There’s been a lot of controversy about recent comments by MK Smotrich. In case you missed it, the MK suggested we be influenced by the legal system practiced in the days of Kings David and Solomon.
Obviously, such a position will attract strong opinions. Aside from any questions about fundamental values, the arguments of historians, archaeologists and Rabbis reveal a lack of clarity about what the details of such a system would be. Even Rabbis of different strains of Orthodox Judaism are known to have fundamentally different positions on what values should dominate such a court. At the same time, it is quite clear that the courts of that era were not very effective at preserving the state in either a secular or a religious sense. The failures of the First Temple Era ought to serve as a red flag for us today.
None of this means MK Smotrich’s comments have no value. Rather than imagining that we have all the answers, we might just benefit from a bit of humility about own own wisdom. We might just find helpful, and even wise, elements in the legal traditions of times past.
Here’s an example, albeit probably not one the MK had in mind.
Those on the left claim the right-wing government intends to eviscerate the rule of law by subjecting it to democratic forces while those on the right claim the courts are biased against them due to a selection process that self-perpetuates the values of the legal community.
For my part, I believe both are right.
The tyranny of the majority is as terrible as any other. This should concern everybody as my friend Michael Merdinger points out here.
At the same time, a self-perpetuating, self-selecting, body of ultimate legal power resembles something a bit closer to the Iranian Council of Guardians than an accountable court beholden to the people it serves. This applies as strongly to a Rabbinical Court chosen by leading Rabbis as it does to a Supreme Court effectively chosen by itself and the Israel Bar Association.
So why not turn the problem upside down?
In the Torah, Moshe chooses judges of 10, 50, 100 etc… Let’s adapt this for modern times and modern problems. The concept is a bit detailed, so bear with me.
First, we could randomly mix groups of citizens into groups of 10 adults. Then those 10 people could choose one judge among them with 7 supporting votes. If nobody is chosen, the judge would be chosen randomly from the group. A judge can be recalled by the group choosing another judge. The appointed judge would get basic legal training (similar to magistrates in the UK) and minimal compensation. If there is a court case, one judge would come from the defendant’s judge group, one from the plaintiff’s group and one from a third court.
To choose the judges of 100, each collection of judges of 10 would choose a single judge from the population of 100 adults they are collectively responsible for. This would insulate the selection from what would otherwise be a purely ethnic/ideological vote as the populations being judged increase. This process would continue upwards with the caveat that judges of 10,000 or more would be required to be lawyers and would get full-time pay. This reflects the current judicial ratio of one judge per 12,500 people. Of course, Israel has one lawyer per 170 people so there would be plenty of selection on this tier.
The benefit of this approach is that it would bring cross-sections of society together and push them to find compromise candidates at the bottom-most level while increasing their appreciation and interaction with the law. It would also severely limit the reach of political parties as each group of ten people would likely have a different ethnic and ideological makeup and each would be insulated by the super-majority required to displace them.
The concept is borrowed from the Torah (and the Athenian ‘tribal’ system). It is also, as the MK suggested, adapted to 2019’s reality.
With it: the tyranny of the majority would be severely limited, the rule of law would preserved and strengthened, community involvement and responsibility would be increased, and the strength of entrenched legal communities would be moderated.