The First Constitution: Rethinking the Origins of Rule of Law and Separation of Powers in Light of Deuteronomy

Abstract

This article demonstrates the overlooked contribution of the ancient Near East to the development of constitutional law. The legal corpus of Deuteronomy provides a utopian model for the organization of the state, one that enshrines separation of powers and their systematic subordination to a public legal text - the "Torah" - that delineates their jurisdiction while also ensuring their autonomy. This legislation establishes an independent judiciary while bringing even the monarch under the full authority of the law. Deuteronomy’s implicit model for a political constitution is unprecedented in legal history. Two of its cornerstones are fundamental to the modern idea of constitutional government: (1) the clear division of political powers into separate spheres of authority; and (2) the subordination of each branch to the authority of the law. This legislation was so utopian in its own time that it seems never to have been implemented; instead, idealism rapidly yielded to political pragmatism. Nonetheless, Deuteronomy’s draft constitution provides an important corrective to standard accounts of constitutional legal history.

Keywords: Constitutional theory, rule of law, separation of powers, originalist theory, Deut 16:18-18:22, Laws of public officials, Law of the king, Deut 17:14-20, Verfassungstheorie, constitutional interpretation, Sophocles Antigone, Herodotus, Mishnah, First Amendment, living constitution