Parashat Shoftim (Deut 16:18-21:9)
Reforming the Ancient Israelite Judicial System
Summer weather in Philadelphia, where I’m writing this, is often hot and humid in August. It most certainly was that — without benefit of air conditioning — in the summer of 1787, about half a mile from my house, where a group of men got together and wrote the constitution of the United States. It’s an amazing document and, as my wife likes to say, they were an absolutely amazing group. When in human history has any group gotten together that was full of such intellectual illumination and put together a system that lets you run a society as successfully as those men did?
She’s absolutely right, but even she would agree, and we all know, there was one issue that was too difficult for them to face: the issue of slavery. They just could not settle that. Instead, they pretended everything would be okay and went home. Of course, everything ended up not being okay, and we are still dealing with their failure — perhaps their inevitable failure — to settle things about slavery in that convention.
Why am I mentioning it? Not only because of the summer heat in Philadelphia, but because we are reading Parashat Shoftim this week. The word shoftim means “judges” in modern Hebrew, and judges are the flashpoint of Israel’s own constitutional moment right now. Even in biblical times it could mean “judges” as we use that word nowadays, but in Biblical Hebrew shofet is also used to mean not just a judge, but the person who is in charge of things: the guy, or as in Judges 4–5 the gal (Deborah), who is the ruler of the civil society.
The head of the government in ancient Israel, if not a king or queen, apparently was called at least in the earliest times a shofet, a “judge.” That's how the word is being used in this week’s reading. The reason I invoked America’s constitutional convention is not only because this section of Deuteronomy is essentially the constitution of how government should operate in Israel, but because Parashat Shoftim also contains the question that the Torah could not settle.
The question that the Torah could not settle is: who outranks whom — the judges or the priests? Deuteronomy doesn't like to use the word priests (כוהנים kohanim). It doesn't talk about priests very often — maybe a dozen times in the entire book, and more than half of them are in this week’s reading — but there's something a little bit difficult, a little bit unsettled about how that word kohen is used. Let me walk you through three of the most important passages that talk about the priests and the “judges” running things in ancient Israel, all of them from this week’s reading.
I'm actually going to switch my language and not use the word “judge,” which is a little bit more restricted for us in English; it makes you think of the person behind the bench in Traffic Court. Instead, I'll use the for once very nicely chosen JPS word, “magistrate.”
The first passage is from Deuteronomy 17.
8 If a case is too unusual for you to cope with — whether a criminal case, a monetary case, or a case of assault, any kind of dispute in any of your cities — go up to the place that YHWH will choose, 9 and go to the levitical priests or the magistrate that exists in those days. Ask, and they will explain the case to you. 10 Do what they tell you from that place that YHWH will choose; make sure you do everything they instruct you.
All right, which is it — the priests or the magistrate? Or is it the priests and the magistrate who somehow have to consult with each other and come up with a decision that both of them agree on before they give it to you? V. 11 repeats that you must follow their instructions exactly, but v. 12 phrases things differently:
12 Anyone who flagrantly disobeys the priest who is stationed there to serve YHWH your God, or the magistrate — that person shall die! Clear evil out from Israel!
In v. 9 it is the “priests,” plural, or the (singular) magistrate; in v. 12, it is the “priest,” singular, and the magistrate sounds like an add-on. We might imagine that either a priest or a magistrate is going to tell you what to do and whichever of them it is, priest or magistrate, you have to obey that decision. It remains unclear whether, or when, the religious or secular authority has the final say, or how that might be decided, in general or in a particular case.
Moving on to Deuteronomy 19, we find this, in the case of a false witness:
17 The two who have the dispute shall stand before YHWH — before the priests and the magistrates that exist in those days — 18 and the magistrates shall investigate thoroughly.
The priests drop out of the picture, and the magistrates, the secular authorities, handle the case from that point on.
Lastly, we turn to Deuteronomy 21, the case of the corpse that is found in open country, in between two cities. (My translation abridges the passage to leave out some things that don’t bear on our question today — and also two things that very much do; stay tuned for them.)
Deut 21:1 If a corpse is found … in open country and who killed him is unknown, 2 your elders … shall go out and measure the distance to the surrounding cities … 4 The elders of the city [nearest the corpse] shall take the heifer [see v. 3] to a wash that is always flowing, never tilled or sown, and snap the heifer’s neck in the wash … 6 All the elders of that city, those who are nearest to the corpse, shall wash their hands over the heifer whose neck has been snapped in the wash 7 and declare, “Our hands did not shed this blood, and our eyes did not see it. 8 Provide atonement for your people Israel whom you redeemed, YHWH, and don’t leave innocent blood among your people Israel. Let the blood be absolved with regard to them.” 9 You will get rid of the innocent blood from your midst when you do what YHWH thinks right.
The elders are clearly running things in this passage, but for the two strategic things that I left out:
V. 2 doesn’t say “your elders shall go out” but “your elders and your magistrates shall go out.
I completely left out v. 5:
5 The priests, the sons of Levi, shall approach, for YHWH your God chose them to serve him, and what they say decides every quarrel and every assault.
The priests come forward, all right, but they don't actually do anything else in this passage except (presumably) hang out while the elders (and perhaps the magistrates) are performing the ritual described here — even though “atonement” for “blood” would seem to fall into the priests’ bailiwick.
One could imagine that the “elders” are the traditional authorities, the “big men” in any town. The magistrates could conceivably have been added in v. 2 if this is a traditional law being updated when it is finally written down. If that is correct, those “shoftim” could be the professional administrators who join the traditional elders in power once Israelite society gets larger and more complex.
The priests just show up on the scene because they want to get in on the act — or because some later Israelite writer wanted them to have a say in the matter. But the Torah does not decide it for us. The Torah does not tell us what to do. If the temple had not been destroyed we might still have this problem — people are very good at kicking the can down the road.
Because it was destroyed, and because the Jews were not very autonomous for most of the last 2000 years, we didn’t have the problem of whether the secular authorities or the religious ones are in charge. Now, you might say, we do. That was the problem that was too difficult for the Torah to solve.