The Story of Shimon B. Shetah’s Attempt to Judge King Yannai

Talmudic Stories

The Babylonian Talmud is best known as the foundational source of Jewish law or halakhah and as a vast repository of rabbinic legal discussions, debate and analysis. Together with law, the Talmud contains a massive corpus of non-legal material or aggadah, including biblical interpretations, proverbs, prayers and blessings, poetry, dream-interpretations and hundreds of stories about the lives and deeds of the Talmudic sages.

Until the 1970s these stories were considered more-or-less reliable historical traditions that could serve as the basis for reconstructing the biographies of the rabbis and the history of the Talmudic age.  Scholars now consider Talmudic stories to be closer to didactic fiction. Although many stories have a historical kernel and feature historical characters, the rabbinic storytellers over the ages freely changed the traditions they received to serve their own didactic purposes.^[1]

The functions of Talmudic stories are diverse: to teach morals, transmit values, portray ethical living, and provide role models for students. Some stories engage Talmudic laws, explaining their origins, justifying changes, and even challenging or undermining them.  Other stories grapple with the enduring questions of human existence: suffering and illness, death, the relationship between the sexes, free will and fate.  Still others engage particular dimensions of rabbinic life within the academy, such as the demands of Torah study, competition with other sages, and even jockeying for leadership positions.

Features of  Oral Transmission

As components of the “oral Torah,” the Torah she’be’al peh, the Talmud together with its stories were transmitted orally from their beginnings until well into the Geonic period in the ninth century CE. Like all oral literature, the stories of the Talmud are frustratingly brief, formulated as economically as possible to facilitate memorization.  Only the information necessary for the storyteller’s main lessons is provided.  The gaps and omissions of other details often make possible different lines of interpretation depending on how the audience chooses to fill in what is missing.

The Story

The following story beautifully exemplifies a number of these features.  The story tells of a confrontation between Shimon b. Shetah, one of the early rabbinic leaders, and King Yannai, a descendant of the Hasmoneans (Maccabees), who ruled Judea from 103-76 BCE. While these are historical figures, the story as told in the Talmud has no basis in history,^[3] and functions in part to justify a law limiting the scope of the rabbinic court.  In the process, it engages a number of important issues concerning political power, judicial authority, and personal character.  Yet exactly how we understand the storyteller’s message depends a great deal on how we fill in the story’s gaps. ^[4]

^{בבלי סנהדרין יט ע”א –ע”ב} [א] מלכי ישראל מאי טעמא לא [דנין אותו.] (=משנה ב, א).  משום מעשה שהיה. כי הא ד—

^{Bavli Sanhedrin 19a-b} [A] Why are kings of Israel “not [judged]” (=Mishnah Sanhedrin 2:1)?  Because of what once happened.  For it was that–

[ב] עבדיה דינאי מלכא קטל נפשא. ^[5] אמר להן שמעון בן שטח לחכמים, תנו עיניכם בו ונדינהו.

[B] The slave of King Yannai killed someone.  Shimon b. Shetah said to the sages, “Set your eyes upon him and let us judge him.”

[ג] שלחו ליה, עבדך קטל נפש. שדר[יה] ניהליהו.

[C] They sent [a message] to him [Yannai], “Your slave killed someone.”  He [Yannai] sent him to them.

[ד] שלחו ליה, והועד בבעליו (שמות כ”א, כ”ט) כתיב. אמרה תורה, יבא בעל [השור] ויעמד על שורו. אתא ויתיב.

[D] They sent to him, “It is written, [If that ox had been in the habit of goring,] and its masters have been warned, [and it kills a man or a woman the ox shall be stoned and its master, too, shall be put to death (Exod 21:29).]  The Torah stated, ‘Let the master of the ox come and stand by his ox.'”  He [Yannai] came and sat down.

[ה]  אמר לו שמעון בן שטח, ינאי המלך. עמוד על רגליך ויעידוך. לא לפנינו אתה עומד אלא לפני מי שאמר והיה העולם, שנאמר, ועמדו [שני] האנשים אשר להם הריב לפני יי (דברים י”ט, י”ז). אמר ליה, לא כשתאמר אתה אלא כשיאמרו חבריך.

