Lecture from 25 Shevat 5767

Table of Contents

• The historical paradox: from national institutions to community institutions and back to the state
• Modern sovereignty and the definition of a nation as opposed to a community
• The continuity of Jewish law through the concept of community and the expansion of state powers
• “Going back” as a situation in which the question of validity is never even asked
• The gap between the state’s current condition and the kingdom of the House of David and the Sanhedrin
• The practical validity of Knesset legislation and the conflict with Jewish law
• The example of Rabbi Monk and the practical coercion of a governmental framework
• The law of the kingdom is law as a halakhic principle against anarchy
• The law of the kingdom is law in a democratic regime and the limits of obedience
• The distinction between the validity of the government and the law, and the prohibition of secular courts
• The framework of the discussion: the validity of state law before the question of how it is applied within the framework
• Three directions for grounding the validity of state law: communal enactments, the law of the kingdom is law, and the law of the king
• The blurring between the law of the kingdom is law and the law of the king as a hidden working assumption
• The assumption of a “Jewish state” versus the conception of a “large community,” and its implications
• Ahab, the law of the kingdom is law, and the distinction between a “king of Israel” and a de facto governing mechanism
• Using halakhic terms in public discourse and the need to be careful about transferred meanings
• The example of war, an obligatory war, and drafting women as dependent on the status of the collective
• The limits of communal enactments: areas of legislation, public law versus private law, and an important person
• The consent of an important person: honor or substantive oversight, and arguments for implicit consent
• The law of the kingdom is law in the Land of Israel: the Ran, Nimukei Yosef, and alternative explanations
• The question of the fitness of leaders: “positions of authority are not appointed” and Maimonides on an unfit appointment
• Conclusion and continuation of the discussion

Summary

General Overview

The text presents a paradoxical historical process in which halakhic authority moved from national institutions such as the Sanhedrin and the king to communal institutions in the 11th century, and when we return to an era of modern state sovereignty, the validity of state law continues to be grounded דווקא in communal sources rather than in a direct return to the laws of kingship. The speaker argues that Jewish law does not “go back” but rather continues from the stage in which the community was the basic authority, and therefore its application to the State of Israel is done through a metamorphosis of communal concepts, even though in practice the state takes much broader powers. He emphasizes that despite the theoretical embarrassment, there is almost no serious halakhic decisor who says that Knesset laws have no validity, and that a central basis for this is the practical-halakhic consideration that society cannot be left in anarchy. At the same time, he distinguishes between the question of the validity of state law and governmental authority, and the question of “secular courts” and the judicial system, and presents three main halakhic directions for grounding that validity alongside substantial difficulties in each one.

The historical paradox: from national institutions to community institutions and back to the state

The speaker states that the historical process is paradoxical: in the 11th century there is a transition from the national plane to the communal plane, and each community is perceived as a microcosm of the nation, with institutions and powers. He describes how, when the State of Israel is established and a national-sovereign framework appears again, one would have expected the discussion to begin with the laws of kingship and the Sanhedrin, but in practice people look for the source of the validity of state law in the laws of the community. He explains that communal law drew on the assumption that the nation is called a public collective and has institutions with powers, and when the nation broke up into communities, each community received on the micro level what had existed on the macro level.

Modern sovereignty and the definition of a nation as opposed to a community

The speaker argues that the difference between a community and a nation is not numerical but stems from the absence of a sovereign above it, because a community always operates under a sovereign umbrella. He explains that modern sovereignty is sovereignty “with limited liability,” within a system of global pressures, and therefore even states that are not great powers are still considered sovereign. He clarifies that the sovereignty in question belongs to the entire public in the land and not only to the religious segment, and he defines sovereignty today as the ability to maneuver within a framework of global constraints.

The continuity of Jewish law through the concept of community and the expansion of state powers

The speaker presents the historical absurdity in the fact that Jewish law continues in a monotonic way and does not go backward, and therefore if Jewish law took shape during a period in which communities were the basic authority, then even in the new state one applies communal institutions to the new reality. He says this is natural, because generally you do not go backward; you continue from the same point, with the meanings and connotations that have already become fixed. He emphasizes that a state takes for itself more powers than “the seven good men of the city,” so even if state authority is grounded in that concept, it is a major expansion.

“Going back” as a situation in which the question of validity is never even asked

The speaker explains that going back would mean not asking at all what gives validity to state law, just as the Sages related to the authority of a king of Israel and the Sanhedrin as something self-evident. He argues that the modern hesitation itself is something that should not have existed if we were truly in a situation of kingship and Sanhedrin. He notes that the Hebrew Bible (Tanakh) does not record halakhic discussions, so he does not know what was actually asked in practice, but from the standpoint of the Sages, the king’s authority was a basic given.

The gap between the state’s current condition and the kingdom of the House of David and the Sanhedrin

The speaker argues that reality itself has not gone back, and that we have not returned to the kingdom of the House of David and the Sanhedrin, so applying concepts of kingship to the current situation is not trivial. He explains that because of this gap, a metamorphosis takes place through the concept of community in order to ground authority. He adds that from the practical side there is “almost kingship,” because the powers given to the state are similar to the powers one would give King David, even if they are not called by that name.

The practical validity of Knesset legislation and the conflict with Jewish law

The speaker says he does not know of a single serious halakhic decisor who argues that one need not obey Knesset laws when they do not contradict Jewish law, according to that decisor’s own view. He points out that the conflict is felt precisely because people assume that state law has some significance and authority, and not because they simply “throw out” every law that contradicts Jewish law. He describes the gap between Haredi polemical writing, which gives the impression of total disdain, and actual halakhic rulings, which do not deny validity.

The example of Rabbi Monk and the practical coercion of a governmental framework

The speaker gives the example of Rabbi Monk of Haifa, who wrote the responsa Pe’at Sadek and asked whether it is permitted to hide in “the assembly of heretics” in order to save oneself from pursuers. He emphasizes that even in this extreme approach it was written that there are cases in which “there is no choice” and one has to act according to the local rules, and that the law of the kingdom is law applies. He explains that the alternative to recognizing validity is lawlessness and anarchy, and no halakhic decisor can give that a stamp of approval.

The law of the kingdom is law as a halakhic principle against anarchy

The speaker presents the law of the kingdom is law not as a mere scriptural decree, but as a principle built on the view that a world without a central government is anarchy, and he calls that a halakhic consideration par excellence. He tells about a case of diamond smuggling into the Soviet Union and a letter he sent to a person who was caught, to illustrate that in his eyes the law of the kingdom is law is treated as “Torah-level law,” binding like any other law. He warns against two mistakes: on the one hand, contempt that allows people to “cut corners” in relation to the government; and on the other hand, an overly rigid and absurd application of the law of the kingdom is law to every legal violation as though it were always a Torah-level transgression.

The law of the kingdom is law in a democratic regime and the limits of obedience

The speaker argues that a democratic king is not like a monarchic king, and therefore one should not automatically transfer concepts of honor and obedience from a monarchy to a democratic system. He says one should act “like any law-abiding citizen” and not be stricter than ordinary civic norms, because democracy also recognizes protest, rule-bending, and conscientious refusal while bearing the consequences. He emphasizes that the law of the kingdom is law means accepting the system of rules practiced in the state “no more and no less.”

The distinction between the validity of the government and the law, and the prohibition of secular courts

The speaker clarifies that the prohibition of “before them and not before laymen… and not before gentiles” also includes Jewish laymen who judge even according to Torah law but are unfit for judicial office, as well as gentile courts. He argues that there is a dispute between halakhic decisors and religious judges, with many religious judges holding that the problem lies in the source of the judges rather than in the judicial system itself. He states that the question of the status of the judicial system is not identical to the question of the validity of the law and the government, and it is possible that the law is binding and the government has validity, and yet there is still a prohibition against litigating outside a Torah-based religious court.

