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Legal engagement

Katell Berthelot
Natalie B. Dohrmann
Capucine Nemo-Pekelman

Law and self-perception

The rabbinic model of sovereignty in biblical and imperial contexts

Ron Naiweld


As the constitutive text of rabbinic Judaism, the Mishnah provides a unique theological and political framework shaped through contact with both Jewish and Roman influences. The following is an attempt to reconstruct this framework by examining the rabbinic legal institution of the beit din in relation to the priestly model of sovereignty, on the one hand, and to the imperial context, on the other. Special attention is given to the Edict of Caracalla, issued shortly before the redaction of the Mishnah, and to the theological justification it gives to the universalization of Roman citizenship.

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  • 1 See Yair Furstenbergs’s contribution to this volume. See also Lapin 2012; Hezser 2003.

1Coming to assess how and to what extent Roman legal discourse and practice were digested by the ancient rabbis, I find myself in an awkward position. As has been made clear by recent historical and philological studies, these rabbis can be seen as Romans. Their legal discourse is forged in an imperial context to which they react and from which they borrow.1 Yet the rabbis’ textual creations that have reached us are clearly non-Roman in many respects, and have proven in the longue durée of Jewish history to be resistant to the absorbing force of the empire. Rabbinic discourse is a rare case of a provincial legal discourse that survived Roman occupation and continued to be elaborated during and after the decline and fall of Rome. If I want to think about its Romanness without ignoring its endurance, I have to find a frame of reference in which rabbinic and imperial forces do not annihilate each other.

  • 2 Lapin 2012, p. 45.
  • 3 For two good introductions to the Mishnah in English, see Stemberger 1992; Goldberg 1987. For more (...)

2As a starting point, I choose one of the constitutive texts of rabbinic Judaism: the Mishnah. Redacted in the early 3rd-century Galilee in what seems to have been a defining moment of the institutionalization of the rabbinic movement,2 the Mishnah is a compilation of Jewish legal and cultic traditions, most of them given in the apodictic form of a ruling. Some of the teachings are anonymous, some are attributed to the “sages” (akhamim) and others to rabbinic or other figures.3 The text of the Mishnah, transmitted at first orally, became the basis of rabbinic education in both Palestine and Babylonia during the 3rd and 4th centuries.

3The Mishnah names the group that is to follow the laws and instructions it articulates: Israel, a religious and political entity of a type that could be found elsewhere in the Greco-Roman world. It has a cultic center (the Jerusalem temple), a king, and many subjects who are treated equally by law. This ideal Israel underlies many if not most of the teachings in the Mishnah. That said, some teachings in the Mishnah reveal their awareness of the historical present – when the Mishnah was redacted, the Jewish temple in Jerusalem had ceased to exist for more than a century. However, in the political universe forged by the Mishnah, the absence of the cultic center and of kingship does not entail the absence of sovereignty.

  • 4 It is out of the scope of this article to discuss how the sovereign function of the beit-din was r (...)
  • 5 See discussion in Goodman 2000, mainly p. 155-171, as well as the initial chapter of Cohn 2012. Fo (...)

4In fact, there is one political institution that continues to exist even after the destruction of the Temple – the beit din. Its function can best be described as that of intermediary between the “citizens” of Israel and its Law, the Torah.4 The term beit din, usually translated to English as “court,” literally means “the house of reasoning,” or “ruling,” or “decision”. As we will see, the privileged position attributed to the beit din makes it the actual sovereign of Israel, making both Temple and king superfluous. The beit din of the Mishnah is itself not historical, in the sense that it does not represent a historical reality. This is not to say that there were no Jewish courts and judges in the 2nd and early 3rd centuries, but rather to emphasize that when the Mishnah and other tannaitic sources tell us case stories about rabbinic judgments or rulings, they do not follow the norms prescribed in other parts of the Mishnah.5

  • 6 On the relationship between rabbinic Judaism and priestly ideology, see e.g. Boccaccini 2002; Shem (...)

5In general, the political model of the Mishnah is forged against the background of two models that its redactors knew well. One existed in their collective memory: the priestly order, which is described in the Torah, was active throughout much of the 2nd Temple Period, and situates the God of Israel as the true sovereign of the people. In this model, divine power is intermediated mainly by the priests. In its basic form (not necessarily as described in the Bible), this order was held by some Jews to be the ideal political regime.6

6The Torah acknowledges the possible existence of an Israelite king, but makes clear that the people would do better without him. According to the biblical account, the number of kings who followed the deity’s commandments was relatively small: most ignored or underestimated his power. This also was the case with most of the Jewish kings whom the rabbis depicted from the 2nd Temple Period. As we will see, the Mishnah grants some power to the king and the priests but generally places the rabbinic court above both.

  • 7 See Yair Furstenberg’s contribution in this volume.

