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Limiting the Power of a Judge

Devarim 17.8-12, If a case is too baffling for you to decide, be it a controversy over homicide, civil law, or assault -matters of dispute in your courts - you shall promptly repair to the place that YHWH your God will have chosen, and appear before the Leviim or the magistrate in charge at the time, and present your problem. When they have announced to you the verdict in the case, you shall carry out the verdict that is announced to you from that place that YHWH chose, observing scrupulously all their instructions to you. You shall act in accordance with the instructions given you and the ruling handed down to you; you must not deviate from the verdict that they announce to you either to the right or to the left. Should a man act presumptuously and disregard the priest charged with serving there YHWH your God or the magistrate, that man shall die.

While it might appear that the shoftim have tremendous power - perhaps even tantamount to that taken by the Rabbis - one must put into perspective, "You shall act in accordance with the instructions given you and the ruling handed down to you; you must not deviate from the verdict that they announce to you either to the right or to the left. Should a man act presumptuously and disregard the priest charged with serving there YHWH your God or the magistrate, that man shall die," with Devarim 4.2, "You shall not add to the word which I command you, nor take from it; that you may keep the commandments of the LORD your God which I command you."

Given that the rulings of the Torah will always out weigh the rulings of a shofeit, it may safely be concluded that one is not only absolved from observing any ruling brought down by a shofeit that would add to, take away from, or violate the Torah, but one is required to do so. One concern that may be expressed with regard to establishing a magistracy is that of the historic abuse of power such governing bodies have almost inevitably engaged in. This is a very legitimate concern. Rabbanism is filled to the brim with displays of such abuses of power.

However, while we are required to set judges over ourselves, we are given leeway in how to implement their appointments and define their offices. The Torah, in not specifically defining the means of establishing a judge (though it defines the what the character of a judge should be) enables us to put into place prophylactic strictures that will prevent judicial abuse. A few examples follow. A judge/judicial body does not have to be appointed for life, or even for a term longer than is necessary for the judge/judicial body to determine the outcome of a given legal case - in the same light, the authority of a judge/judicial body can be limited to decide certain kinds of cases (not provide them with broad authoritarian powers), and the impact of the decision of a judge/judicial body can be limited so that it only affects those parties in a given case (eliminate the power of legal precedence). By implementing these and other restrictions on legal power and practice, the power of a magistracy can be effectively checked.