Separation of Powers

views updated


SEPARATION OF POWERS , a fundamental principle of Public Law, which seeks to distinguish between the roles and powers of a number of different public authorities operating in tandem, such as the legislative, executive, and judicial authorities. On the one hand, this principle is meant to prevent too great a concentration of power in the hands of a single authority (such as a king in previous times, or a government or parliament, in our own day); on the other, this model is meant to fashion a system of controls, checks and balances, to ensure the proper and appropriate operation of a public authority. In modern times, this model was developed in the wake of ideas first presented as an appropriate democratic model by Montesquieu in his book, The Spirit of Laws. It goes without saying that this principle, as it exists today, did not exist in ancient legal systems such as Jewish Law, based on a central monarchic regime. Nevertheless, one can find more than a few principles in Jewish Law which are consistent with the model of separation of powers, even if not identical to it.

Separation of powers does not find formal expression in Jewish Law, but at times is expressed in the practical realm. Thus, for example, the prophets held prominent status in Biblical times but, being outside the institutionalized system, were free to, and indeed did, criticize the king, and were a balancing factor to his ruling power. In other cases, by contrast, we find the prophet involved in royal affairs, and even in the appointment of judges (i Sam. 8:1–3). Similarly, during the early Biblical period we find the model of "elders" and "princes" working concurrently, each with their own powers. Their concurrent functioning created the requisite balances for a suitable social system. A striking example of the separation between the two branches, the judicial and the executive, is found in the command, "You shall appoint judges and officers in all your gates which the Lord your God gives you, according to your tribes; and they shall judge the people with righteous judgment" (Deut. 16:18).

The structure of government during the monarchic period expresses a classic model of centralized authority, in which most of the power is concentrated in the hands of one ruler. Thus, for example, we find that the king of Israel was involved, not only in running his kingdom, but also in legislation (such as laws imposing tax payments). The king (such as Solomon) also served as judge. So strongly identified did these two tasks become that in biblical language the term "judge" (shofet) relates not only to court judges who must decide cases between litigants, but also to the king or ruler (see, for example, 1 Sam. 8:6: "give us a king to judge us").

Maimonides (Yad, Melakhim) also highlights the merging of sovereign functions in the position of the king. In addition to serving as the executive authority, the king functioned simultaneously as both legislator and judge (see, for example, Yad, Melakhim 4:10). In addition, in the Middle Ages members of the public authority (see *Public Authority) were involved on a regular basis in both legislative and judicial activities, such as judicial interpretation and sentencing. The responsa literature attests to hundreds of such cases (see*Takkanot, *Takkanot ha-Kahal) by tuvei ha-kahal, the communal leadership, who were the central executive authority in the Jewish community. This blurring of roles, which clearly goes against contemporary principles of separation of powers, indeed aroused opposition among some of the scholars of Jewish Law, and a number of them regarded this blurring of roles as the reason for the opposition found in Scripture itself to the enthronement of a king over Israel, who would concentrate too much power in his own hands without proper and effective checks and balances (see Meir Ish-Shalom's commentary on Sifre, 105:1, n. 4).

Similarly, the *Sanhedrin, the Great Court of Seventy One, and the local courts in the Jewish communities of the Middle Ages (see *Bet Din) not only engaged in adjudication but, alongside their role as the supreme judicial authority, also dealt with legislation (regarding the passage of communal enactments, see *Takkanot and *Takkanot ha-Kahal) and with law enforcement functions (such as in punishing criminals; see *Punishment).

The Courts in the State of Israel

The model of separation or non-separation of powers, as expressed in the sources of Jewish Law, has been discussed in the Israeli courts on several occasions. In one instance, the Supreme Court (Justice Y. Cohen) highlighted the substantive difference between the modern legal system (which prevents a judge from engaging in execution of the law or in legislation) and Jewish Law, in which the judge is granted the authority to both rule and legislate (fh 39/75, Israel Port Authority v. Ararat, 31 (1) pd 545). In two other cases, the Supreme Court (Justice M. Elon) stressed that, unlike the model of the court under Jewish Law, which holds the power to mete out and administer punishment ("The court administers lashes and other punishments not prescribed by the Torah" – Yev. 90b), in modern law, which maintains separation of powers, it is accepted that changes in legislation are made by legislators and not by the courts (App. 22/83 Kraus v. the State of Israel, 37 (1) pd 369; Cr.A. 543/79 Avishai Nagar v. the State of Israel, pd 35(1) pd 163–170).

This issue of "Separation of Powers" was also discussed by the Supreme Court in connection with the question of whether or not a judge is entitled to deal with political issues. Relying on sources in Jewish Law, the Supreme Court (Justice Goldberg) noted the dual role of the rabbinic judge, who played a central role not only in Jewish judicial authority, but also in communal leadership. He stressed the difference between this approach and that prevalent in our day, in which there is separation of powers between the two roles (hc 732/84 Tzaban v. the Minister of Religious Affairs, 40 (4) pd 153). This issue occupied both the civil and rabbinical courts in Israel with respect to the communal status of the Chief Rabbinate of Israel and the ability of its members – both rabbis and dayyanim (judges in rabbinical courts) – to participate in activities obviously in the realm of the executive branch. In another case, the question arose of dayyanim's involvement (as part of the judicial branch) in the functioning of the religious councils (being part of the executive branch). The District Court (Judge N. Hendel) relied on sources from Jewish Law to support his decision that it was inappropriate for one branch to impinge on the activities of another branch, and for dayyanim to be involved in activities associated with the executive authority (ssa (Beer-Sheba) 276/05 Shana and Bros. v. Haziza and Bros. (not published).


M. Elon, Ha-Mishpat ha-Ivri (1988), 49–51; idem, Jewish Law (1994), 55–57; G. Alon, "Eilein de-Mitmanin be-Kessef," in: Meḥkarim be-Toledot Yisrael, 2:23; A. Hacohen, "Ha-Rabbanut ha-Rashit le-Yisrael: Hebbetim Mishpatiyyim," in: I. Warhaftig (ed.), Ha-Rabbanut ha-Rashit le-Yisrael: Shivim Shana le-Yisuda, (2000), 159–219; A. Hacohen, Parshanut Takkanot ha-Kahal ba-Mishpat ha-Ivri (2003), 40–56; Y. Engelard, "Ma'amadah shel Mo'eẓet ha-Rabbanut ha-Rashit ve-Samkhut ha-Piku'aḥ shel Beit ha-Mishpat ha-Gavoha le-Ẓedek," in: Ha-Praklit, 24 (1966), 68; Y. Lior, "Ofi ha-Malkhut be-Yisrael," in: Iyyunim be-Sefer Shemuel, vol. i (1992), 145; Sh. Yevin, "Od le-Inyan Shofet Melekh," in: Leshonenu, 33 (1969), 3–6; E. Yinon and Y. David, Ha-Rabbanut ha-Mamlakhtit: Beḥirah, Hafrada ve-Ḥofesh Bitui (2000).

[Aviad Hacohen (2nd ed.)]