7The second source of political inspiration for the rabbis can be traced to the immediate experience of the redactors: the political reality of early 3rd-century Palestine as a province of the Roman empire. Almost three centuries had passed since the Romans had taken over the region, and since the end of the Bar Kokhba War in 135, no attempts of Jewish revolt against the empire had been recorded (at least in Palestine). The people behind the Mishnah were a provincial elite who accepted the reality of the empire and rejected messianic and revolutionary approaches to its rule. They conceived of the empire as an integral part of Jewish existence, and any articulation of a Jewish political project had to take it into consideration.7

8Of the Mishnah’s two main political influences, priestly and imperial, the former is easier to trace for an obvious reason: it is expressed in the biblical text through which the rabbis articulate their own worldview, and whose authority the Mishnah presumes throughout. Although most of the teachings in the Mishnah are formulated in an apodictic manner, without explicitly mentioning the Torah, one needs to dig only a little to discover the biblical inspiration of mishnaic teachings. This becomes clearer when we read the corpus of tannaitic midrashim, where many of the same rabbinic figures quoted in the Mishnah engage in brilliant legal exegesis of the Torah.

  • 8 The impact of the Roman empire on the Mishnah and early rabbinic literature in general has been st (...)

9As we will see in the example analyzed below, the Mishnah takes the priestly model as a metaphorical point of departure – it provides a form or structure that the Mishnah uses to build its own political model. As mentioned above, the traces left by the imperial model on the Mishnah are less visible than those left by the priestly one.8 Unlike the priestly model, which is both a literary construction of the Torah and a collection of memories of rabbis who lived during the end of the 2nd Temple Period, the imperial model existed in the political present. As members of a provincial elite, the Mishnah’s redactors benefited from the imperial order and considered it an essential part of reality. The imperial model thus can be regarded as the infrastructure of mishnaic politics. Even if not addressed directly, it is always there. It is another, more silent, metaphorical point of departure that like the biblical model is both solid and manipulable.

10Just as the Mishnah does not contest the authority of the divine sovereign (ribbono shel ‘olam), it seems not to contest the authority of the empire, tacitly recognizing that each – deity and emperor – rules the world in a different way. In this it differs from other rabbinic compilations in which we find teachings with an overtly critical tone towards Rome. The Mishnah draws on both authorities – divine and imperial – when it forges its own concept of sovereignty. It thus offers a vision of the possible union of political and divine power, a theological-political model with relevance to both Jewish and Roman political history.

  • 9 On this apparatus, see Coriat 1997. Imperial judges and jurists traveled with the emperor; it is p (...)
  • 10 According to post-mishnaic sources, one of the seven Noahide laws, which apply to all nations, is (...)

11Given their practice as legal experts, it is perhaps natural that the Mishnah’s redactors strove to develop the judicial branch of the sovereignty of Israel and gave it such a dominant role in the political system they forged. This may have been true in the case of Roman jurists of the period as well, but it is precisely the non-Romanness of the rabbis that allowed them to go much further than their Roman counterparts. They were bound to imperial power, but not to imperial ideology, and did not have to associate sovereignty with one person, the emperor, and the judicial apparatus associated with him.9 They used this freedom to elaborate a political model in which the sovereign de facto was a judicial institution. When put in its imperial context, the Mishnah implies that the power of any sovereign, the emperor included, comes from his relationship with the law and neither precedes nor supersedes it.10 The rabbis’ ideal ruler always acts within and subordinate to a legal discourse, and the court of the law is the place where any act of sovereignty takes form.

The biblical context

12The main difference between the political system imagined by the Torah and that imagined by the Mishnah can be described as follows: to the two main contenders to political power in the Bible – the king (melekh/nasi) and the priests, whose authority emanates from the highest sovereign (ribbon), the God of Israel – the Mishnah adds a third: the great beit din, or Sanhedrin. Neither the beit din nor the Sanhedrin is mentioned in the Jewish Bible.

  • 11 See Natalie Dohrmann’s article in this volume.

13The judicial function is evoked several times in the Pentateuch, mainly in chapter 18 of the Book of Exodus. According to the biblical account, when Moses was with the people of Israel in the desert (at the beginning of the journey, before they received the Ten Commandments), he found himself in the impossible situation of having to manage all sorts of contention among the people, a task that occupied him from morning until evening.11

14The idea to establish a complex judicial infrastructure came from Jethro the Midianite, Moses’s father-in-law, during his visit to the camp of Israel. Jethro was shocked to see Moses spending his entire time judging the people of Israel. Moses told him that he was obliged to do so since “the people come to me to inquire of God. When they have a dispute, they come to me and I decide between one person and another, and I make known to them the statutes and instructions of God” (Exod 18:16). Jethro then warned him that he soon would wear himself out, and the people as well. He instructed him to


15Although the biblical text sometimes asserts that the function of the judge is associated with or even dependent on that of the priests (as in Deut 17:5-13), it states clearly that the authority of the priests comes directly from the deity, whereas the judges are appointed by Moses on the advice of his foreign father-in-law. Unlike the priests, who maintain the channels of communication with the God of Israel, the judges take care of the multiple and ever-changing social situations that require judgment. The judges help to run society according to a shared principle of divine justice. At the same time and by their very existence, they acknowledge that the divine sovereign cannot or will not take care of running the affairs of society, of all that can go wrong from day to day.

