The Anxiety of Influence and Judicial Self-Aggrandizement in Rabbinic Jurisprudence
36 Constitutional Commentary ___ (Forthcoming 2021)
16 Pages Posted: 28 Apr 2021 Last revised: 12 May 2021
Date Written: April 20, 2021
The separation of powers is often at the center of modern constitutional governance. But David Flatto’s recent book, The Crown and the Courts, invites us to think about how (very) early Jewish meditations on the relationship among the monarch, the priests, the rabbis, and the law gave political theory resources for justifying judicial independence and sovereign immunity—perhaps earlier than we realized. Yet is hard to grant Flatto such a thoroughly non-political political theory of judicial independence and sovereign immunity, such as he advances in his Flattonic idealism. Once we appreciate, instead, that the propensity for judicial self-aggrandizement and the institutional strategies for accomplishing that objective have existed since time immemorial, a slightly more realistic accounting of these developments in constitutional theory is made possible. That has lessons not only for our understanding of the rabbis but also for the separation of powers today.
Keywords: separation of powers, judicial independence, sovereign immunity, Talmud, rabbinics
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