What Jewish history, tradition teaches about Israel's judicial reform - opinion

Despite months of intense fighting, huge demonstrations and dozens of op-ed articles by experts in many fields, I have not seen anyone ask one important question: What can we learn from Jewish history and tradition about this proposed judicial revolution? One could, of course, claim that there is nothing in our history and tradition that is relevant to our current controversy.

Indeed, Israeli parliamentary democracy is very different from the monarchies found in the Bible or Second Temple literature or from Jewish self-government from the year 70 CE until modern times. Even so, I believe there is much we can learn from our history and tradition about our current dilemma.

If the proposed legislation passes, the Supreme Court will lose all of its power to oversee the Prime Minister, the government and the Knesset. A simple majority of 61 MKs will be able to do whatever it wants. The Supreme Court will not be able to disqualify a law, the Supreme Court justices will be appointed by politicians, the legal advisers will be appointed by politicians, and a prime minister will not be able to be removed from office even if his or her behavior is illegal or unethical.

There is a common denominator between all of these proposals: the people have elected this government and we have the majority; therefore, we can do whatever we want. We do not need oversight by the Supreme Court or legal advisers; we are perfectly capable of overseeing ourselves. Or, to put it differently, we do not need checks and balances.

Therefore, I would like to ask:

What can we learn about checks and balances from Jewish history and tradition?

In the biblical period, from the days of King Saul (ca. 1010 BCE) until the destruction of the First Temple in 586 BCE the Israelites or later on, the split kingdoms of Judah and Israel were ruled by kings or queens who served more or less as absolute monarchs. Even so, the Prophets served as checks and balances on the king and queen, berating them and punishing them for immoral behavior or idol worship. We see this very clearly in the following stories:

• THE PROPHET Samuel ended the reign of King Saul (I Samuel 15) because Saul and his troops spared Agag the King of Amalek and the best of the sheep and the oxen.
• The Prophet Nathan punished King David (II Samuel 11-12) because David committed adultery with Bat Sheva and arranged for her husband Uriah the Hittite to die in battle.
• The Prophet Ahiyah Hashiloni declared that King Solomon would lose control of 10 of the 12 tribes (I Kings 11:29-39) because Solomon married many foreign women and worshipped their gods.
• The Prophet Elijah punished King Ahab and Queen Jezebel (I Kings 21; and cf. II Kings 9) because they arranged the execution of Navot the Jezreelite in order to possess his vineyard.

In each case, the king worshiped idols or did something that was against God’s will or was immoral and the prophet told the king that he would be punished and he was punished. Thus even in an absolute monarchy, there were checks and balances. When the king disobeyed God or did something immoral, he was disciplined by the Prophet and punished by God.

In the Second Temple period, as a result of the Maccabean Revolt in 167 BCE, the Hasmonean dynasty ruled from 140-37 BCE. For our purposes, let us focus on the reign of King Alexander Yannai (103-76 BCE). According to rabbinic literature and Josephus, he was in conflict with the Pharisees led by Shimon ben Shetah.

One episode is extremely relevant to our current dilemma in Israel. According to a very dramatic story in Sanhedrin 19a-b (cf. Josephus, Wars 1, 10, 5-7 and Antiquities 14, 9, 3-4), when Yannai’s servant killed someone, Shimon ben Shetah summoned Yannai to trial before the Sanhedrin with tragic results. It’s very difficult to separate fact from fiction in these stories but the bottom line is that according to the Babylonian Talmud, Shimon ben Shetah and the Pharisees served as a check and balance against King Alexander Yannai, even though he was an absolute monarch.

Moving down to the Talmudic and medieval periods, there is a famous Baraita [teaching of the Tannaim] in Bava Batra 8b which says that townspeople have the right l’hasia al kitzatan (to inflict penalties for the infringement of their rules). However, on the very next page (fol. 9a), we find a contradictory source: The butchers in the town of Mahoza made an agreement that if Reuven slaughtered animals on the day designated for Shimon, they could tear up the skin of Reuven’s animals. Reuven ignored the agreement and they tore up his skins.

They went to Rava who made them pay. Rav Yemar then challenged that ruling by quoting the Baraita. Rava did not reply but Rav Papa replied that the Baraita applies when there is no adam hashuv (distinguished person) in town but if there is an adam hashuv then they do not have the power to make such decisions.

In other words, even though the majority of the townspeople or the majority of the butchers made a decision, they needed the approval of the leading rabbi and he has the right to overrule them. Once again, we see that a great rabbi serves as a check and balance who can overrule the majority. This debate continued throughout the Middle Ages.

FINALLY, THERE is the example of the Exilarch vs the Babylonian Amoraim and the Geonim. The Rosh Hagolah or Exilarch was the civic leader of the Jewish community in Babylonia from the second until the thirteenth century. During the Talmudic period (until ca. 500) they ruled alongside the Amoraim. In the period of the Geonim (ca. 500-1000), they ruled alongside the Geonim in Sura and Pumbedita.

During the Talmudic period, their relationship was particularly complicated if the Exilarch was also a scholar. The classic example is that of Mar Ukba the Exilarch who reigned alongside Rav and Samuel. Mar Ukba considered Samuel his teacher but Samuel deferred to Mar Ukba when the latter sat as Av Bet Din (the head of the court, see Moed Kattan 16b).

During the period of the Geonim, there were quite a few instances of tension between the Exilarch and the Geonim, since the Exilarch was involved in the appointment of the Geonim and the Geonim needed to approve the rulings of the Bet Din of the Exilarch. The most famous “war” lasted for seven years and was between the Exilarch David ben Zakkai and Rav Saadia Gaon (ca. 930). David ben Zakkai appointed Saadia as Gaon of Sura in the year 928. Two years later, Rav Saadiah refused to confirm a judicial decision issued by the Exilarch. David then appointed a lesser scholar as Gaon of Sura and Rav Saadiah appointed David’s brother as Exilarch.

Indeed, Prof. Robert Brody states in his seminal work The Geonim of Babylonia (p. 77): “The interlocking relationships between the Geonate and the Exilarchate are perhaps nowhere more evident than in the role played by each institution in selecting or deposing the head of the other – what might be described as a primitive version of the system of checks and balances [emphasis added – DG]”.

Thus, we see that throughout Jewish history there were always checks and balances between civil and religious/legal authorities: King vs Prophet; King vs Sage and Sanhedrin; the Townspeople vs a Distinguished Person or Rabbi; Exilarch vs the Geonim.

All societies need checks and balances. If one authority or legal entity has all the power, even if they are democratically elected, it leads to what John Stuart Mill called “the tyranny of the majority.” I hope and pray that the coalition and opposition will sit down with each other, debate the issues with mutual respect and reach compromises under the auspices of President Isaac Herzog or on their own. As I have written elsewhere, the Jewish people and Israel very much need unity without uniformity. Disunity leads to tragedy, destruction and exile, and unity leads to redemption.

The writer serves as the president of The Schechter Institutes, Inc. in Jerusalem. The opinions expressed here are his own.