THE SEDRA OF SHOFTIM COMES AS CLOSE AS ANYWHERE IN THE TORAH to articulating a Jewish theory of government. The people were about to enter the land. They brought with them an
already ancient tradition, begun in the days of Abraham and Sarah and continued through their children. In Egypt they had become a people (am) and a nation (goi), forged by two experiences, their distinctive faith and their persecution and enslavement. They then underwent two experiences which have shaped Jewish identity ever since: exodus and revelation.
Exodus meant liberation by G-d. Revelation meant legislation by G-d. They had become a nation conscious of its uniqueness. In the words of the pagan prophet Bilaam: "It is a people dwelling alone, not counting itself among other nations."
Despite their antiquity, however, there was one thing they had not experienced: self-government. They had not yet entered the country they had been promised many generations earlier. Their ancestors had lived there - but as individuals, an extended family, a clan, not yet a nation. A fundamental problem now had to be addressed. What form of government should they adopt? How should the nation be ruled? How should power be exercised? Before we consider at the Torah's answer three background propositions should be born in mind.
The first is that biblical Israel did not represent a "religion" in the sense that word conveys today. "Religion" as we understand it in the contemporary West is the product of the Reformation, Protestant Christianity, and the history of Europe from the seventeenth century onward - the "wars of religion" and the emergence of the secular nation state. "Religion" in this sense is a faith and way of life one practices in private, at home or in a house of worship. It has little bearing on the public domain: government, society, the economy, the media, the way we order our collective life.
The Torah has a different view of things. The faith of Israel extended to almost every aspect of its collective existence. The Mosaic books contain legislation on criminal and civil law, welfare and the protection of the poor, agriculture and the way the land is distributed and worked, relations between employer and employee, and so on. Far from being confined to private life, the Torah is more interested in the public domain than in the inner odyssey of the soul.
Second, its view of politics was radical. Moses knew this and says so constantly throughout Devarim. Israel was to become a nation whose sovereign was not a human being but G-d Himself:
It was Josephus who (in his treatise Contra Apionem) gave this phenomenon a name. The fact that he had to invent a new word to do so tells us how distinctive it was. The ancient Greeks had names for the various forms of government -- monarchy, aristocracy, oligarchy, democracy -- but they had none for the sovereignty of G-d. To describe this, Josephus coined the term theocracy.
Today the word has negative connotations. It suggests rule by clerics, totalitarian regimes with little or no individual freedom, and the failure to observe one of the great principles of European and American modernity, namely the (formal or substantive) separation of church and state. As we will see, that is not what the Torah envisages at all. Jewish theocracy is not rule by priests. What it means is that all power within the state is delegated power. It operates within limits set by the overarching sovereignty of G-d. Freedom, in Judaism, is a religious concept. It means being the slave of no human being, because one is the servant of G-d alone.
Third, the very fact that Israel entered into its covenant with G-d long before it entered the land and began life as an independent nation tells us something fundamental about the place of politics within the Judaic vision. Politics is secondary, not primary. It is a means, not an end.
The worship of politics (the people, the state, the system) as an end in itself is a form of idolatry - most vividly enacted in the twentieth century as Fascism and Communism.
The Torah is a unique attempt to create a nation governed not by the pursuit of power or the accumulation of wealth but by recognition of the worth of each person as the image of G-d.
Judaism is more interested in society than state, in relationships more than governmental structures. It sees society as the arena in which specific ideals are realised: justice, compassion, the rule of law combined with respect for the sanctity of life and the dignity of the individual. The Torah is a unique attempt to create a nation governed not by the pursuit of power or the accumulation of wealth but by recognition of the worth of each person as the image of G-d. Needless to say, this is an almost impossibly high ideal, and much of the Hebrew Bible (especially the prophetic books) is devoted to telling the story of how Israel fell short time and again. But it never lost the aspiration or the dream.
Shoftim begins by setting out the ideal of a society based on justice:
Appoint judges and officials for each of your tribes in every town the LORD your G-d is giving you, and they shall judge the people fairly . . . Follow justice and justice alone, so that you may live and possess the land the LORD your G-d is giving you.For the Torah, as John Locke put it, "Where there is no law there is no freedom." Indeed, the Judaic system might be best described as a nomocracy. In the famous saying, it represents "the government of laws, not of men."
