The common law understanding that what judges do is a matter of finding the law is enjoying a welcome return.
On March 4, 1629, John Selden, the most learned man in England, was imprisoned in the Tower of London. He had been arrested on charges of conspiracy and sedition against King Charles I. The question is: what did Selden choose to read while imprisoned?
Selden’s arrest in 1629 was not the first time that he had run afoul of a representative of philosophically coherent law of sovereignty; for, in 1621, King James, ardent defender of continental law, had both Selden and Edward Coke arrested. The reasons for these arrests are certainly worthwhile to examine; but I will not pursue them in detail here, other than to note in passing the outlines of the disputes that led to the arrests. I do so, so that those not familiar with Selden will have an idea of his background and accomplishments.
In 1621, Parliament, under the initiative of Coke and supported by Selden, took up whether or not the sovereign had the right to grant patents, thereby raising the question of the judicial authority of Parliament to evaluate their validity. Thus, the problem turned on the scope of parliamentary privileges in contrast to royal prerogative. To this end, Selden, presumably under Coke’s direction, drew up a treatise, the “Book of Precedents.” Coke and Selden were not so much in search of an authoritative and binding precedent, as the latter would emerge in the history of common law, but in search of cases as evidence for custom or settled practice that would, as such, point to the law.
The problem of 1621 had been simmering for some time, having surfaced in 1602 during the reign of Elizabeth in the “Case of the Monopolies,” then in 1610, during the reign of James, in “Dr. Bonham’s Case”, and again in 1613 in Alderman Cockayne’s dispute with the Merchant Adventurers’ Company; but in 1621 the problem of parliamentary authority to judge patents was combined with other parliamentary liberties claimed by Coke, leading to the “Protestation of December 8, 1621.” Of course, for Coke, Selden, and Matthew Hale, the third figure and third generation of that remarkable triumvirate responsible for the articulation of what we know today as “the common law”, to speak of precedent, as interpreted by Parliament and the judges, as legally binding the sovereign only provoked the sovereign’s opposition.
Returning to the events of 1629 that led to Selden’s imprisonment in the Tower of London, in “The Five Knights Case”, Coke and Selden worked together for the protection of habeas corpus through the “Petition of Right.” But behind the issue of habeas corpus, the catalyst for the dispute in “The Five Knights Case” was over the scope of what we today would call the directives of the executive branch, justified, as they are wont to be, on that principle of Roman law, if salus publica lex suprema est, (the welfare of the people is the supreme law), then fiscus semper habet ius pignoris (the (state’s) fund always has the right of (first) pledge). Be that as it may, as I wish to get to what Selden read in the Tower of London, suffice it to say that shortly after the formulation of the “Petition of Right”, while Coke, at the age of 77, retired from public life, the forty-five year old Selden was, once again, arrested.
It was during the period spanning the careers of Coke, Selden, and Selden’s protégé Mathew Hale that the three of them articulated the principles of the common law. Coke was no philosopher, but in his writings and judgments as Chief Justice of the Court of Common Pleas, for example, in “Prohibitions del Roy”, “First Institute 97b”, and in particular in the account of his confrontational meeting with King James, we find his use of the philosophically provocative correlate to the principle of precedent, what he called “artificial reason.” The general orientation of Coke’s concept of “artificial reason” overlaps the distinction between “reasonable” and “reason.” King James was not the only person to be appalled by the concept of artificial reason, for it was also the object of the Romanist Hobbes’ derisive contempt in his A Dialogue Between a Philosopher and a Student, of the Common Laws of England.
Matthew Hale defended Coke’s concept of “artificial reason” in response to Hobbes’ attack, explaining why “Morall Philosophers . . . are most commonly the worst Judges that can be.” Not surprisingly, one sees Selden’s influence on Hale’s arguments. Already in 1616 in his notes to John Fortescue’s De Laudibus Legum Angliae, Selden had emphasized “the diverse opinions of interpreters [of the law of nature] proceeding from the weakness of man’s reason.” And later, in Book 1 of his Iure Naturali et Gentium juxta Ebraeorum (1640), Selden observed the “uncertainty and inconsistency [that] appear in the unrestrained use of pure and simple reason . . . so intrinsically inconsistent and dissimilar among men that it would be better for nothing to be derived from it.”