The framework of the discussion: the validity of state law before the question of how it is applied within the framework

The speaker presents “the first floor” as the question whether there is any binding framework of law and government at all, and only afterward “the second floor” as the question whether, within that framework, there is a preference to act according to Torah law wherever possible. He emphasizes that there is no sharp conclusion on every detail and that there are differences of opinion, but argues that the practical consideration against anarchy ultimately decides the matter, so “it’s a kind of rigged game.” He presents the discussion as mainly theoretical, though with practical aspects.

Three directions for grounding the validity of state law: communal enactments, the law of the kingdom is law, and the law of the king

The speaker presents three main mechanisms: communal enactments and the seven good men of the city, the law of the kingdom is law, and the law of the king. He explains that communal enactments ground authority in the idea that the State of Israel is “a large community,” no less than Kasrilevke. He describes the law of the kingdom is law as halakhically obligating whatever the government determines. He distinguishes between the law of the kingdom is law, which the Talmud says regarding gentile kings, and the law of the king in Israel as an authority granted to the king as part of the halakhic hierarchy alongside the Sanhedrin.

The blurring between the law of the kingdom is law and the law of the king as a hidden working assumption

The speaker raises the possibility that the law of the king in Israel is not really a separate category from the law of the kingdom is law at all, and suggests that both may be a necessary “mundane” mechanism for conducting life, something one cannot do without. He says these powers are of the kind that, if the Torah had not written them, we would have “invented” them anyway, and they can be housed in a king, in a gentile king, or in the religious court when there is no king. From that perspective, he suggests that the second and third directions are very similar, perhaps even identical in practice.

The assumption of a “Jewish state” versus the conception of a “large community,” and its implications

The speaker argues that the theoretical clarifications reflect an assumption that the public in the State of Israel has “become the Jewish people again” in the halakhic sense, and therefore people ask what Jewish law says about a Jewish state. He presents an alternative possibility, according to which this is only a large Jewish community, and asks when a community becomes a nation and whether merely dwelling in the Land of Israel is enough for that. He adds that most of the Jewish public is estranged from its halakhic obligations, and therefore treating the state as a “Jewish state” is “not a simple matter” and in his view even “not correct.”

Ahab, the law of the kingdom is law, and the distinction between a “king of Israel” and a de facto governing mechanism

The speaker addresses the claim that people bring Ahab as proof that an evil king is still considered a king of Israel, but he argues that this may actually illustrate an understanding of the law of the kingdom is law rather than the law of the king. He says the expression “Jewish state” is sometimes used as a rhetorical tool to change conduct rather than as a precise halakhic definition of the state’s status. He illustrates this with the question of “you shall not show them favor” in the context of surrendering territory, and argues that there is no necessity to see this as a transgression by a state with the Holy One, blessed be He, “posted on its bulletin board,” because the system is not living in relation to Him at all.

Using halakhic terms in public discourse and the need to be careful about transferred meanings

The speaker argues that the legal system and the culture use borrowed terms such as “judgments” and “courts,” but the meanings are not necessarily halakhic. He warns against unconscious conceptual transfer and against inferring halakhic applicability merely from a shared name. He concludes that the concept of “the law of the king” is highly doubtful as a basis for validity in the state, and that even within the law of the kingdom is law one must distinguish whether one is speaking about an “Ahab model” or the model of a gentile king.

The example of war, an obligatory war, and drafting women as dependent on the status of the collective

The speaker raises a practical implication in the question of war: he states that a government is authorized to decide on war, but the question is whether this is an “obligatory war.” He notes that an obligatory war is defined as one declared by institutions authorized according to Jewish law and carried out by a collective that is legally obligated in commandments, not merely by a community or by a gentile nation. He illustrates this with the discussion of drafting girls and the statement “the groom from his room and the bride from her canopy,” and argues that applying the status of obligatory war depends on whether the state is a halakhically binding entity capable of falling under that category.

The limits of communal enactments: areas of legislation, public law versus private law, and an important person

The speaker says that communal enactments are a plausible but limited source, and asks whether a community can declare war or compel people to go out to it, as with “rebelling against the king.” He distinguishes between public law such as taxes and traffic regulation, where it is easier to compare things to the seven good men of the city, and private law regulating transactions between individuals, where Torah law may rule otherwise. He mentions the requirement of the consent of “an important person” for communal enactments, and raises the difficulty of who fills that role in a state, when some have proposed the Chief Rabbinate because of the possible combination of “Torah scholar” and “official appointee,” though he casts doubt on its relevance today.

The consent of an important person: honor or substantive oversight, and arguments for implicit consent

The speaker presents a dispute as to whether the requirement of “an important person” exists out of respect for him or in order to prevent distortions and preserve Torah principles in the substance of legislation. He argues that claims such as implicit consent through participation in elections do not create oversight over the content of legislation, because the legislative system does not consult Torah authority. He notes that there are halakhic decisors who argued that state laws are not valid in the absence of such consent, and he mentions Techumin 7 and an article by Rabbi Farbstein.

The law of the kingdom is law in the Land of Israel: the Ran, Nimukei Yosef, and alternative explanations

The speaker cites the slogan that the law of the kingdom is law does not apply in the Land of Israel and attributes it to the Ran and to Nimukei Yosef. He explains that according to the Ran, in the Diaspora the law of the kingdom is law is based on the king’s ownership of the land, whereas in the Land of Israel “all Israel are owners,” and therefore the king has no power to confiscate and remove, and consequently the law of the kingdom is law does not apply. He presents Nimukei Yosef’s formulation as close to the view that the law of the kingdom is law does not apply when the king is Jewish, because a Jewish king rules by the power of the Torah and has no alternative source of authority. He adds that there are other explanations among the medieval authorities (Rishonim) that make the law of the kingdom is law depend on public consent, such as Rashbam and Maimonides, according to whom there is no reason to distinguish between the Land of Israel and outside the land, or between a Jewish king and a gentile one, when public acceptance exists.

The question of the fitness of leaders: “positions of authority are not appointed” and Maimonides on an unfit appointment

The speaker cites Maimonides that positions of authority over the public are appointed only to one who is fit to be a judge, and that appointing an unfit judge is “like setting up an Asherah,” and the appointment is invalid. He raises doubts regarding the halakhic fitness of those who hold authority in the state, and whether public acceptance is effective when they are wicked in the halakhic sense. He suggests a distinction between appointment from above and election through voting, and mentions the possibility that “they accepted him upon themselves” may validate even otherwise disqualified people in the monetary sphere, but he emphasizes that questions remain as to how this binds those who did not vote, and how a public can impose it.

Conclusion and continuation of the discussion

The speaker concludes by saying that he has remained at the level of general lines and that perhaps he will continue next time, after having thought he could finish the discussion in one sitting. He emphasizes that the questions are not simple, that the conclusions are not sharp in every detail, and that the directions and difficulties he presented still need further clarification.

