The Jewish Power Blog: Checks and Balances
I recently attended a parlor meeting for a group that seeks to foster respectful discourse among people with different points of view. And indeed, it was my first in-person conversation with someone who spoke with great passion about the injustice of unelected supreme court judges being able to overrule the will of the people as expressed in Knesset legislation. This is a central argument of justice minister Yariv Levin and other supporters of the “judicial reform” (or “judicial coup,” depending on which newspaper you read), intended to weaken the authority of the court over against the other branches of government. This tension over the proper balance of “checks and balances” is of course very present in US political discourse – and the United States has a constitution! How much the more so is it a painful conversation in Israel, where the six-month deadline for ratifying a constitution, set in the Declaration of Independence in 1948, has dragged on for 77 years with no end in sight. It turns out that this is a dilemma with deep roots:
In the Torah, Moses offers the Israelites the option of monarchy: “If…you decide ‘I will set a king over me, as do all the nations about me…’” (Deut. 17:14) they are free to do so with some limits, including: “When he is seated on his royal throne, he shall have a copy of this Torah written for him on a scroll by the Levitical priests. Let it remain with him and let him read in it all his life, so that he may learn to revere the Lord his God, to observe faithfully every word of this Torah as well as these laws.” (17:18-19)
So, it would seem, the law is above the king; the Torah serves as a God-given constitution. But then Maimonides rocks the boat:
One who violates an order of the king in order to fulfill a mitzvah (= a Torah commandment) is innocent, for between the word of the master and the word of the slave, the master’s word takes precedence… [But] One who commits murder but wasn’t clearly seen; or wasn’t properly warned, or was observed by only one witness [i.e., one whose conviction wouldn’t stand up in court]… the king has permission to execute him to “repair the world” according to the needs of the hour. (Mishneh Torah, Kings, 3:9-10)
On the one hand, the Torah’s commandments take precedence over the king’s; but on the other hand, there are situations in which the king may “bend” the Torah’s technical strictures in order to make sure that common-sense justice is served.
Meanwhile, the Talmud tells of the case in which King Yannai’s (~150 BCE) slave killed someone. The head of the Sanhedrin, Rabbi Shimon ben Shetach, summoned the king to court (for masters are responsible for their slaves’ acts), ordering him to “stand and hear the testimony against you.” “Fine,” said the king, “Let’s hear it.” And suddenly all the rabbis on the court could only look at the ground in silence. “O ho!” said Rabbi Shimon to them, “Suddenly you have to think about it? Let the Master of thoughts punish you!” And the angel Gabriel struck them dead. And that is why the Mishnah states: “The king does not judge nor is he judged, does not testify nor is he testified against.” (Bab. Tal. Sanhedrin 19
That is, the king has immunity, not because he is outside the law, but because the dynamic of power and fear would make it impossible for the law to be properly implemented; there could be no impartial judgment in the face of such an overwhelming power imbalance.
Our tradition recognizes that there is no perfect, internally consistent system; tensions between the different authorities are unavoidable, and sometimes cannot simply be resolved by formal structures.
The United States has a constitution whose authority is universally recognized – yet the debate over what its particular clauses actually mean has never stopped, with far-reaching practical consequences. And while an independent judiciary is a key to the structure envisioned by the constitution, still, political battles over the appointment of judges, and efforts over the years to “pack the court” show that “independent judiciary” is more a utopian ideal than a real possibility.
One could say that, recognizing that reality, all one can aspire to is that conflicts between authorities be resolved purely on the basis of principles, with no influence of personal interests. Good luck with that! Here too the Torah has something to say:
Now Korah… betook himself… to rise up against Moses and Aaron and said to them, “You have gone too far! For all the community are holy, all of them, and the Lord is in their midst. Why then do you raise yourselves above the Lord’s congregation? (Lev. 16:1-3)
Is this an argument about political theory – or is it a bald attempt by Korah’s faction to assert their own right to authority, dressed up as an argument about political theory? And how is it ever possible to know for certain? Interestingly, “You have gone too far!” is exactly the claim of the judicial reformists against the attorney general and the supreme court…
And so we find ourselves no further along than we were three thousand years ago: Can the prime minister be fairly judged? Is the justice minister’s effort to rearrange Israel’s checks and balances absolutely unpolluted by partisan political interests? Should the raw power of the majority not be somehow limited? Can a human judge ever be totally impartial? Can there ever be a constitution – indeed, any text – whose meaning does not change for succeeding generations of readers?
In governing, there are no easy answers. The important thing is not to delude ourselves into thinking that there are.
