Responding to Mary Sarah Bilder’s argument that the roots of judicial review can be found in corporate law of the colonial era, Scott Gerber contends that judicial review is an extension of the notion of an independent judiciary that emerged from Revolutionary Era political theory. Gerber convincingly demonstrates that the American Founders were “steeped in the history of ideas.” But his limited focus on Adams and Montesquieu obscures the deeper theoretical origins of the doctrine of an independent judiciary. Already debated in England during the sixteenth and seventeenth centuries, the concept traces back much earlier. As the works of early modern political writers indicate, the etiology of an independent judiciarylies in antiquity –not in Athens, but rather in Jerusalem.

To be sure, Greco-Roman thought was instrumental in contributing to aspects of constitutional theory. In particular, the kernel of the separation of powers doctrine that Gerber attributes to Montesquieu derives from classical political theory, especially the proposal of a mixed constitution advanced by Polybius and later Cicero. Nevertheless, Gerber correctly notes that for Montesquieu, and mutatis mutandis for Polybius and Cicero, the branches that they sought to separate are (to use modern taxonomy) the executive and legislative. Under Polybius’s model judicial responsibility belonged to the consuls and assemblies, and was not allocated separately to an independent body. Later, after the rise of the Principate (shortly after Cicero’s life), the supreme legal power was of course the emperor.

In one province of the imperial world, however, a different model of judicial administration was at least imagined, if not implemented. Despite the domineering presence of a Roman Emperor, rabbis in the first and second century CE announced their own juridical model that unmoored the judiciary from the king’s dock. In the memorable words of the Mishnah, “A king may not judge, nor be judged.” Justice is not for kings (not even Jewish ones) but rather for the Sanhedrin, the idyllic supreme court that stands alone atop Jerusalem’s Temple Mount.

Refracted through the prism of the later Babylonian Talmud, this statement has often been cast as the exception rather than the rule. Describing a kind of constitutional crisis, the Babylonian Talmud sees this declaration as an emergency compromise that emerged out of an ugly showdown between a Hasmonean King and the Sanhedrin. Milton—in his 1651 Defence of the People of England, which rebutted Salmasius’ charge that the parliamentarians perpetrated regicide—likewise perpetuated the Talmud’s revisionist reading. However, the simple slogan of the Mishnah (as well as several other related Mishnaic texts I have analyzed elsewhere) belies this reading. Rabbinic interpreters who were more chronologically and geographically proximate likewise confirm that the plain semantic reading is the correct one. In short, according to the Mishnah the monarchy and the judiciary are separate institutions.

While at first blush, the rabbinic position may be attributed to Judaic disempowerment—without monarchic power, the rabbis still sought to hold onto judicial control—in fact this is not the case. For the Hebraic position already appears in one significant, if atypical, text from the biblical period, when the presence of an Israelite king was essentially taken for granted.

Throughout the ancient Near Eastern world, an absolutist king exercised broad powers, including ultimate legal authority. Beyond adjudicating and enforcing legal rules, the king in ancient regimes enjoyed full legislative powers. Although the Bible often displays a distinctive orientation toward various issues of law and power, in this regard its general approach coheres with that of the surrounding political culture. For in the larger biblical scheme the king was central to the judicial system. Indeed, as Milton already noted, the initial request by the elders for a king in 1 Samuel emphasizes the judicial responsibilities of this new kind of leader: “Give us a king to govern/judge us.”

Yet, the most enduring description of the monarch’s overall responsibilities—the political constitution recorded in Deuteronomy that was seen as normative by many later Jewish thinkers—contains a “double anomaly” that revises this pervasive biblical approach. Describing the centralized judiciary that oversees an elaborate network of municipal courts, the king is glaringly absent. That is, the verses discussing the administration of justice never suggest that the king participates in this role. In the next sequence of verses that directly address the role of the monarch, the text likewise omits mention of any judicial responsibility on the part of the king. A pair of verses from these respective sections employs a deliberate rhetorical technique to accent this point further. A verse in the first section describes the final jurisdiction of the supreme judicial officials by stating, “[D]o not stray from the word that they proclaim to you either to the right or to the left.” In contrast, when prescribing the mandate that the king write a Torah scroll in concluding the next section, the verse explains the purpose: “in order that he not turn aside from the commandment either to the right or to the left.” In other words, the central judiciary supplies the authoritative interpretation of the Torah’s law. In contrast, the king is relegated to a passive role of reading, not interpreting the Torah, and he is enjoined not to stray from the Torah’s law, as interpreted by the judiciary. While the judicial officials have mastery over the Torah’s law, the king is subservient to the Torah, and, accordingly, to them as well.

In sum, two formative moments in the Hebraic tradition—one biblical (Deuteronomy), the other rabbinic (the Mishnah)—insist on establishing an independent judiciary operating beyond the reach of the king. Still, these two traditions differ as to whether the notion of an independent judiciary implies judicial authority over other powers, an issue at the heart of Gerber’s response. Deuteronomy subordinates the king to the rule of law and the judiciary, and thereby authorizes the judiciary to validate or veto monarchic action (a point made explicit in later Qumran expansions on the Deuteronomic text). In contrast, the later Mishnah demurs on this count. Even as it establishes the broad rights of the judiciary, the Mishnah interestingly allots independence to the king as well (for the king is not judged either, nor is he subject to various norms). For the Mishnah, granting the judiciary independence does not afford it the right to hold the executive in check.

This brief historical survey exposes the Hebraic roots of the concept of judicial independence. Aspects of this tradition informed the political theories of Milton, Salmasius, and especially Selden, a towering seventeenth-century intellectual. In his immensely learned and voluminous De Synedriis, Selden specifically studied the historical development of Jewish courts from a comparative perspective. Collectively, these leading thinkers helped shape early modern constitutional theory on both sides of the Atlantic.

Returning to the early Hebraic conception of an independent judiciary also reveals the indeterminate relationship of this doctrine to a broader notion of judicial superiority. In an important sense, this uncertainty anticipates the contemporary controversy over the nexus between judicial independence and judicial review. Moreover, this journey backward also provides an illuminating perspective on the almost inevitable tensions generated by the allocation of political responsibilities. What is essential to realize is that just as today there are intensive debates about the parameters of judicial independence, so too similar struggles occurred in the ancient era. Deuteronomy’s constitution constitutes a dramatic departure from most of the Bible and ancient Near Eastern literature. Likewise, the administrative structure advanced by the Mishnah is jettisoned by the later (and ultimately more influential) Babylonian Talmudic tradition.

Apparently, judicial independence often begins as a countervoice, and always requires vigilant safeguarding. On this count Bilder and Gerber’s call for protecting the integrity of this doctrine is certainly in place.

David C. Flatto is the inaugural Fellow of Jewish Law & Interdisciplinary Studies at Cardozo Law School, and will be a Visiting Researcher at Yale Law School for the 2007-08 academic year. He received a J.D. from Columbia Law School and is currently a Ph.D. candidate in Rabbinics at Harvard University. He is the author of two forthcoming articles on the relationship of the monarchy and the judiciary in the early Hebraic tradition, including The King and I: The Separation of Powers in Early Hebraic Political Theory, which will be published this winter in the Yale Journal of Law and the Humanities (Vol. 20, Issue 1). His e-mail address is flatto@fas.harvard.edu.

Preferred citation: David C. Flatto, The Historical Origins of Judicial Independence and Their Modern Resonances, 117 Yale L.J. Pocket Part 8 (2007), http://yalelawjournal.org/forum/the-historical-origins-of-judicial-independence-and-their-modern-resonances.