Separation of Powers
The Torah provides a model for separating religious, judicial, and governing bodies--to keep power in check.
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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.
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