David C. Flatto | Harvard University Press | 2020

Reviewed by Rabbi Dr. Stu Halpern

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David Flatto's The Crown and the Courts: Separation of Powers in the Early Jewish Imagination examines how classical Jewish texts wrestled with the limits of kingship. Flatto, a professor of law and Jewish philosophy at Hebrew University, offers a scholarly tour de force of how intra-biblical differences regarding the relationship between the king and the law evolved over millennia. In one strand of biblical writings, as reflected in verses in Proverbs, Isaiah, Jeremiah, and elsewhere, the king is positioned as the ultimate arbiter of justice. In this ideal, he is "the ultimate force behind the legal apparatus." Such a stance, Flatto demonstrates, is reflected in non-canonical Second Temple works, including the Psalms of Solomon and certain Dead Sea scrolls. This position aligns with that of much of the ancient world, wherein the king was the divinely sanctioned ultimate ruler (see, for example, Hammurabi's code). Practically, of course, the king would delegate subordinate power to judicial authorities. But ultimate power lay with him. The second biblical strand, however, best articulated in Deuteronomy 17, separates the king from administering justice. It was law, in this line of thinking, to which even the king was beholden. Flatto's volume traces how major ancient Jewish thinkers navigated this tension. Philo attempted to do so by, as Flatto writes, "reconfiguring monarchy and projecting the ruler as the embodiment of law; and stretching jurisdiction beyond the grasp of any one office." The scrolls from Qumran offered various attempts to navigate between priestly law and royal power. For Josephus, "the rule of law constitutes the essence of Jewish institutional power." Moving to rabbinic texts, Flatto extensively examines how, while the Mishnah positioned the king as beyond the rule of law and emphasized his prominence, the Bavli "marginalized this scheme," with the Talmudic rabbis less inclined to "keep rulers out of, and away from, the judiciary." As Flatto demonstrates, the predominant strand in rabbinic literature sought to limit the role of the king and of individual judges and to elevate that of institutional justice, arguing that "legal authority should reside in the hands of learned jurists, and not rulers." The supremacy of law trumps the authority of men. Concluding with the post-Talmudic afterlife of these attempts to separate royal and legal power, Flatto notes how medieval Jewish thinkers expanded on the centrality of law. Rabbi Nissim Gerondi writes of how the Sanhedrin upholds divine law's eternal principles while the king renders this-world verdicts. In the Enlightenment and Emancipation periods, as Eric Nelson's work demonstrates, how Jewish thought regarded the limits of kingship was impacted by Western political ideas, particularly in the American founding. As Flatto notes, it is surprising that "a comprehensive mosaic legislation crammed with religious laws" ends up inspiring "a blank set that tolerates all religious practices...the appropriation of theocracy by early modern political thinkers to establish religious toleration is deeply ironic." But by leaving biblical times and eventually transcending the walls of the ghetto, what began as a focus on the monarchy's rights and privileges ends up arguing "in favor of aggrandized civic authority." To read more Straus Center book reviews, click here. You can learn more about the Straus Center and sign up for our newsletter here. Be sure to also like us on Facebook, follow us on Twitter and Instagram and connect with us on LinkedIn.