  • 13 For attempts to reconstruct rabbinic jurisdiction in the imperial period, see e.g. Cotton 2002; Go (...)

16The rabbinic court, or beit din, fulfills this function as well. It participates in the sovereignty of Israel in a way that underscores the limits of the power of the divine sovereign and his acknowledged representatives, the priests.13 The Mishnah understands the beit din as an institution that existed as early as the 2nd Temple Period and had real power alongside and even over the priests. The beit din is thus described as the institution responsible for the application of the word of “God,” the mythical Lord of Israel.

  • 14 The intervention itself is not exactly judicial. According to the tractate, the beit din is suppos (...)
  • 15 For a recent feminist analysis of rabbinic depictions of priests in Mishnah Yoma, see Lehman 2015, (...)

17One example is the Mishnah’s treatment of the ordeal of the sotah (wife suspected of adultery). Whereas in the biblical description, the ceremony is conducted solely by the priest with no mention of judicial intervention, the Mishnah gives a significant role in the process to “the great beit din in Jerusalem”.14 Likewise, the beit din plays an important role in the Day of Atonement (Yom Kippur) ritual in the Temple as described by the Mishnah in Tractate Yoma. According to the tractate, during the preceding seven days, in which the high priest is quarantined in a special chamber, “elders of the beit din” recite for him the sequence of events followed on Yom Kippur and tell him to recite it himself “in case you forgot or did not learn”. On the 7th day, before they deliver him to the “elders of the priesthood,” they tell him: “We are the emissaries of the beit din, and you are our emissary and the emissary of the beit din. We adjure you by him who housed (shikken) his name in this house that you not change a thing of what we have told you” (m. Yoma 2:3).15

18The two tractates in which the power of the beit din is most overt are Sanhedrin and Horayot. Both belong to the 4th order of the Mishnah, Neziqin (damages), which can be regarded as the civil and penal code of mishnaic law.

19Tractate Horayot is the mishnaic version of Leviticus 4 and to a lesser extent of Numbers 15:22-29. The subject matter of both the biblical chapter and the tractate is inadvertent transgressions and their expiation. Leviticus 4 begins by stating the general case: “If anyone sins unintentionally in any of Yhwh’s commandments that should not be violated”. It then continues with a list of four particular cases of inadvertent sinners: the anointed priest (כהן משיח, ὁ ἱερεὺς ὁ χριστὸς in the Septuagint), the entire congregation of Israel (עדת ישראל, συναγωγὴ Ισραηλ), the ruler (נשיא, ἄρχων), and the common individual (נפש אחת, ψυχὴ μία). For each case, the text of Leviticus prescribes a different sacrificial procedure, conducted by the anointed priest in the former two cases and “the priest” in the last two.

  • 16 “If it is the anointed priest who sins, thus bringing guilt on the people” (Lev 4:3).

20Both the rabbinic tractate and the biblical chapter address the question of responsibility. In the biblical chapter, the responsibility of the anointed priest is explicit and total: not only is he the one responsible for the expiation of inadvertent sinners, but he also is the one whose sins can incriminate all other members of Israel.16 This is why he appears first: if he is not pardoned by the God of Israel, no other Israelite will be. However, in the mishnaic tractate, the anointed priest enters the picture only in the 2nd chapter, which begins with the following statement: “the instruction given by an anointed priest to himself equals [or is similar to] the instruction given by the court to the public” (m. Horayot 2:1). The Mishnah accepts and immediately limits the power of the priest, who is allowed the power to instruct, but only himself.

21The first chapter of Horayot deals with the beit din and its responsibility vis-à-vis the inadvertent sins of the people. The opening teaching of the tractate clearly situates the institution of the beit din in a place similar but not identical to that of the biblical priest. Both the beit din and the anointed priest are responsible for the sins of ordinary people. Yet while the anointed priest intermediates between the people and the divine sovereign, the beit din intermediates between the people and the Torah. The divine sovereign is left outside the system, a stabilizing element that must be situated outside the structure.

  • 17 These laws are not religious laws in the Christian sense, since there is no essential difference b (...)

