Justice and the separation of powers shall you pursue

Rabbi Eliezer Shenvald

In memory of the late Mr. Moshe Nissim Shrem, father of the late Lt. Harel Shrem (The Yeshiva is named after him)

The Parasha in the everyday life- Parashat Shoftim - 5780

A reformed society has always needed to be made up of several basic authorities. And the resilience of a free society has always depended on the separation of powers. The separation and balance that exists between the Executive, the Legislature and the Judiciary in Israel, has been in the eye of the storm for a long time.

What can we learn about this from our Parasha?

Parshat Shoftim opens with the commandment to establish a judicial authority worthy of the name, which will do justice:

שֹׁפְטִ֣ים וְשֹֽׁטְרִ֗ים תִּֽתֶּן־לְךָ֙ בְּכָל־שְׁעָרֶ֔יךָ ...וְשָׁפְט֥וּ אֶת־הָעָ֖ם מִשְׁפַּט־צֶֽדֶק... צֶ֥דֶק צֶ֖דֶק תִּרְדֹּ֑ף לְמַ֤עַן תִּֽחְיֶה֙ וְיָרַשְׁתָּ֣ אֶת־הָאָ֔רֶץ ...

“You shall appoint magistrates and officials for your tribes, in all the settlements… and they shall govern the people with due justice… Justice, justice shall you pursue, that you may thrive and occupy the land “… (Devarim 16:18-20)

The emphasis is on doing 'justice', as a goal of the legal system and as a social duty to pursue justice - Justice, justice shall you pursue.

The emphasis on the duplication ‘Justice, justice shall you pursue’ is intended to set before the judiciary a high standard of adherence to justice: "and the pursuit of absolute justice" (Rabbi Saadia Gaon ibid)

As they say: demand the justice in justice - that the judge's system of deliberations be completely free of any foreign consideration, whatever it may be, and be subject solely to justice. And it is also the guarantee for the existence of society in the land:  לְמַ֤עַן תִּֽחְיֶה֙ וְיָרַשְׁתָּ֣ אֶת־הָאָ֔רֶץ, such qualities are of even greater importance in the Land of Israel, as a failure to comply would result in the ancestral right to that country being denied to you. (Sforno ibid).

After the commandment to appoint the judges, the Torah brings the commandment to appoint the King (Devarim 17:14), the law of the priests (18:11), and the prophets (18:18). These four basic authorities are the infrastructure of the society of the people of Israel and a guarantee that there will be a proper Jewish society:  

שופטים ושוטרים אחר המצות לההמון צוה עניני מנהיגיו והם המלכי' והשופטים והכהנים והנביאים אשר בתקונם יתוקן ענין ההמון ובקלקולם יקולקל כמו שהעיר הנביא באמרו 'שָׂרֶיהָ בְקִרְבָּהּ אֲרָיוֹת שֹׁאֲגִים, שֹׁפְטֶיהָ זְאֵבֵי עֶרֶב לֹא גָרְמוּ לַבּוֹקֶר, נְבִיאֶיהָ פּוֹחֲזִים אַנְשֵׁי בֹּוגְדוֹת, כֹּהֲנֶיהָ חִלְּלוּ קֹדֶשׁ חָמְסוּ תּוֹרָה:

שופטים ושוטרים, after Moses had addressed a number of commandments to the people at large, he now turned to instruct the leaders of the people in commandments of special concern for them. By paying especial attention to observing these laws, the leaders, especially the judges, kings and prophets, would be able to maintain the spiritual level of the people at large, and thus ensure the people’s continued tenure of the Land of Israel. In the words of the prophet: “when the lion roars who does not tremble?” (Amos 3,8) Tzefaniah phrased it somewhat differently, providing degrees of reactions to people in varying degrees of authority. (Tzefaniah 3,3 describes the princes, leading authorities as being feared like roaring lions, whereas the judges who have no executive powers are feared in the manner one is afraid of wolves.) (Sforno on Devarim 16:18)

In order to maintain a civilized society, it is not enough to have these authorities, a separation and balance between them is also required.

Although it is common to think that Montesquieu was the one who conceived the idea of ​​separation of jurisdiction but as it seems the principle already exists in the Torah albeit in different ways.

