THE ANXIETY OF INFLUENCE AND JUDICIAL SELF-AGGRANDIZEMENT IN RABBINIC JURISPRUDENCE: "THE CROWN AND THE COURTS: SEPARATION OF POWERS IN THE EARLY JEWISH IMAGINATION".

• Author: Leib, Ethan J.

THE CROWN AND THE COURTS: SEPARATION OF POWERS IN THE EARLY JEWISH IMAGINATION. David C. Flatto. (*) Cambridge, MA: Harvard University Press. 2020. Pp. 367. $39.95 (Hardcover).

INTRODUCTION

The separation of powers is often at the center of modern constitutional governance. (2) But David Flatto's recent book, The Crown and the Courts, invites us to think about how (very) early Jewish meditations on the relationship among the monarch, the priests, the rabbis, and the law gave political theory resources for justifying judicial independence and sovereign immunity-perhaps earlier than we realized. (3) The book is illuminating, learned, careful in its exegesis, and precise in its exposition. It is magisterial, and its command of its subject matter is downright intimidating.

But it also embraces a method that one might call "Flattonic idealism": Flatto walks us through a dialectical development of ideas that commences in Deuteronomy 17 and seemingly works itself pure through Philo (20 BCE-50 CE), the Qumran literature (200 BCE-100 CE), Josephus (37-100 CE), and, finally, Tannaitic and early Rabbinic literatures (lst-3rd century CE). The core issue from Deuteronomy 17 that Jewish law had to resolve was figuring out how to reconcile a royalist conception of the lawgiver with priest-driven sacral law and a jurisdiction for judges, all of which make appearances in the Hebrew Bible. What culminates, for Flatto, in what is now identifiable to us as the "separation of powers," happens through conceptual analysis within Jewish texts from the Second Temple period and the ideational reconfiguration of the Jewish polity in the years after its destruction in 70 CE. (4) Part I below briefly summarizes Flatto's argument and method.

In Part II, I suggest that Flatto's method should be supplemented by a more political-economic and psychological approach. Such an effort could yield important insights into how we ultimately think about implementing the separation of powers today. Flatto is appropriately worried that the rabbis, who did the most to carve their own jurisdiction at the end of his story, will be reduced to a materialist and historically contingent narrative in which Jewish political disempowerment gave birth to the rabbis' investment in a law outside politics. (5) But this reasonable concern probably leads Flatto to downplay important dynamics that would have enriched his analysis further: the internal contestations for power within Jewish society must help explain why the rabbis drew the lines of jurisdictions as they did in the post-Temple period. Thus, an endogenous rather than exogenous political economy may have contributed to rabbinical jurisprudence on judicial independence and sovereign immunity. It is not (just) that Flatto should have granted a little to the "crits" that, as he puts it, "law constitutes a medium of politics, and legal rhetoric camouflages a deep discourse of power" (pp. 246-47 n.l2). Rather, because it is so essential to understanding rabbinic jurisprudence that it is always anxious about its own authority and influence (as I will argue by exploring the reception of Tannaitic work in the Talmud), it is hard to grant Flatto such a thoroughly non-political political theory (6) of judicial independence and sovereign immunity. Once we appreciate that the propensity for judicial self-aggrandizement (7) and the institutional strategies for accomplishing that objective have existed since time immemorial, a slightly more realistic accounting of these developments in constitutional theory is made possible. That has lessons not only for our understanding of the rabbis but also for the separation of powers today.

