Monday 13 March 2023

Separation of Powers (repost)

I am reposting as this topic has become the main focus of Israeli current affairs over the past months, and some of the questions discussed below may be becoming more than just theoretical. To the below I would like to add just two points.

1. Whatever the balance of power is between the government and the judiciary, if those with the power do not act with integrity, there is no hope. Any system relies on such basic integrity, which has been so lacking and has been a significant factor in the breakdown of relations (I think almost everyone agrees to this, just of course each side blames the other for lack of integrity). If both the general electorate and the committees for selecting judges would seek 'men (or women) of truth' as a base requirement, rather than those who are on 'our team,' we would be in a much better place.

Edit (02/10/2023)

Unfortunately the original point 2 is no longer relevant, so I have crossed through and replaced with an alternative:

2. On a more positive note, while many on both sides are unwilling to discuss or negotiate, there has been a movement towards setting out reasoned arguments rather than just parrotting cliches. I get the sense that at least behind closed doors, the more sensible representatives of the various factions are listening to the arguments of others and refining their own proposals, such that there is hope that we will reach an arrangement that will ultimately improve the situation for all (or at least most).

2. Religious Jews (and others) should avoid making claims about whether the Torah is for or against the proposed reforms. The reality is, as explained below, the system of the Torah is very different both to the current system in Israel, and to any alternatives being proposed, such that inherently, the Torah is neither for or against. The debate should be regarding which system will work the best in the situation we find ourselves in, and this principle should be agreed to by those who accept the Torah and those who don't.

The Original Post (published 02/07/2020)

Over the past years, many laws passed by the Knesset have been revoked by the Supreme Court. Fierce arguments have been made within the legislature, judiciary and press regarding whether this process is desirable or acceptable in a democratic country.

This blog is not the place for these discussions, which are political in nature. At present, there has been tacit acceptance of the situation from the Knesset, and there is no real struggle for power between it and the Supreme Court.[1] While many individual Knesset members have expressed the need to adopt such a struggle, as yet no law has been passed which would limit (or clearly define) the current powers of the judiciary.

The question that I do feel has a place here is what would (or should) happen if a head-on clash does develop. If, for example, the Knesset legislated clearly that the Supreme Court will no longer have the right to revoke the laws that it passes,[2] and the Supreme Court attempted to revoke this new law, we would have a real battle on our hands.[3]

The government (the executive, who are responsible for implementing law) would need to decide whether to follow the Knesset (the legislature) or the Court (the judiciary). As the majority of the significant figures in the government are themselves part of the Knesset, we may expect them to be more sympathetic to their own decisions. However, in a situation so charged, it would be hard to predict whether rebellions (by the army, police, teachers, doctors and whoever else would normally take orders from the government) would prevent these decisions being carried out, leading to anarchy.

The Torah System

Any system based on separation of powers potentially faces similar questions. The Torah system also faces such an issue, despite having a completely different separation.

According to the Torah, the Sanhedrin fulfils a legislative role, albeit on a different scale to that of most modern democracies. The Sanhedrin is limited by an extensive constitution (the Torah, both Written and Oral), but has the power to make new institutions. The Sanhedrin is also entrusted with the interpretation of the Torah (the judicial role) and enforcement of law (the executive role).[4]

However, this is only one part of the picture. The king also has a part in all of the three roles (legislature, judiciary and executive). He can issue edicts, which are binding as long as they do not contradict the Torah.[5] He acts as a judge,[6] at least in respect to the laws that he makes.[7] Finally, implementation of laws and policies is the king's primary responsibility.[8]

The result of this is that within the Torah system, although there are no power struggles between legislature and judiciary (there is no separation between the two), there is a potential possibility of major clashes between the two bodies involved in both roles. However, as we shall see, the Torah (our 'constitution') also defines who has the power in different areas, and lays down rules for situations when agreement cannot be reached.

Defined Roles

The impression one gets from the examples in Tanach is that the legislative power of the king is a temporary one. He can instruct a person to undertake a task for him; he can also forbid a person from performing a particular action or from leaving a town or area. These commands are limited by the authority of the king who gives them, and become obsolete automatically after he dies.[9]

The Ran explains that the Sanhedrin has jurisdiction over Torah law, whereas the king's authority is in areas that are not Torah-related. We are no different to any other nation regarding the necessity to ensure that order and efficient management are maintained, and this is the responsibility of the king. As these requirements change with time, they cannot be fully covered by the Torah.[10]

There are also some areas of overlap. The Mishna tells us that if a king wants to wage a war that is not mandated by the Torah, he requires the permission of the Sanhedrin.[11] The same is true if he wishes to extend the boundaries of Jerusalem, or the courtyards of the Beis HaMikdash.[12] These decisions must be based on both Torah and national interests, so require both parties.

Despite the separation of roles, there would appear to be a clear hierarchy here. As the representatives of the Torah, the Sanhedrin can decide that the king's action are in breach of the 'constitution' and thus invalid. This can also be seen from the rules for appointing a king – the Sanhedrin must approve the decision.[13]

A Spiritual Leader

A potential difficulty with the Ran's approach is that Tanach seems to attach a great deal of importance to the spiritual level of the king. The Torah warns clearly that the king must study Torah and govern according to its words.[14] Throughout Sefer Melachim, perhaps the most persistent theme is that virtuous kings bring with them the assistance of G-d and vice versa, while the standard of the Sanhedrin is never mentioned explicitly.

