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Religious Recognition of Autonomous Secular Law: The Sitz im Leben of R. Nissim of Girona's Homily (no. 11)

  • Itzhak Brand (a1)
Extract

Many consider the political thought of Rabbi Nissim ben Reuben of Girona (RaN, ca. 1310–1380) to be innovative and daring, especially in comparison with other political theories in medieval Jewish thought. It has been argued that in his homily no. 11 RaN recognizes a secular politico-legal system headed by the king, which parallels the halakic-religious legal system under the control of the judicial authority.

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1 Gerald J. Blidstein, “On Political Structures—Four Medieval Comments: Abraham ibn Daud, Maimonides, R. Nissim of Girona, Judah Halevi,” Jewish Journal of Sociology 22 (1980) 47–58, at 53; idem, “‘Ideal’ and ‘Real’ in Classical Jewish Political Theory,” in The Quest for Utopia: Jewish Political Ideas and Institutions through the Ages (ed. Zvi Gitelman; Armonk, N.Y.: Sharpe, 1992) 58.

2 Itzhak Brand, “The King's Law—Philosophy, Halakah and Polemic,” Zion 75 (2010) 393–425 [Heb.].

3 The order of the homilies changes in the various manuscripts. In most manuscripts our homily is no. 11 (and last). In two manuscripts the homily appears as no. 8 (New York 385) or 9 (Moscow and The Rabbi Kook Institute). In the New York 746 manuscript our homily is missing.

4 In general the homilies focus on the weekly portion and matters related to it. See, for example, Drashot HaRaN (ed. Aryeh Leon Feldman; Jerusalem: The Rabbi Kook Institute, 2003) 240 (henceforth quotations from the homily are from this edition unless otherwise mentioned). For a detailed list of homilies and their relation to the weekly portions, see Drashot HaRaN, 18–20.

5 See below n. 45.

6 Warren Zev Harvey, “Nissim of Girona and William of Ockham on Prime Matter,” in The Frank Talmage Memorial Volume (ed. Barry Walfish; 2 vols.; Haifa: Haifa University Press, 1992) 2:87.

7 Most of the homilies (eight out of thirteen) conclude with encouraging words about salvation. See homilies 3, 6, 7, 9, 10, 11, 12, and 13.

8 Quoted phrases throughout this paragraph are from Drashot HaRaN, 412–13. The homilies’ translations, here and below, are mine.

9 Drashot HaRaN, 443: “The king ought not regard himself as ruler and sovereign over the people but as a slave over them, for the purpose of their betterment.”

10 Menachem Lorberbaum, Politics and the Limits of Law (Jerusalem: Hartman Institute, 2005) 159 [Heb.]; Blidstein, “Ideal,” 56–57.

11 Ibid., 56. For a more moderate view, see Menachem Elon, Jewish Law (3 vols.; Jerusalem: Magnes, 1973) 1:43–44 [Heb.]. A similar approach is adopted by Arnold Enker, Fundamentals of Jewish Criminal Law (Ramat Gan: Bar-Ilan University Press, 2007) 34–37 [Heb.].

12 Blidstein maintains that RaN seeks to establish the foundations of a mechanism that provides for a permitted standard deviation from Talmudic halakah under the auspices of the king's law. See Blidstein, “Political Structures,” 53.

13 Shalom Rosenberg, “Again about ‘The General’,” in Sources of Authority and Characteristics of Influence: Spiritual Leadership in Israel (ed. Ela Belfer; Ramat Gan: Bar-Ilan University Press, 1982) 87–103, at 91 [Heb.]; repr. in Law and Integrity in the Legal Theory of Maimonides (ed. Hanina ben Menahem and Berechyahou Lifshitz; Jerusalem: Hebrew University, 2004) 151–69, at 155 [Heb.].

14 Lorberbaum, Politics and the Limits of Law, 5–6, 153.

15 Aviezer Ravitzky, “Religion and State: Competing Models in Jewish Thought,” in Freedom Inscribed: Diverse Voices of Jewish Religious Thought (Tel Aviv: Am Oved, 1999) 49–89, at 57–61 [Heb.]; repr., “Theology and Politics in Medieval Jewish Thought,” in Zionism and the Return to History: Reevaluation (ed. Shmuel Noah Eisenstadt and Moshe Lissak; Jerusalem: Yad Ben Zvi, 1999) 49–89, at 57–61 [Heb.].

