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Sunday, December 25, 2016

How Federalism Saved Baby Jesus

There are plenty of reasons for a federalism-loving con law prof to like the Christmas stories in Luke and Matthew. Take, for instance, Joseph's returning to Bethlehem to be registered for taxation purposes: According to one strand of (albeit contested) Biblical scholarship, Luke was implicitly acknowledging a peculiarity of imperial fiscal policy whereby a taxpayer could choose to pay their taxes in either their place of current residence or their ancestral home where they owned real estate. In other words, the entire trek back to Bethlehem recorded by Luke 2:2 may have been an instance of taxpayer forum-shopping to reduce tax liability.

The much more important instance of federalism-based foot-voting in the Christmas story, of course, is the Flight to Egypt recorded in Matthew 2:13-23, in which the Holy Family flees from Judea to Egypt after being tipped that Herod the Great was seeking to exterminate potential political rivals -- including infants. Unlike the Roman tax system and the Census of Quirinius, which is a perennial topic of debate among Biblical scholars, the Roman Empire's system of asymmetrical federalism is well-documented. Different jurisdictions within the empire were governed by different legal regimes: Judea, for instance, was a client state in the process of being romanized by Herod the Great, while Egypt was an "Augustal prefect," meaning that the Emperor, not the Senate, appointed its chief executive.

The beauty of asymmetrical federalism from the point of view of imperial administration is that it allows the regime at the center to cut separate deals with different local elites based on their relative strength. But the advantage of such systems from the subject's point of view is that they magnify opportunities for foot-voting, because the administrative differences between the jurisdictions help insure that a single political regime will not control every unit. Herod the Great simply had no ties to the prefect of Egypt, because they were promoted through entirely different routes, so the Holy Family could flee confident that there would be no extradition back to Judea. (This interjurisdictional asymmetry between client states and imperial bureaucrats also featured in the Passion story of Luke 23:2, when Pontius Pilate sent Jesus to Herod the Great's son ostensibly enforcing a domicile-based theory of penal jurisdiction but really a buck-passing gesture akin to Pullman abstention, in my view).

In short, whether you are a believer or a skeptic, you can still enjoy the Christmas story as an example successful foot-voting in a federal regime. There is a lesson here for modern America, I think, as Year I of Trump Imperator looms. So have a merry federalism-loving Christmas!

Posted by Rick Hills on December 25, 2016 at 08:16 AM | Permalink


In regards to the Massacre of the Innocents, keeping in mind that Herod targeted a specific region that was indicated by the Wise Men (ie. the vicinity of Bethlehem), Bethlehem was not a major city, it was not even a major town, it was a village. At most, there would have been 200-300 hundred people living there. As such, there would have only been something on the order of 6-7 children that would have fit the criteria (male children, two years old and under). You are correct in that Josephus does not mention the event taking place but he had recorded the family tree trimming Herod did once he came to power (father-in-law, mother-in-law, wife, wife's uncle, 2nd wife, 3 sons, etc).

And by the last few years of his life, Herod had become very paranoid. On one occasion, in 7 BC, he had 300 military leaders executed (Antiquities 16:393-394; LCL 8:365). On another, he had a number of Pharisees executed in the same year after it was revealed that they predicted to Pheroras’ wife [Pheroras was Herod’s youngest brother and tetrarch of Perea] “that by God’s decree Herod’s throne would be taken from him, both from himself and his descendants, and the royal power would fall to her and Pheroras and to any children they might have” (Antiquities 17:42-45; LCL 8:393).

So although it is not recorded, it would certainly fit within the general operations of Herod. Also, Josephus did not record a number of other events that took place at approximately the same period. For example, the episode of the golden Roman shields in Jerusalem which was the cause of the bad blood between Herod Antipas and Pontus Pilate. It should also be noted that Josephus gained most of his information about Judea through Nicolas of Damascus, who was a personal friend of Herod and may not have wanted to add any additional damage to Herod's reputation (Brown 1993:226, footnote 34). So Josephus, writing at the end of the first century AD may not have been aware of the slaughter in Bethlehem at the end of the first century BC.

Apologies for the length of the reply, I like history. :)

Posted by: Randy | Dec 30, 2016 9:03:58 AM

The basic concept of national rights in this country is that you should not have to rely on the local ruler not being a tyrant that murders babies because of astrologer readings or some such thing. Some bare minimum of rights should be protected for all. I'll take the gospels as they are, personally thinking they are useful myths even when not historically accurate (the birth narratives are likely not per median historical scholarship to my knowledge),

Posted by: Joe | Dec 27, 2016 2:40:53 PM

A problem here is that the Massacre of the Innocents probably didn't happen either. Josephus doesn't mention it, and Geza Vermes says that it "could be history, legend, or an amalgam of the two." (The Nativity: History and Legend, chapter 8.)

If St. Matthew made it up, and St. Luke made up the Census of Quirinius, then those asymmetrical federalism legends have the same status as ... Chief Justice Roberts' account of Medicaid?

Posted by: Mark Regan | Dec 27, 2016 11:46:50 AM

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