The Foundation for Constitutional Democracy

19-Aug-2007

Judicial Aspects of Torah Governance

Filed under: JudaismGOVERNMENT BRANCHES — eidelberg @ 5:20 am

Israel is commonly regarded as the “only democracy in the Middle East,” and so it is compared to its despotic Arab neighbors—a fact hardly worthy of boasting about. But how does Israeli governance today stand vis-à-vis Torah governance? To answer this question, I shall limit myself to certain judicial aspects of Torah governance.

The judicial and highest organ of Torah governance is the Great Sanhedrin. (See Deut. 17.11.) Consisting of seventy-one judges, this extraordinary institution combines judicial and legislative powers and may even bring the king to justice on a suit brought against him by any private citizen.

When there is no king, the President of the Great Sanhedrin exercises the king’s powers. The President excels, and is recognized as excelling, all in wisdom and understanding. He is capable of teaching the whole of the Torah and of deciding any question within its all-embracing domain. This means, among other things, that he has mastered the theoretical principles and methodologies governing the practical Halacha.

The President, like other members of the Great Sanhedrin, must be versed in many branches of science, such as astronomy, mathematics, logic, anatomy, and medicine. He must possess knowledge of non-Torah doctrines and practices so as to be able to deal with cases requiring such knowledge.

Even in the case of three-man courts, its members must possess the following seven qualifications: wisdom, humility, fear of God, disdain of gain, love of truth, a good reputation, and love of his fellow men. The humane and rational character of the administration of Jewish law follows as a matter of course.

Thus, unlike all other legal systems, the administration of Jewish law is not only highly decentralized, but the autonomy of local authority coexists with the sanctions of universal principles. The rulings of a local court are binding for the particular town or community and cannot be challenged by any other court however superior its rank or area of jurisdiction.

This kind of “federalism” reflects the idea that the twelve tribes of Israel represent, individually, a distinct type of human perfection, and collectively, a complete and self-sufficient totality. The administration of Jewish law thus allows for a great deal of diversity, but diversity constrained and rendered harmonious by the court’s knowledge of the Torah’s universal, organizing principles.

Furthermore, when principles of Jewish law are applied to new problems, it is not done by mere fiat. Generally speaking, before a ruling is accepted as authentic and authoritative, i.e., consistent with the Torah, it must be endorsed by a majority of the leading scholars. This “legislative” process often occurs independently of any established judicial body. Such is its dedication to truth and justice that a court may sometimes consult and be guided by an eminent scholar (who, incidentally, may be residing in a distant country). Conversely, a particular court may enjoy unquestioned authority by virtue of the recognized superiority of one or more of its members.

This absence of institutional rigidity is a consequence of the fact that the law is not the exclusive preserve of professional jurists or of any ecclesiastical elite, but of the people, including those of humble occupations. “You are standing this day, all of you before the Lord your God: your leaders, your tribes, your elders, and your officers … from the hewer of your wood to the drawer of your water” (Deut. 29:9-10).

All the people of Israel are to be more or less learned in the laws which, after all, are to guide and elevate the conduct of their every day life. “This book of the law shall not depart out of your mouth, but you shall meditate therein day and night, that you may do according to all that is written therein” (Joshua 1:8). On the other hand, the Jerusalem Talmud declares: “… any legislation enacted by a court but not accepted by the majority of the public is no law” (Avoda Zara 2:8).

Because Jewish law is rooted in ordinary experience, and because the Hebrew language is unequalled in its simplicity, brevity, and clarity, a Torah community does not require a professional class of lawyers. The people themselves are educated in the law, which is the basic reason why the rule of law and hatred of tyranny have characterized the Jewish people throughout history—or did so until recent years.

For what is Israel’s unelected Supreme Court if not a judicial despotism that scorns the abiding beliefs and values the Jewish People—and does so with impunity? And what shall we say of Israel’s democratically elected Prime Minister who arrogates to himself the power to dispose of the heartland of the Jewish People? Would it not be an exercise in futility to have this Prime Minister tried before the Supreme Court for exercising such tyrannical power?

Although the term “democracy” is extrinsic to the Torah, a Torah government would be far more democratic than “the only democracy in the Middle East”!