Separation of Powers and Majority Rule: Insights from the Talmud, Maimonides, Spinoza, and Mendelssohn

Raphael Jospe

Note: This article was written and accepted for publication in the summer of 5783/2023 and scheduled to appear after the holidays.  Because of the outbreak of Israel’s “Iron Swords” war with Ḥamas following the murderous attack on Israel on Shabbat/Simḥat Torah (7 October, 2023), we agreed that publication needed to be postponed. Now, five months into the war with no end in sight, we are nevertheless witness to renewed political tensions, public demonstrations, disagreements and paralysis in appointing judges and the President of the Supreme Court, together with resumption of talk of the “judicial reform.”  All of these fractures in the fabric of Israeli society and politics a year ago led Ḥassan Nasrallah, head of Ḥizbullah in Lebanon, to observe cynically but all too perceptively that “you are doing our work for us.”  Despite, then, the continuing tragedy of the war in the south and warfare in the north, a review of how our sources treat the separation of powers and majority rule may help us avoid repeating some of the mistakes of the pre-war political and ideological divisions in Israel and contribute to a more reasoned consideration of the issues.

We witness today in Israel deep and bitter divisions over those who affirm the authority of the Supreme Court to overrule decisions of the government or Knesset (Parliament) and those who argue for limiting the court’s authority in favor of what is often called “executive privilege” and the supremacy of the elected representatives and government over unelected judges. Both sides claim to speak on behalf of “the majority” and to represent “democracy.” The arguments have become ever more corrosive, with unprecedented and dangerous developments. On the one side, large numbers (the precise numbers are not published) of reserve soldiers, officers, physicians, and pilots – many of whom have served over years and decades for hundreds, even thousands, of days of service including in elite combat units at great personal risk – have announced that they will no longer volunteer to serve a “non-democratic” or “dictatorial” government. Technically one can question whether this constitutes actual civil disobedience, since many or most of these reservists are volunteers past the age of mandatory service, who are under no legal obligation to continue to serve. But that begs the larger moral issue.

On the other side, we hear criticism that the protesters are undermining national security. Increasingly, we also are witness to vehement ad hominem attacks on these reservists and on various generals and the Chief of the General Staff, including by some government ministers and members of the Knesset (not all of whom served in the military), and even accusations that we are in danger of “an army having a state.”

A review of some Jewish sources on this subject may enlighten more rational discourse and help proponents of both points of view to learn how some of these questions about the need for separation of powers, limitations on the authority of the court, and the meaning and potential abuses of democratic majority rule, have been dealt with over the centuries.

The issue of separation of powers, and the reasons for the Rabbis’ limiting the court’s authority, underlie a discussion in the talmudic tractate (Sanhedrin) dealing with the judiciary. However, that discussion reflects pragmatic and prudential considerations, not theoretical questions or abstract principles. In the first case, a distinction is made between the office of the high priest and that of the king, and then between two types of kings. According to the Mishnah,^[1] in contrast with the high priest who is subject to the authority of the court, “the king does not judge and is not judged, does not testify and is not testified against.”

The Gemara on this passage^[2] then cites a historical incident to explain why the king is not subject to the court’s authority, and differentiates between two types of kings:

This was only taught concerning the kings of Israel. However, the kings of the house of David judge and are judged . . . Why not [the kings of Israel]? It once happened that the slave of King Yannai^[3] murdered someone. Shimon ben Shetah^[4] said to the sages: ‘Pay attention and let us judge him.’ They sent to [the king]: ‘Your slave has murdered someone.’ [King Yannai] sent them his slave. So they sent back to him: ‘You must come here’^[5] . . .The king came and sat down. Shimon ben Shetah said to him: ‘King Yannai, stand up so they may testify against you. You are not standing before us but before [God] who created the world’ . . . The king replied: ‘It is not as you say, but what your colleagues say.’ [Shimon ben Shetah] turned to his right, but [his colleagues] looked down at the floor; he turned to his left, and they looked down at the floor. Shimon ben Shetah then said to them: ‘You are all indecisive. May [God] who has all thoughts take revenge on you.’ Gabriel came and knocked them down to the floor, so they died. At that time the [rabbis] said that the king should not judge nor be judged, does not testify and is not testified against.

Nevertheless, the passage does not clearly explain the difference between the two categories of kings: why are kings of “the house of David” subject to the court’s authority, in contrast with “the kings of Israel,” who are exempt from the court’s authority? For the rabbis, the only legitimate kings could be descendants of David and Solomon, in contrast with the secessionist kings of the northern kingdom of Israel after the death of Solomon. The legitimate Davidic line was stable, in contrast with the northern kings of Israel who often were tyrants and who came to power through coups d’état.^[6] Applying these two categories anachronistically to their day in late and post-Second Temple times, the rabbis regarded the Hasmoneans, who had successfully expelled the Syrian-Greeks and were themselves of priestly descent (and thus not of Davidic lineage), as having set themselves up illegitimately as both high priests and kings. Therefore, although located in Jerusalem and not in the north, they could only be categorized as “kings of Israel.”