Because of the power of those institutions, coming out of the more national institutions—the Sanhedrin, the king, and so on—and I already said right at the beginning, when we started this whole topic, that the historical process is a bit paradoxical. It’s paradoxical because in the 11th century we moved—we made some transition from the national plane to the communal plane. An attempt to see each community as some kind of microcosm of the entire nation, with institutions, with everything. What happens when we return to the Land now? Right—50 years ago, 100 years ago, it started, and the state has existed for 60 years. So what happens is that people look for the source of the validity of the laws of the state, and surprisingly, at least some of the sources brought by some of the halakhic decisors who discussed the issue derive it from communal law. Meaning, the laws of the community drew their force from the fact that there is such a thing as the whole nation being called a public collective, and when it has institutions, then those institutions have powers—a king, a Sanhedrin, and so on. And when the nation breaks apart into communities, then every community has, in miniature, what exists in the macro. What happens when we came back here? Seemingly, we returned to functioning as a sovereign people within a national framework. So I would have expected us to ask ourselves: what is the authority of the institutions, what is the legal validity, and so on? But the question shouldn’t start there—after all, that’s what we came from. Meaning, we started from a situation where it was obvious that the nation has institutions, and they have authority, and everything is clear. The whole question was how to establish the authority of communal institutions. Now we’re going back to a state of functioning as a nation, and it turns out that we’re very perplexed—again, at least on the theoretical level. I don’t think anyone really reflects on this practically, and that I know. From when does a community become a nation? True, today—for less than 50 years—the Jewish settlement in the Land of Israel has been the largest Jewish community in the world. But what does that mean? Are we better than the Jewish community of Poland? There too there were 3 million people. No, no, it’s not a matter of numbers. There is no sovereign over us, no other sovereign above us. It’s not a community. A community always functions under a sovereign envelope. There is some sovereignty. Even in Babylonia, where the functioning was still pan-national in some sense, there was a foreign sovereign—the kingdom of Babylonia—above them. But it gave them some degree, or a large degree, of autonomy, and therefore it was not such a very significant break compared to what existed in the Land during the period when we were still independent. There was some gap there, when we were in the Land and not independent, but—

So maybe we’re not sovereign in the way the rabbi said, but we do have a reasonable degree of autonomy. Fine, I’m not referring to the UN and international pressures. Overall, we are sovereign. Meaning, who is “we”? Do you mean the whole public here in the country, or the religious sector? No, no, no, the whole public. I think this is sovereignty like any other state that isn’t a superpower and can’t do whatever it wants, but overall we are in a sovereign condition. That’s what sovereignty means today in our global village. Sovereignty means maneuvering within your capabilities inside a system of worldwide pressures that always existed. Today it presses more because distances have shrunk and the possibilities for applying pressure have increased. It’s not what it used to be, when someone in America decided to go to war against you—you could wait a few years before he even got here, and you didn’t even know whether he was coming. Today, by telephone: tomorrow morning we bomb you. Meaning—or impose economic sanctions on you, whatever. The possibility of moving from place to place and the intensity of pressures may be stronger, but in general a sovereign state is always sovereign with qualifications, unless you’re some all-powerful ruler of the whole world. But fine, I don’t think I would say that every other state that isn’t the number one empire in the world is not sovereign. It is sovereign within the constraints and limitations within which sovereign states operate.

And then what happens is that we look for a basis for the authority of the institutions in our sovereign state, and it turns out that what we find is not always a return to the laws of kingship, the Sanhedrin, and so on, but actually a continuation of the community. What Yossi said earlier: we’re just a large community. Meaning, basically the institutions receive their authority because we know that in Jewish law, as it crystallized over at least the last thousand years, there is already validity to the role of communal institutions. And since that is so, the institutions of the public here in the State of Israel are no worse than the institutions of Keterialevka. So therefore we have a source for this authority. But one has to notice the historical absurdity here, which of course has very good reasons. I don’t think it’s easy to skip over it. But it is, in a certain sense, a historical absurdity that we think we have returned, on some level, to the situation before the exile, but in fact Jewish law continues monotonically—it doesn’t go back. It continues from the point where it stopped. If it was at a stage where communities were the basic authority, the highest authority—there was nothing above the community in Jewish terms, I mean—then even now all we are doing is taking the institutions of the community and applying them to what is happening here. We are not going back. We are continuing forward. From the same place we were before, we are simply applying it now to the new reality. There is something very natural about this, of course, in a certain sense. It may be paradoxical, but it is very natural. Usually you don’t go backward; usually we continue from where we were. Things have already acquired meaning, things already have connotations, and you take what you’ve lived with until now and apply it to the circumstances that have since arisen. So it is very natural. But when you look at it from a more panoramic perspective, you see that there is still some measure of absurdity here.

What does it mean to go back? What? To go back would mean not asking the question at all: what is the validity of the laws of the state? Did anyone ask what the validity of King David was? Not “go back” in the sense of returning to horses and wagons or the wars of old. About King David we really don’t know, but didn’t people ask such questions about the Hasmoneans, about Agrippa? The Sages never even considered asking such a question. True, in the Hebrew Bible (Tanakh) there is no record of halakhic discussions, so I don’t know. But at least the Sages treat the authority of the king of Israel, of the Sanhedrin, as self-evident. There’s nothing to discuss. It’s only later, when communities arose, that we say: let’s draw from that obvious premise and apply it to the new thing. So now it’s clear that we are not—I mean, at least we’re no worse than the Sages. If in the eyes of the Sages this was obvious, then for us too it’s fine. We’re not going to argue with the Sages right now, at least not within Jewish law. So what’s the problem? If I understood, we came back, everything’s fine, we have our own kingdom, we are sovereign, everything—so why are we so troubled by the question what authority the laws of the Knesset have? Who said they have authority at all? Wait—is this a king? Is this a community? Is this the seven representatives of the town? All the—before even answering the questions, the very hesitation is a hesitation that should never have existed in the first place.

I see it from the prime minister’s point of view: they wouldn’t be asking so many questions from his perspective. No, I said I’ll get to that in a moment. I think this is—But Lupolianski goes and cuts through things easily as a mayor. Like Samuel said to Saul, “The kingdom has been torn from you,” or something like that, I don’t remember the precise quote. So basically Jewish law sees the non-religious government of—Exactly. Of course. We live among our own people. I didn’t mean to confront; I only meant to sketch the absurdity. But this absurdity has good reasons. But in my opinion, if we listen to a prophet of Israel, to the word of a prophet, to the message of a prophet—Exactly, as you said, we would have needed to go backward and return to Jewish law. Right. Meaning, that’s the answer. I was only trying to describe the picture, but the explanation is of course very clear. What I said earlier was not criticism. It was simply a description meant to explain that in fact we haven’t really gone back. Not normatively, and not historically either. Meaning, it’s not that Jewish law lags behind reality; reality itself has not gone backward. We did not return to the Davidic monarchy and the Sanhedrin. Unfortunately, I think, we have not returned to that, at least as of today. And therefore applying those concepts to today’s situation is a very, very non-trivial application. So it is no wonder that we do it through a kind of metamorphosis, by way of the concept of the community.

Now, through the concept of the community—we go through the concept of the community—but still one has to pay attention: there is no small expansion here. The state takes far more powers to itself than the seven representatives of the town. So even if we base the authority of the state on the concept of the seven representatives of the town, we do base it there—but we expand it greatly. And I’ll speak about that a bit today. We expand it greatly. So in some respects there is a problem with going backward; in other respects we do somewhat go backward. Meaning, we can’t say this is kingship, for these reasons and others, as I’ll discuss shortly, but on the other hand, for all practical purposes it seems to me that there is almost kingship here, an attitude of kingship, even if we don’t call the child by its name. The powers given to the state are powers like those that would have been given to King David, more or less. There’s no practical difference. Practically, I don’t know a single serious halakhic decisor who says one need not obey the laws of the Knesset—surprisingly, by the way. Laws that do not contradict Jewish law, at least according to that person’s own understanding. I didn’t say which ones do contradict, but according to each person’s own understanding. I’m speaking now about the very fact that these are laws of the state. Is that binding at all? Even before the question of what happens when it contradicts Jewish law. Why is it binding in the first place? Even before the question why there is any conflict at all. What’s the problem? If it contradicts Jewish law, throw it in the trash and that’s the end of it. Why do we feel a conflict? Because it’s clear that this also has significance. On the other hand, it contradicts Jewish law, and then we are in a dilemma. So there is some authority that we are granting this system. In terms of meaning, we do this by way of some metamorphosis out of the community. But on the other hand, one should notice carefully: we do somewhat go back, without admitting it many times—certainly in the Haredi public. But I don’t know a single serious Haredi halakhic decisor—precisely the examples you brought were not Haredi decisors—I don’t know a single serious Haredi decisor who said that the laws of the Knesset have no validity. That is quite surprising. In Haredi journalism it is obvious that it’s all nonsense and we owe them nothing and you can cheat everyone and supposedly—yes, that’s the impression. There is not one Haredi decisor, even among the most extreme of them—just now I saw here an article by Shochetman that I used for today’s class. There is a Jew named Rabbi Munk from Haifa, a real fanatic, and he wrote a book called Pe’at Sadek, responsa Pe’at Sadek, and there he discusses the important question: if people are chasing me to kill me, may I hide in the parliament of the heretics? For example. Meaning, may I enter the Knesset in order to hide so they won’t kill me, or is this a case of “be killed rather than transgress,” and it would be better that they kill me as long as I do not enter the Knesset? Meaning, you need to understand.

