The Halakhic Force of the Laws of the State of Israel (Part 2)
This shiur is dedicated in memory of Arthur Merdinger, z"l, of Rye, NY.
We send our deepest condolences to his wife Joan, his children Susan, Karen and Michael, and his brother Edward.
May his memory always remain a blessing to those who were privileged to know him, and may the
Almighty comfort his family among the mourners of Zion and Jerusalem.
The study of "Hilkhot Medina" – laws governing the state – divides into two: fashioning a model for the ideal Torah state and understanding the halakhic significance of the public arena in the State of Israel of today. In the ideal Torah state, when the Sanhedrin holds court and the king or those who stand in his place reign, the laws of the state certainly have obligatory force. But do the laws of the contemporary State of Israel have halakhic validity? And if yes, what is the basis for that validity?
The halakhic force of Israeli law may be based on one of three foundations: dina demalkhuta, communal enactments, or the law of a king.
PART II - COMMUNAL ENACTMENTS
Jewish communities across the world and throughout history have erected institutions of self-government. The authority vested in these institutions rests on the rule of "communal enactments," that is, the community's authority, through its leadership, to enact ordinances and obligate the entire community to obey them. The first mention of communal enactments appears at the beginning of tractate Bava Batra:
The townspeople are at liberty to fix weights and measures, prices, and wages, and to inflict penalties for the infringement of their rules. (Bava Batra 8b)
The Rishonim disagree whether the enactment of binding communal ordinances requires the unanimous agreement of the town's residents, or whether the agreement of a majority of the townspeople suffices. A ruling of the Rema implies that in practice majority agreement suffices:
And so too it is customary in all places that the town elders in their own town are like the Great Sanhedrin. They may flog and punish and declare property ownerless, in accordance with custom. There are those who disagree. They maintain that the city elders are only authorized to coerce the community in matters of ancient custom or that were unanimously accepted, but they are not permitted to make changes that involve a gain to one and a loss to another, or to declare property ownerless without unanimous agreement. We, however, follow the common practice of the town, and all the more so if they accepted them upon themselves for all matters. This is what I think. (Rema, Choshen Mishpat 2:1)
According to the Rema, the common custom is to follow the legislation of the town elders, apparently, with the agreement of a majority of the town's residents, or perhaps when the town elders were elected by a majority of the town's residents. At the very least, when it is the common practice in a particular place to follow the legislation of the town elders, there must be no deviations from this practice.
In any event, R. Uziel argues (Be-Tzomet ha-Torah ve-ha-Medina, I, p. 85) that all this applies to appointed officials who are not always universally accepted. But when there are elections, since all the citizens agree from the outset to accept whoever is elected by majority vote, it is as if everybody accepts each and every enactment passed by the elected representatives.
An objection was raised from a talmudic passage that states that if an important person [adam chashuv] lives in the town, he must be consulted before any legislation is passed. This condition is not met in the case of the laws of the State of Israel. Some Rishonim (the Rivash) argue that this condition applies only to the enactments passed by a particular craft guild, but not to enactments applying to the entire town. This appears to be the position of the Rambam as well, for he only mentions the law of an important person with respect to craft guilds (Hilkhot Mekhira 14:11).
THe law of a JEWISH king
The fundamental halakhic source regarding sovereign Jewish authority is the law of the king appearing in the book of Shemu'el:
And he said, This will be the custom of the king that shall reign over you: He will take your sons, and appoint them for himself on his chariot, and to be his horsemen; and some shall run before his chariot. And he will appoint for himself captains over thousands, and captains over fifties; and will set them to plow his ground, and to reap his harvest, and to make his instruments of war, and the instruments of the chariots. And he will take your daughters for perfumers, and cooks, and bakers. And he will take your fields, and your vineyards, and your best olive groves, and give them to his servants. And he will take the tenth of your seed, and of your vineyards, and give to his officers, and to his servants. And he will take your menservants, and your maidservants, and your goodliest young men, and your asses, and put them to his work. He will take the tenth of your sheep; and you shall be his servants. (I Shemu'el 8:11-16)
We find a basic dispute in tractate Sanhedrin regarding the authorities of a king:
Rav Yehuda said in the name of Shemu'el: All that is set out in the chapter [dealing with the actions] of a king, he is permitted to do. Rav said: That chapter was intended only to inspire them with awe, for it is written: "You shall surely set a king over you" - [i.e.,] his awe should be over you. (Sanhedrin 20b)
The Rambam and most of the other Rishonim rule in accordance with the position of Shemu'el, that is, that a king is permitted to do all those things set out in the chapter dealing with the actions of a king; they are not mere threats. Let us now examine the authorities of a king, as explained in detail by the Rambam.