Even so, one might expect the rabbis to have concluded the opposite: “kings of the house of David,” being legitimate rulers, presumably could be relied upon to follow the law, and therefore should not need to be subject to the court’s authority. Conversely and paradoxically, should not the “kings of Israel,” being illegitimate, require supervision by the court and be subject to its authority?

Why, then, did the rabbis rule as they did? The answer, according to Maimonides, goes back to the story of the destructive incident between Alexander Yannai and Shimon ben Shetah. Maimonides discussed this point in two different works. In his earlier Commentary to the Mishnah^[7] he explained:

The meaning is that this refers only to the kings of Israel, because their rule is wicked, and they do not regard humility and modesty as important, and they do not tolerate the truth (al-haqq). However the kings of the house of David judge and are judged, because they recognize the truth, and modesty is not difficult for them because their rule is legitimate (shar’i).

Similarly, in the last section of his later encyclopedic Code of Law (Mishneh Torah),^[8] Maimonides reiterated:

We have already explained that kings of the house of David judge and are judged, and are testified against. However, regarding kings of Israel, the sages ruled that they should not judge nor be judged, and should not testify nor be testified against. This is because their hearts are coarse, and this matter would lead to the breakdown and destruction of religion.

In other words, there are no more “kings of the house of David,” and the separation of powers between the ruler and the court is necessitated on pragmatic grounds for the sake of preserving the law and peace. The ruler, i.e., the executive branch, controls the armed forces; the court does not. In practical terms, therefore, the court attempting to assert its legal authority over a tyrant can only lead to violence, disaster, and destruction. A separation of powers is thus a prudential necessity, at least in a non-ideal political system established by humans and not (in theory) by divine design. In today’s Israeli conflict, both sides agree that a separation of powers is necessary, but disagree about the source of the problem. Those who support restricting the Supreme Court’s ability to overrule government decisions and Knesset legislation are arguing that it is the court itself which has violated the separation of powers. Those who oppose the current government are arguing exactly the opposite: it is the government itself which is violating the separation of powers by making the elected government and Knesset supreme.

Although the ancient Sanhedrin enacted laws and judgments based on a majority of the member judges, neither the rulers of the ancient Jewish state nor the Sanhedrin were elected by popular democratic elections. However, democracy itself and majority rule – which both sides in the current Israeli debate claim to represent – pose other dilemmas. Baruch (Benedict de) Spinoza and Moses Mendelssohn, two pioneers of early modern Jewish thought, are examples of how proponents of democracy can arrive at opposite conclusions regarding democracy’s limits and dangers.

Spinoza^[9] was familiar with Maimonides’s philosophy, although he reached radically different conclusions. In his Theologico-Political Tractatus,^[10] Spinoza wrote in favor of democracy:^[11]

Democracy . . . [is] of all forms of government the most natural and the most consonant with individual liberty. In it, no one transforms his natural right so absolutely that he has no further voice in affairs; he only hands it over to the majority of a society, of which he is a unit. Thus all men remain, as they were in the state of nature, equals.

Therefore, Spinoza concludes, the citizen, who has rationally transferred his rights to the government of the majority in which he is a unit, has no right of civil disobedience:^[12]

So long as a man acts in obedience to the laws of his rulers, he in nowise contravenes his reason, for in obedience to reason he has transferred the right of controlling his actions from his own hand to theirs.

In that regard, Spinoza, who is so often regarded as an early defender of liberal democracy, strongly opposed laws restricting the freedom of opinion and speech which are “directed against opinions [and] affect the generous minded rather than the wicked, and are adapted less for coercing criminals than for irritating the upright.”^[13] Nevertheless, Spinoza opposed civil disobedience and failed to take into account the distinct and dangerous possibility of the tyranny of the majority:

Although complete unanimity of feeling and speech is out of the question, it is impossible to preserve peace, unless individuals abdicate their right of acting entirely on their own judgment. Therefore, the individual justly cedes the right of free action, though not of free reason and judgment; no one can act against the authority without danger to the state.^[14]

For Spinoza, then, the danger to society comes from civil disobedience, in contrast with the Mishnah and Maimonides, for whom the danger to society comes from the government itself! Like Spinoza, today’s Israeli government and its supporters regard the protests and refusal to serve in the reserves as civil disobedience and as endangering national security. Like the Mishnah and Maimonides, Israeli opponents of the government’s policies see the danger as coming from the government itself.

