Deuteronomy 23: 16-17 and the Medieval Communes

Deuteronomy 23: 16-17 and the Medieval Communes

in honor of the Yahrzeit of David S. Landes


טז
  לֹא-תַסְגִּיר עֶבֶד, אֶל-אֲדֹנָיו, אֲשֶׁר-יִנָּצֵל אֵלֶיךָ, מֵעִם אֲדֹנָיו.
 

16 Thou shalt not deliver unto his master a bondman that is escaped from his master unto thee;

יז  עִמְּךָ יֵשֵׁב בְּקִרְבְּךָ, בַּמָּקוֹם אֲשֶׁר-יִבְחַר בְּאַחַד שְׁעָרֶיךָ–בַּטּוֹב לוֹ; לֹא תּוֹנֶנּוּ. 17 he shall dwell with thee, in the midst of thee, in the place which he shall choose within one of thy gates, where he likes it best; thou shalt not wrong/oppress him.

This brief commandment, inserted seemingly at random in a long list of loosely related commandments, may be one of the most revolutionary in the Torah. From a contemporary point of view, it may not seem so. We moderns, after all, have given up slavery entirely. This law and its interpretations, on the other hand, assume slavery exists, even among Jews.

What makes it so radical? Unlike virtually every other of the commandments that instructed the Israelites about what to do in their own land and society, and unlike the laws governing the relations with outsiders (e.g., the beautiful captive), this law has far-reaching and negative international consequences because it defied the “laws of nations.” All other sets of laws (e.g. Hammurabi) and international treaties at this time, and really right up to the modern period, included provisions for returning runaway slaves. It was a key element in the ability of slavery to exist. For a nation-state to adopt such a law automatically created friction with neighbors.

Of course the interpreters of the law could have seriously reduced the friction it caused by restricting the category of slaves not to be returned to their masters to Jewish slaves. With a little negotiation and payment, Israelite society could manage such a limited problem to everyone’s satisfaction. But the interpretation adopted by most commentators held that the commandment forbade returning a gentile slave to his master, even one whose master was of the house of Israel.[1]

This law, then, in specific circumstances, extends to gentiles the liberation extended to all Israelites every seven years. If the documentary hypothesis that locates Deuteronomy as a late composition (late 7th century BCE) is correct, then this law is all the more remarkable. Normally reiterations of radical laws get tempered with time, not radicalized further.[2]

Israelite law here, in creating a refuge nation for runaway slaves, undermined the entire international system of slavery, especially in its most cruel and abusive forms. Indeed, in explicating the principle during warfare, Ibn Ezra (12th century, Spain) invoked the notion that it would be a “desecration of God’s name” to turn away a slave who had fled to the Israelite camp for freedom. In this one can detect the same self-understanding of being a liberating army that both Islamic and Napoleonic armies adopted: “war on the castles, peace to the cottages.”[3]

So this is not only an act of mercy for those slaves who flee to the Israelites, it was a slap in the face to the surrounding nations whose laws (shamefully from the perspective of both Judaism and democracies), enforced the most cruel slave practices. It, more than any law, illustrates one of the important meanings of Balaam’s curse/blessing to Israel: “a nation that dwells alone.” By their very existence as a moral people, the Children of Israel offended their neighbors.

Today I want to discuss its impact on a medieval movement that heralds the beginning of the modern world – urban communes. One day I brought a college friend over for dinner, and he asked my father, “What was the most important phenomenon in the development of the West.” My father responded: “the free cities of the Middle Ages,” by which he meant the 11th and 12th century independent cities that they then called communes.[4] This was where an independent class of productive people first emerged, who were bound by a collective oath, elected their officials, set their own rules, defended themselves with a communal army of all citizens aged 15 and up. These cities, and other rule-driven communities like the universities – universitas and communa were political synonyms – changed the face of European society.

And in these communes, one finds a rare rule in urban history, that if a serf escaped his master and stayed in the city for a year and a day, he was a free citizen of the commune. The German motto (which the Nazis so terribly perverted at Auschwitz), ran: Stadtluft macht Frei, [city air makes one free]. The communes of Europe, thereby, set themselves up as refuges from the brutal world of the aristocracy. Indeed, in a recent paper, Andrew Young argued that this principle of the liberating status of cities marks an early moment in the emergence of the modern, economically productive West.[5]

In one famous case in 1128, told by the lively historian Galbert of Bruges, the new Count of Flanders, William Clito, was one day in the marketplace of Lille, when he saw

a certain serf of his in the market, and ordered his men to seize him. The citizens of Lille rushed to arms and chased the count and his men outside the town. They beat up some of the court, threw the Normans into the swamps and inflicted wounds on many more.”[6]

Granted, this was probably more than just the defense of the serf. One can surmise that the count’s Norman companions (his “foreign” entourage) had aroused the hostility of the townspeople, who used the serf’s mistreatment as an opportunity to settle scores and clarify boundaries. And of course, this being the Middle Ages, the communal defense of the serf lead to a cruel war with the warrior aristocracy.