We’re talking about someone who was impressed into service, and he has to cross the depth of the Sinai desert—should he observe the second festival day of the Diaspora? So this whole mindset of “impressed into service.” Okay. So fine, that’s his approach. And even there, in his responsa, it is written—not in oral comments, which is very surprising—even in the responsa he says there are things in which there is no choice and one must behave according to the rules here. And “the law of the kingdom is law” would apply even—not only the seven representatives of the town. Meaning, there is something in practice that forces itself upon us. Meaning, what is the alternative? Like people often ask, what is their alternative? Meaning, what is the alternative? What, shall we say that it has no validity and nothing means anything, and therefore what? Everyone now takes guns and robs one another? That is not a serious alternative. No halakhic decisor can really say: okay, throw this whole business in the trash; there’s nothing; the world is ownerless; do whatever you want; there are no rules. There is no such thing. No halakhic decisor can give that his stamp of approval. And this supposedly practical consideration is not practical—it is a halakhic consideration par excellence. It is the very core of the consideration underlying—I’ll get to this later—the principle of “the law of the kingdom is law.” “The law of the kingdom is law” is not some scriptural decree from the Torah. There is some verse that people cite, but that’s not it. At bottom—even the medieval authorities (Rishonim) write this—at bottom there stands some conception that you cannot have a world without some central government; that would be anarchy.

So is this the undermining of gentile courts that appears also among our own decisors? Within those areas—in the first volume there is an article by Rabbi Yaakov Ariel on the concept of gentile courts there, in some debate. In general, against—I’ll say a word about it because it really is a topic that constantly touches what we’re discussing here, touches it and doesn’t touch it. There is another topic—actually in this week’s Torah portion, by the way: “These are the laws that you shall place before them”—before them and not before laymen, before them and not before gentiles, non-Jews, and so on. Meaning—yes, Rashi, and that is also the midrash—that it is forbidden to litigate in a court of non-Jews, in a court that is not a halakhic court. But it also says “before laymen.” “Laymen” means Jewish judges who judge even according to Torah law, but they are laymen, they are not qualified to be judges. That is one prohibition. And the parallel prohibition is the courts of gentiles. Courts of gentiles means another legal system, gentile judges, and so on. There are some small debates about this, but I think it is pretty clear from the medieval authorities (Rishonim). There is a dispute here between the halakhic decisors and the religious judges. All the religious judges, for some reason, think that gentile courts are only a problem of the origin of the judges and not of the legal system according to which they judge. And all the—So maybe let’s begin. Yes. So maybe we’ll talk about it another time. In any case, I want to distinguish between the questions. Meaning, there is the question: what is the status of the legal system in the State of Israel? That is one question; I’m not discussing it. I’m discussing the question: what is the status of the law in Israel? Or what is the status of the governing authorities in Israel? It may be that I will conclude that the law in Israel is binding and that the government in Israel has validity like a king, and still it may be forbidden to go litigate before a judge who is not in a Torah court. Meaning, these are two questions that are not necessarily connected. There are links between them—I said they touch and don’t touch—but it is not the same question. I’m not currently speaking about the judging agent, about who will be the one to judge. Let us assume that in all the courts there sit rabbis, duly ordained judges, but everything else remains the same. The Knesset is composed in the same way, laws are passed in the same way, the public looks the same, everything looks the same. There would still be room to discuss whether these authorities have authority and whether the laws they enact have validity. Therefore that is one question. The question whether one may go to gentile courts and civil courts, and so on, is another question. There is some connection between them, but it is not the same question. And on that question of gentile courts and civil courts I may deal with it some other time in the future.

So in fact, when we come to discuss this question of the validity of the legal system in Israel—let’s be more concrete—I am speaking about the validity of laws in the State of Israel, even before the institutions and so on, because ultimately the institutions and all these governmental agents—their validity is expressed in the fact that they enact laws and act according to them. Meaning, basically I need to discuss whether the laws they enact are valid; consequently, of course, they may also act according to them. There is also a bit of a question, which we may touch on, regarding who the people are who operate within this framework. Beyond the question whether the laws are valid, it may be that these two questions can affect one another. When we come to discuss this question, we need to distinguish between several fundamental questions. The answers are very far from simple. There is no sharp, unequivocal bottom line halakhically on a large part of the questions we will discuss today. There are disagreements, there are interpretive questions, and as I already noted at the beginning, what determines the bottom line in the end is no source at all. It is the practical consideration. The practical consideration says: leave all the sources aside. If the sources can be arranged in one way or another, fine—but it cannot be that we are left here with anarchy. No halakhic decisor is willing to accept such a thing. Therefore, at the end of the day, it is a kind of fixed game. It is clear that in the end we will have to arrive at the conclusion that there is no choice; one has to cooperate with the rules of the game. Some will like it more, some less, but if the alternative is anarchy, nobody recommends it. And still, as an intellectual matter, the question is important. It also has practical aspects—maybe we’ll touch on some of them. It also has practical aspects. But it is mainly a theoretical question, and maybe it will illustrate a bit the things we spoke about in recent sessions.

Why should there be anarchy? What? Why should there be anarchy? Because if you don’t recognize the laws of the state, then you do whatever you want. No. I have my own legal system; I operate according to my own legal system; others operate according to their legal system—When you make a deal with your neighbor who operates according to that legal system, when you drive on the road, what will you do? When you steal from him, or when you kill him—Heaven forbid—who will judge you? There will be coercion. Meaning, what is coercion? Fine, so you are saying there is some system here that is—Yes, I’m speaking at the level of choice in monetary law. No, that’s something else. You’re raising another level, and we’ll get to that too. Within that framework, does there still remain a preference, in places where I can act according to Torah law, not to enter that other system? That is an important question, but it is a second-story question. Meaning, first I discuss level one: is there some framework here that obligates me at all? After that, within that framework and within the degrees of freedom it leaves me, that is a further question—what to do.

When discussing this question—what is the status of legislation here in the Land—there are three directions that come up among halakhic decisors, among later authorities (Acharonim), in discussing this issue. There are some who only rant. Meaning, I’m speaking about those who conduct a serious discussion. Journalism always rants: there is no “law of the kingdom is law” in the Land of Israel, and all kinds of slogans—I’ll mention them later—and therefore it is all empty nonsense and nothing exists. But there are three directions that arise, and each one needs to be examined. The first direction is, as I said before, the direction of communal ordinances. We have here at least something no worse than Keterialevka. We have a large community with many Jews, and just as every community gives authority to the seven representatives of the town to enact ordinances for the public good, so too in a state—which is perhaps a larger community—the institutions have the authority to set rules, laws. That is one mechanism. The second mechanism is that of “the law of the kingdom is law.” “The law of the kingdom is law” is a rule that of course already appears in the Talmud, with Samuel saying that “the law of the kingdom is law.” Meaning, when the king decrees something, what he decrees is binding also from the standpoint of Jewish law.

