Megillath Esther and the Rule of Law: Disobedience and Obligation
38 Pages Posted: 11 Oct 2014 Last revised: 16 Aug 2016
Date Written: October 9, 2014
Strange is Megillath Esther, the Scroll of Esther. It mentions God not once, yet it is second only to the Torah, the Five Books of Moses, for wealth of rabbinic commentary. It recounts part of the sacred history of the Jews, yet it is set in Persia. It emphasizes the obligation of Jews to observe the holiday of Purim, yet it emphasizes at the same time the importance of violating legal obligations. Perhaps no other book of the Bible offers such a mix of plotting and ironic reversals, of mass partying and mass killing, of folly and deadly earnest.
All the same, perhaps no other book of the Bible offers wisdom on the legal order of more importance to contemporary America. The Scroll of Esther — often called simply, “the Megillah” — supports a fundamental rule of law while observing that some laws may be foolish and more honored in the breach. If America has become a land where it may be expected that the typical resident commits, in the words of Harvey Silverglate, “[t]hree [f]elonies a [d]ay,” and where the Executive Branch uses prosecutorial discretion as a dispensing power, it may welcome a lesson on how the rule of law might endure such a time. Perhaps the Megillah was written “for such a time as this.” (Esther 4:14.)
The Megillah exists to commemorate both God’s deliverance of the Jews and also the annual celebration of that deliverance, Purim. The record of the Jewish community’s taking upon itself the obligation to keep the festival of Purim culminates the Megillah. That obligation is one of law. But the story of the Megillah turns repeatedly upon instances when the heroes of the story disobey law, sometimes without penalty, and sometimes even with great advantage. And so arises the biggest irony in a work noted for its ironies: The Megillah imposes the obligation to obey a law founded indirectly upon disobedience to laws. To do so successfully requires that it distinguish between laws to be kept and laws not to be kept. Furthermore, it must make the distinction clear and authoritative enough that the two categories marked by the distinction do not bleed into one another. This distinction is essential to the Megillah. It also is essential to the health of a legal system of the sort now to be found in America.
This article explores the jurisprudence of the Megillah, focusing on the question of obedience and the rule of law. Part I summarizes the story of Esther. Part II takes a closer look at how law figures in the story. Part III poses the tension between law in the Megillah and the very purposes of the Megillah. Part IV explains how the Megillah resolves that tension in its teaching on legal obligation. Part V concludes with reflections on the significance of that teaching for the rule of law. This article presents the jurisprudence of the Megillah as a fundamental lesson of this book of the Bible.
Keywords: Esther, Obligation, Rule of Law, Disobedience, Hebrew Bible
JEL Classification: K19
Suggested Citation: Suggested Citation