22The chapter opens with a rather striking case: the beit din instructed someone to transgress one of the commandments in the Torah. The laws that the rabbinic court has the power to overrule are understood to be the commandments whose transgressor is liable to the most severe sanction in the Torah – karet (כרת), being cut off from the people.17

If the beit din instructed [someone] to transgress one of the commandments of the Torah, and a person went and [inadvertently] transgressed, relying on their [the beit din’s] instruction – whether they [the judges] acted so and he acted so together with them, or they acted so and he acted so after them, or they did not act so but he acted so – he is exempted [from bringing the sin offering].
If the beit din issued a teaching/ruling [that transgresses one of the commandments of the Torah] and one of its members, or a student capable of ruling, knew that they erred, and he went and acted on their [the beit din’s] word – whether they acted so and he acted so together with them, or they acted so and he acted so after them, or they did not act so but he acted so – he is liable.
This is the general rule: one who depends on himself is liable, and one who depends on the beit din is exempted. (m. Horayot 1:1)

23The tractate grants the rabbinic judicial institution a privileged position. The title of the tractate is very meaningful in this respect, as is its first word, the verb horu – the 3rd-person plural past perfect form of the verb lehorot, to instruct. Both words share the same root as the noun torah. The Torah is analogous to an Israelite constitution whose practice must be intermediated by the beit din. So the beit din has the power to instruct in contravention of the divine instruction, i.e., the Torah. The members of the rabbinic court too are a part of Israel, but they are situated between that which is subject to the Torah, and that which is not. It is the institution that is the border between the two realms: its members are not subject to the Torah in the same way as other subjects. This Mishnah shows the power of the beit din: even when its rulings are wrong and contrary to the Torah, they have the force of law – except for those few who truly understand the complex laws and recognize the error.

24Nearly all affirmations of sovereignty involve an ideological reconstruction of the past. The sovereign produces a discourse that will describe the political past in a way that will sustain his claim for power. This useable past does not have to perfectly correspond to the historical reality from which the sovereign emerged, but must merely be convincing enough for the subject to accept it as conferring authority.

  • 18 Other rabbinic sources discuss the changes in the authority of the Sanhedrin over the years. See, (...)

25To the extent that the Mishnah affirms the sovereignty of its judicial institution, it follows this rule. Its description of the political past of Israel supports the sovereignty of the beit din by claiming its resemblance to the 2nd Temple institution of the Sanhedrin. Mishnah Sotah 9:11 says that the Sanhedrin ceased to exist after the destruction of the Temple, yet many other teachings in the Mishnah, like that quoted below, refer to the Sanhedrin of the 2nd Temple period as a particular form of beit din. In other words, what the Mishnah says about the Sanhedrin seems to apply to the post-destruction rabbinic beit din.18

26The Mishnah and other rabbinic texts from the same period describe a Jewish political universe governed by a network of courts (the sources use the terms beit din and sanhedrin interchangeably) whose rulings must be harmonized by the great beit din or Sanhedrin in Jerusalem. The functioning of the network is described in the following teaching from m. Sanhedrin 11:2. The subject of the teaching is “an elder who ruled against the beit din”. We already know from the previous teaching (m. Sanhedrin 11:1) that his punishment is death by strangulation. The latter teaching repeats that a sage who defied the ruling of the court should be strangled and provides a biblical proof text from Deuteronomy. It then moves on to describe what this sage should have done instead of ruling against the beit din.

  • 19 See also Sifre Deuteronomy 152 and parallels.

An elder who ruled against the beit din [is to be strangled], as it is said: “If there arises a matter too hard for you in judgment [כי יפלא ממך דבר למשפט], between blood and blood, between ruling and ruling [דין] […] [you should go up to the place that will be chosen by Yhwh your God]” (Deut 17:8).
There were three batey dinin there – one at the entrance of the Temple Mount, one at the entrance of the court [‘azarah] and one in the Chamber of Hewn Stones.
One goes to that at the entrance of the Temple Mount. He says: “This is what I interpreted, and this is what my colleagues interpreted, this is what I taught, and this is what my colleagues taught”. If they [the members of the beit din] have heard it, they tell them [what the rule is]; if not, they go to that at the entrance of the court [‘azarah], and he says: “This is what I interpreted, and this is what my colleagues interpreted; this is what I taught, and this is what my colleagues taught”. If they have heard it, they tell them; if not, they go to the great beit din that is in the Chamber of Hewn Stones, because this is from where Torah goes forth to all Israel, as it is said: “to the place that will be chosen by Yhwh your God”.19

  • 20 See b. Yoma 25a, where Abbayye concludes that half of the chamber was in the holy part of the Temp (...)

27According to this teaching, when the Temple stood, if an elder disagreed with a ruling, he had to go through the procedure described here. The Mishnah depicts the arrangement of the different pre-destruction judicial institutions. There were courts scattered around all the Land of Israel, and none could overrule a higher court. In case of doubt, one had to go to the next judicial instance, specifically, one or more of the three courts on the Temple Mount. Notably, each of the three courts is situated on a border: one at the gate of the Temple Mount, another at the gate of the court of the Temple, and the greatest in the Chamber of Hewn Stones, which m. Middot 5:4 states was situated at the northern end of the court.20

28The hierarchical difference between the three courts is clear, and corresponds to their positions on the mount: the further the court is from the entrance, the closer it is to the Holy of Holies, and the greater its authority. The authority of the highest beit din is reinforced by its proximity to the divine presence. However, the teaching establishes the superiority of the great beit din not only on topographical grounds, but also based on the text of the Torah: it quotes a midrash according to which the Torah identifies “the place that Yhwh will choose” (Deut 17:8) as “the place from where Torah goes forth to all Israel”. In other words, the authority of the beit din to dispense laws and instruction comes from the Torah itself.