The separation between the judiciary and the 'government' and the 'kingdom' is also the guarantee of justice in the spirit of the commandment Justice, justice shall you pursue: in the ruling, the judge must be faithful only to choose justice without prejudice and without a personal touch. Therefore, the 'judge' must not be both the 'ruler' nor the 'legislator'. He must be far from any expression of governmental authority and carrying on governmental responsibility that obliges him to involve in his ruling foreign considerations that are not just justice in his purity. He also needs to be freed from the need to control and dominate the people, the need to stand up for his word in order to maintain his position vis-à-vis the public controlled by him. In order to maintain his trust as an objective judge, he must refrain from political action that will make him part of a particular sector.

It is true that one of the functions of the government and the king is to deal with law and justice:

וּבְכָל יִהְיוּ מַעֲשָׂיו לְשֵׁם שָׁמַיִם. וְתִהְיֶה מְגַמָּתוֹ וּמַחְשַׁבְתּוֹ לְהָרִים דַּת הָאֱמֶת. וּלְמַלְּאוֹת הָעוֹלָם צֶדֶק. וְלִשְׁבֹּר זְרוֹעַ הָרְשָׁעִים וּלְהִלָּחֵם מִלְחֲמוֹת ה'. שֶׁאֵין מַמְלִיכִין מֶלֶךְ תְּחִלָּה אֶלָּא לַעֲשׂוֹת מִשְׁפָּט וּמִלְחָמוֹת. שֶׁנֶּאֱמַר (שמואל א ח כ) "וּשְׁפָטָנוּ מַלְכֵּנוּ וְיָצָא לְפָנֵינוּ וְנִלְחַם אֶת מִלְחֲמֹתֵנוּ "

“This is as long as all his doings are done for the Sake of Heaven, and his orientation and thoughts are to promote the True Religion, fill the world with righteousness, break the arm of the wicked, and fight G-d’s war. For we do not, a priori, appoint a king except to execute justice and fight wars, as it says, “and that our king will judge us, and go out before us, and fight our battles” (I Shmuel 8:20). (Mishneh Torah Kings and Wars 4:10)

However, the intention is not to engage in ordinary law but to exercise governmental tools, in order to preserve the social and governmental framework according to justice and fairness.

And not to allow the powerful to take from others and exploit their power illegally. For this purpose, a parallel legal system called the "King's Law" משפט המלך was established. (Drashot HaRan 11). The King and the governmental authority are also in charge of the legislation, and of ensuring the existence of the judicial system in the kingdom; in his hands rest the authority to pardon and appeal.

Another example of the need for separation of powers is given in the Ramban, which explained the abomination of the Hasmonean monarchy and its punishment when they did not make the required separation between the priesthood and the monarchy:

וזה היה עונש החשמונאים, שמלכו בבית שני, כי היו חסידי עליון, ואלמלא הם נשתכחו התורה והמצות מישראל, ואף על פי כן נענשו עונש גדול.… ואפשר גם כן שהיה עליהם חטא במלכותם מפני שהיו כהנים, ונצטוו (במדבר יח ז): "'תִּשְׁמְרוּ אֶת כְּהֻנַּתְכֶם לְכָל דְּבַר הַמִּזְבֵּחַ וּלְמִבֵּית לַפָּרֹכֶת וַעֲבַדְתֶּם עֲבֹדַת מַתָּנָה אֶתֵּן אֶת כְּהֻנַּתְכֶם", ולא היה להם למלוך, רק לעבוד את עבודת ה'…. וראיתי בירושלמי במסכת הוריות (פרק ג הלכה ב): "אין מושחין מלכים כהנים. אמר רבי יהודה ענתוריא על שם לא יסור שבט מיהודה. אמר רבי חייא בר' אבא למען יאריך ימים על ממלכתו הוא ובניו בקרב ישראל, מה כתיב בתריה לא יהיה לכהנים הלוים". הנה, שנו בכאן שאין מושחין מלכים מן הכהנים בני אהרן. … ורבי חייא בר אבא פירש, שהוא מנוע מן התורה שלא יהיה לכהנים הלוים כל שבט לוי חלק ונחלה במלכות…

