Commentary Magazine


Sword of the Law

“Civil Libertarians Denounce Georgia Legislator for Urging Lynch Law.” That headline was never printed, because the civil libertarians said nothing. They let pass in silence this Associated Press story from Atlanta, which was published in the New York Post (February 5), but not in the Times:

Georgia State Representative Julian Bond says blacks should take the law into their own hands to eliminate dope pushers in their neighborhoods. In an interview yesterday the black legislator expanded on statements he made in a speech earlier in the week to an Atlanta club. The 31-year-old Democrat said, “I was quoted correctly, but I did not intend execution on the street. But I do encourage summary judgment in the street.”

He said in his speech that blacks must let “the sellers of poison to our children know that the price of drugs is death at the hands of the community.”

Bond said in the interview, “I’m not advocating murder, but I am advocating community action. Drug dealers act outside the law, and the police seem unwilling or incapable of dealing with them.”. . .

During the interview Bond said that if members of the community “catch the pusher in action, they should inflict immediate discipline.”

Would that include physical harm?

“It could,” Bond replied.

The legislator said he is “philosophically opposed” to vigilante groups. “But this drug situation is a crisis . . . and the citizen has to step in and take the law into his own hands,” he said.

If another public figure in Georgia had said that, the civil libertarians would have made themselves heard. But their silence is not really important. What is important is that Representative Bond tells us some old questions are still alive that we wanted to think were dead.

There is a maxim, gladius juris in terrorem malefactorum, the sword of the law, for overawing evildoers. Iconographically, that looks like the sword in the hand of the goddess Justice (who, blindfolded, bears in her other hand a balance). Literarily, the maxim would seem to paraphrase the famous passage in the 13th chapter of Paul’s Epistle to the Romans: “. . . if thou do that which is evil, be afraid; for he [sc., the ruler] beareth not the sword in vain: for he is the minister of God, a revenger to execute wrath upon him that doeth evil.” Of the scholars I have consulted about the origin of gladius juris, etc., Professor Luitpold Wallach of the University of Illinois has been the most helpful. The references he was kind enough to provide lead me to believe that it is unlikely to antedate the Renaissance, and that it may reflect Roman law as much as the New Testament.

The Digest of Justinian (II, i, 3) cites Ulpian: “Merum est imperium habere gladii potestatem ad animadvertendum facinorosos homines . . .,” simple imperium is having the power of the sword for punishing criminals. (On imperium as “the legal power to enforce the law,” see George Lichtheim, “Imperialism: I,” COMMENTARY, April 1970, and his first note.) Gladii potestas, “the power of [wielding] the sword,” is interchangeable with jus gladii, “the law/right of [wielding] the sword”; of which gladius juris, “the sword of the law,” may be a kind of mirror-image. In any event, there is a striking identity of thought between Ulpian the pagan lawyer and Paul the Christian—some would say, Paul the founder of Christianity—who said harsh things about law.

It is worth looking at Romans 13:

Let every soul be subject unto the higher powers. For there is no power but of God: the powers that be are ordained of God. Whosoever therefore resisteth the power, resisteth the ordinance of God: and they that resist shall receive to themselves damnation. [New English Bible: those who resist have only themselves to thank for the punishment they will receive.] For rulers are not a terror to good works, but to the evil. Wilt thou then not be afraid of the power? do that which is good, and thou shalt have praise of the same: For he is the minister of God to thee for good. But if thou do that which is evil, be afraid; for he beareth not the sword in vain: for he is the minister of God, a revenger to execute wrath upon him that doeth evil. Wherefore ye must needs be subject, not only for wrath, but also for conscience sake. For for this cause pay ye tribute also: for they are God’s ministers, attending continually upon this very thing. Render therefore to all their dues: tribute to whom tribute is due; custom to whom custom; fear to whom fear; honour to whom honour. [NEB: Discharge your obligations; pay tax and toll, reverence and respect, to those to whom they are due.]

There was a time when many made Luther the grandfather of German totalitarianism. The good German, a loyal subject, Untertan, respectfully obeyed authority, die Obrigkeit—which in practice also meant officialdom, down to the clerk with the rubber stamp behind the wicket. Since Luther was an unswerving Paulinist, his attitude toward authority, and Germany’s attitude, could come only from Paul’s “Let every soul be subject [untertan, in Luther's version of the New Testament] unto the higher powers [Obrigkeit].” Then, slowly, it occurred to people that Germany was not entirely Lutheran: besides all those Catholics there were also the Calvinists—including the Hohenzollerns, no less. Denmark, Norway, Sweden, and Finland were more undilutedly Lutheran, yet there was nothing Nazi about them.

