3 Elul 5773
Erev Shabbat Kodesh
Parashat Shoftim: On Jewish government
by Daniel Pinner
Parashat Shoftim contains 41 mitzvot, 14 positive and 27 negative. Among these are some of the most fundamental rules for how a Jewish state is to be governed, who the leaders are, what their responsibilities are to society and society’s responsibilities to them, the limitations of their powers, and so forth.
The parashah begins: “Judges and officers you shall place for yourself at all your city-gates which Hashem your God gives to you – to your tribes – and they shall judge the nation with righteous justice”.
The judges decide on justice, and the officers enforce justice. The Targum Yonatan paraphrases: “Judges of truth and physically strong officers you shall appoint….” The task of the officers is to use physical strength – violence when necessary – to enforce the decisions of the judges. Obviously a court’s decisions – the entire legal system – are only relevant insofar as the court is able to enforce those decisions.
Rashi explains the phrase “all your city-gates” to mean “in every single city.” He continues to explain that the expression “to your tribes” connects to the phrase “you shall place for yourself.” Hence the Torah here commands us to appoint judges for each tribe separately, and for each city separately.
This follows the Talmud (Sanhedrin 16b) which expounds: “From where do we derive that we appoint judges for each individual tribe? – From the words ‘judges…you shall place…to your tribes.’ From where do we derive that we appoint officers for each individual tribe? – From the words ‘officers…you shall place…to your tribes.’ From where do we derive that we appoint judges for each individual city? – From the words ‘judges…at all your city-gates.’ From where do we derive that we appoint officers for each individual city? – From the words ‘officers…at all your city-gates.’ Rabbi Yehudah says: One is appointed over them all, as it says ‘you [singular] shall place for yourself [singular].’ Rabban Shimon ben Gamliel says: ‘to your tribes – and they shall judge’ – each tribe has the mitzvah to judge its own tribe.”
Rashi comments on this: “ ‘One is appointed over them all’ – this is the Great Sanhedrin. ‘Each tribe has the mitzvah to judge its own tribe’ – the members of one tribe are not to go to a court of another tribe.”
An interesting model for governing the Jewish state arises. There is indeed a centralised legal system – the Great Sanhedrin, consisting of 71 judges, which rules over the entire state, over all the tribes. As befits the Jewish State’s Supreme Court, the Great Sanhedrin convenes in the Holy Temple in Jerusalem.
The Great Sanhedrin arbitrates only for matters of national importance: it appoints a king, it appoints the minor Sanhedrin of 23 judges in individual tribes and cities, it tries an entire tribe which has been led en masse to apostasy (Deuteronomy 29:17), it tries someone accused of being a false prophet (Deuteronomy 13:2-6) and a Kohen Gadol (High Priest) accused of a capital crime, it tries an Elder who is accused of rebelliousness (Deuteronomy 17:8-13, in our parashah), it has the sole authority to expand Jerusalem’s city limits and the boundaries of the courtyard of the Holy Temple, and it authorises a voluntary war (Rambam, Laws of Sanhedrin 5:1). The Great Sanhedrin would also try a king of Judah who was accused of a crime (Sanhedrin 19a), and its members would also constitute the ad hoc court which would decide when the new month began and when to declare a leap year and intercalate an extra month of Adar.
But issues of local importance come under the jurisdiction of the local Sanhedrin. Criminal and civil cases are to be adjudicated by denizens of the same city and sons of the same tribe as the litigants. This guarantees that justice is administered not by some remote, aloof, anonymous judge – as happens in Israel, and indeed in most countries today – but rather by a kinsman.
Thus according to the Tosafot (Sanhedrin 16b, s.v. shoftim le-khol shevet ve-shevet), “If there are people from two tribes in a single city, then we establish two Sanhedrins.”
If the judge is to administer genuine justice, then he has to be a kinsman, and genuinely feel himself to be a kinsman, of the litigants. He has to know and be part of the society in which the litigants live; he has to understand what drove the defendant to commit the crime, and he has to understand what the plaintiff has suffered by being a victim of that crime.
A few – a very few – countries have come close by adopting the jury system in trials, ensuring (at least in theory) that the defendant is tried by a jury of his peers. The Torah mandated, thousands of years ago, not only that the judge or judges be the peers of the litigants who stand before them, but also that the officers who enforce the law also be their peers. Such a system can only reinforce justice.
The Torah system of governing the Land of Israel also has a well-calibrated system of checks and balances. Each tribe has a high level of autonomy both in its judiciary and in its law-enforcement. These local Sanhedrins, all independent of each other, constitute one level of government.
Another level is the Great Sanhedrin in Jerusalem. As we have seen, the Great Sanhedrin would deal with national issues; it also functioned as an appeals court – a kind of check on the authority of the tribal and city Sanhedrins.
Independent of the Sanhedrin is the king – indeed the Talmud rules that “a king may not be appointed to sit on the Sanhedrin” (Sanhedrin 18b), which the Rambam cites as halachah in practice (Laws of Sanhedrin 2:4). The rationale is that disobedience to the king qualifies as rebellion; hence if the king sits on a Sanhedrin, then all the other judges would be forced to give the same decision as the king, making justice impossible.
The result, then, is a clear separation of power between the Sanhedrin and the king, both of whom represent temporal authority. Separate from both is the Kehunah (the Priesthood), representing spiritual authority.
Of these three organs of rule, the Kehunah is purely hereditary: the son of a Kohen is automatically a Kohen (assuming of course that the Kohen married a woman whom he was permitted to marry). Specific tasks in the Kehunah, however, up to and including the Kohen Gadol, were apportioned by merit.
The kingship, similarly, was hereditary, usually though not always to the king’s eldest son.
The Sanhedrin alone was not hereditary at all, and relied solely on merit. Any Jew who achieved a sufficiently high degree of learning and character could become a rabbi and a judge on the Sanhedrin.
This Torah system of government provided both separation of powers and local (tribal and city) autonomy, the combination of which are a very powerful bulwark against corruption and tyranny.
And then there was an additional branch of authority – the institution of prophecy. After providing the legislation for establishing the monarchy (17:14-20) and commanding that the tribe of Levi (including of course the Kohanim) have no portion and inheritance with Israel (18:1-2) – thus both ensuring separation of temporal and spiritual authority and also ensuring that the Kohanim and Levites could never become a form of landed aristocracy – Moshe informs the nation that God will send other prophets: “A prophet from among your midst, of your brothers, like me, will Hashem your God raise up for you; listen to him” (18:15).
In Moshe’s final days in this life, he reassured the nation: Though I am about to die, God will not leave you leaderless. There will be other prophets like me, prophets who will lead you, who will castigate even kings if they become corrupt, prophets who will be God’s mouthpiece crying out for justice and compassion.
For most of the first Jewish Commonwealth, this system worked remarkably well. In the second Jewish Commonwealth the Maccabees, the Hasmoneans, who were Kohanim, after defeating the Hellenists and restoring Jewish independence in Israel then arrogated to themselves the office of king. This inevitably led them within two generations to tyranny and corruption.
It was the eminent British historian and politician Lord Acton (John Emerich Edward Dalberg-Acton) who back in 1887 said, “Power tends to corrupt, and absolute power corrupts absolutely. Great men are almost always bad men.” Millennia ago, the Torah recognised this great if unfortunate truth and legislated for us a system of government which, if only applied properly, would guarantee that no one man or group of men would ever have too much power.