Maimonides on Rules and Rulership

© BREPOLS PUBLISHERS THIS DOCUMENT MAY BE PRINTED FOR PRIVATE USE ONLY. IT MAY NOT BE DISTRIBUTED WITHOUT PERMISSION OF THE PUBLISHER. Société Internationale pour l’Étude de la Philosophie Médiévale — Rencontres de Philosophie Médiévale, 17 — General Editor: Alessandra Beccarisi (Università del Salento) Legitimation of Political Power in Medieval Thought Acts of the XIX Annual Colloquium of the Société Internationale pour l’Étude de la Philosophie Médiévale Alcalá, 18th-20th September 2013 edited by Celia López Alcalde, Josep Puig Montada and Pedro Roche Arnas † BREPOLS 2018 The XIX Annual Colloquium of the SIEPM was sponsored and funded by the Spanish Ministry of Education and Culture, Ramon Areces Foundation, University of Alcalá de Henares, Complutense University of Madrid, Center for Political and Constitutional Studies (Madrid), Society for Medieval Philosophy (Zaragoza) and SIEPM. All of the essays published in this volume have been reviewed by members of the Bureau of the SIEPM. © 2018, Brepols Publishers n.v., Turnhout, Belgium. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior permission of the publisher. D/2018/0095/86 ISBN 978-2-503-58018-0 DOI 10.1484/M.RPM-EB.5.115435 e-ISBN 978-2-503-58019-7 Printed in the on acid-free paper © BREPOLS PUBLISHERS THIS DOCUMENT MAY BE PRINTED FOR PRIVATE USE ONLY. IT MAY NOT BE DISTRIBUTED WITHOUT PERMISSION OF THE PUBLISHER. In memoriam Pedro Roche Arnas © BREPOLS PUBLISHERS THIS DOCUMENT MAY BE PRINTED FOR PRIVATE USE ONLY. IT MAY NOT BE DISTRIBUTED WITHOUT PERMISSION OF THE PUBLISHER. TABLE OF CONTENTS Josep PUIG MONTADA, Celia LÓPEZ ALCALDE, Presentación ........... IX Mokdad ARFA MENSIA, Philosophie, politique et légitimation chez al-Fārābī .................................................................................. 1 Francisco BERTELLONI, Naturaleza e historia de la salvación en la legitimación medieval del dominium: Tomás de Aquino, Dante y Marsilio de Padua ................................................................ 19 Antony BLACK, Islam, Byzantium and the West: What Light can Comparisons Throw on the Legitimation of Power in Medieval Europe? ............................................................................ 41 Gianluca BRIGUGLIA, Filosofía, ideología, historiografía: Marsilio de Padua ............................................................................ 59 Charles E. BUTTERWORTH, Al-Fārābī and the King in Truth: Some Practical Considerations ......................................................... 75 Luigi CAMPI, Mutual Causality in Wyclif’s Political Thought ......... 85 Delphine CARRON, Unde dominium exordium habuit. Origine et légitimation du pouvoir politique chez Ptolémée de Lucques ... 101 Luis Alberto DE BONI, João Quidort e a defesa do poder civil ....... 119 Thomas DEWENDER, James of Viterbo on Ecclesiastical and Temporal Power ............................................................................. 143 Alexander FIDORA, Marsilio de Padua en la Península Ibérica: La Confutatio errorum quorundam magistrorum de Guido Terrena ..... 159 Jesús DE GARAY, La legitimación del poder en Bizancio: Temistio y Eusebio ......................................................................... 171 Saeid HOOSHANGI, Abū Moʿin Nāṣer Ḵosrow Qobādiyānī, su crítica al poder establecido y su defensa de la justicia social .... 191 David JIMÉNEZ CASTAÑO, El contrato de gobierno en la Edad Media: El caso de Manegold de Lautenbach (c. 1030-1103) ......... 207 VIII Table of Contents Adam MACHOWSKI, La participación del pueblo en el proceso de legitimación del poder en los escritos de Tomás de Aquino ..... 223 Abraham MELAMED, The De-Legitimation of Monarchy in Don Isaac Abravanel’s Political Thought ...................................... 239 Jürgen MIETHKE, Ockhams Kritik an Marsilius von Padua: Die Stellung des Papstes in Kirche und Welt nach dem letzten Teil des Dialogus ........................................................................... 253 Gregorio PIAIA, Non solo Aristotele: La legittimazione del potere politico in Marsilio da Padova ............................................. 281 Vadim PROZOROV, How to Bind the “Rhinoceros of Earthly Power”: Perception of Gregorian Political Ideas in Ninth-Century Europe ................................................................ 295 Josep PUIG MONTADA, Maimonides, on Rules and Leadership ...... 311 Diego QUAGLIONI, “Nemo potest dare quod suum non est”: La legittimazione del potere nella Monarchia di Dante ................. 329 Pedro ROCHE ARNAS, Acentos y alcances diversos en defensa de la autonomía del poder civil: la trascendental función del populus en el De potestate regia et papali de Juan de París ........................ 345 José Maria Silva ROSA, Relevância política da ‘perfecta multitudo’ no De potestate regia et papali de João Quidort de Paris ........................................................................................... 367 Stefano SIMONETTA, Mutual Causality in Wyclif’s Political Thought: His Doctrine of Dominion ............................................. 385 Constantin TELEANU, Lucifer et son vicaire: le mélange du pouvoir de l’état à l’autocratie de l’église selon Pierre de Ceffons ...................................................................................... 405 Jeffrey C. WITT, Finding Authority in a Time of Confusion: Early Deliberations on the Western Schism at the University of Paris ............................................................................................ 423 Indexes Index of Manuscripts ................................................................. 443 Index of Medieval Authors ........................................................ 445 Index of Modern Authors .......................................................... 