Deuteronomy’s Justice System: Real and Ideal

Deuteronomy’s Two-Tiered Justice System

Deuteronomy envisions the establishment of a two-tiered justice system. According to the opening words of parashat Shoftim, the lower tier consisted of local judges. Considering what we know of Iron-Age society, these probably convened in the available public spaces, which, at least in the case of fortified cities, meant the gates and their adjacent plazas. Such plazas have been excavated at Beersheba, Lachish, Dan and additional sites.

These judges are not described as coming from any particular “class” such as the Levites, priests or scribes, or as having any special training, though such specialists as שוטרים are appointed to aid them in their work. They are instructed to judge fairly and justly but with no reference to any specific collection of law, written or unwritten. In other words, they were to judge by custom, common sense and fairness, and their judgments were to be carried out by the townsfolk and their elders.

The upper court, convening in “the place that God will choose” (17:9), namely Jerusalem, was more specialized. Its members were drawn from the Levitical Priests (17:9) and, one would imagine, the aristocracy. The judges were expected to decide in cases that were sent to them by their “brethren (brethren judges? brethren Israelites?) in their cities,” (17:9) similar to Moses’ description of his own role as referee in Deut. 1:17. From this point of view, the Jerusalem court was not an “appellate court,” but rather a “referral court” to which cases that were too “difficult” or “weighty” were referred by the local judges, although the criteria by which they did so are not spelled out.

Despite Deuteronomy’s description of the two-tiered system, a comparison of this version with other verses in Deuteronomy and the Deuteronomistic History show that this system may be more a theoretical construct than a description of how justice was actually dispensed in the First Temple period.

Establishing Local Courts

Parashat Shoftim, like other parshiyyot, is named for its opening words:

^טז:יח שֹׁפְטִים וְשֹׁטְרִים תִּתֶּן לְךָ בְּכָל שְׁעָרֶיךָ, אֲשֶׁר יְ-הוָה אֱלֹהֶיךָ נֹתֵן לְךָ לִשְׁבָטֶיךָ; וְשָׁפְטוּ אֶת הָעָם מִשְׁפַּט צֶדֶק.

^16:18 Judges and officers you shall appoint in all your gates, that the Lord your God is giving you for your tribes, and they shall render just decisions for the people.

The word שופט in this context seems clear; it means a judge. The meaning of the word שוטר, which we rendered “officer,” is less clear. The word שוטרים , the plural of שוטר (which appears in the singular only in 2 Chron. 26:11 and Prov. 6:7) appears 25 times in the Bible, of which 7 are in Deuteronomy and 6 in Chronicles. But just what is a שוטר?

שוטרים as Scribes

The noun שוטר is usually assumed to be connected to the Akkadian verb šaṭāru, “write, copy, register” and the noun šaṭāru(m), “document, copy,” and to the later Aramaic שטר, “document” as well, leading to the Greek and Syriac translations of the term as “scribe.” Moshe Weinfeld claimed that the שוטר “fulfilled secretarial functions… סופר and שוטר are very close in meaning.”^[1]

However, as noted by Nili Fox in her study of the royal bureaucracy of ancient Israel, Akkadian does not have a noun šaṭāru(m) that means “scribe,” and biblical Hebrew has neither a verb from this root which means “to write,” nor are shoṭerim ever explicitly described as writing.^[2] So while the terms may be related etymologically, the meaning of the root in Akkadian and Aramaic is not decisive, and we must infer the meaning of biblical shoṭer is from its biblical uses.

שוטרים as Government Officials

Within the Bible, most שוטרים seem to be government officials, but their specific function is not clear. In Exod. 5, they are part of the Egyptian slave-drivers, but designated “the שוטרים of the children of Israel,” as if they were chosen from among the Israelites. In Deut. 1:15; 20:5-8 and Josh. 1:10; 3:2 they seem to have a military function, perhaps as orderlies or sergeants-major. In Num. 11:16; Deut. 29:9; 31:28 they are listed together with the tribal elders. Josh. 8:33 notes “their elders and their שוטרים and their judges.” Josh. 23:2 and 24:1 are similar: “their elders and heads, their judges and שוטרים.” And Prov. 6:7 speaks allegorically of the energetic ant, who does not have “any officer (קצין) or שוטר or ruler (מושל).”

