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 ..- A2-

The Prophet and the Law

in Early Judaism and the
New Testament*
Bernard S.Jackson

I Introduction

Ancient debates between Judaism and Christianity have

profoundly affected both Judaeo-Christian relations down to the
present day, and the internal development of Judaism itself. Take, for
example, the words of Paul, which have resounded down the
centuries:
The qualification we have comes from God; it is he
who has qualified us to dispense his new covenant
- a covenant expressed not in a written document
but in a spiritual bond; for the written law condemns
to death, but the spirit gives life. (2 Corinthians 3:6,
New English Bible)
Or, in the famous phrase of the King James version:
For the letter killeth, but the spirit giveth life.

Similarly, Romans 2:29 (New English Bible):

The true Jew is he who is such inwardly, and the true
circumcision is of the heart, directed not by written
precepts but by the Spirit; such a man received his
commendation not from men but from God.
The "letter" comes to be associated with "the Law," and "the Spirit"
with the Holy Spirit, and all too easily the phrase takes on
connotations not merely of theological disputes (justification by
works or faith; revelation via a written text or to the individual heart or
conscience):I it even takes on connotations of "The Law killeth Jesus"
and so gets mixed up with the deicide charge and the centuries of
anti-Semitism which that charge was used to justify.
Theological understanding is thus vital to communal
relations. This paper addresses a related issue to that of letter and

123
spirit, namely the tension between law and prophecy, as worked out
in the various uses made of the tradition of the "prophet-like-Moses."

II. The Role of the Prophet in Relation to the Law

in the Old Testament
A. Moses as Prophetic Medium of Divine Verbatim
Revelation of Law
Recall the concluding words of the Pentateuch (Deuteronomy
34:10-12):
There has never yet risen in Israel a prophet like
Moses whom the Lord knew face to face: remember
all the signs and portents which the Lord sent him to
show in Egypt to Pharaoh and all his servants and the
whole land: remember the strong hand of Moses and
the terrible deeds which he did in the sight of all
Israel.
Of course, the main function of Moses in the history of Israel
was to mediate the law: it was for that purpose that God knew him
face to face. Nevertheless, the accolade accorded to him is that of
supreme prophet. The "signs and portents" (ba'otot vehamoftim)2 are
merely evidence that Moses gave the law as a true prophet; 3 they are
the means by which the prophet establishes his status, not the
essential function he is there to perform.
A tantalizing story in Jeremiah 36:1-23 illustrates some of the
mechanics, in the period of the monarchy, of the continuation of this
prophetic function.
(1) In the fourth year of Jehoiakim son of Josiah,
King of Judah, this word came to Jeremiah from the
Lord: "Take a scroll and write on it every word that I
have spoken to you about Jerusalem and Judah and
all the nations, from the day that I first spoke to you
in the reign of Josiah to the present day. Perhaps the
house of Judah will be warned of the calamity that I
am planning to bring on them, and every man will
abandon his evil course; then I will forgive their
wrong doing and their sin."
(4) So Jeremiah called Baruch son of Neriah, and he
wrote on a scroll at Jeremiah's dictation all the
words which the Lord had spoken to him. He gave
Baruch this instruction: "I am prevented from going

124
 to the Lord's House. You must go there in my place
on a fast-day and read the words of the Lord in the
hearing of the people from the scroll you have
written at my dictation... "
(8)Baruch... did all that the prophet Jeremiah had
told him to do... (10) Then Baruch read Jeremiah's
words in the House of the Lord out of the book in
the hearing of all the people; he read them from the
room of Gemariah... in the upper court at the
entrance to the new gate of the Lord's House.
Micaiah son of Gemariah... heard all the words of
the Lord out of the book and went down to the
palace... There Micaiah repeated all the words he
had heard... then the officers sent Jehudi... to
Baruch with this message: "Come here and bring the
scroll from which you read in the people's hearing."
(15) So Baruch... brought the scroll to them, and
they said, "Sit down and read it to us." When they
heard what he read they turned to each other
trembling and said, "We must report this to the
King." They asked Baruch to tell them how he had
come to write all this. He said to them, "Jeremiah
dictated every word of it to me, and I wrote it down
in ink in the book." The officers said to Baruch,
"You and Jeremiah must go into hiding so that no-
one may know where you are."
(20) When they had deposited the scroll in the room
of Elishama the adjutant-general, they went to the
court and reported everything to the King. The King
sent Jehudi to fetch the scroll. When he had fetched
it from the room of Elishama the adjutant-general, he
read it to the king and to all the officers in
attendance... When Jehudi had read three or four
columns of the scroll, the King cut them off with a
penknife and threw them into the fire in the brazier.
He went on doing so until the whole scroll had been
thrown on the fire.
We are not told a great deal about the content of this scroll,
except that it was likely to be offensive to the king (many things could
qualify), but it is by no means to be excluded that the scroll would
have contained some normative material. Particularly interesting is the
light here cast upon the way in which holy books could be infiltrated

125
into the temple archive, with the complicity of court officers - despite
their sensitivity to the political dangers. Perhaps this casts light upon
the famous incident a few years before, when, in the reign of King
Josiah, a scroll (which many now identify with Deuteronomy) hitherto
4
apparently unknown was discovered in the archive.
B. Prophet as Authorized Reformulator of the Law
A major role of the Old Testament prophet is to remind the
people of some covenantal obligation which has been entered into at
an earlier stage, and which the people appear to be violating. Take the
following example, concerning Jeremiah in the reign of King Zedekiah
(Jeremiah 34:12-14 ):
Then this word came from the Lord to Jeremiah:
These are the words of the Lord the God of Israel: I
made a covenant with your forefathers on the day
that I brought them out of Egypt, out of the land of
slavery. These were its terms: "Within seven years
each of you shall set free any Hebrew who has sold
himself to you as a slave and has served you for six
years; you shall set him free."
Jeremiah reminds the people of the law stated in Exodus 21:2 about
the liberation of slaves, that a male slave taken for debt must be
released in the seventh year. This is a law which, according to the
narrative in Jeremiah 34, the people have neglected, and the prophet
causes them to re-covenant. There may be a new act of covenanting.
Nevertheless, the prophet clearly has the authority to use a different
form of words to express the original law:5
Jeremiah 34:14: "Within seven years (mikets sheva
shanim) each of you shall set free any Hebrew who
has sold himself to you as a slave and has served you
for six years" - expressed in the apodictic form.
Exodus 21:2: "When you buy a Hebrew slave, he
shall be your slave for six years, but in the seventh
year he shall go free and pay nothing" - expressed
in a variety of the casuistic form.
Such a capacity to reformulate is significant, since there would come a
time when the verbal formulation, as well as the substance, of the law
would become inviolate from change. Clearly, the Biblical prophet
retained the capacity, in reminding the people of the law, to use his
own words to express it.6 Indeed, there is a talmudic source which
suggests that it is of the essence of prophetic revelation that its

I 126
formulation is unique: "I have a tradition from my grandfather's house
that the same communication is revealed to many prophets, but no
'7
two prophesy in the identical phraseology."
C. The Prophet as Amender of the Law: the
"Prophet-like-Moses" Tradition
In the course of his valedictory address, Moses enunciates
God's promise that in the future there will arise prophets like Moses
(kamoni), whom God will inspire to communicate his commandments
(Deuteronomy 18:15-19):
These nations whose place you are taking listen to
soothsayers and augurs, but the Lord your God does
not permit you to do this. The Lord your God will
raise up a prophet from among you like myself, and
you shall listen to him. All this follows from your
request to the Lord your God on Horeb on the day of
the assembly. There you said, "Let us not hear again
the voice of the Lord our God, nor see this great fire
again, or we shall die." Then the Lord said to me,
"What they have said is right. I will raise up from
them a prophet like you, one of their own race, and I
will put my words into his mouth. He shall convey
all my commands to them, and if anyone does not
listen to the words which he will speak in my name I
will require satisfaction from him. But the prophet
who presumes to utter in my name what I have not
commanded him or who speaks in the name of other
Gods - that prophet shall die." If you ask
yourselves, "How shall we recognize a word that the
Lord has not uttered" this is the answer: When the
word spoken by the prophet in the name of the Lord
is not fulfilled and has not come true, it is not a
word spoken by the Lord. The prophet has spoken
presumptuously; do not hold him in awe.
The passage contains a double admonition to obey such a prophet:
elav tishme'un in verse 15,8 and the threat to require satisfaction from
anyone not obeying him (v.19).
The coming of such a prophet is not described in
Deuteronomy as a one-off, once-and-for-all event; the "prophet-like-
Moses" is not an eschatological prophet. There is no suggestion in the
text of a Messiah figure who will come to herald the end of days. Nor
is this a second coming of Moses himself. It is a promise that, from
time to time, prophets will arise who will have an authority

127
comparable to Moses, as the bearers of divine commands. The rabbis
were to identify at least three historical figures whom they consider to
have possessed just this kind of authority, and in each case they allude
to a command by that prophet contrary to the Mosaic law: 9 the first
(even before Moses) is Abraham, who commanded the sacrifice of
Isaac; 10 the second, the prophet Micaiah, who ordered a colleague to
smite him;" the third (the locus classicus), the prophet Elijah, who
ordered sacrifice outside the Temple.12
This text was to prove of enormous significance in the
subsequent history of both Judaism and Christianity.
D. Opposition: the False Prophet
There was a fine line in the Bible between the genuine and
the false prophet, but, given the authority enjoyed by the genuine
prophet, this was a line which it was vital to draw. We have seen in the
case of Moses the stress laid upon his capacity to perform otot and
moftim (A. above), and the "prophet-like-Moses" passage itself
explicitly raises the question of recognition, and offers non-fulfillment
of a "word" (which could certainly include, and perhaps in the
context does not go beyond, a promise to perform miracles) as a
falsification. 13 However, the absence of such a falsification does not
entail recognition of the prophet's status. According to Deuteronomy
13:1-5:
When a prophet or dreamer appears among you and
offers you a sign or a portent and calls on you to
follow other Gods whom you have not known and
worship them, even if the sign or the portent should
come true, do not listen to the words of that prophet
or that dreamer. God is testing you through him to
discover whether you love the Lord your God with
all your heart and soul... That prophet or that
dreamer shall be put to death, for he has preached
rebellion against the Lord your God...
Even success in performing otot and moftim is no sufficient
condition of true prophetic status; there is also a test as to the content
of his teaching: not even a true prophet has the authority to command
idolatry. The theme of the relationship of the prophet to Mosaic law is
central to this passage, too. For the verse immediately preceding this
passage is the famous (in rabbinic terms) bal tosif: "See that you
observe everything I command you: you must not add anything to it,
nor take anything away from it." Indeed, in the chapter division of the
Hebrew Bible, this verse commences the chapter (13:1), followed
immediately by the law of the false prophet. The underlying logic of

128
the discourse is thus the following: (1) You, ordinary Israelites, have
no authority to alter the law; (2) a genuine prophet-like-Moses may do
so, on proving his status, but (3) even one who proves his status with
otot and moftim is really false if he commands idolatry.

III. The Prophet at Qumran

The model of the prophet-like-Moses appears to have been

important to the sect of Qumran. Various indications suggest that the
sect's major leader, the moreh batsedek (the Teacher of the
Righteousness) was claiming a form of prophetic authority. 14 He
reformulated many of the rules, and restated them in a new collection
(another mishneh torah). These rules of Qumran are written in a style
of Hebrew relatively close to that of the Bible, particularly the priestly
sections; as in Jeremiah's reformulation of the law on slavery, no
embarrassment is apparent at Qumran in reformulating Biblical rules
- nor even in offering an entirely new text in which they are
systematized.
There is also a second more radical use made of the prophet-
like-Moses tradition at Qumran. 5 "Original rules" (hamishpatim
harisbonim) of the Community are said to be applicable "until the
16
coming of the prophet and the Messiahs of Aaron and Israel."'
Clearly, this trio of eschatological figures would have the authority to
abrogate the "original rules." The identity of "the prophet" with the
prophet-like-Moses has been plausibly claimed because of the
discovery at Qumran of a collection of testimonia (proof-texts), found
in one of the smaller fragments (4QTest.), which includes the text of
1 7
Deuteronomy 18 on the prophet-like-Moses.
The functions of the prophet noted in sections II.B-C supra
are thus clearly manifest in the Qumran literature. And the prophet-
like-Moses tradition is taken to include an authority to change the law
- though this power is here deferred until the eschatological,
messianic future.
These Old Testament and Qumran sources represent a long-
standing and important Jewish institution, which we find interpreted
in different ways in the New Testament and rabbinic Judaism.