1. FLATTONIC IDEALISM

   Flatto's extraordinary book is, in his own words, "an in-depth study of paradigmatic biblical accounts of the administration of justice as expounded by its foremost early interpreters, ranging from the fourth century BCE through the third-century CE" (p. 2). His analysis of "programmatic writings" catalogues "how justice should ideally be administered (rather than empirical descriptions, which reflect the substantial limits on jurisdiction that were imposed on Jews during various historical periods)" (p. 2). In this way, Flatto's method is overtly exegetical and treats expositions of biblical commentary as the best way to understand Jewish conceptions of legal authority (p. 2). The main argument is meant to revise the standard account of the separation of powers: "[W]ell before the seventeenth and eighteenth centuries, leading Jewish thinkers... insisted that legal authority should reside in the hands of learned jurists, and not rulers" (p. 17). And central to Flatto's story--though this is somewhat more implicit--is that the etiology of this view about law's independence from politics did not emerge in the way it did in Europe, as Tony Honore explains: the idea of judicial independence comes from the Jews earlier than 1607, when Justice Coke tells James I that the king could not judge a lawsuit himself because he was not learned in the law, and earlier than Montesquieu in 1748, who argued that the separation of powers is essential to the freedom of citizens. (8) Even more important than who built the intellectual foundations of the separation of powers, however, is understanding that watching the Jews grapple with ideas about judicial independence as the Second Temple was destroyed can help us see that it may not be as conceptually linked to modern constitutionalism as we once thought.

   For most readers, it will be an arresting idea that judicial independence and sovereign immunity--and their relationship to each other--seem to have developed through biblical hermeneutics. At the least, "[a]pproached from a comparative vantage point, the story of early Jewish jurisprudence represents a pivotal chapter in the general history of legal and political thought" (p. 3). No reader will still think of an inexorable conceptual affinity between the separation of powers and democracy or liberal constitutionalism, specifically. Although the rabbis built atop a juristic paradigm that probably can be said to have been set in motion by Roman jurists who developed legal expertise and advised judges (pp. 5-6), rabbinical jurisprudence forged a distinctive pathway that conceptualized sovereign authority quite differently--contouring law's jurisdiction in distinctive ways. Jewish jurisprudence, like its Enlightenment corollary, "separate[s] power, by assigning supreme legal authority to a different address than the locus of political authority" (p. 223). And the Jews not only theorized about judicial independence but also workshopped many ideas for institutional embodiment to promote their conception of judicial independence. (9) Spotlighting this development alone is a major accomplishment in the study of the history of ideas.

   Flatto's story begins in earnest with the Hebrew Bible, which "reveals a list of persons who possess legal authority to varying degrees: the paterfamilias, local townsmen, elders, priests, the high priest, (lay or professional) judges, military leaders, and the king" (p. 9). Indeed, there is something for everyone if the relevant corpora was the entirety of the canonized Hebrew Bible: the Book of Samuel may be central as the Jews move from a world with God as the fountainhead of all law (with Moses as the human manifestation of the lawgiver), to a world of prophets, judges, and then, transitionally, a world of kings. But for Flatto, the central biblical problematic--which is subject to dialectical development in early Jewish history--is teed up already by Deuteronomy 17. That text envisages, first, that hard legal cases will be adjudicated by "Levitical priests and the judge who is extant in those days"; these actors are authorized (presumptively by God) to announce decisions. (10) The Israelites were expected to follow the verdicts and instructions given by these priests and judges. (11) But in the next passages, Deuteronomy "pre-figures" the Jews' request to Samuel to give them a king like other nations. (12) The biblical commands are clear: the Jews may have a king that God chooses for them, from among themselves (rather than a gentile), so long as the king does not amass too much gold, silver, women, or horses; he also is not permitted to send Jews back to Egypt. (13) When such a king ascends the throne, Deuteronomy teaches that he is to have God's teaching written for him on a scroll "before the Levitical priests." (14) That scroll is expected to remain with the king who must keep it with him and learn from it all the days of his life--learning to fear God, be humble before his fellow man, and follow God's instructions. (15)

   What Flatto sees unfolding in Deuteronomy 17 is that the "judicial section (Deut 17:8-13) never suggests that the king administers justice" and that the "subsequent royal section (Deut 17:14-20) likewise omits any judicial function for the king" (p. 13). He is correct to point out an important rhetorical difference in how the two sources of law are treated: the priests and judges must be heeded and cannot be strayed from "either to the right or to the left;" (16) the king is told not to "turn aside from his commandment right or left," (17) which makes it seem as if the king is subject to rather than an agent of law. It is Flatto's project to show how Jewish tradition receives this scheme from Deuteronomy over time, finding a fleshed-out version of it to win a dialectical battle of ideas (even if much else in the Hebrew Bible presumes a more royally-administered judiciary)--eventually settling on a conception that we would call...