  • 21 The exegesis of the verse is quoted in Sifre Deuteronomy 152 as well.

29A further look at the biblical proof text provided by the teaching is worthwhile. According to the biblical passage, a judge who does not know what ruling to give should go to the place chosen by the deity, and there he should consult “the priests, the Levites, and the judge” – those with the authority to instruct. “According to the law/instruction (torah) which they give you, and according to the decision which they pronounce to you, you shall do; you shall not turn aside from the verdict which they declare to you, either to the right hand or to the left” (Deut 17:11). In the mishnaic description, the three groups (priests, Levites, and judge) disappear, replaced by the three courts. Do the three courts of m. Sanhedrin 11:2 represent historical reality, or an exegetical move on Deut 17:8-10? Neither the Mishnah nor its midrashic parallels draw direct lines from the three courts to Deut 17. However, it is striking that whereas the biblical text explicitly assigns authority not only to the judiciary, but also to the priests (and Levites), in the rabbinic texts, such authority is restricted to judges.21

30There are several other biblical proof texts that the Mishnah uses to justify the power of the beit din. I will briefly mention only one, quoted in m. Horayot 1:4, which employs a midrash found in the Sifra (Dibbura de-Ḥova 4) on the expression ‘adat Yisrael – the congregation of Israel. In the Bible, the term ‘edah (the absolute state of ‘adat) refers to the people’s political body with authority to legislate and judge. The midrash quoted here identifies this political body with the great beit din of the Chamber of Hewn Stones. The sovereign power of the people is displaced from the ‘edah to the great beit din.

31The Mishnah’s redactors cannot ignore the fact that the architecture supporting the great beit din and its authority over other courts disappeared with the Temple. Some teachings of the Mishnah deal with the problem rather clearly, as in m. Rosh Hashanah 2:9. A general affirmation is given in m. Eduyyot 1:5, which states that “one beit din cannot invalidate the ruling of another beit din unless it is greater in both wisdom and number”. What is meant by greatness in wisdom? The Mishnah does not elaborate. Yet it makes it possible to envision a hierarchy among the different rabbinic courts that compose the judicial network of Israel.

32The above teachings from Horayot and Sanhedrin underline the tension between the rabbinic beit din and the priestly order. They, and many others, show that while the Mishnah does not exclude the priests from the polis of Israel, it limits or even erases their political function. Yet what of the other important political figure, the king? This question recently was addressed by Yair Lorberbaum (2011), who shows how classic rabbinic sources, especially the Mishnah, undermine the authority of the king and emphasize his subordination to the Torah or more precisely, to the rabbinic version of it.

  • 22 Even though, as shown by Lorberbaum 2011, p. 106, there were other rabbinic approaches to the conn (...)

33Although rabbinic texts acknowledge the existence of some royal political power, they lock it inside a judicial framework whose agents are rabbinic judges. The best example of this approach is m. Sanhedrin 2:2: “The king does not judge and he is not judged”. This marks an important distinction between the king, the beit din, and the rest of the people. The king does not participate in the elaboration of the law. The beit din is situated on the border of the law. Its rulings are elaborated in this liminal space, and this is why they do not apply in the same way to its members and the rest of the people. The latter are entirely subject to the law as intermediated by the beit din. Thus unlike the beit din, which is found between the two realms, one subject to the law and one not, the king is entirely outside the law. What is the nature of his power? Rabbinic literature does not give a clear answer to this question. For our purposes, what is important is that even though the king has power, it is highly limited in terms of sovereignty. Indeed, even the most important decision – going out to war – does not belong to the king, but falls under the authority of the great beit din (m. Sanhedrin 2:4).22

The imperial context

  • 23 The title nasi carries this sense in Biblical Hebrew and in the period of the 2nd Temple. Early ra (...)

34The traditional view that Rabbi Yehudah the Nasi was the compiler of the Mishnah reflects an authentic understanding of its relation to political power in general and imperial power in particular. The Mishnah is presented as the project of a man who wore the hats of both rabbi and nasi (a term that can be translated as “ruler” or “governor”), whose power seems to have been recognized by the imperial order.23 The figure of Rabbi Yehudah thus highlights the theological and political dimensions of the mishnaic project, one redacted from the standpoint of a person who wished to remain loyal both to the divine sovereign and his law (Torah) and to the imperial order.

  • 24 Cf. Yair Furstenberg’s contribution in this volume.

35Within this context, the Mishnah participates in the same legislative enterprise as the Roman jurists of its time, developing a legal discourse to encapsulate all aspects of human life that can or need to be regulated by laws.24 Many historians of rabbinic Judaism in the imperial period have noted the kinship between the Jewish and Roman legal projects. To quote Martin Goodman:

  • 25 Goodman 2000, p. 127. See also Cohn 2012, p. 22.