IV The Role ofJesus in the New Testament

A. Jesus as a Prophet-like-Moses
Vermes has argued that the earliest title claimed by (or on
behalf of) Jesus was that of "prophet," but that the more specific
identification of Jesus with the "prophet-like-Moses" arose only in the

129
Gospel of John, well after Jesus' death. 8 This argument, however,
assumes a radical understanding of the prophet-like-Moses model, that
it necessarily entails a capacity to make permanent changes in the law,
and is understood only in an eschatological, messianic context. In fact,
the nuances of the model are themselves found within the New
Testament. There is evidence in the synoptic gospels that the original
claim was non-radical and non-eschatological, indeed, quite in
conformity with what we shall find to be the early rabbinic
understanding of the prophet-like-Moses.
In the Sermon on the Mount, Jesus says (Matthew 5:17-18):
Do not suppose that I have come to abolish the law
and the prophets; I did not come to abolish, but to
complete. 19 I tell you this: so long as heaven and
earth endure, not a letter not a stroke will disappear
from the law until all that must happen has
happened...
Is the phrase "the law and the prophets" a hendiadys, referring to the
Torah itself, or to Torah in general? Or does it mean the law, the
Torah, and the Nevi'im, the prophets, as separate bodies of literature?
Or might it indicate, as I suspect, a specific reference to Deuteronomy
18? I suggest that it is the law of the prophet that Jesus claims here to
fulfill. That certainly gives the greatest force to "I have come" - the
claim that an historical act fulfills the promise of an historical act, that
God would "raise up" such a prophet. Moreover, the activities of Jesus
conform to what we know to be the role of such a prophet. I suggest
that Jesus in the Sermon on the Mount claims precisely the authority
of a prophet- like-Moses.
B. Jesus as Reformulator of the Tradition
One aspect of this is apparent from what follows immediately
in the Sermon on the Mount: a prophetic reformulation of some of the
Decalogue commands:
You have learned that our forefathers were told, "Do
not commit murder; anyone who commits murder
must be brought to judgement." But what I tell you
is this: anyone who nurses anger against his brother
must be brought to judgement. If he abuses his
brother he must answer for it to the court...
Of course, there is a consciousness here of opposing versions; this
goes beyond the example of Jeremiah, giving a linguistically distinct
but substantively identical version to the original. But the version
given here is offered not as a better, or privileged, interpretation: it is

130
presented rather as the original meaning, not as interpretation at all.
Despite the affinity, which Daube has noted, 0 with a rabbinic form of
argument, "the tone is not academic but final, prophetic, maybe
somewhat defiant. Nor is there any reasoning. The correct attitude is
simply stated." 21 Nor is there conceived to be any conflict with the
existing law; rather, Jesus claims to provide a more complete version
of it.2 2 By implication, a prophet-like-Moses can indeed add to the
law,2 3 just as Moses did himself in the valedictory addresses which
make up much of the normative material of Deuteronomy, and just as
the Teacher of Righteousness did in formulating the serakbim at
Qumran. But in making such use of the prophetic power, we may
note, neither Moses nor the Teacher of Righteousness claimed to be
an escbatologicalor messianic figure.
We may contrast with the Sermon an incident where Jesus
does appear as engaged in debating rival interpretations. In Matthew's
version (12:9-14):
He went onto another place and entered their
synagogue. A man was there with a withered arm,
and they asked Jesus, "Is it permitted to heal on the
Sabbath?" (They wanted to frame a charge against
him.) But he said to them, "Suppose you had one
sheep which fell into a ditch on the Sabbath; is there
one of you who would not catch hold of it and lift it
out? And surely a man is worth far more than a
sheep! It is therefore permitted to do good on the
Sabbath." Turning to the man he said, "Stretch out
your arm." He stretched it out, and it was made
sound again like the other. But the Pharisees, on
leaving the synagogue, laid a plot to do away with
him.
Here, Jesus engages in elaborate argument - including a kal vabomer
(an a fortioriinference) - in justification of his position. He does not
claim his view to be self-evident, the result of either prophetic
reformulation or change. And indeed, we know that comparable
matters had for some time been debated. At Qumran, there were rules
which prohibited, on the Sabbath, both the lifting of an animal out of
a ditch, and even the saving of a man drowning in a pit or water hole,
through the use of a rope or other instruments. 24 The kal vahomer of
Jesus would therefore not have been self-evident. The legal
interpretation of the situation was, at the very least, controversial.
C. Jesus as Deviator from the Law
Elsewhere, Jesus' teaching and authority seem of a rather

131
different nature. This is the Matthaean version of an incident
reproduced (with variations) in all three of the synoptic gospels
(Matthew 12:1-4; cf., Mark 2:23-26, Luke 6:1-4):
Once about that time Jesus went through the
cornfields on the Sabbath; and his disciples, feeling
hungry, began to pluck some ears of corn and eat
them. The Pharisees noticed this, and said to him,
"Look, your disciples are doing something which is
forbidden on the Sabbath." He answered, "Have you
not read what David did when he and his men where
hungry? He went into the House of God and ate the
sacred bread, though neither he nor his men had a
right to eat it, but only the priests."
The clear implication of the Pharisees' question is that, according to
Pharisaic law at the time, such Sabbath gleaning was not permitted.
Jesus replies by citing a precedent: that of David (before he became
king), who ate and allowed his soldiers to eat the bread of the temple,
even though, according to the law, it was reserved for the priests. The
force of the precedent, according to Jesus' argument, derives from the
analogous justifications in the two cases: David allowed it because his
soldiers were hungry; the disciples are doing it for the same reason,
25
they are hungry.
Jesus is not here claiming to set a precedent, that it will
always be permissible to pluck ears of corn on Shabbat. Nor is he even
offering a rival interpretation of the law (as in the dispute over
sabbath healing): that it is permitted to pluck ears of corn on Sabbath,
contrary to the Pharisaic interpretation. Rather, Jesus here claims an
authority comparable to that of David, to suspend the law on a
particular occasion.
A second example of this suspensory power might be
considered a little trivial. As the story of the New Testament reaches its
climax, Jesus travels to Jerusalem for the Passover (Matthew 21:1-5):
They were now nearing Jerusalem; and when they
reached Bethphage at the Mount of Olives, Jesus
sent two disciples with these instructions: "Go to the
village opposite, where you will at once find a
donkey tethered with her foal beside her; untie
them, and bring them to me. If anyone speaks to
you, say, 'Our master needs them'; and he will let
you take them at once." This was to fulfill the
prophecy which says,2 6 "Tell the daughter of Zion,
'Here is your King, who comes to you in gentleness,

132
 riding on an ass, riding on the foal of a beast of
burden.' "
How can the disciples just go and take someone's ass? It is private
property. And the three synoptic gospels show differing degrees of
embarrassment or concern about this apparent breach of the law. Jesus
is asking his disciples to steal, in order to enable him to enter
Jerusalem in this way, and thereby to fulfill the prophecy. Here, in
Matthew, Jesus anticipates that the owner will consent, once the
particular need is pointed out. In Mark, this argument is elaborated:
the disciples are to promise to return the animal without delay. Mark
(uniquely) then goes on to record an actual challenge by "some
bystanders," who, on receiving this assurance, allow the disciples to
proceed. 7 But in Luke, which on this occasion has claims to be the
oldest of the traditions, Jesus simply says: If anyone asks you, just say
"the Lord has need of it."
In rabbinic terms, this amounts to tsorekb basba'ab, the
needs of the hour. Again here, there is no claim either to create a
precedent or to adopt a new interpretation of the law; rather, we have
a claim of authority to suspend the law on one particular occasion, a
29
purely ad hoc measure. 28 Such an authority to authorize a deviation
is the principal theme of the rabbinic exegesis of the prophet-like-
Moses passage ( V. C, infra).
Not all the claims of Jesus to deviate from the law follow this
moderate conception of the authority of the prophet- like-Moses. There
are other sources where more radical claims are made, not merely to
authorize suspension of the law on an ad hoc basis, but to amend it in
perpetuity, and even to replace the old covenant with a new one in
which, for example, circumcision would no longer be required of
converts. 30 We have seen how such a claim, still made in the name of
the prophet-like-Moses, was associated at Qumran with messianic and
eschatological expectations (section III, supra). Recall also the
temporal limitation of Jesus' affirmation of the Law in the Sermon on
the Mount: "so long as heaven and earth endure," i.e., until the
escbaton. John understands the prophet- like-Moses model in a similar
way,3' and Peter, as recorded in Acts 3:22-23, explicitly uses
Deuteronomy 18 as a proof text in preaching the second coming of
Jesus (see further, infra, section VD). Small wonder that this proved
disturbing to the rabbis.

V The Early Rabbinic Sources

A. The Rabbinic Appropriation of the Prophetic Model

The Rabbis located prophetic authority within a history of

133
tradition which commenced with Moses and ended with themselves.
As the famous Mishnah Avot 1:1 puts it:
Moses received the law from Sinai and committed it
to Joshua and Joshua to the elders, and the elders to
the prophets, and the prophets committed it to the
men of the great synagogue...
There was thus no antithesis or conflict between law and prophecy;
between the rabbi on the one hand and the prophet on the other.
Prophecy itself was claimed to have ceased, but prophetic authority,
itself inherited from Moses, was conceived to have been handed on to
the rabbis. And while the prophetic medium of revelation was, for the
most part, replaced by another - the interpretative, argumentative
mode of the rabbis, as developed in the Oral Law - we can still trace
within the rabbinic literature a continuation of those functions in
relation to the law which originated in the prophet-like-Moses
tradition. I shall discuss the ways in which the rabbis appropriated
these particular aspects of prophetic authority.
B. Mishnah as Restatement of Law
The Mishnah is itself to be understood in this context. Its
very title harks back to Deuteronomy, which, as suggested above, can
itself be regarded as a first example of the genre. According to the
theory of the Oral Law, the Mishnah was not a later invention; it was
given to Moses and handed down the chain of tradition. Just as
Deuteronomy was conceived to complete the written Torah, so the
Mishnah was taken (for the moment) to complete 33 the Oral law. In
both cases, "repetition" takes the form of a new formulation of rules
- even introducing some entirely new material - but nevertheless
the thematic links, and perhaps even more the repetition of the act of
enunciation, in the first case by the prophet Moses himself, in the
second by those who so prominently claimed to have inherited his
mantle, justified the conclusion that the second document was
essentially the completion of the first. The compiler of the Mishnah
was not, as we have seen, the first to make such a claim in the post-
biblical period. Exactly the same had been done by the Teacher of
Righteousness in the serekh of the Qumran community.
C. The Rabbinic Power of Suspension of the Law
The rabbinic exegesis of the prophet-like-Moses texts
explores the relationship of the various elements of the Biblical
tradition (the test of status by "signs," the authority over the law, and
the relation to false prophecy) in a manner such as to preserve the
force of the institution without opening the door to radical,

I
134
eschatological, and specifically christological interpretations. Consider
first Sanhedrin 90a:
R. Abbahu said in R. Johanan's name: in every matter
(bakol), if a prophet tells you to transgress (im
yomar lekha avur) the commands of the Torah, obey
him, with the exception of idolatry: should he even
cause the sun to stand still in the middle of the
heavens for you (as proof of divine inspiration), do
not harken to him.
Here a typical ot is mentioned as the means by which the prophet
seeks to prove his authority over the law. But the case falls squarely
within Deuteronomy 13: since he is telling you to commit idolatry
(the case envisaged in Deuteronomy 13), he is proved thereby to be a
navi sheker, despite the performance of the miracle. This apart, there
is a general authority of a prophet to command you to transgress,
la'avurdivre Torah. That sounds very radical. But a baraitaearlier on
the same page suggests an important distinction:
Our Rabbis taught: if one prophesies so as to
eradicate (la'akor) a law of the Torah, he is liable
(to death); partially to confirm and partially to annul
it, R. Shimon exempts him. 3 4 But as for idolatry, even
if he said, 'Serve it today and destroy it tomorrow,'
all declare him liable.
There is thus a distinction between a command to transgress a law
(avur) in R. Johanan's dictum, and an instruction to "eradicate"
(la'akor) a law. The former - ad hoc suspension - is (with the
exception of idolatry) within the authority of the prophet-like Moses;
the latter - a permanent annulment (a breach of bal tigra) - renders
35
the prophet guilty of false prophecy.
There is a second terminological distinction between these
two passages, which further supports this distinction. In the first
passage, the dictum of R. Johanan, it is significant that the language
here is im yomar lekba - supposing that the prophet speaks to his
audience directly, in the second person singular. Thus the text
contemplates direct communication on a particular occasion. He is
not making a general pronouncement; he is merely suspending the
law on this particular occasion and for those whom he addresses. The
second text lacks this direct speech audience. It contemplates a
prophecy permanently to uproot a law of the Torah, directed to the
people generally.
Without more, this argument might appear to hang on two
relatively arbitrary linguistic choices. But support comes from a third

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passage, in Yevamot. This is an exegesis of the Biblical phrase, elav
tisbme'un, which is used to express the obligation of the Israelites to
obey the prophet-like Moses (Yevamot 90b, Sifre ad Deuteronomy
18:15):
Come and hear: unto him ye shall harken, even if he
tells you 3 6 "Transgress (avur) any of all the
commandments of the Torah" as in the case, for
instance, of Elijah on Mount Carmel, 37 obey him in
every respect in accordance with the needs of the
hour.
The example shows clearly that the prophet-like-Moses tradition is
understood as conferring an authority to suspend the law in particular
cases. Elijah authorized his followers to sacrifice on Mount Carmel at a
time when, at least according to later tradition, the cult had already
been centralized. According to tradition, he departed from the law.
Why? In passages which go into greater detail, the argument is put: if
the followers hadn't been allowed to sacrifice to our God there, on
Mount Carmel, they would have adopted idolatry, and sacrificed to
alien pagan gods there. The passage then continues: hakol lefi sba'ab,
everything depends upon the circumstances of the time. But if the
time is right and the prophet authorizes the suspension, shema lo, you
must obey him.
D. Restriction of the Tradition
The rabbis both appropriated and restricted the tradition of
the prophet- like-Moses.3 8 The interpretation which cited Elijah as an
example of the authority conferred in Deuteronomy 18 became the
basis of a rabbinic power of legislation in emergency situations.40
Appropriation was facilitated by an interpretation, that the prophet
does not have to perform miracles in proof of his status provided that
he is mumbeb lekba sbehu tsadik gamur,4 1 publicly known to be
righteous. The principle was adopted that eyn navi rashailahadosh od
davar me'ata: a prophet has no greater power to innovate than a
rabbi, 42 and this was graphically illustrated in a comment by
Maimonides:
Even if 1000 prophets like Elijah and Elisha take one
view, and 1001 rabbis take an opposite view, we
43
follow the majority.
To say that, however, seems at the same time to make a vital
concession: each prophet, though counted as no more than a single
rabbi, is at least counted as that. What would Rambam's view have
been had the numbers been reversed, had 1000 rabbis been opposed

