Halakhah su I Samuele 8:26

A literal reading of I Samuel 8:5 would seem to indicate that this power is shared by the kings of all nations. The elders of Israel demand of Samuel: "Appoint for us a king to judge us like all the nations," i.e., a monarch empowered to administer "the King's justice." In classic rabbinic sources, the phrase "to judge us" was certainly understood as having that connotation. Rabbenu Nissim Gerondi, Derashot ha-Ran, no. 11, seizes upon this phrase in explaining why the request for establishment of a monarchy aroused Samuel's ire. Appointment of a monarch to serve as the head of the Jewish commonwealth constitutes one of the 613 biblical commandments and its fulfillment is regarded as having become incumbent upon the populace upon entry into the Promised Land.³See Deuteronomy 17:15; Sanhedrin 20b; Rambam, Hilkhot Melakhim 1:1. Rabbenu Nissim explains that a monarch is required for two purposes: 1) to serve as commander-in-chief of the army; and 2) to serve as chief magistrate in administering extra-statutory punishment when necessary to do so to preserve the social fabric. A request for appointment of a king could not, in and of itself, have been a matter for censure. Rabbenu Nissim asserts that Samuel became angry because the request was couched in a manner that gave voice to a perceived need for imposition of "the King's justice." A well-ordered, law-abiding society has no need for the imposition of emergency ad hoc measures by the monarch; the punishments provided by statute and their imposition in accordance with the rigorous standards of due process prescribed by Jewish law should suffice to protect societal concerns. The request presented to Samuel reflected a recognition by the petitioners that their society could not long endure on the basis of criminal procedure hobbled by a two-witness rule and a requirement for prior warning as well as a host of other impediments to actual imposition of penal sanctions. The anticipation by the petitioners of a breakdown of law and order, for which the sole remedy would have been imposition of "the King's justice," bespoke either an unacceptable lack of confidence in themselves or their peers or, even worse, a realistic assessment of moral degeneration.⁴See R. Abraham Benjamin Sofer, Ketav Sofer, Parashat Shoftim, s.v. od nireh li and R. Yechiel Michal Epstein, Arukh ha-Shulḥan he-‘Atid, Hilkhot Melakhim 71:6–7. The thesis herein presented incorporates elements elucidated by Ketav Sofer that are not explicitly formulated by Derashot ha-Ran. Thus, explains Rabbenu Nissim, Samuel had ample cause for distress.⁵Cf. Sanhedrin 20b which declares that the elders of the generation couched their petition in appropriate language as well as Rambam, Hilkhot Melakhim 1:2, who indicates that censure was occasioned by a disdain for the leadership of Samuel.

Rashbam's thesis becomes entirely cogent if the "acceptance" of which he speaks is understood, not as contractual acceptance of a monetary obligation, but as acceptance of the sovereignty of the monarch. If so, Rashbam's comments serve to establish the principle that an obligation of obedience flows directly from voluntary acceptance of the authority of the monarch. The Gemara, Sanhedrin 20b, posits the actions of the king portended in I Samuel 8:5 as legitimate perquisites of his office. Rashbam, then, in essence, does no more than spell out the prescribed manner in which a monarch is vested with those prerogatives. Unlike kings of a Jewish commonwealth who must be formally invested in office by the Great Sanhedrin and a prophet,⁸See Rambam, Hilkhot Melakhim 1:3. the authority of the monarch of a non-Jewish state is derived entirely from the consent of the governed, with such consent serving not only as a necessary condition, but also as the sufficient condition for exercise of royal powers. Accordingly, payment of taxes becomes a legitimate and legally binding obligation even in the absence of a specific undertaking with regard to such payment. The obligation is imposed by virtue of the authority of the sovereign, rather than freely assumed by the subject. It is only the sovereign's authority to act as sovereign that requires "acceptance" on the part of his subjects. Once such acceptance is forthcoming, no further legitimization is required for exercise of the prerogatives enumerated in I Samuel 8:5.

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.

These authorities apparently understand the phrase "like all the nations" that occurs in I Samuel 8:5 as indicating that the peoples of antiquity shared a common corpus of law firmly established and known to all. That corpus of law bestowed certain powers upon the monarch, but not necessarily those powers announced by Samuel as the prerogatives of the rulers of the Jewish commonwealth. Nevertheless, according to both Rashba and Tashbaz, gentile kings are limited to enforcement of statutes incorporated in that corpus of law just as Jewish kings could not exceed the authority vested in them by virtue of Samuel's declaration.

