Yshai Amichai
Yshai AmichaiCourtesy

I wrote in a previous article that Israel already has a Written Constitution which its people accepted wholeheartedly and in unison before God. That Constitution is our Written Torah. What does that mean?

Most people would not consider the Torah a constitution. When I say Torah in this article, I am referring to the Books of Moses, the Pentateuch, and not the rest of the Bible or the Jewish Oral Law (Halachah). This distinction is important, in my opinion, because the Torah is the basis of everything Jewish, the foundation of all those later rulings and recordings, if you will. As such the Torah is the source and defining Text of Israel and Jewish identity.

Yet most people would not consider the Torah a constitution, for it lacks the defining qualities of other constitutions. It does not specify the form of government, authorizing and defining its various branches. It mentions a civil and military hierarchy (Exodus 18, Deuteronomy 1:9-18) with a council of elders (Numbers 11:10-25), and Commands the establishment of courts (Deuteronomy 16:18-20, 17:8-13), but it lacks the coherence and details necessary to properly structure and constrain a functioning government.

In the time of Moses, Israel could be described as a theocracy. In the time of the judges, it clearly lacked a central structure and organization. In the time of the kings, Israel was an absolute monarchy, for even the constitutional constraints of the Torah seemed to have been voluntary, dependent upon the will of the king to enforce it. In the time of the Maccabees, it may be described as a dysfunctional parliamentary monarchy. Today it is a parliamentary democracy, without a formal constitution.

All these forms of government could theoretically coexist with the Torah, given the proper constraints, because the Torah is not interested in human organizational structures. According to the Torah, God is the Supreme Authority and we, as His people, are all subject to Him and His Commandments. How we organize ourselves as a nation is of lesser importance, so long as we make certain to keep and uphold the Torah as a nation.

By this definition, the Torah should be the Document of the Highest Authority in Israel, the Constitution by which any other constitution or laws are bound. This means that we could draft another, lower, constitution, which defines our government and its structure, only if that constitution is consistent with the Torah and its Commandments. This means that any laws legislated by our government would need to comply with the Laws of the Torah.

The Torah states in very clear language that nothing may be added to it and nothing subtracted (Deuteronomy 4:2, 5:28-29, 8:1, 13:1). When using the Torah as a Constitution, this means that it is a permanent one and it cannot be amended. Additional information may be deduced from it and additional instructions are attributed to God in the rest of the Bible, but these are clearly external to the Torah itself and cannot be added to it.

Interpretation of the Torah, including court rulings based upon it, are of an even lower order than prophecy and rational deduction, and therefore, clearly, cannot be added to the Torah and cannot abrogate it. Which is why I make a clear distinction between the Torah and the Halachah, and even the rest of the Bible. No one would tolerate adding words from the Talmud or the Books of Prophets to the Books of Moses, that is strictly forbidden, and the same reasoning applies to the Torah as a Constitution.

As a Constitutional Document, though, I think it is fair to say that the Torah is long and confusing. The individual Commandments have clear literal meanings, but when considered in their context and in relation to the greater whole, as well as contemplating their deeper meanings and practical applications, the words begin to lose their clarity. For this reason, I think, in an improved constitutional form, it helps to focus only on the Commandments, and to regroup those passages in an organized and orderly fashion, for easier access and reference. For example, having criminal law in one section and tort law in another.

The Torah contains many spheres of Law, serving as a table of contents or as the foundation for an entire legal codex which the government needs to legislate. Other constitutions do not have this, which makes them inferior in my opinion, and we do not need to emulate them. The Torah containsdivine knowledge, and with it the confidence to set certain Norms in stone, so that the government cannot alter them. That is the primary role of a constitution.

People think that the role of a constitution is to give legal authorization to the government while protecting the people from it, serving as a binding covenant between them. That is a lower constitution, in my opinion, an imperfect and ever-changing covenant between people. My view of a constitution transcends this, as one that defines the very essence and soul of a nation; its origin, defining traits and purpose.

The way we define ourselves as humans should be the way we define ourselves as a nation. That explains why the Torah begins with Genesis and how we became a nation at Exodus. We were defined as people in relation to God and we became a nation before God. We became a nation when we entered into a binding Covenant with God. The text of that Covenant is contained within the Torah, and it is our purpose to keep it.

We were molded into a nation with this Torah, imbued by it with the Breath of God; it became the soul of our nation, and it has defined us ever since. It will forever define us as a nation, and there is no escaping it, because the Torah is our Eternal and primary constitution.

Yshai Amichai is a father of six and an author with a legal education, whose books advocate upholding the Torah as a national Constitution. He may be contacted at: [email protected]