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Samuel and the Separation of Powers (Shoftim)

Many of the principles associated with modern democracy come to us courtesy of the French. Voltaire argued for freedom of speech and of religion; Rousseau defined the law as the “general will” of the people; Tocqueville emphasized that society flourishes when private citizens form “voluntary associations” to take on projects that their government either has not or cannot. Then there was Montesquieu.  Montesquieu was a political theorist of the Enlightenment who firmly believed that “every man invested with power is apt to abuse it and to carry his authority as far as it will go.” He discussed this problem at length in his classic work, The Spirit of the Laws, and offered a solution that today seems obvious, but that at the time was quite novel: separation of powers. It was Montesquieu who first suggested dividing government into an executive, a legislative and a judiciary branch as a way of imposing a system of checks and balances upon the rulers of a state. In his words: “to prevent abuse, it is necessary from the very nature of things that power should be a check to power.”

Montesquieu (1689-1755)

Montesquieu (1689-1755)

Before Montesquieu, and dating all the way back to the fall of the Roman Empire, most European nations were led by a single sovereign whose authority nobody could challenge. Many of the most celebrated ancient civilizations—from Egypt to Persia to Babylonia to India—were also structured as autocracies. The Jews, too, were ruled by kings. As we read in this week’s Torah portion:

When you come to the land the Lord, your God, is giving you, and you possess it and live therein, and you say, “I will set a king over myself, like all the nations around me,” set a king over yourself, one whom the Lord, your God, chooses… (Deut. 17:14-15).

Hashem commands the nation of Israel to establish a monarchy upon entering into the land of Canaan. The Israelites’ attempt to fulfill this command, meanwhile, is chronicled in the Biblical book of I Samuel:

And it was, when Samuel had grown old, that he appointed his sons judges for Israel… But his sons did not walk in his ways. They were motivated by profit, they took bribes and they perverted justice. So all the elders of Israel gathered, and came to Samuel in Ramah.  They said to him, “Behold, you have grown old, and your sons do not walk in your ways. Now, set up for us a king to judge us like all the nations.” The thing was displeasing in the eyes of Samuel, when they said, “Give us a king to judge us,” and Samuel prayed to the Lord… (I Sam. 8:1-6).

When the Israelites approach Samuel and request that he appoint a king, the prophet grows angry with them. This reaction appears entirely unwarranted. The people were only doing what Hashem had instructed them to do, after all. Why, then, was Samuel so “displeased?”

In searching for an answer to this question, we might be tempted to focus on the phrase “like all the other nations”—a phrase which seems to imply that the people’s request for a king was motivated by their desire to adopt the culture of their neighbors. This is how most of my teachers throughout elementary school taught me to understand our text. Yet the Torah itself uses the phrase “like all the other nations” in its command to appoint a king: “When you shall say, ‘I will set a king over myself, like all the nations around me’—set a king over yourself…” “To be like all the other nations,” in this context, most likely means “to establish institutions of government that will facilitate international diplomacy.” It probably does not mean “to assimilate.”  But the distinction is actually irrelevant. Either way, the Torah anticipates that the Israelites, in appointing a king, will seek thereby to become “like all the other nations”—and the Torah allows them to appoint a king all the same. Therefore, Samuel could not have disapproved of their request on these grounds.

Title page of "Metzudat David," Radbaz's commentary on Tanah

Title page of Metzudat David, Radbaz’s commentary on Tanakh

In fact, the Bible explicitly informs us why Samuel opposed the people’s request: “The thing was displeasing to Samuel because the people said, ‘Appoint a king to judge us.’” Samuel is not bothered by the fact that the Israelites want to be ruled by a king, nor is he bothered by the fact that they want to be “like all the other nations” in this regard. What bothers Samuel is the notion that a king should have the power to settle legal disputes. After all, comments the Radbaz (Spain c. 1479-1573) on our verse, “justice belongs to the judges, who must judge based on the Torah—it is not a matter for the king to determine on the basis of his own will.” Two centuries later, Montesquieu would elaborate further on this point. “There is no liberty if the power of judging is not separated from the executive powers,” he warned. “Were these powers to be joined, the judge could behave with all the violence of an oppressor. It would be the end of everything.” Montesquieu was correct, of course. That is why our Torah portion introduces the command to “set up judges and law enforcement officials in all your cities” (Deut. 16:18) in its opening verses, and turns to the topic of monarchy only at the start of the next aliyah. A judge is not a king and a king is not a judge. The two are separated literarily because their offices must remain politically separate as well.

Yet the Israelites struggled to grasp this concept. If their magistrates “accepted bribes and perverted justice,” then they should have replaced these corrupt magistrates with honest ones. Instead they clamored for a “king who will judge us.” Perhaps they hoped that by consolidating government power in this way, they would increase the stability and the efficiency of their state. What they did not realize, however—and what Samuel desperately tried to impress upon them—was that the משפט (literally: the “justice”) of a man who both adjudicates the law and executes it is no justice at all:

[And the LORD said to Samuel]: Now, heed them. But warn them, and explain to them the manner (lit. the “justice”—משפט) of the king who will reign over them. And Samuel related all the words of the Lord to the people who asked of him a king. And he said, “This will be the manner (lit. the “justice”—משפט) of the king who will reign over you: He will take your sons, and appoint them to him for his chariots and for his horsemen, and they will run before his chariots. And he will appoint them to him commanders of thousands and commanders of fifties, and to plow his plowing and to reap his harvest, and to make his weapons and the equipment for his chariots. And he will take your daughters for his perfumers, for cooks, and for bakers. And he will take the best of your fields, your vineyards, and your olive trees, and will give them to his slaves. And he will tithe your grain crops and your vineyards, and he will give them to his officers and his slaves. And he will take your male and female slaves, and your handsomest youths and your asses, and put them to his work. And he will tithe your flocks, and you will be slaves to him. And you will cry out on that day because of your king, whom you will have chosen for yourselves, and the Lord will not answer you on that day. And the people refused to listen to Samuel’s voice… (I Samuel 8:9-19).

