The Origins of Constitutional Thought—Found in Deuteronomy

The Shared Royal Ideology of Israel and the Ancient Near East

Israel did not originally differ from any other ancient Near Eastern kingdoms in its view of the authority, role, prestige, and power of the monarch.

1. The King was Divinely Sanctioned

At Ugarit (an ancient port city in northern Syria), the king was commonly depicted as the adoptive son of the head of the pantheon. For example, in the Epic of Kirta (ca. 1500–1200 B.C.E.), Kirta, as monarch, is designated “a scion of El—Son of the Gentle and Holy One.”^[1]

YHWH similarly affirms the Davidic monarch, both through the legal adoption formula בְּכוֹר אֶתְּנֵהוּ, “firstborn will I appoint him,”^[2] and by appointing him his earthly counterpart as head (עֶלְיוֹן, “Most High”) of the divine council:

‏^{תהלים פט:כח} אַף אָנִי בְּכוֹר אֶתְּנֵהוּ עֶלְיוֹן לְמַלְכֵי אָרֶץ.

^{Ps 89:28} As for me [YHWH], firstborn will I appoint him, Most High to all the kings of the earth!^[3]

In Babylon and Assyria, divine appointment, not adoption, of the monarch was the standard motif of royal legitimation.^[4] Thus, Hammurabi, king of Babylon, declares his divine appointment as shepherd, a common ancient Near Eastern metaphor for kings, in the prologue to his collection of laws:

^{LH i 50-62} I am Hammurabi, the shepherd, selected by the god Enlil.^[5]

2. Endowed with Judicial Insight

Hammurabi is also endowed by Shamash, the sun god, with special ability to perceive the principles of justice and righteousness that inform his laws:^[6]

^{LH xlviii 95–xlix 17} I am Hammurabi, king of justice, to whom the god Shamash has granted (insight into) the truth.^[7]

Similarly, the speaker of the royal Psalm 72, petitions God to grant the Davidic monarch the crucial attribute for legitimate kingship:

^{תהלים עב:א} אֱלֹהִים מִשְׁפָּטֶיךָ לְמֶלֶךְ תֵּן וְצִדְקָתְךָ לְבֶן מֶלֶךְ.

^{Ps 72:1} O God, grant the king your judgments;
the king’s son, your righteousness!

3. Duty to Administer Justice

A primary duty of the monarch was to administer justice, including ensuring equal access to legal protection for the socially marginalized.^[8] At Ugarit, this duty is represented by prince Yaṣṣib’s reproof of Kirta, his mortally ill father, for failing to behave like a king:

^{CAT 1.16.VI.44–48} You’ve let your hand fall to vice. You don’t pursue the widow’s case, you don’t take up the wretched person’s claim. You don’t expel the poor person’s oppressor.^[9]

In Babylon, it is evident in Hammurabi’s claim that Marduk commissioned him:

^{LH i.27–44} To eliminate evil and the evildoer, so that the strong might not oppress the weak, to rise like Shamash over the black-haired ones, and light up the land.^[10]

Similarly, the royal Psalm 72 establishes justice as the prime function of the Davidic monarch:

^{תהלים עב:ד} יִשְׁפֹּט עֲנִיֵּי עָם יוֹשִׁיעַ לִבְנֵי אֶבְיוֹן וִידַכֵּא עוֹשֵׁק.

^{Ps 72:4} May he defend the cause of the poor of the people, give deliverance to the needy, and crush the oppressor.

Taken together, these characteristics emphasize the extent to which ancient Israel fully participated in the royal ideology of the broader ancient Near East and its closest neighbors.^[11]

Deuteronomy’s legal corpus, however, rejects these prevailing models of monarchic power. Instead, it submits a utopian manifesto for a constitutional monarchy that sharply delimits the power of the king and establishes the deuteronomic Torah as sole sovereign authority.