Within Chronicles the שוטרים appear six times, but here too their function is unclear. In the first three, they are grouped with judges, in the fourth and fifth, with military officials, in the sixth, their job is unclear. In three of these sources, they are specifically said to be Levites, but this identification is specific to Chronicles.^[3] All of these mentions are unique to Chronicles, and do not appear in parallel sections of earlier books. This means that they reflect either the Chronicler’s unique point of view, or that of his sources. This seems especially true in his view of the שוטרים being drawn from the Levitical class.

שוטרים as General Administrators with Multiple Duties

Weinfeld listed three tasks that he thought were assigned to “the šoṭēr attached to the judge”:

[A] secretary for recording, a constable for executive-punitive measures, and a messenger or attendant for rendering service to the court… it seems clear that the šoṭ^erim attached to the judges is a comprehensive term which includes all the subordinate personnel.

We can only add that שוטרים seemed to have additional functions as well, such as serving as royal officials or as officials in charge of military and/or civil affairs.

Elders: An Ancient Lower-Tier Court?

Deuteronomy refers to the members of the lower, local court as שופטים and שוטרים. Nevertheless, a number of passages reference a group called the זקנים, the town elders.

Extraditing an escaped murderer

^יט:יב וְשָֽׁלְחוּ֙ זִקְנֵ֣י עִיר֔וֹ וְלָקְח֥וּ אֹת֖וֹ מִשָּׁ֑ם…

^19:12 The elders of his town shall have him brought back from there…

עגלה ערופה – ritual upon finding the corpse of a murder victim

^כא:ב וְיָצְא֥וּ זְקֵנֶ֖יךָ וְשֹׁפְטֶ֑יךָ… ^כא:גוְלָֽקְח֡וּ זִקְנֵי֩ הָעִ֨יר הַהִ֜וא עֶגְלַ֣ת בָּקָ֗ר…^כא:ד וְהוֹרִ֡דוּ זִקְנֵי֩ הָעִ֨יר הַהִ֤וא אֶת הָֽעֶגְלָה֙…

^21:2 your elders and judges shall go out…. ^21:3 The elders of the town nearest to the corpse shall then take a heifer… ^21:4 and the elders of that town shall bring the heifer down…

בן סורר ומורה –executing the wayward son

^כא:יט וְהוֹצִ֧יאוּ אֹת֛וֹ אֶל זִקְנֵ֥י עִיר֖וֹ וְאֶל שַׁ֥עַר מְקֹמֽוֹ: ^כא:כוְאָמְר֞וּ אֶל זִקְנֵ֣י עִיר֗וֹ…

^21:19 …[his father and mother] shall bring him out to the elders of his town at the public place of his community. ^21:20They shall say to the elders of his town,

Adjudicating a claim about a bride’s lack of virginity

^כב:טו וְהוֹצִ֜יאוּ אֶת בְּתוּלֵ֧י הַֽנַּעֲרָ֛ אֶל זִקְנֵ֥י הָעִ֖יר הַשָּֽׁעְרָה: … ^כב:יז וּפָֽרְשׂוּ֙ הַשִּׂמְלָ֔ה לִפְנֵ֖י זִקְנֵ֥י הָעִֽיר:^כב:יח וְלָֽקְח֛וּ זִקְנֵ֥י הָֽעִיר הַהִ֖וא אֶת הָאִ֑ישׁ וְיִסְּר֖וּ אֹתֽוֹ:

^22:15 … and they (=the girl’s parents) shall produce the evidence of the girl’s virginity before the elders of the town at the gate. ^22:17 …And they shall spread out the cloth before the elders of the town.^22:18 The elders of that town shall then take the man and flog him,

Presiding over חליצה – when a man won’t marry his brother’s widow

^כה:ז …וְעָלְתָה֩ יְבִמְתּ֨וֹ הַשַּׁ֜עְרָה אֶל הַזְּקֵנִ֗ים…^כה:ח וְקָֽרְאוּ ל֥וֹ זִקְנֵי עִיר֖וֹ וְדִבְּר֣וּ אֵלָ֑יו…^כה:ט וְנִגְּשָׁ֨ה יְבִמְתּ֣וֹ אֵלָיו֘ לְעֵינֵ֣י הַזְּקֵנִים֒…

^25:7 … his brother’s widow shall appear before the elders in the gate… ^25:8 The elders of his town shall then summon him and talk to him…. ^25:9 his brother’s widow shall go up to him in the presence of the elders…

Assuming that these are but examples, it would seem that Deuteronomy places a great deal of authority in the hands of the town elders.