449 © BREPOLS PUBLISHERS THIS DOCUMENT MAY BE PRINTED FOR PRIVATE USE ONLY. IT MAY NOT BE DISTRIBUTED WITHOUT PERMISSION OF THE PUBLISHER. MAIMONIDES, ON RULES AND LEADERSHIP JOSEP PUIG MONTADA1 G od has given His laws to Israel, these laws concern public as well as private life, and they are general as well as particular: “All the precepts which Moses received on Sinai were given together with their interpretation.”2 Maimonides maintains that the Oral Law was revealed together with the written Torah. He has no doubts about it: God is the only founding authority and the only source for legitimating any kind of social power, including political. This said, many issues arise: God’s precepts cannot be changed— neither addition nor abrogation is permitted—, but Maimonides limits the scope of Oral Law, because not all the precepts it contains have unalterable character.3 Moreover, the court may introduce some ordinances.4 The precepts must be enforced by a human authority. Some of them can be enforced in a community which is not politically independent, others cannot. Some of them cannot be enforced at all any longer because the circumstances have changed. Human authority needs to be dened and a distinction has to be made between a Jewish authority over the community and a Gentile authority. The textual tradition 1 I thank Prof. Alfred L. Ivry (NYU), and Prof. David Luscombe (Shefeld), for their careful reading and many stylistic corrections. 2 MAIMONIDES, Mishneh Torah (=MT) 1: The Book of Knowledge, trans. M. HYAMSON, Jerusalem 1965, 1b. Similar wording is found in Maimonides’ Arabic commentary on the Mishnah, written earlier (Introduction to Seder Zeraim and commentary on tractate Berachoth): Maimonides’ Introduction to his Commentary on the Mishnah, trans. F. ROSNER, New York 1975, 40; 2nd ed., Northvale, NJ-London 1995, 17. His introduction to Berachoth serves as the general introduction to the commentary on the Mishnah. 3 H.T. KREISEL, Maimonides’ Political Thought, Albany, NY 1999, 21: “Only those legal interpretations in which there were no disagreements between the sages can be considered as part of the Oral Law.” 4 MAIMONIDES, MT I, trans. HYAMSON, 17b. Legitimation of Political Power in Medieval Thought Turnhout, 2018 (Rencontres de Philosophie médiévale 17) © BREPOLS PUBLISHERS pp. 311-328 DOI 10.1484/J.RPM.5.115481 312 Josep Puig Montada distinguishes between a collegial—the Sanhedrin—and an individual authority—the king. Practice distinguishes between judiciary power and executive rule. Lastly, the priest is the authority competent for the cultic functions, but that does not concern us here. I. God as the Origin of the Law God can be seen as the source of law in different ways. Natural law can be explained as an expression of divine law imprinted in any human mind in contrast to positive laws dictated by human rulers. The doctrine has a long history. The Stoics had established nature as a principle immanent in the world and they identied the law of nature with the law of reason.5 Roman jurists would later introduce the concept of ius gentium and many of them would consider it equivalent to the ius naturale, while others would make a distinction. To put it briey, on the one side there is the universal ius naturale or ius gentium, on the other the particular law of each country, ius civile. Following Judaism, Christianity placed the personal God in the unique position of creating the law. St. Augustine introduced the notion of eternal law, existing in the divine mind and impressed on us, and the subsequent tendency would be to identify natural law with the eternal law of God. For Aquinas the identication was partial as he retained eternal law as the source and made natural law a participant in it.6 Thomas added positive laws to both of them. Positive laws can be disclosed either by men or by God, and Thomas justied the need for the positive divine law with four known reasons.7 5 CICERO, MARCUS TULLIUS, De Legibus II.8, ed. J.G.F. POWELL, Oxford 2006, 19697. English translation in CICERO, The Republic and The Laws, trans. N. RUDD and J. POWELL, Oxford 2009, 124: “Law was not thought up by the intelligence of human beings, nor is it some kind of resolution passed by communities, but rather an eternal force which rules the world by the wisdom of its commands and prohibitions. In their judgment, that original and nal law is the intelligence of [the] God, who ordains and forbids everything by reason”. 6 THOMAS DE AQUINO, Summa Theologiae I-II q.91 a.2; English translation by A.C. PEGIS in Basic Writings of St. Thomas Aquinas 2, Indianapolis 1997, 750: “It is therefore evident that the natural law is nothing else than the rational creature’s participation of the eternal law.” 7 THOMAS DE AQUINO, ST I-II q.91 a.4; trans. PEGIS, 752: “Whether there was any need for a Divine law?” © BREPOLS PUBLISHERS THIS DOCUMENT MAY BE PRINTED FOR PRIVATE USE ONLY. IT MAY NOT BE DISTRIBUTED WITHOUT PERMISSION OF THE PUBLISHER. Maimonides, on Rules and Leadership 313 Eternal and natural law are both faced with positive law, but positive law is twofold, human and divine, and the Torah is divine positive law. The relations are worthy of inquiry but according to Isaak Husik, very little or nothing is available in Jewish literature concerning the relations between the various kinds of law.8 Actually, one has to wait until Joseph Albo (†1444) to nd such an inquiry in his Book of Principles,9 and the inuence of the Christian doctrines upon him is very likely. The discussion whether or not Maimonides should be interpreted as a natural law thinker is ongoing and a recent article by J. Jacobs reviews it.10 In any case, Maimonides was confronted with the issue of different kinds of laws and was aware of the necessity to incorporate positive laws in a doctrinal framework, and that this framework should be built by reason. We should keep in mind throughout our analysis that, in the words of Isadore Twersky, “the effectiveness of positive law [for Maimonides] is thus contingent upon some prior acceptance of true theological beliefs and scientic concepts.”11 Maimonides wrote the Mishneh Torah—here we will use the term Code (1177)—to give the Jews a unied book of laws, taking into account the proofs of the divine origin of the laws. In the Code Maimonides refers to the stages of revelation previous to Moses, Adam representing the rst stage. If we assume that revelation previous to Moses took place by emanation from the active intellect on the imaginative power of the chosen prophet, although restricted to a few individuals, we can consider it as being integrated in nature and having natural character. Maimonides explains that “Six precepts were given to Adam: prohibition of idolatry, blasphemy, murder, adultery, and robbery, and the command to establish courts of justice (dinim).”12 Since 8 I. HUSIK, “The Law of Nature, Hugo Grotius, and the Bible”, in Hebrew Union College Annual 2 (1925), 390-93. 