Americans are not the first to devise a constitution calling for the separation of powers. The Torah too legislated institutionalized checks and balances – but with an “interesting twist.”
In keeping with antiquity, the executive branch was a monarchy, but in Israel’s case, a limited monarchy, a king who was subject to the rule of law, and chosen from among the people (Deut. 17:15) — lest he rule with no empathy for the ruled. Also, he could not use his position to amass excessive wealth, especially horses – what we would call his own private militia, a natural proclivity of kings, says Ramban. Kings had to maintain their own written reminder of these limitations (17:18-19), which, says the Talmud (San. 21a), they were to carry with them wherever they went.
Ancient Israel had yet to envision a democratically elected legislature, but its priestly class was a legislature of sorts; it could not actually vote in new laws (as we do) because the Torah was assumed to have all the laws the people needed. But priests could “interpret” old laws to get new ones, a practice the Rabbis extended, with their doctrine of an “oral Torah” that supplemented the written one. Like the king, priests too were hemmed in by limitations: having no landed patrimony of their own, they were supported by, and dependent on, the Temple offerings brought by the people (18:1).
The Torah also demands an independent judiciary with the necessary complement of law-enforcing officials, including police with punitive authority to enforce the law (Rashi, 16:18). Hence this portion’s name (16:18), Shoftim (“Judges”) but, more properly, Shoftim v’shotrim, “Judges and Officials” — what the celebrated TV series called “law and order.”
In matters of punishment, however, the people are to appeal to the “judge,” not the “police” (17:9). The judge decides what the police can do – a principle important enough for the Torah to demand it explicitly in every generation (17:9). Worrying about romantics who might bypass the judiciary of their time as being inferior to the judges of “the good old days,” the Torah expressly empowers judges of every era. “They are all we have,” says Rashi; “We must obey them.”
So there you have it, all in this week’s portion: an executive (a king, but chosen from the people, for the people); a legislature (a priesthood, dependent on support from the people they serve); and a judiciary (with attendant police power, but no independent police force that might abuse its power).
Still, even a good system of checks and balances can break down, so we get this “interesting twist”: a fourth element called “prophets.” All ancient people had prophets, but not like Israel’s, individuals who operated outside the system to bring conscience to bear on everyone else. Institutionalized power abhors conscience, however; it prefers the predictability of routinized bureaucracy. So in time, prophecy came to an end: in the commonwealth established after the return from Babylonian exile, the priests and monarch simply declared prophecy over and done with.
The Rabbis too distrusted individuals claiming direct revelation from God. But anticipating history’s need for independent conscience, the Rabbis gave us an alternative to prophets: every single citizen, you and me. They then demanded that the citizenry be informed: hence the centrality of study in Jewish culture.
And finally, the Rabbis demanded responsible exercise of that informed conscience by every single person. When the Torah says, “Establish law and order,” it adds “at your gates” and “for yourself [singular]” (16:18) – leading Sefer Yetsirah to identify “the gates” as the gateways to every person’s senses, our eyes, ears, nose and mouth. The ultimate gatekeepers of justice are informed citizens, who monitor what is said, heard, seen, and even smelled.
The biblical prophets are gone, leaving every single one of us to take their place. Even the best of governments fail if we do not attune our senses to catch the telltale signs of moral rot right in our own back yard.