“For there is no power but of God: the powers that be are ordained of God.” On that verse a standard work, Strack and Billerbeck’s Kommentar zum Neuen Testament aus Talmud und Midrasch (1922-28), says something that will shock most Jews: “Concerning this tenet there was hardly any difference of opinion in the ancient Synagogue”—that is, Paul on the powers that be was expressing good Jewish doctrine. Strack and Billerbeck prove their point by quotation after quotation from intertestamental and rabbinical literature. For instance, in Berakhot (58a) we are told:

Upon seeing kings of Israel one must pronounce this blessing: “Blessed [art Thou, etc.] who hast given of Thy glory to Thy worshippers”; upon seeing kings of the nations of the world one must say: “Blessed [art Thou, etc.] who hast given of Thy glory to Thy creatures.” . . . even the [lowly] superintendent of an irrigation well has been appointed from heaven.

(Among the blessing formulas in a popular contemporary American edition of the prayer book is this, to be recited “on the occasion of seeing an exalted ruler”: “Blessed art Thou [etc.], who hast given of Thy glory to flesh and blood.”)

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We tend to exaggerate the learnedness of our ancestors—though it is true that among Jews literacy was more nearly universal than among the peoples in whose midst they lived. The historian G. G. Coulton says that it would be unfair to compare medieval Jews and Christians for literacy. The more appropriate comparison would be between Jews and the Christians’ professionally literate class, the priests. Even so, Coulton says, in medieval Europe the average Jew—let alone the average rabbi—was more literate than the average Christian priest.

Literate, not necessarily learned. The learned Jews were usually a minority. What the average Jew knew of Talmud and the rest of rabbinical literature he was apt to have picked up in the course of prayer (or from the Bible commentaries). Bits and pieces of rabbinical literature are in the prayer book to enable us formally to discharge our obligation of daily study, to allow us to say the Scholars’ Kaddish afterward, and to teach us the virtues of the Rabbis. Thus the prayer book quotes (Berakhot, ad fin.): “The disciples of the wise”—i.e., the Rabbis—“increase peace in the world.” A friend of mine likes to adduce this as evidence of humor in the Talmud.

The rabbinical literature the average Jew knew best was Pirqe Avot, the Ethics of the Fathers. He knew it because it was also liturgical, being read in the synagogue every Sabbath afternoon for half the year, between Passover and Rosh Ha-shanah. In Pirqe Avot (3:2) Jews learned from R. Hananiah the Vice-High Priest (of Paul’s generation) to “pray for the welfare of government, because if not for the fear it inspires, a man would swallow up his neighbor alive.” Within the Jewish tradition, of course, R. Hananiah is not original. In a way, he restates a verse in Jeremiah (29:7) that was to become especially popular with the founders of Reform Judaism: “Seek the welfare of the city to which I have exiled you, and pray to the LORD on its behalf, for on its welfare yours will depend.”

But the average pre-modern Jew, at least in Ashkenaz, knew prophetical hardly more than rabbinical literature. What he knew of the Prophets was mostly the haftarot following the Torah lessons. The average Jew, therefore, was probably unfamiliar with that verse from Jeremiah. If he saw a connection at all between R. Hananiah and the Bible, I think it was in R. Hananiah’s echoing of a psalm—a psalm, moreover, that is prominent in the synagogue’s ritual. With a pleasing symmetry, when Avot is not read on Sabbath afternoons, Psalms 104 and 120-134 are read. R. Hananiah’s image is of a man swallowing up his neighbor alive. The 124th Psalm says: “. . . if it had not been that the LORD was for us/when men rose up against us,/then they would have swallowed us up alive. . . ./Blessed be the LORD,/who has not given us as prey to their teeth!/. . . Our help is in the name of the LORD,/who made heaven and earth.”

What is more, R. Hananiah’s adjective, “alive,” is plural—hayyim—though the noun it modifies, “his neighbor,” is singular. Isn’t that because the psalm has the plural hayyim, modifying “us”? Again, the psalm says God saves us from being swallowed up alive, and R. Hananiah says government saves us. Isn’t that because in his eyes government does God’s work?