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by 1001 prophets? On the face of it, the implication seems not to be
totally excluded, that majority opinion is not necessarily that of the
44
rabbinic authorities.
Some aspects of rabbinic restrictiveness of the "prophet-like-
Moses" tradition appear directly to allude to Christian concerns. The
baraita in Sanhedrin 90a records that if a prophet seeks "partially to
confirm and partially to annul (a law of the Torah), R. Simeon
exempts" (but by implication the majority condemn). From the
rabbinic standpoint, this could well be a description of the approach
of the Sermon on the Mount. Again, the phrase yakim lekba
(Deuteronomy 18:15) attracts a comment in Sifre (ad loc.) that this
means velo lagoyim: a "prophet-like-Moses" will minister to the Jews,
not the gentiles. This sounds very much like an argument designed to
rebut any suggestion that Jesus had fulfilled this role.
It is, in fact, possible to assemble an impressive list of
institutions where rabbinic law appears to have developed in response
to the growing influence of the Christian story. We might view in this
light rejection of the authority of the bat ko145 (contrast the role of
the pbbn ek tou ouranou on the occasions of the baptism and
transfiguration ofJesus); the rejection of miracles in proof of halakhic
propositions (as still attempted by R. Eliezer in the famous story of the
oven of Okhnai, the Babylonia Talmud, Bava Metsia 59b); the
rejection by the rabbis of testes singulares,which, I have argued, were
used in the New Testament in proof of the divinity of Jesus; 46 and
indeed the disappearance in Palestine (but not in Babylonia) of extra-
legal reasoning in judicial decision-making. 47
E. Historical Summary
We are now in a position to summarize the development of
the status of the "prophet-like-Moses" in relation to the law in both
Christian and Jewish sources. There existed both eschatological and
non-eschatological models of the "prophet-like-Moses" in the Second
Commonwealth period, with corresponding differences in relation to
the Law. The non-eschatological prophet was viewed in terms of the
sectarianism of the period: he could authorize individual actions
which suspended the Law, teach his sect his own interpretation of the
law, and judge individual cases against the Law. Of these three
functions, the first is directly and the third indirectly attested in the
rabbinic sources and the second is manifested at Qumran. Reflections
of all three are found in the New Testament, sometimes in the context
of the first phase of an overtly two-phase historical account in which
the historical Jesus represents the non-eschatological "prophet-like-
Moses" while the eschatological prophet, who will possess the power
to abrogate law - a model denied by the rabbis but anticipated in the

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Qumran Community Rule - is identified with the Jesus of the Second
Coming (Matthew, Acts). Ultimately, rabbinic Judaism decided that it
had had enough of the whole concept. The continuation of prophecy
was denied 48 and even the power of the prophet to suspend the law in
particular cases came to be transferred to the rabbinic law court itself.
Even the great Moses himself, the very source of the tradition ("There
has never yet risen in Israel a prophet-like-Moses" - Deuteronomy
34:10-12), came to lose his prophetic identification and became Moshe
Rabbenu. The tradition that an eschatological Elijah would come to
resolve outstanding doubts in the law survived, but on the whole
Judaism preferred to leave the question of the status of the law in the
eschatological age in respectful silence.

VI. The Trial ofJesus

I turn from the authority of the prophet over the law, to the
authority of the law over the prophet - specifically, to the vexed
question of the trial of Jesus. I offer what, to my knowledge, is a new
insight on the trial, and in the concluding section argue that there are
common underlying thought processes linking this theme to that
explored in the earlier sections of this paper.
A. The Difficulties Facing an Historical Account
Volumes have been written on the trial of Jesus. There are
many apparent anomalies in the accounts of the trial of Jesus and
49
many problems from the viewpoint of the legal historian.
The problems are twofold, literary and historical: on the one
hand, the gospel accounts themselves contain notable internal
discrepancies; on the other, the story they tell is significantly at odds
with contemporary law and practice, both Jewish and Roman.
As to the internal coherence of the gospels, just a few of
many discrepancies may be noted: 0
(1) The arrest: the synoptic gospels see the arrest as made by
an armed crowd sent out by the Jewish authorities (variously
described)" alone, while John writes that the arrest was carried out by
a cohort of Roman troops in company with "the officers from the chief
' 2
priests and the Pharisees."
(2) The charge: while the charge in the Jewish hearing is
ultimately blasphemy in Matthew 26:65 and Mark 14:64, in both
accounts the condemnation is followed immediately by a contemptu-
ous challenge to the prophetic status of Jesus: "Now, Messiah, if you
are a prophet, tell us who hit you" (Matthew 26:68), suggestive of an
account in which the charge had actually been false prophecy.5 3 No
charge is mentioned in either Luke or John.

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 (3) Time and place of the Jewish proceedings: Mark and
Matthew have two phases of procedure before the Jewish authorities:
at night, they led Jesus "to the high priest... And Peter had followed
him at a distance, right into the courtyard (auln) of the high priest
(Mark 14:53-55, suggestive that this is the private residence of
the High Priest; cf., Matthew 26:57-59); "And as soon as it was
morning the chief priests.., with the elders and scribes, and the
whole council (holon to sunedrion) held a consultation" (Mark 15:1,
cf., Matthew 27:1). In Luke it is stated explicitly that Jesus was taken at
night to "the high priest's house" (oikon, 22:54), but the questioning
does not occur then or there: "When day came... they led him away
to their council" (eis to sunedrion, 22:66).54 John has Jesus taken at
night,55 first to the father-in-law of Caiaphas, Annas (himself a high
priest), then to Caiaphas, then the following morning5 6 to the
praetorium.
(4) Identity of the body conducting the Jewish proceedings:
Mark stresses the involvement of "the whole council (bolon to
sunedrion)" at both stages of the Jewish proceeding, the morning
proceeding being conducted by "the chief priests, with the elders and
scribes, and the whole council" (15:1); Matthew fails to mention
either the scribes or the Sanhedrin in relation to the morning
proceeding (27:1); in Luke it is "the assembly of the elders of the
people [who] gathered together, both chief priests and scribes" and
who led Jesus to the Sanhedrin (22:26); John records no meeting of
the Sanhedrin, nor even the presence of other high priests, elders or
scribes at the interrogation by Annas.
(5) The high priest's question and Jesus' reaction: In Mark,
Jesus eventually responds to the question of the high priest: "Are you
the Christ, the Son of the Blessed?" with the words: "I am (ego eimi);
and you will see the Son of man seated at the right hand of Power, and
coming with the clouds of heaven," which is immediately interpreted
by the high priest as a confession of blasphemy (14:62-64); in
Matthew, the question is: "tell us if you are the Christ, the Son of
God," to which Jesus retorts "You have said so (su eipas). But I tell
you, hereafter you will see the Son of man seated at the right hand of
Power, and coming on the clouds of heaven" (26:63-66), but this is
interpreted as a confession, as in Mark; in Luke, the question to which
Jesus responds is: "Are you the Son of God, then?" (after a question
about "the Christ" is avoided) and he replies, without more: "You say
that I am" (humeis legete), again interpreted as a confession (22:70-
71); in John, there is no specific accusation: "The high priest then
questioned Jesus about his disciples and his teaching" and Jesus
replies that he has always preached publicly, and the question should
be posed of his audience (18:19-21).

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 (6) Did the Jews claim the right to exercise capital
jurisdiction? 7 John 18:31 has the Jews deny that they have jurisdiction
to condemn an accused to death: "It is not lawful for us to put any
man to death;" 5 8 Mark and Matthew; have the Sanhedrin effect just
such a condemnation (" 'What is your decision?' And they all
condemned him as deserving death" (katekrinan auton einai
enochon tbanatou - Mark 14:64); "'What is your judgment?' They
answered, 'He deserves death'" (hoi de apokrithentes eipan, enochos
thanatou estin - Matthew 26:66). Luke, though recording a
9
proceeding before the Sanhedrin, mentions no verdict given by it.5
(7) The charges before Pilate: these are not stated in Mark or
Matthew, but are left to be inferred from Pilate's question: "Are you
the King of the Jews?" (8, infra); following that, the accusers level
"many [unspecified] charges" (Mark 14:4, Matthew 26:13-14). In Luke,
we find a much more specific accusation: "We found this man
perverting our nation, and forbidding us to give tribute to Caesar, and
saying that he himself is Christ a king" (23:2), then (after the su
legeis) "He stirs up the people, teaching throughout all Judea, from
60
Galilee even to this place" (23:5). In John, "Pilate went out to them
and said, 'What accusation do you bring against this man?' They
answered him, 'If this man were not an evildoer (kakopoios), we
would not have handed him over'" (18:29-30), but this leads Pilate
eventually to put the "King of the Jews" question to Jesus (18:33).
(8) Pilate's question and Jesus' reaction: The pattern of
reluctance and ambiguous answer is followed also in the accounts of
the interrogation by Pilate. In all four gospels, the question posed is
"Are you the King of the Jews?" (Mark 15:2, Matthew 27:21, Luke 23:3,
John 18:33), but here the "you say so..." form of response (su legeis,
in all three), echoing that to the high priest in Matthew and Luke (V,
supra), and found here in all three Synoptics (but not in John, where
the answer is theologically puzzling to Pilate, leading him to the
question: "What is truth?") is not interpreted by the interrogator as a
confession, as is shown by the continuation of accusations (and Jesus'
silence in the face of them) and the nature of Pilate's response
(especially in Luke).61
(9) The attitude of Pilate: in both Luke and John, Pilate
explicitly seeks to exonerate Jesus: "And Pilate said to the chief priests
and the multitudes, 'I find no crime in this man' (Luke 23:4; cf, John
18:38, where the audience is "the Jews"), whereas in Mark and
Matthew the result of the interrogation is that Pilate "wondered"
(thaumazein, Mark 15:5, Matthew 16:14).
(10) Luke, uniquely, includes some form of hearing before
Herod Antipas (presumably in his capacity as tetrarch of Galilee).62
(11) The relations between the Jewish authorities and the

140
crowd: in Mark 15:11-15, it is "the chief priests [who] stirred up the
crowd to have him release for them Barab'bas instead," and Pilate,
"wishing to satisfy the crowd" (who are shouting: "Crucify him"),
accedes to their request. Matthew's account is similar: "Now the chief
priests and the elders persuaded the people to ask for Barab'bas and
destroy Jesus" (27:20). Luke, by contrast, has the leadership join in the
shout: "But they all ["the chief priests and the rulers and the people,"
23:13] cried out together, "Away with this man, and release to us
Barab'bas" (23:18). John does not mention "the crowd" at all; though
he refers on occasion to "the Jews," in context this means "the chief
priests and the officers," and it is they who shout "Crucify him, crucify
him!" (19:6).
Equally difficult is the relationship between the gospels and
contemporary law, both Jewish and Roman. As to the former, Kermode
63
summarizes some of the difficulties:
Many scholars accept that there could not have been
a night trial before the Sanhedrin; 64 that although it
is true that capital sentences had to be confirmed the
following morning, 65 this could not be done on a
feast day; that no accusation of blasphemy could
have succeeded on the evidence; 66 that even if it
had, the penalty would have been stoning and the
matter would not have gone before the Roman
governor.
Additional problems arise in relation to the reliance upon a
confession, 67 and perhaps also the absence of "forewarning."6
As for the relationship to Roman Law, the release of Barab'bas
is perhaps the most noted problem. 69 It is far from clear that a Roman
prefect (a lesser status than that of procurator)7o had the power to
pardon a convicted of a capital offence. Equally unclear is the extent
of his powers of delegation, both of investigative and police powers,
such as would be needed to make historical sense of the relations
between the Jewish and Roman authorities.7 1Nor, when it came to the
Roman hearing, is it clear whether there would have been a charge
under Roman criminal statutes (and, if so, which)72 or under the more
73
general procedure extra ordinem.
B. The Trial as a Literary Construction
An alternative approach to the trial narratives is to view them
not according to the criteria of history, but rather of literature as a
literary text constructed to allude to a wide variety of Old Testament
texts, with the theological purpose of showing that Jesus was himself
the fulfillment of prophecy.