And that was [the cause for] the punishment of the Hasmoneans who reigned during [the time] of the second Temple - as they were [otherwise] lofty pious ones; and, but for them, the Torah and the commandments would have been forgotten from Israel. And nonetheless they were punished a great punishment… And it is also possible that their reign was a sin for them because they were priests (Kohanim) and they were commanded (Bamidbar 18:7), "guard your priesthood in everything pertaining to the altar and to what is behind the curtain; I make your priesthood a service of dedication" - and they should not have reigned, [bur rather, just] served the service of Hashem. And I saw in Yerushalmi Horayot 3:2, "We do not anoint priests as kings. Rabbi Yehudah of En Tor said, 'Because of "shall not depart."' Rabbi Chiya bar Abba said, '"To the end that he and his descendants may reign long in the midst of Israel" (Devarim 17:20); what is written after it? "There should not be to the Levite priests."' Behold, they learned here that we do not anoint kings from the priests, the sons of Aharon… And Rabbi Chiya bar Abba explained that it is prevented by the Torah, [such] that 'the Levite priests - the whole tribe of Levi should have no share and inheritance' in the kingdom”. (Ramban on Bereshit 49:10)

This also required the regulation of the relationship between the various authorities: between the King and the government and between the priesthood and the prophets. On the one hand the prophet is the one who anoints the King, but the prophet also owes him honor:

וְכָל הָעָם בָּאִין אֵלָיו בְּעֵת שֶׁיִּרְצֶה. וְעוֹמְדִין לְפָנָיו וּמִשְׁתַּחֲוִים אַרְצָה. אֲפִלּוּ נָבִיא עוֹמֵד לִפְנֵי הַמֶּלֶךְ מִשְׁתַּחֲוֶה אַרְצָה. שֶׁנֶּאֱמַר (מלכים א א כג) "הִנֵּה נָתָן הַנָּבִיא וַיָּבֹא לִפְנֵי הַמֶּלֶךְ וַיִּשְׁתַּחוּ לַמֶּלֶךְ". אֲבָל כֹּהֵן גָּדוֹל אֵינוֹ בָּא לִפְנֵי הַמֶּלֶךְ אֶלָּא אִם רָצָה. וְאֵינוֹ עוֹמֵד לְפָנָיו אֶלָּא הַמֶּלֶךְ עוֹמֵד לִפְנֵי כֹּהֵן גָּדוֹל. שֶׁנֶּאֱמַר (במדבר כז כא) "וְלִפְנֵי אֶלְעָזָר הַכֹּהֵן יַעֲמֹד". אַף עַל פִּי כֵן מִצְוָה עַל כֹּהֵן גָּדוֹל לְכַבֵּד אֶת הַמֶּלֶךְ וּלְהוֹשִׁיבוֹ וְלַעֲמֹד מִפָּנָיו כְּשֶׁיָּבוֹא לוֹ. וְלֹא יַעֲמֹד הַמֶּלֶךְ לְפָנָיו אֶלָּא כְּשֶׁיִּשְׁאַל לוֹ בְּמִשְׁפַּט הָאוּרִים…

“The entire nation comes to him when he wants, and stands before him and bows to the ground. Even a prophet stands before the king and bows to the ground, as it says, “…behold, Nathan the Prophet; and he came in before the king and bowed down to the king with his face to the ground” (I Kings 1:23). However, the Kohen Godol does not appear before the king unless he14 wants to nor does he stand before him. Rather, the king stands before the Kohen Godol, as it says, “and he stood before Eliezer the Kohen” (Numbers 27:21). Nevertheless, the Kohen Godol is commanded to honor the king, he seats him, and stands before him when he comes to him. The king should not stand before him unless he is there to ask of the Urim…” (Mishneh Torah, Rambam- Kings and Wars 2:5)

וְאָשִׁ֤יבָה שֹׁפְטַ֙יִךְ֙ כְּבָרִ֣אשֹׁנָ֔ה וְיֹעֲצַ֖יִךְ כְּבַתְּחִלָּ֑ה אַחֲרֵי־כֵ֗ן יִקָּ֤רֵא לָךְ֙ עִ֣יר הַצֶּ֔דֶק קִרְיָ֖ה נֶאֱמָנָֽה׃

צִיּ֖וֹן בְּמִשְׁפָּ֣ט תִּפָּדֶ֑ה וְשָׁבֶ֖יהָ בִּצְדָקָֽה׃(ישעיהו א' כו-כז).

