I: THE LAW OF KINGS
One of the most touching stories of the Middle Ages is that of Rabbi Meir son of Baruch of Rothenburg.
Widely considered to be the greatest rabbis of Tzarfath - the Medieval Hebrew term to the former lands of Charlemagne's empire - in his generation. His counsel and opinion was revered and sought after throughout the Jewish world.
In the later years of the 13th century, Rudolf I, the first Habsburg elected King of the Romans, had declared the Jews of the Holy Roman Empire "Serfs of the King's Treasury".
The Jews lived in the towns of western and southern Germany since Roman times and in other part of the kingdom since Carolingian times. They will now not only become the only subjects burdened with direct taxation by the king (instead of to the local feudal lords or township), but would be reduced to the level of serfs, barred from venturing out of the kingdom without permission and, effectively, not much better than slaves of the king.
One of the most well-known principles of Jewish Law is דינא דמלכותא דינא "The Law of the Kingdom is Law", That is, the Jew is ordered to obey the statutes instituted by the ruler of the land in which he dwells. But this rule is not without limitations or reasoning.
Here the figure of Maharam (Hebrew acronym of "Our Master, Rabbi Meir", and the common nickname for R. Meir of Rothenburg) and his disciples rose in true greatness.
For years he had advanced the theory that kings have the right to legislate and order only over those things "which touch upon their authority" - that is, taxation and the use of the land, but no more.
The entire reason, argued Rabbi Meir, echoing Rabbi Moses Nahmanides of Aragon, for the power of kings to legislate is that: the whole land is theirs and therefore they may dictate terms of its use to their tenants. Therefore, kings can no more declare their free tenants to be serfs or prevent them from leaving their land then a regular landlord can.
All over Germany, the Jews were determined not to be enslaved. Maharam, his great disciples Mordechai son of Hillel (who will be murdered in one of the Rintfleisch massacres that characterized the reign of Rudolf's successor, Albrecht I), known for his great work Sefer HaMordechai, Rabbi Asher son of Yehiel and many others told the Jews to not recognize Rudolf's illegal proclamation.
Maharam and Rabbi Asher took it one step further: they called for the Jews of Germany to leave that cruel land and they led by example.
King Rudolf was determined to stop his most profitable subjects from leaving his realm.
Some Jews managed to avoid their pursuers, such as Rabbi Asher, who found his way to Spain. Some such as Maharam, were not so fortunate. Caught in the Lombaridan passes of the Alps, Maharam was recognized and taken prisoner in 1286, he would spend the next seven years, the last of his life, imprisoned until his death in Ensisheim, then in the western duchy of Swabia, a direct royal possession, in 1293.
A local tradition of the Jews in Worms, were he was buried, accuses the Bishop of Basel in collaboration with Count Meinhardt of Gorz of the kidnapping, but his own tombstone points to "the King of Rome". Whoever Maharam's direct captor was, the King knew the value of his prisoner and have demanded an exorbitant ransom in excess of thirty thousand silver marks, which, the cruel kidnapper insisted, must be collected by Rabbi Asher, but, as the story is told:
And I have heard of Maharam of Rothenburg, of blessed memory, that while he was held in the tower in Eins(is)heim for several years, that the Ruler had charged the congregations (of all Europe) a great sum, and the(se) congregations were willing to ransom him, but he refused, quoting thus: "the captives are not to be ransomed in excess of their value" [Mishnah Gittin 4:6 / Babylonian Talmud Gittin 45a].
And I do wonder, since he was a famous scholar and there was none like him in his generation in learning and piety and (according to the Law) it is permitted to ransom him for all the money in the world (-since the Public had a dire need of him). And if in his great humility he did not want to hold himself up as a famous scholar... how could he not concern himself with the sin of neglecting the Torah, since the Masses had a need of him?
But it seems certain that in his mind, if he was to be ransomed by them (-the Congregations), there would arise the concern that all the rulers would do thus to whoever is the greatest scholar of the generation for the multitude of money (offered as ransom), until the whole wealth of the Diaspora would (drain away and) would not be sufficient to ransom them and the Torah shall be forlorn from Israel.
And for that reason this pious man thought: "It is better that what little wisdom I have increased in Israel shall be lost rather than that the entire study of the Torah shall be lost".
And this is the evidence thereof, whereas at that time the destructive scheme to capture the sages of the Diaspora had ceased.
According to the memoirs of Rabbi Asher's son, Rabbi Yehuda, his father had never recovered from his failure to save his beloved master, which led to his death in 1327.
