In The Crown and the Courts, David C. Flatto traces the development of the idea of judicial independence in Jewish commentaries on the Scriptures – particularly Deuteronomy 17 – from the Second Temple and early rabbinic periods. These periods roughly span 400 BC to 300 AD. Flatto does not treat the subsequent question of whether this body of thought contributed to Western ideas of judicial independence. His interest is comparative rather than genealogical. At the very least, he argues, these commentaries provide an alternative to later Enlightenment justifications for separated powers in general, and of judicial independence in particular. Flatto’s discussion also provides a distinctive account of the limits, or at least potential limits, on royal power in the political theology of the Pentateuch.
In Flatto’s argument, a key teaching in the Deuteronomy 17, largely ignored in the rise of the Hebrew monarchy in the subsequent Scriptural history, but picked up and developed later by post-Biblical Jewish commentators, identifies separation-of-power systems as a doctrine that limits the ability of the powerful to manipulate the law to their own advantage. For Flatto and his sources, the king exemplifies this personal power in the Hebrew Scriptures. The post-Biblical commentators he interrogates focus on the separation-of-powers in regard to the power of the monarchy in ancient Israel.
Flatto makes two basic moves in discussing how the Torah – as picked up by post-biblical commentators – articulates a rationale for the governmental separation-of-power. The first move pertains to the origins of the Law in the Pentateuch. The second move pertains to which institutions the judicial task is, and, critically, is not, committed. Both of Flatto’s argumentative moves pertain to the ancient Israeli monarchy.
The first argumentative move Flatto makes considers the legislative power of the monarchy; the second move considers the judicial power of the monarchy. Both moves, according to Flatto, identify limits to the power of monarchy.
Theocracy and the Rule of Law
The bulk of Flatto’s discussion revolves around the second of these moves, that is, on limits on the judicial power of the Israeli King. But his discussion of the means by which the ancient Israeli constitution limits the legislative power of the king merits passing discussion.
Law in the ancient Israeli theocracy, Flatto argues, is protected from human manipulation because of its divine status. YHWH himself gives the Law to Moses. The Israelites were expressly forbidden from adding or taking away from YHWH’s revealed Law (Deuteronomy 4.2, 12.32). It is expressly revealed “higher law” and thereby is over the human king, and others, in Israel.
Flatto points out that it is precisely the theocratic nature of the ancient Israeli constitution that promotes the rule of law – it is as unchangeable as the divine nature itself (Numbers 23.19 & etc.). It therefore invites social and economic reliance on its legislation. It limits both human and kingly prerogative by its status as higher law. Flatto notes the ironic implication of the argument in modernity. After all theocratic governance is today typically taken to epitomize arbitrary rule and capriciousness. Flatto inverts the argument. It is human law and its intrinsic changeableness that undermine the rule of law and the ability of people to depend on it to plan their lives going forward.
The “Anomalous Strand” of Deuteronomy 17 in Second Temple and Rabbinical Commentaries
Flatto focuses most of his attention on the discussion of separation-of-power arguments advanced by Second Temple and early rabbinical commentators. He focuses in particular on the separation of the judicial power from political or royal power. He picks up the argument from postbiblical Jewish commentators expositing and “amplifying” what he labels as an “anomalous strand in Deuteronomy 17.” He traces expositions of the passage through the Second Temple literature of Philo, Josephus, and the Qumran (roughly from about 100 BC to around 100 AD), and in the early rabbinic literature (from around the destruction of the temple in 70 AD through the third or fourth century).
That Flatto argues that Deuteronomy 17 presents an anomalous teaching in the Scriptures is a pivotal move. What is “anomalous” about the discussion of the judicial task in Deuteronomy 17 in Flatto’s reading is that the chapter actually sidelines any judicial role for the king. Judicial power is vested in local courts, with, he argues, exclusive appellate jurisdiction being delegated to priests and non-royal lay judges. This is anomalous because, in the subsequent Hebrew Scriptures, the monarchy expressly serves a judicial function along with the priesthood. Flatto argues that Deuteronomy 17’s limits on royal prerogative are not picked up and developed until the postbiblical commentators he discusses.
This post-Biblical commentators Flatto discusses in fact present varying interpretations of Deuteronomy 17. Some denying kingly judicial prerogative, others seeing it there. The existence of different interpretations is not a problem for Flatto’s argument. Flatto is studying the origins of the idea of the separation of powers in this literature. As a result, the mere existence of this unique line of institutional thought, separating judicial power from royal power in these early texts, is significant. That it exists along side texts articulating the common ancient and Biblical notion that the king exercises supreme judicial authority is not a surprise. That is the common view of the era, after all. What is the surprise is the unique contribution of the postbiblical exposition of this otherwise ostensibly neglected teaching of Deuteronomy 17.
