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Authors

David C. Flatto

Abstract

The extensive recent political and legal discourse concerning the constitutional themes of separation of powers and judicial independence has sparked increasing interest in their respective historical backgrounds. Certain early modern political writings point to significant theories of governance emerging from the Hebraic tradition. By exploring neglected Hebraic texts from a modern critical perspective, we can uncover bold and novel conceptions of authority.

Salient biblical passages that call for the separation of the king from the judiciary resist the broader ancient and biblical tendency that invests all powers in the monarchy. Promoting the notion of an independent judiciary, the earliest biblical strategy subordinates the king to other political leaders. Later Judaic writings either extend this approach or attempt to reverse it.

Largely misunderstood early rabbinic writings further cultivate the concept of an independent judiciary, but display a fundamentally different attitude toward the monarchy. Rather than demoting the monarch, they establish the legitimate and independent political autonomy of the executive. Further, they link the notion of an independent judiciary in surprising ways with the doctrine of sovereign immunity. What emerges is a distinctive scheme wherein the king cannot judge, but in many respects the court cannot govern either. Although these texts no longer carry authoritative weight, they continue to have allure and significance for political and constitutional theory.

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