II: THE PRACTICE OF PARTNERS
For Maharam, the hostility of the governments under whose authority Jews lived was nothing new. As a young man he witnessed the unjust burning of the Talmud in Paris in 1242 while serving the famous Rabbi Yehiel, which had, two years before, defended it valiantly in a public disputation. The clear victory of force over justice would have led him to despair of the ability of Mankind to conducts its affairs with any accordance to God's Law, Justice and Love while on Earth. But Maharam had a stouter heart and a firmer soul. After concluding his beautiful lament for this calamity, he went to work elucidating the intricacies of city government.
The Jews had no need to speculate of the results of a government of Hatred. It was all around them, throughout the Middle Ages and beginning in Antiquity, the Jews knew that they cannot trust in their place in any state which they have inhabited. Much depended on the vices or virtues of princes, prelates and local potentates. Much depended on their likes or dislikes. Much depended upon the petty squabbles and vagaries of a thousand court. To be a Jew in the pre-modern era was to know that regardless of the benefit One gives to society, a Jew's liberty, a Jew's home, his possessions and very life can be taken away with a mere decision in made in a distant capital, by a distant king upon a distant throne, or by a local lord, too near to be stopped by the power of the Crown or the Church before mischief was already done, or by any of the intermediate powers between the local lord and the king.
But this did not prevent the Jews from conducting their own affairs and composing their own theory of the good state.
The Mishnah, the ancient Jewish code of the Oral Law of which the Talmud is a mere commentary, states:
He [a neighbor in a shared courtyard] is compelled by them [the other neighbors] to build a gatehouse and a door to the courtyard. Rabbi Simon son of Gamaliel says: "Not all Courtyards merit a door and a gatehouse.
He [a resident in a city] is compelled to build a wall, doors and a cross-bolt to the city. Rabbi Simon son of Gamaliel says: "Not every city merits a wall, double doors and a cross-bolt" .
For how long may One stay in the city and become as one of the city-folks? twelve months. If he had purchased a residence, he is considered as any of the city-folk immediately.
This is to become the basis for all Jewish civic jurisprudence and political theory in the next 2000 years. The Talmudic sages elaborate on the duties of the townsmen, adding to them charity, the construction of roads, synagogues and other necessities and discussing their limitation and proper division.
The important point that we see here is the explanation of the source of city government in the Law of Neighborliness - despite not being, strictly speaking, partners in a particular asset, the proximity of neighbors and their shared interests forces them to cooperate or see their individual assets damaged. Therefore, any neighbor who benefits from the cooperation of his neighbors yet refuses to participate in their efforts is guilty of injustice and theft.
The duties that lie collectively with the community are not limited to those which are necessary to the physical needs of the community, but also to those which are customary for the community to fulfil collectively rather than individually such as charity:
Our Masters had taught:
"The Charity Chest (-i.e., money collected for the poor) is collected by two (officials) and is distributed by three (officials), for no office may be created over the public in which (is occupied by) less than two (officials), but it is distributed by three, as are all monetary judgments"...
What is the (power of this) office?
Said R. Nahaman: "Rabbah son of Abuha said:
Whereas collateral is seized over (One's debt to) charity, even on a Friday."
Is that so? but it is written: "And I will reckon with all his oppresors" (Jeremiah 30:20) and Rabbi Isaac son of Samuel son of Martha said in the name of Rav: "Even with the collectors of charity"?
That is no difficulty! the former is said in case of a person which was assessed (-to be able to give such sum) and the latter where there was no proper assessment. Lo! that Rava bound R. Nathan son of Amei and took from him four hundred Zuzei for charity.
Such plenary power is justified by Maimonides in his Code, a century before the Maharam:
We have never seen nor heard of a Jewish community that does not have a Kuppah (- Chest) for charity.
A Tamhui (-Lit. "a Basket", the public pantry out of which food is given to the poor-), by contrast, exists in some communities, but not in others.
The common practice at present is that the trustees of the Chest circulate [among the community and collect] every day and divide [the proceeds] every Friday.
Maharam himself sought to limit this power not only in practice, but also to narrow its theoretical basis:
That collateral is seized over charity (only) where he (the giver) had already promised a definite sum to the poor, which creates a proper debt. Nevertheless, where he is not properly assessed (to be able to give such a sum), he should not be forced until he procures a sufficient sum, as it is brought in the name of R. Nahaman.
Thus, Maharam transforms the coercive power of Charity officers (Gabaei Tzedaka) from a special plenary power to that of the collectors of pre-existing public debts, and the "assessment" for charitable purposes from a coercive procedure to a condition for enforcement of voluntary obligations.
It is this theme of legality - and the nature of legality to arise from established, ordinary practice - which defines the limit of even the seemingly plenary authority of the King:
Whereas the Ruler is used to collect his dues from the entire Congregation at once, then the share of each (member in that tax) is deemed as collected. Therefore if the King comes to alter it, (that is,) to exempt one (member) of the Public or to reduce his share (without a general reduction for the entire Congregation, thus increasing the burden on the other members), it is without authority and this is not a law made by the king, but rather a robbery committed by the king.
