Separation of Powers – in the Parasha and at the Protests (5)

When the demonstrations that now take place all over the country every week after Shabbat first began, I decided to write a weekly post about a connection between the protests and the parasha. This week, my fifth, the link is so obvious that I feel as though I’m cheating.

Imagine a highly skilled artist who has assembled the materials to make an exquisitely beautiful and extremely valuable work of art. Let’s say a jewel encrusted egg, in the style of Fabergé. An egg can’t stand alone; it needs a display stand. Will the artist make the stand first and create the egg to fit it? Or will he or she first create the egg and then make the stand?

Alexander III Portraits Fabergé egg, 1896. Wikipedia

My guess is that the artist would start with the egg. Why allow her or his sublime creativity to be constrained by an object that – while it too requires skill and taste to make (and in the case of Fabergé eggs could be almost as elaborate as the egg itself) – is very much not the main event?

This week’s parasha, Yitro, describes the Sinai revelation in which God gives the laws that, along with the world he created, are one of our primary sources of knowledge about God. They have defined countless communities and individual lives around the world, throughout history.

But laws can’t stand alone. They have to be interpreted and applied. Just before God reveals them to Moses, Moses receives guidance from his father-in-law Yitro, a Midianite priest, about how to create the legal infrastructure that will, as it were, hold the laws. Observing that Moses is exhausted by all the legal disputes he’s required to settle, Yitro tells him:

Exodus 18:21 You should also look for able men among all the people, men who fear God, are trustworthy, and hate dishonest gain; set them as officers over thousands, hundreds, fifties, and tens. ²² Let them sit as judges for the people at all times; let them bring every important case to you but decide every minor case themselves. So it will be easier for you, and they will bear the burden with you. ²³ If you do this and God so commands you, then you will be able to endure, and all these people will go to their homes in peace.”

Isn’t reporting Yitro’s infrastructure before the Sinai revelation a bit like making the display stand before the ‘Fabergé’ egg?

The order in which the Torah reports these two events – the building of the legal infrastructure and only then the revelation of the law – sends an immensely important message. And it’s a message for our times.

First, it signals that the legal infrastructure for the Sinai laws was no mere afterthought. It was already in place when the laws were given.

Second, it highlights the importance of the separation of powers. The fact that the legal infrastructure for interpreting and applying the law was not revealed at Sinai but had already been designed by a non-Israelite priest (who had returned to his own country by the time the revelation occurs) underscores the separation between the giver of the law and the judiciary that interprets and applies it.

Third, reporting the giving of the law after the implementation of the legal infrastructure creates an opportunity to distance the Sinai laws from Moses, the human being most closely associated with them. When our parasha opens, Moses is solely responsible for settling legal disputes. Thanks to Yitro, by the time of the Sinai revelation (Exod 19), that responsibility had been divided between many other players. To be sure, Yitro makes this suggestion – so he says – as a way of lightening Moses’ burden, but the result is to reduce the concentration of power in one man’s hands. Not quite the separation of powers, but a step towards it.

Intentionally or otherwise, Yitro prevents Moses from becoming (had he been so inclined) what Kim Scheppele describes in a 2018 Chicago Law Review article as an ‘autocratic legalist’, which, for our purposes, is a leader who uses the law to extend his own power and remain in office indefinitely. I’m grateful to my friend Melissa Lane for sending me this article by her Princeton colleague. Here, to show why Melissa was sure I’d be interested, is a paragraph from Scheppele’s article (whose archetypal case is Hungary):

How does one recognize an autocratic legalist in action? One should first suspect a democratically elected leader of autocratic legalism when he launches a concerted and sustained attack on institutions whose job it is to check his actions or on rules that hold him to account, even when he does so in the name of his democratic mandate. Loosening the bonds of constitutional constraint on executive power through legal reform is the first sign of the autocratic legalist.

It’s easy to take the pulse of a demonstration. Just listen to how loudly and energetically the crowd chants the various slogans. In Jerusalem, three stand out: ‘Democracy’; ‘Yariv Levin, Yariv Levin, this is not Poland’; and ‘Three authorities, and not one fewer’.

Israel’s three authorities are Legislative (the Knesset), Executive (the Government), and Judicial (the Supreme Court, District courts, and Magistrates’ courts). The Knesset website explains why they are so important:

Separation of powers is a governmental principle that advocates splitting governmental powers into separate and independent branches in order to create a balance between the authorities and prevent over-concentration of governmental power by one authority, for the purpose of safeguarding democracy and personal and collective freedoms.

The separation of powers is precisely what demonstrators – Right and Left, Religious and Secular, Sephardi and Ashkenazi, Jewish and Arab, male and female, young and old – are desperate to preserve in Israel today. And as we see in this week’s parasha, it’s a principle with a long and prestigious history.

After Shabbat this week, join the Tel Aviv demonstration at Eliezer Kaplan Street (19.00) or the Jerusalem demonstration outside Beit Ha’Nasi, the President’s House (19.30), or your local demonstration. Rain or shine!

Demonstrator near Beit Ha’Nasi last week. Photo credit: Diana Lipton