Town Elders different from National Elders

The institution of “town elders” (זקני עירך) is unique to Deuteronomy. Numbers 11:16-30 tells of Moses’ creating a “council” of 70 “elders of Israel,” but their function is totally different. These “national elders” also appear in Deuteronomy, in narratives that describe gatherings of the nation as a whole, such as the Horeb theophany (5:19) and in Moses’ final instructions to the people (27:1; 29:9; 31:9 and 28), in which the “national elders” are charged with ensuring that Moses’ instructions be carried out after his death. Similarly, in Joshua, the “elders of Israel” appear as working with, or perhaps under, Joshua (Josh. 7:6; 8:10) and are part of the national leadership at key moments in the narrative.^[4]

In other words, “national elders” are mentioned in both Numbers and Deuteronomy, whereas “town elders” are unique to Deuteronomy, and not even to all of Deuteronomy. The “town elders” appear only in the very specific set of laws described above, most of which come from Parashat Shoftim.

Town Elders as an Ancient, Pre-Monarchic Institution

Historically, we can assume that the earliest Israelites, whether they were desert pastoralists or hill-country farmers, looked to their clan and village elders for leadership. Such “elders”, who were presumably not necessarily the biologically oldest people in the village, but rather those recognized as the wisest and most experienced, provided political and social leadership, which included adjudicating disputes between members of the community and making sure that social norms and taboos were observed.

As clans coalesced into tribes and tribes into tribal confederations, ever higher levels of leadership were needed, including the type of military leadership represented by such “judges” (meaning leaders) as Barak or Gideon. With the formation of the state (a complex process much discussed by scholars, but not our topic here), some of these functions were taken over by the king and his bureaucracy. Nevertheless, since much of society remained agrarian, the central government’s direct influence on the daily lives of the common people was limited to the main cities. In the smaller towns and villages, life went on largely as it had before, and the town and village elders retained their position as local leaders.

Deuteronomy’s Navigation of the Premonarchic Structure

The book of Deuteronomy was written in an urban setting. The recognition that village elders rather than appointed magistrates actually serve as the local judges is limited to the central legal section (chs. 12-26). Perhaps the appearance of elders in only this section reflects a remnant of a pre-Deuteronomic legal system included within Deuteronomy, or, alternatively, it can be understood as the Deuteronomists’ recognition of the existing reality, which they partially worked into their system.

Either way, even though the existence of town elders is factored into a number of laws, the general description of the justice system as a whole leaves them out.

Establishing A Central Court

Parashat Shoftim provides further instructions about the central court:

^יז:ח כִּי יִפָּלֵא מִמְּךָ דָבָר לַמִּשְׁפָּט, בֵּין דָּם לְדָם בֵּין דִּין לְדִין וּבֵין נֶגַע לָנֶגַע דִּבְרֵי רִיבֹת בִּשְׁעָרֶיךָ: ^יז:ט וְקַמְתָּ וְעָלִיתָ אֶל הַמָּקוֹם אֲשֶׁר יִבְחַר יְ-הוָה אֱלֹהֶיךָ בּוֹ. וּבָאתָ אֶל הַכֹּהֲנִים הַלְוִיִּם, וְאֶל הַשֹּׁפֵט אֲשֶׁר יִהְיֶה בַּיָּמִים הָהֵם; וְדָרַשְׁתָּ וְהִגִּידוּ לְךָ אֵת דְּבַר הַמִּשְׁפָּט.

^17:8 If a judicial decision is too difficult for you to make, between blood and blood, between ruling and ruling, between affliction and affliction, any such matters of dispute in your gates,^[5]17:9 then you shall go up to the place that the Lord your God will choose. And you will come to the Levitical priests and the judge who is in office in those days; and you will inquire, and they shall announce to you the decision in the case.

In the opening chapter of Deuteronomy, Moses describes how he set up Israel’s judicial system:^[6]

^א:טווָאֶקַּח אֶת רָאשֵׁי שִׁבְטֵיכֶם, אֲנָשִׁים חֲכָמִים וִידֻעִים, וָאֶתֵּן אוֹתָם רָאשִׁים עֲלֵיכֶם:שָׂרֵי אֲלָפִים וְשָׂרֵי מֵאוֹת, וְשָׂרֵי חֲמִשִּׁים וְשָׂרֵי עֲשָׂרֹת, וְשֹׁטְרִים לְשִׁבְטֵיכֶם.^א:טזוָאֲצַוֶּה אֶת שֹׁפְטֵיכֶם בָּעֵת הַהִוא לֵאמֹר: …^א:יזוְהַדָּבָר אֲשֶׁר יִקְשֶׁה מִכֶּם, תַּקְרִבוּן אֵלַי וּשְׁמַעְתִּיו:

^1:15 So I took the leaders of your tribes, wise and reputable individuals, and I installed them as leaders over you, commanders of thousands, commanders of hundreds, commanders of fifties, commanders of tens, and officers for your tribes. ^1:16 I charged your judges at that time, saying: “…^1:17 any case that is too hard for you, bring to me and I will hear it”.