Needless to say, Selden continued by noting that this uncertainty and inconsistency was above all obvious from the disagreements among “the most learned philosophers.” However, except for Selden’s intriguing Book 1 of De Iure Naturali et Gentium, one searches in vain for sustained philosophical generalization in the enormous corpus of Selden’s published work. Although, as already suggested, Selden had an important parliamentary career, he, like one of the founders of the Selden Society in 1887, Frederic Maitland, was primarily a historian of law. But like the continental scholars Joseph Scaliger and Isaac Causabon, all the humanities were Selden’s purview, and he pursued them in accord with the motto, which he adopted in 1619, περὶ παντὸς τἡν έλευθερίαν. He wrote in Latin, Greek, and Hebrew, and knew, of course, French, Italian, German, Aramaic, and even Arabic. For good reason Ben Jonson and John Milton immensely admired Selden.
As one would expect, Selden wrote widely on the history of English law, and he did so with penetrating insights, many of which have stood the test of time. Those works include (the youthful) Analecta Anglobritannica on the laws and institutions of England before the Norman conquest; Janus Anglorum, an analysis of the secular laws of England up to the time of Henry II; Duello, on the history of both the duel and trial by battle; Titles of Honor; the Historie of Tithes; his edition of John Fortescue’s De Laudibus Legum Angliae; his invaluable introduction to the late 13th century legal treatise, “Fleta”, Dissertatio ad Fletam; and Mare Clausum, Selden’s lengthy response to Hugo Grotius’ Mare Liberum. A full list of Selden’s works on only early English law and history would be twice as long. One, thus, would expect Selden to have continued his study and publication of works in English law and history while imprisoned in the Tower of London. But he did not.
It would have made a great deal of sense for Selden to have asked to have been brought to him in prison a copy of Grotius’ De Antiquitate Reipublicae Batavicae (1610). The significance of Grotius’ observation in De Antiquitate that “in all things antiquity bestows a great deal of dignity . . . for antiquity comes close to God since it resembles eternity” is assumed by Selden, when, later in Ad Fletam Dissertatio, he observes that the ancient laws provide “a confirmation on which the interpretation of the law may depend.” Here, we see formulated a move towards the legal principle of precedent. And when Grotius insists that the ancient laws and customs provide limits to the power of the sovereign, Selden would have thought of Bracton’s famous formulations that “the king is subject to God and the law,” that is, “above the sovereign is the university of the realm,” or at least how those statements were understood by Fortescue and Coke. Selden would also have found much that was similar in François Hotman’s Francogallia (1573) or even Althusius’ Politica (1603). But he did not ask for these books to be brought to him.
The question can no longer be put off. What did Selden study while imprisoned in the Tower of London? The answer to our question is: the Babylonian Talmud.
Now, a different question arises: Why did he do so? Selden does state in the Prolegomena to his first work on Jewish law, De Successionibus in Bona Defuncti (1631), on the inheritance of personal property, that if one relies on the writings of the Church Fathers, one will never understand Jewish law as set out in the Bible. He further tells us in a letter written sixteen years later to Francis Tayler that similar to the telescope used by Galileo to discover the moons of Jupiter, without the tool of rabbinical doctrine, “whence the whole of Christianity arose, we are often deceived in our judgments of sacred matters, deceiving others by guesswork and propagating monstrous offspring of whatever ingenuity.” However, surely these reasons, important though they are, are not sufficient enough to account for why such an outstanding scholar of the history of English law would spend most of the remaining twenty-five years of his life immersed in the study of the Talmud. There must have been other reasons.
The immediate and, as we shall see, superficial answer to the question why Selden chose to study the Talmud has already been given: Selden knew that one can not understand properly the New Testament without knowledge of the Mishnah (the compilation of the development of Jewish law), and Talmud. By understanding properly the New Testament, I do not refer merely to such matters as the long-held suspicion that John the Baptist was an Essene—the Essenes being the community within late second-Temple Judaisms likely responsible for writing the Dead Sea Scrolls; rather it is a matter of properly understanding the very text of the New Testament. I provide here only one, straightforward example in support of the long recognized merit of this statement. The example is from Acts 1:12, when, after Jesus is taken up to heaven, “they [the apostles] returned to Jerusalem from the mount called Olivet, which is near Jerusalem, a Sabbath day’s journey away.” The problem here is: what is meant by “a Sabbath day’s journey away”? The answer really is quite obvious: Mt. Olivet was no more than 2,000 cubits from Jerusalem. But it is obvious only if one knows the discussion of the “Sabbath day’s journey” in the Mishnah (for example, Erubin 4) and the Talmud (BT Shabbat).
