Maimonides speaks of the necessity of a ruler in the course of explicating man's political nature. He is characterizing the original form of the city and not a lower form as Galston suggests. The point is not that the community is prepolitical but that it is prelegal. Maimonides presents the model of political rule that precedes the giving of law. Here he follows both Plato and Al-Farabi, according to whom the wisdom of a live ruler is superior to the rule of law. Maimonides' description echoes the Platonic preference for the "rule of wisdom" as opposed to the "rule of law."

Indisputably, however, there are two aspects to ruling. Its goal is the ordering of society, a goal achieved through the correct use of power. There are, therefore, two complementary political roles: that of legislator and that of king. In the initial description they appear to be filled by one and the same person: "A ruler who gauges the actions of the individuals ... and who prescribes actions and moral habits that all of them must always practice in the same way" (2:40, p. 382). But nature usually endows different people with these qualities:

There is the one to whom the regimen mentioned has been revealed by prophecy directly; he is the prophet or the bringer of the nomos. Among them there are also those who have the faculty to compel people to accomplish, observe, and actualize that which has been established by those two. They are a sovereign [al-sultan] who adopts the nomos in question.... (?:??, p. ???)

When Maimonides speaks about the role of the ruler in exercising power, he usually uses the word sultan, as in the quoted passage from ?:??, rather than the more general mudabber, which can also refer to the prophet (as, for example, in 1:54). Power is crucial to politics because it is through power that the king holds society together. This power may or may not be exercised in accordance with the law. Politics in the narrow sense simply means wielding power-"the faculty to compel people."

It is clear that as there must be punishments, it is indispensable to have judges distributed in every town. There must be testimony of witnesses, and a ruler [sultan] who is feared and held in awe and who uses all sorts of deterrents and fortifies the authority of the judges and in his turn draws strength from them. (3:41, p. 562)

In its fullest sense, politics is the ordering of a society through the exercise of power according to law. A polity is an ordered association of people where the power of the ruler and the order of law bond and regulate the divergent elements of society.

(Continues...)

Excerpted from POLITICS AND THE LIMITS OF LAWby MENACHEM LORBERBAUM Copyright © 2001 by Board of Trustees of the Leland Stanford Junior University. Excerpted by permission.
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