Jewish academic and Hebrew scholar Irene Lancaster explores the division of power in Deuteronomy.
Many years ago when I was living in Israel, I was approached at Haifa University by a leading academic. On behalf of a cross-party and cross-religious group of public intellectuals, lawyers and academics, he wanted to pick my brain on the British system of power. More specifically, he was interested in the role of Church, State and monarchy, and also how in the UK power was distributed between them.
I asked him why this was, and he said that most people were of the opinion that the judiciary in Israel was becoming far too strong and one-sided. Therefore, without either a constitution or a two-Party system, successive Israeli governments were finding that they were unable to govern properly and this was having repercussions both in Israel and in the wider world.
This was in 2007. So, I sat down and talked to him about what my father, a judge originally from Poland, had always told me was one of the glories of the British system. This was the distribution of power between the judiciary, the executive and the legislature. And as I spoke I realized that I knew more about our own system than I had thought, and was truly surprised that the consortium was really most interested in the role of the Queen. Did she have real power, or was it simply authority?
Fast forward to 2023 and the world is, as usual with ‘the Jewish question’, wading into a situation it does not understand, The State of Israel came into existence via emergency legislation, and never had time to sort out what has taken England over 1,000 years of trial and error, with regicide, religious discrimination and devolution along the way. Not to mention the French Revolution and its own bloody repercussions …
But Shabbat’s Torah reading, called Shoftim, (Deuteronomy 16:18 – 21:9), anticipates these very same problems of power and suggests one way of dealing with them.
The answer to power which corrupts is checks and balances. Therefore, towards the end of his life, Moses gives the Children of Israel instructions on how to separate King, judiciary and legislature.
Later the King would become what we now call the executive, but the Torah regards the institution of monarchy with – at best – ambivalence. Kings are not really a good thing. And therefore we can only try and curtail their sense of absolute entitlement by sugaring the pill. If we must have a monarch, at least this should be the will of all the people and he should be chosen by G-d.
This is absolutely not the 17th century ‘divine right of kings’, or Louis XIV’s ‘l’etat, c’est moi.’ This is, to be honest, far more like the American ‘we the people ….’ The king must not self-aggrandize. He must not accumulate horses, wives or money. On the contrary, he should read the Torah daily, and this includes all the commentaries, addenda, and loop-holes, including arguments against. The monarch, in other words, mustn’t throw his power around or curry favour. He should be extremely well read and be able to deal with affairs of state through piety. He must see all points of view and defer to the better educated, experienced and qualified in matters outside his remit.
The priestly class is the one closest to what we now call the legislature. They are learned in deriving laws from original principles, thus anticipating the later rabbinic system which replaces them. Their tribe of Levi is not apportioned any territory in the Promised Land: for sustenance, they have to depend on their brothers. As Levi is given to zealotry, it is felt that they are best placed to concentrate on Temple rites and practices. In this way their own power will be channelled away from the mess of everyday life.
The judiciary are the ancient judges of old. They have to be impartial and not take bribes. They must exclude themselves from cases where necessary.
So, what we have in Shoftim is a three-fold system of independent judiciary, divinely sanctioned king, and class of lawmakers. And limitations are put on all three in order to avoid abuses of power.
There is a higher authority over all three, and this is G-d Himself. To acknowledge G-d is to understand that the only way to avoid the opposite of what G-d wants is that the organs of government, religion and law have to be separate – there is no other way. And Kings have to remember that they are not G-d and are only there by the will of the people – all the people.
And what if it all goes wrong? What happens then? The answer lies in the book of Job. In Job 12: 17-25, it states of G-d:
‘He leads counsellors away stripped; and makes fools of judges. He loosens the bonds of kings and binds up their loins with a girdle. He leads priests away stripped, and the mighty he overthrows. He removes the speech of those who are trusted, as well as the sense and sensitivity of the elders. He pours contempt upon princes and loosens the belt of the strong. He uncovers deep things out of the darkness and brings to light the shadow of death. He increases nations and then destroys them. He enlarges nations and then leads them away. He removes the heart of the chiefs of the people of the land and makes them wander around in Tohu – no way. They grope in the dark without light. He makes them stagger like drunks.’
But our Torah reading on division of powers into three, coinciding with the beginning of the contemplative month of Ellul, does not include the obvious choice of the Book of Job as the accompanying Haftorah. Instead, to complement the Book of Shoftim, on the importance of checks and balances, we have the words of Isaiah (51: 12 – 52:12):
It is I, I am He Who comforts you. Who are you who should be afraid of a mortal man who will die and the son of man who will be set as grass? Have you forgotten the Lord, your maker…. Wake up!… How beautiful upon the mountains are the footsteps of the bearer of good tidings … Burst forth and sing together … for the Lord shall comfort His people …’
As we have seen, the Torah cannot be taken out of context. And how the early rabbis (meeting in hiding from their Roman overlords), managed to set out the order of the readings for our synagogue services, is a miracle in itself. The fact that they chose these passages from Isaiah as comfort at this time of year, just before the Days of Awe, is also, though, nothing less than a miracle. It is the miracle of people living in danger, but steeped in Torah learning and in the art of argument, who at the end win the day and are still going strong. For, where are the Romans today?
Many have stated that the 5th Torah Book, Deuteronomy, (Devarim in Hebrew), is the key to Jewish learning. But to unlock the door, we need the assistance of the very people to whom the Torah was intended. Reading without action isn’t really reading. And this is why Moses tells the Jewish people on the cusp of entry into the Promised Land – without him – that any King, any executive leader, must continue to read all his life and not just read, but act on this reading. Because reading is not only therapeutic – at best it is a call to action – to right action. The action that makes things come right – for this moment, at least.
For that is the best any mortal can do.
Republished from Christian Today UK.