The relation of the rabbis to the courts is easily explicable in terms of the relation of iurisprudentes (jurists) to a legal system. Not unlike contemporary lawyers such as Ulpian from nearby Tyre, the rabbis spent their time codifying the law as they saw it, inventing problems to solve according to the principles they evolved from these laws, adding a strong element of what they would like the laws to be, and making the results known to the nonacademic public.25

  • 26 Scholars such as Ralph Mathisen have stressed the cosmopolitan dimension of the edict, an exceptio (...)

36The very similarity between Jewish and Roman jurists raises the question of how they differed. If the rabbis from Galilee are not unlike contemporary lawyers, such as Ulpian from Tyre, why would they devote so much effort to the constitution and preservation of a legal discourse different from his? The fact that we can think of numerous obvious reasons does not exclude the relevance of the question from the imperial point of view, especially after the Edict of Caracalla, which granted Roman citizenship in 212 to all free persons living in the empire. The immediate practical implications of the edict probably were relatively minor, but it had an important symbolic impact on the relationship between Rome and its dominions. It enforced the cosmopolitan aspiration of the Roman empire by bestowing a unique status on its habitants, legally placing them at equal distance from the center of political power.26 The creation of a unique legal discourse, a kind of preparation for constituting a particular group within the empire, had to be interpreted as a form of defiance.

  • 27 Ando 2014.
  • 28 The notion of “hidden transcript” was developed by the American anthropologist James S. Scott (199 (...)

37The universalization of Roman law meant the shrinking and eventual disappearance of provincial legal systems. Even if specific provincial laws and customs were acknowledged by imperial power, the legal discourse within which they were negotiated was Roman and became more and more so over the course of time.27 From this vantage point, the Mishnah, a hidden transcript in more than one sense – being an oral document redacted in Hebrew28 – was and still is a monument of resistance. It is a particular legal discourse that survived the process of steady legal Romanization. Thus although there is nothing in the entire rabbinic corpus that mentions the edict and although no awareness of the Mishnah is adduced in 3rd-century Roman sources, it can be helpful to think of the two events in relation to each other.

38Did the Mishnah’s redactors foresee the threat posed by universal citizenship? Did they intend to resist the process by creating an atemporal legal discourse to ensure some political cohesiveness among Jews? Or perhaps can we look at it more positively and suggest that the Edict of Caracalla functioned as a source of inspiration?

  • 29 This famous excerpt from Ulpian’s Institutes is quoted at the beginning of book 1 of the Digest; t (...)

39In the interest of further contextualizing the mishnaic political model, I propose leaving aside the professional identity of the redactors and possible historical links between them and Roman jurists. Instead, let us focus on the fictional framework in which they elaborated their model. Both rabbinic and imperial jurists acted within a mythical fiction where divine figures played an important role in the justification and communication of laws. As we saw in the previous section, the rabbis of the Mishnah worked within the biblical framework, one they manipulated to some extent while keeping many of its basic structures and concepts. Mythical or religious language was not absent from Roman political and legal discourse of the same period. One example is the aforementioned Roman jurist, Ulpian, apparently a contemporary of the Mishnah’s redactors. In some of his writings, he conveys a well-articulated faith in the providential power of law (ius). He refers to law as “the art of goodness and fairness” and says that “of that are we [jurists] deservedly called the priests (sacerdotes)”. He proposes seeing law as “a philosophy which, if I am not deceived, is genuine, not a sham” – a philosophy in the sense of the word in Antiquity – a way of life with ethical and political implications that aspires to “make men good, not only through fear of penalties but also indeed under allurement of rewards”.29 Ulpian thus describes Roman jurists as serving the sacred art of justice. They contribute not only to the peacefulness of ongoing affairs, but also to the formation of good, self-governed individuals.

40At least one other Roman text from the period describes the superior goodness of Roman law in mythical language. Unlike Ulpian’s text, this one was intended to be read not only by specialists or highly educated people, but by a general audience. According to a Greek version of Caracalla’s edict that has reached us, the emperor made his decision to enfranchise the inhabitants of the empire because he wanted to show gratitude to the gods of Rome for saving him from assassination by his brother:

  • 30 This is the introductory passage of the edict. The papyrus (P. Gissen 40) containing the Greek tex (...)

Edict of the [Emperor Caesar] M. Aurelius [Severus] Antoninus Augustus. [It is everywhere] necessary to attribute the main causes and reasons of events [to the divinity. I too myself have to be justly] grateful to the immortal gods, because they [safely] protected me, after such an [assault, as that of Geta, was attempted]. I believe, therefore, in the following manner to be able, magnificently and marvelously to do something equal to their greatness, if I lead, [as Romans, as many myriads] as happen to be my subjects to the [temples] of the gods.30

41Caracalla here refers to his conflict with his brother, Geta, after the death of their father, Septimius Severus, the previous year. The brothers together inherited imperial power, but Caracalla did not want to share it. He murdered Geta and reported to the Senate that his brother had hatched a conspiracy against him. He then became the sole emperor and ordered the eradication of the name of his brother from imperial memory.

