Judges Who Are Magistrates

Parashat Shoftim takes its name from the directive we encounter in its first verse: “judges and magistrates (shoftim v’shoterim) you shall appoint for yourselves in all of your gates” (Deut 16:18).  These judges are to take good care not to let special interests obstruct their responsibilities; justice alone should guide their deliberations (vv. 19-20).  But who exactly are these “judges and magistrates”? 

The text may refer back to Deut 1:18-19 where Moses appointed capable sages in the past to adjudicate cases, but weighing against this is the instruction that the people are to appoint juridical figures in the future.  Moreover, what does it mean to be appointed “in all of your gates”?  And finally, why are the people charged with appointing them, especially when the parasha goes on to note the existence of Israelite kings (Deut 17:14-20) whom we might otherwise expect to appoint agents of social administration?

The Justice Problem that Animates Deuteronomy

The Torah – indeed the entire Tanach – is full of episodes where people are subjected to a system of justice: guilt is determined, verdicts are rendered, punishments are carried out, and pleas for clemency are routinely voiced.  In some cases, the authoritative agents of justice are simply family elders, while in others, jurisprudence is carried out by priests, prophets, ministers, military leaders and kings.  Many of these cases observe that ancient Israel did not uphold standards of justice and point to the recurring problems in maintaining proper standards of legal ethics. 

The narrative in 1 Sam 2:11-15 demonstrates that the priestly sons of Eli, who would have held juridical authority, abused their power, and various prophetic texts indicate that priests and other juridical figures fell woefully short in their ethical responsibilities as well (e.g. Mic 3:9-10; Hosea 4).

The directive to appoint “judges and magistrates” in Deut 16:18, then, appears in both a literary and cultural context where the miscarriage of justice was a distinct possibility if not likely under many circumstances. If Deuteronomy emerged in the wake of these events, narratives and oracles (as many scholars believe it did), then why did its author believe that the public appointment of juridical figures would alleviate this problem?

Judges as Textually Learned

Before delving into the meaning of “judges and magistrates,” it is important to note that Deuteronomy places an increased emphasis on textuality relative to other parts of the Torah.  Although a small number of written texts are important elsewhere (e.g. the Decalogue; also the “Covenant Code” in Exodus 21—23 is referred to as the “book of the covenant” (Exod 24:7), no other book in the Torah constantly refers to itself as a written text in the same way as Deuteronomy.^[1] 

Indeed, in Deuteronomy’s vision of Israelite society, all tradition is predicated upon the authority of the written law, one that every Israelite needs to know, affirm, study, teach, and evaluate (Deut 6:5-9).  It is the written law of Deuteronomy that secures life in the land (Deut 31:9-13), that is to govern royal affairs (Deut 17:18-20), and that constitutes that basis for Israel’s very covenantal identity (Deuteronomy 27).  Literacy was not widespread in ancient Israel, but even so, texts were regarded with great reverence and awe.  In the case of Deuteronomy, the contents of the written text are presented as a public trust and woven into public consciousness – the written word was to inform oral culture and social values.

The “judges and magistrates” (shoftim v’shoterim) that the public must appoint in Deut 16:18 factor significantly into this textual-social equation.  They are figures deeply enculturated in the written law – for an ancient society like Israel, where advanced literacy was not common, this means that only those with great literary sophistication steeped in scribal traditions could be appointed to this position.  Indeed, the literary sophistication required for this duty is implied by the very construct “judges and magistrates”: the phrase does not denote two different job titles, but a single position where jurisprudence (“judge”) is informed by education and scribal sophistication (“magistrate”).

In fact, while the word shoterim is often translated as “guards”, it also means “literate officials” and appears in that capacity in other ancient near eastern texts. In fact, the LXX translates the word as “schoolmasters” (γραμματοεισαγωγεῖς).^[2]  In some ways, this reflects conventional ancient thought.

Many years ago, Moshe Weinfeld demonstrated that Deuteronomy is steeped in the rhetoric and logic of sophisticated royal/imperial administrative culture; since royal officials in antiquity were typically among a society’s literati, and royal edicts and policies requiring enforcement or teaching would often have been conveyed at the administrative level in written form.^[3]  Yet Deuteronomy is not a book that strongly advocates royal culture; indeed, despite its learned character, it places severe limits on royal power (Deut 17:14-20).  What, then, characterizes the literacy of the juridical agents of Deut 16:18 and the social authority they hold?