It then describes three types of leader: the king, the priest and the prophet. First the king:
When you enter the land the LORD your G-d is giving you and have taken possession of it and settled in it, and you say, "Let us set a king over us like all the nations around us," be sure to appoint over you the king the LORD your G-d chooses . . . When he takes the throne of his kingdom, he is to write for himself on a scroll a copy of this law, taken from that of the priests, who are Levites. It is to be with him, and he is to read it all the days of his life so that he may learn to revere the LORD his G-d and follow carefully all the words of this law and these decrees and not consider himself better than his brothers and turn from the law to the right or to the left . . .The emphasis here is on the limitation of monarchy. The king must not multiply wives, horses, or silver and gold. He must study the Torah constantly and never transgress it (we have here the birth of constitutional monarchy: the king is not above the law). There is also more than a hint that monarchy is an alien import into Judaism. It is the only command in which the words "like all the nations around us" appears.
The second institution is the priesthood and the wider circle of Levites:
The priests, who are Levites - indeed the whole tribe of Levi - are to have no allotment or inheritance with Israel . . . They shall have no inheritance among their brothers; the LORD is their inheritance, as he promised them . . . for the LORD your G-d has chosen them and their descendants out of all your tribes to stand and minister in the LORD's name always.Third is the prophet:
The nations you will dispossess listen to those who practice sorcery or divination. But as for you, the LORD your G-d has not permitted you to do so. The LORD your G-d will raise up for you a prophet like me from among your own brothers. You must listen to him . . . The Lord said to me . . . "I will raise up for them a prophet like you from among their brothers; I will put my words in his mouth, and he will tell them everything I command him. If anyone does not listen to my words that the prophet speaks in my name, I myself will call him to account."What is the significance of these three institutions?
We owe to the eighteenth century French thinker Montesquieu the principle of "the separation of powers." In L'Esprit des Lois, he spoke of three branches of government: the legislature, the executive and the judiciary. In biblical times Isaiah had already formulated a similar division in speaking of G-d: "For the Lord is our judge (=judiciary); the Lord is our law-giver (=legislature); the Lord is our king; He will save us (=executive)." For Montesquieu, this separation was essential to a free society:
Liberty does not flourish because men have natural rights or because they revolt if their rulers push them too far; it flourishes because power is so distributed and so organized that whoever is tempted to abuse it finds legal restraints in his way.
The priest teaches the word of G-d for all time; the prophet, the word of G-d for this time. Something like - though clearly not the same as -- this idea is implicit in the threefold structure of king, priest and prophet. The king led the people in battle. He recruited an army, levied taxes, and was responsible for civic order. The priest mediated the relationship between the people and G-d. He served in the Temple, offered sacrifices, and ensured that the holy was at the heart of national life. The prophet brought the word of G-d to the people and the cause of the people to G-d.
The three roles were quite distinct. Indeed the Hebrew Bible as a whole is an interweaving of their different voices. The priest speaks of separation and order, purity and impurity, the holy and the secular. The prophet speaks of relationships: justice and righteousness, compassion and mercy. The king uses the language of chokhmah, (worldly) wisdom. Not accidentally, two of the great wisdom works of the Hebrew Bible, Proverbs and Kohelet (Ecclesiastes), are attributed to Solomon, the king who asked G-d for wisdom and eventually acquired it in greater measure "than the wisdom of all the men of the East and greater than all the wisdom of Egypt."
The priest teaches the word of G-d for all time; the prophet, the word of G-d for this time. The king is more immersed in the immediate demands of statecraft. He is less teacher than taught. He turns to the priest and prophet for advice. Nonetheless it was the king to whom tradition attached the command of reading the Law (sections of the book of Devarim) at the national gathering every seven years. He was charged with ensuring that the people did not forget its covenant with G-d.
