3.8. The Formation of Royal Authority and Its Relation to the General State Principle of the Legislation. The Election of a King and the Limitation of Royal Authority. The Book of the “Rights of the Kingdom” and Its Significance. The Supremacy of Theocratic and Democratic Principles in the State

After settling in Palestine, the Israelites initially (in the time of the judges) constituted a confederate republic in which the autonomy of the individual tribes had been developed to the point of independent states: this form was at first useful to the people, since it allowed each tribe full freedom to develop all the richness of its moral and physical powers. But while useful for internal development, this form offered no particular political advantages, since the complete separation of the tribes undermined the unity and strength of the whole organism. It was therefore necessary to create a form that, while granting full freedom of development to the individual parts, would at the same time serve as a guarantee of firm unity. The expression of such a form was royal power. The advantage of this form was recognized by the people themselves when, through their representatives, they appealed to Samuel with a request to appoint a king (1 Sam. 8:4–5). This desire of the people was not in any way an unlawful occurrence, but had a definite law behind it. The wise lawgiver, foreseeing with his prophetic gaze the historical conditions for the development of the people, had given in advance a law defining the scope of royal power.

“When you come to the land that the LORD your God gives you, and you possess it and dwell in it, and then say, ‘I will set a king over myself, like all the nations that are around me,’ then,” says the lawgiver, “you may indeed set a king over yourself whom the LORD your God chooses” (Deut. 17:14–15). Having defined the general possibility of establishing the royal dignity, the lawgiver then defines the conditions for the appointment of a king. In keeping with the principle of self-governance deeply rooted among the people, according to which all organs of authority were elected by the people, the lawgiver in this case also grants to the people full freedom to choose a king—which, though not directly stated, clearly follows from the limitations on the choice. These limitations consist first of all in the fact that the people must not appoint a foreigner as king, but necessarily a native Israelite. “From among your brothers you shall set a king over yourself; you may not put a foreigner over yourself, who is not your brother” (Deut. 17:15). Such a law was naturally required by the particular position and character of the Hebrew people, which distinguished it from all other peoples. For such a high position among the people as the royal one, it was necessary to appoint a man who fully understood both the spirit of the theocratic principle and the foundations of the national organization. Such a man could only be a native Israelite, raised in the spirit of the national-theocratic principles. His habits, attachments, and interests bind him firmly to the people, whereas the feelings, aspirations, and interests of a foreigner often naturally attach him to a foreign land and estrange him from the one to which he has been called. But even from among native Israelites, only the one chosen by the LORD could be made king. “Set over yourself a king whom the LORD your God chooses” (Deut. 17:15). This law may have, as Michaelis says, a twofold meaning: either that by it the people were deprived of the right of election, which was exclusively reserved to Jehovah who chose the king through prophets or by lot—or that Jehovah was granted the right of final confirmation of the choice, which was likewise accomplished through a prophet or by lot. Judging by history, the law apparently needs to be understood in the first sense, since the first kings Saul and David were anointed to the kingdom before popular election. But such an understanding would place this law in contradiction with the preceding one, which granted the people the right of election. It is most convenient to understand this law as meaning that election truly belonged to Jehovah through the prophets, but this election always accorded with the will of the people: the one elected was he who by his qualities was most likely to find recognition on the part of the people. Thus the first king, Saul, was anointed before the popular election (1 Sam. 10:1), though on this occasion the people themselves did not wish to make the choice, but left it to the prophet. Nevertheless, not all the Israelites submitted to this king elected by lot (1 Sam. 10:27). Saul found universal recognition only after he had attracted attention to himself by his victory over the Ammonites and was anointed a second time.

