Violation of Legal Procedures?
Violation of Legal Procedures?
Traditionally, writers have most often cited against the gospel account its incompatibility with rabbinic sources concerning proper legal procedures,139 but this argument is difficult to defend today.140
Although various elements of the later Mishnaic code of legal conduct are probably early,141 it is tenuous to dispute the historicity of the earlier Gospel accounts of the trials (which include traditions more contemporary than those on which the Mishnah is based) based on conflicts with rules in the later Mishnah. First, the Mishnah reports Pharisaic-type idealizations of the law in its own day, recorded at a period over a century later than the latest of the four Gospels; the Mishnah was written almost two centuries later than Jesus’ trial.142 Meanwhile, the Council in Jesus’ day was hardly dominated by Pharisees, further calling into question this rabbinic idealization.143
Second, rabbinic sources themselves indicate that the aristocratic priests did not always play by the rules (and certainly not by Pharisaic ones).144 In fact, because elements of proper legal procedure were standard throughout Mediterranean antiquity, the Gospel writers may expect us to notice significant breaches of procedure. Unless one presupposes that the aristocratic priests (like later rabbis) would follow careful procedure even in explosive political situations — which is unlikely — an argument from Mishnaic technicalities does not work against the Gospel narrative.145 Sanders puts the matter best:
The gospel accounts do present problems, but disagreement with the Mishnah is not one of them. . . . The system as the gospels describe it corresponds to the system that we see in Josephus. The trial of Jesus agrees very well with his stories of how things happened.146
If judicial corruption or executions for political expediency seem implausible to readers in many contemporary liberal democracies, we would do well to recognize that they seem quite plausible to readers in many parts of the world today. 147
Further, the “trial” account of Matthew and Mark probably represents what was more technically a preliminary inquiry in which Jesus’ interrogators would be even less likely to regard the rules as constraining;148 a more formal hearing seems delayed until morning (Mk 15:1; Lk 22:66; cf. Jn 18:24). The hearing is not a technical trial in John (Jn 18:19-24, 28).149 Both the Synoptics and John agree that Jesus was first at the house of the high priest (Mk 14:53-54, 66; Lk 22:54; Jn 18:13-24). Although many regarded trials in the judge’s home as unethical,150 Josephus shows us that such informal trials could suffice for some high priests, who then made recommendations to the Roman governor.151
Finally, the Gospel writers probably intended to convey breach of procedure, not to pretend that the mock trial and abuse they depict were standard Jewish custom.152 (Again, we cannot be sure which Mishnah rules would have been respected by first-century Sadducees, but some of these principles were broadly Mediterranean legal ethics.) At this point we should pause to mention possible breaches of procedure (if the laws were early and the Gospel writers or their traditions seek to portray them as breaches of procedure). To the extent that the later sources provide a reliable picture of legal ethics that many in antiquity would have respected and at least considered ideal, probable breaches of legal ethics indicated in the Gospel trial narratives include the following.
First, judges must conduct and conclude capital trials during daylight;153 this may explain a late, brief, more official meeting around 5:30 a.m., before conducting Jesus to Pilate (cf. Lk 22:66-71; Jn 18:24), but the high priests probably were unconcerned with such details. Further, trials should not occur on the eve of a Sabbath or festival day,154 as this day is in John’s version (Jn 18:28).155 (Still, officials may have regarded this as an emergency situation. Even Pharisaic interpretation supported executing an extraordinary offender on a pilgrimage festival to warn others not to repeat the crime.)156 Pharisees, at least, probably would have disapproved of the haste involved in the verdict and execution. 157 Further, the Sanhedrin (or acting members thereof) should not meet in the high priest’s palace.158
Most obviously, Jewish law opposed false witnesses, reported in the Synoptic passion narratives (Mk 14:57). The biblical penalty for false witnesses in a capital case was execution (Deut 19:16-21), and later Jewish ideals, at least, continued to regard this penalty as appropriate,159 as did Roman law.160 Cross-examination of witnesses was standard in Jewish law,161 and apparently the examiners did their job well enough here to produce contradictions they did not expect (Mk 14:56, 59). (It is not very likely that Mark would invent their honor-ably accurate cross-examination.) In the end, these witnesses could provide only a garbled account of Jesus’ proclamation of judgment against the Temple (Mk 14:58; cf. Jn 2:19; Acts 6:14), which could have seemed to some members of the elite political reason enough to convict him.162
If the Gospels imply that the aristocratic priests did not observe the highest standards in legal ethics, they do not here contradict other early Jewish reports about many of the chief priests. Many officials in antiquity abused their authority, and minority Jewish groups felt that the chief priests did so. We have already observed that ancient Jewish sources regularly criticize the high priests of this period for abuse of power,163 and Josephus, a contemporary source who sometimes defends the high priests, is our most eloquent witness to the corruption that their power bred. In the time of Felix, high priests became so audacious that they sent their own servants to the threshing floors to seize the tithes that would have gone to poorer priests, leading to the death in poverty of some of the latter.164 Later we read of another aristocratic priest seizing their tithes; his bold servants would beat those who refused to comply.165 Josephus claims that a Jerusalem aristocrat bribed and persuaded the high priests to attack Josephus, using both Pharisees and priests as agents.166 Josephus also believes that a Jewish aristocrat, a friend of a high priest, arranged for the high priest’s assassination by bandits.167 Early rabbinic sources confirm the corruption of various high priestly houses.168 Ancient Jewish sources confirm rather than undermine the Gospels’ perspectives here, and the charge that the basic gospel portrait of the trial is anti-Jewish reflects a misunderstanding of first-century Judean politics and intra-Jewish conflict.