Acceptance of Hatam Sofer's thesis provides a basis for resolving the apparent contradiction in Rambam's codification. As earlier noted, I Samuel 8:5 does not contain any reference to either capital or corporal punishment. Rambam may well agree with Hatam Sofer in regarding that power as being derived from Leviticus 27:29. In any event, since it is not derived from I Samuel it is not among the royal prerogatives enjoyed by "all the nations that surround us" and hence Rambam, Hilkhot Rozeaḥ 2:4, maintains that such power is limited to the ruler of a Jewish commonwealth. In adopting that view Rambam is nevertheless at variance with Hatam Sofer in maintaining that gentile kings are not authorized to impose capital punishment in administrating "the King's justice." Presumably, Rambam understood the talmudic declaration exonerating a king who causes the death of one-sixth of the population as limited to casualties inflicted in the course of licitly undertaken warfare. Such a position is entirely compatible with a literal reading of Tosafot's analysis of that dictum.

Of interest in this regard is the solution advanced by Rabbenu Nissim, Derashot ha-Ran, no. 11, to the frequently posed question regarding Samuel's criticism of the populace for demanding a king as recorded in I Samuel 8:6. Those requests were, after all, ostensibly but for the fulfillment of a biblical obligation incumbent upon them. Rabbenu Nissim answers that Samuel was distressed, not at the desire for the establishment of a monarchy, but because the people expressed themselves by saying, "give us a king to judge us." A king to lead them in battle was necessary, but in a well ordered society no deterrent to potential wrong-doers beyond the established legal and judicial system should be necessary. The request for "the king's justice" reflected the conviction that administration of Torah law by the Bet Din would be insufficient and, accordingly, betrayed an ethical deficiency. A similar explanation, identical in all salient points, is also advanced by R. Abraham Samuel Benjamin Sofer in his commentary on the Bible, Ketav Sofer, Deut. 17:14.

It may perhaps be argued that the royal prerogatives may be classified in two categories: viz., those designed to be exercised for the benefit of society and those which redound to the personal benefit and glory of the monarch. The latter are derived from I Samuel 8:11-17 and, indeed, the very existence of such prerogatives is a matter of dispute; see Sanhedrin 20b. It would appear, however, that those which are designed to be exercised for the benefit of society, i.e., "perfection of the world," accrue to non-Jewish monarchs as well, as evidenced by the incident of Tamar, and are not the subject of the controversy recorded in Sanhedrin 20b. Those authorities who maintain that gentile kings enjoy the prerogatives encompassed by the second category certainly agree that they enjoy those of the first as well. But Tosafot, who denies that royal prerogatives extend to non-Jewish kings, may well be understood as referring to those of the second category only, i.e., those derived from I Samuel; Tosafot may well consider that prerogatives encompassed within the first category are vested in non-Jewish kings as well. Cf., however, R. Shlomoh Zalman Auerbach, Ma'adanei Erez, Shev'it, no. 20, sec. 12.

And [also] that which they, may their memory be blessed, said (Sanhedrin 19b), "'Surely place upon yourself a king' - that his fear should be upon you"; meaning to say that we fear him, trust his words in every matter that he does not command against the commandments of the Torah and that we honor him with the full honor that can be fitting for flesh and blood. And in the hand of the king is the right to kill anyone who transgresses the commandment of the king who is established according to the Torah, or rebels against any matter [pertaining to him]. And there is no angle of iniquity in this, to the point where they, may their memory be blessed, said (Shabbat 56a) that Uriah became liable for his soul (life), when he said in front of David, "my master, Yoav" (II Samuel 11:11) - as he should not have mentioned mastery about any other man in front of the king. And [also] that which they, may their memory be blessed, said (Sanhedrin 20b) that in the hand of the king is the power to make a road in the middle of fields and vineyards, and that he may judge people according to what appears to him to be the truth - and even without clear witnesses. And [also] that which they said (Sanhedrin 22a) that we do not ride on his horse; we do not sit on his throne; we do not marry his widow; we do not use his scepter, his crown nor any vessels he uses. And all of this is for his stature and his honor. And when he dies, his vessels are burned in front of his bier. And [also] that which they said (Sanhedrin 19b) that [if] a king forgoes his honor, his honor is not foregone. And all of these things, they are all for the good of the people and for their benefit. And the laws of the king are all like they are explained in the book of I Samuel 8:11-17. [These] and the rest of the details of the commandment are elucidated in the second chapter of Sanhedrin, in the first chapter of Keritot and in the seventh chapter of Sotah. And this is from the commandments that are incumbent upon all of the community; [that is] upon the males, as it is proper for them to do these matters.