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 There is no doubt that the Passion narratives contain an
immense amount of 74
Old Testament allusion. Kermode offers the
following catalogue:
The false witnesses at the Sanhedrin trial fulfill texts
in Psalms 35 and 109; the silence of Jesus before his
accusers fulfills Psalm 38 ("I behave like a man who
cannot hear and whose tongue offers no defence,"
here assimilated to the "malicious witnesses...
question me on matters of which I know nothing" of
Psalm 35) and from the Suffering Servant passage in
Isaiah 35 ("He was afflicted, he submitted to be
struck down and did not open his mouth"). The
spitting and buffeting are related to a whole cento of
texts; the covering of the face has been traced to a
misunderstanding of another Suffering Servant verse
(53:3). Matthew omits it, Luke adds a bit of narrative
to explain it. The blows of the servants fulfill Isaiah
50:6. As to the Crucifixion, Mark "contents itself with
portraying the picture of the crucified in a few verses
according to the 'Passion Testimonies.' " Mark has
wine mingled with myrrh, from Proverbs 31;
Matthew, reworking him, remembers Psalm 69 and
substitutes gall for myrrh. The division of garments
fulfills Psalm 22; the eclipse, the last words, the
vinegar and the death cry all have Old Testament
sources. This list could be much longer...
Among theologians, however, one text has enjoyed primacy as the
model for the trial and death of Jesus: the Suffering Servant song in
Isaiah 53.75 Lane's commentary on Mark, for example, finds in Isaiah
53:4-12 "an account of obedient suffering, expressed by the sustaining
of mockery, by silence before accusers, by forgiveness, by intercession
for the many, by burial with the condemned.. . "76 But the Suffering
Servant passage in Isaiah is notoriously difficult. The establishment of
the Hebrew text is not without its difficulties, and it is virtually
impossible for a translator - particularly a Christian translator - to
approach it entirely independently of its christological use. 77 Take the
passage from Lane, here quoted. The terms "accusers" and "burial"
suggest trial on the one hand, execution on the other. But neither
element is clearly present in Isaiah. 78 Indeed, it is quite possible to
read the Suffering Servant passage as the song of a servant who was
oppressed but saved, and who did not suffer death.79 A comparison of
the New English Bible with older translations80 is instructive. The
Servant is certainly threatened with death, but in the event the Lord

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"healed him who had made himself a sacrifice for sin; so shall he
enjoy long life and see his children's children" (Isaiah 53:10). Indeed,
Lane himself comments that "Judaism was totally unprepared for a
suffering and crucified Messiah." 81 However, the theme of the
threatened servant, who is prepared to sacrifice himself, was well-
known in Judaism: as in the story of Isaac. The Suffering Servant
certainly contributes to the literary construction of the Passion, but its
contribution is theological (vicarious atonement) rather than narrative
(trial, death, and resurrection). We may outline the following
combination of major themes which contribute to the Passion: (1) A
narrative of an obedient servant saved by God (Isaac); (2) A narrative
of a prophet threatened in a trial but (again) saved (Jeremiah);82 (3) A
liturgical song of an oppressed servant who suffers physical
oppression to atone for the guilt of others, but is saved by God and
healed (Isaiah). The first two of these are narrative sources, the third
poetic. I suggest that this is significant in terms of the types and
history of "prophetic fulfillment." Consider the following analysis of
Matthew's story of the thirty pieces of silver, which the chief priests
83
offer Judas to betray Jesus:
Matthew invented this sum of money, but for him
invention almost always follows a set form. His view
of what might have happened is under the control of
his respect for the Old Testament repertoire of
Messianic prophecies and figures; so he finds his
thirty pieces of silver in Zechariah (11:12): "They
weighed for my price 30 pieces of silver." There is
no evident consonance between the context of this
passage in Zechariah and Matthew's new use of it.
And although this silver sounds a plausible price -
in the ordinary way passes the test of narrative
plausibility - it is important to see that it belongs,
in a sense, to another plot altogether, a plot founded
on occult connections between the new narrative
and many old ones, a plot not at all dependent on
sequentiality or plausibility. There may be a
constellation of texts, of which the new one is the
essential illuminant, that which confers an ultimate,
unsuspected meaning. But since this is a narrative,
such consonances have to be inserted into the
syntagmatic flow.
Kermode argues that it is because of this lack of "syntagmatic flow"
that "Matthew finds himself embarked upon a sub-plot;"''
He remembers two texts in Jeremiah: in the first the

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 prophet buys a flask at the potter's house and breaks
it at the burial ground, as a sign that the kings have
filled Jerusalem with innocent blood; in the second
he buys a field for 17 shekels of silver; Matthew's
Judas confesses that he has betrayed the blood of the
innocent, and casts his silver into the Temple (this is
from Zachariah's "I cast them into the Lord's
house"). Since such money could not be received in
the Temple, the chief priests use it to purchase the
potter's field to bury strangers in.
Matthew proceeds to build his "sub-plot" on these texts, and leads up
to an explicit "fulfillment citation" at Matthew 27:9-10. The
importance of this analysis resides in the fact that the fulfillment
citation (to a narrative incident in Jeremiah) is made at Kermode's
level of sub-plot; the mere literary allusion, to Zechariah's 30 shekels,
with its lack of narrative analogy, was not regarded as sufficient to
justify a fulfillment citation.
In fact, we need not rely upon a literary analogy for the
source of the vicarious atonement theme within the Passion narrative.
Von Rad sees the Servant himself as embodying the prophet-like-
Moses tradition. For Moses himself not only mediates the Law but also,
as Von Rad points out, "suffers... and at the last dies vicariously for
the sins of his people."85 There is an element of christological
reading-back here too. Nevertheless, the Moses narrative does contain
some elements which may have contributed not only to the Servant
Song but also to the account of the Passion. Moses tells the people
that it is "because of you" (lema'anbem) that God had refused him
entry to the promised (Deuteronomy 3:2; cf, 4:21), which perhaps
suggests vicarious guilt8 6 if not necessarily vicarious atonement; he
stresses the forty days and nights he spent without food or water in
interceding for the Israelites (Deuteronomy 9:18; cf, v.25); but the
account of Moses's passing (Deuteronomy 34) is narrated entirely
without theological overtones.
But even if the narratives concerning Moses are taken into
account within the construction of the Passion narratives, we still lack
a basis for the judicial process which forms so prominent a part of the
gospel stories.
C. The Trial of Jesus and the Trial of Jeremiah
The trial of Jeremiah supplies that basis.87 It provides a model
for an entire narrative segment of the Passion narrative, rather than a
source of literary allusion for some individual elements, phrases, etc.
This is the account of Jeremiah's trial, according to the
translation of the Revised Standard Version. I have divided it into

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segments, for ease of analysis.
A: (26:1) In the beginning of the reign of Jehoi'akim the son
of Josi'ah, king of Judah, this word came from the Lord, (2)
"Thus says the Lord: Stand in the court of the Lord's house,
and speak to all the cities of Judah which come to worship
in the house of the Lord all the words that I command you
to speak to them; do not hold back a word.
B: (3) It may be they will listen, and every one turn from his
evil way, that I may repent of the evil which I intend to do
to them because of their evil doings.
C: (4) You shall say to them, 'Thus says the Lord: "If you will
not listen to me, to walk in my law which I have set before
you, (5) and to heed the words of my servants the
prophets whom I send to you urgently, though you have
not heeded, (6) then I will make this house like Shiloh,
and I will make this city a curse for all the nations of the
earth."' (7) The priests and the prophets and all the
people heard Jeremiah speaking these words in the house
of the Lord.
D: (8) And when Jeremiah had finished speaking all that the
Lord had commanded him to speak to all the people, then
the priests and the prophets and all the people laid hold of
him, saying, "You shall die! (9) Why have you prophesied
in the name of the Lord, saying, 'This house shall be like
Shiloh, and this city shall be desolate, without inhabitant?'"
E: And all the people gathered about Jeremiah in the house
of the Lord.
F: (10) When the princes of Judah heard these things, they
came up from the king's house to the house of the Lord
and took their seat in the entry of the New Gate of the
house of the Lord.
G: (11) Then the priests and the prophets said to the princes
and to all the people, "This man deserves the sentence of
death, because he has prophesied against this city, as you
have heard with your own ears."
H: (12) Then Jeremiah spoke to all the princes and all the
people, saying, "The Lord sent me to prophesy against this
house and this city all the words you have heard. (13) Now
therefore amend your ways and your doings, and obey the
voice of the Lord your God, and the Lord will repent of the

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 evil which he has pronounced against you. (14) But as for
me, behold, I am in your hands. Do with me as seems
good and right to you. (15) Only know for certain that if
you put me to death, you will bring innocent blood upon
yourselves and upon this city and its inhabitants, for in
truth the Lord sent me to you to speak all these words in
your ears."
I: (16) Then the princes and all the people said to the priests
and the prophets, "This man does not deserve the
sentence of death, for he has spoken to us in the name of
the Lord our God."
J: (17) And certain of the elders of the land arose and spoke
to all the assembled people, saying, (18) "Micah of
Mo'resheth prophesied in the days of Hezeki'ah king of
Judah, and said to all the people of Judah: 'Thus says the
Lord of hosts, Zion shall be plowed as a field; Jerusalem
shall become a heap of ruins, and the mountain of the
house a wooded height.' (19) Did'Hezeki'ah king ofJudah
and all Judah put him to death? Did he not fear the Lord
and entreat the favor of the Lord, and did not the Lord
repent of the evil which he had pronounced against them?
But we are about to bring great evil upon ourselves."
K: (20) There was another man who prophesied in the name
of the Lord, Uri'ah the son of Shemai'ah from Kir'iath-
je'arim. He prophesied against this city and against this
land in words like those of Jeremiah. (21) And when King
Jehoi'akim, with-all his warriors and all the princes, heard
his words, the king sought to put him to death; but when
Uri'ah heard of it, he was afraid and fled and escaped to
Egypt. (22) Then King Jehoi'akim sent to Egypt certain
men, Elna'than the son of Achbor and others with him,
L: (23) and they fetched Uri'ah from Egypt and brought him
to King Jehoi'akim, who slew him with the sword and cast
his dead body into the burial place of the common people.
M: (24) But the hand of Ahi'kam the son of Shaphan was with
Jeremiah so that he was not given over to the people to be
put to death.
Most of the above segments find significant reflections in the gospel
accounts of the trial of Jesus.88 Thus:
9
a: Jeremiah, like Jesus, preaches in the court of the Temple;8

146
 b: He does so following a divine mission, but with no
guarantee of success; 90
c: He prophesies the destruction of the temple; 9 1
92 93
d: There is priestly involvement in arresting and charging
the prophet alleged to be prophesying falsely;
e: There is some form of hearing in the Temple itself (i.e.
within priestly jurisdiction);94
f: The secular authority then convenes a court; 9
g: The priests take the lead in framing the accusation before
96
the secular authority;
h: The accused prophet defends himself, reasserting the
genuineness of his mission;
i: The secular rulers tell the priests that they have decided to
97
exonerate the prophet;
j: A parallel is cited from the prophetic mission of Micah;
k: Comparison is made with the fate of another
accused;98
1: The latter suffers execution by the secular authority; 99
m: Jeremiah escapes this fate, but stress is placed upon the
potential role of the people as responsible for the life-or-
death decision. 100
Whether Jeremiah is presented as coming like a prophet-like-Moses is
not clear; certainly, he comes to command obedience to God's
(existing) law, and obedience to God's prophets, on pain of divine
punishment, is explicitly enjoined (A-C). It is in D-I that the most
striking parallels occur. For we find here, in the trial of Jeremiah, the
same antithetical roles of priestly and secular authority as in the case
of Jesus. Indeed, the story of Jeremiah suggests sources for what
historians regard as two of the most perplexing features of the trial of
Jesus, namely the dual procedure (E-F), and the privilegium paschale.
Jeremiah's fate, in escaping condemnation, is compared to that of
another accused prophet, who was not so fortunate, just as the fate of
Jesus comes to be compared with (indeed, bound up with) that of
Barab'bas.
There is, of course, one difference between the trial of
Jeremiah and that of Jesus. It is clear that the charge against Jeremiah
was indeed false prophecy, that he claimed falsely to be speaking in
the name of God. The explicit claims of the gospels are that the

I
147
charge against Jesus was blasphemy. We have, however, seen that the
gospels themselves do contain hints of a charge of false prophecy, and
in narrative terms, a charge of false prophecy makes a great deal of
sense. Such a charge would give a far greater narrative coherence to
the gospels as a whole: Jesus, who in his ministry was seen to
exemplify the prophet-like-Moses (and who explicitly referred to the
suspensory power in defending his authorization of Sabbath
gleaning), is charged with having crossed that boundary with false
prophecy to which the Deuteronomic text is so sensitive. But such a
narrative would not, as Brandon has pointed out, 10 1 be coherent with
the fact of crucifixion. 10 2 A possible explanation for the choice of
03
"blasphemy" is offered below. 1
D. Moses, Jeremiah, Jesus: a Living Tradition
The relations between the three figures of Moses, Jeremiah,
and Jesus may be summarized in terms of family resemblance. There
is a set of characteristics: each figure partakes of a considerable
number of them, though not of all. Thus, Moses performs miracles in
proof of his authority, he is regarded as a prophet, he achieves the
liberation of the Israelites from Egypt, he gives the law, he breaks the
first set of tablets and has to obtain another. Jeremiah is also a
prophet, he is associated with the writing of divine revelation in the
form of a book, 10 4 his first scroll is destroyed and has to be
rewritten; 105 he offers authoritative reformulations of the law, he even
offers a "New Covenant," he preaches in the Temple against the very
institution of the Temple 10 6 and in language evocative of the authority
of a prophet-like-Moses, 10 7 and he is put on trial. Indeed, it has been
suggested that Jeremiah may have consciously seen himself as the
referent of the (then, perhaps, recently discovered) text of
Deuteronomy 18:15.108 Jesus performs miracles, he preaches in the
Temple against at least some of the institutions of the Temple, he is
seen by some as a liberation leader against the Romans, he proclaims
authoritative new versions of the law, he suspends the law on
particular occasions (in line with the rabbinic understanding of the
authority of the prophet-like-Moses), he is accused in some accounts
of false prophecy, he is put on trial.
Many details could be added: the infant escape of both Moses
and Jesus from genocidal decrees, the miraculous feeding of the
people by both Moses (the procurement of the manna) and Jesus,'0 9
the reluctance of Jesus as compared to that of Moses, the opposition to
both Jesus and Jeremiah from members of their own families," 0 the
walking on the water as compared with the parting of the Red Sea, the
suffering of Jesus compared with the denial of access to the Promised
Land to Moses. But we should have some methodological criterion of

