LAW IN A FIELD OF PAIN AND DEATH

The law, as Robert Cover famously put it, “takes place in a field of pain and death.” As a result of a jury's ruling, an individual may lose his or her savings, family, freedom, or even life. The exercise of law implies and, indeed, demands a kind of violence. Legal judgments must be enforceable and therefore require force; force is interior to the law. How does legal discourse legitimate that interior force and distinguish it from the violence beyond law's borders? Can it even make this distinction? Is the legitimacy of law's force decidable within the terms of the law itself? If it is, legal discourse risks falling into a self-justifying hermeticism: law's force is legitimate because it is the law.

TROPES OF SUBJECTIVITY

The courtroom speech tells a life story, a logos biou. Litigants relate glowing autobiographies of their own lives and vicious exposés of the lives of their opponents. A vision of the subject is always implicit in juridical discourse, and subjective strategies are a vital means by which that discourse produces and secures legal meaning. But what kind of story is law's logos biou and what kind of life does it narrate? Legal theorists who put these questions to modern law often conclude that legal discourse in general is unable to embrace a complex subject, whether it is the subject of psychoanalysis, with its unconscious motivations and ambivalent desires, or the decentered and ontologically divided subject of postmodernism. These scholars argue (with various attitudes of regret or approbation) that law both assumes and requires as its ideal subject a unified and unitary, autonomous and rational individual, the conscious initiator of intentional action and the identifiable bearer of legal rights.

THE LEGAL SUBJECT

Among the law's many fictions, none is more vital than the legal subject, the implied subject of legal action. The law tries deeds, but it can only try them in the person of their doer. Every act requires an agent to explain it, motivate it, bear witness to it, or simply represent it in court. But those agents are always to a greater or lesser extent fictions, from the shibboleth of the corporation as individual to the good-faith fabrications of a victim who imaginatively reconstructs the emotions of a traumatic event many months or years later. How forensic speeches construct their subjects, when they conjure them into being, why, and how, is the topic of this chapter and the next.

Act and agent are mutually determining in Athenian juridical discourse. The criminal's presumed state of mind defines the crime, as well as its presentation in court. Whether the crime is voluntary or involuntary will dictate where the case is judged, how it is argued, what punishments are meted out – in short, the whole shape of the case. The difference we saw in Demosthenes 54, for example, between a private suit for aikeia (resulting in a fine) and a public suit for hubris (which could warrant the death penalty) was what modern law calls mens rea, culpable mentality.

ON THE INSIDE

Juridical discourse constructs a world of its own, a world of law. That legal world was, of course, embedded within the broader landscape of the polis: nomos means “norm” as well as “law” in Greek, and the courts were a central arena for the reproduction and negotiation of Athens' normative values and beliefs, as much recent scholarship has shown. But if the law was enmeshed in the fabric of Athenian society and ideology, it also had a discursive specificity of its own. In the dikastēria (courts), the Athenians developed a juridical way of looking at life, social relations, the past and the future; they also reflected self-consciously on the law itself, on its discursive boundaries, its institutional force, its internal rules and regularities. This juridical mode of thought was not, needless to say, isolated or idiosyncratic; if it were, it would have been incomprehensible. Rather the law, as Steven Johnstone has argued, was a “semiautonomous field.

Questions relating to the office of high priest of the Jerusalem temple in the Persian and Hellenistic periods have long been of interest to scholars. Many opinions and hypotheses they have voiced concern especially the political aspect of the position. This is primarily because some high priests played a major role in the tumultuous events which occurred in Judea late in the 3rd and throughout the first half of the 2nd centuries BCE. This helped form the now quite commonly accepted view that high priests played an important secular role as political leaders. Yet studies published in recent years whose authors attempted a comprehensive analysis of historical evidence relevant to high priesthood paint a picture that differs considerably from the received wisdom. Such studies have shown that, in the light of the sources, many common beliefs and opinions about the status of high priests before the Hasmoneans call for thorough revision if not outright rejection. Conclusions thus arrived at are not irrelevant to the way the Hasmoneans themselves are viewed.

The starting point in discussions of the role and importance of the office of high priest of the Jerusalem temple at the time it was held by the Hasmoneans is usually the year 152, when Jonathan became the first of them to attain it. Such discussions would, however, be incomplete without duly considering the whole sequence of events which had begun more than 20 years previously and in which the main protagonists were high priests of the same temple.

The Hasmoneans, with their political and religious status, were often the subject of criticism by those demanding that they step down from some of their titles. Some texts composed in the second half of the 2nd century and first half of the 1st century BCE are thought to be critical toward the Hasmoneans, and for this reason it is worth presenting them here, if only as a brief review, what was the substance of the criticism and the form in which it was expressed.

At the core of all anti-Hasmonean attitudes was opposition to the vastness of power they combined in their hands. The Pharisees were the first to venture to voice publicly their opinion on the matter. Their criticism, though veiled (the ostensible pretext given for suggestions that John Hyrcanus submit a resignation from high priesthood were rumors of his impure lineage), proved pregnant with consequences. First, a crisis ensued in relations between the ruler and the Pharisees, as a result of which they lost their influence, and soon afterward, under Alexander Jannaeus, the crisis escalated into a full-scale conflict. Criticism so expressed proved ineffectual, what with the lack of any desired outcome and with repressions they suffered. The behavior of the Pharisees after Alexander Jannaeus' death also implies that, despite their declared anti-Hasmonean attitudes, they were willing to collaborate with them under certain circumstances.

In the Hellenistic period, independence of peoples inhabiting multiethnic empires was not the subject of any recognized regulations, the very concept of independence (as understood today) being unknown. Following the death of Alexander of Macedon, the political order in the eastern Mediterranean was based on states that rose out of his collapsed empire, headed by the deceased king's generals. Even though the monarchies thus created exhibited many similarities in political structure and organization, in each of them social relations followed a slightly different path, with different economies and cultural traditions. In the Seleucid Empire, a major factor determining state organization was the Achaemenid heritage. Its impact made itself felt especially in Mesopotamia and in the eastern provinces. The use of Persian administrative patterns allowed the Seleucids to manage fairly efficiently, for a while, the vast multiethnic and multicultural territory. Yet, several decades into their reign, they had to face strong separatist tendencies. Those led to the creation within their empire of a number of separate political entities whose leaders made it their aim to win full independence from Syrian kings.

Seleucid attitudes toward their subjects seeking independence from their rule are an important problem in studying Syrian kings' philosophy of government which determined their internal policy. Sources are of little help in pinpointing how the Seleucids went on to lose control over respective lands in their empire and how new states came to arise therein.

A picture of the Hasmoneans would not be complete if we ignored those sources which speak about the prevailing feeling among Judea's society toward its rulers. Such sources offer an opportunity to confront the scathing denunciation of the Hasmoneans in texts written by their religious opponents with attitudes of those social groups on which rested the Hasmoneans power. The weakness of such records is that the events in which we are interested are shown in them from a distant, more than a century-long perspective, and that they all came from a single author, Josephus, who proudly emphasized his blood relation to his protagonists (cf. Jos. Vita 2–6). Thus his objectivity is called to question. Yet with no alternative source extant, we are confined to his account.

Before we proceed with an analysis of information supplied by Josephus, a reservation must be made that facts about the Hasmonean rule over Judea, known and confirmed by various sources, question the truth of such a picture of realities as sometimes emanates from texts by different authors subscribing to specific religious sympathies. Such writings are most often filled with highly emotional judgments about events described, the picture of events they convey being deformed to suit the authors' convictions. When they surfaced, researchers of the history of Hasmonean Judea found themselves in a peculiar position.