9 JOSEPH ALBO, Seffer ha-ʿIkkarim I.17, ed. and trans. I. HUSIK, vol. 1, Philadelphia 1929, 146-52. 10 J. JACOBS, “Aristotle and Maimonides on Virtue and Natural Law” in Hebraic Political Studies 2.1 (2007), 46-77. For Jacobs himself, natural law is absent in Maimonides. Kreisel, however, does not see Maimonides rejecting natural laws: see KREISEL, Maimonides’ Political Thought, 70. 11 I. TWERSKY, Introduction to the Code of Maimonides (Mishneh Torah) (Yale Judaica Series 22), New Haven, CT 1980, 140-41. 12 MAIMONIDES, MT XIV Kings IX.1, English translation in MAIMONIDES, The Code 314 Josep Puig Montada Adam is the rst man and the common forefather of all human beings, one may interpret that all men keep some memory of the precepts in their natural intelligence. Maimonides sees three legitimating sources for the precepts: the authority of Moses, the consensus within the Scriptures, and human reason: Although there is a tradition to this effect—a tradition dating back to Moses, our teacher—, and reason (daʿat) approves of these precepts, it is evident from the general tenor of the Torah that he (Adam) was bidden to observe these commandments.13 The means needed to enforce the material precepts are provided by a precept to establish courts. The rst motivation for legitimating power is found in a divine precept calling for setting up the institution that will be in charge of the observance of the material precepts. The pre-mosaic legislation was fully developed in Noah: a seventh precept was added that forbids eating a limb from a living animal, a ruthless act of cruelty towards animals.14 Like the precepts given to Adam, they are binding for the whole of mankind because—Maimonides writes—“Moses, our teacher, was commanded by God to compel all human beings to accept the commandments enjoined upon the descendants of Noah.”15 He not only explains these precepts but also how the court has to deal in case of transgression.16 Thus the creation and working of the courts is necessary to guarantee the enforcement of the precepts, and we read the following explanation: As regards the commandment laid upon descendants of Noah to establish courts of justice, the duty is enjoined upon them to set up judges in each district to deal with these six commandments and to caution the people.17 Therefore authority is legitimized by a precept given to the rst human creature and valid for all mankind, and the rst kind of authority is the judiciary. In theory, there is no need for a king to keep society together. If men abide by the basic laws, society endures. One may object of Maimonides. Book Fourteen. The Book of Judges, trans. A.M. HERSHMAN (Yale Judaica Series 3), New Haven, CT 1949, 230-31. 13 MAIMONIDES, MT XIV Kings IX.1, trans. HERSHMAN, 230. 14 MAIMONIDES, MT XIV Kings IX.1, trans. HERSHMAN, 231. 15 MAIMONIDES, MT XIV Kings VIII.10, trans. HERSHMAN, 230. 16 MAIMONIDES, MT XIV Kings IX, trans. HERSHMAN, 230-34. 17 MAIMONIDES, MT XIV Kings IX.14, trans. HERSHMAN, 234. © BREPOLS PUBLISHERS THIS DOCUMENT MAY BE PRINTED FOR PRIVATE USE ONLY. IT MAY NOT BE DISTRIBUTED WITHOUT PERMISSION OF THE PUBLISHER. Maimonides, on Rules and Leadership 315 that men do not behave in this way and therefore the king becomes indispensable to make society possible, and Maimonides acknowledges this, as we will see. Should we think that Maimonides makes a literal reading of the Scriptures concerning the Adamite and Noahide revelation? Why does he not suggest an allegorical interpretation? In an allegorical interpretation, both of them are stages of rational development. Divine law is natural law expressing itself in these universal commandments. A book on logic is attributed to Maimonides,18 in which we nd some references to the term “law”. In the Treatise on Logic, Maimonides echoes Alfarabi (al-Fārābī, †c.950) and his classication of sciences. Political science is divided into four parts: (1) Self-government, (2) the government of the household, (3) the government of the city, (4) the government of a great people or the peoples.19 At the end we read the following: The government of a city is a science imparting to its masters a knowledge of true happiness, showing them the way to obtain it, and a knowledge of true evil, showing them the way to avoid it. It shows them how to use their habits in abandoning illusory happiness so that they will not desire it nor delight in it; and it explains to them what illusory evil is so that it will cause them no pain or grief. It also lays down laws of righteousness for the best ordering of the groups. The sages of the people of antiquity made rules and regulations, according to their various degrees of perfection, for the government of their subjects. These are called nomoi, and by them the peoples were governed. On all these matters, the philosophers have many books which have been translated into Arabic. Perhaps those that have not been translated are even more numerous. But in these times we do not need all these laws and nomoi; for divine laws govern human conduct.20 If Maimonides is the author of the book as well of the last sentence “But in these times […]” it is reason that lays the foundations for the positive laws ruling the city. We cannot afrm that he explicitly conI. EFROS, Maimonides’ Treatise on Logic (Maḳālah -ṣināʻat al-manṭiḳ): the Original Arabic and Three Hebrew Translations, ed. and trans. into English, New York 1938. Hebrew text: M. TÜRKER, Mūsā ibn-i Meymūn’un al-Maqāla fī ṣināʻat al-manṭiq: inin Arapça asli, İstanbul 1961. Arabic text and French translation: MAIMONIDES, Traité de logique, éd. et trad. R. BRAGUE, Paris 1996. 19 EFROS, Maimonides’ Treatise on Logic, 63. 20 EFROS, Maimonides’ Treatise on Logic, 64. 