The Crown and the Courts: A Review

In The Crown and the Courts, David C. Flatto traces the development of the idea of judicial independence in Jewish commentaries on the Scriptures – particularly Deuteronomy 17 – from the Second Temple and early rabbinic periods. These periods roughly span 400 BC to 300 AD. Flatto does not treat the subsequent question of whether this body of thought contributed to Western ideas of judicial independence. His interest is comparative rather than genealogical. At the very least, he argues, these commentaries provide an alternative to later Enlightenment justifications for separated powers in general, and of judicial independence in particular. Flatto’s discussion also provides a distinctive account of the limits, or at least potential limits, on royal power in the political theology of the Pentateuch.

In Flatto’s argument, a key teaching in the Deuteronomy 17, largely ignored in the rise of the Hebrew monarchy in the subsequent Scriptural history, but picked up and developed later by post-Biblical Jewish commentators, identifies separation-of-power systems as a doctrine that limits the ability of the powerful to manipulate the law to their own advantage. For Flatto and his sources, the king exemplifies this personal power in the Hebrew Scriptures. The post-Biblical commentators he interrogates focus on the separation-of-powers in regard to the power of the monarchy in ancient Israel.

Flatto makes two basic moves in discussing how the Torah – as picked up by post-biblical commentators – articulates a rationale for the governmental separation-of-power. The first move pertains to the origins of the Law in the Pentateuch. The second move pertains to which institutions the judicial task is, and, critically, is not, committed. Both of Flatto’s argumentative moves pertain to the ancient Israeli monarchy.

The first argumentative move Flatto makes considers the legislative power of the monarchy; the second move considers the judicial power of the monarchy. Both moves, according to Flatto, identify limits to the power of monarchy.