The Hebrew Bible gives us several glimpses of this structure at work. Here, for example, is the moment when David appoints Solomon as his successor:
King David said, "Call in Zadok the priest, Nathan the prophet and Benaiah son of Jehoiada." When they came before the king, he said to them: "Take your lord's servants with you and set Solomon my son on my own mule and take him down to Gihon. There have Zadok the priest and Nathan the prophet anoint him king over Israel. Blow the trumpet and shout, 'Long live King Solomon!' Then you are to go up with him, and he is to come and sit on my throne and reign in my place. I have appointed him ruler over Israel and Judah."The decision made by the king (David) must be ratified by the priest (Zadok) and the prophet (Nathan) before it is valid. Similarly when the Torah, having been hidden during the reign of one of Israel's anti-religious kings (the commentators say this was either Ahaz or Mannasseh) was rediscovered during the reign of Josiah, the king summons the people to a ceremony of covenant renewal:
Then the king called together all the elders of Judah and Jerusalem. He went up to the temple of the LORD with the men of Judah, the people of Jerusalem, the priests and the prophets - all the people from the least to the greatest. He read in their hearing all the words of the Book of the Covenant, which had been found in the temple of the LORD.Again we note the presence, alongside the king, of the priests and prophets.
According to the sages, major national decisions such as an optional war (milchemet reshut) or an extension of the boundaries of Jerusalem required the assent of all three powers. Indeed it is in the Mishnah that we find the first explicit description of the three powers as "crowns":
There are three crowns: the crown of Torah (=prophecy), the crown of priesthood and the crown of kingship; but the crown of a good name excels them all.The attitude of the sages is best expressed in their critique of one of the Hasmonean kings, Alexander Yannai, who in their view breached the rule of the separation of powers, acting as both king and high priest. The Talmud records the sages' verdict:
"O King Yannai, let the royal crown be sufficient for you; leave the priestly crown to the descendants of Aaron."
Needless to say, for virtually the entire period of rabbinic Judaism from the time of the Mishnah to the birth of the State of Israel in 1948, Jewish political thought was more theoretical than practical. Jews lacked sovereignty. At best they had limited powers of communal autonomy. Nowhere did they have scope for full self-government. During the Middle Ages, Moses Maimonides, Rabbi Nissim of Gerona (the Ran) and Don Yitzhak Abrabanel all made significant contributions to the development of a Jewish philosophy of government. Maimonides had a high view of monarchy (not unlike Plato's theory, in The Republic, of the philosopher-king). Abrabanel took the opposite view. Like Lord Acton four centuries later, he thought that "power tends to corrupt and absolute power corrupts absolutely," and that monarchy was a biblical concession rather than an ideal.
Rabbi Nissim held a middle position. According to him, Divine law - timeless and eternal - represents ultimate justice, but neither human beings nor the societies they construct are timeless. Hence there is always a need for temporary enactments and ad hoc penalties "so as to enhance political order in accordance with the needs of the hour, even if the punishment is undeserved according to truly just law." That is what, in biblical Israel, the king did. Thus there are, according to Ran, two legal systems in Judaism, one administered by the priests and later the Sanhedrin, the other by the king. The former applied
eternal principles, the latter dealt with strictly temporary needs.
It was left to Rav Abraham ha-Cohen Kook in the twentieth century to argue that kingship (like the leadership of the judges in pre-monarchic Israel) was essentially a decision on the part of the people to be ruled in a certain kind of way, and that therefore, in the absence of a king, those powers reverted to the people. 10 It followed that a democratically elected assembly such as the Knesset was the functional equivalent of a (non-Davidic) king. Democracy is thus not alien to Judaism, though the powers of a government, however elected, are restricted to purely temporary enactments.
What we learn from this history is that, from the earliest times, Judaism wrestled with problems of politics and governance. Necessarily so, since the aim of the Torah is to create a particular kind of society, one with holiness and social justice at its midst. There is in the Bible no equivalent of the systematic treatises produced by Plato and Aristotle, nor is there much reflection on the different forms of government (monarchy, democracy and so on). In fact Jews have tried almost every form of government, from elders to judges to kings to councils to the Knesset.
The real difference between Judaism and the heritage of ancient Greece is that Jews did not see politics as the highest expression of collective life. It was necessary ("Pray for the welfare of the government," said Rabbi Hanina, "for without it, men would eat one another alive" 11). But it was also - as the prophetic literature so eloquently testifies - fraught with dangers of corruption and compromise. The best defence of liberty is to ensure that not all powers are concentrated in a single person or institution. An independent priesthood was necessary to ensure that the service of G-d was never enlisted for purely political ends. Prophets were necessary to "speak truth to power" and expose injustice and oppression. Hence the tripartite structure set out in Shoftim.
Perhaps Judaism's deepest political truth is that people do not exist to serve the state. The state exists to serve the people, whose true service is not to man but to G-d.