If he did split from the Public with their consent, he is permitted to do so. But without the Public consent, he cannot depart from them, so he may not shoulder the burden together with them, since this is the practice of that city that all the Jews are partners in the tax (which they raise to the Ruler), "the City-Folk are allowed to burden some of their own" and the Ruler is without authority to separate them from each other and to alter a practice that the Jews had held (for a considerable time, even) in his own city. Thus this is not a law made by the king, but rather a robbery committed by the king.
Thus the opinion of Maharam appear to us clearly: the authority of the autonomous partnership between citizens is supreme and its established practices are of greater import and power than even that of the King, who draws his power exactly from the arbitrary and capricious nature of his power. Law conquers Power, Practice conquered the Decree, Peace, Liberty and Partnership conquered weapons, towers and royal kidnappers.
III: THE LEGACY OF MAHARAM
Maharam could not force Rudolf I to abandon his scheme to turn the Jews of the Empire to legal serfs of the royal treasury, but the blow he struck smarted: as Rabbi Solomon Luria had noted, the kidnapping of prominent scholars for ransom ceased, so many of the former German Jews had migrated to Italy, Poland and Spain, that the so-called kings of Rome would be wary of abusing their usurped authority and the Jews themselves were steeled in their resolve to resist any attempt to break up their institutions or cow their spirit.
With those displaced Jews, the legacy of Maharam, which was already known throughout Europe, took root and bore fruit. Rabbi Solomon son of (Abraham) Aderet of Barcelona (also known in his Hebrew acronym, Rashba) would venture boldly in his interpretation of the Law of Kingship from Maharam's assumptions:
[The Talmud says:] "A Publican that has no limit" -
That is, that this Publican is acting against the Law and albeit the Law of the King is Law, the Robbery committed by the King is not and it was expounded in the Tosafot in the name of Rabbi Eliezer that only the kings of the Nations of the World may make Law, since they can say to their subjects "do as I say or I shall banish you" since they own their land (outright). But this is not the Law in the kings of Israel, since the Land of Israel, all (the Children of) Israel are partners therein and the king has no superior possession to any other man.
(Rashba's Commentaries, Nedarim 28a "במוכס שאין לו קצבה"
And so I have observed that this was not said ("the Law of the King is Law") but where things are done according to the laws of the State, for every nation has known practices, codified by the statutes of the State, and while they said "The Law of the Kingdom is Law" they did not say "the Law of the King is Law". Thus, everything that is not done by the law of the State, even if the king now orders it, is not law, and the early scholars had agreed on that.
And similarly, the King has authority to make Law only in that which is useful to him, as is the example that is cited [Babylonian Talmud, Baba Qama, 113b]: "Samuel says: The Law of the Kingdom is Law since we see they cut down trees and build bridges and we walk upon them" .
Not only does Rashba limit the power of kings to that which is useful for the good of the State, that is, to direct confiscation and allocation of resources, he declares that they may exercise this power where the legal practice of the State is not contrary to it, and even that hinges on the King's ability to remove any person off of his land, which testifies to his ultimate ownership of it. Thus the principle of "The Law of the Kingdom is Law" evaporates completely in the Modern Democracies, and all that we are left with is the aforementioned Concord of the City.
IV:LOVING CONCORD - SOME CONCLUSIONS:
Thus far we have seen how the Jews rejected the claim thinkers in the line of Machiavelli and Hobbes had made for Power as the pillar of government, giving instead the legitimizing power to Right, Law, Practice and Consensus.
While Right does not require Love to be right, Jewish thought affirms that it is established by God due to His love for Humanity. An uncaring God would have not given Humanity any notion of Right and Wrong. God not only endowed both Jews and Gentiles with this sense, he have ordered both to act upon them and to order their societies around them. Thus to do justice by One's neighbor is to love God, and how can One love God and hate those which God loves?
When describing the manner in which, according to Jewish Law, people ought to discuss public affairs, Maharam is quoted:
"All necessary public affairs where the Public cannot come to equilibrium, all the heads of the taxpaying households must convene, and each must accept to speak only for the Sake of Heaven and they shall follow the verdict of the majority."
This principle - that One must conduct Oneself in public affairs "for the sake of Heaven" is one which requires two loves to already reign in One's heart: the Love of God and that of neighbor. When we understand that God demands that we afford our neighbors, ALL of our neighbors, regardless of their station, character and opinions, the protection of Right, Law and established Practice, that we should dedicate ourselves and our resources to maintain and perpetuate those protection and that we ought to be concerned with his welfare as we are with our own, we come to truly love our neighbors, rather than delve into romantic contemplation of our deep love to our own abstract idea of our country.