Normally cities, even independent ones, don’t behave this way. In ancient Greece and Rome, areas of refuge for runaway slaves were limited to temples or specific areas, not entire cities, much less states. Refuges antagonize the surrounding slave-holding powers, the potentes, the aristocracy, but it also encourages strangers, even riff-raff to move in, and, finally, it works to the disadvantage of those citizens already in power and wealthy. Most urban elites (powerful clans) were careful about sharing their privileges with hoi polloi. So when, in the late 11th century, we see the first progressive city governments in Europe, welcoming strangers, refugees, runaways from a cruel system of servile manual labor, and offering them instead a part in an egalitarian experiment, willing to stand up to the domination of the military (and ecclesiastical) aristocracy, we should find this surprising and worthy of explanation.[7]

For Young, however, “It is not surprising, then, that burghers insisted on extending their rights and liberties to newcomers.” To some extent one can understand this as a function of what he’s arguing and with whom: a debate about modern economic history with Deirdre McCloskey. While McCloskey argues that cultural values lie at the core of the transformation, what she calls “egalitarian accidents,” while Young prefers the argument of economic historians like North and Thomas that the emergence of the urban institutions made the West’s accomplishment possible.[8] Young quotes Rörig, “development of [city] autonomy occurred simultaneously with the transition from the personal to the territorial principle of law.” If one attends to McCloskey’s argument, however, that the extension of liberal principles far and wide (in the case to the city), is actually a “shocking” development.[9]

This “question mal posée,” obscures the relationship between values and institutions. The institutions of the later 11th and 12th centuries that enshrined this principle of freedom to runaways in their constitutions, were themselves the product of dramatic events at the turn of the millennium, when a massive dose of egalitarian rhetoric and ethics were injected into (Western) European discourse by the demotic millennial movement, the Pax Dei.[10] Insofar as the advent of an apocalyptic (and possibly millennial) year 1000 played a key role, I guess one might call it an egalitarian accident… of timing.

Young’s lack of surprise comes from projecting his own culture’s mentality on players in a different age, governed by a different mentality. (This cognitive egocentrism he shares with many economic historians.) The adoption of this radical principle of egalitarianism, which bound successful burgher with runaway slave and put the burghers in conflict with the more violent aristocracy (lay and ecclesiastical), should by no means be taken for granted. On the contrary, like the ancient Israelite polity, the communes represented a counter-culture with egalitarian principles that both violated the prevailing norms among the powerful, the potentes, and challenged the zero-sum tendencies of successful urban patriarchies.

I would argue as follows: the surge of demotic religiosity that hit Western Europe in the early 11th century, as attested by such phenomena as mass pilgrimages, peace assemblies, apostolic movements including lay commoner heresies, inaugurated a great rereading of the biblical texts (some of which even impacted formal theology), in which the demotic reading of the Hebrew Bible (a constitution for free laborers[11]) received a renewed reading in what Brian Stock has called “textual communities,” many of which took biblical egalitarianism among the faithful as their founding principles.[12]

Just like the Calvinists in Geneva a century after the spread of printed vernacular bibles, the communal movements of the 11th and 12th centuries (rural and urban) saw themselves as establishing their principles on Moses’ legislation for the Israelites, and took this particular passage – do not return a slave to its master – as a matter of principle. Indeed, if anything might not surprise us about the rise of egalitarian communes in Europe, especially between the Rhine and the Loire, it’s the proximity of autonomous Jewish communities that set an example of just how such self-regulated, significantly more egalitarian communities could work and thrive.[13]

Nowhere (that I know of) does any contemporary chronicler, theologian, or urban statute, cite this biblical commandment to justify the principle “city air makes free.” But then those ecclesiastics who wrote our sources did not particularly favor this egalitarian (demotic) reading of the Bible; they were, by and large, monarchists. On such stuff heresies have and will be raised. But I think it fascinating that this variant of a long-standing medieval meme of a year and a day – the time of a quest, of a vow, of a punishment, for taking vengeance – became in the hands of these Bible-listening townspeople of turn of the millennium Europe, the period of probation for freedom. This practice, with no biblical citation to support it, nonetheless offers a very early example of European economic development as a “secularization” of Hebraic demotic values.[14]

One of my medievalist colleagues noted that if anyone had invoked this passage in Deuteronomy – for which we have no written evidence – that would be remarkable:

If the king could not make such an order [commanding the return of fugitive serfs], because the Bible (ie word of God) forbade it, something like a modern American plea that some law was unconstitutional, and that would be sensationally novel. We should need to rewrite a lot of received history if it ever happened.