Before considering Flatto’s (and the commentators’) textual argument regarding Deuteronomy 17, it should be noted that, for Flatto, it is important that these postbiblical commentators identify what Deuteronomy 17 actually teaches and the separation-of-power doctrine they read out of Deuteronomy 17 is not merely their creative innovation created by imaginative reflection on the chapter. Flatto writes: “[I]t is the principle thesis of this book that Jewish legalism is not a reluctant response to disempowerment or merely functional in its aims, but is instead a deeply rooted ideology anchored in the themes of revelation and revolving around the centrality of law and its profound potential to structure a society and polity.”
It is not enough for Flatto that postbiblical Jewish commentators innovate an early form of separation-of-powers argument. That a subjugated and dispersed people develop a political theory that limits the intrusion of political considerations into the judicial function could be dismissed as mere temporizing. But if the Scriptures themselves teach the nub of the doctrine, even if that nub was neglected in the evolution of the ancient Israeli polity in the subsequent Scriptural narrative, the development of this teaching by postbiblical commentators would nonetheless be immune from being dismissed as mere defensive temporizing.
Flatto repeatedly insists that the postbiblical commentators who see limits on the king’s judicial power in Deuteronomy 17 in fact read the chapter correctly. Note then that there is a weak version of Flatto’s argument and a strong version of Flatto’s argument. The strong version is that the postbiblical commentators read Deuteronomy 17 correctly in understanding that it teaches limits on the king’s judicial power. There is a weaker version of his claim, however, that still recognizes an incipient separation-of-power teaching articulated by these same commentators. It simply professes agnosticism whether Deuteronomy 17 actually teaches what these commentators purport to read there.
Flatto argues the stronger claim in his book. Flatto repeatedly tells the reader that the “plain sense” of Deuteronomy 17 sidelines a judicial function for the Israeli monarchy. He writes,
Whereas 1 Samuel [8] presumably considers legal authority to be a standard administrative power [for the king] . . ., the thrust of Deuteronomy 17, and its extensive postbiblical elaborations, suggests otherwise. Thus, Deuteronomy 17, like 1 Samuel, describes the king in tentative language and reduces his role so as to not undermine divine sovereignty, but differs in its assignment of legal authority to the priests and judge, who are proximate to God, and not the political ruler who is bound by divine laws. Legal authority in Deuteronomy does not fit within the political, temporal sphere. (Notes omitted.)
So, too, Flatto repeatedly underscores that “Deuteronomy 17 noticeably marginalizes the king from the legal process and nominates judges who preside outside his realm.”
As Flatto himself recognizes, in reading Deuteronomy 17 this way, Flatto and the set of postbiblical commentators on whom he draws read the chapter as anomalous with – at inconsistent with – the large weight of subsequent Scriptural narrative in which the Israeli/Judaic King clearly hold judicial power. (See, e.g., 1 Samuel 8.5-6, 20, 2 Samuel 15.4, 1 Kings 3.9, 3.16-28, 1 Kings 7.7, cf., 1 Chronicles 17.6, 2 Chronicles 19.11, Isaiah 11.1-5, etc.)
It is, of course, entirely possible that the exercise of judicial power by the king simply represents an additional usurpation of power we see warned of at the initiation of the monarchy in 1 Samuel 8. The desire for a king would seem to be at least implicitly idolatrous. YHWH tells Samuel that the people’s desire for a human king in fact is a rejection of his own kingship over Israel (1 Samuel 8.7-8). The people demand a king so that they can be like “the nations.” This desire to adopt practices of the surrounding nations around Israel carries with it an association with idolatry (1 Samuel 8.8, see also Deuteronomy 12.30, 18.8, and 17.4).
Now turn to consider Deuteronomy 17 itself.
Deuteronomy 17 and the Judicial Authority of the King
In the Pentateuch, the book of Deuteronomy reports Moses’s sermons and teaching, and the leadership transition to Joshua, on the cusp of Israel’s entry into the promised land. After entry into the land, Israel would be led by a series of judges for three or four centuries. After the period of rule by judges, Israel would ask for, and be given, a king.
Deuteronomy 17 has three sections. The first section (vv. 1-7) discusses the executive and judicial response to idolatry. The next section (vv. 8-13) explicitly provides for an appellate judicial process using Levitical priests and lay judges: “If a case is too difficult for you to decide . . . you shall come to the Levitical priests or the judge who is in office in those days, and you shall inquire of them and they will declare to you the verdict” (vv. 8-9.) The final section of the chapter (vv. 14-20) discusses the appointment of a king. Looking forward to 1 Samuel 8, Israel says, “I will appoint a king over me like all the nations who are around me” (v. 14). Deuteronomy 17 then stipulates several limitations and requirements for th eking.
