Bar-Ilan University's Parashat Hashavua Study Center

Parashat Shoftim 5767/ August 18, 2007

Lectures on the weekly Torah reading by the faculty of Bar-Ilan University in Ramat Gan, Israel. A project of the Faculty of Jewish Studies, Paul and Helene Shulman Basic Jewish Studies Center, and the Office of the Campus Rabbi. Published on the Internet under the sponsorship of Bar-Ilan University's International Center for Jewish Identity. Prepared for Internet Publication by the Computer Center Staff at Bar-Ilan University. Inquiries and comments to: Dr. Isaac Gottlieb, Department of Bible, gottlii@mail.biu.ac.il

 

 

Law and Sovereignty

 

Dr. Amos Barde’a

 

Faculty of Life Sciences

 

Parashat Shofetim is read as we usher in the month of Elul, the month of mercy and penance, the period of preparation for the High Holy Days.   The Jewish New Year revolves around the notion of accepting the sovereignty of Heaven and accepting the Lord’s kingship over all of existence.  Over the generations this day has taken shape as the day of judgment, a day on which all creatures are called to account in the heavenly court.   So it is entirely fitting that the themes of establishing legal institutions as well as sovereignty also figure in this week’s reading.  Moses instructs the people in the details of these institutions prior to their entering the land.

The first topic in this week’s reading is the command to establish institutions of law and law enforcement.  Further on in the reading Moses gives instructions regarding establishment of the institution of kingship, should the people desire such an institution.  In this brief sketch I would like to compare these two institutions – legal and royal – and examine their interrelationship as set forth in this week’s reading. [1]

As mentioned, the reading of Shofetim deals with the body public of Israelites and their obligation to establish social institutions that will regulate society according to the laws of the Torah.   The Israelites are commanded from the outset to establish legal institutions:  “You shall appoint magistrates and officials for your tribes, in all the settlements that the Lord your G-d is giving you, and they shall govern the people with due justice” (Deut. 16:18), whereas the instruction regarding establishment of the political institution of kingship is only given after the fact:

If, after you have entered the land that the Lord your G-d has assigned to you, and taken possession of it and settled in it, you decide, “I will set a king over me, as do all the nations about me,” you shall be free to set a king over yourself, one chosen by the Lord your G-d.

The Kingship

Establishing a kingship in Israel is conditional upon popular demand to be like all the other nations; in contrast, establishing legal institutions is a divine command, just as all the nations of the world are supposed to follow the seven commandments expected of the descendants of Noah.

The Torah enlarges the status and authority of the legal institution, on the one hand, and curtails the status and authority of the crown, on the other.  The status and authority of the legal institution find expression in the following details:

1.               It is vested with authority over the institutions of law enforcement, to see to it that the latter carries out the law.   “Magistrates and officials” – this refers to two authorities that are as one, as Rashbam interprets the verse:  “The magistrates command the officials.” [2]

2.               Inheriting the land is dependent on justice being done:   “Justice, justice shall you purse, that you may thrive and occupy the land that the Lord your G-d is giving you” (Deut. 16:20).

3.               The status of the judge is equated to that of the priest; the instruction of the judges are equivalent to the instructions of the priest, and therefore the high court is also seated in the place that the Lord shall choose in Jerusalem (Deut. 17:9-10):

… and appear before the levitical priests, or the magistrate in charge at the time, and present your problem.   When they have announced to you the verdict in the case, you shall carry out the verdict that is announced to you from that place that the Lord chose.”

4.               The rulings of the judges are considered absolute, as reflecting the view of the Almighty:  observing scrupulously all their instructions to you” (Deut. 17:9-10), as well as, “You shall act in accordance with the instructions given you and the ruling handed down to you; you must not deviate from the verdict that they announce to you either to the right or to the left” (Deut. 17:11), and as Rashi interprets:  Even if someone tells you of right that it is left, or of left that it is right.”   Nahmanides adds there, “the significance of their opinions is stipulated by the Torah, even if they be wrong.” [3]

Limiting Absolute Rule

In contrast, the authority of the king is curtailed by restrictions and limitations:

1.                He is forbidden to acquire extensive possessions, wives, or horses, nor is he permitted to conquer Egypt in order to acquire more cavalry.  Belongings and horses represent economic and military strength at the king’s disposal and give force to his domination and sovereignty, and having many wives represents social status.

2.                The king is required not to look down upon the people:   “thus he will not act haughtily toward his fellows” (Deut. 17:20).

3.                The obligation that he obey the Torah and follow the rulings of its interpreters finds expression in the requirement for him to have written a Torah scroll by the levitical priests:  “He shall have a copy of this Teaching written for him on a scroll by the levitical priests” (Deut. 17:18) – hinting at the king being subordinate to the spiritual authority.  Another indication of this subordination is found in the formulation of the verse:  “Thus he will not act haughtily toward his fellows or deviate from the Instruction to the right or to the left” (Deut. 17:20).  The expression, to the right or to the left relates back to the verse, “You shall act in accordance with the instructions given you and ruling handed down to you; you must not deviate from the verdict that they announce to you either to the right or to the left” (Deut. 17:11), which verse establishes the absolute authority of the Sages.   Hence, the instruction given the king not to “deviate from the Instruction” is the precept that “you must not deviate from the verdict that they announce to you either to the right or to the left,” which, as we have said, indicates absolute subordination of the king to the views of the Sages and magistrates.