I’d begin the rewriting sooner rather than later.

[1] See the discussion in Jeffrey H. Tigay, The JPS Torah Commentary: Deuteronomy (Philadelphia: Jewish Publication Society, 1996), p. 215, and notes p. 387.

[2] Take for example, the fate of “liberté, egalité, fraternité, which, by the time of the Directory (1794–99), it appears in the variant: “ Liberté, égalité, propriété.” Mona Ozouf, “Liberté, égalité, fraternité,” in Lieux de Mémoire, ed. Pierre Nora, 3 vol. (Paris: Gallimard, 1997), vol. 3, pp. 453–89. George Orwell satirized the tendency with his depiction of the pig’s rewriting of the initial, egalitarian laws of revolutionary Animal Farm.

[3] David Cook, “The Beginnings of Islam as an Apocalyptic Movement,” in War in Heaven/Heaven

on Earth, ed. Glen McGhee and Stephen O’Leary (London: Equinox Publishing, 2005), 79–94. There is some evidence that Napoleon understood this dimension of Islam in his appeals to Muslims when in

the Middle East, on which see Christian Cherfils, Bonaparte et Islam (Paris: Pedon, 1914; Studly, England: Alcazar Publishing, 2005), p. 105, 125. Napoleon adopted the revolutionary formula first proposed for the French revolutionary army of 1792 in Belgium: Gunther E. Rothenberg, “The Origins, Causes, and Extension of the Wars of the French Revolution and Napoleon,” Journal of Interdisciplinary History 18:4, The Origin and Prevention of Major Wars (1988): 788–93.

[4] In this he followed (as in many other “big picture” matters) Max Weber and Talcott Parsons.

[5] Andrew T. Young, “How the City Air Made Us Free: The Self-Governing Medieval City and the Bourgeoisie Revaluation,” (January 1, 2017). Available at SSRN: https://ssrn.com/abstract=2860469.

[6] Murder of Charles the Good, 93, tr. James Bruce Ross (NY: Columbia U. Press) p. 266.

[7] Note that in his introduction to the new edition of Pirenne’s Medieval Cities, Michael McCormick emphasizes the new (largely archeological) evidence for urban life in the early middle ages, and pays relatively little attention to the point at which the ups and downs (p. xxii) turn into a sustained “up” for three centuries, i.e., the 11th century. It is only then that Stadtluft macht frei appears.

[8] Young frames his argument as a counter to Deirdre McCloskey’s argument about an “egalitarian rhetorical and ethical” shift as the key to Western economic development: Bourgeois Equality: How Ideas, Not Capital or Institutions, Enriched the World (Chicago: University of Chicago Press, 2016).

[9] McCloskey, Bourgeois Equality, “Exordium.”

[10] Most of the “pro-bourgeois” egalitarian sentiments that McCloskey attributes to the turn of the 18/19th century – the Great Enrichment – can be found in religious forms in the via apostolica, especially in its “heretical” lay versions. See “Landes, “Economic Development and Demotic Religiosity: Reflections on the Eleventh-Century Takeoff,” History in the Comic Mode: The New Medieval Cultural History, ed. Rachel Fulton and Bruce Holsinger (New York: Columbia University Press, 2007), pp. 101-16.

[11] See Joshua Berman, Created Equal: How the Bible Broke with Ancient Political Thought (NY: Oxford, 2008).

[12] Brian Stock, The Implications of Literacy: Written Language and Models of Interpretation in the Eleventh and Twelfth Centuries (Princeton University Press, 1983), Part II.

[13] Aryeh Grabois, “Remarques sur l’influence mutuelle de l’organisation de la communauté

juive et de la paroisse urbaine dans les villes entre le Rhin et la Loire à la veille des

croisades,” in Civilization et Société dans l’Occident Médiéval (Variorum reprint, 1983).

[14] The principle is visible but not explicit in David S. Landes, The Wealth and Poverty of Nations (NY: WW Norton, 1999). Wayne Grudem and Barry Asmus make the importance of [demotic] biblical values in economic development explicit, with many references to Wealth and Poverty in: The Poverty of Nations: A Sustainable Solution (Wheaton IL: Crossway, 2013).