It is within the province of the king to levy taxes upon the people for his own needs or for war purposes. He fixes the customs duties, and it is forbidden to evade them. He may issue a decree that whoever dodges them shall be punished either by confiscation of his property or by death… He may also send throughout the territory of Eretz Israel and take from the nation valiant men and men of war and employ them as soldiers for his chariot and cavalry. Similarly, he may appoint them as his bodyguard and as footmen to run before him… Similarly, he may take all those that are necessary for him from [the nation's] craftsmen and [employ them to do his work. He must pay their wages. He may also take all the beasts, servants, and maids [that are necessary] for his tasks. He must pay their hire or their value… Similarly, he may take wives and concubines from the entire territory… He may force those who are fit to serve as officers, appointing them as leaders of thousands and leaders of fifties… He may take fields, olive groves, and vineyards for his servants when they go to war and allow them to commandeer these places if they have no source of food other than these. He must pay for [what is taken]… He is entitled to a tenth of the [produce of] the seed and the orchards and the [newborn] beasts. (Rambam, Hilkhot Melakhim 4:1-7)
The Rambam enumerates the following authorities: levying of taxes, compulsory draft of soldiers, senior officials, servants and wives, and the expropriation of property (Hilkhot Melakhim 4:2-6). In addition to these authorities, which are mentioned in the biblical section dealing with a king, the Rambam lists additional authorities that are relevant to our discussion. The first is the right to punish rebels:
Anyone who rebels against a king of Israel may be executed by the king… Similarly, anyone who embarrasses or shames the king may be executed by the king. (Rambam, Hilkhot Melakhim 3:8)
The king also has the authority to punish murderers who were acquitted of their crime for technical reasons:
A murderer against whom the evidence is not [totally] conclusive, or who was not warned [before he slew his victim], or even [one] who [was observed by only] one witness, and similarly, an enemy who inadvertently killed [one of his foes] – the king is granted license to execute them and to improve society according to the needs of the time. He may execute many on one day, hang them, and leave them hanging for many days in order to cast fear into the [hearts] and destroy the power of the wicked of the earth. (Rambam, Hilkhot Melakhim 3:10)
And finally, the king is also authorized to declare war:
A king may not wage [other wars] before a milchemet mitzva (obligatory war)… Afterwards, he may wage a milchemet reshut, i.e. a war fought with other nations in order to expand the borders of Israel or magnify [the king's] greatness and reputation. There is no need to seek the permission of the court to wage a milchemet mitzva. Rather, he may go out on his own volition and force the nation to go out [with him.] In contrast, he may not lead the nation out [to wage] a milchemet reshut unless the court of seventy-one [judges approves.] (Rambam, Hilkhot Melakhim 5:1-2)
One basic and fundamental authority is missing: the authority to legislate laws and enact ordinances for the public's benefit. With the exception of certain fundamental authorities in critical areas, e.g., dealing with national security, most of the explicit authorities of the king are essentially personal rights that allow him to use force to attain certain personal benefits. In order to turn the king into what we call a "sovereign," we must add to the authorities explicitly mentioned in Scripture and in the Rambam. If we limit ourselves to the authorities listed in our sources, we must come to the conclusion that the king was only granted special rights in the framework of concern for furthering his personal interests. And indeed, the Rashba in one of his responsa implies that the authority of a king is very limited. In that responsum, he deals with an enactment passed by the residents of a certain neighborhood in order to defend themselves against their non-Jewish neighbors. The question arose whether the newcomers to the neighborhood were also bound by this enactment. As an aside, the Rashba raises the theoretical possibility of a Jewish king enacting such an enactment:
…It is further possible that even a Jewish king has such an authority, for it falls into the category of protecting his nation, so that Jews not be injured … this involving damage to the king. This is included in what they said in our Mishna: "And he makes a breach in order to create a road. All that is set out in the chapter [dealing with the actions] of a king, he is permitted to do." Therefore, it is within the province of the king to order that an entranceway and doors be erected in the middle of the neighborhood for the protection of the people. (Responsa ha-Rashba, II, no. 134)
The Rashba implies that the king's authority is limited to the realm of "damage to the king," but he does not have the right to interfere in public affairs that do not touch upon him personally. The paradoxical conclusion is that the authority of a Jewish king is far more restricted than that of a non-Jewish king. In order to allow him to become involved in a certain issue, it must be ascertained that he is liable to suffer personal harm.
This being the case, the chapter dealing with the laws of a king does not deal with sovereign authorities in the modern sense of the term. The authorities that Halakha assigns to a king do not reflect a person who concentrates sovereign rule in his hands, but rather a very powerful person, whom Halakha grants certain privileges with respect to his property and subjects.