After the laws concerning the order of election to the kingdom come the laws limiting the power of the king. The limitation of royal power was especially necessary in the East, where monarchical power, among all peoples where it existed, by virtue of the prevailing order of things, always had a tendency to pass—and did pass—into a form of despotic autocracy, with the elimination of the people’s rights to self-governance. Such an order of things would have stood in contradiction to the deeply rooted structure of Jewish public-state life, in which self-governance was one of its best and most developed aspects. Therefore, limitation was especially necessary here. And remarkably, this limitation is directed chiefly against that which particularly distinguished Eastern monarchs, namely against the accumulation of personal wealth and the development of luxury, which always entail moral corruption and the neglect of law and people. The very form of the limitation appears to presuppose an external juridical code, for which the lawgiver provides only the general features, while the detailed elaboration is left to the people themselves. “Appoint a king for yourself, but only provided that he not do such-and-such,” says the lawgiver—that is, limit him in accordance with the indications given by the lawgiver. “Appoint a king for yourself, only that he must not multiply horses for himself or return the people to Egypt to multiply horses” (cf. Deut. 17:16). The meaning of this law is that it forbids entering into negotiations and into alliance with Egypt, which in antiquity was distinguished for its horse-breeding (1 Kings 10:28). The desire to possess the finest horses—one of the chief objects of the vanity of Eastern monarchs—would compel one to enter into relations with the Pharaohs and then into a political alliance with Egypt, whereas such an alliance, given the geographical position of Palestine, could be ruinous for the Hebrew people, as was subsequently confirmed by history. Moreover, the multiplication of horses, entirely unnecessary in a mountainous land, would serve not to protect the people’s interests (for example in time of war), but only to satisfy the vainglorious pride of the king. — “And he must not multiply wives for himself, lest his heart turn away” (Deut. 17:17), or in a literal word-for-word translation: neque declinabit cor ejus. Harems to this day in the East constitute one of the most abominable court institutions, in which despotic monarchs lose their last moral and physical strength, sinking into the coarsest debauchery. Therefore the provision forbidding the maintenance of harems is self-evidently warranted. “And he must not accumulate silver and gold for himself in excessive amounts.” The excessive accumulation of wealth could provide occasion, as is evident from the history of Solomon, for extensive commercial enterprises that would be at odds with truly national interests; it would promote the development of inequality in property and thus violate the fundamental law of Moses that had established social-economic equality; it would bring to the court a luxury incompatible with the democratic structure of the state, and thereby distance the king from the people. “But when he sits on the throne of his kingdom, he shall write for himself a copy of this law, from the book that is in the care of the Levitical priests. And it shall be with him, and he shall read in it all the days of his life, that he may learn to fear the LORD his God by keeping all the words of this law and these statutes” (Deut. 17:18–19). The king was not a lawgiver and was to govern the state not according to his personal discretion but according to the given law, of which he was to have a proper copy so that, always having it before him, he should not turn aside to the right or to the left (Deut. 17:20)—in short, he was generally to rule according to the law recognized by the people. By this provision, says Saalschütz, a limit was set to the despotism into which Eastern governments so easily fall. Finally, the lawgiver gives a general definition of the relationship of royal authority to the people. In Eastern monarchies, the relationship between rulers and people is ordinarily characterized by arrogant contempt on the part of the ruler and servile reverence on the part of the people. In the Mosaic state, such a relationship was not to exist; the lawgiver therefore requires of the king “that his heart may not be lifted up above his brothers” (Deut. 17:20), or, as applied to governance, that he govern his subjects with gentleness and love, not as slaves but as brothers. The best kings were faithful to this rule. David, for example, in addressing the people, called his subjects brothers: “Then King David rose to his feet and said: ‘Hear me, my brothers and my people!’” (1 Chron. 28:2). Besides the provisions examined here that limit the power of the king, in Michaelis’s view there also existed a special book defining the rights of royal power. In 1 Samuel 10:25 mention is made of a book into which Samuel wrote “the rights of the kingship” and placed before the LORD; but from this testimony it is difficult to judge the character and content of this book. One may, however, think that its content is not identical with the provisions of Moses regarding royal authority that have been examined, because otherwise it would be superfluous to copy those provisions into a separate book. In all probability, it represented a detailed elaboration, adapted to all the particular conditions of the people’s situation at the time, of those fundamental laws that Moses had given. In any case, one cannot accept the opinion of Josephus Flavius, according to which this book set forth the despotic rights of kings as described by Samuel in 1 Samuel 8:11–17, because, as Michaelis rightly observes, Samuel there was describing the rights of kings not as they ought to be, but only as they existed among the neighboring peoples, and he described them with the aim of dissuading the people from the institution of royal authority. It is unlikely that the Israelites would have wanted a king who would take away their property, male and female slaves. And if, as we see from history, despite the threatening speech the people had their way, then certainly, upon the establishment of the royal dignity, they took all measures to protect themselves from the abuses of the established authority and, on the basis of the law of Moses, limited it by detailed regulation, which constituted a special book of “the rights of the kingdom,” or, in modern parlance—a constitution.

Thus the authority of the kings of the Hebrew people was limited by strict regulation—in the spirit of the ancient democratic principles. Such it appears in history as well. To lend it greater binding force upon the king, a practice was even established whereby, upon acceding to the throne, the king concluded a covenant with the people, in which he in all probability undertook to observe the laws defining the limits of his authority (1 Sam. 10:25; 2 Sam. 5:3; 2 Kings 11:17). Besides the written limitations, the royal authority found another living restraint in the ancient “national assemblies” of the people’s elders, which steadfastly preserved their significance even under the kings. The popular assembly was convened for the most important occasions and, among other things, at the accession of a new king to conclude a covenant with him. The significance of the popular assembly is evident from the history of the accession of Rehoboam. When “the whole assembly” of the people in a covenant with Rehoboam presented the demand that he lighten the burdens lying upon the people, and when the king answered the elders with a blunt refusal, the popular assembly considered itself entitled to break away from the descendant of David. “The people said to the king: ‘What portion have we in David? We have no inheritance in the son of Jesse; to your tents, O Israel!’” “So Israel departed from the house of David,” summoned Jeroboam to the assembly, and appointed him king over themselves (1 Kings 12:3, 14, 16, 19–20). History also offers instances of the opposite character (1 Sam. 22:17–18; 1 Kings 2:26–27, and others), when kings became despots; but these instances obviously have an unlawful character and therefore cannot serve to refute the lawful, juridical definitions of the scope of royal authority. But it is remarkable that even in the worst periods, the Israelite kings did not dare openly to act against the laws of the state, recognized their dependence upon those laws, and endeavored by some means to circumvent them through a lawful path. This may be seen in the example of one of the most wicked kings, Ahab. Despite his strong desire to take possession of the vineyard of one of his subjects, Naboth, he did not dare openly to transgress the laws of the land that forbade the alienation of lands from one tribe or family to another, and thus could not obtain the vineyard until, through suborned false witnesses, he had achieved the juridically proper condemnation and execution of Naboth for blasphemy and treason, which gave the right to confiscation of property (1 Kings 21:1–14).

Finally, a mighty obstacle to the development of absolutism in royal authority in the Mosaic state was served by the principle of theocracy. In the meaning of this principle, the true king of the Israelite people is Jehovah himself (Exod. 19:5–6); therefore all authorities of the people, including the kings, are merely organs of Jehovah, His vicegerents. On the basis of this principle, kings could not arbitrarily introduce new laws or alter old ones. Thus the governance of the people, despite the external monarchical form, remained in substance, with respect to the people, democratic, and with respect to Jehovah, theocratic.