Deuteronomy’s Historical Background

The legal corpus of Deuteronomy is associated with a movement of major religious and social reform that took place in the southern Israelite kingdom of Judah in the 7^th century B.C.E.,^[12] though editorial additions and adjustments to the text continued into the exilic and post-exilic periods.

Deuteronomy’s authors were concerned primarily with centralizing the cult at a single sanctuary (implicitly, the Jerusalem Temple) and abolishing the multiple local altars and sanctuaries throughout Judah as illegitimate (Deut 12:1–7).^[13] Removing these local cult sites, however, required the deuteronomists to reform other areas of public life, including justice and the political structure of the state.^[14]

The Judiciary: Professional Judges, not Elders

Two distinct contexts for local justice existed prior to centralization. The first was the clan-based system of זְקֵנִים, “elders,” who held court at the שַׁעַר, “village gate,” the conventional site for a public hearing.^[15] For example, in the story of Ruth, when Boaz needs to plead his case, he ventures to the village gate and gathers the ten elders to sit there so that he can make his claim (Ruth 4:1–3).^[16]

The authors of Deuteronomy replace the elders with a new and professionalized judiciary in order to bring local clan justice under centralized authority:

‏^{דברים טז:יח} שֹׁפְטִים וְשֹׁטְרִים תִּתֶּן לְךָ בְּכָל שְׁעָרֶיךָ אֲשֶׁר יְ־הוָה אֱלֹהֶיךָ נֹתֵן לְךָ לִשְׁבָטֶיךָ וְשָׁפְטוּ אֶת הָעָם מִשְׁפַּט צֶדֶק.

^{Deut 16:18} Judges and judicial officers shall you appoint for yourself in each of your city-gates that YHWH your God is giving to you, according to your tribes. They shall judge the people with righteous justice.

Strikingly, the new judges are installed precisely in the location where the elders held court, summarily evicting them from office without even mentioning them.^[17] This new and now professionalized judiciary would assume responsibility for all routine legal cases.^[18]

The conventional role of the elders had been based upon their social position and inherent status. The elders were thus neither appointed by nor answerable to the larger community. The authors of Deuteronomy disrupt that old clan lineage judicial system and instead make exercise of the judicial function conditional, first, upon appointment to the office, and second, upon professionalization. The authors of Deuteronomy thereby radically transform the local oligarchic authority structure.

Deuteronomy further breaks the nexus between justice and clan status by freeing the system of royal control. The king does not appoint the local judiciary. That role is assigned to the population at large: ...שֹׁפְטִים וְשֹׁטְרִים תִּתֶּן לְךָ, “judges and officials shall you appoint...” (16:18).

Deuteronomy then stipulates that the testimony of witnesses is the necessary condition for conviction in the local sphere:

^{דברים יז:ו} עַל פִּי שְׁנַיִם עֵדִים אוֹ שְׁלֹשָׁה עֵדִים יוּמַת הַמֵּת לֹא יוּמַת עַל פִּי עֵד אֶחָד.

^{Deut 17:6} On the testimony of two witnesses or three witnesses shall a person be executed; a person must not be executed on the testimony of a single witness.

In effect, the law restricts the jurisdiction of the local courts to cases that can be empirically resolved. Within the limits of that operational restriction, however, local judicial authority is the tribunal of first choice, and their authority is maximized, since the local judiciary is empowered to try capital cases and even to adjudicate serious religious transgressions like apostasy (17:2–3), on condition that witnesses are available.

Ambiguous Cases Remanded to the Temple

Prior to centralization, regular access to the local sanctuary was essential to the everyday judicial life of the populace. In judicial cases where there was a lack of either witnesses or evidence, the litigants were remanded to the sanctuary to participate in a judicial ordeal^[19] or swear an oath before the deity who, by virtue of his access to suprarational knowledge, ruled as omniscient Judge.^[20] For example, the Covenant Code (Exod 21–23) remands issues of theft or contested deposits to the local cult site:

^{שׁמות כב:ח} עַל כָּל דְּבַר פֶּשַׁע עַל שׁוֹר עַל חֲמוֹר עַל שֶׂה עַל שַׂלְמָה עַל כָּל אֲבֵדָה אֲשֶׁר יֹאמַר כִּי הוּא זֶה עַד הָאֱלֹהִים יָבֹא דְּבַר שְׁנֵיהֶם אֲשֶׁר יַרְשִׁיעֻן אֱלֹהִים יְשַׁלֵּם שְׁנַיִם לְרֵעֵהוּ.