18 316 Josep Puig Montada siders natural law in the passage. There is a clear distinction between human reason and God’s revelation, but no opposition whatsoever. The “sages” were entitled to make rules because of their science, which consisted of intellectual knowledge reaching immaterial entities. Their science is not exclusive to them; it is based on human nature but they develop it to its highest degree. In many places Maimonides talks about such capacities of the human mind; for instance, in the Code he states: “The superior intelligence in the human soul is the specic form of the mentally healthy human being” (ha-adam hashalem be-daʿat-o).21 Even if natural law is not explicitly discussed in the passage, a connection between human reection and natural law is evident. The Guide of the Perplexed (1191 CE, written thus after Mishneh Torah) is the most philosophical book of Maimonides. There we encounter again the distinction between positive, human and divine laws. Guide of the Perplexed (=GP) II.40 begins by opposing the unity of the human species to the great number of differences between its individuals. In spite of so many differences, men need to live together to survive, “man is urban by nature and his nature requires that he lives in a society.”22 Individuals are very different, their interests are conicting, but they need society to survive. How can this contradiction be resolved? Maimonides answers: It is by no means possible that his society (ijtimāʿ) should be perfected except—and this is necessarily so—through a ruler (mudabbir) who gauges the actions of the individuals, perfecting that which is decient and reducing that which is excessive, and who prescribes actions and moral habits that all men 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. Therefore the law (sharīʿa), although it is not natural, enters into what is natural.23 21 MAIMONIDES, MT I Knowledge IV.8, trans. HYAMSON, 39a. Al-insān madanī bi-l-ṭabʿ, MAIMONIDES, Le guide des égarés II.40, ed. et trad. S. MUNK, Paris 1861 (rprt. Osnabrück 1964), vol. 2, 85a. S. PINES translated “man is political by nature and it is his nature to live in a society” in accordance with the context: MAIMONIDES, The Guide of the Perplexed, trans. S. PINES, Chicago 1963, 381. IBN TIBBON translated the phrase literally into Hebrew: ha-adam medini be-ṭevaʿ: MAIMONIDES, Moreh nebuhim, trans. SAMUEL IBN TIBBON, Jerusalem 2000, 337. 23 MAIMONIDES, GP II.40, ed. MUNK, 85b; trans. PINES, 382. GP II is included in volume 2 of Munk edition. 22 © BREPOLS PUBLISHERS THIS DOCUMENT MAY BE PRINTED FOR PRIVATE USE ONLY. IT MAY NOT BE DISTRIBUTED WITHOUT PERMISSION OF THE PUBLISHER. Maimonides, on Rules and Leadership 317 Maimonides not only answers how God acted to overcome the contradiction between individual interests and social necessity, but also adds that authority is established by the divine providence. He is not saying that authority is of divine origin in the sense that the ruler enjoys his ruling capacity as a divine favor. God wants to keep the human species in existence and to that purpose He creates the principle of authority. He has revealed His laws either through the prophet or the “giver of nomos” (wāḍiʿ al-namūs). Rules and rulers are complementary. “Among them [individuals of the species] there are also those who have the faculty to compel people24 to accomplish, observe, and actualize that which has been established by these two,” i.e. by the prophet and the giver of the nomos. Maimonides has chosen the term mudabbir, which means “organizer,” one who puts things or people in tadbīr, “in order” or to arrange them in a regimen. The term refers to the judge as well as the king. Later, in GP III.41, Maimonides deals with penal laws and introduces the judicial authority: “It is clear that as there must be punishments, it is indispensable to have judges (ḥukkām) distributed in every town.” Last comes the executive authority, “a ruler [Sultan] who is feared” in order to support the work of the judges.25 The closing sentence of the quotation, “Therefore the law (sharīʿa), although it is not natural, enters into what is natural,” is particularly expressive. The mudabbir helps to convert the supernatural sharīʿa into the natural essence of the society. Here, with ‘natural’, Maimonides does not refer the natural law which we discussed before, although he does not reject it. He is interested, instead, that the divine law be implemented, and nds that this is not possible unless human authority intervenes. II. Characteristics of the Revealed Laws II.1. Internal characteristics What deeply concerns Maimonides in the above mentioned chapter II.40 of the Guide, is to distinguish between laws that are claimed to be 24 MAIMONIDES, GP II.40, ed. MUNK, 85b: qūwa li-l-iltizām, employed synonymously to qūwat tadbīr; trans. PINES, 382. 25 MAIMONIDES, GP III.41, ed. MUNK, 91a; trans. PINES, 562. 318 Josep Puig Montada prophetic, but are plagiarisms, and the true prophetic laws, which are divine. When nomoi are known as such, there is no confusion: nomoi are laid down by men although they are based on the work of the active intellect upon their imaginative power. If one expects Maimonides to look into the way divine laws are revealed, he will be disappointed. The warranty for their legitimacy is not found, or not only, in the way it came to us, but in their content itself, and mainly, in their purpose: If you nd a law (sharīʿa) the whole end of which, and the whole purpose of the authority thereof, who determined the actions required by it, are directed exclusively toward the ordering of the city [i.e. state] and of its circumstances and the abolition in it of injustice and oppression; and if in that law attention is not at all directed toward speculative matters, no heed is given to the perfecting of the rational faculty26 […] you must know that that law is a nomos,27 and that the man who laid it down belongs, as we have mentioned, to the third class, I mean to say to those who are perfect only in their imaginative faculty.28 If on the other hand, you nd a law all of whose ordinances (tadbīr) are due to attention being paid, as we stated before, to the soundness of the circumstances pertaining to the body and also to the soundness of belief […] you must know that this guidance comes from Him, may He be exalted, and that this law is divine (ilāhīya).29 In a later chapter of the Guide, III.27, Maimonides explains that the law (sharīʻa) of Moses aims at both perfections and he interprets Deut. 6:4: And the Lord commanded us to do all these statutes (ḥuqqim). These statutes bring us both ultimate and corporeal perfection, and the latter “can only be well ordered through political association.”30 I. Twersky, H.A. Davidson and other scholars have stressed Maimonides’ lasting commitment to the rational endeavor. Davidson concludes his book called precisely Maimonides, the Rationalist explaining the details of how the human perfection is intellectual perfection 26 MAIMONIDES, GP II.40 ed. MUNK, 86b: Takmīl al-qūwa al-nāṭiqa. Nāmūsīya, positive human law. Munk preferred to translate “législative”, see MAIMONIDES, GP II.40, trans. MUNK, 311. 