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The Jewish Roots of Western Freedom

By Fania Oz-Salzberger

What modern republican thought learned from the Bible, the Talmud, and Maimonides.


Hobbes, too, was a dedicated Hebraist, and two of Leviathan’s four books rely heavily on the ancient Israelite model.  As Menachem Lorberbaum has recently argued, Hobbes politics was essentially a political theology: He invoked biblical authority for his doctrine that the ruler alone is the legitimate interpreter of the divine will.  Both the will of God and the assent of his creatures are necessary to justify the establishment of a political community.  After the initial democratic moment, when the civil compact is signed in accordance with the model of the covenant between God and Israel,24 the sovereign proceeds to rule alone, as the source of law and guarantor of the social order.25 Selden and Hobbes thus followed a common route: A biblical foundational moment yields a political matrix, and a theological scaffolding gives way to a solidified constitutional model. In ancient Israel, God first anchored the natural law in a system of civil laws, and then established a political authority to interpret and enforce those laws. In the modern state, the same structure of laws and sovereign applies, with God discreetly backstage, soon to become altogether absent. Leaving behind the covenant and the tablets, the modern ruler strides forward, alone, into the Europe of the future, the Europe of sovereign states guided by political rationalism.

What, then, did Selden contribute to the Western concept of political liberty? If rationalism and secularism are the keys to liberty, then both Selden and Hobbes hover like fairy godmothers over the cradle of the modern state. But Selden also presented a new idea, taken directly from biblical law, that fortified the basis of the European state at a crucial moment in history. As a recent study has suggested, Selden used the Bible to argue for clearly definable borders between political entities. The notion of borders as juridical fiction, broached by Selden, underpinned the legal integrity of the modern sovereign state.26

The occasion for Selden’s interest in international borders was a dispute between English and Dutch merchants over open-sea shipping rights. The Dutch demand for a free sea, free of navigation limits and territorial rights, was capably advocated by the prominent statesman and jurist Hugo Grotius. The rival English case for a closed sea, divided up among land powers, was taken up by Selden on the order of James I, which was later renewed by Charles I.27 The maritime dispute thus yielded two of the greatest works in the history of international law. Grotius’ Mare Liberum (A Free Sea, 1609) arguedrelying, among other things, upon biblical sourcesthat sea boundaries are purely imaginary and therefore invalid.28 Selden responded with Mare Clausum (A Closed Sea, 1635), in which he showed that in the Bible and the Talmud precise boundaries were drawn both around the land of Israel and between the segments allotted to each tribe, thus establishing the principle of boundaries as a binding legal fiction.29 Maritime boundaries were similarly settled for the seafront tribal territories, and their validity rested on their very status as products of legal imagination.

Selden’s Mare Clausum may explain something of the allure that the Bible and Talmud held for this particular jurist. In his later Uxor Hebraica, concerning divorce, he found the Jewish laws to be an attractive model for permitting that which the canonical law forbade. And here as well, as a British statesman during the formative period of the European political order, Selden found in the Bible the legal justification for the idea of meaningful political boundaries and total separation between states. It was a necessary corollary to Jean Bodin’s idea of the complete and uniform sovereignty of a supreme ruler over a strictly defined territory, without internal distinctions of delegation, division, or secondary rule.30 Total borders made total sovereignty, and fostered the modern system of international relations. It was no accident that Mare Clausum enjoyed the peak of its fame, and was translated into English, soon after the enactment of the Peace of Westphalia in 1648.

It was within these Bodinian, Hobbesian, and Seldenian states, headed by a sovereign and enclosed within clearly delineated national borders, that a new idea of European liberty, based on natural law, could flourish. The state was the source of law and hence the source of rights, and its subjects could therefore become bearers of rights of a new kind, universal and equal.31 Just as the unambiguous boundaries of biblical Israel defined a space in which the same rule shall apply to you and to the stranger who resides among you,32 so too the new sovereign European state created a new space for legal equality. Selden’s doctrines, manifestly inspired by the Bible and the Talmud, allowed the next generation, that of John Locke, to apply a new doctrine of rights within the newly created expanse of the sovereign state.