Deuteronomy envisions a system of professional judges, assisted by שוטרים who sit “in all of your gates”, with a “high court” or “court of appeals” consisting of Levitical priests,^[7]and an appointed judge or judges, sitting in “the place that the Lord your God will choose” – one of Deuteronomy’s many oblique references to the Temple in Jerusalem.

The King as a Judge

Interestingly enough, despite the fact that Moses acts as the “high court” in the desert, once Israel is settled in the Land, this task does not go to the king. Deut. 17:14-20, also in our parashah, spells out the duties of the king, and judging the people is not one of them. The custodians of the Torah are the Levitical priests, and it is they who are in charge of its preservation and dissemination (Deut. 17:9-13, which we quoted above).

This picture contrasts with ancient near eastern legal collections, of which the Code of Hammurabi is the most famous, in which the gods are envisioned as giving the king both the wisdom and the authority to make laws and to judge by them. In Deuteronomy—and many other biblical texts—God is the source of all law; the king doesn’t make laws, like everyone else, he is commanded to follow them. This type of “separation of powers” was unprecedented in Ancient Near Eastern thought.^[8]

Kings as Judges in the Deuteronomistic History

Historically, we know very little about the judicial system that existed in the kingdoms of Israel and Judah during the First Temple Period. Within the Deuteronomistic^[9] books of Samuel and Kings we do occasionally hear about leaders, especially kings, “judging” the people.

• In 1 Sam. 7, Samuel judges the people, setting up his sons as judges as well.
• In 1 Sam. 8, one of the reasons given by the people for their request for a king is “that he may judge us ^[10] (תְּנָה-לָּנוּ מֶלֶךְ לְשָׁפְטֵנוּ).”
• In 2 Sam. 8:15, we hear of David dispensing justice to the people (וַיִּמְלֹךְ דָּוִד עַל-כָּל-יִשְׂרָאֵל וַיְהִי דָוִד עֹשֶׂה מִשְׁפָּט וּצְדָקָה לְכָל-עַמּוֹ).
• In 2 Sam. 15 we find David’s rebellious son Absalom attempting to usurp this prerogative.
• In 1 Kings 3:9 Solomon asks God for “an understanding heart to judge your people, to distinguish between good and bad” (לֵב שֹׁמֵעַ לִשְׁפֹּט אֶת-עַמְּךָ, לְהָבִין בֵּין-טוֹב לְרָע).
• The above is followed immediately by the famous “trial” at which Solomon commands to cut a baby in half in order to discover its true mother.
• In 1 Kings 7:7, Solomon also has a “throne room in which he judges, and a hall of justice he made” (וְאוּלָם הַכִּסֵּא אֲשֶׁר יִשְׁפָּט-שָׁם אֻלָם הַמִּשְׁפָּט עָשָׂה).

These examples contradict the “separation of powers” envisioned by Deuteronomy.

One outlier is also instructive. 1 Kings tells of the famous sham trial at which Naboth, who had refused to sell his vineyard to King Ahab, was framed for treason and executed by “the people of his town, the elders and the nobles” (אַנְשֵׁי עִירוֹ הַזְּקֵנִים וְהַחֹרִים – 1 Kings 21:11). This is the only case of trial by town elders in the book of Kings, as commanded by Deuteronomy, while the king remains in the background, Ironically, this is presented as a sham, in which the evil king and queen get their way through what would seem to be legal means.

Ideology vs. Reality

Deuteronomy describes a two-tier court system, with judges and officials (שוטרים) in the lower courts, and Levitical-Priests and judges in the upper court. But this may reflect an ideological system more than the reality of First Temple Period Israel and Judah. Instead, Deuteronomy and the Deuteronomistic History retain traces of other versions of judicial process, in which local courts are run by local elders and the central court was that of the king himself.