How the Bible anticipated Israel’s fight over the judiciary

by Andrew Silow-Carroll

(JTA) — For those following the judicial reform crisis in Israel, this week’s Torah portion is almost too on the nose.

For months now, Israel has been convulsed by protests in response to a plan by Prime Minister Benjamin Netanyahu to “reform” Israel’s Supreme Court by stripping it of much of its powers of oversight and shifting the balance of power heavily in favor of the legislature. Defenders of the reform call it a corrective measure meant to rein in a high court that too often flouts the will of the democratically elected Knesset. Critics see it as an assault on democracy — particularly in removing the checks and balances that are the hallmarks of Western democracy — and even on biblical principles.

Many of those principles are found in Parashat Shoftim, part of a long section of legal instructions given by Moses to the people of Israel. Among other things, it sets up three seats of power: a king, a judiciary and a sort of proto-legislature.

Here’s what Moses says about the judiciary in the first words of the portion: “You shall appoint magistrates and officials for your tribes, in all the settlements that your God is giving you, and they shall govern the people with due justice.”

The executive branch comes next. The people are given permission to set a king over themselves, “one chosen by your God.” Not exactly a democracy, but there is at least a presumption that the people can decide if they want a king in the first place.

The portion doesn’t explicitly describe what we would call a legislature or elected body of lawmakers, but various commentators say it is implied by the creation of a priestly class. Rabbi Lawrence Hoffman notes that the priests were “a legislature of sorts,” who could interpret old laws to derive new ones, much as the rabbis of the Talmud would derive new laws based on biblical precedents.

This is the three-legged stool described in Shoftim: an independent judiciary, a divinely sanctioned king and a class of lawmakers. And because the portion is keenly aware of the potential for the abuse of power, it immediately puts limitations on all three.

“You shall not judge unfairly,” the magistrates and officials are told. “You shall show no partiality; you shall not take bribes, for bribes blind the eyes of the discerning and upset the plea of the just.”

The king can’t keep a stable of horses, a harem of wives or a trove of silver and gold, all marks of privilege that suggest a ruler is out of touch with his people. And perhaps most importantly, he can’t sit on his throne without a copy of the Torah close by — a reminder that a king’s authority derives from somewhere beyond and higher than himself. The Torah also is the moral and legal foundation of the society, and accessible to all. “It is this Torah which reminds him that, even though he is a king with tremendous power over others, underneath his robes he is just a human being who struggles like every human being to gain and maintain control over himself,” writes Hadar’s Dena Weiss.

The priests too are constrained. Their whole tribe, Levi, is the only one not given a territory within Israel, and is essentially supported by a system of tithes imposed on the other tribes. This has always reminded me of the decision to put the U.S. capital in its own district: The founders worried that, if placed in one of the states, the federal government “might be insulted and its proceedings interrupted with impunity,” as James Madison put it.

Judaism, wrote the late Rabbi Jonathan Sacks, “is an argument for the limitation, secularization and transformation of power.” The genius of this week’s portion lies in a sort of pragmatic cynicism: It understands how power corrupts, how easily judges might be swayed, how kings might put self-interest ahead of the will of the people, how lawmakers are vulnerable to special interests. It not only sets up a system of checks and balances, but reminds all of the stakeholders that they answer to a higher authority. The Torah calls it God. The American system invokes “the consent of the governed.” “Consequentialists” derive it from the “common good” or “moral values.”

You should probably be wary of relying on the Bible as a guide to contemporary politics. You can probably find evidence for any political idea or decision in its pages, and plenty of people have. And the fight over the judiciary is in part a fight to keep the state more secular and less religious.

But as a piece of political wisdom, Shoftim is hard to beat.