Just as Spinoza knew Maimonides’s works but reached radically different conclusions, Mendelssohn^[15] was familiar with Spinoza’s thought. Because of his principled objection to religious coercion, Mendelssohn regarded Spinoza’s excommunication a century earlier as completely wrong. At the same time, Mendelssohn differed sharply from Spinoza, not only in theology and religious practice, but also on the implications of the political regime. Spinoza had argued that Jewish law was only applicable and authoritative in the context of the ancient Jewish state. Mendelssohn accepted Spinoza’s distinction between that ancient state and subsequent times, but maintained that the difference was not in the authority per se of the divine law, but only in its possibility of being enforced by the power of the state. For Mendelssohn, the divinely revealed Jewish law continues to retain its authority over Jews, but, after the destruction of the ancient Jewish state, the divine law cannot be coercively enforced by any other state.

As for human law, Mendelssohn also disagreed with Spinoza on the question of civil disobedience in a democracy. Unlike Spinoza, Mendelssohn explicitly recognized the danger of the tyranny of the majority in a democracy. In his Preface to the German translation in 1782 of Manassah ben Israel’s 1656 Vindiciae Judaeorum, addressed to Oliver Cromwell, which pleaded for the legal readmission of the Jews to England, Mendelssohn discussed the need to violate fundamentally unjust laws:^[16]

That barbarous laws (barbarische Gesetze) are of the most terrible consequences the more legally the proceedings are conducted, and the more rapidly the judge pronounces after the letter, is an important truth which cannot be too often inculcated. The only way of amending unwise laws (unweise Gesetze) is by deviating (Abweichungen) from them, as one would correct mistakes in calculation (Rechnungsfehler) by other willful mistakes.

Mendelssohn’s understanding of the potential tyranny of the majority, and his prescient insight that “the most terrible consequences” occur “the more legally the proceedings are conducted” – in other words, that formal judicial procedure can mask terrible substantive injustice – were borne out by courts a century and a half later in Nazi Germany.

What, then, can we learn from these sources (and, of course, there are many more)? First, regarding the separation of powers, let us recall that the talmudic rabbis called for a separation of powers and the exemption of illegitimate rulers (“kings of Israel”) from the court’s jurisdiction not on theoretical or ideal grounds, but on purely pragmatic grounds and for prudential reasons. Whatever one’s theoretical ideals may be, the rabbis reached a pragmatic solution of balance of separate powers necessary for social welfare and peace. A conflict between the judiciary and the executive branch leads to destruction, as Maimonides pointed out. Both are necessary, but both – especially those who control the armed forces – must exercise restraint for the sake of larger society.

The talmudic rabbis saw the court as having limited its own authority over the king in order to avoid a dangerous conflict of powers. The danger we face in Israel is similar – a clash between the judiciary on the one side and the legislative and executive branches on the other side – despite differences in the specific circumstances, and from which side the danger originates. Today’s Israeli government and its supporters argue that the court has already over-extended its authority, and therefore they seek to have the Knesset, led by the government, impose limits on the court’s authority to intervene in, and overrule, legislative and executive decisions.  Conversely, those who support the Supreme Court’s independence as the ultimate arbiter of the law oppose what the government and Knesset propose. They see a potential danger to Israel if the government should refuse to obey decisions of the Supreme Court, as already advocated by some government ministers and members of the Knesset. Furthermore, if that should happen, it is by no means obvious whether the military, security agencies, and police would obey the government. The resulting clash and chaos would be disastrous for Israel.

In that context, let us recall some common Israeli advice, all too often ignored today: “Don’t be right, be smart.” Zealous enthusiasm is not the same as wisdom. Let us also recall that while Rabbi Akiva enthusiastically supported the disastrous and tragic revolt (132-135 C.E.) against the Romans of Bar Kokhba, whom he called “the Messiah King,” other rabbis sharply disagreed:^[17]

Rabbi Shimon bar Yohai taught: Akiva, my rabbi, interpreted “A star will go forth from Jacob” (Numbers 24:17). When Rabbi Akiva would see Bar Koziba, he would say, by right he is the Messiah King (malka meshiha). Rabbi Yohanan ben Torta said to him: Akiva, grasses will grow in your cheeks, and the Son of David will still not have come.

Second, regarding majority rule, let us recognize that democracy and majority rule are not ends in and of themselves, but a mode of government in a society in which citizens may differ greatly with each other about the ultimate meaning of life and the goals of the government they elect. According to Spinoza,^[18]

If we hold to the principle that a man’s loyalty to the state should be judged, like his loyalty to God, from his actions only – namely from his charity towards his neighbors, we cannot doubt that the best government will allow freedom of philosophical speculation no less than of religious belief.

