The Crown and the Courts: Separation of Powers in the Early Jewish Imagination.

• Author: Rosen-Zvi, Ishay

The Crown and the Courts: Separation of Powers in the Early Jewish Imagination. By DAVID C. FLATTO. Cambridge, MA: HARVARD UNIVERSITY PRESS, 2020. Pp. 367. $39.95.

This book deals with the ancient Jewish roots of the concepts of the rule of law and the separation of powers between political and legal authorities--between the government and the administration of justice. Flatto claims that in the Bible, side by side with the monarchical royalist model in which the king rules all spheres of life, there is also a model of separation of powers, which pushes the king out of the legal sphere. This view, which limits the power of the monarch and gives the judges an independent status, appears first and foremost in Deut. 17. There we encounter two adjacent passages: the first (w. 8-13) establishes a central system of judges (part of a hierarchical judicial system, see Deut. 16:18-20) who adjudicate "any matter of dispute," while the second (w. 14-20) presents the king's laws, while omitting any hint of legal jurisdiction. Flatto claims that it is this model, which is rather marginal in the Bible, that became a foundation of Jewish thought on the relationship between the political and the legal spheres and in late Second Temple and early rabbinic literatures.

Flatto reviews a series of texts: the Dead Sea Scrolls, Philo's commentaries, Josephus's rewriting of the Bible, Mishnahic laws of King and Sanhedrin, and shows that while they present different concepts of separation of powers, they are all inspired by Deut. 17. In some, we find a softer model of separation, and in some a more radical one--that is, a total negation of human kingship, which makes the Torah (and its human carriers) the sole authority. He thus argues that contrary to the common narrative according to which the idea of separation of powers is an early modern European innovation, it was actually invented in ancient Judaism. In one of the most instructive sections of the book (pp. 225-30) Flatto shows that understanding the Jewish roots of the separation of the legal sphere from the political authorities can be used to rethink the motivations behind the modem discourse of separation of powers. We tend to ascribe this process to trends toward democratization and the rule of the people, but the Jewish context points toward another motivation--the autonomy of the legal sphere: "[S]everal post biblical works demonstrate how an ideal of separating the administration of justice from political power can grow originally out of a society that cherishes the legal order" (p. 229).

The core of the book is a series of textual analyses of passages from the Bible, Second Temple literature, and especially the Tannaitic literature (to which the whole second part is dedicated). On the one hand, Flatto...