The Levites as Judges

The location where these scribal-juridical agents are to take up their posts “in all your gates” holds a clue as to their identities.  The phrase “all your gates” in Deuteronomy is often viewed as a reference to all Israelite cities/towns.  It is notable that in Deuteronomy, one group in particular is repeatedly identified as residing therein: the Levites (Deut 12:18; 14:27; 16:11; 18:6; 26:12).^[4]  The Levites are identified elsewhere in the Torah as a priestly caste (Exod 32:26-29; Deut 33:8-11) that held an important position as religious and juridical authorities in pre-monarchic Israel, and various prophetic figures (Ahijah in 1 Kgs 11:29-39; Hosea; Jeremiah) appear connected to Levitical heritage and sacral tradition.^[5] 

If these prophetic texts are any indication, Levites would have been well-suited to carry legal/juridical duties.  Not only did they seem to preserve a tradition of teaching that was remembered and utilized by the prophets, their priestly pedigree would have carried a degree of literary sophistication as well.  Writing was not simply a skill signifying elite social status; it was a numinous, even mystical phenomenon that often served as a portal between the social world and the realm of the divine.^[6] 

Deuteronomy as a Levitical Book, Advocating for Levitical Prerogatives

Indeed, many scholars have seen the book of Deuteronomy itself as a product of Levite-scribal transmission and composition in the 7^th century BCE, as this group is repeatedly identified as entrusted with the law in various forms (Deut 10:8-9; 27:9, 14; 31:9-13, 25-26).^[7] Moreover, Deuteronomy refers to all priests, regardless of rank, as Levites, and the parasha itself contains the important notice that all Levites, not simply those who descend from Aaron, are empowered to serve at the central sanctuary (Deut 18:6-8).^[8]

Furthermore, the fact that Deuteronomy is presented as the authoritative teaching of Moses is suggestive of its Levitical character, since Moses had long held the position of “patron saint” of the Levites.^[9]  And yet, while Deuteronomy contains the torah-teaching of Moses, it does not identify itself as a book that Moses wrote – rather, it is a scribal report of how Moses transmitted his teachings, and thus suggests that it is his ideological heirs the Levites who stand behind its actual textualization.^[10]

The contents of the book thus constitutes a definitive repository or even a synthesis of Levite traditions, and reflects their vision for Israelite society.  The Levites had long represented the traditional agrarian social values of early Israel, and the Bible preserves indications that these values factored significantly into their protests against hierarchies that promoted social injustice and undue privilege.^[11]  The vision of Israel preserved in Deuteronomy represents a society governed by the very values that Levites advocated for generations.

This is why, perhaps, Deut 16:18-20 implies, but does not overtly identify, Levites as the juridical agents to be appointed in each city or town.  Rather, its rhetoric suggests the importance of law as a governing principle in society, preserving against corruption, greed, abuse of power, and special interest.  It points to an egalitarian ethos, one that all Israel should advocate and promote – indeed, Deut 16:19 is directed to the reader/audience (utilizing the 2^nd person form) that he or she must maintain these values – in order for true justice to prevail and society to be sustained.  The text goes beyond binary legislation or rules of behavior and supports a civic mentality and sense of socio-religious ethics that are to guide Israelite thought processes in a direction that would naturally align with Levite tradition without a heavy-handed demand for prestige or privilege.

The Reason for Democratically Appointed Levitical Judges

Nevertheless, the prominence of Levites elsewhere in the book as agents of legal instruction and administration reinforces the implications that they are to hold the positions of legal agency on the municipal level.  This helps to explain why the public is charged with appointing these [Levite] judges rather than having them appointed by the king, or placing the king in this role as judge (contrast 2 Sam. 15:2-4).

The Levites teach a law that bypasses royalty: unlike common ancient near eastern traditions of law,^[12] Deuteronomy represents God’s voice, mediated through that of Moses, textualized and transmitted by the Levites, and ultimately entrusted to the people.  It is only through the public’s commitment to that law that their relationship with God will remain intact.  It is therefore up to the people to appoint their own legal agents, bringing them into a dialogue with the divine by making them partners in defining and defending the parameters and pillars of their own society.