Mendelssohn’s Jerusalem concludes on a similar note. Addressing rulers of the state, he wrote:^[19]

Let us not pretend that conformity exists where diversity is obviously the plan and goal of Providence. Not one among us thinks and feels exactly like his fellowman . . . For the sake of your happiness and ours, do not use your powerful prestige to give the force of law to some eternal truth that is immaterial to civic well-being . . . Concentrate on what men should or should not do; judge them wisely by their actions; and let us retain the freedom of thought and speech with which the Father of all mankind has endowed us as our inalienable heritage and immutable right.

We should also consider that there is no inherent or necessary equivalence between the democratic or undemocratic character of a government and the moral obligation – written into Israeli military law – to refuse to obey a “manifestly illegal order.” When an American general in the Vietnam War infamously claimed that “we had to destroy the village [including its civilian population] in order to save it,” he was serving a democratically elected government, but giving (or following) a “manifestly illegal order” – in short, a war crime. A democratic government can issue “manifestly illegal orders.” Conversely, cannot one imagine legal and reasonable orders given by an undemocratic government, for example, to defend the country from foreign aggression or to use military forces for humanitarian missions? Is refraining from military service, even by volunteers, because of legitimate and fundamental disagreements with the government, wise? If refusal to serve by one side is legitimate today, what is to stop the other side from refusing to serve tomorrow under a different government?

Moreover, we already see external enemies gloating over the internal dissention in Israel as serving their dream of the destruction of the Jewish State from within, perhaps unknowingly anticipating the homiletical interpretation of the prophecy of Isaiah (49:17) that the source of destruction of Israel is internal: “Your destroyers and those who lay you waste will come out from within you.”^[20]

We face terribly difficult moral and political decisions. Clear thinking by all of us on the correct and desired relation among separate powers, and on the limits of majority rule, is certainly called for. Studying some of the insights of how our sources dealt with these issues may, in turn, help us understand our options better and face our own dilemmas with greater wisdom and acceptance of the other.

[1] Mishnah Sanhedrin 2:3.

[2] Sanhedrin 19a-b. Translation is my own.

[3] Alexander Yannai (127-76 B.C.E.) was the second Hasmonean king, ruling from 103-76 B.C.E. He sided with the Sadducees. His wife Salome (Shlomit) was the sister of Shimon ben Shetah.

[4] Shimon ben Shetah (140-60 B.C.E.) was the nasi, the head of the Sanhedrin, and was a leader of the Pharisees. His sister Salome (Shlomit) was the wife of King Alexander Yannai.

[5] Citing Exodus 21:29, the Gemara explains here that the owner of an ox is responsible for what his ox does, by analogy that the master of a slave is responsible for what his slave does.

[6] Of course, not all the kings of the Davidic dynasty were righteous, but at least in rabbinic terms they were legitimate rulers by virtue of their descent and their being based in Jerusalem.

[7] Commentary to Mishnah Sanhedrin 2:3. I used Rabbi Yosef Kafih’s edition of the Judeo-Arabic original with his Hebrew translation. English translation is my own.

[8] Mishneh Torah, Laws of Kings 3:7. Translation is my own.

[9] Spinoza was excommunicated (put in heirem) by the Amsterdam Jewish community for his radical views, when he was 23. However, he never converted to Christianity. The causes of his excommunication remain a subject of research and debate to this day.

[10] Citations are from the English translation from the Latin by R.H.M Elwes (1883; 2 volumes), reprinted (New York: Dover, 1951), Volume 2.

[11] Ibid., ch. 16, 207.

[12] Ibid., ch. 20, 260.

[13] Ibid., 262.

[14] Ibid., 259.

[15] Moses Mendelssohn (1729-1786).

[16] Citation from the translation by M. Samuels in Jerusalem: A Treatise on Ecclesiastical Authority and Judaism by Moses Mendelssohn (London, 1838), 89. Mendelssohn’s German Preface (“Rettung der Jüden: Vorrede”) may be found in Moses Mendelssohn’s Sämmtliche Werke (Vienna, 1838), with this passage on p. 686.

[17] Jerusalem Talmud, Ta’anit 4:6 (68d). Translation is my own.

[18] Op. cit., 261.

[19] Moses Mendelssohn, Jerusalem, or On Religious Power and Judaism, in Jerusalem and Other Jewish Writings, edited and translated by Alfred Jospe (New York: Schocken, 1969), 109-110; cf. Jerusalem, or On Religious Power and Judaism, translated by Allan Arkush, with Introduction and Commentary by Alexander Altmann (Hanover; Brandeis University Press, 1983), 138-139; Moses Mendelssohn’s Sämmtliche Werke, 290-291.

[20] My translation. The literal meaning is that foreign enemies will leave the country; the homiletical interpretation is that destruction comes from within the Jewish people itself (cf. Radak [Rabbi David Kimhi] on this verse).