Parashat Shoftim
Separation of Powers
The Torah provides a model for separating religious, judicial, and
governing bodies--to keep power in check.
By Rabbi James Jacobson-Maisels
This commentary is provided by special arrangement with
American Jewish World Service. To learn more, visit www.ajws.org.
Parashat Shoftim is concerned with the structures of
governance of biblical society and their just operation: the government and its
military, the courts, and the religious authorities. Having emerged from the
foreign slavery of Egypt and now attempting to maintain the freedom
achieved in the Exodus, the parashah is concerned
with ensuring the fair functioning of these three institutions. That is, the
Torah explicitly limits exploitative possibilities by separating the centers of
power and placing constraints that keep these institutions functioning
appropriately.
The
Rabbis speak of Israel as crowned with three crowns--the crown of
kingship, the crown of Torah, and the crown of priesthood (Mekhilta
de-Rashbi 19:6).
In early Jewish history these three crowns were, for the most part, kept
distinct as rival centers of power in Jewish society. Most democracies today
have echoed this model. Religious, judicial, and governing bodies are kept separate
from each other and each saddled with limits so that their exploitative and
oppressive potentials are restricted, while their productive and progressive
possibilities are cultivated.
For
the Jews, to not limit these institutions would have been to exchange the
foreign slavery of Egypt for the internal slavery of fellow Israelite
domination. This week's parashah outlines the original separation of powers.
Judges, Kings, Priests
It
first discusses the legal system, stressing that judges must decide cases
justly, show no favoritism, and take no bribes (Deut. 16:18-20). The
parashah clearly
lays out rules for the exercise and limitation of their power. We learn that it
is only when judges are bound by such rules that their decisions are legitimate
and can be enforced (Deut. 17:10-11).
Next,
the parashah turns to the institution of kingship. We are told that an
Israelite king must regularly review the law to which he is bound and
not "act
haughtily toward his fellows (Deut. 17:18-20)." Moreover, the Torah particularly
instructs that the king should not multiply his horses, women, or wealth
(Deut. 17:15-17)
and must not (Deut. 17:16) "send people back to Egypt to add to his horses, since
the Lord has warned you, 'You must not go back that way again.'"
The
Torah is warning that if the king engages in reckless military aggrandizement,
the Israelites will experience an internal oppression in their own land that
harks to their days of foreign domination in Egypt. These limitations are
designed to prevent kingship from becoming an exploitative institution.
The
third crown--the
priesthood--is
discussed next. The parashah states that the Cohens and Levites, the tribes that
conduct and oversee the ritual observance in the Temple, have "no territorial
portion"
of their own in Israel but rather must live off the offerings made by the
Israelites to God (Deut. 18:1-8). Here, the center of religious power is
prevented from amassing economic power and is forced to live off the generosity
of the rest of the nation. The nation's religious leaders, themselves the center
of great power, are prevented from exploiting their rank.
Post-Colonial Tyranny
These
limitations are designed to keep biblical society functioning altruistically
and without corruption, to distinguish it from the unjust governance of
Egyptian slavery. Sadly, this lesson has been lost in much of the Global South,
where external colonial oppression has too often been exchanged for home-grown
tyranny, precisely because power and institutions were not limited and
separated.
Mugabe's Zimbabwe, Musharraf's Pakistan, and Castro's Cuba are all
examples of power gone awry. The centralization of all power forms in one
person, coupled with the limitless use of their power, results in unjust and unbearable
societies. We witness the results in the news daily and grieve for the
communities struggling under the burden of such oppressive and unfettered
governance.
Yet this week's parashah offers a glimpse of a society of a different
order. Through promoting the development of civil society, AJWS grantees help
to bring into reality the promise of our parashah: a just society
of limited power held by many.
Rabbi James Jacobson-Maisels is pursuing a Ph.D. in
Jewish Studies specializing in Kabbalah and Hasidism at the University of
Chicago. He teaches on Judaism and Jewish Mysticism in a variety of settings in
America and Israel.