5 Responses to Deuteronomy 23: 16-17 and the Medieval Communes

  1. Andrew Gow says:

    I would add to your view about possible Jewish influence on the formation of communes another one, this one based on speculation more than anything else: Jews in some measure brought the technologies of urban living with them to the newly formed cities. In many cases known from the 13th and 14th centuries, Jews were leading figures in episcopal administrations (who else could read, write, was numerate, lived in a city, and was trustworthy from an episcopal point of view? Monks? Whether mendicants or cloistered, hardly!). See http://www.medieval-ashkenaz.org/quellen/1273-1347/js01/einleitung.html esp. on the 14th-century signet ring of the Jew Moshe/Muskinus, treasurer of the Archbishop of Trier in the later 14th century.

    My spidey-sense is that Jews were also involved in running nascent urban administrations, esp. episcopal/ecclestiastical ones, in the 10th and 11th centuries, but the records just aren’t there — for many reasons. One illustrious historian of German Jewry has even mentioned a suspicion that some Gentile commoners converted to Judaism in the 10th and perhaps even in the 9th century as a means of escaping serfdom, becoming literate, and gaining employment opportunities — in episcopal administrations! (where their background was unknown, obviously). It all sounds plausible, but I am in no position to argue it in public, or in print.

    As you know, I like your line of argument about the profound influence of demotic religion on the development of the demos in medieval European towns, but I am always cautious, as a congenital nominalist and splitter, of making it in professional venues. And I would add the caution that as you well know, even Judaism, with its internal caste system of rabbinical families and amei ha-aretz (as well as some intermediate steps), was not immune to social distinctions — which were both educational and financial in nature, produced strong in-marriage pressure within castes, and kept the interests of proste yidden and rabbonim separate in many regards. But the idea that Bible-listeners were already drawing lessons from models far distant from aristocratic European ones makes a great deal of sense to me, and aligns nicely with what I argued in my article on late medieval German Bibles (Journal of Hebrew Scriptures 9,13 (2009), 1-37.

  2. As many times as I have read Deuteronomy 23:16-17, I have never thought of it as having international consequences because it defied the “laws of nations,” but I think you are absolutely correct. I hope that some evidence turns up to justify the kind of rewriting of history to which you allude in your last sentence.

    This was an appropriate article to publish in honor of the anniversary of your father’s death. Through his erudition and persuasive reasoning, I believe he has influenced and will continue to influence human history for good, perhaps more significantly than we now realize. I read numerous books on economic development in preparation for my book that you cite in your last footnote (The Poverty of Nations: A Sustainable Solution), but no other book that I read came near to David Landes’s The Wealth and Poverty of Nations in its explanatory power regarding economic development in various nations of the earth. And now your article adds one more factor to that explanation.

  3. Walter Sobchak says:

    I have two questions:

    One is that I have read that the formation of medieval communes involved the signing of charter documents by the Burgers and the Royal authority that was granting the charter. I cannot find where I read it. Can you point me in the right direction.

    The second is about the relationship between Christian legal scholarship and Jewish Talmudic scholarship. Rashi (1040 -– 1105) who lived at Troyes France (about 90 mi SE of Paris) is famous among Jews for his commentaries on the Talmud, which were made as marginal notations on the base text. The European study of Roman law in the form of the Corpus Juris Civilis of Justinian was founded at Bologna by Irnerius (c. 1050 – after 1125). The school of Bologna became known as Glossators, because they wrote their commentaries as marginal notes to the base text. Is there any reason to believe that the similarity of technique between Rashi and Irnerus not a mere coincidence.

    • Richard Landes says:

      the answer to question #1 is yes. but by the time the kings got involved the practice of letting in serfs had already a long history (generations, maybe a century) of sauventés which granted asylum. by that time, it came with the package of a commune, which the king, esp in france, granted as part of his strategy of undermining the aristocracy. (no communes in royal land… closest thing, the universitas of paris).

      answer to #2 complicated, part of the co-emergence of ashkenazic jewry and latin christendom in the 11th and 12th centuries. i don’t have the bibliography at hand, but there’s unquestionably a revolution in how the written text was conceived and executed in this period in both traditions.

      • Walter Sobchak says:

        Thank you. My first question was directed not to the substance of creating communes, but to the procedure. If it involved the Burgers entering into a contract, it could be source of the Enlightenment social contract theories.

        As for number two is there any evidence of scholars in the two traditions interacting?

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