Pareshat Shoftim

First of all, welcome back to my blog. I will try to keep up with weekly posts on the paresha with some reference to Seder haMishmarah, but I am happy to intersperse with other topics if there are any that interest you.

So, let us begin:

What does it mean to live in a Jewish state? A rather contentious topic in this place and time, and among those who have a connection thereto. Conversion courts challenging the rabbinate; state security cracking down on splinter groups of radical religious Zionist revolutionaries; demographic concerns over the non-Jewish population; the relationship between an ethical tradition that has been shaped by millennia of galut and the exercise of power; etc etc. I won't address that question on a philosophical level, but this week's paresha and the accompanying readings in Seder haMishmara come to describe the traditional answer on a structural level. Here we see the description of the biblical system of national governance, from the basic theory in the Torah to the practice in Divrei haYamim to the developed law in Mishna Sanhedrin. Four roles are laid out before us.

I will first discuss the king, because his role seems most difficult to me, and seemingly also to the tradition, which takes a rather ambivalent view of malkhut and allows for a kingless society while insisting on the other institutions of government. One might think that the king's role is as military leader, given the prominence that military decisions take in the descriptions of the kings later in Tanakh, but here we find not like that. The laws of the king are given here, and shortly thereafter we turn to laws of war and the king is nowhere to be found. Rather, we see kohanim and shotrim, the latter connected at the beginning of the paresha to the rabbinic courts. Not only that, but the foundational military experience of the nation, the conquest of Eretz Yisrael, must precede the appointment of a king. 

So, if he is not there to lead us into battle, perhaps he comes to judge, like Shlomo haMelekh? Again, no. Not only are the courts a separate locus of power, but the king is not even allowed to sit as a judge according to Sanhedrin 2:2. 

Shmuel describes a king who levies taxes and organizes the people for public works and development, but that is a warning more than a promise. 

What is the king required to do? He must write for himself two Sifrei Torah, one of which he carries with him at all times. He must read a particular passage from the Torah to the assembled nation once every seven years. He must lead the fight against `Amalek (I know I just rejected to role of military leader, but the fight against `Amalek is different in kind from all other wars and is often seen as a metaphor for a certain kind of spiritual struggle; perhaps a later post can go into more depth on the particulars of `Amalek as a symbol). He must insist upon his honor in many ways, even to the point of being exempt from certain obligations when fulfilling them would be undignified in some way. He must refrain from amassing personal power and women and wealth.

I would say that I am led to agree with a vort I heard in the name of the Sfas Emes, that the purpose of the king is to serve as a symbol. His powers are extensive, unlike the symbolic leaders of contemporary constitutional monarchies, but those powers are part of the symbol rather than empowering him to exercise them pragmatically. The strictures on the king are meant to ensure that he establish and maintain his own connection to Hashem in the form of yirah, and the powers and honors of the king are meant to transmit to the people that connection of awe and splendour. However, when we are able to make a connection of that form without an intermediary, that is preferable, for a bad king can do great harm. When we relate to Hashem through yirah, we would never say, "Asimah `alai melekh, kekhol hagoyim asher sevivotai." (I will put a king over me, as all the surrounding nations 17:14).

Next we look at the twin loci of the kohanim with their leviim and the shoftim with their shotrim. Here, unlike the kings, there is a clear role. However, we would really like to see two distinct roles for the two groups, and that we lack. There is almost complete overlap between the two, and the midrash in Sifre notes from here that ideally the kohanim and leviim should be rabbis and judges. Both groups are to be in every gate, readily accessible to the entire nation, yet both are also to be established with their highest authority on Har haBayit, seat of both the Sanhedrin haGedola of 71 and of the Kohen Gadol when the Beit haMikdosh stood. Both are charged with teaching and administering the law. Rav Shimshon Rephael Hirsch makes the distinction that the kohanim were the primary guarantors of the Torah SheBiKhtav, whereas the sages kept the Torah SheBe`Al Peh. As noted above, both have a role in leading the troops to war. True, the kohanim also have their role with regard to korbanot, but that is heavily deemphasized in this paresha, blurring the distinction between kohen and levi, in favor of their role as leaders of the people. There is another distinction that comes forth vividly in Mishna Sanhedrin. The rabbinate is intensely meritocratic and open to the masses. Justice and righteousness are pre-requisites for the office, which the Torah cannot extend to kings and priests who hold their position by birth, even when they fail to live up to their ideal types. According to the Rambam, every city with at least 120 adult men would have an established court of 23. Why 120? 23 for the judges, 69 for the three tiers of students who would sit before the court and were all qualified to sit in when called for, two court scribes, two officers of the court, eight so that a case can be held with sufficiently complicated claims and counterclaims among the witnesses to make things interesting for all those legal scholars, three to be involved in collected and distributing tzedaka, a doctor, a scribe, a teacher, and ten more to make minyan while all this is going on. All 92 of the sages would be ranked by wisdom, to know who should speak in which order and who should be called upon to sit in when more judges were needed. (In cases where there was no concern regarding intimidation, the wisest would speak first out of respect, whereas in capital cases they would speak last to ensure that the others would not defer without being fully convinced). There was an opinion that really we would only have courts of 23 in cities with at least 230 adult men, because the judges ought to have serara and we don't find that for less than the sarei `asasrot, the chiefs of tens. But really, that would lead to a town that where only 40% of the adult men were rabbis; outrageous! 

The final form of leadership we see in the paresha is that of the prophets. We see very little about them here beyond the promise that true prophets will come and the warning to beware false prophets. We are told to do all that they say, but not even in as strong language as was used to command obedience to the levitical priests and the rabbis. As we see them in later Tanakh, though, their role seems clear enough. Not really rulers, as they must maintain enough independence to criticize and expose failures on the part of the governing bodies to conform to their requirements. 

So, details aside, how would this look in contemporary terms? The bulk of the job of running the country would go to meritocratic courts, mass participation but high standards, with the supreme court taking on legislative powers. A significant minority would serve full time at public expense, while a larger portion of the population would serve without pay while working in the private sector (like jury duty, but requiring a JD, with law school being tuition free). There would be some sort of symbolic figurehead under the tutelage of the courts, with enough actual power to make the pomp and circumstance actually solemn and inspiring, rather than just quaint or entertaining, but generally discouraged from using that power. There would be an active independent press, but stopping short of complete freedom to print whatever unverified nonsense it pleases without itself being held to account.

Sorry for the rambling; I got a late start and don't really have time to edit before Shabbat. Hopefully, as I get back into the habit of writing, the quality will improve. Looking forward to seeing your thoughts, if you choose to share them. Again, feel free to request topics of interest.

Shabbat Shalom uMevorakh!