The Jewish Social Contract: An Essay in Political Theology

By David Novak | Go to book overview
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Chapter Five
Kingship and Secularity

Royal Law

In medieval Jewish speculation about the reason for the principle “the law of the state is law,” we see the most explicit presentation of the idea of the Jewish social contract. This comes out most clearly and effectively in the justification supplied for Samuel’s principle by the twelfth-century French exegete R. Samuel ben Meir (Rashbam). In his comment on the most detailed discussion of Samuel’s principle in the Talmud, Rashbam writes with precise theoretical insight:

All real estate and produce taxes, all royal judicial procedures [mishpatei mela-
khim
] that they [the kings] regularly [regeelim] employ [le-hanhig] in their king-
doms, they are law [dina hu]. That is because all the members of the kingdom
willingly [mi-rtsonam] accept upon themselves the laws of the king [huqqei ha-
melekh
] and his judgments. Therefore, it is complete law [din gamur hu].1

So, we see that the king’s right to make laws and administer them is derived from the governed. The governed willingly, meaning autonomously, contract with their ruler. They accept his rule because he is able to govern them more wisely and more effectively than they are able to govern themselves. In the case of the Jews, for whom Rashbam is of course theorizing, this means that they acknowledge that the foreign monarch, under whom they happen to be living, is governing them in a way they have negotiated with him in good faith.2

Although notions of some sort of social contract between the king and his people were already being discussed in Europe at the time of Rashbam, the real relationship then between kings and their subjects did not resemble the type of contractual relationship from which the idea of a social contract is derived and developed.3 So, even though in principle Rashbam

1 B. Baba Batra 54b, s.v. “ve-ha’amar Shmuel.”

2 For the complicated political status of Jews in medieval Europe, see S. W. Baron, A Social and Religious History of the Jews 11 (New York: Columbia University Press, 1967), 4–33.

3 See J. W. Gough, The Social Contract, 2nd ed. (Oxford: Clarendon Press, 1957), 2–48.

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