16 Lorberbaum, Politics and the Limits of Law, 163.

17 Maimonides, Sanhedrin 18.6; idem, Rotseah 2.2 and 4; idem, Melakhim 3.10. For details, see Gerald Blidstein, Political Concepts in Maimonidean Halakah (Ramat Gan: Bar-Ilan University Press, 2001) 133–41 [Heb.].

18 Aharon Kirschenbaum, “Parallel Judicial Systems in Jewish Law,” Jewish Political Studies Review 10 (1998) 1–23, at 14 [Heb.].

19 For a similar argument regarding the king's law, see Avnei Nezer, Yore Dea, pt. 312, ch. 48; Yosef Shaul Nathanson, introduction to Shoel U’Meshiv response (Lemberg, 1871); see also Eliav Shochetman, “Recognition by the Halakah of the Laws of the State of Israel,” Shenaton Hamishpat Ha'ivri 16–17 (1989–1990) 417–500, at 433 [Heb.] (the king's law as a secondary complementary system to the central system of law); Itamar Warhaftig, “The Authority of the Court Versus the Authority of the King,” Jewish Political Studies Review 10 (1998) 41–55, at 49–51 [Heb.].

20 R. Isaac Halevi Herzog, “Law in the Jewish State,” Torah and the State 7–8 (1955–1956) 13–20, at 13 [Heb.]; Lorberbaum, Politics and the Limits of Law, 157, 159; Ravitzky, “Religion and State,” 51, 64; Blidstein, “Ideal,” 56–57.

21 Blidstein, “Ideal,” 56–57; Ravitzky, “Religion and State,” 66; Lorberbaum, Politics and the Limits of Law, 157, 159.

22 Operative difficulties are not a reason for rejecting a dual system. For example, the courts of the kohanim and of the sages functioned in parallel. See, for example, m. Rosh Hash. 1.7; m. Ketub. 1.5; Daniel Tropper, “Bet Din shel Kohanim,” JQR 63 (1973) 204–21, at 218–21.

23 See, in detail, my article listed in n. 2.

24 As of the thirteenth century, homilies were a key tool for the education of society. See the note of Israel Moshe Ta-Shma, “Ashkenazi Hassidim in Spain: R. Jonah Girondi—the Man and His Work,” Collection of Theoretical Studies in Medieval Rabbinic Literature (4 vols.; Jerusalem: Bialik Institute, 2004–2010) 2:109 n. 1 [Heb.].

25 At the same time, in the definition of their status, the Jews were described as “slaves of the king, belonging entirely to the treasury of the kingdom” (iudei servi regis sunt et semper fisco regionis deputati). This definition appears in many laws of various towns in Aragon and Castile. See Yitzhak Baer, A History of the Jews in Christian Spain (trans. Louis Schoffman; 2 vols.; Philadelphia: Jewish Publication Society of America, 1961) 1:85.

26 In the period of the Reconquista (1150–1230), the Jewish community paid its taxes to the governor as an independent body (aljama) through a special officer in charge of it. In parallel, the Jews received internal administrative and judicial autonomy. See ibid., 1:86.

27 Ibid., 1:118–19. See also ibid., 1:214: the elders of Toledo were allowed by King Alfonso to name in peripheral towns elders to judge in financial matters and cases involving capital punishment.

28 Another order of King James dictates the banishment of a Jew named Acecri aben Cresp and his son-in-law from town. The king empowers the adelantado to catch them if they return to town and to punish them financially and bodily, including with the death penalty. See ibid., 1:117–18; Yom Tov Assis, The Golden Age of Aragonese Jewry: Community and Society in the Crown of Aragon, 1213–1327 (London: Littman Library of Jewish Civilization, 1997) 145–50, 155; idem, “The Jewish Community in the Crown of Aragon,” in Kehal Israel: Jewish Self-Rule Through the Ages (ed. Avraham Grossman and Yosef Kaplan; Jerusalem: Zalman Shazar Center, 2001–2004) 2:135–51, at 124–25 [Heb.].