[E] Shimon b. Shetah said to him, “King Yannai!  Stand on your feet and let them give testimony regarding you.  You do not stand before us but before He-who-spoke-and-the-world-came-into-being, as it says, [The two parties to the dispute shall stand  before the Lord, [before the priests or magistrates in authority at the time] (Deut 19:17).  He [Yannai] said to him, “[I will] not [act] as you say but as your colleagues say.”

[ו] נפנה לימין, וכבשו פניהם בקרקע. נפנה לשמאל, וכבשו פניהם בקרקע.

[F] He turned to his right, but they looked down to the ground.  He turned to his left, but they looked down to the ground.

[ז] אמר להם שמעון בן שטח, בעלי מחשבות אתם? יבא בעל מחשבות ויפרע מהם. בא גבריאל וחבטן כלם בקרקע ומתו.

[G] Shimon b. Shetah said, “Are you preoccupied with your thoughts?  Let the master of thoughts come and punish you.”  [The angel] Gabriel came and struck them [the sages] to the ground and they died.

[ח] באותה שעה אמרו: מלך לא דן ולא דנין אותו [לא מעיד ולא מעידים אותו].

[H] At that time they said, A king does not judge [others] and is not judged [in court. He does not testify and is not testified against]. (Mishna Sanhedrin 2:1)

The Talmudic Context of the Story

The Talmud brings this story to explain the origin of the law in Mishnah Sanhedrin 2:1: “A king does not judge [others] and is not judged [in court]. He does not testify and is not testified against” [A, H]. The king, in other words, stands outside of the authority and purview of the judicial system. The Talmud here offers a narrative justification of this law rather than the more typical legal analysis with dialectical argumentation, or a midrashic derivation anchoring the rule in biblical prooftexts. Instead, we have a story of what went wrong; more specifically, a story suggesting that the royal exemption from the judicial system was not always the law, nor is it the ideal, but came about due to a catastrophic event of the distant past.

That event is located in the time of King Yannai, called Alexander or Jannaeus in Josephus and other Greek sources, a scion of the Hasmonean dynasty, grandson of Simon, the brother of Judah Maccabee.  The rabbis remembered the Hasmoneans with great ambivalence. While Judah and his brethren were undoubtedly the heroes of Hanukkah, fighting for independence and purifying the temple, some of their descendants became kings and tyrants, usurped the high priesthood, and reportedly massacred the Pharisees. ^[6]

Is King Yannai Responsible for his Slaves’ Crime?

But is Yannai a villain in this story? Is he even portrayed negatively? When Shimon b. Shetah informs Yannai of his slave’s crime, Yannai dutifully sends the slave to trial [C]. Yet the rabbis are not satisfied. They give him a biblical midrash, an interpretation of Exod 21:29, “proving” that Yannai himself must appear.  If the owner of a dangerous ox negligently allows the animal to cause harm, the owner is responsible. Likewise, Yannai is responsible for the harm done by his slave.

Whatever the merits of this analogy according to rabbinic sensibilities, one could imagine a king respectfully insisting that an ox is an ox, while a slave is a slave.  The former acts according to animal instinct alone, the latter has free will to perpetrate evil or to resist his impulses. Hence the rabbis may have their way with the slave but not with the king.

To this Shimon b. Shetah might respond that slaves ^[7] especially the slaves/servants of kings, typically carry out their masters’ bidding. The slave may have done the deed, but are we seriously to believe that Yannai had nothing to do with it? Would a king’s servant have the audacity and autonomy to commit murder without the king’s tacit—or explicit—instruction?  An owner of a dangerous beast that kills a human is negligent according to the biblical law, and therefore stands trial along with his animal. How much the more so should a murderous slave’s owner, who may have been complicit or directly responsible and not merely negligent, stand trial for the crime?

In theory, a human slave differs from a bestial ox insofar as he has personal autonomy and responsibility for his own actions.  In practice a king’s slave may have little choice in the affair.  With a sword pressed against his throat, with his back still bearing the scars of whippings due to previous acts of disobedience, the concept of free will becomes rather murky.

Who is the Guilty Party according to the Storyteller?