Once, someone I knew in Bnei Brak was caught smuggling diamonds into the Soviet Union, back when it was still a bit the Soviet Union—I mean, around school age. He was caught there and put in prison. And I knew the man—it’s different from reading it in the newspaper. I knew the man, and there he was sitting with all the drunken gentiles in a Russian prison, and he was supposed to come out only after many years. It was a very serious offense there according to their law. He was going to sit there for many, many years. With nothing—he couldn’t eat anything, nothing. Just in a vacuum. Just thinking about it was hair-raising. People here worked all the way up to the President of the United States until in the end he got out. What? Natan Sharansky? Okay. In any event, Silverstein. So I sent him a letter when he was there in prison; it was possible to send letters. I sent him a letter and said to him: you always—perhaps it wasn’t nice, perhaps it wasn’t the right occasion to ask this—but you always told us on the evening after Yom Kippur, we were in yeshiva, and after Yom Kippur we went outside, and you said not to recite the blessing over the moon. Why? Because the Mishnah Berurah says that after Yom Kippur one should not recite the blessing over the moon, because you’re already hungry and want to get home quickly—go home, eat, calm down, and at ten at night come back and recite the blessing over the moon. He constantly argued with us—people don’t have the strength; they recite the blessing over the moon after Yom Kippur and that’s it. Nobody’s going to come back later, and this and that—and maybe that’s also preferable, because after another three days people still won’t return. So they do it then, and he always argued. I said to him: look, over the blessing over the moon you argued with the whole world. But “the law of the kingdom is law” is Torah law. It is Torah law—and how do you violate such a thing? Just like that? A Jew is meticulous in Jewish law about every clause and sub-clause of the Mishnah Berurah—so how can it be that you violate “the law of the kingdom is law”?

There’s a certain feeling that “the law of the kingdom is law” is just because you have to get along in the world, there’s no choice, but with a wink—as if when possible, you round the corners. But that’s not so. In the simple sense, “the law of the kingdom is law” is law. It is Torah law, and it is binding, and one who violates it commits a Torah transgression. Meaning, you have to obey it. There’s no—this is law like any other law. On the other hand, one must beware of the opposite mistake regarding “the law of the kingdom is law.” There are statist conceptions, conceptions that say that of course it is forbidden to demean an officeholder in Israel, and one must honor a king, and so on, and therefore when the prime minister arrives everyone immediately stands there trembling with respect. With all due respect and appreciation, the king here is a democratic king. And there is no point in transferring concepts from a monarchic king to a democratic king. A monarchic king has the rules by which he operates, and a democratic king has the rules by which he operates. If I block roads because I want—I don’t know—to protest something that strikes at my soul, whatever it may be, each person can choose what strikes at his soul, and I block roads because this bothers me and I want to express my cry, and it’s against the law and the police beat me and so on—am I a criminal? Did I commit a Torah transgression? Did I violate “the law of the kingdom is law”? It’s against the law, against the—There are those who want to grasp it at that level, which is of course absurd. There is no such thing. Why? Because a democratic king has his own rules. It is not the same as a monarchic king. A democratic king, like every other citizen—like every other citizen who relates to the democratic king—so too the observant Jewish citizen will relate to him in the same way. One need not be more righteous than the normative, regular, normal citizen of a state. He obeys, he doesn’t go wild, but in a place where he wants to make some trouble, then he makes trouble, because there is no choice—it bothers him, it hurts him, and he wants to express his protest. With all these rules of “the law of the kingdom is law” and one may not violate it and it’s a Torah transgression and perhaps Torah-level doubt must be treated stringently—if a traffic light is doubtfully red or doubtfully green, then perhaps we’d have “Torah-level doubt must be treated stringently.” You need to apply this with common sense.

And why is smuggling diamonds worse than blocking a road, say? Smuggling diamonds—you want that just to make money and cheat them. But blocking a road is something that is part of the democratic rules—you want to protest something. What do you mean? It is part of the rules. Maybe rules that often lie outside the law. Just as conscientious objection lies outside the law. So because of that I should not object to the law because there is “the law of the kingdom is law” and this is a Torah transgression? No. Democratic thought recognizes that I can even refuse, through conscientious objection, and bear the consequences. I am part of the framework; I do not want to break the framework; but sometimes I bend it. And that is part of the rules. I think that’s the whole idea: “the law of the kingdom is law” means that you accept upon yourself the system of rules that is customary, like every other normative citizen—no more and no less. Meaning, you do not need to be some kind of sucker who is meticulous about every minor point as if for you it were a Torah transgression. I think it makes no sense to interpret things that way. You have to behave as every law-abiding citizen behaves, that’s all. It’s just true that you are obligated to this also by Torah law, but that does not mean that now on every issue you must go to the absolute extreme. Obviously I’m not going to pay all kinds of taxes because of Torah-level doubt. Although with taxes I’m not sure it’s like a red light—I don’t know, maybe. There is room to discuss it. In any case, I’m saying these are two mistakes that perhaps go in opposite directions. On one side, there are those who say: “the law of the kingdom is law”—we’ve already been used for two thousand years to outsmarting the gentiles, so fine, we’ll pay the taxes, we’ll write at the beginning of the book “the emperor, may his glory be exalted,” and afterwards in Yiddish we’ll write everything we really think about him. That’s one side. And on the other hand, one also has to beware of the opposite mistake. Common sense has to be here.

In any case, that is the second direction. So we had communal ordinances, the seven representatives of the town, and there is the concept of “the law of the kingdom is law,” and here too there is some kind of kingship. “Kingship” is a synonym for government. Again, one must beware not to start imagining crowns and robes. A central government that citizens must obey. That is the second direction.

Now there is a third direction. The third direction is called the law of the king. And the law of the king is not “the law of the kingdom is law.” It is something else. The law of the king means that when there is a king in Israel, one must obey him. Now this is not because of “the law of the kingdom is law.” “The law of the kingdom is law,” at least in the sources in the Talmud, was said about gentile kings. Gentile kings have no halakhic status, no governmental halakhic status. Jewish law recognizes that when you are in a place that has a governmental system, you have to obey that governmental system. But he is not considered an officeholder within the halakhic hierarchy; he is not the king of Israel. The king of Israel—that at least, as I said before, is itself open to discussion. I have major reservations about this, but that is at least the usual understanding. The king of Israel is something different from “the law of the kingdom is law.” The king of Israel means that if there is a king in Israel, he has authority. Jewish law gives him authority—not merely de facto recognition through “the law of the kingdom is law.” He has authority in Israel. He is one of the officeholders in Israel. Just as the Sanhedrin has authority, so too the king has authority. Now whether the king is democratic and not monarchic—we’ll discuss that later. I don’t think it should change much. But in principle this is a third direction.

Why do I say that the very claim that there are three directions already involves several assumptions? Mainly I meant this point: I am not at all sure that the law of the king in Israel is not simply one clause within “the law of the kingdom is law.” It may very well be that the law of the king in Israel derives from exactly the same place from which “the law of the kingdom is law” derives, because in the end the binding law is the law of the Sanhedrin. We spoke about the parallel systems—the system of the king and the system of the Sanhedrin. That is the binding Torah system. Except that we also need to conduct ordinary life; there is no choice. Life has to be managed properly, and that involves regulations and enforcement and running public life, and for that one needs a king—or, it doesn’t matter, some secular government of some kind, it doesn’t have to be specifically a king. And Jewish law recognizes this issue. Perhaps here too Jewish law recognizes it de facto, just like “the law of the kingdom is law.” And there is nothing more to the king of Israel than there is to “the law of the kingdom is law” with regard to a gentile king, except perhaps the feeling that I feel more loyal to him or more sympathetic toward him—but that’s all. So in a basic sense these two things are some ordinary-life aspect of existence, beyond Jewish law, that comes to manage certain aspects that Jewish law does not manage. Where that does not exist, we already discussed that the court takes upon itself also the powers of the king. Why? Because these are powers that somehow have to be housed somewhere. And that precisely reflects what I’m saying: that these are powers that were not born from the Torah. They are powers that cannot be dispensed with. If the Torah had not written them, we would have invented them. It is impossible to live otherwise. The Torah says: this thing is called a king. And if you are among the gentiles, then the gentile king does that job. If there is no king at all, then the head of the court or the president of the Sanhedrin will do that job. Somebody has to do it. But if that is indeed the conception, then the second and third directions become very similar. It really means that “the law of the kingdom is law” and the king’s law or the law of the king are almost the same thing—in fact, not almost, but the same thing. That is one assumption made by those who say there are three directions.

