Halakhah su I Samuele 8:20

It is indeed the case that, at least under certain circumstances, Jewish courts enjoy discretionary power to impose the death penalty even in the absence of the testimony of two eyewitnesses. Jewish law provides for what, in effect, constitutes two separate systems of justice and two parallel judiciaries. The Bet Din is obligated to enforce the law and to mete out punishment to transgressors as provided by Scripture. These responsibilities with regard to punishment of malefactors are mandatory and constitute the fulfillment of a mizvah. Indeed, for Rambam, imposition of each of the four modes of execution is a separate and distinct mizvah and, collectively, imposition of the various death penalties constitutes four of the 613 commandments. Yet, as noted earlier, the stringent nature of the laws of evidence makes it extremely difficult to obtain a conviction before a Bet Din. Such a situation would certainly tend to encourage criminal activity and might well result in a total breakdown of law and order. The prerogatives bestowed upon the king serve to rectify such a situation. The king is empowered to impose extra-judicial punishment as he sees fit in order to preserve the social order. The responsibilities of the monarch in the Jewish commonwealth are twofold in nature: 1) to lead the people in war—a vestige of this traditional function of the ruler remains even in contemporary non-monarchical societies such as the United States in which the chief of state is titular commander-in-chief of the armed forces; and 2) to sit in judgment, i.e., to administer what may be termed "the king's justice."⁹The terms used by Rambam, Hilkhot Roẓeaḥ 2:4 and Hilkhot Sanhedrin 8:6 are “din ha-malkhut” and “din malkhut,” literally “law of the monarchy” or “the king’s law.” In context, however, the reference is not to statutory law but to ad hoc punishment, a connotation more accurately reflected by the term “the king’s justice.” These duties are elucidated in I Samuel 8:20: "We also shall be like all the nations; our king shall judge us, and go out before us and fight our wars." Rambam, Hilkhot Melakhim 4:10, declares, "… a king is not appointed in the first instance other than for the purpose of executing judgment and [waging] wars."

Quite apart from the thesis advanced by Or Sameaḥ, if it can be demonstrated that the king is empowered to accept circumstantial evidence in meting out punishment, a strong argument could be made in support of the position that Noachide courts may legitimately accept such testimony as well. Noachide courts may accept such evidence, it may be argued, not because in doing so they would be executing the provisions of the Noachide Code, but rather because, as the creatures of the state, they are also empowered to administer "the king's justice." It may well be argued that gentile governing bodies enjoy prerogatives identical to those of the Jewish king, including execution of the death penalty even when not prescribed by statutory law.¹⁹The authority of gentile kings, and hence of non-Jewish courts, to impose capital punishment upon Jews is another matter entirely. Rabbenu Nissim, a fourteenth-century scholar, Ḥiddushei ha-Ran, Sanhedrin 46a, refers to imposition of capital punishment by autonomous Jewish courts (a practice not entirely unknown in the medieval period; see sources cited by Simchah Assaf, Ha-Onshin Aḥarei Ḥatimat ha-Talmud [Jerusalem, 5684] and Menahem Elon, Ha-Mishpat Ha-Ivri [Jerusalem, 5738], I, 435 and 648) and decries this practice other than at the direct license of the civil government, since, insofar as Jewish law is concerned, capital punishment has lapsed. Ḥiddushei ha-Ran does however recognize the authority of Jewish courts “to judge by the authority of the license of the king,” i.e., to impose the king’s justice when warranted. This position clearly acknowledges a) the penal authority of non-Jewish kings; and b) the legitimate exercise of this authority over Jews as well as gentiles. See R. Saul Israeli, Ha-Torah ve-ha-Medinah, IV, 73, who interprets Ran (incorrectly, in my opinion) as meaning that under such circumstances the Bet Din acts as if it were endowed with the authority of a Jewish monarch rather than as an agent of a gentile king. Cf., also Tur Shulḥan Arukh, Ḥoshen Mishpat 3. Similarly, Maharam Ḥalavvah, Pesaḥim 25b, recognizes the authority of gentile courts to enforce the death penalty upon Jews. This is also the position of Ritva and Teshuvot ha-Rashba as cited above, note 11, and appears to be the position of Teshuvot Maharam me-Lublin, no. 138. Me’iri, Sanhedrin 72b and Baba Meẓi‘a 83b, apparently acknowledges that non-Jewish monarchs are empowered to impose the death penalty upon Jews only for crimes which carry the death penalty under Jewish law. See also the position of R. Zevi Hirsch Chajes, Torat Nevi’im, ch. 7, cited below, note 24. This extension of the authority of Noachide courts is explicitly affirmed by Teshuvot Maharam Schick, Hoshen Mishpat, no. 50.