Yet the opposite view seems equally likely.  Here we have a court of rabbis with the power (in the storyteller’s imagination) to subpoena—and even try—the king.  Had he been directly ordered to kill by King Yannai, could not the slave have come to this very court, informed the sages and requested asylum? That he did not do so suggests his complicity in the affair.  It is also possible that this slave had his own share of personal grievances and conflicts, and that the murder resulted from some private squabble. In the Roman world many slave/servants, especially the slaves of nobles and royalty, owned property and even amassed considerable wealth.

The storyteller does not begin his account: “King Yannai ordered his slave to kill someone,” but only “The slave of King Yannai killed someone.”  How frustrating is the lack of information provided by the storyteller! Or is this precisely the point? Is Shimon b. Shetah jumping to conclusions, immediately presuming King Yannai to be guilty when the sages should have first interrogated and judged the slave before summoning the king?

King Yannai Submits to the Rabbis

At all events, Yannai again acquiesces [D]. He comes to the rabbis—apparently to the rabbinic court—and sits down quietly. What more could be asked of a king? Many rulers, ancient and modern alike, would not think twice about refusing to appear, perhaps even sending in some soldiers to deliver the message with a little calculated violence. To show up in and of itself can be perceived as a humiliating submission to the authority of others.

Shimon b. Shetah Commands King Yannai to Stand on his Feet

Yannai’s presence, however, is still not sufficient for Shimon b. Shetah. Quoting another biblical verse he commands the king to stand up, to honor the rabbis not only by his appearance but by his posture [E]. Does Shimon b. Shetah feel Yannai has insulted the court by refusing to stand as per the standard protocol, and as demanded of other litigants? Or is this a power struggle, an effort to demonstrate to all who possesses higher authority and status?  How should we read his motives? Shimon b. Shetah seems to disavow a personal stake in the conflict by claiming that “It is not before us that you stand but before He-who-spoke-and-the-world-came-into-being.” He insists on God’s honor, not his own.  Should we take this rhetoric seriously?

At this point Yannai balks. Yet he does not refuse Shimon b. Shetah outright, nor articulate a warning or a threat. He resists Shimon’s authority, but he acknowledges, at least on the surface, the authority of the sages, of Shimon’s colleagues, the rabbis serving as judges of the court. He will defer to the institution, not to Shimon b. Shetah, whom Yannai seems to think is on a power trip. Yannai believes that this sage wants everyone to see that he is superior to the king, that the king must obey his commands. This court case has become too personal: a test of wills, and a power play. Yannai demands a more neutral judiciary.

An Ambiguous Turn in the Story

“He turned to the right….[F]”  Who turned, Yannai or Shimon b. Shetah? Does the pronoun refer to Shimon b. Shetah, who looks for support to his colleagues, but they let him down?  Or to Yannai, who looks to the rabbis seated at Shimon b. Shetah’s side, but they refuse to meet his imperious glance?

Either way, how do we construe the sages’ averted eyes? Is this abject cowardice, a failure of nerve, an abandonment of their colleague when he most needs their support? Do they fear that the powerful King Yannai will suddenly call in the troops and take revenge on the rabbis who tried to humiliate him? Or is it possible that they feel Shimon b. Shetah has overstepped his authority and pushed too far?

Do they think that a king, even when tried in court, or at least when tried for an act he did not personally commit, retains his honor and need not stand?  Should the ruler of the Jewish people not be treated like a true king, with due honor and prerogative? Is not an insult to the king an insult to his people too, just as if a Greek or Roman governor had summoned King Yannai and made him stand before that court? Has their colleague Shimon b. Shetah unfairly placed them in a most awkward position? Or again, are they simply caught in the middle, confused, bewildered, trying to weigh the different factors and figure out the appropriate response?

Measure for Measure: The Sages are Struck Down

The miraculous divine intervention that follows suggests Shimon b. Shetah stands in the right. He invokes the axiom of divine justice, the measure-for-measure principle: are you “preoccupied with your thoughts”—the Hebrew literally translates “are you masters of thoughts”—then “let the (true) Master of Thoughts come and punish you.” This sharp rebuke plays ironically on their impotent retreat to the realm of thought at a time when the sages needed to act.  Because they were immersed in thought—thinking too long about their predicament, but not thinking straight—the divine “Master of Thoughts” summoned his angelic messenger to strike them down.