For more learned Jews, R. Hananiah’s statement could have additional resonances. The annotation by R. Elijah Gaon of Vilna in the standard edition of the Mishnah refers us to Prophet and Talmud. Habakkuk 1:13,14: “. . . why dost Thou look on while men are treacherous/and remain silent when the wicked man swallows up the man more righteous than he?/For Thou makest men like the fishes of the sea,/like creeping things that have no ruler over them.” And ‘Avodah Zarah 3b-4a:

Why is it written (Habakkuk 1:14): “For Thou makest men like the fishes of the sea”? . . . As with the fishes of the sea, each fish greater than his fellow swallowing him up; so with men, if not for the fear that government inspires, each man greater than his fellow would swallow him up. And thus we learn in the Mishnah: “R. Hananiah the Vice-High Priest says: ‘Pray for the welfare of government,’ etc.”

Centuries later Thomas Hobbes, so modern that he rejected not merely traditional religion but even classical philosophy, used a similar metaphor. He said that government alone saves us from the state of nature, in which man is wolf to man. Rabbis, Paul, Ulpian, Hobbes—an implausible, suggestive concordance.

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Some historians interpret R. Hananiah’s advice to pray for the welfare of government—specifically, the Roman Empire—as a conservative, prudential counter to the Zealots’ “No king but God.” Of R. Hananiah’s quietist or pacifist (or passivist) attitude there are still other indications. In a midrash on Numbers 6:26—“The LORD lift up His countenance upon thee and give thee peace”—he says: “Great is peace, weighty as the entire creation; as it is said (Isaiah 45:7), ‘I [God] form light and create darkness, I make peace and create everything.’” (Isaiah really has “I make peace and create evil,” but R. Hananiah’s way of citing Isaiah has been incorporated into our prayers, in the first blessing after Barekhu every morning. Was “create everything” actually in the Rabbis’ Isaiah text, or did they have a kind of ketiv-qere tradition, writing “evil” but reading a euphemism, “everything”?) R. Hananiah’s exaggeration in the Midrash—that peace is as weighty as all of creation—is normal rabbinical rhetoric, but it is also personal to him, cohering with what he says in Avot about government. The Zealots call for overthrowing Roman rule because only God is king, and R. Hananiah answers that the Roman government does God’s work. They call for war, and he answers that peace is as weighty as the entire creation.

R. Hananiah lived at a time when, if the Jews had lost their sovereignty, they had not lost their fighting spirit, as successive rebellions against the might of the Roman Empire were to prove. Afterward his doctrine and attitude, not unchallenged in his time, became universal among us, and ever more pronounced—for better and worse. (David Daube’s Collaboration with Tyranny in Rabbinic Law1 gives a fine brief account of this development.) Only yesterday—in the 19th century—a rabbi, quoted in Teddy Kollek and Moshe Pearlman’s attractive Jerusalem,2 praised a Muslim ruler for having “wrought fearful judgments on all wicked men and caused such fear and trembling that a small girl could walk in the streets carrying gold coins in her hand and no one would molest her.” It was not that the rabbi loved Muslim rule, it was that he thought a ruler was doing God’s work who kept the wicked from swallowing up the weak—which is to say, whose sword overawed evildoers.

Julian Bond is a responsible leader of the black community. His people know, and the drug pushers know, that the sword of the law has been blunted. For whatever reason—the incompetence, corruption, or malice of the police; or laws that make it hard to convict the guilty; or, simply, not enough room in the jails—the pushers are at large in the streets, hurting Mr. Bond’s people. Courtroom justice having proved unavailing, he feels he must ratify street justice.

What Mr. Bond said was not original. He was not teaching his people, they had taught him. With them, as with all who are vulnerable and beset, it is not a philosophy of authoritarian personalities but simple fact that tolerable life in society is impossible when there is no sword to overawe evildoers. If the law allows its sword to be blunted, people will look elsewhere for a sharp one to protect them. The greatest terror is the terror of the state of nature—great fishes swallowing up small fishes, man wolf to man.

Suppose that in France, in 1968, the contest had been between the red-flag Communists and the black-flag anarchists. Does anyone doubt that every bourgeois père de famille would have voted red?

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Footnotes

1 Oxford University Press, 1965.

2 Random House, 1968.

About the Author




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