^{Exod 22:8} In any case of disputed ownership involving ox, donkey, sheep, clothing, or any other loss, of which one party says, “This is mine,” unto God shall go the case between the two of them; he whom God indicts shall pay double to his neighbor.

The abolition of local altars threatened to deny the community access to an essential context for resolving a wide range of judicial disputes. Deuteronomy’s legal corpus thus stipulates that all disputed or ambiguous cases must be remanded to the centralized Temple (implicitly: in Jerusalem) as the only site that provided legitimate access to divine resolution:

‏^{דברים יז:ח} כִּי יִפָּלֵא מִמְּךָ דָבָר לַמִּשְׁפָּט בֵּין דָּם לְדָם בֵּין דִּין לְדִין וּבֵין נֶגַע לָנֶגַע דִּבְרֵי רִיבֹת בִּשְׁעָרֶיךָ וְקַמְתָּ וְעָלִיתָ אֶל הַמָּקוֹם אֲשֶׁר יִבְחַר יְ־הוָה אֱלֹהֶיךָ בּוֹ. ^יז:ט וּבָאתָ אֶל הַכֹּהֲנִים הַלְוִיִּם וְאֶל הַשֹּׁפֵט אֲשֶׁר יִהְיֶה בַּיָּמִים הָהֵם וְדָרַשְׁתָּ וְהִגִּידוּ לְךָ אֵת דְּבַר הַמִּשְׁפָּט. יז:י וְעָשִׂיתָ עַל־פִּי הַדָּבָר אֲשֶׁר יַגִּידוּ לְךָ מִן הַמָּקוֹם הַהוּא אֲשֶׁר יִבְחַר יְ־הוָה וְשָׁמַרְתָּ לַעֲשׂוֹת כְּכֹל אֲשֶׁר יוֹרוּךָ.

^{Deut 17:8} If a legal case exceeds your ken^[21]—whether distinguishing between one category of homicide and another, one category of civil law and another, one category of bodily injury and another, any kind of legal dispute within your city-gates—then you shall proceed up to the place that YHWH your God shall choose, ^17:9 and come and inquire before the levitical priests and the judge who is in office at that time. When they proclaim to you the verdict of the case, ^17:10 you must implement the verdict that they proclaim to you from that place that YHWH shall choose. Be sure to do all that they instruct you.

Deuteronomy stresses that the central cultic site does not function as a Supreme or appellate court.^[22] Instead, only in cases defined by the absence of witnesses or evidence must the litigants transfer the venue of the case from the local to the central sphere for divine adjudication.^[23]

The Monarchy

In assigning supreme judicial authority to the Temple, Deuteronomy’s authors effectively deny the king his most prestigious, and thus most jealously guarded, bailiwick. As supreme judge, the monarch could operate freely as regards type of case, area of responsibility, or stage of proceeding.

Most important, the king would frequently preside over ambiguous legal cases. One such case was deliberately included in the collection of legends whose function was to legitimate and glorify Solomon as rightful heir to the Davidic throne: Solomon’s adjudication of the two prostitutes who contested maternity over their one surviving baby (1 Kgs 3:16–28).^[24]

It can hardly be an accident, therefore, that Deuteronomy pointedly remands such cases to the Temple. With the Temple complex located adjacent to the royal palace, the slap in the face to the monarch could not be more stinging, as Deuteronomy takes justice completely out of the king’s hands.

So consistent is the suppression of the monarch’s judicial role in the legal corpus that it points to the authors’ rejection of that norm. The previous laws regulating the administration of justice in the local and central spheres (Deut 16:18–20; 17:2–7; 17:8–13) are completely silent about the judicial function of the king.