28 Cf. the explanation in MAIMONIDES, GP II.37, ed. MUNK, 80b; trans. PINES, 374: “If again the overow [from the active intellect] reaches only the imaginative faculty […] this is characteristic of the class of those who govern cities.” 29 MAIMONIDES, GP II.40, ed. MUNK, 86b; trans. PINES, 383-84. Cf. TWERSKY, Introduction, 364. 30 MAIMONIDES, GP III.27, ed. MUNK, 60b; trans. PINES, 512. 27 © BREPOLS PUBLISHERS THIS DOCUMENT MAY BE PRINTED FOR PRIVATE USE ONLY. IT MAY NOT BE DISTRIBUTED WITHOUT PERMISSION OF THE PUBLISHER. Maimonides, on Rules and Leadership 319 for Maimonides.31 Afrming “the perfecting of the rational faculty” as the specic purpose of divine laws fully accords with his commitment. II.2. External characteristics. Although Maimonides sees the fundamental criterion for the divine character of the law in its rationality, he seems to be aware that this criterion is not sufciently distinctive and that objections may be raised. Already in his Commentary on the Mishnah (completed in 1168 CE), he addressed the issue of prophecy and looked for the criteria to establish its truth. The rst criterion concerns miracles as proofs supporting the claim for prophethood, so that one who performs them is known to be a true prophet, and he writes: The great masses of people, as well as a number of learned individuals among them, are under a false impression assuming that prophecy cannot be attributed to one claiming it unless he has performed a wondrous miracle, such as one of the miracles of Moses, our teacher, may his memory be blessed, or if he changes the course of nature as when Elijah, of blessed memory, brought back the son of the widow or, as is known to all, of the miracles of Elisha, may he rest in peace (Commentary on the Mishnah, Zeraʿim, Introduction).32 Maimonides cannot accept the claim because “their prophethood had been established previously,” i.e., previous to their miracles, so that the issue is to establish prophethood originally, in itself. Maimonides goes into the subject and afrms that the true prophet is a man, wise, strong in character and rich in being contented with his lot. The true prophet calls people to worship God, to obey His commands, to observe the Torah. If so, he may claim prophethood. Maimonides recognizes that these characteristics are not sufcient and that there are many details in prophethood. “This whole subject would require an entire book in itself. Perhaps God will help us in compiling what is appropriate in a book on that subject.”33 Nevertheless, when he wrote another introduc31 H.A. DAVIDSON, Maimonides the Rationalist (The Littman Library of Jewish Civilization), Oxford 2011, 266-67. 32 Porta Mosis sive dissertationes aliquot a R. Mose Maimonide suis in varias Misnayot […] (PhM), ed. et trans. latina E. POCOCKE, Oxford 1655, 11-12. Quotation according to Maimonides’ Introduction, trans. ROSNER (above n.2), 45; 2nd ed., 13. 33 Maimonides’ Introduction, trans. ROSNER (above n.2), 51; 2nd ed., 20; PhM, ed. POCKOCKE, 17. 320 Josep Puig Montada tion, namely, the introduction to the commentary on Sanhedrin X, concerning the seventh article of faith, on the prophetic capacity of Moses, Maimonides distinguished between ordinary prophecy and that of Moses and showed four differences between them.34 First of all, Moses’ prophecy took place by the sole means of the intellect. Maimonides explains the biblical expression of Exodus 33:11 face to face (peh ʿal peh) for the dialogue between God and Moses as follows: His imaginative and sensitive faculties stopped (taʿaṭṭalat) apprehending, his appetitive faculty receded (rahishat) and only intellection (ʿaql) remained, and for this reason, because God spoke to him without mediation, he receives the designation (kunyà) of the angels.35 The second reason is that Moses received the revelation when he was awake, the third, that he was not agitated or distressed during the revelation, and the fourth, that he could prophesize every time. The three are circumstantial evidence, but the rst reason, namely, that Moses’ revelation was direct and purely intellectual, affects the very essence of prophecy. The afrmation is audacious and is a very allegorical interpretation of the Sinaitic account. Later, in his Code, Maimonides came back to the subject, making a clear-cut distinction between the prophecy of Moses and that of his predecessors. He dened prophecy as one of the foundations of religion (yesode ha-dat) and, as he had done in the Commentary on the Mishnah, insisted on the prophet being special by his wisdom and moral integrity. He also added some details about the nature of prophetic revelation: God revealed His message to the prophets in dreams and in the form of an allegory (mashal).36 By contrast, God revealed His message to Moses awake and Moses “received his prophecy not as a riddle, but [he] had a clear and lucid vision”. Moses can speak with God. Maimonides quotes Exodus 33:11 The Lord spake unto Moses face to face.37 34 PhM, Fundamentum septimum, ed. POCOCKE, 168-73. I could not access the English translation by F. ROSNER, Maimonides’ Commentary on the Mishnah, tractate Sanhedrin, Brooklyn, NY 1981. 35 PhM, ed. POCOCKE, 169. 36 MAIMONIDES, MT I Knowledge VII.1-3, trans. HYAMSON, 42b. Maimonides quotes Num. 12:6: “I do make Myself known unto him in a vision. I do speak with him in a dream.” 