4.                The general spirit of the verses expresses the susceptibility of the crown to spiritual degeneration; therefore, it must surround itself with many restrictions, constantly relating to the spirit of the Torah and the commandments, even strictly adhering to the Torah itself:   Let it remain with him and let him read in it all his life, so that he may learn to revere the Lord his G-d, to observe faithfully every word of this Teaching as well as these laws” (Deut. 17:19).

If we were to see in this week’s reading a model for structuring the institutions of the state, then the legislature would be the Torah itself and the magistrate would be the one who, to the best of his understanding, applies the principles of the Torah in the courts, thus himself also participating in the legislative process.  The crown, as the institution of absolute rule accepted among the other nations of the world, does not exist in Israel at all, since the status of the king is practically eliminated, his realms of authority being non-existent and he himself being subordinate, like the rest of his fellows, to the Torah and its commandments, these being determined by the legislative and judicial authorities.  Such a model is highly revolutionary, certainly in comparison to accepted practice in the biblical period. Paradoxically, the wish to have a king like all the other nations, as an earthly human authority, becomes the rule of the kingdom of Heaven over earth by means of the judicial authority.  Likewise, in the opposite direction, the kingdom of Heaven is realized on earth by the Sages and their human understanding of the instructions of the Torah, hence the kingdom of Heaven grows out of the earth, as it says in Psalms (85:12):  “Truth springs up from the earth”.

The Judges

In the period of the judges the principles of the Torah were supposed to be applied without any need for a king to reign.   The transition from the period of the judges to the period of the kings took place in the wake of the wayward practices of the judges.  The undesirable behavior of Samuel’s sons prompted the people to ask for a king, like the other nations:  “All the elders of Israel assembled and came to Samuel at Ramah, and they said to him, ‘You have grown old, and your sons have not followed your ways.   Therefore appoint a king for us, to govern us like all other nations’” (I Sam. 8:4-5), and further on, “and the Lord replied to Samuel, ‘Heed the demand of the people in everything they say to you.  For it is not you that they have rejected; it is Me they have rejected as their king’” (I Sam. 8:7).  Samuel tried to dissuade the people from insisting on a king and described the disadvantages of sovereign domination, however the people stood fast to their demand:   “But the people would not listen to Samuel’s warning.  ‘No,’ they said.  ‘We must have a king over us’” (I Sam. 8:19). 

A Legitimate Demand

Indeed, Maimonides wrote in Hilkhot Melakhim (1.1), that according to the view of Rabbi Jose in Tractate Sanhedrin (20b), setting a king to reign is the first commandment that Israel is obliged to perform upon entering the land.  Moreover, the status of the king according to this ruling stems from recognition that having a king is a need that is not to be frowned upon, [4] and an attempt was made to give the kingship a character similar to that given the judicial system in the Bible, so that the crown in Israel not be like that of all the other nations. [5]

Thus, in the view of the Torah, the desire for a king is a function of the aspiration to have human rule according to the Lord’s sovereignty.  Only through acceptance of the sovereignty of Heaven by obeying the laws of the Torah can one achieve full freedom, as it says in Midrash Rabbah:   “Do not read harut (engraved – as on the Tablets of the Covenant), rather herut = freedom.” Accepting the sovereignty of Heaven also goes well with the principle that says, “They are servants to Me, not servants to servants” (Bava Metzia 10a).   Sovereignty that has the authority to enforce laws that are beyond the rubric of the instruction given in the Torah is bound to become sullied and go bad, and therefore sovereignty must be made subject to the laws of the Torah and emptied of its status and authority.   This important message is especially apt for the High Holy Days, when we stand trial before Heaven and accept G-d’s rule, thus expressing our freedom with respect to any earthly authority.

                                                                                                                  



[1] This presents things as they follow from the plain sense of Scripture.  In actual practice, the status of the crown was different, as I shall make clear below.

[2] Similarly Ibn Ezra on this verse, who explains that “the judges are those who govern.”   It seems that in his view the executive authority is the ruling body or sovereign, among whose duties is law-enforcement through a system of police officials.   In the time of the kings, legislation, adjudication and law enforcement were under the crown.   As support for this notion the Da’at Zekenim commentary cites the adjacent verses: “David executed true justice among all his people, Joab son of Zeruiah was commander of the army” (II Sam. 8:15-16).   “What does the one have to do with the other?  David adjudicated the cases and Joab saw to it that the sentences were carried out.”

[3] Nahmanides relies on the story in Tractate Rosh ha-Shanah 24b, regarding sanctification of the new month.  Rabban Gamaliel, the head of the rabbinical court at Jabneh, forced Rabbi Joshua to come to him with his staff and purse on the day which according to Rabbi Joshua’s calculations was the Day of Atonement, simply in order to prove that his authority was what determined the matter, notwith-standing Rabbi Joshua’s different calculation.

[4]See the positive attitude of Pirkei Avot (3.2) towards a king, in contrast to the recommendation to keep away from having a king (1.10), as well as Pirke Avot 2.3.

[5] Rabbi Eliezer draws a distinction between a king as a judge and a king as all the other nations have:  If … you decide, ‘I will set a king over me.’  It is taught:  Rabbi Eliezer says:   the elders of the generation asked properly, as it is said (I Sam. 8:5):  ‘Appoint a king for us, to govern us,’ but the common people spoiled things, as it is said (I Sam. 8:20): ‘that we may be like all the other nations’ (Sanhedrin 20b).  Also note how the king is appointed by a Sanhedrin of seventy (Maimonides, Hilkhot Melakhim 1.3).