A second assumption is the assumption that we are dealing with a halakhic question at all. I already prefaced this when we spoke earlier about communal ordinances. I said that in the old sovereign framework in Israel, I think—at least that is how I imagine it—nobody asked himself what the source of the validity of the laws was. It was obvious. What do you mean? There is a central government and things need to be managed. After we became fragmented and so on, people began to ask themselves questions: wait, who said? Why? What? And then they built some formal, orderly system that says there is this authority, that authority—people begin organizing things in a more formal way. So what are we actually saying? That as a result of this formal organization, within Jewish law for the Jewish people, there are several binding governmental authorities. There is the Sanhedrin, the religious administration. There is the king, who is the secular administration. Sometimes both are one person or one institution, but these are the two rulers or two institutions that are above us. What happens if we are in the Diaspora? If we are in the Diaspora, then as I said earlier, the king is not some governing authority alongside the Sanhedrin. It is an external constraint that we are supposed to get along with. He is not part of the halakhic system. He is not appointed by the Holy One, blessed be He, to manage ordinary life, while the court is appointed to manage religious life. I don’t think that is the right way to look at it. The court is appointed over religious life, and everything else—you get along with the constraints in which you live. It’s not that the king carries out some function the Torah imposed upon him. This is de facto recognition, as I said earlier.

Now here, when we discuss the question here in Israel—when we discuss the question of the status of the authorities, from what power do they draw their power?—we often assume, at least implicitly, that the Jewish people are now asking themselves a question. This is not a question I ask myself as a private citizen in a state: why should I obey what this whole gang here is doing? Everyone does it for his own reasons. But at least the impression one gets when reading all the theoretical clarifications is that we are trying to clarify for all of us what this whole thing really is. Meaning, what does it mean for us? This is not what happens when I live in Australia. When I live in Australia, I ask myself where I fit into the system. It already exists; I need to be loyal at one level or another. The point I’m driving at is that there is an assumption here—that the public sitting here in the State of Israel, and this is the assumption underlying the paradox I described earlier—that the public assembled here in the State of Israel has become once again the Jewish people. Meaning, what is here is basically the Jewish people, and the state is like in the time of King David. Meaning, the State of Israel in the halakhic sense—a Jewish state, as people perhaps call it today. And then I ask myself the question: wait, what does Jewish law say about a Jewish state? Is there a king, is there no king, how does one choose a king, what can the king do, what can he not do?

But if I do not accept that basic assumption at all—rather, as Yossi suggested earlier, this is a large Jewish community; it also contains quite a few gentiles, there were a few in David’s time too, but here as well there are quite a few gentiles within it; true, there is a Jewish majority and many Jews—but when exactly does this become a Jewish state? When does the problem become a halakhic problem? What would happen if in one of the states in the United States there were suddenly a Jewish majority and its governor were also Jewish? What, would that become the State of Israel? Would they start discussing the Sanhedrin there too, the king, a king in the sense of the king of Israel? I don’t think so, right? So is it because we are in the Land of Israel—is that the determining factor? Meaning, one can describe here a continuum of intermediate situations, between the situation of a community located somewhere and the situation of the Davidic monarchy functioning with everything, with a Sanhedrin and according to the rules—assuming optimistically that that is how it was—and between those two poles there is an entire metamorphosis of many situations. We need to decide for ourselves where the line passes. Meaning, when did we begin once again to be a Jewish state, or when did the Jewish people return to functioning as a sovereign unit? Then it would ask itself again all the questions that were once asked.

And in our case another point is added, namely that even the Jewish part of the State of Israel is, for the most part, estranged from its halakhic obligations. It does not recognize its halakhic obligations. Some more, some less, but overall most are estranged. Therefore to treat this matter as a Jewish state is, let’s say, at least not simple—let’s put it mildly. I feel it is much more than “not simple.” I personally think it’s not correct. But it’s really hard to justify such a thing. The question is where the line passes. I don’t know how to justify it. People always tell me: there’s Ahab, who was a wicked king, and he too was still called king of Israel. True. I don’t think it’s a function of wicked versus righteous, or of people who are loyal to the Torah or not. This entire totality does not seem to me to be a Jewish state, broadly speaking. Who said that the relation to Ahab as king of Israel—what is its halakhic significance? That’s exactly the same question. It’s connected to what I said before. The question is whether Ahab was king of Israel, or whether it was simply “the law of the kingdom is law.” He was simply the ruler, and one needs a ruler, one needs there not to be anarchy. But not that he had the law of a king. And that is precisely the difference between the second and third possibilities. Ahab is the perfect example of this. And indeed many times they bring him as an example of the third option, and I always say no: he is an example of the second option. If it is “the law of the kingdom is law,” then it is not the law of the king.

It seems to me that the term “Jewish state,” without entering into the ideology involved, is used by us more when we want to make some claim. We want to change some conduct in the state. So we say: this is a Jewish state; it must be conducted in such-and-such a way. Whether in legislation, whether in regulations, or just in simple cultural conduct. The expression is used less because we really are a Jewish state. It just appears that way in the newspapers, for example. “A Jewish and democratic state” is mentioned a great deal, but it is used less in the sense that we truly are a Jewish state, without going into the wording. Yes, but exactly. I think what the press means by a Jewish state is not what I mean by a Jewish state. Let me give you an example. The State of Israel makes an agreement and transfers territory. Fine? Did it violate “you shall not show them favor”? A very simple question: yes or no? I think not, for example. Why? Because it is like a state in the United States with a Jewish majority transferring territory—territory in the Land of Israel for the sake of the discussion, it doesn’t matter—to the control of non-Jews. So what? This is a state where the Holy One, blessed be He, isn’t even on the board. Meaning, they’re not even rebelling against Him; they simply do not live in relation to Him at all. Ahab still rebelled against Him. Meaning, he was still in some kind of conflict with Him. There was a prophet, and he persecuted the prophet. Today, if a prophet comes, they’ll hospitalize him in a psychiatric institution—that’s the only thing they’ll do to him. Meaning, it’s not on the map at all. To treat such a thing as a Jewish state, in my view, is a kind of anachronism. We don’t have another pattern with which to describe it, but this is a state most of whose citizens are children of Jews. Fine, that I’m willing to accept. But when you say the state is Jewish, that means obligations apply to it. It means that when it transfers territory it violates “you shall not show them favor.” Who said it violated “you shall not show them favor”? The prime minister could also be an Arab according to the law; there is nothing preventing that. At the moment demography says he probably won’t be. Fine, that could change after some time. So what? Then he’ll violate “you shall not show them favor”? If Farid al-Atrash were prime minister and he transferred territory, would he violate “you shall not show them favor”? Does that sound plausible to us? I don’t know. It sounds—of course these are extreme cases, and one can always describe extreme cases, but I’m trying through those extreme cases to clarify why the situation here is very unclear.

Now, if that really is the conception, then these discussions lose much of their significance. I go back to the shtibl policy. I have my seven representatives of the town, and here there is some gentile king whose mother happens to be Jewish, so he is a gentile king and “the law of the kingdom is law.” Fine, and I must obey him just as I obey—No, seriously, I’m not belittling him. I’m not saying it ironically or to belittle him. From the standpoint of halakhic status, there is here a gentile king who has authority, and he is a king like any other king, and I must obey him. That’s all. Just as I would in the United States. If his mother were Jewish, it would not change his status. Just as one must obey the rules he sets as a citizen when he is a gentile, I must obey them also when he is Jewish. There is no difference at all.