37 MAIMONIDES, MT I Knowledge VII.6, trans. HYAMSON, 43a. © BREPOLS PUBLISHERS THIS DOCUMENT MAY BE PRINTED FOR PRIVATE USE ONLY. IT MAY NOT BE DISTRIBUTED WITHOUT PERMISSION OF THE PUBLISHER. Maimonides, on Rules and Leadership 321 Maimonides’ intellectual disposition makes him critical when reading narratives of extraordinary events. He is suspicious of miracles. As for the miracles that Moses performed, he has no doubts but does not think that Moses performed them to support his prophetic claim. He did it because they were needed. Therefore he asks “What then were the grounds for faith in him? The Revelation on Sinai which we saw with our own eyes.”38 Afterward, in the Guide, Maimonides will refer to both the Mishneh Torah as well as to the Perush ha-Mishnayot to substantiate the authenticity of Moses’ prophecy and stress the differences between Moses and the rest of the prophets. Since the Guide is more technical, he dened prophecy in general as an emanation, or overow, from God through the active intellect upon the rational faculty, and subsequently, upon the imaginative faculty,39 but this applies to the rest of prophets, not to Moses. Maimonides admits that Moses worked miracles, literally, “tokens” (otot) and that they were different from those of the other prophets, because they were known to everyone and were public, while the signals of the previous prophets were seen by only a few people. However miracles are not the main reason for the distinctive character of Moses’ prophecy. The main difference lies in the uniqueness of the Mosaic law: “It is a fundamental principle of our Law that there will never be another Law,” i.e. another law than the Mosaic law.40 And why is it unique? It is unique because “nothing similar to the call addressed to us by Moses our Master had been made before him.” Maimonides explains that only Moses afrmed: “God has sent me to Israel and has given me commandments and prohibitions.” His argument may seem rather weak but it has some consistency. Maimonides now is not referring to the congregation on Mount Sinai to support his argument, as he did in the Code. He looks into the commandments, he looks for their reasons, sees how well instituted they are, and concludes that they are perfect and not grievous. Accordingly the facility or difculty of the Law should not be estimated with reference to the passions of all the wicked, vile, morally corrupt men, but should be considered with reference to the man who 38 MAIMONIDES, MT I Knowledge VIII.1, trans. HYAMSON, 43b. MAIMONIDES, GP II.36, ed. MUNK, 77b: Fayḍ; trans. PINES, 369: “Know that the true reality and quiddity of prophecy consists in its being an overow overowing from God […].” 40 MAIMONIDES, GP II.39, ed. MUNK, 83b: Sharīʿa; trans. PINES, 379. 39 322 Josep Puig Montada is perfect among the people. For it is the aim of the Law that everyone should be such a man. Only that Law is called by us divine law, whereas the other political regimens […] are due, as I have explained several times, to the actions of groups of rulers who were not prophets.41 Therefore the uniqueness of the Mosaic laws resides in its perfect nature and such perfection combines the ideal pattern with the real possibility of man to achieve it. The aim of the Law is that everyone should attain it but reason will determine its essence. Although we engaged in analyzing external features of the revealed law, eventually we have been directed to internal clues insofar as reason is the criterion to nd what the perfection of man is. Maimonides is not referring to Stoic concepts of natural law or right reason, but he is not rejecting them either. III. Authority and Power in the Revealed Laws In the Book of Commandments,42 originally written in Arabic and completed in around 1170 CE, Maimonides arranged the 613 commandments contained in the Torah in two sections, one for the 248 positive commandments, and the other for the 365 negative ones. He then organized the positive commandments in ten categories, ve dealing with man’s duties to God, and ve dealing with man’s duties to man.43 The negative commandments are organized in a similar way. The Book of Commandments should be seen as an introduction to the Code, nished in 1177 CE, but there are differences in methodology. The Code aims at completeness, while the Book of Commandments pays more attention to reasoning and the development of arguments. Both works have a comprehensive study of the positive laws. Two general remarks should be made. First, Maimonides distinguishes between collective and individual commandments, viz. ones which the community is obliged to carry out, and ones which every Jew is obliged to.44 Maimonides gives three examples for commandments 41 MAIMONIDES, GP II.39, ed. MUNK, 85a; trans. PINES, 381. Kitāb al-Sharā’iʿ. Medieval Hebrew translation: MAIMONIDES, Sefer ha miṣvot (=SM), trans. MOSES IBN TIBBON, Jerusalem-New York 1995. English translation: MAIMONIDES, The Commandments, trans. C.B. CHAVEL, London-New York 1967. 43 Cf. MAIMONIDES, GP III.35, ed. MUNK, vol. 3, 76b-77a; trans. PINES, 538. 44 MAIMONIDES, SM, trans. CHAVEL, 257: “If you examine all the Commandments 42 © BREPOLS PUBLISHERS THIS DOCUMENT MAY BE PRINTED FOR PRIVATE USE ONLY. IT MAY NOT BE DISTRIBUTED WITHOUT PERMISSION OF THE PUBLISHER. Maimonides, on Rules and Leadership 323 obligatory upon all Israel, in its time, “the building of the temple, the appointment of a king, and the extermination of the seed of Amalek.”45 Most of the rules concerning the judiciary or the royal authority are of a collective nature. Second, Maimonides may insist on the universal and permanent validity of divine rules,46 but he is cautious enough to recognize that some laws have their validity restricted. There are laws which are binding only upon certain circumstances and Maimonides points to them at the end of the Book of Commandments. For instance, the ordinance for the festival offering was binding only during the existence of the Temple. Maimonides maintains that only sixty of the 248 positive commandments are valid permanently, with 46 of them binding both men and women, and 14 not binding women.47 Here it is worth mentioning Twersky, who explains that Maimonides differentiates between a law which is intrinsically limited, and one which is timeless per se, but which has been put into the limited category “for whatever reason.”48 This is the reason why Maimonides, I would agree, enumerates and explains all the 613 commandments— positive and negative—although they may not be implementable at a given point. Most of them are related to individual or social behavior, while some of them are related to instituting an authority or establishing the norms for their work. When God commanded Israel to set up courts and anoint kings, we should interpret it as a legitimation of political power. thus far presented, you will nd that some of them are obligatory upon the whole congregation of Israel collectively, and not upon every person individually.” 