The Jewish Historian Flavius Josephus: A Biographical Investigation

was not familiar with Judaism, has misunderstood the legal status of the Sanhedrin since
during his own lifetime Herod had unlawfully dismissed this [very] Sanhedrin all but
completely when it came to capital matters. [182] What is correct here is the fact that, in
truth, according to a great number of passages collected by Juster (pages 128 to 129), Herod
and other kings passed a death sentence; but the legality of these sentences has never been
questioned either. Among the many very well-known gravamina of the Jews against Herod (Ant.
16.151; 17.304 ff.), the accusation that he had arrogated the right of the Sanhedrin to impose
the death penalty is not to be found; it corresponds to this that Josephus (Ant. 17.209), in one
of his own additions (cf. War 2.8), designates a conviction pronounced by Herod as “lawful”,
and finally, in order to justify himself, Herod recounted in his commentarii that he had
Hyrcanus put to death after he had presented the evidence of his guilt to the Sanhedrin. With
respect to the accusation of “persecution” that had been raised against him (Ant. 15.174),
Herod [himself] therefore considers it as a moral defence that he exhibited the evidence of
guilt to the Sanhedrin (loc. cit. 173), 62 but thereupon pronounced the death sentence himself.
He therefore did not deem it necessary to substantiate its legitimacy in law; he wishes only to
defend its correctness as regards content against attacks, which he felt were unjustified. So
there is no doubt that in Herod’s time the Sanhedrin was not [allowed] to decide upon capital
matters judicially either. Of course, it does also lie within the nature of the matter that the
Sanhedrin could not acquire its standing as a judiciary authority until the time after the
downfall of the Herodians when “the constitution was reorganized into an aristocracy and the
leadership of the people was entrusted to the priests” (Ant. 20.251).
Admittedly, it is not impossible that the entire status of previous periods has been
attached onto this; for example, one may not refer to the division of the land into five synedria
as reported by Josephus (Ant. 14.91) as evidence for this; because instead of this, they are
named σύνοδοι in the source (War 170) and taxation areas are intended. Nicolaus, however,
probably reported in this very passage that when Gabinius appointed Hyrcanus as high priest
he “entrusted the rest of the administration of the state to the best [people]” so that from then
onwards there existed an “aristocratic [183] constitution”. Therefore even if the name of the
been merged into one inseparable whole.
62 As a result, the frequently discussed question of whether the Sanhedrin or a family council of
Herod is meant in this passage loses its real significance; their opinion had no judicial value.
160