Biblical inspiration must, again, be measured against its own limits: Not civil rights, but the delineated political space within which they could be enacted, was the outcome of Selden’s Hebraic scholarship. Ancient Israel, in Selden’s eyes, owed its success as a constitutional state to the clear definition of the territory in which its laws applied. Even the Hebraic laws of marriage and divorce depended upon a precise demarcation of the territory of the land of Israel, as discussed in the talmudic tractate of Gitin. The mutual dependency between the uniform application of laws and the clear delineation of national borders was a product of Selden’s extensive study of Deuteronomy and the talmudic tractates Gitin and Sanhedrin. The English and Dutch sailors exchanging blows in the taverns of Rotterdam or on the estuary of the Thames were probably unaware that their maritime dispute was being settled in consultation with the ancient Jewish academies of rabbinical exegesis. But the history of ideas is a wily creature indeed.

 

IV

It is likely that John Selden never met a Jew in his lifetime: Jews had been expelled from England in 1290, and Manasseh Ben-Israel started negotiating with Oliver Cromwell for their readmission only a year after Selden’s death in 1654. Other English jurists of his day traveled to centers such as Leiden, Geneva, and above all Amsterdam, where they took part in that wonderful, if transitory, continental network in which rabbis shared their Hebraic knowledge with Christian scholars. Seventeenth-century Amsterdam was the most fertile soil for social and scholarly interaction between Jews, primarily exiles from Spain well versed in classical thought, and Christian scholars, primarily Calvinists with a Hebraic fire burning in their bones.33 In the Dutch golden age, the Hebrew republic took shape as an ideal type for the modern European legal and political system. Grotius was one of the first to search for the Hebraica veritas, the Hebrew truth, a natural law common to all nations.34 But perhaps the greatest product of this Hebrew-Dutch encounter was Grotius’ student and rival, the jurist Peter van der Cun, better known by his Latin name, Petrus Cunaeus.

Cunaeus’ great work, Respublica Hebraeorum (The Commonwealth of the Hebrews), was published in 1617.35 It was preceded by about a dozen works by other authors bearing the same title, but Cunaeus’ effort stood apart, for the first time presenting the Israelite state of the First Temple period, and especially the united monarchy under Saul, David, and Solomon, as a practical model for the newly independent United Provinces. Cunaeus addressed his book to the General Estates of Holland and West Frisia and to their magistrates, suggesting that they learn from a commonwealth, the most holy, and the most exemplary in the whole world.36

As Michael Walzer has noted, earlier Dutch Calvinists had already found in the story of Exodus a useful model for justifying their war of independence against Spanish rule.37 But Cunaeus now took the biblical inspiration a step further: The Bible was not merely a model for the rebellion of slaves against their masters, or for the revolt of subjects adhering to the true religion against tyrants imposing a false one, but a legal and juridical model for the functioning of an independent state.

What did Cunaeus see in the ancient Hebrew polity? First and foremost, the biblical historical narrative from Exodus to Kings, and its exegesis in Jewish literature, provided him with a realistic source of political inspiration.38 He read Josephus’ Jewish Antiquities and Contra Apion, as well as Maimonides’ Mishneh Tora, and these works assisted him in translating the Bible’s political imagery into familiar Greco-Roman terms. In Cunaeus’ opinion, however, the Hebrew republic was of a higher order than the Greek or Roman states. Because its god was the true God, the Hebrew state, a real polity in every sense notwithstanding its divine origins, could function as an archetype for the ideal republic. Its laws corresponded to natural law, and its social spirit flowed directly from the divine imperative of justice. This state was neither a monarchy nor an oligarchy nor a democracy, but a republic, whose senatethe Sanhedrinand magistrates, including judges and priests, enforced and executed divinely ordained laws in ordinary civic situations.39



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