To belabor the point: the “Sabbath day’s journey” is not found anywhere in the Old Testament. It also has nothing whatsoever to do with those metaphorical or allegorical interpretations of the Old Testament that are common enough in the inter-testamental and pseudepigraphical literature and New Testament. It does, however, have something to do with the developing laws of the Pharisees that determined the proper behavior in accord with the rest commanded to be observed on the Sabbath. One concludes, even from this one example, that the New Testament was composed with the familiarity of—indeed, immersed within—the idiom of what is known as the “oral law” of the Pharisees, subsequently codified in the Mishnah (c. 200 CE).
Today, it is a commonplace that a proper understanding of the New Testament requires familiarity with the Mishnah and Talmud. It has been a commonplace for more than half a century, certainly since the work of W.D. Davies and E.P. Sanders, both of whom also addressed the unquestioned significance of the Dead Sea Scrolls for understanding the New Testament. No doubt had he been able to do so, Selden would have also asked for a copy of the Dead Sea Scrolls to have been brought to him in prison.
These previous references to 20th century scholars like Davies, Sanders, and myriad others should not be a cause for misunderstanding. The significance of the Mishnah, Talmud, and other rabbinic writings such as those by Rashi, Maimonides, and Kimchi for understanding properly the New Testament is not a development of what is referred to as “modernity.” Already in 1523 Luther had written that Jesus Christ was born a Jew. Of course, Luther being Luther would not turn to the Mishnah and Talmud; but many scholars during the 16th and 17th centuries did. Here, I refer to the explosive growth of what has been called “Christian Hebraism,” exemplified by scholars like Scaliger, Causabon, Grotius, Johannes Reuchlin, Sebastian Münster, Paul Fagius, the two Buxtorfs, Bodin, Corneille Betram, Carlo Sigonio, Petrus Cunaeus, Althusius, Wilhelm Schickard, John Lightfoot, and many others.
When the late medieval and early modern scholars turned to rabbinic writings, they did so with varying degrees of objectivity. Often they did so as a “hanging judge,” but not Selden. I have already mentioned in passing Selden’s motto. Two quotations, both from book one of Selden’s De Jure Naturali et Gentium juxta Ebraeorum (1640), indicate what this motto meant when he turned his attention to the Talmud in his investigation of the seven Noahide laws, those rabbinic, universal laws independent of the Jewish state that were understood to be the foundation for civil toleration within a state and among states.
I really do not see how a person can claim to place the highest value on the Hebrews’ traditions about their customs and practices, about their own special set of laws, and at the same time completely despise, or rather treat as worthless, what they have to teach us about the laws and duties common to all human kind . . . We can praise our own accomplishments, or rather the source from which we have drawn the sacred truths that sustain us, only as long as we can give no less credit to the unmatched authority and wisdom of the ancient Hebrew nation.
And here is the second quotation.
This universal Hebrew doctrine [the Noahide laws] contains (given the specific character, customs, abilities, and privileges of that nation) some elements that are more or less suited to Christianity, and others that are more than a little at odds with it. But neither group should be rejected or condemned solely on that account—rather, they should be welcomed with open arms as a means of verifying or explaining various ideas already established in Christian thought. And if not this, then they should at least be given a special role of some sort in the open investigation of truth and falsehood, just like the ideas of others philosophers (whether barbarian, Greek, or Roman) who are no less frequently at odds with Christian doctrine.
These two quotations and others like them justify concluding that no one embodied scholarly objectivity more than Selden, making him the outstanding example of “Christian Hebraism.”