Lord Acton (1834-1902)

Lord Acton (1834-1902)

Samuel did all he could to prevent the people from confusing the difference between a monarch and a judge. Yet it was not enough. In the end, Saul was crowned the first king of Israel. He was a man who excelled as a warrior but whose tragic flaw—ironically enough—was poor decision making. Saul acted rashly under pressure (see I Samuel 13). He sought to execute those whom he ought to have shown mercy (i.e. Jonathan—see I Samuel 14) and showed mercy to those whom he ought to have executed (i.e. Agag—see I Samuel 15). When presented with difficult dilemmas, Saul made the wrong choices; throughout his career, he simply misjudged.

Still, for all his errors, Saul was a man of integrity. The same cannot be said of later kings who deliberately abused the justice system to their advantage. Arguably the most notorious incident in this regard is that of “Navot’s vineyard” (I Kings 21), when the royal family trumped up false accusations against Navot, hired witnesses to corroborate their story, and had him sentenced to capital punishment in order to inherit his vineyard. David’s affair with Bathsheba and his conspiracy against her husband, Uriah, is another example of what can happen when leaders consider themselves immune from the law (II Samuel 11).  There were many other, similar episodes.

“Power corrupts, and absolute power corrupts absolutely,” remarked Lord Acton famously. His message was not only political (though it is certainly relevant to politics)—it is also moral. God granted each of us different strengths and assigned to each of us a different task. As a result, we all need each other, and we are all accountable to one another. When we forget this principle, we risk overstepping our boundaries. When we remember it, and live by it, we give ourselves the power to accomplish together that which none of us could alone.

Shabbat shalom!


Post-script:

It is interesting to consider the Biblical book of Judges in light of the distinction between “king” and “judge” that we have developed. In the period of history addressed in this book, the two largest problems facing society are the influence of foreign gods and the invasion of foreign rulers. What the nation lacks more than anything is a strong king who can shore up its borders and obstruct the international onslaught. In fact, those who rise to power—from Ehud to Barak to Gideon to Samson—all boast military might and all possess a quasi-regal persona. If these men are anything, they are kingly. Curiously, however, they are referred to as שופטים—“judges.”

Then, at the end of the book of Judges, two profoundly disturbing incidents unfold. These incidents are referred to colloquially as פסל מיכה, the “idol of Micah,” and פילגש בגבעה, the “concubine of Gibeah.” Throughout these narratives, a widow is deceived by her only son; monies are embezzled from family inheritances and go to fund the building of an idolatrous shrine; employees are ripped away from their employers in broad daylight; wives are replaced by concubines; foreigners are made to sleep in the street, then brutally raped and left to die; civil war ensues; and, finally, the males of an entire city are murdered and the maidens are forced to marry the conquerors against their will. In short, the moral compass of the Jewish people has been lost. Suddenly its problems are not external but domestic. Here, in the final chapters of the book of Judges, the people find themselves in desperate need of capable magistrates for the very first time. Somebody needs to restore law and order. And yet it is here where the text’s narrative voice, for the first, the second, and then the third and final time in the entire book, bemoans the lack of a king: “In those days, there was no king in Israel” (Judges 17:6; 18:1; 21:25).

How fascinating that our tradition identifies Samuel as the author of this book (B. Batra 14b)—the same Samuel who, in the book of Samuel, cannot for the life of him convince the people that a king and a judge are supposed to serve two very different roles. Perhaps Samuel is attempting, through this book, to capture the lack of clarity that characterized Israel’s political climate in his day: he speaks of “judges” when the people most need a king and of “kings” when the people most need judges because the people themselves have confused and conflated these two offices, losing sight of the fundamental distinction between them.


5 Comments

  1. Shalom Carmy says:

    Is it really true that David considers himself immune to the law? Does he have a worked out philosophy of royal immunity, the way Nixon may have thought that “if the president does it it isn’t wrong”? Or the way Don Rodrigo (in I Promessi Sposi) regards the priest who rebukes him as a confused about how society runs?

    SC

    ________________________________________

    • alexmaged says:

      Philosophically, no; psychologically, I think yes. David would not argue that as king he has the right to break the law. But in his moment of weakness, he takes his chances, because he does not believe that he will get caught or that he will be brought to justice for his crime.

      • Yaakov Beasley says:

        I think that this also explains David’s refusal to exercise any of the rights of a king after Bathsheba even when necessary (ie – refusal to punish Shimei ben Gera, publicly annoint a successor, etc.), which ironically leads to even greater chaos …
        BTW – Hazak veEmatz (long time reader, first time writer…)

  2. Alon Amar says:

    Really enjoyed this one.

    Thanks.

    >

  3. Mike Shriqui says:

    Thanks for the excellent analysis. Shabbat Shalom.

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