Maimonides on the Liberty of the People

There is a curious artistic feature in the US Capitol: above the gallery doors in the House Chamber are 23 relief portraits, the faces of lawgivers from across history. They were identified by scholars, legislators, and the staff of the Library of Congress as sources for the American constitutional tradition, “noted for their work in establishing the principles that underlie American law.” 

Some of them are those you’d expect — influential English jurists like William Blackstone and Founding Fathers such as George Mason. At least one of the 23, though, may come as a surprise: Moses Maimonides. 

While Maimonides is indisputably a major figure in the history of Jewish law, his writings are not generally remembered as containing the seeds of modern liberty and constitutionalism. 

Perhaps, though, the link to Maimonides is not so far-fetched. 

Aside from codifying the law that all political leaders — even monarchs — are always subject to the rule of a higher constitutional law (see Mishneh Torah, Laws of Kings and their Wars, Chapter 3), Maimonides also included rules that were to govern the prerogative powers available in times of crisis or emergency. 

Relying on an earlier fundamental law recorded in the Talmud (“great is human dignity, which overrides even a prohibition of the Torah”), Maimonides ruled unequivocally that human dignity must be weighted heavily among the factors in any crisis decision, as it overrides even divinely-inspired legislation and decrees—and certainly mere positive law. 

Looking back today, it is obvious these rulings are important precedents for the principles of the rule of law and limited government that respects human rights. 

So how does Maimonides end up in the US Capitol as a source for American constitutional principles?   

An important figure in English constitutional history supplies the most likely connection. The 17th-century scholar and parliamentarian John Selden was a constitutional thinker well known to the American Founders. Along with Sir Edward Coke, he was closely involved in producing the 1628 Petition of Right, a milestone in the history of limited, lawful government. 

Selden today is usually remembered for his influence on modern international law, in which his view that countries can own part of the ocean largely prevailed over that of his contemporary, the continental scholar Hugo Grotius. A polymath described by the poet and political theorist John Milton as the most learned man in England, Selden spent a tremendous amount of his time studying Jewish legal sources, even though he was not himself Jewish.

The key he used to guide much of his research was Maimonides’ codification of Jewish law. Selden knew Maimonides well and wrote learned treatises on the relevance of Jewish law to contemporary legal theory, citing it as a major source in his debates with Grotius on the law of nations and as a necessary subject of study to understand natural law.  

Selden, though, was not simply a scholarly antiquarian; he also brought his vast learning with him to his work as an active member of Parliament. 

There is an ancient legal maxim frequently trotted out whenever a crisis or emergency appears, typically used to justify allegedly necessary government measures that are in fact unlawful. That maxim is salus populi suprema lex esto: “the safety of the people is the supreme law” (Cicero, De Legibus, Book III, right before his discussion of the Roman dictator).

I have seen other translations of “salus populi” as “the welfare of the people” or “the well-being of the people” or even “the health of the people.” Leaving aside which translation is most plausible, in our times the words resonate with calls for society-wide lockdowns and biosecurity authoritarianism. 

Partisans of crisis government in every age recite salus populi and its vernacular equivalents in order to claim that the seizure and deployment of illegal dictatorial prerogatives is actually the most lawful act of all and always for the people’s own good. 

It is noteworthy that during the constitutional crises gripping England in the 17th century, when another member of Parliament cited this maxim to justify the king’s power of discretionary imprisonment in emergencies, Selden retorted, “Salus populi suprema lex, et libertas popula summa salus populi” — the safety of the people is the supreme law, and the liberty of the people is the greatest safety of the people.  

Selden understood that reducing the people to unfreedom and subjugation to unaccountable political masters deprives them of their dignity. He threw his lot in with the liberty of the people, defining that as the true supreme law in politics. 

Maimonides, whose writings guided so much of Selden’s studies, had insisted centuries before on both the rule of law and the inherent, divinely-established dignity shared equally by all human beings — which was not to be violated, even in emergencies. This may explain his inclusion among the lawgivers in the Capitol. 

In these times, when calls for crisis government and more emergency powers for the administrative state seem to grow louder by the day, the legislators in Congress — the people’s representatives and trustees — ought to pause, look around the Capitol, and consider the long tradition of freedom and dignity that is our inheritance and could still be their legacy.