Over the next twenty-five years, the results of Selden’s sustained study of the Talmud were extraordinarily impressive. As already noted, in 1631 De Successionibus in Bona Defuncti appeared. Five years later, Selden’s work on the succession in the Jewish priesthood, De Sucessione in Pontificatum Ebraeorum, was published. Then, in 1640, there was the lengthy De Iure Naturali et Gentium, Iuxta Disciplinam Ebraeorum, “On Natural law and the Law of Nations, according to the Teaching of the Jews.” In this work which contains Selden’s philosophical understanding of law (Book I), he extensively examined the significance of the rabbinic Noahide laws far beyond and in contrast to the cursory references to them in Grotius’ The Rights of War and Peace. How Selden understood those laws as universal, natural laws, the important ways his understanding differed from that of Grotius, and the relation of natural law to national bodies of law are clearly worthy of discussion; but that discussion will have to wait for another time. De Iure Naturali et Gentium was followed by De Anno Civili (1644) in which Selden not only examined the Jewish calendar but also discussed the Karaites, thereby displaying the breadth of his rabbinic scholarship. Then in 1646 there appeared his study of the Jewish laws of marriage and divorce, Uxor Ebraica seu De Nuptiis et Divortiis Veterum Ebraeorum, to be followed by Selden’s last book on Jewish law and institutions, his comprehensive examination of the “Jewish parliament”, De Synedriis et Praefecturis Iuridicis Veterum Ebraeorum (1650-55), “on the assemblies and judicial offices of the ancient Jews.”
Now, there were numerous reasons for the turn of the “Christian Hebraists” to the Old Testament, Mishnah, Talmud, and other rabbinic writings. As already acknowledged, one reason was to gain a more accurate understanding of the New Testament and early Christianity. There is no doubt that Selden thought that this was so. Furthermore, the importance of religion for Selden can be seen in his participation in the Westminster Assembly of 1643, the group called by Parliament to discuss the Church of England. However, for some “Christian Hebraists” like Betram, Sigonio, Cunaeus, the young Grotius, Wilhelm Schickard, James Harrington, and many others, the reason was overtly political, as they looked past ancient Greece and Rome to ancient Israel for a model of the ideal government. Thus, we have the literature of the Respublica Ebraeorum: where the earlier Christian conception of the “new” or “true Israel”, understood as either the church or a heavenly body, was redirected back to this world; and when it was in medieval and early modern Europe, it could not avoid, indeed it invited, being infused with politically anthropological implications.
I think, however, that for Selden there was another or different reason for his intensive study of and engagement with rabbinic literature. We know that many of Selden’s works on Jewish law had to have been written with the legal disputes of the time on his mind, for example, Uxor Ebraica viz. the controversies over marriage and divorce and De Synedriis viz. the relation of Parliament to the throne. I do not mean to suggest that Selden’s works on Jewish law are primarily derivative tracts, the purpose of which was only to take a side in the controversies of his time; for all of those works certainly have intrinsic merit, displaying for the most part a scholarly breadth and rigor rare for any time. Once again, he clearly thought that the proper understanding of the New Testament required knowledge of rabbinic writings, and he was obviously interested in pursuing that proper understanding with a scholarly objectivity. However, I do mean to suggest that Selden’s choices of subjects to investigate were influenced by those controversies. And that they likely were should not be surprising when we recall Selden’s relation to Coke and his involvement in the legal and parliamentary disputes of his time, as outlined briefly at the beginning of these remarks.
What I do think is that it is reasonable to conclude that Selden’s principal motivation for his study of the Talmud was not primarily clarification of early Christianity and the New Testament, but rather because he found the Talmud to be a particularly interesting body of law of a people with a long history. Needless to say, because that people was Israel and, as such, had a bearing on the development of the Occident, that interest was also pressingly relevant for him. That it was pressingly relevant in Selden’s time is indicated by the emergence and influence of the literary corpus of “Christian Hebraism” with which Selden was quite familiar.
Perhaps it is ignorance of the Talmud, abetted by its difficulty and, of course, prejudice from various quarters, which accounts for why it would not be obvious that a proponent and historian of common law would have a sustained interest in the Talmud. However, a glance at just one among a number of Talmudic discussions about the character of the law should make clear the reasons for that sustained interest.