29 Baer, History of the Jews, 1:225. These rights were later expanded (1272) to include banishment and flogging. In Catalonia, Valencia, and Majorca the authority to punish was handed to the offense adjudicators. See ibid., 1:231–32.

30 Ibid., 2:2. In the same period Rashba ruled in a similar matter in Valencia. See Yitzhak Baer, Die Juden im christlichen Spanien, Teil 1, Urkunden und Regesten (Berlin: Akademie, 1929–1936; repr., England: Gregg International Publishers, 1970) 162–66. There are no additional mentions of capital punishment decreed by Jews and it is possible that there were not any after the death of Rashba (loss of jurisdiction).

31 Baer, History of the Jews, 2:29, 33.

32 Harosh responsa, rule 17, ch. 8.

33 For a similar line among Spanish sages (Rashba, Ritba, R. Yona the Second), see Assis, Golden Age, 156, 160.

34 Zikhron Yehudah, pt. 58.

35 Baer, History of the Jews, 2:68–69 (based on certificates of the Aragonese royal offices). See also Yitzhak Baer, A History of the Jews in Christian Spain (Tel Aviv: Am Oved, 1968) 251 [Heb.]: “At the time they used to debate extensively the authority of the leaders of the community and of its judges to rule in matters of capital punishment and in the end their authority in this area was restricted by order of the king …” In its new boundaries, the judicial authority included only litigation between Jews or debate of acts of prostitution between a Jewish man and a Christian woman. The authority to sentence informers remained as broad as in the past, including punishment by death, the cutting off of a limb, or “some other punishment that is not contrary to reason or the laws.”

36 Ibid., 227–28. It is difficult to ignore the resemblance to the claims of Avner of Burgos, a local, some fifty years earlier. In his philosophical treatise, Burgos claimed that since the days of Jesus, political leadership had been taken away from the Jews and they were left with spiritual leadership only: “And thus there was a ruler over Israel from the house of David all through the days of the Second Temple… . But all matters of the Torah, laws, and decrees were carried out according to the ruler from the house of David. And this was their custom all the time until Herod killed all the rulers and all the sages who taught the Torah, because then came Jesus from Nazareth … and what has been written came to pass: ‘The scepter shall not depart from Judah … until he comes to whom it belongs’ (Genesis 49:10), and as it is written in Genesis, from the time that Jacob blessed his sons he gave to Judah dominion over his brothers until he comes.” Gen. Rab. parasha 97.8.1, translated after Midrash Bereshit Rabba: Critical Edition with Notes and Commentary (ed. J. Theodor and Ch. Albeck; 3 vols.; Jerusalem: Shalem, 1996) 3:1207–13, 1219. See Maestri Alfonso (pseudonym), Book of Answers to Revilers, Answer to a Shameful Letter by R. Itzhak Polkar, MS Parma-Palatina 2440/2 (The Institute of Microfilmed Hebrew Manuscripts, S. 13444) 41B, lines 1–8, lines 9–14.

37 Baer, History of the Jews [Eng.], 1:375–76.

38 Toward the end of the thirteenth century and in the course of the fourteenth, a central political institution was established in various Aragonese communities called “the Council” (ha'etsah), which held supreme authority in the community. According to the constitution of Barcelona (1327), the “counselors”—leaders, judges, and officials—were the body in charge of various functions in the community. The power of the community council did not decline even in the second half of the fourteenth century. Council members were members of the wealthy, privileged, and educated families in the community. See Assis, Golden Age, 128–29.

39 Concerning the tensions within the Jewish community between the political leadership (wealthy citizens and arrogant members of the court, close to the monarchy) and the rabbinic (popular) leadership, see Eliezer Schweid, Our Great Philosophers: Jewish Philosophy in the Middle Ages (Tel Aviv: Hemed, 1999) 366–67 [Heb.].