According to those Acharonim, however, who maintain that dina demalkhuta is derived from the law of a King, it is clear that a Jewish king must enjoy all the authorities included in dina demalkhuta. This argument seems entirely reasonable. Even if we do not accept this reasoning, it is still reasonable to infer the unstated from what is explicitly stated, so that just as a king enjoys certain authorities in the realm of national security, so too he enjoys certain authorities in all public affairs.
This is also implicit in the words of the Chatam Sofer:
Even had the Torah not been given, there would have been, and also prior to giving of the Torah, there were laws and statutes and every king maintained his country through justice. Then the Torah was given, and it taught new laws, establishing the law that a thief pays double, and the owner of an ox who was not forewarned pays half the damage it causes, bailees pay such and such. But that which is not mentioned in the Torah, e.g. damage that is not evident, was not permitted, God forbid, for [the Torah's] ways are ways of pleasantness. Rather, such things were not included in the laws of the Torah, and the king and the Sanhedrin must use their discretion in light of the time and place, the Torah not being involved in this. The same applies, all the more so, to remove the many things that cause damage, murderers without witnesses, and the like. (Responsa Chatam Sofer, Orach Chayyim, no. 208)
The Chatam Sofer rests the powers of a king on the natural norm of kingship, and invests him with comprehensive authority in judicial matters. Rav Kook, ztz"l, expanded and defined this approach which magnifies the authority of a king:
Regarding what I wrote that matters of war are included in the law of kingship, you object and say that the law of kingship applies only to something related to the honor of the king. This is not so, every general matter that involves the nation, and every temporary enactment to safeguard against evildoers – they are included in the law of kingship. For the king has the authority to act as he sees fit, even when it does not touch at all on his welfare or honor, but rather the welfare and honor of Israel. As [the Rambam] writes in Hilkhot Melakhim 13:10: "A murderer against whom the evidence is not [totally] conclusive… the king is granted license to execute them and to improve society according to the needs of the time… and destroy the power of the wicked of the earth." We see then that that the law of kingship reaches far beyond the honor and benefit of the king. (Mishpat Kohen, no. 144)
In any event, the law of a king may be irrelevant today, for we do not have a king, but rather a democratic regime. There are, however, authorities who have argued that in the absence of a kingdom, the law of a king may be applied to other forms of government as well:
We have already explained that we only judge capital cases at a time when the Temple stands, and when the Sanhedrin sits in its permanent place, as it states: "And you shall go to the priest" – when there is a priest, there is judgment; when there is no priest, there is no judgment. Nevertheless, the laws of kingship apply at all times. In every generation the leaders of the generation and the authorities of the lands have the authority to punish and execute by way of a temporary ruling in the manners that we have explained. The Torah alludes to this afterwards: "And to the judge who will be in those days." (Meiri, Sanhedrin 52b)
Rav Kook issued a ruling on this matter, which clarifies the issue:
It would appear that when there is no king, since the laws of kingship include also what relates to the general welfare of the nation, the authorities of these laws return to the nation in general. It would, in particular, that every judge who arises in Israel has the law of a king regarding some of the laws of kingship, and especially regarding what relates to the governing of the community. (Mishpat Kohen, no. 144)
Rav Yisraeli issued a similar ruling:
Thus it follows that all the appointments made in Israel by way of elections decided by the majority of the people have validity and authority. It stands to reason, in my humble opinion, that just as they can appoint a single person as head and judge, so too they can appoint a council that will jointly enjoy these authorities. According to this, it would appear that a governmental council elected in proper elections has authority in whatever relates to governing the nation, like the authority that was enjoyed by the king of Israel. (Rav S. Yisraeli, Be-Tzomet ha-Torah ve-ha-Medina, I, p. 23)
 a. No source is brought for this authority. M. Elon seems to be correct that we are dealing here with a reworking of the king's authority (M. Elon, Ha-Mishpat ha-Ivri, I, p. 580, note 105). There is, however, no proof to this.
b. Communal enactments are valid even when they deviate from Torah law, e.g. when they set more lenient standards for acceptable evidence. See Responsa ha-Rashba, IV, no. 311.
 The Acharonim discuss the scope of the special judicial authority of a king – is it limited specifically to murder, are we dealing with a fixed system or with exceptional and specific treatment, etc. (See Or Same'ach, Hilkhot Melakhim 3:10). We shall deal with this issue in a lecture devoted to judicial authority.
 This point has been discussed by R. Elisha Aviner, in his "Ha-Tokef ha-Hilkhati shel Chukei Medinat Yisra'el, Ma'aliyot 10 (1988), p. 53.
 This seems to mean that he will have fewer people paying taxes.
For part one click here.
For part one click here.
(Translated by David Strauss)