"I will restore your magistrates as of old, And your counselors as of yore. After that you shall be called City of Righteousness, Faithful City. Zion shall be saved in the judgment; Her repentant ones, in the retribution”. (Yishayahu 1:26-27)

Sovereign kingdom and Kingdom of Heaven

Parsha and its Implementation - Shoftim - Rabbi Eliezer Shenvald - 5779

In our Parasha, the Torah deals with the King's appointment:

…וְאָמַרְתָּ֗ אָשִׂ֤ימָה עָלַי֙ מֶ֔לֶךְ כְּכָל־הַגּוֹיִ֖ם אֲשֶׁ֥ר סְבִיבֹתָֽי׃ שׂ֣וֹם תָּשִׂ֤ים עָלֶ֙יךָ֙ מֶ֔לֶךְ אֲשֶׁ֥ר יִבְחַ֛ר ה' אֱלֹהֶ֖יךָ בּ֑וֹ…

"…you decide, “I will set a king over me, as do all the nations about me, you shall be free to set a king over yourself, one chosen by Hashem your G-d”. (Devarim 17:14-15)

What are its implications for today's reality in the State of Israel, for a parliamentary democratic system of government rather than a monarchy? Is it especially meaningful to read this Parasha in the month of Elul?

In our case, the king's appointment is mentioned as the people’s initiative: "you decide, I will set a king over me", this raises the question of whether positioning a king is "permission" if the people want it, or "a duty", "a commandment to have a king". This was divided by the Gemara:

" וכן היה רבי יהודה אומר שלש מצות נצטוו ישראל בכניסתן לארץ להעמיד להם מלך ולהכרית זרעו של עמלק ולבנות להם בית הבחירה”

“The baraita continues: And so would Rabbi Yehuda say: Three mitzvot were commanded to the Jewish people upon their entrance into Eretz Yisrael, which apply only in Eretz Yisrael: They were commanded to establish a king for themselves (see Devarim 17:14–15), and to cut off the seed of Amalek in war (see Deuteronomy 25:17–19), and to build the Chosen House, i.e., the Temple, in Jerusalem (see Devarim 12:10–12)

“רבי נהוראי אומר לא נאמרה פרשה זו אלא כנגד תרעומתן שנאמר ׳ואמרת אשימה עלי מלך׳ וגו׳”

“The baraita continues: Rabbi Nehorai says: This biblical passage about appointing a king was stated only in response to the Jewish people’s complaint, as it is stated: “When you come unto the land that the Lord your God gives you, and shall possess it, and shall dwell therein, and shall say: I will set a king over me, like all the nations that are around me” (Devarim 17:14). The verse indicates that appointing a king is not a mitzva and that when Samuel spoke to them, he intended to frighten them so that they might regret their complaint and retract their request for a king”. (Sanhedrin 20b:8).

Also, the Torah commentators are divided into this: Some interpret it as "permited" (Rab Saadia Gaon, Ibn Ezra and others) and others as a "mitzvah" (Ramban, Sforno, Bechor Shor and the Tor). Maimonides ruled that this is a mitzvah (Maimonides Melachim 1a).

The King's appointment order in our Parasha includes the creation of a sovereign government system with powers to impose law and public order enforcement, as well as command the public to listen and obey to the king's laws:

שום תשים עליך מלך שתהא אימתו עליך

“…as it is stated: “You shall set a king over you” (Devarim 17:15), meaning, it is necessary that his fear should be upon you” (Sanhedrin 20b:6).

Rabbeinu Bahya emphasizes that this is an extraordinary commandment: "Even though the Torah’s way is not to fear people, we are warned to fear the king and the public and wise disciples, from the king it is written (Devarim 17): as it is stated: “You shall set a king over you" And the Rabbanim explained, that his fear should be upon you.