40 Another example, somewhat later and of lesser importance, occurred in 1381. Moshe Hanoch, a Jew who belonged to the queen's circle, was charged with libel against the community trustees. The trustees and the judges banished him from Catalonia for twelve years. The queen intervened and, as a result, King Pedro IV ordered the trustees to cancel the punishment. Several days later the king abolished the legal authority of the Jews with respect to Moshe Hanoch (Baer, History of the Jews [Eng.], 2:41–42).

41 The responsa, based on their content, are aimed at communities in Spain (Teruel and Sala-manca). They appear to have been written after Rivash started his tenure as rabbi of Saragosa (after 1367) and before his exile to North Africa (1391), that is, in the 1370s or 1380s.

42 Rivash, pt. 234 [emphasis mine].

43 According to R. Huna (b. Sanh. 58, 2), the appropriate punishment for violent offenses is the cutting off of the hand, inspired by Job 38:15: “and their uplifted arm is broken”; that is, he who raises his arm (“uplifted arm”) in order to strike another will have his arm cut off (“broken”).

44 Rivash, pt. 251 [emphasis mine].

45 The period of activity of RaN in Barcelona extended from 1352, after the Black Death, until his death in 1376 (according to his son). See Israel Moshe Ta-Shma, The Literature of Talmudic Exegesis in Europe and North Africa, Part II: 1200–1400 (Jerusalem: Magnes, 2004) 86; RaN's responsa (Feldman edition; Jerusalem: Shalem Institute, 1984) 22 [Heb.]. The tenth homily was apparently written in the 1360s. RaN writes (Derashot HaRaN, 399): “We saw the suffering our Lord inflicted on us for 13 years, until the initial arrangements had been changed, because in that year a great evil happened to most inhabitants of the world and they fell sick with strange diseases …” RaN appears to hint here at the Black Death, which arrived in Spain in 1348 and continued until 1353. See John Kelly, The Great Mortality: An Intimate History of the Black Death, the Most Devastating Plague of All Time (New York: HarperCollins, 2005).

46 Drashot HaRaN, 413: “And there is no doubt that on each side there will be two issues. One will demand to punish someone according to true law, the other … will be forced to punish him according to the need for correcting the political order and the need of the moment”; ibid., 414: “if the offender is not punished except in this way, the political order will be entirely upset because those who shed blood will multiply and will not be reformed by the punishment …”; ibid., 418: “and do not ask about what we learned … that the court flogs and punishes not according to Torah law … that it appears that judges in rabbinic courts are named the same way as in correcting the times …”; ibid., 425: “and after he ordered the naming of judges and they judged the people by just law, he began something more appropriate, that the judges be quicker in inflicting punishment and pain, which is idolatry with all its consequences.”

47 The conflict reached its peak in 1367. The Jewish community in Barcelona was accused of purchasing the sacrificial bread (of the Christians) from a thief. Several members of the community who were close to the authorities were involved in the lies and the denouncement. Subsequently, several leaders of the public were imprisoned, including RaN himself, R. Hasdai Karashkash, R. Shimon ben Tzemach Duran, R. Isaac ben Sheshet Perfet (Rivash), and others. See Baer, History of the Jews [Eng.], 2:38–39. For a direct testimony, see Rivash responsa, Section 373: “And in this fraud the first to be involved were the ministers and the deputies and the rich and the privileged. Because they are anxious and concerned about themselves and their wealth and about their G-d they do not care”; Rivash, pt. 377: “… who rose against us from among members of our oppressors and handed us over to the monarchy without pity. And even the spirit of our lives, G-d's anointed, our teacher [RaN] fell victim to the ordeal and was caught …” For additional testimony of Rivash about tensions between the rabbis (especially RaN) and the rich close to the monarchy, see Rivash, pt. 447: “and honestly I saw in Barcelona our teacher, R. Nissim, when he wanted to censure some of the rich members of the community they defied him and ignored his advice …”; Rivash, pt. 376: “But I saw the reverse… . The high and mighty seek reasons to arouse secret vices … and instead of loving them [the judges] they heap hatred upon them and write severe accusations against them.”