45 Similar in MAIMONIDES, MT XIV Kings I.1, trans. HERSHMAN, 207, see below. 46 MAIMONIDES, MT I Knowledge IX.1, trans. HYAMSON, 44b: “It is clearly and explicitly set forth in the Torah that its ordinances will endure for ever without variation, diminution or addition.” 47 MAIMONIDES, SM, trans. CHAVEL, 258: “The Unconditional Commandments are sixty in number, it being assumed, however, that the man whom we regard as bound by these sixty Unconditional Commandments is living in normal conditions: that it to say, that he lives in a house in a community, eats ordinary food, namely bread and meat, pursues a normal occupation, marries and has a family.” Ibn Tibbon’s Hebrew translation employs hikhrahiyut, in most cases: “necessity” for what CHAVEL translates as “unconditional”, MAIMONIDES, SM, trans. MOSES IBN TIBBON (above n.42), 285. 48 TWERSKY, Introduction, 229-34. 324 Josep Puig Montada The judiciary in Maimonides’ political organization ranks higher than the executive or royal power. The reason is obvious if we think of his system, in which rst are the laws ruling the conduct of men towards God and towards other men, second, the judges being in charge of enforcing the observance of these laws, and third, the king who has to strengthen the authority of the judges. “Appointing Judges and Ofcers of the Court” is not one of the Unconditional Commandments because it is subject to a temporal and special limitation, the existence of the Great Sanhedrin. But its conceptual validity remains untouched and the commandment obliges all generations: 176. By this injunction we are commanded to appoint judges who are to enforce the observance of the Commandments of the Torah; to compel such as have strayed from the path of truth to return to it; to command the performance of what is good and the avoidance of that which is evil; and to inict the penalties on the transgressors.49 The Mishnaic commandment entails a judicial organization. Judges have to be chosen, and ordained, courts of different levels have to be set up, procedural rules have to be established; to this end Maimonides arranges and explains the necessary actions in his Code.50 Then he turns to the judiciary, MT Sanhedrin chapters VIII and IX, and sees the judges mainly as collegial, not as single leaders. References to a single judge are made on various occasions.51 The judge is vested with discretionary power and Maimonides admonishes him to be very careful.52 Let us recall that one of the “Commandments of Necessity”, the ever valid commandments, concerns the majority principle: commandment 175, “Abiding by a majority decision” is required not only in matters related to a court, but in all questions of public life in the Jewish tradition, and the command is not subject to temporal or local conditions. The Code contains numerous indications of how to proceed in collegial boards, and we read, for instance, “If the court is divided [in noncapital cases], some voting for acquittal and others for conviction, 49 50 51 52 MAIMONIDES, SM, trans. CHAVEL, 187. MAIMONIDES, MT XIV Sanhedrin I-IV, trans. HERSHMAN, 5-16. MAIMONIDES, MT XIV Sanhedrin XXIII and XXIV, trans. HERSHMAN, 68-75. MAIMONIDES, MT XIV Sanhedrin XXIV.10, trans. HERSHMAN, 75. © BREPOLS PUBLISHERS THIS DOCUMENT MAY BE PRINTED FOR PRIVATE USE ONLY. IT MAY NOT BE DISTRIBUTED WITHOUT PERMISSION OF THE PUBLISHER. Maimonides, on Rules and Leadership 325 the majority opinion is followed.”53 The majority principle is not arbitrary by any means, because the decision of each one of the members of the collegial body is rationally argued. Every judge has to form an opinion based on rational elements and express it.54 The principle has its reason because variety of opinion is rooted within the differences between men, so unanimity can even be suspicious.55 Judges often have not enough capacity to enforce the laws, they are tied by procedural norms, they cannot proceed swiftly, and there is a need for a strong individual force: the king. He is indispensable to maintain society alive and united, and Lorberbaum even talks about “extralegal prerogatives accorded to the king”.56 God foreknew the weakness of human society and thus one of his positive commandments is to appoint a king: 173. By this injunction we are commanded to appoint a king over ourselves, an Israelite, who will bring together our whole nation and act as our leader […] The provisions of this Commandment are explained in the second chapter of Sanhedrin, at the beginning of Kerithoth, and in the seventh chapter of Sotah.57 The Messiah will be a king, he will bring together the nation, but he will be not more exalted than Moses.58 Treatise V of the Mishneh Torah is devoted to the Laws concerning Kings and Wars, and it begins with the sentence: Three commandments—to be carried out on entering Palestine— were enjoined upon Israel: to appoint a king, as it is said: Thou shalt in anywise set him king over thee (Deut. 17:15); to destroy the seed of Amalek, as it is said: Thou shalt blot out the remembrance of Amalek 53 MAIMONIDES, MT XIV Sanhedrin VIII.1, trans. HERSHMAN, 26-27. MAIMONIDES, MT XIV Sanhedrin VIII.3, trans. HERSHMAN, 28: “The judge who has formed no opinion does not have to give a reason for his inability to arrive at a decision, whereas the judge who declares for acquittal or for condemnation is bound to state the ground on which his opinion is based.” 