The sages turned their eyes to the ground out of fear of the king, and are displaced from their seats on the court to that very ground. Shimon b. Shetah had called upon them to “set their eyes” on King Yannai for judgment, but they could not look Yannai in the eye. They did not “stand” up to Yannai, whom Shimon had ordered to stand, and are struck down prostrate, their reduced posture manifesting the loss of honor. Shimon calls on God with a sobriquet that emphasizes speech, “He-who-spoke-and-the-world-came-into-being,” a pointed contrast to the sages’ silence. By not supporting Shimon and confronting Yannai, they failed in their capacity as leaders and judges.  Their punishment seems Draconian to us, and perhaps we should not take it literally but in keeping with the exaggerated and dramatic Talmudic narrative style. The storyteller means to inform us how disastrous such cowardice can be, and what disaster it causes.

Does the Conclusion of the Story Suggest Who Is Guilty?

Concluding the story with the angel Gabriel killing the sages perhaps suggests that the slave at the beginning indeed committed the murder at Yannai’s behest. The storyteller may be inviting us to draw a parallel: just as Gabriel, God’s angelic servant, acted on his Master’s command (the “Master of Thoughts”), so the slave/servant killed someone at his master Yannai’s order.

The Message of the Story in Context of the Sugya

Yet despite this possibility, and despite the punishment of the sages, we should not take the story as a complete endorsement of Shimon b. Shetah’s efforts, nor as a consummate indictment of King Yannai.

First, the Talmud concludes from the story not that those particular sages were particularly unworthy but rather that the structural dynamics of judging a king are inherently problematic. The Talmud does not offer a lesson about the qualifications for judges, about only appointing to the judiciary those who display courage and bravery, but rather informs us that the law was changed such that kings should never be tried again.

Second, we should note that King Yannai’s domineering gaze at the sages is actually anticipated by a metaphoric use of vision in Shimon b. Shetah’s initial call to his colleagues: “set your eyes upon him [Yannai] and let us judge him [B].” This is a curious locution: the narrator could have Shimon b. Shetah say, “Summon King Yannai,” or “Call King Yannai to appear” or suchlike.  Now the expression “set your eyes upon” generally has negative connotations. One of the most chilling Talmudic stories tells of a servant who “set his eyes on the wife of his master”; he manages to trick the master into divorcing his wife, whom he then marries, and also impoverishes the master (Gittin 58a).

The Talmud’s story of the wicked King Herod likewise relates that Herod “set his eyes on a maiden” of the Hasmoneans, and proceeds to seize power and kill the entire Hasmonean family (Bava Batra 3b-4a). That Shimon b. Shetah calls upon his colleagues to “set  your eyes” upon King Yannai suggests his motives were not pure, that he perhaps saw an opportunity for self-aggrandizement. He was not only interested in justice, but in humiliating the king and showing the superiority of sages.  Finally, however we view Shimon b.Shetah’s motives, whether pure of impure, self-interested or selfless, his actions cause the death of many sages.

The Limitations of Human Justice in Theory and Practice

For the Talmud, then, the story teaches a tragic lesson of the incompatibility of power and justice. Those in power cannot be brought to justice because the very presence of power disrupts the system such that it cannot function.  It has often been said that, in contrast to secular kings, who were regularly considered to be the source of the law – “The king is the law”— in Judaism the king is subject to God’s law like all other humans. While that may be true in theory, it cannot work in practice, at least not in a terrestrial court.  But the story suggests the problem is not only due to a sovereign’s potential use of violence and to human weakness (the sages’ failure of nerve), but to the reflexive escalation that tends to result when the judges seek to exert their own authority, as did Shimon b. Shetah.^[8]

The Historical Struggle to Regulate Political Power

This Talmudic passage raises profound political and philosophical questions about the use, abuse and regulation of power.  In particular: should there be limits on the power of the sovereign, and if so, how can those limits be structured? If the sovereign is not above the law, but subject to law, how can the law force him to submit when he possesses instruments of violence such as the police and army? 