The law establishing the monarchy also does not mention a judicial role for the king. Instead, the law focuses on five prohibitions specifying what the king should not do:

‏^{דברים יז:טז} רַק לֹא יַרְבֶּה לּוֹ סוּסִים וְלֹא יָשִׁיב אֶת הָעָם מִצְרַיְמָה לְמַעַן הַרְבּוֹת סוּס וַי־הוָה אָמַר לָכֶם לֹא תֹסִפוּן לָשׁוּב בַּדֶּרֶךְ הַזֶּה עוֹד. ^יז:יז וְלֹא יַרְבֶּה־לּוֹ נָשִׁים וְלֹא יָסוּר לְבָבוֹ וְכֶסֶף וְזָהָב לֹא יַרְבֶּה לּוֹ מְאֹד.

^{Deut 17:16} However, he must not acquire many horses for himself nor may he cause the people to return to Egypt in order to acquire more horses, since YHWH has said to you, “You must never again return that way!” ^17:17 Nor may he acquire many wives for himself, for his heart would turn away; nor may he enrich himself with silver and gold.

The conception of the king in this unit serves far more to hamstring him than to permit the exercise of any meaningful authority whatsoever. In addition to his normal judicial role, other duties conventionally regarded as essential to the exercise of royal power, such as maintenance of the cult and command of the military, are similarly either passed over in complete silence or severely truncated.^[25]

Deuteronomy’s law also stands in contrast to the Israelites’ later request for a king, which references the king’s roles as judge and military leader:

^{שׁמואל א ח:כ} וְהָיִינוּ גַם אֲנַחְנוּ כְּכָל הַגּוֹיִם וּשְׁפָטָנוּ מַלְכֵּנוּ וְיָצָא לְפָנֵינוּ וְנִלְחַם אֶת מִלְחֲמֹתֵנוּ.

^{1 Sam 8:20} “Let us be like all the other nations: Let our king judge us and go out at our head and fight our battles.”

In the end, there remains for the king but a single positive duty: to “read each day of his life”—while sitting demurely on his throne—from the very Torah scroll that daily circumscribes his powers, with its legal paragraph containing Deuteronomy’s Law of the King:

‏^{דברים יז:יח} וְהָיָה כְשִׁבְתּוֹ עַל כִּסֵּא מַמְלַכְתּוֹ וְכָתַב לוֹ אֶת מִשְׁנֵה הַתּוֹרָה הַזֹּאת עַל סֵפֶר מִלִּפְנֵי הַכֹּהֲנִים הַלְוִיִּם. ^יז:יט וְהָיְתָה עִמּוֹ וְקָרָא בוֹ כָּל יְמֵי חַיָּיו לְמַעַן יִלְמַד לְיִרְאָה אֶת יְ־הוָה אֱלֹהָיו לִשְׁמֹר אֶת כָּל דִּבְרֵי הַתּוֹרָה הַזֹּאת וְאֶת הַחֻקִּים הָאֵלֶּה לַעֲשֹׂתָם.

^{Deut 17:18} When he comes to sit on the throne of his kingdom, he shall have a copy of this Torah written for him upon a scroll in the presence of the levitical priests. ^17:19 It shall remain with him and he shall read in it all the days of his life, so that he may learn to fear YHWH his God by diligently performing all the words of this Torah and all the statutes.