²⁰Maharam Schick is, however, troubled by the phraseology employed by Rambam, Hilkhot Roẓeaḥ 2:4: “If a king of Israel wishes to kill them in accordance with the law of the monarchy and [for] the benefit of the world, he has authority [to do so].” Maharam Schick suggests that Rambam means that even a king of Israel may impose extra-statutory punishment and certainly a non-Jewish king, who is not subject to provisions of the Sinaitic Code, is permitted to do so. See also Teshuvot Ḥatam Sofer, Oraḥ Ḥayyim, no. 208, s.v. ad ka’n. For Ramban, these prerogatives may be derived from the mizvah of dinin. For Rambam they are inherent in the powers of the monarch. The phrase in I Samuel 8:20, "we shall be like all the nations," which serves as a preamble to the delineation of the royal responsibilities, certainly indicates that such responsibilities were shouldered by gentile kings prior to the establishment of a monarchy among Jews. A literal reading of this passage would indicate that Scripture recognizes that any prerogatives enjoyed by a Jewish monarch may be legitimately exercised by a gentile king as well.²¹Rambam, Hilkhot Melakhim 9:14, states that Noachides are obliged to appoint “dayyanim ve-shoftim” in every district. The terms “dayyanim” and “shoftim” are ostensibly synonymous and hence employment of both terms seems redundant. I would suggest that, for Rambam, each word has a distinct meaning. Although the term “shofet” is employed in Scripture as meaning “a judge,” in rabbinic Hebrew a judge who administers biblical law is known as a “dayyan.” Rambam frequently uses the term dayyan in this context and presumably uses it with the same connotation in this instance as well. Rambam may then have used the earlier and more general term “shofet” in the sense of a judge who administers a broader code of law, i.e., “the king’s law.” Contemporary Hebrew usage mirrors this distinction: a judge in a rabbinic court is a dayyan; a judge in an Israeli civil court is a shofet. Understood in this manner, Rambam declares that gentiles are obligated to appoint dayyanim to enforce the Noachide Code as well as shoftim who may exercise extra-statutory power similar in nature to that which for Jews constitutes mishpat ha-melekh or “the king’s justice.” Indeed, quite apart from the right of non-Jewish rulers to impose extra-statutory penal sanctions, it is clear that non-Jewish monarchs also enjoy legislative prerogatives and may promulgate laws designed to establish a just and enduring society. For Ramban, this authority may be predicated upon the commandment concerning dinin. Rashi, Gittin 9b, has been understood as expressing the view that the principle dina de-malkhuta dina is rooted in the commandment of dinin.²²See R. Iser Zalman Meltzer, Even he-Azel, Hilkhot Malveh ve-Loveh 27:1. This does not necessarily contradict the opinion of those authorities who maintain that dinin must be understood as binding Noachides to the same system of jurisprudence as Jews; see above, note 3. Noachides must enforce biblical law in areas where such legislation exists, but may legislate with regard to matters for which no specific provision is made. The principle dina de-malkhuta dina empowers non-Jewish governments to adopt laws designed to preserve political and social stability which are binding upon Jews as well as upon gentiles. However, even for Rambam, such authority must exist even though its source may be somewhat obscure. Evidence for the authority of Noachides to promulgate legislation regulating areas of conduct not encompassed by the Noachide Code may be found, for example, in the Gemara's explanation, Avodah Zarah 36b, of Judah's readiness to burn Tamar at the stake on the basis of an edict of the Bet Din of Shem which prohibited fornication.²³Cf., R. Yitzchak Ze’ev Soloveitchick, Ḥiddusheiha-Griz al ha-Torah, Genesis 38:25, who describes Tamar as a “proselyte” and the edict as banning cohabitation between a gentile and a “Jewess.” Nevertheless, the Bet Din of Shem certainly did not enjoy the halakhic status of a Jewish court; it would therefore appear that the validity of any edict promulgated by that Bet Din must be predicated upon Noachide law. See R. Hayyim ibn Atar, Or ha-Ḥayyim, Genesis 38:24, who declares, “Perhaps they were in possession of a tradition [empowering them] to promulgate edicts and to execute one who transgresses the edict.” The incident concerning Tamar also makes it clear that non-Jewish kings enjoy the power to punish those who violate these edicts. Indeed, in the absence of accompanying penal power legislative authority would be vacuous. Since Rambam understands the concept of dinin in an entirely different manner, as noted earlier, such legislative and penal power must be understood as being inherent in the institution of the monarchy. It would then stand to reason that non-Jewish monarchs may also invoke the monarchical prerogative in punishing violations of the Noachide Code.