Daniel Landes

The original sin of ‘Judicial Reform’ returns

'The king neither judges nor is to be judged,' says the Mishnah. But that doesn't mean what you might think it means
Alexander Jannaeus, King and High Priest of Judaea. Woodcut designed by Guillaume Rouillé. From Promptuarii Iconum Insigniorum, 1553 (PD in its source country)
Alexander Jannaeus, King and High Priest of Judaea. Woodcut designed by Guillaume Rouillé. From Promptuarii Iconum Insigniorum, 1553 (PD in its source country)

Given the extreme and enthusiastic rabbinic support for Aryeh Deri and the persistent efforts of my erudite rabbinical colleagues who conspire to topple Israel’s judicial system, I feel compelled to put current events in an authentic Halakhic context.

Somehow, these preeminent Torah scholars overlook their cooperation in repeating the Legal Original Sin recorded in the Talmud. The Mishnah of Tractate Sanhedrin, right off the bat, elucidates the scope of what falls under judicial review. In sum, everything is included from simple torts, commercial suits, up through capital crimes and even the determination of whether wild beasts must be judged dangerous before they are hunted down. Annexation of property to Jerusalem, disputes between tribes, morally wayward judges, and even the sinning High Priest must be judged. The Mishnah in its categorizing of such cases lets us know that our society is defined by justice enacted.

But there is one jarring exception. The Mishnah states that “the king neither judges nor is to be judged.” The latter half of that statement explains the first – only a person who can be subjected to justice and its trial can be expected to have an empathic understanding of what it is to be judged and thereby himself can judge. But we are left puzzled as to why the King cannot be judged, especially since everything and everyone else must be judged. The Talmud answers ominously that the King indeed should be judged but is not, due to “ma’aseh shehayah” – “an event that transpired” in the Talmud’s magical realism recounting.

The shameful event took place during the reign of Yannai – Alexander Jannaeus (103-76 BCE, 2nd King of the Hasmonean dynasty) who was a fearless warrior who greatly increased the size of the Kingdom and was a particularly cruel and contentious monarch to his people. His great opponent was the leader of the Sanhedrin, the Pharisee Shimon ben Shetach, who acted resolutely against idolatry, superstition, and tyranny. They were brothers-in-law and did not get along – at all.

In this episode of their feud, Yannai commits murderous mayhem. Shimon ben Shetach turns to the sages and moves them out of their complacent denial of the evil Yannai is committing through his henchman in the country: “Put your eyes upon him and let us judge him.” The sages summon the accused murderer through Yannai: “Your servant murdered a soul, send him (to us).” Yannai complies. Shimon ben Shetach, through the sages, increases the pressure: “Now you come here [to Court],” citing the Torah (Ex. 21:29) that in the case of a goring ox who murders, the owner “who was warned” must “come and stand by this goring ox on trial.” The verse claims that the owner, in this case Yannai, is responsible for the murder.

Yannai does come, and being King, sits regally signifying his sovereign control. Then Shimon ben Shetach dramatically moves out of the shadows, commanding, “King Yannai, stand on your feet, and they will witness against you. For not only before us do you stand, but rather before the One Who spoke, and the World was Created.” The implication is that the moral universe is itself a Godly creation. King Yannai refuses to stand, “Not as you say, but as your colleagues say.” As Shimon ben Shetach turns to the right and to the left, the intimidated Sages “hide their faces to the ground.”

Shimon ben Shetach rebukes them: “Are you wrapped in thought; let the Master of thoughts exact payment.” At that, the angel Gabriel smote them to the dirt and death. “The declaration was made: ‘A King may neither judge, nor be judged; neither witness, nor be witnessed against.'” The scene ends, with a helpless Shimon ben Shetach and a smirking, seated King Yannai.

The conclusion is totally realistic, even if expressed metaphorically. Sages who cooperate actively or passively in allowing a justice system to be overthrown by a King Yannai or a smirking Bibi themselves no longer exist as legitimate interpreters of Torah. That old stain persists, as the law remains that a King is not to be judged.

But halakhically, might one argue that our supreme leadership should be protected, following the Mishnah’s ruling, which is the real reason for today’s so-called judicial reform? No! the Talmud itself states that the principle only refers to makhei Yisrael, cruel and crude leaders of Israel descent, who answer to no one. And, sadly, to protect ourselves and the nation, we must submit to their autocratic rule. This reaction would remain a terrible defeat for a curb on unlimited power.

But the Talmud states that indeed a King of Davidic descent must certainly be judged. For a nation that continuously broadcasts its aspiration to identify with King David, his leadership, and his Psalms, that means that our leadership must be subject to judgment. We all must have a judiciary that is not based on a transient and often corrupt will of a majority of insiders. Rather, we must continue to rely upon the eternal rule of independent justice, which does not hide its head to the ground, intimidated, by those who demand rule and power and the ability to determine judicial outcome. More than anyone else, they themselves face the consequences of their actions. Ministers and the prime minister must know that the Master of All Thoughts will demand a payment. The Original Sin of “Judicial Reform,” a code word for Judicial Corruption by Monarchs, must be rejected and rectified.

About the Author
Rabbi Daniel Landes is founder and director of Yashrut, building civil discourse through a theology of integrity, justice, and tolerance. Yashrut includes a semikhah initiative as well as programs for rabbinic leaders.
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