In Menachoth 29b, Moses is described as conversing with god ostensibly about the small, ornamental strokes, referred to below as the “coronets”, written on the top of seven letters.
Rab Judah said in the name of Rab, “when Moses ascended on high, he found the Holy One, blessed be He, engaged in affixing the coronets to the letters. Said Moses, ‘Lord of the Universe, who stays Thy hand?’ [that is, is there anything wanting in the Torah that these additions are necessary?] He answered, ‘There will arise a man, at the end of many generations, Akiba ben Joseph by name, who will expound upon each tittle heaps and heaps of laws.’ ‘Lord of the Universe,’ said Moses, ‘permit me to see him.’ He replied, ‘Turn thee around.’ Moses went and sat down behind eight rows [that is, he sat in the back of the rows of Akiba’s students] and listened to the discourses upon the law. Not being able to follow their arguments he was ill at ease, but when they came to a certain subject and the disciples said to the master, ‘whence do you know it?’ and the latter replied, ‘it is a law given unto Moses at Sinai,’ he was comforted.”
What the account is actually about is legal innovation, the scope of which is acknowledged as potentially dramatic, that is, Moses is not able to follow the legal discussions. Thus, what we have here is a statement resembling the growth of the common law as it adapts to changed circumstances and times. Moreover, it is common in rabbinic literature, and in particular the Talmud, for differing opinions—often those of Abaye in contrast to those of Rava (two of the more important sages whose views are represented in the Talumd)—to be recorded, sometimes with no obvious conclusion presented to the reader, indicating that the authority of the Torah and the Mishnah is qualified through the introduction of different lines of questioning that were not, indeed could not have been, initially apparent in either.
Selden was well aware of the problems of legal innovation and its justification—in this example, the subsequent development of the law given to Moses at Sinai—long before his study of the Talmud. The common law’s continual development through re-interpretation of previous cases, relying upon what Coke characterized as “artificial reason,” was precisely what so offended the universal right reason of King James and Hobbes. For Selden, at the origin of every state were those natural laws that allowed for the existence of civil society. At their basis was fides est servanda; but that “first being” is “increased, altered, interpreted” so much so that like a “ship that by often mending had no piece of the first materials or as the house that is so often repaired, ut nihil ex pristina materia supersit,” so Selden of 1616 in his note to Chapter 17 of Fortescue’s De Laudibus Legum Angliae. Thus, Selden likely saw the rabbinic, adversarial “oral law” of the Mishnah and Talmud as resembling common law.
In the Talmud, as he discussed in Iure Naturali et Gentium of 1640, Selden recognized the universal laws of the Noahide code—not naturally known, but posited—which underwent variation and adaptation according to the requirements of each society over time. So, to take two of the Noahide laws, every society will have 1) the prohibition against theft and 2) the command to establish laws and courts of justice, but the expression of that prohibition and command will differ from one state to another and over time.
One implication of this approach to a changing, developing law is an understanding of humanity as partners with the divine in the on-going creation of the world; it is an implication of the covenantal framework, supported by rabbinic anthropology. If we do not view the story of the Garden of Eden as representing a thorough-going rupture in the relation between what we are and what we should be, then what emerges is continuity between the accounts of creation in Genesis 1 and the new creation of Genesis 9. The biblical text explicitly supports this continuity, for Noah is described as if he were the “new Adam” (Genesis 9:1, 9:6b = Genesis 1:28, 1:27). However, the important difference in the accounts of Noah and Adam is that in the description of the covenant with Noah we find what we did not have with Adam: the legal stipulation not to kill wantonly another human being as necessary for proper order. The fulfillment of this “Noahide law” in the creation of the world is dependent upon human experience, initiative, and responsibility. Furthermore, according to the biblical narrative, as we are all descendants of Noah, the rabbis understood this promulgated legal restraint (with stipulated punishment) against wanton murder and six other “Noahide laws” to be universal.
We need not concern ourselves here with the extent to which the implications of the covenant and rabbinic anthropology are “Pelagian.” What is germane is that the rabbis have a legal framework where universal laws are a part of, more accurately borne by and conveyed through, a developing national body of common law. And this is precisely how Selden viewed the matter; and, no doubt, accounts for why he studied the Talmud in prison.