42Caracalla used mythical language to establish the official version of the conflict between him and Geta. By foiling the plot, Caracalla claimed, he had saved the empire from an awful destiny, preventing it from falling into the hands of a corrupt and dangerous man. But this salvation, according to the edict, was not the work of Caracalla, even though it was he who had stabbed his brother. The emperor resorted to a popular rhetorical strategy of ancient politicians, thanking the gods of Rome for saving him, and thus implying that in killing his rival, he had followed the will of a higher authority that represented the interests of all of Rome.

  • 31 On the theological and political tendencies of the Severans and their use of the concept of divine (...)

43Caracalla’s manipulation of the Roman gods does not end here. According to him, the universalization of Roman citizenship was an invitation to all imperial subjects to gather under the protective wings of the imperial gods.31 The universalization of “the right of Roman citizenship” thus had a twofold motivation: to thank the gods of Rome by broadening their support base and gathering to their worship millions of human beings, and to allow the people of the empire to participate in the victory and thus enjoy imperial or divine protection.

  • 32 See Goodman 2007, p. 217; Mélèze-Modrzejewski 1990, p. 480, mentions considerations “allant de la (...)

44This official justification for the reform is contradicted by the contemporary historical account of Cassius Dio. The historian, who is generally critical of Caracalla, writes that universal citizenship was granted for a financial reason: citizens paid more taxes, and the emperor needed this money for his military expeditions. Dio’s account shows that at least some contemporary readers of the edict knew that the true motivation of the emperor was economic or political.32

45Nonetheless, the fact is that the emperor chose to justify the reform with religious language. The protection afforded by the gods of Rome was translated in the human world by legal providence. It entailed changing the status of all individuals, making them subjects of Roman law. The theological and political justification resonated with at least two groups who lived in the empire: Christians and Jews who already had a solid religious framework for their political understanding of the imperial reality. The messianic mission of the empire, which had until then ideologically accorded with that of the (Jewish and Christian) Bible, became bound to a legal discourse.

  • 33 Taubes 2003; Horsley 2004.
  • 34 Ritter 2006.

46The Christians had their notion of cosmopolitism, inscribed in the writings of Paul as “spiritual Israel”.33 From the end of the 1st century, Christian authors such as Justin Martyr and Tertullian tried to convince the empire that the conflict between Rome and Jerusalem was not political in the ordinary sense, and depending on context, they succeeded in presenting spiritual Israel as perfectly compatible with Rome.34 The enforcement of the cosmopolitical dimension of the empire, enhanced by the Edict of Caracalla, could be seen as a contribution to a theological and political mindset in which God delegated political power to Caesar.

47Yet the starting point of the rabbis, at least those behind the Mishnah, was different. They conceived of their Israel not as a universal political entity, but as a particularistic one. They did not expect other nations to accept the sovereignty of their God. Their addressees were the members of one nation, but their conception of this nation as a theological and political entity was not very different from that in Caracalla’s edict. One need only replace the gods of Rome with the God of Israel, and the imperial text becomes a theological and political justification for the rabbinic movement.

  • 35 Berthelot 2011; Berthelot 2017.

48In this manner, the edict gave new form to what Katell Berthelot has described as the empire’s ideological challenge to Judaism.35 It underlined the fact that in their political function, the gods of Rome were interchangeable with the God of Israel. The question of whether the Mishnah was redacted in reaction to this challenge must remain unanswered, but juxtaposing the two events helps us envisage the theological and political framework where both the imperial and the rabbinic legal projects took shape.


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1 See Yair Furstenbergs’s contribution to this volume. See also Lapin 2012; Hezser 2003.

2 Lapin 2012, p. 45.

3 For two good introductions to the Mishnah in English, see Stemberger 1992; Goldberg 1987. For more recent scholarship, see AJS Review 32-2, 2008.

4 It is out of the scope of this article to discuss how the sovereign function of the beit-din was realized throughout rabbinic history. Evidence is particularly abundant with regard to Ashkenazi communities in the Middle Ages, where the identification between the beit-din and the local community (qahal) granted the latter some sovereignty. See for example Grossman 1975.

5 See discussion in Goodman 2000, mainly p. 155-171, as well as the initial chapter of Cohn 2012. For interesting methodological remarks on the subject, see the excellent synthesis in Lorberbaum 2011, chapter 6.

6 On the relationship between rabbinic Judaism and priestly ideology, see e.g. Boccaccini 2002; Shemesh 2009.

7 See Yair Furstenberg’s contribution in this volume.

8 The impact of the Roman empire on the Mishnah and early rabbinic literature in general has been studied in recent years by several scholars, many of whom use postcolonial theory in their analysis. See e.g. Lapin 2012; Schremer 2009; Dohrmann – Reed 2013; Rosen-Zvi 2017.