Recall that our modern democratic systems with checks and balances, with separation of executive, legislative and judicial powers, are relatively recent political developments, historically speaking.  They originate in the political thought of the eighteenth-century Enlightenment and the efforts to reform the powerful monarchies that had developed in Europe.  Even democracies and constitutional republics are no guarantee against the abuse of the system.  Hitler and his National Socialist (Nazi) party came to power through a democratic process and free elections—and then maneuvered to secure “emergency” plenary powers that granted him almost unlimited authority and the right to act without parliamentary consent.

Throughout human history, most political system have included a king, despot, tyrant, or single sovereign, a condition that still prevails in much of the world. Indeed, in many cultures, the king or sovereign was considered a god or at least a divine offspring of sorts.  Whether that sovereign’s power could be limited, and if so, how, are questions with a long pedigree in political thought.

Limiting the King’s Power

The Torah itself weighs in on this question in a famous passage known as the “Law of the King” in Deuteronomy 17:14-20.^[9] This passage undermines and constrains the prestige and power of the king in several ways.  The Torah attributes the impulse to crown a king to the people, construing the monarchy as a political option or possibility, rather than an obligation or divine commandment.  The motivation that might occasion such a request is suspect or negative by biblical standards, the desire to emulate the surrounding peoples.  That God chooses the king in this context presumably means that God must approve of the people’s choice or that God will select the occupant once the people request a sovereign, but not that God desires such a political order.^[10]

A concession, rather than an ideal, the monarchy’s powers are limited in several respects. The king may not possess many horses, restricting the size of his cavalry and army. Likewise his wealth should be curtailed, which naturally constrains the king’s ability to indulge his whims and pay for whatever he desires.  He should not have too many wives, ostensibly so that they do not influence him to adopt their idolatrous religions, but certainly the restriction serves to close the gap between king and commoner, bringing him closer to the level of other Israelites.  In these ways the Torah can be said to “disempower” the king. 

Most importantly, the command that the king produce a copy of the Torah in the presence of the priests expresses his subservience both to the rule of law and to its priestly interpreters.^[11] The priests seem to be the caretakers of the Torah, which they give over to the king to copy, and essentially supervise his efforts (“in their presence”), perhaps instructing him what to do.

Separation of Judicial Authority from the King

Earlier in the chapter judicial authority is explicitly granted to priests and magistrates (Deut 17:8). The juxtaposition of this passage delineating the judicial system (Deut. 17:8-13) just before the “Law of the King” (Deut. 17:14-20) suggests that they be read as a unit describing two separate and distinct institutions. In many cultures the king sits in judgment, speaking for a god, administering the law, and functioning as a supreme court beyond appeal.  By contrast the Torah confers judicial authority on those beyond the royal circle.  In this way the Torah implicitly ordains that the king not be involved in the judiciary, neither as judge nor as authorizer of judges. Nor is the king given any legislative authority, as God serves as the divine legislator and God’s Torah the legislation itself.^[12] We have then an attempt at the “separation of powers” over two millennia before philosophers and political theorists formulated the doctrine in western thought.

The Talmud’s Attempt to Address the Questions Left Unanswered by the Torah

That the judiciary must be independent of the king leaves open the question of whether the king is himself subject to the system or stands above and apart from it.  Can the king be subpoenaed to the priestly courts?  The implied subservience to the priests who direct the king to write out the Torah ^[13] perhaps hints at the former, as these same priests administer the courts. But as in many other cases, the skeletal legislation of the Torah does not address every necessary question and leaves the door open to future interpreters to fill the gaps.

Against this background the Mishnah and the story of King Yannai and Shimon b. Shetah may be seen as an attempt to address this question left unanswered by the Bible.  By the rabbinic era the biblical priests and magistrates have been transformed into rabbinic sages. The Talmudic story pictures the court of sages, the wise and rightful legal interpreters “in charge at that time,” as possessing authority over the king, who must obey their demands that he hand over his slave and even heed their summons. Alas, this scenario results in catastrophe—a stand-off between the authorities and the death of the judges.  So the rabbis conclude that the king must stand apart from the judiciary, as the Mishnah rules: “A king does not judge [others] and is not judged [in court].”