As Flatto points out, the section of the chapter pertaining to the king does not mention the king acting as a judge. Flatto takes the silence to mean the king is not authorized to act judicially. Further, Flatto reads the text’s stipulation to place the king in a subordinate position relative to the priests and their role in the administration of justice:
Now it shall come about, when [the king] sits on the throne of his kingdom, that he shall write for himself a copy of this Law on a scroll in the presence of the Levitical priests. And it shall be with him, and he shall read it all the days of this life, so that he will learn to fear the LORD his God, by carefully following all the words of the Law and these statutes (vv. 18-19).
Flatto’s reading of this passage – that it suggests Israel’s king does not share judicial authority with the priestly and lay judges – cannot be ruled out. Nonetheless, there are several problems with Flatto’s claim that a “plain reading” of Deuteronomy 17 rules out the possibility that the king hold judicial power. I discuss two problems with Flatto’s textual claim below. First, subsequent Scriptural narrative, regarding what kings do, but also what happens when kings attempt to usurp uniquely priestly functions, would seem to create presumption against Flatto’s and his commentator’s reading the chapter to provide an “anomalous” teaching regarding the king’s judicial power. Secondly, even if Deuteronomy 17 rules out a judicial function for the king, this does not establish Flatto’s broader conclusion regarding the separation of powers: Priests, in particular, held executive power, and perhaps legislative power as well. Even if judicial power were confined to priests and non-kingly lay judges, this would not have created even an incipient form of judicial independence given the political functions of judges in ancient Israel. That royal power does not include judicial authority does not thereby entail that priestly judges are forbidden from exercising executive or legislative power.
Judicial Wisdom in Ancient Israel’s Kings
As Flatto recognizes, subsequent Scripture clearly identifies a judicial function to the king’s office as it developed in ancient Israel. In addition to the Scriptural passages noted above, this can be seen in that the essence of Solomon’s vaunted kingly wisdom is judicial insight. This works two ways against Flatto’s argument. First, if in ancient nations, kingship naturally included judicial authority – which Flatto himself notes – then there is no reason for Deuteronomy 17 to state the authority explicitly. It is there by definition. That Israel’s king will come so that Israel will have a king “like the nations” would seem itself to imply Israel’s king would share the same authority as those of the Gentile kingdoms. Further, reading the silence of Deuteronomy to be a prohibition on the king exercising judicial authority would seem to overread the implication. After all, the chapter does not actually list any royal power at all. Unless the chapter is to be taken to mean that the only activity the king is authorized to undertake is writing down the Law and studying it every day, then there is no reason to think it uniquely limits the king’s judicial activity as opposed to prohibiting all the other royal activity that the chapter does not also list.
Further, that the subsequent Scriptures recognize a judicial aspect of kingly authority suggests, and do so non-problematically, Flatto and his commentators are, as it were, reading the ostensible “anomaly” of Deuteronomy 17 in the teeth of the expectations created by subsequent Scriptures. This does not provide a conclusive argument against Flatto’s commentators on Deuteronomy 17, but it would seem to create a presumption against an argument from silence.
It would in fact seem straightforward to read Deuteronomy 17 to teach the opposite of what Flatto and his commentators argue. Flatto takes the passage regarding the king writing out a copy of the law in the presence of the priests as subordinating behavior. Yet it can be viewed as the opposite: A significant motivation for priests serving as appellate judges was their expert knowledge of the Torah. The stipulation in Deuteronomy 17 regarding the king and the Law would seem calculated to replicate that same expertise in the king.
In commanding that the king write out a copy of the Law and read it every day, YHWH provides a means by which the king would learn the law intimately. Further, in writing out the Torah for himself, the king would now have his own copy of the Law, just like the priests. Writing it out by hand would also be a means of guaranteeing the king knew the Law intimately. So too the requirement that he read the Law every day. Priestly oversight of the writing process would guarantee that the king had an accurate, authorized copy of the Torah, equal in authoritativeness to the copies held by the priests themselves.
Further, while the Urim and Thummim of the High Priest’s robe provides the priests a means of access to continuing and direct instruction from God (Exodus 28.30, cf., Numbers 27.21), the kings seemed to enjoy their own prophetic charism from God (1 Samuel 10.6, 9-10, 1 Samuel 16.13, 1 Kings 3.12, 4.29, Psalm 51.11). God also spoke to the king (and the priests) through prophets.