מֶ֗לֶךְ בְּ֭מִשְׁפָּט יַעֲמִ֣יד אָ֑רֶץ

By justice a king sustains the land. (Proverbs 29:4)

And our Rabbis added in Pirkei Avot 3:2-

הֱוֵי מִתְפַּלֵּל בִּשְׁלוֹמָהּ שֶׁל מַלְכוּת, שֶׁאִלְמָלֵא מוֹרָאָהּ, אִישׁ אֶת רֵעֵהוּ חַיִּים בְּלָעוֹ.

“Pray for the welfare of the government, for were it not for the fear it inspires, every man would swallow his neighbor alive”. (Rabbeinu Bahya -Kad HaKemach -Fear of G-d).

The existence and stability of the state and society depend on the power of the government and thus its importance and uniqueness. It is therefore imperative to maintain the dignity and status of the government in the eyes of the people, including all the governmental bodies contained therein to prevent anarchy. On the other hand, there must be mechanisms to prevent the government from exploiting the power given to it, and instead of devoting itself to serving the people, it will serve itself and seek its own privileges.

“The king's commandments in the Torah also have a spiritual meaning: "And the fear of the king is in all awe of G-d, as He ordered so. And find that the King's awe has been compared to the awe for Hashem: Shlomo said:

(יְרָֽא־אֶת־ה' בְּנִ֣י וָמֶ֑לֶךְ (משלי כד:כא:

“Fear Hashem, my son, and the king” (Proverbs 24:21)

Just as you will have to fear the Holy Name blessed Be He, without seeing Him, and with it you will refrain from the offense, you will also have to fear the king who is leading the land even if you don’t see him and thereby save yourself from a death charge” (Rabbeinu Bahya ibid)

The month of Elul is a preparation for Rosh Hashanah. Rosh Hashanah is the Almighty’s Coronation Day in the world. Hasidism noted that in the month of Elul 'the King is in the field' -המלך בשדה** (Likutei Torah Parashat Re’eh), His Kingdom is evident and closer in this world. Man can gain special accessibility and proximity to G-d directly, without intermediaries. On the other hand, accessibility and proximity affect the special awe these days have.

Our teacher, Rabbi Zvi Yehuda, used to mention that the laws of kingship and honor are not just for the king, but the government in general, and it also touches the status of the democratic government in the State of Israel today: "A man will always want to pay homage to the kingdom. And a kingdom means a political leadership of any kind in Israel" (from the Torah Goelet 2, Pinchas). "The fence of the kingdom is: the order of the affairs of the nation inside and out. All arrangements of the leadership of all of Israel, the leadership of the Israeli nation, this is an examination of kingship, which is determined by the Divine arrangement of the leadership of the nation" (Ibid Chapter 3 - Building of the State of Israel and the Kingdom of Israel).

Democracy is a complex governmental structure. Which is based on public choice and majority rule, and the balances that exist between the various systems of government. On the one hand, transparency and public scrutiny of the governing systems are needed to balance the power given to it so not to abuse it. And on the other hand, it has to beware of disproportionate opposition criticism that may undermine and weaken the 'fear of royalty' and the status of government in the eyes of the people. Which may bring about anarchy.

These principles are important throughout the year, but during an election campaign, they are of paramount importance.

המלך בשדה** The King in the Field is a common phrase taken from a parable taught by the old Rebbe (Admor HaZaken) that says that in the month of Elul, G-d is compared to a King who exits the royal palace, and goes into the fields, welcomes every Jew everywhere and hears their requests, as a king who goes out to his people when they are in the field.

Parshat Shoftim
Rabbi Eliezer Shenvald – Rosh Yeshivat Hesder Meir Harel, Modiin - Ofakim