48 At times, in the case of serious offenses, parallel judicial hearings were held in the king's court and in the rabbinic court. This is what happened in the case of David Mascaran, who was accused of several severe crimes and sentenced in 1286 both in the court (vaguer) of Lerida and in the rabbinic court of R. Shlomo ben Aderet. See Assis, Golden Age, 152.

49 Angus MacKay, Spain in the Middle Ages: From Frontier to Empire, 1000–1500 (New York: St. Martin's, 1977) 111.

50 Ibid., 98–100. During the reign of Alfonso XI (1311–1350) the Siete Partidas code was promulgated as state law. One of the articles of the law decrees: “The ruler or king is entitled to legislate laws to the members of his kingdom, and no one else has the power to legislate laws… if not authorized to do so. A law legislated in another way shall not be called a law and will not have the validity of law …”

51 Ibid., 112. Already close to 1150, the legal code Ustages was drafted in Barcelona and served as the basis for the law in Castile. The code was based on the customs of the country and on the work of experts in Roman law at the court of Ramon Berenguer IX. Under the inspiration of Roman law, the authority of the king was restricted and various obligations were placed on the king toward his vassals.

52 Ibid., 105–6. This trend is manifest in the formula of the people's oath of allegiance to the king in the Aragonese covenant: “we, who are as good as yourself and together stronger than yourself, make you our king and lord; and we decreed that you shall observe our local laws (fueros) and our freedoms …”

53 See Jerome Lee Shneidman, The Rise of the Aragonese-Catalan Empire, 1200–1350 (2 vols.; New York: New York University Press, 1970) 1:199, 45–69.

54 Ibid., 1:205.

55 Ibid., 1:204. The Cortes contained representatives from all social strata: bishops and archbishops; knights and noblemen; mayors; and representatives of the middle class.

56 Joseph Canning, A History of Medieval Political Thought, 300–1450 (London: Routledge, 1996) 135.

57 Ibid., 136. Henry VII (1308–1313) tried to enforce imperial sovereignty over Italy in the course of his campaign there (1310–1313), as did Louis IV of Bavaria (1314–1347) in 1327–1330.

58 Ibid., 135, 137.

59 Ibid., 137–39. Boniface provides an ecclesiastical interpretation of the image of the two swords of Bernard of Clairvaux. According to the former, “the spiritual power must drive the earthly power and censure it if it is not applied properly.” Boniface's bull ends with the following: “we state and decree that it is absolutely necessary for salvation that every person be under the rule of the pope.”

60 See Robert W. Carlyle and Alexander J. Carlyle, A History of Mediaeval Political Theory in the West (6 vols.; Edinburgh: William Blackwood & Sons, 1950–1962) 5:439. For the full (translated) letter, see James H. Robinson, Readings in European History (Boston: Ginn, 1906) 72–73: “there are two powers … [by] which this world is chiefly ruled, namely, the sacred authority of the priests and the royal power.”

61 Canning, Political Thought, 142, with reference to Quaestio in utramque partem (1303).

62 Ibid., 141, with reference to Rex pacificus.

63 Ibid., 142. The writings of Giles, later to become the archbishop of Bourges, appear in his paper De ecclesiastica potestate, completed in Paris in 1302.

64 This idea of James of Viterbo is based on the principle of the relationship between grace and natural law set forth in the political theory of Thomas Aquinas. The idea appears in James of Viterbo's De regimine christiano. The spirit of this work is, in general, Augustinian, and it is based on Giles's early work (Canning, Political Thought, 144–45).

65 Ibid., 162–64. Roman jurists of Seville in the twelfth century interpreted the function of the king differently, as being divinely appointed. See Carlyle and Carlyle, Political Theory, 2:76–79.

66 Joseph Canning, The Political Thought of Baldus de Ubaldis (Cambridge, U.K.: Cambridge University Press, 1987) 2–10. Baldus was born in Perugia, probably in 1327. In his early twenties he began lecturing at the local university (it is possible that earlier he had lectured at the University of Bologna). Subsequently he taught law at the Universities of Pisa, Firenze, and Padua. His works are prominent both in their quality and quantity.