148
the significance of such parallels, some dividing line - as suggested
above - between what might reasonably have been intended to be
communicated to whom. On this basis, it is perhaps important to
distinguish the main narrative line from, on the one hand, narrative
details, and on the other, theological interpretations of those narrative
details. The synoptic gospels, at least, are not predominantly written in
theological or even sermonic language. They evoke, in their style, the
narratives of Genesis rather than the prophets or wisdom literature.
Yet undoubtedly, some audiences would have existed who would
have "read" the narratives in terms of a more sophisticated theological
interpretation, for whom, no doubt, vicarious suffering and vicarious
atonement would be more important than the details of who did what.
And even to those for whom a straight narrative line was the most
important factor, there is no such thing as fact or history without
implications. To even the simplest Christian audience of the narrative
line, the story is being told of the Lord Jesus, the Messiah, the Christ.
That he should have perished in circumstances of such shame and
disgrace required, above all, explanation and justification. There could
be no language of explanation and justification other than that of the
religious tradition itself.
Nor is that religious tradition silent on the cycle of
identification here suggested. In Matthew 16:13, we find an historical
claim that Jesus was identified by some with Jeremiah:
Now when Jesus came into the district of Caesare'a
Philip'pi, he asked his disciples, "Who do men say
that the Son of man is?" (16:14) And they said,
"Some say John the Baptist, others say Eli'jah, and
others Jeremiah or one of the prophets."
We have seen that Elijah was explicitly identified with the prophet-
like-Moses tradition by the rabbis.
In Acts 7, we have an account of Stephen's defense in his
trial. In it, he provides an account of Biblical history designed to show
how it leads coherently to Christianity. His account of Moses selects
from the law the prophecy of a future prophet-like-Moses (as well as
stressing other narrative details where parallels could be drawn):
This Moses whom they refused, saying, 'Who made
you a ruler and a judge?' God sent as both ruler and
deliverer by the hand of the angel that appeared to
him in the bush. (7:36) He led them out, having
performed wonders and signs in Egypt and at the
Red Sea, and in the wilderness for forty years. (7:37)
This is the Moses who said to the Israelites, 'God
will raise up for you a prophet from your brethren as

149
 he raised me up.' (7:38) This is he who was in the
congregation in the wilderness with the angel who
spoke to him at Mount Sinai, and with our fathers;
and he received living oracles to give to us. (7:39)
Our fathers refused to obey him, but thrust him
aside, and in their hearts they turned to Egypt,
(7:40) saying to Aaron, 'Make for us gods to go
before us; as for this Moses who led us out from the
land of Egypt, we do not know what has become of
him.' (7:41) And they made a calf in those days, and
offered a sacrifice to the idol and rejoiced in the
works of their hands. (7:42) But God turned and
gave them over to worship the host of heaven, as it is
written in the book of the prophets.
Elsewhere, too, Acts stresses the parallel with the prophet-
like-Moses tradition. Peter proclaims:
... and now, brethren, I know that you acted in
ignorance, as did also your rulers. (3:17) But what
God foretold by the mouth of all the prophets, that
his Christ should suffer, he thus fulfilled (18) ...
Moses said, "the Lord God will raise up for you a
prophet from your brethren as he raised me up. You
shall listen to him in whatever he tells you. And it
shall be that every soul that does not listen to that
prophet shall be destroyed from the people." (23-
24) ... And all the prophets who have spoken, from
Samuel and those who came afterwards, also
proclaimed these days.
What is noticeable about this version is not only the selection made
from Deuteronomy 18, one which not only explicitly identifies Jesus
with the prophet-like-Moses who will be sent in later days, but also
the stress on his authority. That these two claims should be linked,
with this emphasis, lends great credence to the view that there was a
real authority dispute regarding Jesus even during his lifetime.
The Slavonic Josephus,111 too, provides an account of popular
views regarding the status of Jesus: "Some said of him 'our first
lawgiver is risen from the dead and hath performed many healings and
arts,' while others thought that he was sent from God.. ."
E. History and Literature
I do not suggest that the whole New Testament account of
the life and death of Jesus was a literary fiction, invented from nothing
other than reflection upon Old Testament narratives. We do have

150
some external sources, which may aid us in reconstructing an
historical baseline. Notable is the statement of the Roman historian
Tacitus, Annals 15.44,112 in describing the persecution of the Christians
at Rome under Nero, that:
Auctor nominis eius Christus Tiberio imperitanteper
procuratorem Pontium Pilatum supplicio adfectus
erat ("Christus, the founder of the name, had
undergone the death penalty in the reign of
Tiberius, by sentence of the procurator Pontius
Pilatus").
The Antiquities of Josephus (XVIII.63-64) contains a passage about
Jesus, the so-called testimonium flavianum, which at least attests the
historicity of Jesus, even if its christological claims may be attributed
to other hands." 3 Then there is a remarkable passage in the Slavonic
version of Josephus' Jewish War" 4 which, though in some respects
clearly influenced by Christian accounts,," provides a sophisticated
political account of the respective motivations of the parties: 116
And many of the multitude followed after him and
hearkened to his teaching; and many souls were in
commotion, thinking that thereby the Jewish tribes
might free themselves from Roman hands... And
there assembled unto him of ministers one hundred
and fifty, and a multitude of the people. Now...
when they had made known to him their will, that
he should enter the city and cut down the Roman
troops and Pilate... he disdained us not [variant:
but he heeded not]. And when thereafter knowledge
of it came to the Jewish leaders, they assembled
together with the high-priest and spake: "We are
powerless and (too) weak to withstand the Romans.
Seeing, moreover, that the bow is bent, we will go
and communicate to Pilate what we have heard, and
we shall be clear of trouble, lest he hear (it) from
others, and we be robbed of our substance and
ourselves slaughtered and our children scattered."
And they went and communicated (it) to Pilate. And
he sent and had many of the multitude slain. And he
had that Wonder-Worker brought up, and after
instituting an inquiry concerning him, he pro-
nounced judgement.
Jesus was incited by others to lead a rebellion, the priesthood heard of
it, feared it would fail with dire consequences to both the people and

151
themselves, and decided to denounce Jesus to Pilate before the
insurrection could begin, in order to avoid worse consequences.
And finally there are the controversial talmudic passages,
some of which were censored since the Basle edition in the 16th
century, not all of which may refer to Jesus," 7 but of which at least
one, that in Sanhedrin 43a, probably does." 8
These sources, taken together and with what is common to
the gospel accounts, seem to me to establish the following: (1) There
was an historical Jesus. (2) He had a considerable popular following
amongst the Jews, who interpreted him in various theological ways,
including the use of the "prophet-like-Moses" model. (3) He was in
opposition to the Jewish establishment (especially the Temple
priesthood) and was so perceived. (4) He was seen as a potential
threat to stability by the Romans. (5) He was executed by the Romans.
But then, after Jesus' death, the story had first to be
understood and then told. The details could not be superfluous or
arbitrary: that was not the mode of sacred texts. The details, including
the two-stage trial, were taken from the Old Testament. We cannot, of
course, exclude the possibility that there was an inquiry, or trial, of
some kind, but we have no reliable evidence of it. What we do have is
evidence of how the events (whatever they were) were understood
and communicated. It was in such a way as to stress their theological
significance.
The blasphemy charge, in particular, highlights the opportu-
nities for combining historical and narrative accounts. On the one
hand, the traditional Jewish (or at least Biblical) understanding of
blasphemy as an offense against God and the king may have been
evoked, in its bipolarity, by the combined offense which Jesus
apparently gave to the high priesthood on the one hand, and the
Roman administration on the other. True enough, the purported
dialogue in the Synoptics of the interviews with the high priesthood,
in the context of which the blasphemy charge was pronounced, does
not suggest "cursing" either God or the king, even if the parallel
accusation of setting oneself up as a "King of the Jews" (what
according to the Slavonic Josephus Jesus was certainly encouraged by
some of his contemporaries to do) could be construed as a "cursing"
of the secular authority. Yet even without importing into the narrative
of the trial of Jesus the literal particularities of the Old Testament
conception of blasphemy, it does seem that the choice of blasphemy
may have been informed not just by historical events but by
connotations of the blasphemy offense, as indicated elsewhere in
Biblical literature. For there are three Biblical narratives in which
blasphemy is evoked, and it is possible to read connotations of all of
them [with, perhaps, differing degree of conviction] into the choice

152
made by the synoptic writers at this particular point in the narrative.
By far the most significant of the three, for present purposes,
is the accusation made by Jezebel against Naboth (I Kings 21). Here,
Naboth is entirely innocent; all he seeks to do is to preserve his
"vineyard," "the inheritance of my fathers," against the King Ahab's
intimidatory offer to buy it. The accusation of Naboth stands as a
paradigm case of false accusation, as is shown also by the manner and
place of its citation in Sanhedrin 29a;" 9 it is pitched in terms directly
evoking Exodus 22:28: "Naboth cursed God and the King." Whether
there is more to the parallel than this - as might be argued, perhaps,
from the presence in the Old Testament narrative of the "vineyard"
theme [cf., Isaiah 5:1-7] - we need not here investigate. Suffice it to
say that the theme of the Jewish establishment falsely accusing, and
procuring2 0 the death of, a wholly innocent citizen, who sought only
to preserve the inheritance of his fathers, is well established, and that
in that theme blasphemy was the charge actually used. And there may
be more. In the Talmud, Naboth's death is not the end of his story: he
lives on in spirit form, and is able to participate in the ultimate divine
judgment on Ahab, and indeed in other revelations and mani-
festations.'
The same pattern of procuring witnesses to a false accusation
is found in the trial of Stephen in Acts:' 22
Then some of those who belonged to the synagogue
of the Freedmen (as it was called), and of the
Cyre'nians, and of the Alexandrians, and of those
from Cili'cia and Asia, arose and disputed with
Stephen. But they could not withstand the wisdom
and the Spirit with which he spoke. Then they
secretly instigated men, who said, "We have heard
him speak blasphemous words against Moses and
God." And they stirred up the people and the elders
and the scribes, and they came upon him and seized
him and brought him before the council, and set up
false witnesses who said, "This man never ceases to
speak words against this holy place and the law; for
we have heard him say that this Jesus of Nazareth
will destroy this place, and will change the customs
which Moses delivered to us."
A second narrative, that of the "blasphemer" in Leviticus 24,
might also contribute to the connotations, though here I believe any
literary connection is remote, a matter more of connotations possibly
to be read in by an audience than those sought to be conveyed by the
authors themselves. During the wandering in the wilderness, a quarrel

153
arose between "a man of Israel" and "an Israelite woman's son, whose
father was an Egyptian." The two quarreled, perhaps fought, and the
latter "blasphemed the Name, and cursed." The issue is presented as
an unclear one: "They put him in custody, until the will of the Lord
should be declared to them." Moses consults God, who pronounces a
verdict of death by stoning, and requires Moses to enact such a law for
the future. Why the matter required oracular decision is not made
clear: the recital of the pedigree of the defendant may well be
relevant. In wider narrative terms, however, the point of the story will
be understood as signifying the particular role of direct divine
decision in a charge of blasphemy, so that the choice of this charge by
the Synoptic writers may be taken to add further critical point to the
criticisms at the high priesthood for handing Jesus over to Pilate.
There is also a third narrative relating to blasphemy. Describing
the fright of the people in the wake of the activity by Tiglath-Pileser in
12 3
disciplining Samaria and Damascus after the Syro-Ephraimatic War,
he paints a narrative image of a people, who "will pass through the
land greatly distressed and hungry; and when they are hungry they
will be enraged and will curse their king and their God, and turn their
faces upward..." [Isaiah 8:21]. The vision is evocative of the
murmurings of the people against Moses during the period of the
wilderness (perhaps an evocation also of the context of the
blasphemer law of Leviticus 24), and it is clear that the "cursing" is
vain, desperate, uninformed. This is not, as in the case of Naboth, a
false accusation that someone blasphemed, but rather a prophecy that
people will blaspheme for no reason. As in the case of the blasphemer
in the desert, there is no prior reason for the offense, it arose in the
heat of the moment, in the heat of the desert.
When taken together, this literary corpus, when viewed in its
syntagmatic relations within the Old Testament, presents a kind of
transformation: from a case where someone is truly accused of having
factually blasphemed, and justifiably suffers death, though at the
hands of divine decision (Leviticus 24); to a case of a knowingly false
accusation of blasphemy, which results in death, brought about by the
agencies of the secular authority and its judicial system (Naboth); to a
fevered pronunciation of blasphemy, or the prophecy thereof, by
people who know no better (Isaiah). Is it too far-fetched to see in the
gospel accounts a further element in this line, one in which, though
the primary connotation is that of the Naboth story - the execution of
an innocent upon a false charge of blasphemy, there is also a
connotation now attached to the accusers themselves, one comparable
to that of Isaiah's prophecy regarding the actions of a people,
oppressed and frightened by the prospect of outside intervention,
who, in their own panic, blaspheme by [from the viewpoint of the

154
New Testament writers] the action which they take.

VII. On Prophecy and Analogy 124

My argument raises questions about the nature of prophecy

in the Judaeo-Christian tradition, and particularly about the notion of
fulfillment of prophecy which is so central to both Judaism and
Christianity. There is a tendency in secular discourse to regard the
prophetic function as something magical, something primitive,
something which we cannot quite take at face value: the prophet
writes or preaches a prediction that a certain event will happen in the
future; in the future that event quite unselfconsciously occurs; and
then the prophecy is taken to have been fulfilled. I do not believe that
this was the way fulfillment of prophecy was conceived to work.
Rather, it was open to a member of the community, having read or
heard a prophecy from an earlier era, to set about carrying it out
deliberately to imitate what has been written earlier on and then to
claim fulfillment of the prophecy. This was not conceived to be
cheating, since God would only permit such actions to be done and to
be recognised as a fulfillment if he really did intend the prophecy to
be fulfilled in that way.
There is, therefore, no embarrassment in the claim of the
gospels that Jesus performed certain actions (such as authorizing the
taking of the foal section IVC, supra) "in order that the prophecy of
... should be fulfilled." Perhaps it was this very phenomenon which
prompted what I see as a development from fulfillment of prophecies
at the level of narrative structure to fulfillment of literary analogies,
which call for more detailed knowledge of the sources, and which, as
we find them in the gospels, can rest upon allusion to a combination
125
of earlier sources.
Prophetic fulfillment, as here described, rests upon particular
conceptions of the nature of the language of revelation, and of the use
of analogy in ascertaining, indeed constructing, its meaning. Prophecy
therefore must take its place as part of a wider account of the
development of Jewish epistemology. 126 Within such a wider
enterprise, a developmental view of the forms of analogy may
contribute to our understanding of the process which led to the
complex of prophetic claims which characterize the gospels. The
distinction between narrative and literary analogy may be understood
within such a developmental account.