9 On this apparatus, see Coriat 1997. Imperial judges and jurists traveled with the emperor; it is plausible that some rabbis, especially those who had ties with Roman officials, were familiar with the functioning of the imperial judicial system.

10 According to post-mishnaic sources, one of the seven Noahide laws, which apply to all nations, is dinin, the obligation to establish a proper judicial system (b. Sanhedrin 56a).

11 See Natalie Dohrmann’s article in this volume.

12 The Book of Judges can be read as an attempt to attribute to the person of the judge some sort of sovereignty over Israel, but this is not presented as a sustainable arrangement, and in any case, according to the biblical account, the judges were charismatic military figures and their largely undefined judicial function is never depicted as part of an institution.

13 For attempts to reconstruct rabbinic jurisdiction in the imperial period, see e.g. Cotton 2002; Goodman 2000.

14 The intervention itself is not exactly judicial. According to the tractate, the beit din is supposed to warn the woman not to lie; it therefore has a spiritual or pastoral function. See Rosen-Zvi 2012, p. 49ff.

15 For a recent feminist analysis of rabbinic depictions of priests in Mishnah Yoma, see Lehman 2015, p. 88-105.

16 “If it is the anointed priest who sins, thus bringing guilt on the people” (Lev 4:3).

17 These laws are not religious laws in the Christian sense, since there is no essential difference between the political and the theological in the mishnaic conception of the beit din and the way it should apply the laws of the Torah. However, the discussion of the teaching in the two Talmuds as well as in the Tosefta (1:5) deals mainly with dietary laws.

18 Other rabbinic sources discuss the changes in the authority of the Sanhedrin over the years. See, e.g., y. Sanhedrin 1:1.

19 See also Sifre Deuteronomy 152 and parallels.

20 See b. Yoma 25a, where Abbayye concludes that half of the chamber was in the holy part of the Temple Mount while the other half was situated in the unholy part. See also Mekhilta de-Rabbi Ishmael, Ba-Ḥodesh 11: “the Sanhedrin is alongside of the altar”.

21 The exegesis of the verse is quoted in Sifre Deuteronomy 152 as well.

22 Even though, as shown by Lorberbaum 2011, p. 106, there were other rabbinic approaches to the connection between the king and the law.

23 The title nasi carries this sense in Biblical Hebrew and in the period of the 2nd Temple. Early rabbinic sources depict Rabbi Yehudah as having political power over Jews and ties with a high Roman official – Antoninus – sometimes specifically identified as the emperor. The actual extent of Rabbi Yehudah’s political power is the subject of debate not only among modern historians, but also among rabbis of the amoraic period. The Talmud refers to two traditions that point out the tension between Rabbi Yehudah and the Babylonian exilarch (b. Horayot 11b; b. Sanhedrin 38a; see also y. Kil’ayim 9:4, 32b, and discussion in Meir 1999, p. 78-79). For a more general discussion of the institution of the nasi, see Schwartz 2001.

24 Cf. Yair Furstenberg’s contribution in this volume.

25 Goodman 2000, p. 127. See also Cohn 2012, p. 22.

26 Scholars such as Ralph Mathisen have stressed the cosmopolitan dimension of the edict, an exceptional political act that allowed the implementation of a concept born of philosophical thought: that of “citizen of the world” (Mathisen 2006). See also Burbank – Cooper 2008.

27 Ando 2014.

28 The notion of “hidden transcript” was developed by the American anthropologist James S. Scott (1990). It is used by several scholars of rabbinic literature in their description of Palestinian rabbinic intellectual activity in the early centuries CE. See, e.g., Boyarin 1999; Berkowitz 2006; Appelbaum 2010; Dohrmann 2015.

29 This famous excerpt from Ulpian’s Institutes is quoted at the beginning of book 1 of the Digest; trans. Watson 1985, p. 1. For discussion, see Harries 1999, p. 7; Honoré 2002, p. 76-77.

30 This is the introductory passage of the edict. The papyrus (P. Gissen 40) containing the Greek text along with two other imperial decrees issued by Caracalla shortly after Geta’s death was copied in Egypt around 215. It was found in Egypt and first published by Paul Meyer (Kornemann – Meyer 1910-1912). For the English translation, see Heichelheim 1941. See also Mélèze-Modrzejewski 1977.

31 On the theological and political tendencies of the Severans and their use of the concept of divine providence, see Martin 1982, esp. p. 402-405.

32 See Goodman 2007, p. 217; Mélèze-Modrzejewski 1990, p. 480, mentions considerations “allant de la politique africaine des Sévères jusqu’à l’expansion du christianisme”.

33 Taubes 2003; Horsley 2004.

34 Ritter 2006.

35 Berthelot 2011; Berthelot 2017.

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