There was such a conclusion, I think by Rabbi Kook and also Rabbi Ovadia following him, regarding whether one may cheat on value-added tax or not. Yes, that’s exactly their conception if I’m not mistaken—that it’s only “the law of the kingdom is law.” Their whole discussion was whether Jews can even generate validity under “the law of the kingdom is law,” and in the end—No, there the discussion is a different discussion. There the discussion is a different discussion, but—when they speak there about “the law of the kingdom is law,” they discuss whether there is “the law of the kingdom is law” in the Land of Israel. There are Ran and Nimukei Yosef who say that there is no “the law of the kingdom is law” in the Land of Israel. So they discuss there whether there is or is not “the law of the kingdom is law.” I am asking the question that touches the relation between the second and third options. Should we see here the king’s law, or should we see here only “the law of the kingdom is law” as in the Diaspora? Even when you say “the law of the kingdom is law,” it’s not clear that you mean “the law of the kingdom is law” as in Australia. That is a major question. I’m saying that maybe yes. If so, then it is very similar to what I mean. I do not think that is what most people mean when they speak here of “the law of the kingdom is law” in this context. They mean to say that this is a Jewish king—not a king from the house of David, he doesn’t fulfill all the rules, but a Jewish king—and the question is whether he has validity. So I say: just as under “the law of the kingdom is law” a gentile king has validity, so too here—it is not a Davidic monarchy. It is a king whose authority reaches only as far as “the law of the kingdom is law,” no further than that. But still, the conception is that he is king of Israel, like Ahab. Like Ahab. I think not even like Ahab. At least Ahab had to be Jewish; you could not have a gentile king there. Agrippa and such figures are already genuinely different matters. But here it is not even essential that he be Jewish. Meaning, even if the law says he must be Jewish—what Jew? Today, a Jew according to the law is not necessarily a halakhic Jew. So the whole business is only shared terminology. We use many concepts culturally borrowed from the halakhic world—these are called judgments and courts. And the whole conceptual system is drawn from the halakhic world, especially in the legal sphere, but the meanings are not necessarily the same. One needs to beware of transfers; without noticing it we make all kinds of transfers that one must be careful about. And therefore it seems to me that I am not at all sure that the third direction is something I would even place on the table for discussion—the direction of the law of the king, not the direction of “the law of the kingdom is law.” And even regarding “the law of the kingdom is law,” the question is whether they mean Ahab or Bush. Meaning, yes, that is still a difference.

Fine, but at least “the law of the kingdom is law” can come up. The king’s law—I am very doubtful whether that can come up here. Fine, that was by the way. It has many implications, by the way. It sounds like a very theoretical and abstract question. What about war? A war waged here in Israel—when a sovereign government decides on war, there is no doubt at all that it has the right to make that decision. Even a government of gentiles can decide that; there is no doubt that such a decision can be made. The question is whether that thing is an obligatory war or not. So again, we see halakhic decisors discussing it; these say yes, those say no. There are Maimonides’ definitions: helping Israel against an enemy—that is an obligatory war when we are in distress and need to defend ourselves. Every obligatory war has to be declared by a Jewish monarchy. There is no obligatory war of a community. There is no obligatory war of a nation of gentiles. There is a legitimate war, there is a war they are permitted to wage, certainly if their lives are in danger. But an obligatory war by definition is a war declared by institutions authorized according to Jewish law, and carried out by a Jewish state, not by any private individual. Like conquering the Land and so on—about that too there are some discussions—but in the simple sense that is a commandment imposed on the public, not on individuals. There are all sorts of things done in the name of the public: to conquer the Land of Israel and to appoint the king of Israel. It doesn’t work otherwise. The public has to do it, not individuals. It is an obligation imposed on the public. The question is whether obligations imposed on the public halakhically are at all relevant to the state we are discussing. What practical difference does it make whether it is an obligatory war or not? For example, people speak about drafting women. One of the arguments brought is that in an obligatory war even a bride leaves her canopy. A bride leaves her canopy? No—“a groom from his room and a bride from her canopy.” A groom from his room and a bride from her canopy. So here is the proof that “a bride from her canopy” means that women too can go out to war; they are obligated. But that applies only to an obligatory war. So people ask: wait, what happens here? Then they say: helping Israel against an enemy is also an obligatory war. True, everyone understands that there is no prophet and no Sanhedrin here and so on—there isn’t. But helping Israel against an enemy is also an obligatory war. It is written in Maimonides. But helping Israel against an enemy is an obligatory war only if the body that fights is of the proper status—if it even belongs in the concept of an obligatory war. I repeat, one does not need to wage war in order to save lives because of commandments. It is clear that one must fight. But to turn it into the halakhic status of an obligatory war means there must be some sovereign body, in halakhic terms, that declares that war. So there is always a commandment to save oneself, always a commandment to live and not die. That is always true. But an obligatory war is a concept of a commandment carried out by a collective, not by individuals. And the question is whether this collective is even commandment-bearing at all, whether it is capable of fulfilling commandments. A question with several implications—again, often at the margins. But it has implications.

All right, I’m not progressing very much. So in short, we brought three directions. Overall, it seems to me that I already presented the king’s law and communal ordinances in previous sessions, so I’ll do it only broadly. I’ll focus on a few problematic points that arise in these contexts. These are the three directions proposed to establish the validity of the legal system here in the state.

As for communal ordinances, there is no doubt this is a reasonable source. We are certainly no worse than Keterialevka. But it has limitations. The question is in what areas, for example, can the community enact ordinances? What—the community in Keterialevka could declare war on someone? Or is that authority given only to a sovereign authority, a king, a state government? That is not a simple question. If a citizen of Keterialevka was unwilling to go out to a war that the seven representatives of the town declared, would he be a criminal, a rebel against the kingdom? I strongly doubt how many halakhic decisors would say such a thing, even though, supposedly, they derived the source for the seven representatives of the town from “the law of the kingdom is law” and the law of the king and so on. Regarding rules set by the state: it sets all kinds of laws. There is public law and private law. Public law means taxes, traffic, how public life is run in general. There it is quite clear that this can be done exactly like the seven representatives of the town. What about private law? Where they determine how business is conducted between two individuals. Say Jewish law rules otherwise—in principle one ought to judge according to Jewish law. The question is whether the seven representatives of the town have authority to make determinations in private law. That is not at all a simple question.

Another question that arises is—But a king can change it? A king can, yes. I’m speaking now about the seven representatives of the town. Each one has to be discussed separately. So this discussion is only about the seven representatives of the town. A king can do that. Another point that arises is that we saw there is a need for the agreement of an important person, right? For an ordinance of the seven representatives of the town to be valid, one needs the agreement of an important person. And we saw that according to most medieval authorities (Rishonim), an important person means the prominent Torah scholar of the place, or the appointed authority, or something like that. What happens here? If we really derive this from the seven representatives of the town, then it means that here too, for laws to be valid, one needs the agreement of an important person. And who is that important person? There are all kinds of important people. There is not one defined person recognized as the highest halakhic authority whose agreement must be given. So there are those who wanted to say that this is the Chief Rabbinate, which is some combination of a body that is also—after all, we saw a dispute among the medieval authorities (Rishonim); I mentioned it briefly, we did not really see it inside—whether this important person needs to be appointed, or whether he is simply the most prominent Torah scholar in the area, regardless of who he is, whom one consults. Now there are those who wanted to say that the Chief Rabbinate fills both functions. So “important person” does not necessarily mean they are the greatest Torah scholars, but the claim is that every other Torah scholar fails to meet one of the two requirements. Either he is not a Torah scholar, if he is just someone random, or if he is a Torah scholar, then he is not appointed. And some of the medieval authorities (Rishonim) require the agreement of an important person only if he is both a Torah scholar and appointed. Someone who fulfills both requirements—both a Torah scholar and appointed—seemingly that is only the Chief Rabbinate.

