Halakhah su I Samuele 8:5

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.

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.