| Current concern about eroding the rule of law is perhaps unprecedented in modern history. Jewish spirituality anticipated the concern 3,000 years ago, and ancient wisdom points our way forward now at this pivotal moment. |
By Rabbi David Evan Markus
Parashat Shoftim 5785 (2025)Note
: New York’s Rules Governing Judicial Conduct (22 NYCRR part 100) ban me from making public statements about most political issues, with some exceptions. This post permissibly concerns the rule of law in ancient days and today.
Each year I inwardly buzz at this week’s Torah portion, which is named “judges” and centrally concerned with justice. My identity, my secular career and my efforts to walk in the world mirror back at me. It presses me, in one of Torah’s famous urgings (Deut. 16:20), צֶ֥דֶק צֶ֖דֶק תִּרְדֹּ֑ף / tzedek tzedek tirdof – “Justice! Pursue justice!”
It presses more than just me – especially this year. The rule of law hangs in the balance. Bedrock societal norms shift underfoot. We see contested authority over most everything. Roles and expectations of leaders, our very definitions of justice – it’s all up for grabs.
Let’s be clear that the issue is power, and not the capacity-building kind (“power to”) but the control kind (“power over”). In human affairs, Machiavelli‘s famous “Power corrupts, and absolute power corrupts absolutely” echoes through the centuries. In any context, power unchecked gashes society’s fabric and freights the social ties that bind a society together.
Ancient Judaism deeply understood these truths about power, and that unchecked power inherently jeopardizes justice. Torah also understood that all forms of human power must be checked both from within and from without.
Torah required that leaders not be excessively affluent (Deut. 17:16-17), and that they keep a copy of “this teaching” at their side and read it every day (Deut. 17:18-20), lest their hearts go astray. While “this teaching” originally meant Torah, I’d add the Constitution to which all public servants are sworn. Torah barred spiritual leaders from amassing territory and wealth (Deut. 18:1-2) – in my understanding, lest they misuse their authority to serve their own ends. Torah similarly barred “prophets” from calling people to follow outside spiritual bounds (Deut. 18:18-22), lest “prophets” serve themselves rather than their Source of Prophesy.
By these ancient controls, theoretically no power could self-justify, self-serve or remake the separation of powers. How far we’ve fallen.
How far we’ve strayed from the ancient call of justice. Of the command to respect and obey judicial decisions, Torah continued (Deut. 17:10-11):
| וְעָשִׂ֗יתָ עַל־פִּ֤י הַדָּבָר֙ אֲשֶׁ֣ר יַגִּ֣ידֽוּ לְךָ֔ מִן־הַמָּק֣וֹם הַה֔וּא אֲשֶׁ֖ר יִבְחַ֣ר יהו”ה וְשָׁמַרְתָּ֣ לַעֲשׂ֔וֹת כְּכֹ֖ל אֲשֶׁ֥ר יוֹרֽוּךָ׃ עַל־ פִּ֨י הַתּוֹרָ֜ה אֲשֶׁ֣ר יוֹר֗וּךָ וְעַל־הַמִּשְׁפָּ֛ט אֲשֶׁר־יֹאמְר֥וּ לְךָ֖ תַּעֲשֶׂ֑ה לֹ֣א תָס֗וּר מִן־הַדָּבָ֛ר אֲשֶׁר־יַגִּ֥ידֽוּ לְךָ֖ יָמִ֥ין וּשְׂמֹֽאל׃ | You will carry out the verdict announced to you from that place that YHVH chose, carefully fulfilling all that [the judges] instruct you. You will act in accordance with the instructions given you and the decision handed down to you: do not deviate from the decision they announce to you either to the right or to the left. |
Spiritually speaking, obedience to lawful authority was no small matter. Over 2,000 years later, Nachmanides taught (Ramban, Deut. 17:11):
The need for this commandment is very great, for Torah was given to us … and it is known that not all opinions concur on newly arising matters. Disagreements would thus increase and the one Torah would become many Torahs. Scripture, therefore, defined the law that we are to obey [along with] the Great Court … in whatever they tell us …, whether they received its interpretation by means of witness from witness until Moses [who heard it] from the mouth of the Almighty, or whether they said so based on implication…. For it was subject to their judgment that God gave them Torah even if it [the judgment] appears to you to exchange right for left. And surely you are obligated to think that they say “right” what is truly right….
Nachmanides wrote of spiritual law based on Torah, but his words are equally poignant for secular law and our secular temples of democracy – and particularly our justice system. Law is what the legislative power creates and the judicial power interprets based on the Constitution and time-tested principles of justice that stitch society together.
Reasoned critique of judges, courts and the justice system can be healthy. Virulent attacks on them never are. Such attacks warp the cherished and hard-won True North of any fair society: they are a canary in the coal mines of democracy and civil society.
Without inward controls and outward rule of law to limit the excesses of human power, who are we?
David Evan Markus 