I’m not going to enter here into discussions about the Chief Rabbinate, out of what remains of the respect it still has—and probably not justly either—but you can think for yourselves how relevant that is today. Now again, when the laws were legislated perhaps the situation was different; there is some room to discuss that. But here too there arises a discussion: what is the agreement of an important person? Laws are enacted all the time. Yes, I mean from the laws that were already enacted. Say the principle, the approach, Rabbi Herzog and so on. No, I mean there was a period there when the situation was different; I’m referring mainly to situations that have arisen in recent years. The agreement of an important person is not a simple issue. There are those who wanted to argue that the laws of the state are not valid because they do not have the agreement of an important person. And that depends on the dispute I mentioned—the question whether the agreement of an important person is required out of respect for the important person, or whether the agreement of an important person is required in order to ensure that the legislation does not create distortions. If it is out of respect for the important person, then perhaps it applies only to one who fulfills both conditions. But if it is in order that the legislation not create distortions, then all the excuses in the world that we may bring—well, he is not an important person, and he in effect agreed implicitly because he went to vote in the elections—there are all kinds of such claims, that someone who went to vote in the elections thereby already agreed to this system, and so there is agreement to the matter. Some halakhic decisors oppose going to vote in elections, and that really does raise a question about the validity of the matter, especially with respect to others. But all of these things obviously do not constitute oversight over the content of the legislation. Nobody in the legislative system asks a Torah authority whether to legislate this way or that way. So how can that be? There’s no way laws can be valid in such a situation without the agreement of an important person, according to those medieval authorities (Rishonim) who understand that the agreement of an important person is required as a condition for the validity of legislation—not to honor the important person, not merely not to do things without him, but in order to ensure that it is not discriminatory, that it does not cause harm, that it preserves Torah principles, and things of that kind. So indeed there are halakhic decisors who wanted to argue that there is no validity because of this issue. In Techumin volume 7, I think, there is an article by Rabbi Farbstein that raises this, and a few other such directions come up among the commentators. That is regarding communal ordinances.

As for—But aren’t the laws binding by virtue of “the law of the kingdom is law”? No, no, I’m going one by one. Obviously the overall picture comes from the combination of the three directions. The second direction, which is really the main one—the king’s law is already another question—but “the law of the kingdom is law” is indeed the second direction. Here one often hears, especially in the journalistic context, “there is no ‘law of the kingdom is law’ in the Land of Israel.” Indeed, that is what Ran writes; that is what Nimukei Yosef writes—that in the Land of Israel there is no “law of the kingdom is law.” And there are those who formulate it differently: that there is no “law of the kingdom is law” with respect to Jews, not in the Land of Israel. Because for Jews there is the rule of the Torah; there is no alternative. A Jew cannot rule by virtue of any authority other than the rule of the Torah. Of course, this already assumes that “the law of the kingdom is law” is not the king’s law. Because the Torah gives the king power to rule. “The law of the kingdom is law” means you are like a gentile king, and since you have authority I need to obey you. So that applies if you are a gentile. But if you are a Jew—what do you mean? A Jew cannot take authority for himself and have the Torah recognize it de facto.

So in this context too, the question arises of “the law of the kingdom is law” in the Land of Israel. In the straightforward reading there is—as I said, I mentioned earlier Ran and Nimukei Yosef, who indeed seem to say that this does not work. No other source writes otherwise. They don’t address it, but there is no source that says the opposite. But from the rationales that the medieval authorities (Rishonim) give for this principle of “the law of the kingdom is law,” one can nevertheless learn that not all would agree. For there are those—for example Ran himself, when he says there is no “the law of the kingdom is law” in the Land of Israel, explains why: because “the law of the kingdom is law” in the Diaspora is based on the fact that the land, the ground, belongs to the king. And if you don’t obey him, he will throw you out. The power is simply his, and therefore you have to obey him. In the Land of Israel, Ran says, all Jews are owners of the Land of Israel; no one can throw me out of here, out of the land, even if I do not obey the king. I own the land just like he does; the Holy One, blessed be He, gave it to everyone. And since he is not owner of the land in the sense of the ability to throw me out, therefore there is no concept of “the law of the kingdom is law.” According to this, there would be no concept of “the law of the kingdom is law” in the Land of Israel even if there were a gentile here. Even a gentile king here—if this is the Land of Israel—there would be no concept of “the law of the kingdom is law.” In Nimukei Yosef the wording is slightly different. There it seems that there is no “the law of the kingdom is law” when the king is Jewish—not because it is the Land of Israel, but because a Jewish king, as I said earlier, rules by virtue of the Torah; he has no other alternative. But I said there are rationales saying that “the law of the kingdom is law” derives from the consent of the public. Rashbam, and Maimonides as it seems from the laws of theft and lost property, indicate that “the law of the kingdom is law” derives from the consent of the public. Once you tie it to public consent, there is no reason to distinguish between the Land of Israel and the Diaspora, no reason to distinguish between a Jewish king and a gentile king. Once public consent exists, the public accepted this government upon itself, then each person is obligated to obey it. And we already dealt with this issue earlier, where one can derive from the seven representatives of the town, from communal ordinance, that once the majority of the public accepts it upon itself, the individual cannot say “I did not accept it, therefore it does not obligate me,” unless he leaves the arena. But he cannot declare “I do not accept this upon myself” and remain here. We saw that in the responsa regarding the seven representatives of the town. So here too it is the same.

One final point I’ll mention, which touches both aspects—both “the law of the kingdom is law” and communal ordinances—is the question of who sits there. I said that beyond the contents, there is also the question of who sits there. Maimonides writes that positions of authority are not appointed over the public unless the person is fit to be a judge. More than that, Maimonides writes that if someone appoints a judge who is unfit, it is as if he planted an idolatrous tree. And not only in the sense that he acted criminally, that he is a wrongdoer because it is as if he planted an idolatrous tree—the appointment itself is invalid. Meaning, the appointment is invalid even if they did it. No—you cannot make an appointment of someone unfit. And what is “unfit”? A wicked person, that is unfit. And what is a wicked person? In halakhic language, a wicked person is someone who commits transgressions—not “wicked” in the moralistic sense we usually mean. And then more doubts arise among the halakhic decisors in our context today. The question is whether the public, or specifically the people sitting in those institutions, are fit to serve there. It may be that people of this kind—even if we accepted them upon ourselves—that would not help, just as Maimonides says that when one appoints a judge who is unfit, it does not help even after the fact, even if they did it.

Here, of course, there is room to distinguish between appointment and election. To appoint someone against the will of the public is impossible if he is unfit for it. For example, the Sanhedrin appoints a judge in some city. That judge is not chosen by the city’s residents; the Sanhedrin appointed him from above. One may not appoint an unfit judge—or the Exilarch, for that matter. But in our situation today, where appointments are made through elections, that is a choice, not an appointment. With a choice, perhaps one may choose even someone unfit and it would hold. That is a dispute among medieval authorities (Rishonim) that I will not enter into here. For example, we know with respect to judges—which is the source of all these matters, appointing judges—that if the parties accepted him upon themselves, if I accept upon myself a judge who is invalid, a relative or someone otherwise disqualified, or even a wicked person, I can do that. It is valid like any monetary agreement made between two people. It is an agreement between us that whatever this wicked person says, we undertake to fulfill. With respect to our money, we can make whatever agreement we want. So now it may be—and this is a major question I’m not entering here—that a public too can do the same thing. Then it would not be called an appointment, because an appointment cannot be made against the will of the public unless the man is fit. Rather, it is called election, or accepting upon ourselves the authority of that institution or that person. But again, how can I as part of a public coerce someone who did not choose? Then further questions arise: with respect to someone who did not choose, would this count as an appointment for him, or would it count as a choice? That is not a simple question. I really don’t know how to answer it clearly. But here, I’m saying, I’m staying for the moment at the general lines, so we’ll stop here. Fine, I don’t know—maybe next time we’ll continue. I thought I’d finish it in one session; we’ll see.