*Parts I-V of this paper were delivered as the Dorfler Memorial Lecture of the Leo Baeck
College, January 1989, and as the Louis Caplan Memorial Lecture (Council of Christians
and Jews and the Merseyside Jewish Representative Council), Liverpool, November 1989.
155
A more technical version of sections IIV has appeared in French "Jesus et Moise: le Statut
du Proph~te i l'6gard de laLoi," Revue historiquede droit franqais et 6tranger59 (1981),
341-360 and - more briefly in Italian - Atti del Secondo Congresso,F. Parente and D.
Piattelli eds. (Rome: Carucci, 1983), 95-100 (Associazione italiana per lo Studio del
Giudaismo, Testi e Studi 1). Versions of section 6 have been presented as a staff-student
seminar at Lancaster University, January 1991, and at the J. Reuben Clark Law School of
Brigham Young University (February 1992), the Jewish Studies Program of the University of
Virginia (March 1992), the Conference on Law and Rhetoric, Cardozo Law School (March
23rd 1992), The University of Judaism (April 1992), the University of California at Los
Angeles (April 1992), the University of Wisconsin Law School (April 1992) and the Sixth
Round Table on Law and Semiotics (May 1992). Several colleagues have commented
most helpfully on earlier drafts. I wish to thank, in particular, Jack Welch (BYU), Suzanne
Last Stone and Arthur Jacobson (Cardozo), Scott Bartchy (UCLA), and Richard Jacobson
(Wisconsin).
1. See Bernard S.Jackson, "Legalism," 30 Journalof Jewisb Studies 1 (1979).
2. Cf., Exodus 4:17, 10:1-2 for the use of otby Moses in seeking to persuade Pharaoh to
release the Israelites.
3. Cf., the tests stressed in Deuteronomy in distinguishing between true and false
prophets (section IID, infra).
4. Joseph Blenkinsopp, Wisdom and Law in the Old Testament (Oxford: Oxford
University Press, 1983), p. 96, suggests that the scroll found in the time of Josiah may
itself have been a "plant." On the uses of the sefer, see Bernard S. Jackson, "Ideas of Law
and Legal Administration: a. Semiotic Approach," The World of Ancient Israel:
Sociologica Anthropological and PoliticalPerspectives, RE. Clements, ed. (Cambridge:
Cambridge University Press, 1989), pp. 192-196.
5. This might appear to make too strong an historical claim as to the availability of the
Exodus formulation to Jeremiah. This is not the place to defend such a claim. Suffice it to
say that the discrepancy must have been available either to the redactor of Jeremiah or at
least to the final redactors of the Pentateuch, and in either event was allowed to stand.

6. On repetition in the Old Testament, see Robert Alter, The Art of Biblical Narrative
(London: George Allen and Unwin, 1981), ch. 5 ("The Techniques of Repetition").
7. The Babylonian Talmud, Sanhedrin 89a, attributed to Jehoshaphat, in debate with
Ahab.
8. A phrase to which later the rabbinic understanding of the institution was exegetically
attached - section V.C infra
9. The Babylonian Talmud, Sanhedrin 89b; see furtherJackson, "Jesus," supranote * at
352 n. 51.
10. Abraham is called a navi in Genesis 20:7.
11. 1 Kings 20:35-36. This, of the three examples, is the only one where the command of
the prophet was disobeyed; the threatened divine punishment (here, attack by a lion)
duly occurs.
12. See section V.C infra
13. On the relationship between otot and fulfillment of a davar, in the Old Testament
and later sources, see furtherJackson, "J6sus," supra note * at 347-349.
14. Id., at 349 n.40.

156
15. See furtherSuzanne Last Stone, "The Transformation of Prophecy," 4 Cardozo Studies
in Law and Literature 167 (1992).
16. The 1QS9:l1; seefurtherJackson, "Jesus," supranote * at 349 n.42.
17. F.F. Bruce, Biblical Exegesis in the Qumran Texts (London: The Tyndale Press, 1960),
p. 49; Geza Vermes, The DeadSea Scrolls (London: Collins, 1977), p. 185.
18. Geza Vermes, Jesus the Jew. A Historian'sReading of the Gospels (London: Collins
1973), p. 87ff.; seefurther,Jackson, "Jdsus," supranote *.
19. Other translations: "fulfill," (Greek: plaroun); see furtberJackson, "Legalism," supra
note 1 at 3f.
20. David Daube, The New Testament and RabbinicJudaism (London: Athlone Press,
1956, rep. New York: Arno, 1973), pp. 55-62.
21. Id., at 58.
22. Id, at 60.
23. Deuteronomy 13:1, Masoretic Text; see section I.D, supra
24. 1QS 11:13ff., 16ff.; see Lawrence H. Schiffman, The Halakbab at Qumran (Leiden: EJ.
Brill, 1975), pp. 121-128. Rabbinic law would regard desecration of the Sabbath in the
latter case as justified, in order to save life (pikuab nefesh). The incident concerning
Jesus, however, is not one involving any immediate threat to life.
25. The hunger of David's men occurs in all three versions, even though it is only in
Matthew that the parallel with the hunger of the disciples is stressed. If the justification
rested solely in the general authority of Jesus, as might appear from the claim that "the
Son of Man is sovereign over the Sabbath" (Matthew 12:8, Mark 2:28, Luke 6:5), there
would be no need for the stress on this special circumstance. In fact, there are clear
indications in all three synoptics that the sovereignty claim was not part of the original
story. In Matthew and Mark it forms the conclusion to further (and different) arguments;
in both Mark and Luke it is introduced by: "he also said to them" (kai elegen autois).
26. Zechariah 9:9.
27. Mark 11:1-7, clearly an artificial elaboration: there is no indication that the
"bystanders" (tines ton ekei bestekoton,v.5) were the owners of the animal.
28. A further example: the use by Jesus of the oil given him by the woman at Bethany
(Matthew 26:6-13, Mark 14:3-9, Luke 7:36-50, John 12:1-8); in Luke, the incident arises in
the context of a challenge to Jesus' prophetic status; see furtberJackson, "Jesus," supra
note * at 354.

29. Not to justify it expostfacto; though we encounter that, exceptionally, in the story of
the woman taken in adultery, which occurs only in a pericope attached to the Gospel of
John (7:53ff.). The prophet, generally speaking, does not function as a judge in the Bible.
We do have occasions when prophets intervene in individual cases of dispute, most
notably cases where they remind the king of the moral authority of the law that the king
runs the risk of overriding, like that of the prophet Nathan in relation to David. However,
forJohn, the authority ofJesus is conceived primarily as that of a king-messiah, including
judicial authority (5:22, t~n krisin pasan ded~ken t5 huib). The incorporation of the
woman taken in adultery pericope in John, and its exclusion from the synoptics, is
therefore coherent with the approaches of both.
30. It was thus very much in the interests of the early Church, reflected particularly in the
Pauline sources, to stress this form of authority. See particularlyVermes, Gospels, supra
note 18 for this theme.

157
31. 1:21, 6:14-15, 7:37-40; seeJackson, "Jesus," supra note* at 348, 356.
32. See Ephraim E. Urbach, "Matai piskah hanevu'ah," 18 Tarbiz 1 (1947), on the
dating and significance of these traditions; see furtherJackson, "Jesus," supra note * at
357 n.72. See further section V.D, infra
33. Even "fulfill," in the sense Daube attributes to plroun in the Sermon on the Mount:
supra note 20.
34. There is an implication here that the opinion of R. Shimon is a minority view, and that
the majority regard this, too, as a case of false prophecy. It is tempting, though
speculative, to see here an allusion to the Christian position.
35. See Maimonides, Hilkhot Yesode Hatorab9:1, who expresses the rule (and extends it
to heretical interpretation) in the terminology of the Biblical texts: im ya'amod ish
veya'aseh ot o moles veyomar shehashem shalhu lehosif o ligra mitsvah o lefaresb
bemitsvab shelo sbamanu mimoshe, hare zeb navi sheker.
36. Afiiu omer lekha the same type of formulation, implying direct speech from the
prophet to those he commands, as in the dictum of R. Johanan.
37. Where he offered a sacrifice on an improvised altar - 1 Kings 18:31ff. - despite the
prohibition against offering sacrifices outside the temple.
38. For a summary of rabbinic attitudes towards the relationship between prophecy and
law, see Stone, supranote 15 at sections III and IV.
39. Supra, text at notes 36-37.
40. Cf., Menachem Elon, Hamishpat Ha'Ivri (Jerusalem: Magnes Press, 1978), p. 1.426.
41. Rashi ad Deuteronomy 18:2 1.
42. Sifra ad Leviticus 27:34, Behukotai 13:7. See also Stone, supra note 15, section IVat
172, on Deuteronomy Rabbah 8:6.
43. Mishnah Commentary, Preface.
44. A traditional response I have encountered to this point is to say that Maimonides
contemplates only prophets who are also recognized as halakhic experts.
45. The Babylonian Talmud, Baba Metsia 59b; see also Bernard S. Jackson, "The Concept
of Religious Law in Judaism," Aufstieg und Niedergangder rOjmischen Welt (Berlin: W.
de Gruyter, 1979), Bd. 11.19.1, p. 46.
46. Essays in Jewish and ComparativeLegalHistory (Leiden: E. J. Brill, 1975), ch. VII.
47. H. Ben-Menahem, JudicialDeviation in Talmudic Law (Chur etc.: Harwood Academic
Publishers, 1991), ch.4.
48. See further Stone, supra note 15 at section lV at 175ff. and her insightful analysis of
Sifre Deuteronomy 41, and its relationship to the chain of tradition in Mishnah Avot 1:1.
49. See especially Paul Winter, On the Trial of Jesus (Berlin: Walter de Gruyter, 1961; 2d
revd. ed. by TA. Burkill and G. Vermes, 1974); S.G.F. Brandon, The Trial of Jesus of
Nazareth (London: Batsford, 1968; Paladin, 1971); Haim H. Cohn, "Reflections on the
Trial and Death of Jesus," 2 IsraelLaw Review 332 (1967); id., The Trial and Death of
Jesus (New York: Harper & Row, 1971); J. Duncan M. Derrett, Law in the New Testament
(London: Darton, Longman and Todd, 1970), ch.17.
50. Still important is the study of E. Bickermann, "Utilitas Crucis: Observations sur les
r~cits du proc!s de Jdsus dans les Evangiles canoniques," 112 Revue de l'Histoire des
Religions 169 (1935).

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51. Mark 14:43: "And immediately, while he was still speaking, Judas came, one of the
twelve, and with him a crowd with swords and clubs, from the chief priests and the
scribes and the elders"; Matthew 26:47: "While he was still speaking, Judas came, one of
the twelve, and with him a great crowd with swords and clubs, from the chief priests and
the elders of the people"; Luke 22:47: "While he was still speaking, there came a crowd,
and the man called Judas, one of the twelve, was leading them... (52) Then Jesus said
to the chief priests and officers of the temple and elders...."
52. John 18:12: "So the band of soldiers (speira) and their captain (cbiliarcbos) and the
officers of the Jews seized Jesus and bound him." Cf., Winter, supra note 49 at ch.5,
noting that it is particularly remarkable that John has Jesus arrested by Roman military
personnel, given the decidedly Jewish feelings shown by John throughout. Indeed, John
places the burden of responsibility for the death of Jesus on the shoulders of the Jews
and exonerates the Governor completely. All the more striking, argues Winter, that he
seems to preserve what may be an early and authentic tradition of the arrest by Roman
troops. See also Winter on the relationship between John 18:12 and John 18:3: "So Judas,
procuring a band of soldiers (speiran) and some officers from the chief priests and the
Pharisees, went there with lanterns and torches and weapons," the latter perhaps seeking
to conflate the two traditions.
53. Cf., J. Jeremias, The Eucharistic Words of Jesus (London: SCM Press, 1961), p. 79,
arguing also that execution for this crime was required to be carried out at a feast "before
all the people."
54. Alfred R.C. Leaney, A Commentary on The Gospel according to St. Luke (London:
Adam and Charles Black, 2d ed., 1966), p. 274, comments that Luke's account "seems like
a correction of the unlikely procedure in Mark of holding an inquiry in the middle of the
night and another meeting in the early morning"; cf., Frank Kermode, The Genesis of
Secrecy. On the Interpretationof Narrative (Cambridge: Harvard University Press, 1979),
p. 96f.
55. The arrest is made "with lanterns and torches" (18:3).
56. 18:28: "Then they led Jesus from the house of Caiaphas to the praetorium. It was
early."
57. There is no need, in my view, to resolve this issue in historical terms. If the Jews had
capital jurisdiction, it does not follow necessarily that they exercised it, or exercised it
independently of Pilate's imprimatur. If they did not have it, it remains possible that they
proceeded nonetheless - a possibility suggested by Josephus' account of the trial and
execution of James, Antiquities XX.200: "Ananus thought that he had a favorable
opportunity because Festus was dead and Albinus was still on the way. And so he
convened the judges of the Sanhedrin and brought before them a man named James, the
brother of Jesus who was called the Christ, and certain others. He accused them of having
transgressed the law and delivered them up to be stoned" (Feldman's translation, Loeb
edition) despite the claim of Josephus (at 202; see furtherEmil SchOrer, The History of
the Jewish People in the Age of Jesus Christ, revised ed. by G. Vermes and F. Millar
(Edinburgh: T. & T. Clark, 1973), 11.222-223) that the Sanhedrin was not allowed to meet
without the consent of the governor. We are not told here the nature of the charge, but
the penalty is stoning (not hanging or crucifixion). Against the authenticity of this
passage, see T. Rajak, Josephus (London: Duckworth, 1983), p. 131 n.73. For a detailed
review from the Roman sources, see Schurer, 11.219-20 n.80.
58. In context, this is a denial of capital jurisdiction, and not merely of the power to
execute a capital sentence without the consent of the Roman authority, since it appears
as a response to Pilate's invitation: "Take him yourselves and judge him by your own
law."