Deuteronomy has reduced the king to mere titular head of state. The sole potent authority is the Deuteronomic Torah, the very lawbook in whose original reception, formulation, transcription, and implementation Deuteronomy’s king plays absolutely no role.^[26]

In being thus constituted by the Torah, the monarchy becomes regulated by and answerable to the law.^[27] The notion of holding an official accountable to the law appears already in the laws of Hammurabi:

^{LH §5, vi 6–30} If a judge renders a judgment, gives a verdict, or deposits a sealed opinion, after which he reverses his judgment, they shall charge and convict that judge of having reversed the judgment which he rendered and he shall give twelve-fold the claim of that judgment; moreover, they shall unseat him from his judgeship in the assembly, and he shall never again sit in judgment with the judges.^[28]

In terms of legal and intellectual history, however, the extension of this principle of accountability to the monarchy is astonishing. In the classical Mesopotamian legal collections, it was the monarch who promulgated law.^[29] Thus, speaking in the first person in the epilogue of his legal corpus, Hammurabi repeatedly insists that the laws are, “my cases, which I have inscribed on my stela” and “my precious cases.”^[30]

Deuteronomy reverses the order of dependence between monarch and law: Here, by granting permission to the people to have a king, it is law that promulgates the monarch:^[31]

‏^{דברים יז:יד} כִּי תָבֹא אֶל הָאָרֶץ אֲשֶׁר יְ־הוָה אֱלֹהֶיךָ נֹתֵן לָךְ וִירִשְׁתָּהּ וְיָשַׁבְתָּה בָּהּ וְאָמַרְתָּ אָשִׂימָה עָלַי מֶלֶךְ כְּכָל הַגּוֹיִם אֲשֶׁר סְבִיבֹתָי. ^יז:טו שׂוֹם תָּשִׂים עָלֶיךָ מֶלֶךְ אֲשֶׁר יִבְחַר יְ־הוָה אֱלֹהֶיךָ בּוֹ....

^{Deut 17:14} When you enter the land that YHWH your God is about to give you and have taken possession of it and have settled in it, and you say, “I will appoint a king over me like all the nations that are round about me,” ^17:15a you may indeed appoint a king over you whom YHWH your God will choose.

Deuteronomy’s Torah as a Draft Constitution

Taken together, Deuteronomy provides a blueprint for a renewed and transformed society in which the key judicial, administrative, and cultic branches of government each have their separate spheres of authority defined and allocated by a single, sovereign text.^[32] No one branch of public office is superior to the other; rather, each is equally subordinate to Deuteronomy’s Torah.^[33] Moreover, Deuteronomy assigns each institution a standard of performance and therefore a criterion of evaluation.^[34] Constituted by the law, each institution must also answer to the law.

This legislative vision presents a sophisticated reflection on the nature and structure of political authority. The textual speaker mounts a critique of power that rejects any conventional notion of institutional authority as self-evident, no matter whether based upon royal dynastic claim, traditional social status, priestly bloodline, or even upon divine inspiration or prophetic vision.

Although the text employs religious language and situates itself as part of a larger presentation of the history and law of ancient Israel, it articulates a complex model of community governance that anticipates the modern conception of a “constitution” in two specific ways:

1. the separation of powers among distinct branches of government; and
2. the rule of law over all political actors—including the monarch.

Deuteronomy’s draft constitution, moreover, grounds both of these principles upon the notion of an independent judiciary. Only when the judiciary stands on equal ground with the monarchy—as it does in Deuteronomy—is it possible to protect the judiciary from the monarchy, or, to shift into more modern language, to ensure the autonomy of the judicial branch in relation to the executive branch.

It remains unclear whether the political, social, and religious transformations called for by Deuteronomy’s authors were ever actually implemented. In its final form, the unit may well date to the exilic period, when the unit’s editors were held in Babylonian exile without any direct access either to political power or to their land.^[35] From all these perspectives, the orientation of the unit thus seems far closer to utopian political science than to any immediate description of an existing status quo.

Nevertheless, while many consider the origins of constitutional thought to go back to French thinker Charles Montesquieu’s The Spirit of the Laws (1748), in which he developed the notion of separation of powers, there is good reason to look to Deuteronomy’s distinctive model of governance. Indeed, a review of political literature produced during America’s founding era from 1760 to 1805 found that the two most cited books were Deuteronomy and The Spirit of the Laws.^[36] An important chapter in the history of Western constitutional thought thus begins with the legal corpus of Deuteronomy.