67 Canning, Baldus de Ubaldis, 31–34.

68 Ibid., 34, 38. In the background of this issue is the deposition of Frederick II by Pope Innocent IV.

69 Carlyle and Carlyle, Political Theory, 5:437.

70 From John of Paris's De regia potestate et papali, according to Canning, Political Thought, 145–46. There is a certain resemblance between this paragraph and the corresponding paragraph in RaN's homily that also appears to be based on Aristotle: “it is known that the human race requires a judge to judge between individuals … and every nation needs a political settlement to this end to the point where, as the sage said, even the group bandits agreed among themselves to be frank” (Drashot HaRaN, 412).

71 Dante (1265–1321) is known also as a poet. He was the student of Remigio de Girolami (d. 1319), a central figure in the diffusion of scholasticism, the theological method that combines the study of religion with Aristotelian philosophy. Dante's attack against the jurists of the church, the decretalists, must be understood on these terms. Dante claimed that the decretalists had no understanding of theology or philosophy and that their preference for the pope was the result of their ignorance. See Canning, Political Thought, 150–51.

72 Ibid.,151. Dante based his pro-monarchist position on the rejection of various ideas that grant ruling power to the pope, such as the idea of the two swords (autonomy of the pope in parallel with the sovereignty of the king). See Dante Alighieri, On World-Government: or, De monarchia (trans. Herbert W. Schneider; Indianapolis: Bobbs-Merril, 1957) 65–67; Canning, Political Thought, 152. Dante challenged the reliability of the Donation of Constantine (Donatio Constantini), which the church presented as proof of its right to political power. According to this document, in the fourth century C.E. the Roman Emperor Constantine I (272–337) transferred authority over Rome itself and the western provinces of the Roman Empire to Pope Sylvester I. The church regarded this act as a precedent for establishing a balance of power between the pope and the king. In the course of the Middle Ages, the popes used this precedent to justify their intervention in political matters. Dante doubted the reliability of this document, an approach that is accepted by modern scholarship: many researchers believe that the document is a forgery created apparently in the middle of the seventh century. About the document in general, see Lorenzo Valla, The Treatise of Lorenzo Valla on the Donation of Constantine (trans. Christopher B. Coleman; Toronto: University of Toronto Press, 1993).

73 Dante, De monarchia, 57–59.

74 Ibid., 71–73.

75 Marsilius (1275/80–1342/3) was a cultural hybrid of the Italian republican city-state and the University of Paris. He was born in Padua, studied medicine, and left his native city for Paris, where he became rector of the university in 1313. See Cary J. Nederman, Community and Consent: The Secular Political Theory of Marsiglio of Padua's Defensor pacis (Lanham, Md.: Rowman & Littlefield, 1995).

76 Behind this argument is the principle of “apostolic poverty” of the Franciscans, rebels against the church. According to this principle, Jesus and the apostles had no property at all, either individually or as a group. The pope and clergy must also adhere to this principle. The principle of apostolic poverty was at the center of the debate conducted in 1324 between Pope John XXII and Louis IV of Bavaria. The pope refused to anoint Louis as Holy Roman Emperor, and after Louis announced that he did not recognize the pope's authority, the pope excommunicated him. Louis won the support of the Franciscan rebels and of several political philosophers, including Marsilius. See Nick Havely, Dante and the Franciscans: Poverty and the Papacy in the ‘Commedia’ (Cambridge, U.K.: Cambridge University Press, 2004); Michael Robson, The Franciscans in the Middle Ages (Woodbridge, U.K.: Boydell, 2006).

77 Canning, Political Thought, 154–56.

78 William of Ockham (1285–1347) received his academic education at Oxford and, until 1324, his writings and lectures were all in the field of philosophy. From then on he also began addressing also issues of political theory. See Julius A. Wagenmann, “Occam, William,” in A Religious Encyclopaedia (ed. Johan J. Herzog and Philip Schaff; 3 vols.; New York: Funk & Wagnalls, 1894) 3:1679–80; Arthur Stephen McGrade, The Political Thought of William Ockham (London: Cambridge University Press, 1974).