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59. Cf., David Flusser, "Jesus," Encyclopedia Judaica (Jerusalem: Keter, 1973), X.12.
Winter, supra note 49 at 41, argues against the view that this is due to Luke's carelessness
in copying Mark, noting that the author of Luke-Acts allows Paul to say in Acts 13:27-28:
"The inhabitants of Jerusalem and their rulers.., finding no cause of death [in Jesus],
asked Pilate that he should be killed."

60. Presumably, the High Priest and his entourage; see IV, supra.

61. It is noteworthy that the synoptics are more consistent here than in V, supra,but this
consistency may have more to do with the literary patterning of the relationship between
the two interrogations than with the historicity of the dialogue.

62. See Leaney, supranote 54 at 280, comparing the role of Agrippa in the trial of Paul in
Acts 25:13ff. According to Luke 13:31-32, Herod Antipas, who had already executed John
the Baptist, sought also the death of Jesus. See Schurer, supranote 57 at 1.349-50; Flusser,
supra note 59 at X. 11. See also A.N. Sherwin-White, Roman Society and Roman Law in the
New Testament (Oxford: Clarendon Press, 1963), p. 31, on the principles of forum delicti
and forum domicilii. The possibility that Luke is here taking seriously the formal
jurisdictional position may be supported by the fact that he does not present the Jewish
hearing as a meeting of the Sanhedrin, but rather as a preliminary investigation before
the High Priest; the formal jurisdiction of the Sanhedrin at that time was limited to the 11
toparchies of Judaea proper: See SchUrer, supra note 57 at 11.218, 225. J.L Scheler, "The
Arrest and Trial," US News & World Report 108/15 (April 16th, 1990), p. 49, sees a
diplomatic reason for Pilate's "referral," and notes that Pilate had been reprimanded by
the emperor Tiberius for offending the Jewish leaders on two previous occasions."
63. Supra note 54 at 112. The annotations are mine. See further literature cited, supra
note 49. See alsoJ. Blinzler, The Trial of Jesus (Westminster MD: Newman Press, 1959),
pp. 149-157.
64. See Mishnah Sanhedrin 4:1.

65. See Mishnah Sanhedrin 5:5.

66. Mishnah Sanhedrin 7:5 (death by stoning only where the Tetragrammaton was uttered
after hatra'ah); in Sanhedrin 56a this is extended to cover use of one of the divine
attributes, but this was later regarded as giving rise only to flogging. See especiallyCohn,
supra note 49 at 1971:129-134, though also rejecting the false prophecy hypothesis.
Various attempts have been made to explain the blasphemy charge. J. Duncan M. Derrett,
"The Trial of Jesus and the Doctrine of Redemption," Law in the New Testament
(London: Darton, Longman & Todd, 1970), ch. 17, pp. 389-460, at Appendix II interprets
killel as "defames," "undervalues" (comparing Leviticus 20:9), but it is not clear to me
how, even if correct, this would assist the argument. Leonard W. Levy, Treason Against
God: A History of the Offense of Blasphemy (New York: Schocken Books, 1981),
especially pp. 60-62, argues that the gospel accounts of the trial of Jesus demonstrate a
broadening of blasphemy to include not only reviling God but also "claiming his
kinship, powers, attributes or honors." For criticism, see Milner S. Ball, "Cross and Sword,
Victim and Law: A Tentative Response to Leonard Levy's Treason Against God," 35
Stanford L. Rev. 1007ff. (1983). Most recently, a strained attempt has been made by 0.
Betz, "The Temple Scroll and the Trial of Jesus," 30 SouthwesternJournalof Theology 6
(1988), to explain the blasphemy charge in terms of first century interpretation. He
argues that the Temple Scroll 64:6-13, in its interpretation of Deuteronomy
21:23 kilelat elohim, extends blasphemy to cover treason. Certainly, Deuteronomy 21:23
is there understood as an offense of (what we might call) treason: "If a man has
informed against his people and has delivered his people to a foreign nation... If a

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man has committed a crime punishable by death and has run to the midst of the Gentiles
and has cursed his people and the children of Israel" (Baumgarten's translation, Studies
in Qumran Law (Leiden: EJ. Brill, 1977), 173). But this does not make it an offense of
blasphemy merely because of the common terminology of killel with Exodus 22:27.
Moreover, there is not the slightest connection between the offense of "blasphemy" as
here constructed in the Temple Scroll and the "confessions" of Jesus in Mark and
Matthew, which prompt the condemnation for blaspbemia. More generally, we should
beware of too ready assimilation of the Greek concept of blaspbemia in the New
Testament with those Hebrew concepts which, for convenience, we refer to by the
English word "blasphemy." The Greek term is not used in the Septuagint to render the
"blasphemy" references in any of Exodus 22:27, Leviticus 24, or I Kings 21. On the
relevance of this last (the accusation against Naboth), however, see infra section VIE.
67. Tosefta Shebuot 3:8; Sifre Deuteronomy ad Deuteronomy 19:15; Tosefta Shebuot 5:4;
Tosefta Sanhedrin 9:4, 11:1; see A. Kirschenbaum, Self-Incrimination inJewish Law (New
York: Burning Bush Press, 1970), ch.3; see also Samuel Mendelsohn, The Criminal
Jurisprudence of the Jews (New York: Sepher-Hermon Press. 1991, Studies in Jewish
Jurisprudence Vol. VI), p. 133f. [first published 1891].
68. The rabbinic batra'ahk Tosefta Sanhedrin 11:2: "If he be warned and answer nothing,
or if he be warned and nod his head, or even say, 'I know,' he cannot be made liable to
the death penalty; he is not liable until he say, 'I know; but even so I am committing the
offence.'" We should not, however, assume uncritically that all aspects of Mishnaic law
and procedure are to be read back to the early first century.
69. See Kermode, supra note 54: "It is most improbable that there could have been an
event corresponding to the release of Barab'bas; that story may arise from an ideological
need to distinguish Jesus from the zealots and freedom-fighters of the period..."
70. John P. Meier, "Jesus among the Historians," The New York Times (Dec. 21, 1986),
Section 7, p.1, notes that Tacitus (see, infra, section VIE) was in error in describing
Pilate as a procurator, as now shown from an inscription discovered at Caesarea Maritima
in 1961.
71. SeeCohn, supra note 49 at 1971:11.
72. T.A. Burkill, "The Condemnation of Jesus, a Critique of Sherwin-White's Thesis," 12
Novum Testamentum 321 (1970); Winter, supra note 49 at 10, who regards Jesus as
having been condemned for sedition under the Lex Cornelia e de Sicariis et Veneficis,
under Digest xlvlll.8.3.4, and quotes Paul, Sententiae 5.22.1, for the availability of
crucifixion here: auctores seditionis et tumultus vel concitatorespopuli, pro qualitate
dignitatis,aut in crucem tolluntur aut bestiis obiiciuntur aut in insulam deportantur.
Others have suggested the lexJuliade Maiestate.
73. Sherwin-White, supra note 62 at ch.2, argues that a general charge before Pilate, rather
than a charge of a specific offense against Roman statutory criminal law, was compatible
with jurisdiction extra ordinem. Against the notion of any Roman "trial" at all, see F.
Millar, "Reflections on the Trial of Jesus," A Tribute to Geza Vermes, Essays inJewish and
ChristianLiteratureand History, P.R. Davies and R.T. White, eds. (Sheffield: JSOT Press,
1990), p. 378.
74. Supra note 54 at 110. See also Kermode, supra note 54 at 85, on the use of Psalms
41:9, "Even my bosom friend, whom I trusted, who ate of my bread, betrays me"; at 86,
on the 30 pieces of silver (Zechariah 11:12); and at 106 on Psalm 22.
75. A view not confined to theologians. See also J. Duncan M. Derrett, supra note 49,
especially Appendix I, suggesting two trials in the narrative identified through the poetry.

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76. William L Lane, The Gospel according to Mark (London: Marshall, Morgan and Scott,
1974),p. 487.
77. E.g., "pierced for our transgressions" (Isaiah 53:5, New English Bible), where the
Hebrew is mebolal (Jewish Publication Society: "wounded"). In uvehavurato nirpab
lanu (Jewish Publication Society: "and by his bruises we were healed"), we may well
have a reflection on the talionic formula: havurai tabat havurab,Exodus 21:25).

78. The closest the text comes to any reference to law is in "without justice, he was taken
away" (v.8: me'otser umimishpatlukab). As for execution, the closest is "He was assigned
a grave with the wicked, a burial place among the refuse of mankind" (New English
Bible, v.9: vayiten et reshaim kivro).
79. After writing this, I found that Norman H. Whybray has comprehensively analyzed the
Hebrew of the song and come to this conclusion, in his monograph significantly entitled
Thanksgivingfor a Liberated Prophet: An Interpretation of Isaiah Chapter53 (Sheffield:
JSOT Press, 1990, JSOT Supplement Series 4).

80. Including that of the Jewish Publication Society.

81. Supra note 76 at 486.

82. Discussed further in section VI.C, supra

83. Kermode, supra note 54 at 86f.
84. Id.
85. Gerhard Van Rad, The Message of the Prophets(London: SCM Press, 1968), p. 227f.;
partially approved by C.R. North, The Second Isaiah (Oxford: Clarendon Press, 1964), p.
21, who also provides a detailed philological commentary (see especially p. 238ff.) which
acknowledges many of the complications while opting for a traditional translation.

86. But it is not a pure case. As the leader of the people, Moses bears some personal
responsibility for their actions, even when they are contrary to his instructions.

87. I have found no earlier version of this proposal in the literature on the trial of Jesus.
Occasionally, however, some Christian commentaries on Jeremiah see in details of this
story adumbrations of the passion. Thus James Burton Coffman and Thelma B. Coffman,
Commentary onJeremiahof the Major Prophets(Springfield: Abilene Christian University
Press, 1990), vol. 2, p.29 4 , commenting on Jeremiah 26:7: "And the priests and the
prophets and all the people heard Jeremiah speaking these words in the house of
Jehovah," observe: "that irresponsible and fickle Jerusalem mob, designated here as 'all
the people,' that is, the majority, started yelling for the death of the holy prophet. They
were fit ancestors indeed of the mob in that same city centuries afterwards who would
cry, Crucify him! Crucify him!" On verses 12-15, they comment [at 297]: "like the blessed
saviour himself, Jeremiah submitted to the powers of the government, but warned them
of the consequences." See also Andrew W. Blackwood, Jr., Commentary on Jeremia
(Waco, Texas: Word Books, 1977), p. 194: "The role of all the people [v. 7] is
ambiguous. Verse 8 shows them siding against Jeremiah, while verse 11 shows them
neutral, verse 16 shows them supporting him, and verse 24 seems to indicate that they
were against him. The situation may have been similar to Jesus' experience on Palm
Sunday and Good Friday, when large crowds shouted his praise and large crowds cried
for his death."
88. In response to oral presentations of this material, I have been asked on a number of
occasions whether the parallels here suggested are supported by linguistic parallels
between the New Testament and the Septuagint version of Jeremiah 26 (in the

162
Septuagint, ch.33) a version which differs in some details from the Masoretic Text (e.g.,
the establishment prophets in Septuagint are described as "false prophets"). That begs a
number of important problems regarding the sources of knowledge of Jeremiah (oral or
written, and if the latter in which language) which might have been available to the New
Testament writers. However, my principal response, which also begs questions which
cannot be addressed here, is that the parallel is one of narrative line, rather than
linguistic expression. Moreover, I am inclined to assume that the early form of
communication of the story of the trial of Jesus was oral, and thus not itself fixed
linguistically. Nevertheless, a linguistic parallel such as the accusers' ekousate in Mark
15:64 and parallels, Septuagint Jeremiah 33:11) may well be regarded as thematic rather
than linguistic. In short, my argument does not rest upon linguistic dependence upon the
Septuagint (or any other text), though this does not exclude points of influence in the
final literary formulation.

89. Cf, Matthew 21:28ff.; Mark 12; Luke 19:47ff. In Matthew, his first actions there are acts
of miraculous healing: Matthew 21:14.
90. The same verb, shama (to listen, obey), is used in relation to Jeremiah's mission as in
the prophet-like-Moses text in Deuteronomy.
91. Cf., Matthew 24:1-2; Mark 13:1-2; Luke 21:5-6.
92. Cf, Matthew 26:47; Mark 14:43; Luke 22:52.