The Parshiot of Sefer Devarim contain entire chapters on military theory. One of them is in our parsha (Devarim 20:19): When you lay siege to a city many days to fight against it and conquer it…build a siege against the city which fights against you, until it falls."
From this verse, the sage Shammai made a special interpretation regarding wars on Shabbat (Talmud Shabbat 19a): "The Rabbis said: "A siege shouldn't be laid against cities of gentiles less than three days before Shabbat. But if (the Jewish army already) started, they shouldn't stop. And regarding this, Shammai said: 'until it falls' – even on Shabbat."
Why do we require Shammai's interpretation of "until it falls"? Presumably, we go to war in order to save lives, and we already know that pikuach nefesh (saving lives from danger) overrides Shabbat and all the other mitzvot of the Torah (except idol worship, adultery and murder). So why do we need an additional interpretation?
Some halachic authorities have said that this interpretation of "until it falls" is an extension of the law of pikuach nefesh in war situations. Other rabbis hold that this is a unique halachic definition, which stems from the strategic nature of war.
It appears that this disagreement stems from the underlying understanding of Israel's wars at the strategic level. We need to ask whether there is a difference, at the strategic level, between war in the context of a state under sovereign rule (in those days a king and today an elected government) as compared to a situation of danger to an individual or a community. Indeed the strategic nature of war conducted by a state isn't only "saving lives" of one citizen or all of the citizens. Its purpose is to be a tool in the hand of the state to achieve a range of strategic ends, and national goals that could not be achieved by peaceful means or by diplomacy. Sometimes the strategic goal of war is indeed saving lives of the citizen and the public, but even this is only part of the safeguarding the state's "sovereignty." Since in a sovereign state the citizens can live normal lives without fear, then it follows that any threat to its citizens that disrupts their lives is an attack on its sovereignty. Additionally, a sovereign state has goals which explicitly are not "saving lives"; to the contrary, in the process of waging war in order to attain them, the state endangers the lives of its soldiers. (On condition that the danger is reasonable and calculated, according to the value of the goal.) We see this in the Torah regarding "the mitzvah of inheriting the land" (Ramban, positive command 4), which involves a war to conquer the land and its settlement, despite the danger to the lives of soldiers, and despite the possibility that we could suffice with less land. And there is also "milchemet reshut" (discretionary war) whose purpose is, among other things, achieving economic goals, and creating a long-term deterrent, despite the danger to the soldiers. In our beit midrash we say that in most war situations, the circumstance is not "pikuach nefesh" but "messirut nefesh (self-sacrifice)!"
The opinion that "until it falls" is only an extension of pikuach nefesh doesn't differentiate between the war of a state and danger to an individual or a community, and sees the state as a "large community." And according to the opinion that sees war as a unique halachic sphere, the war of a sovereign state whose purpose is to safeguard its national interests is a different field entirely.
This disagreement has broad and significant implications in the national and political spheres, and it is a cornerstone of the Torah-based outlook on the State of Israel (as demonstrated by the dispute between the Haredi world and the religious-Zionist world) and the understanding of the abstract strategic concept of the enforcement of sovereignty as the embodiment of the ownership and possession of the nation and its state. There are additional halachic implications, the first of which involves Shabbat and holidays – what is allowed and what is forbidden during wartime. That is: is a military action regarded salvation from danger, or must we discern the "goal" of the required operation, and whether it is necessary at this moment in order to achieve the goal. (See "Sefer Harel" where this is elaborated upon, and it is emphasized that Shabbat isn't "nullified.") Especially since in many security operations, there is no "dangerously ill person before you" which is the only justification to break the Shabbat in a "pikuach nefesh" scenario. In other words, the purpose of many missions is to pre-empt threats before they actually endanger someone.
HaRav Shlomo Goren ztz"l (the first Chief Rabbi of the IDF and afterwards the Chief Rabbi of Israel) adhered to the second approach in his halachic rulings, with the establishment of the IDF and in General Orders for Shabbat – that the term pikuach nefesh isn't mentioned in them, but rather operational "necessity". The Chief Rabbis of Israel, HaRav Hertzog and HaRav Unterman also followed this approach.
The second halachic area where this dispute has implications regards the endangerment of life, when the individual must endanger himself in order to accomplish a mission and in order to save another's life. When the definition is strictly that of that of saving the life - of an individual or even many people - there is a big question as to whether one has to risk his life in order to save others, and the halachic ruling is that one isn't obliged to. Especially when the mission is to achieve strategic goals which are not saving lives in a direct way. And there are also implications regarding settling the land in a place where danger exists, and the issue of "returning territories." Therefore we must continue to study this issue thoroughly and in depth.

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