55 In capital cases, if all members of the Sanhedrin vote for conviction, the accused is acquitted: see MAIMONIDES, MT XIV Sanhedrin IX.1, trans. HERSHMAN, 28. 56 M. LORBERBAUM, Politics and the Limits of Law. Secularizing the Political in Medieval Jewish Thought, Stanford, CA 2001, 70. 57 MAIMONIDES, SM, trans. CHAVEL, 182. 58 For the discussion on the greatness of the prophecy of Moses, and the Messiah, see an overview in M.B. SHAPIRO, The Limits of Orthodox Theology: Maimonides’ Thirteen Principles Reappraised, Oxford 2004, 87-90. 54 326 Josep Puig Montada (Deut. 25:19); and to build the sanctuary, as it is said: Even unto His habitation shall ye seek and thither thou shalt come (Deut. 12:5).59 Then Maimonides enters into details of who is eligible for the monarchy, the ways to appoint the king, the differences between the kings of Israel and the kings of the House of David, the hereditary character of kingship, etc. but no mention is made of the king as a divine institution. He explained prophecy as participation in the Active Intellect, but I cannot nd similar indication for the king. The king is never above the laws. In Lorberbaum’s words, Maimonides recognizes a monarch with legislative and punitive powers but he views the Torah as the one law of the polity.60 The origins of kingship are taken into consideration by Maimonides. A king can only be legitimized by appointment by the judges and a prophet,61 or by a prophet “if that king walks in the way of the Law and the commandments and ghts the battles of the Lord”.62 Moreover, Maimonides lays many rules of behavior upon the king, “he shall not have many wives” or “he shall not acquire many horses”, are wellknown instances. He is afraid of the excesses of absolute power which the king may commit, because the king has always to abide by the law. Maimonides did face the issue of the legitimation of political power, but in doing so he did not employ our terms and concepts. He obviously accepted God as its foundation but he deposited it neither in a single man nor in a collegial leadership. Maimonides puts the laws rst so that their legitimation had to precede any personal instances. Moreover, the collegial judges get priority. Judges have to follow the laws rigorously, although the king may dispense with them. Yet the king ranks lower than the judges. IV. Natural Law Again The Noahide laws affect every individual and I agree with the view that Maimonides sees them as natural laws. We can interpret revelation 59 MAIMONIDES, MT XIV Kings I, trans. HERSHMAN, 207. M. LORBERBAUM, Politics and the Limits of Law, 137. 61 MAIMONIDES, MT XIV Kings I.3, trans. HERSHMAN, 207: “The rst King of a dynasty cannot be set up save by the court of seventy elders and a prophet.” 62 MAIMONIDES, MT XIV Kings I.8, trans. HERSHMAN, 209. 60 © BREPOLS PUBLISHERS THIS DOCUMENT MAY BE PRINTED FOR PRIVATE USE ONLY. IT MAY NOT BE DISTRIBUTED WITHOUT PERMISSION OF THE PUBLISHER. Maimonides, on Rules and Leadership 327 in a wide way and assume that he was not intending a formal revelation but the imprint of basic norms in every soul. The Mosaic laws are a very different case. Maimonides followed the tradition of the 613 commandments. He accepted them as revealed, and looked for their rational justication. The Mosaic laws might not be valid always and everywhere, because the circumstances which necessitated them had changed or no longer existed, but God had not revealed them capriciously. In his commitment to nd their rational foundation, Maimonides opens a way, in my view, for linking them up with natural law. They conform to natural law, and they complement it because natural law is not sufcient to achieve the specic goal of man, namely, “perfecting his rational faculty.” More signicant, it seems to me, is how Maimonides legitimates political power in relation to natural law. No man is superior to others, and only knowledge and wisdom qualify men for authority, but the reason for appointing someone to watch over the community is ancillary at rst sight: authority is just needed for the observance of the laws. The rst kind of authority is judicial and collegial; the second is the executive power, and by a single man. The king follows the judge, when the practice imposes an authority who expedites enforcement of the laws. Whether a Gentile king is legitimated to punish his Jewish subjects is not discussed by Maimonides.63 Political power is derivative at rst sight. Upon reection, it appears to be a part of Maimonides’ doctrine. It is not by accident that authority is needed in a state because some of its individuals go astray. Authority belongs to the very nature of the state because the differences among individuals are so many that interpretation of the laws as well as coercion is part of the system. It is clear that Maimonides did not enter into the discussion of divine, natural, and positive laws in the way the Christian schoolmasters did. Nevertheless, I nd indications that he did address the issue in an informal way. Natural law underlies the Noahide precepts and the 63 NISSIM BEN REUBEN GERONDI ha-Ran (ca. 1310-1380) seems to have been the rst to legitimate the Christian king in this context. See NISSIM BEN REUBEN GERONDI, Derashot ha-RAN, ed. A.L. FELDMAN, Jerusalem 2003, 416-22; cf. the English translation in NISSIM BEN REUBEN GERONDI, The Discourses of the RAN, trans. S. SILVERSTEIN, Jerusalem 2014, 402-8. 328 Josep Puig Montada legitimation of primary authority. Positive Mosaic laws are divine, but they have to be implemented and so they become natural according to Maimonides’ words in GP II.40 (see above). However the Tables are the most important laws: “And the Tables were the work of God (Exod. 32:16). Maimonides derives from this that the existence of the laws was natural and not articial, for all natural things are called “the work of the Lord.”64 Maimonides’ interpretation hints at the possibility that natural law underlies the Mosaic laws and thus it is present in Maimonides’ doctrine. Universidad Complutense de Madrid 64 MAIMONIDES, GP I.66, ed. MUNK, vol.1, 85a; trans. PINES, 160. © BREPOLS PUBLISHERS THIS DOCUMENT MAY BE PRINTED FOR PRIVATE USE ONLY. IT MAY NOT BE DISTRIBUTED WITHOUT PERMISSION OF THE PUBLISHER.