93. Cf, Matthew 26:59ff; Mark 14:55ff.

94. Cf., Matthew 26:57ff.; Mark 14:53ff.; Luke 22:54ff.
95. Cf., Matthew 27:11ff.; Mark 15:2ff.; Luke 23:1ff.
96. Cf, Matthew 27:12; Mark 15:3; Luke 23:2. William L. Holladay, Jeremiah, A Fresh
Reading (New York: Pilgrim Press, 1990), p. 31, notes that when the priests repeat
Jeremiah's offending words to the civil authorities, they omit his reference to the Temple
and speak only of his prophesying against the city. "To the princes this would make the
issue appear to be treason rather than a religious dispute."
97. Cf, Matthew 27:23; Mark 15:13; Luke 23:4,14.

98. Cf., Matthew 27:15-18; Mark 15:6-15; Luke 23:18.

99. Cf, Matthew 27:32ff.; Mark 15:21ff.; Luke 23:26ff. (here, of course, Jesus, not the other
accused). For the political background of the prophecy of Jeremiah and his life, see E.W.
Nicholson, The Book of the Prophet Jeremiah, Chapters 26-52 (Cambridge University
Press, 1975), pp. 1-10. He notes at 27 that the Biblical record that Israel persistently
rejected the preaching of the prophets, and the suffering many of them had to endure
[especially Jeremiah] as well as the execution of others eventually gave rise to the
legends of the martyrdom of many of the prophets [for example Isaiah]. It is this, he
argues, that forms the background ofJesus' saying "Oh Jerusalem, Jerusalem, the city that
murders the prophets and stones the messengers sent to her!" (Matthew 23:37, Luke
13:34). See also Stone, supra note 15 at section IV, at 173 on Nehemiah 9:26 and rabbinic
sources on the killing of prophets.
100. Cf, Matthew 27:20-23; Mark 15:12-15; Luke 23:18-26.
101. Brandon, supra note 49 at 1971:124f.
102. Some recent writings have sought to suggest a Jewish practice of crucifixion: see
especially Betz, supra note 66 at 5-8 (to which Professor Welch kindly drew my

163
attention). Betz's starting point, the suggestion that the Jews in John 19:15 suggested
crucifixion as a Jewish penalty, appears unwarranted by the text: "They cried out, 'Away
with him, away with him, crucify him!' "But Pilate's response: "Shall I crucify your King?"
clearly implies his understanding that they were asking him to conduct the crucifixion.
This is not incompatible with the claim that follows, that "Then he handed him over to
them to be crucified." They asked for an execution by Roman law; he agreed, but
authorized them to carry it out themselves. There is nothing here to suggest that the Jews
understood crucifixion as a Jewish form of capital punishment. Betz next refers to a
passage in the Temple Scroll regarding hanging "on the wood." In fact, the normal
Hebrew word for tree is used in the passage (etz), and the passage (together with
another apparent reference to crucifixion in the Nahum Commentary) has been
extensively discussed by J.M. Baumgarten, "Does TLH in the Temple Scroll Refer to
Crucifixion?," Studies in Qumran Law (Leiden: EJ. Brill, 1977), pp. 172-182 [answering
the question in his title in the negative].

103. See, supra, section VE [combining the historical bipolarity of the charge with its
theological connotations, as derived from the false accusation of Naboth, 1 Kings 21:10].
104. "No earlier prophet (other than Moses] wrote down or dictated his material, as far as
our evidence goes," Holladay, supra note 96 at 64.
105. Noted as a parallel with Moses by Holladay, supra note 96 at 64. Should we view the
cutting of his scroll as later transformed into the execution of the prophet himself?
106. See Adam C. Welch, Jeremiah. His Time and His Work (Oxford: Basil Blackwell,
1955), p. 148ff., on the relationship between Jeremiah's preaching regarding the Temple
and the Josianic reform some years earlier.
107. Holladay, supra note 96 17f., explicitly connects Jeremiah and the Deuteronomy 18
tradition, linking the phrases "whatever I command you you shall speak" (Jeremiah 1:7]
and "behold, I have put my words in your mouth" [ 1:9] with Deuteronomy 18:18 ["1 will
put my words in his mouth, and he shall speak to them all that I command him"]. He
suggests that no other call of a prophet in the Old Testament resembles this verse in
Deuteronomy as closely. It attests to Jeremiah's conviction that he is the prophet-like-
Moses. From this task of being a prophet he shrank. But Moses, Holladay notes, had
hesitated in accepting his own call [Exodus 4:1-17].
108. Richard Jacobson, "Absence, Authority and the Text," 3 Gypb 137, 140 (1978), citing
Jeremiah 15:16: "Thy words were found, and I did eat them; and thy words were unto me
to me a joy and the rejoicing of my heart; Because Thy name was called on me, 0 Lord
God of hosts." The following earlier articles by Holladay on Jeremiah's self
understanding as a prophet-like-Moses are cited by Jacobson, infra note 110 at 51 n.5:
"Style, Irony, and Authenticity in Jeremiah," 81 Journal of Biblical Literature 44 (1962);
"The Background of Jeremiah's Self-Understanding: Moses, Samuel and Ps.22," 83
Journal of BiblicalLiterature 153 (1964); "Jeremiah and Moses: Further Observations,"
85 Journalof BiblicalLiterature 17 (1966).
109. These first two examples are both noted by David Daube, "Typology in Josephus,"
31 Journalof Jewish Studies 18, 23f. (1980), in the course of a wide-ranging survey of
typological connections, which stresses the rewriting of the earlier narrative in terms of
the later. At 26f., he notes Josephus' self-construction as a second Jeremiah, and his
reconstruction of the story of the surrender to the Babylonians in terms of Josephus' own
relations to the Romans.

110. Martin Hengel, The CbarismaticLeader and his Followers (Edinburgh: T & T Clark,
1981), p. 64, comparing Mark 3:21 and 6:1-6 with Jeremiah 12:6 and 11:21. See also

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Richard Jacobson: "Prophecy and Paradox," 38 Linguistica Biblica 49, at 3.6 (p.57)
(1976).
111. Considered by Eisler to derive at least indirectly from an aramaic original by
Josephus strongly contested by Zeitlin, who dates it to the seventh century. For the
literature, see Schulrer, supra note 57 at 1.60-61.
112. Written in 110 C.E. There is recent archaeological evidence that Pilate, however, was
only a prefect and not a procurator. See supra note 70.
113. See Paul Winter, "Excursus II: Josephus on Jesus and James," in Schurer, supra note
57 at 1.428-441, a revised version of his article in 1 Journal of Historical Studies 289
(1968); Z. Baras, "The Testimonium Flavianum and the Martyrdom of James," Josepbus,
Judaism and Christianity, LH. Feldman and G. Hatai, eds. (Detroit: Wayne State
University Press, 1987), pp. 338-339, noting that Origen (185-254 C.E.) twice criticizes
Josephus for not having accepted Jesus as the Messiah (Contra Celsum 1.47; Commentary
on Matthew 10:17), while later Eusebius (260-339 C.E.), cites the Testimonium
Flavianumas evidence that he did. See also Cohn, Trial, supra note 49 at 308-312.
114. II. 174. See recently, Steve Bowman, "Josephus in Byzantium," Josepbus,Judaism
and Christianity, LH. Feldman and G. Hatai, eds. (Detroit: Wayne State University Press,
1987), pp. 372-373, and 382 n.61 for the Eisler/Zeitlin debate in the 1930's. See also
Cohn, supra note 49 at 312-16. The suggestion that the passage goes back to an original
text of Josephus is based in part on a statement by Josephus himself in the preface to the
Greek version that he wrote a book on the capture of Jerusalem in his native tongue, and
that this formed the genesis of the Greek version.
115. The passage begins with a discussion of whether the wonder-worker should be
called a man (cf., the Testimonium Flavianum) or an angel, in the light of his
appearance and works (which were "divine"); notes his activity as a healer; concludes
with an initial exoneration by Pilate; then suggests that Pilate was bribed by a gift of
"thirty talents," as a result of which he gave permission to the Jews to crucify him.

116. Thackeray translation, Appendix to Loeb edition of Josephus, The Jewish War, IV,
648-650. CompareJohn 11:47-48: "So the chief priests and the Pharisees gathered the
council, and said, 'What are we to do? For this man performs many signs. If we let him go
on thus, every one will believe in him, and the Romans will come and destroy both our
holy place and our nation.' " "Go on thus" can hardly have been a reference merely to
preaching and healing; it must be to something which the Romans would have regarded
as threatening. The Slavonic Josephus may, of course, represent an interpretation of this
passage.
117. Sanhedrin 107b, placing Jesus in the time of King Jannai (104-78 B.C.E.); see The
Babylonian Talmud, Sanhedrin (London; Soncino Press, 1935), 11.736 n.2, concluding:
"And a Master said: Jesus the Nazarene practiced magic and led Israel astray." See also
David R. Catchpole, The Trial of Jesus (Leiden: E.J. Brill, 1971), p. 3. The passage also
describes Jesus as a pupil of Joshua b. Perahyah (c.100 B.C.E.). Encyclopedia Judaica
(Jerusalem: Keter, 1973), X.14-17 (this section translated from the Encyclopedia
Hebraica) takes this to refer to the Jesus of the New Testament, but to reflect later
rabbinic uncertainty about his dating. See also the "Ben Stada" passage in Sanhedrin 67b
(an execution on the eve of the Passover, at Lod, for enticing to idolatry, on which see
Cohn, Trial, supra note 49 at 303-308); Shabbat 16a-b, reflecting early Jewish anti-
Christian polemic, though the object of derision is described merely as "a philosopher."
118. See The Babylonian Talmud, Sanhedrin (London; Soncino Press, 1935), 1.281: "It
was taught: On the eve of the Passover Yeshu [Ms. M: the Nazarean] was hanged. For
forty days before the execution took place, a herald went forth and cried, 'he is going

165
 forth to be stoned because he has practiced sorcery and enticed Israel to apostasy. Anyone
who can say anything in his favour, let him come forward and plead on his behalf.' But
since nothing was brought forward in his favour he was hanged on the eve of the
Passover [variant: and the eve of Sabbath]! Ulla retorted: Do you suppose that he was one
for whom a defense could be made? Was he not a Mesith (enticer: Deuteronomy 13:91,
concerning whom scripture says, Neither shalt thou spare neither shalt thou conceal him?
With Yeshu however it was different, for he was connected with the government."
Catchpole, supra note 117 at 6-9, argues for the historical authenticity of many of the
details here, comparing "on the eve of Passover" with John 18:28; the mesith charge with
John 18:19-24 (and see D.W. Wead, 11 Novum Testamentum 185 (1969); the allegation of
sorcery with Matthew 12.24, Luke 11.15, Mark 3.22; Contra Celsum 11.9: "After this the Jew
says: How could we regard him as God when in other matters, as people perceived, he
did not manifest anything which he professed to do, and when we had convicted him,
condemned him and decided that he should be punished, was caught hiding himself and
escaping most disgracefully, and indeed was betrayed by those whom he called
disciples?"; 1 Thessalonians 2:15 (Paul): "for you suffered the same things from your
own countrymen as they did from the Jews, who killed both the Lord Jesus and the
prophets" [on which see F. Gilliard, "The Problem of the Antisemitic Comma between 1
Thessalonians 2.14 and 15," 35/4 New Testament Studies 481 (1989) to which Prof. J.
Welch kindly drew my attention]. Contra,Cohn, Tria4 supra note 49 at 298-303, noting
various incongruities in the talmudic passage, including the conflict between hanging
and stoning and ultimately concluding (307) that it probably did not refer to the Jesus of
the New Testament.
119. In the warning to be given to witnesses according to talmudic procedure found at
the very head of the Gemara's commentary on the Mishnah's treatment of the
examination of witnesses. See also Sanhedrin 48b, where the double accusation, of
cursing God and the King, is explained as not legally necessary, but as having been made
(in Naboth's case) in order to "increase the anger of the judges" again stressing the
conspiratorial aspect of the false accusation.
120. Perhaps hinted at in Mark 14:55-56: "Now the chief priests and the whole council
sought testimony against Jesus to put him to death; but they found none. For many bore
false witness against him, and their witness did not agree." Cf, Matthew 26:59-60.
121. See Louis Ginzberg, Legends of the Jews, Vol. VI (Philadelphia: Jewish Publication
Society, 1956), p.31 2 , n.41 for sources; see aLso Sanhedrin 89a, 102b, Shabbat 149b.
122. 6:9-14. Schorer, supra note 57 at 11.219, takes this as good historical evidence of the
exercise of Sanhedrin jurisdiction over blasphemy. But we must take into account not
only the literary relationships between the Old Testament and the New, but also those
within the New Testament (a theme not here explored). In citing John 19:7 (as well as
Matthew 26:65) in support of "the fact.., that Jesus is said to have stood before the
Sanhedrin on account of blasphemy," they go beyond what is warranted by the text.
123. 734, 732 B.C.E.; see J. Ridderbos, Isaiah, trans. John Vriend (Grand Rapids:
Zondervan Publishing House, 1985), p. 5.
124. For a sensitive development of this theme, see Stone, supra note 15 at section II.
125. As in Kermode's arguments, supra, section /V.B,especially his account of the thirty
shekels of silver.
126. This theme is taken up in some of my recent papers: "Analogy in Legal Science:
Some Comparative Observations," Legal Knowledge and Analogy, P. Nerhot, ed.
(Dordrecht etc.: Kluwer Academic Publishers, 1991), pp. 145-165 (Law and Philosophy
Library, 12); "On the Nature of Analogical Argument in EarlyJewish aw," TheJewish Law
Annual, forthcoming; "Practical Wisdom and Literary Artifice in the Covenant Code,"
Jerusalem 1990 Conference Volume, B.S. Jackson and S.M. Passamaneck, eds. (Atlanta:
Scholars Press, 1992), pp. 65-92 (Jewish Law Association Studies, VI).

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