79 Canning, Political Thought, 159–61.

80 From 1328 on, William of Ockham wrote various critical works against reigning popes, from John XXII to Clement VI. In parallel, he published works in support of the emperor. As a result of his critical writings, he was summoned to Avignon by John XXII and accused of teaching heresy. See “William of Ockham,” Stanford Encyclopedia of Philosophy, n.p. [cited 24 October 2011]. Online: http://plato.stanford.edu/entries/ockham/

81 See Canning, Baldus de Ubaldis, 39–40, 72. The superiority of the church has constitutional consequences: the ruler is appointed by the pope, with the pope's approval and with an oath taken before the pope. Moreover, only the pope can depose a ruler after he has been appointed by the pope. But the authority to depose is limited. Deposing a ruler for unjust cause (fraud or personal ambition) is not valid. This limitation is based on feudal law (between the pope and the ruler there is a feudal relationship within the context of which the pope is the suzerain and the king the vassal). This law protects the vassal from unjust action on the part of the suzerain.

82 Canning, Baldus de Ubaldis, 44, 72–73.

83 Ibid., 75: “The king must live by the laws because his authority hinges upon the law. ‘Must’ means … honesty is required from the ruler as the highest level of conduct … the king is subject to the law as a result of his good will and not of constraint.” These statements by Baldus are based on an important distinction in the political thinking of the thirteenth and fourteenth centuries between the ideas of “absolute authority” (potestas absoluta) and the practice of “common authority” (potestas ordinaria). See James Henderson Burns, ed., The Cambridge History of Medieval Political Thought c. 350–c. 1450 (Cambridge, U.K.: Cambridge University Press, 1991) 455.

84 Regarding the settling of the relations between the institutions, RaN chooses the harmonious position. He does not address the conflicts between the institutions; he describes the institutions and the legal systems as complementary. We find, therefore, prominent similarities between RaN's homily and the thinking of Baldus (who was active at the same as RaN). First, the relations between the institutions are not described as rival or as seeking a showdown and resolution. The relations are complementary. Each institution is responsible for its area, according to its nature and character, and, thereby, it complements its counterpart. Second, the authorities are obligated to observe the law: the authority of the ruler allows him some freedom from the law, whereas the religious authority must observe religious law.

85 See n. 2.

86 Regarding the anti-philosophical teaching of RaN, see Sara Klein-Braslavy, “Vérité prophétique et vérité philosophique chez Nissim de Gérone. Une interprétation du ‘Récit de la Création’ et du ‘Récit du Char’,” Revue des Etudes Juives 134 (1975) 75–99. See also Eliezer Schweid, Sefer Or Hashem of R. Hasdai Crescas (Ferrara, 1555; repr., Jerusalem: Makor, 1971) 9–10; Lorberbaum, Politics and the Limits of Law, 138–41; Ta-Shma, Talmudic Exegesis, 89. R. Itzhak ben Sheshet, RaN's student, testified in this spirit about his teacher's reservations about Kabbalah: “and I have told you what was said to me especially by my teacher, R. Nissim, that too much did the Ramban push himself to believe in matters of Kabbalah …” (Rivash, pt. 157).

87 Drashot HaRaN, 114–415 (homily no. 11).

88 Ibid., 415. The relationship between just law and divine inspiration is restated several times later in the homily. See ibid., 414, 419.

89 From a literary and formal point of view as well, the second stage opens with this rule immediately after the summary of the first stage.

90 Drashot HaRaN, 421.

91 See, for example, the psychological formulations of Lorberbaum in Politics and the Limits of Law. He formulates the devaluation that occurs in the course of the homily in the importance of the social laws in the Torah as “an almost conscious expression,” and as statements uttered “as if on second thought” (ibid., 158). The erosion of the king's status and power is presented as a “suspicion [by RaN] that the king himself was elevated beforehand” (ibid., 161). The re-evaluation of the status of the law of justice and truth is described in a way that RaN “recoiled from the insolence of his [initial] thinking” according to which “it is simply impossible to manage society by Torah law” (ibid., 159).

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