I believe that the resolution to this lies in a more precise understanding of the respective roles of the Sanhedrin and the king. The Sanhedrin is the representative of the Torah (i.e. Hashem's word), charged with imparting it to the world and the Jewish People in particular.[15] The king is the representative of the people, responsible for leading them in both their physical and spiritual endeavours.[16]

Thus, when it comes to questions of halacha, the Sanhedrin is the sole adjudicator. However, the king is the person entrusted with ensuring that the Jewish People keep to the Torah. As a barometer for the spiritual level of the nation, he is far more significant than the Sanhedrin.

Furthermore, although the king may not sit on the Sanhedrin even if he is learned enough to do so,[17] a worthy king will take an active interest in the actions of the Sanhedrin and put ideas before them. Chazal tell us that the prohibition against the seclusion of a man and an unmarried woman was made following the incident of Amnon and Tamar.[18] Although they do not say explicitly who made this decree, the Rambam writes that it was "David HaMelech and his Beis Din."[19]

Practical Concerns

Chazal were also aware that practically, the one giving orders to the army and other officials would often have more power than the Sanhedrin. For this reason, the Mishna teaches us that a king cannot be tried in court.[20]

The gemara clarifies that this rule does not apply to the righteous kings of the House of David, as there is no inherent reason why a king cannot be judged. However, Chazal forbade judging the kings of Israel (the Northern Kingdom), after an incident involving a servant of Yanai, a wicked king in the times of the Second Beis HaMikdash.[21] Yanai used his power to influence the ruling of the majority of the judges, and when the head of the Sanhedrin, Shimon ben Shetach, realised this, he cursed the corrupt judges and the angel Gavriel crushed them to death.

At this point, Chazal realised that although in an ideal world no-one is above the law, when attempting to enforce this is futile we are better off accepting some level of injustice. They stepped in and instituted that a king cannot judge or be judged.[22]


If there ever were (or will be) power struggles between the king and the Sanhedrin, the Sanhedrin should have the upper hand. Whether or not this actually happens will ultimately depend on how God-fearing the king is, which will often be a function of the level of the nation as a whole.

Although the democratic system of today is worlds away, there are parallels to be drawn. The legislature, elected by the people, perform a similar role to the king – they are our representatives and their performance is to a significant degree a reflection of the character of the nation. One who perceives secular law in a similar light to that which we see the Torah in, may insist that the judiciary should be above the elected officials. Ultimately, the government decides whether to accept this position or not.

[1] The one exception that I can think of was the refusal of the Speaker of the Knesset to abide by a court ruling ordering a vote on his own position. As he instead resigned his post, the short-term effect of this decision was negligible, although many claim that this created an important precedent. Time will tell.

[2] Making this new law a 'Basic Law,' which would not be deferential to any existing laws.

[3] I will not discuss here whether this situation should be avoided at all costs, and if so who is responsible for preventing it.

[4] See Rambam, Hilchos Sanhedrin 1:1 who writes that the actions of the 'policemen' are on the sole instructions of the judges.

[5] Rambam, Hilchos Melachim 3:8-9, based on Sanhedrin 49a.

[6] Ibid. 4:10

[7] See Torah Temimah, Devarim 17:19 (footnote 94).

[8] This is clear throughout Tanach. The Torah requires the king not just to be responsible for implementation, but also to play an acting lead role. See Bamidbar 27:17.

[9] The Scriptural source of this power, in Yehoshua 1:18, indicates that the only transgression involved is disobedience.

[10] Drashos HaRan, Drush 11. The Ran actually writes that the purpose of the mitzvos of the Torah is entirely unrelated to keeping order and efficiency, but the distinction that he draws remains valid even if we dispute this point (as the Rambam and others do – see Torah and Morals).

[11] Sanhedrin 2a and 20b.

[12] Ibid. See also Shevuos 14a, where we are told that making these additions also requires the approval of a prophet and the Urim v'Tumim.

[13] Tosefta, Sanhedrin ch. 3. The members of the Sanhedrin themselves are appointed internally; see Rambam Hilchos Sanhedrin 2:8, based on Tosefta, Horayos ch. 2.

[14] Devarim 17:18-20

[16] Although the king is supposed to be chosen by Hashem (Devarim 17:15), and for this reason the Sanhedrin's approval is required, it is ultimately the people who appoint him (see Ramban ibid., who struggles with the apparent contradiction between Hashem choosing the king and at the same time giving instructions as to who the people may appoint).

[17] Sanhedrin 18b. The reason is a technical one – were the king to be part of the Sanhedrin, the other members would likely be scared to argue with him.

[18] Sanhedrin 21a-b.

[19] Hilchos Isurei Biah 22:3.

[20] Sanhedrin 18a.

[21] It appears that 'kings of Israel' does not refer solely to the kings of the Northern Kingdom – Yanai lived long after their demise. This term was used to describe any non-Davidic kings, or perhaps even descendants of David HaMelech who did not follow in his path. The Sanhedrin would need to decide at the time whether it would be productive to try the king in court.

[22] Sanhedrin 19a-b. I will leave it up to the readers to judge whether any comparisons can be made to contemporary events.

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