Separation of Powers

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 Torah portion 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 Torah portion 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 Torah portion 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).

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Next, the portion 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 portion states that the Kohens 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 Torah portion 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 portion: a just society of limited power held by many.

Provided by American Jewish World Service, pursuing global justice through grassroots change.