Finally, then, the Scriptures record instances of priestly and divine response in other matters when a king attempted to usurp exclusive priestly authority. Both God and the priests responded when King Uzziah entered the temple to offer incense at the altar of incense (2 Chronicles 26.16ff). They did so because this was a task committed exclusively to priests (Numbers 3.10). Not only did the high priest oppose Uzziah’s usurpation of the priestly function with eighty armed warrior-priests (2 Chronicles 26.17), YHWH himself struck Uzziah with leprosy, thus preventing him from continuing to “judg[e] the people of the land” (v. 21). If Deuteronomy 17 delegates the appellate judicial task exclusively to priests and select laity, there is no reason to think they would not have responded against the king with similar zeal to defend their exclusive prerogative.
Priestly Executive and Legislative Power
Even if we were to read Deuteronomy 17 to exclude ancient Israel’s monarch from the judicial task, that, by itself, does not entail the existence of an incipient form of the separation of powers. That the king is prohibited from exercising judicial power does not entail that priests are also forbidden from exercising executive or legislative power. The latter is as critical to establishing even an incipient form of the separation of power as is the former.
Flatto notes early on, for example, that “Although the focus of this book is on judicial authority, early Jewish writings frequently envision the judiciary exercising other legal powers, including legislating, issuing instructions, and teaching laws.” He adds, “In general, legal authority in premodern times tends to combine a number of different roles that would be differentiated in modern jurisprudence.” This fact raises problems for Flatto’s thesis. Even granting that the monarch cannot exercise judicial power, if ancient Israel’s judges also legislated, then merely preventing the king from engaging in the judicial task would not create a separation-of-power system.
Further, Levitical priests held executive power as well. Levites had a history of hotheadedness, both for ill and for good. Levi (and Simeon) attacked Shechem in response to their sister’s rape (Genesis 34) without Jacob’s approval. This earned them a curse – being scattered throughout Israel – from Jacob at the end of his life (Genesis 49.5-7). And, indeed, the Levites were scattered through Israel, without land of their own. Yet like the turning of the king from idolatrous substitute for YHWH to YHWH’s son (2 Samuel 7.14, Psalm 2.7), the scattering of the Levites was subsequently turned into something good. YHWH was the Levites’ inheritance in the promised land (Deuteronomy 18.2). A more positive example of the Levites’ executive hotheadness came when the Levites attacked their own brothers at the behest of Moses in response to the golden calf (Exodus 32.27-28). Finally, even the tabernacle/temple duty of the Levites was an armed affair. According to the Levitical scholar Jacob Milgrom, the commission of the Levites to “keep charge” of the tabernacle is to the command to “do guard duty.” (Hat tip to Peter Leithart for the citation to Milgrom.)
Even if the ancient Israeli monarchy was prohibited from exercising the judicial function in Deuteronomy 17, that the priest/judges of the time exercised executive and, perhaps, legislative power as well, suggests that the reservation of judicial power to the priestly cast (and certain of the laity) does not present us with an incipient form of what moderns understand as the separation of power. The mere separation of royal authority from an office that combined judicial, legislative and executive power is not a recognizably separation-of-power system.
The discussion of kingly power in Deuteronomy 17 is simply too underdetermined to dictate a “plain sense” that denies the ancient Israeli monarchy a share of appellate judicial jurisdiction with Levitical priests and other judges. The strong version of Flatto’s hypothesis, that Deuteronomy provides an “anomalous” teaching denying the king judicial authority – a teaching only discovered centuries later – seems an unlikely reading of the text. Deuteronomy 17 does not teach us a separation-of-power doctrine. This does not mean that Flatto’s analysis is entirely in vain. There remains the weaker form of Flatto’s hypothesis, that the postbiblical commentators he studies did themselves innovate an incipient separation-of-power argument as they drew imaginatively on the text of Deuteronomy 17. To be sure, this deprives the doctrine of biblical sanction. Nonetheless, the postbiblical commentary Flatto brings to our attention, and the other arguments for separated powers, can legitimately enter the history of the separation-of-power doctrine even though unhitched from being a necessary deduction from biblical text.
James R. Rogers, Ph.D., J.D., is associate professor of political science at Texas A&M University. He has published numerous scholarly articles in political science, law, and economics. He also co-edited one book, Institutional Games and the Supreme Court. He writes more-popular articles on a weekly basis for the Law & Liberty website (https://www.lawliberty.org/author/james-rogers/). Rogers also served as editor of the Journal of Theoretical Politics from 2006 through 2013.