Jun 2, 2011

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The Torah as the First Constitution?


Interesting piece from Bernard Levinson, titled The First Constitution: Rethinking the Origins of Rule of Law and Separation of Powers in Light of Deuteronomy. Here is the 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.

H/T Legal Theory Blog

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  • http://Website steve rappoport

    Interesting. I don’t know to what extent the Torah is a source of Israeli law, but apparently the Talmud is, according to a post by David Schraub: http://dsadevil.blogspot.com/2011/05/israeli-supreme-court-justice-salim.html

  • http://Website lawschooldrunk

    The torah is the prime source of jewish law, and the talmud is extrapolation, extension, and interpretation, filling in many areas not discussed in the torah or grey areas where there are alternate views. Of course, the talmud is based off of the mishna, a collection of writings gathering oral jewish teachings of law into an ordered collection. (jewish law used to be taught and transferred orally and around 200 BC the teachings were being forgotten so they were finally written to preserve.)

  • http://Website steve rappoport
  • http://dsadevil.blogspot.com David Schraub

    As I understand it, the Torah and Talmud are not directly part of Israeli law (except perhaps as persuasive authority), but they get incorporated in at times because elements of Israeli law (e.g., family law) are delegated to the religious authorities of the citizen (so Jews are governed by Rabbinical law, Muslims by Islamic clerics, etc.). But of course, decisions made by those officials still can be appealed and, theoretically, could make it to the Supreme Court — hence Justice Joubran’s amusing what-if.