Death Penalty for Terrorists: A Halakhic Position on the Question of Authority (Column 164)

With God's help

From time to time the question of the death penalty for terrorists comes up. As is usually the way of the world, some support it and others oppose it. As is usually the way of the world, the supporters mostly belong to the right and the opponents mostly to the left, although even if there is some connection between this question and the right-left debate, it is quite tenuous. True, I have already dealt here more than once with spurious correlations, but I will nevertheless comment on this too at the outset.

The nature of the discussion

In fact there are three different groups of questions for discussion here: the question of morality (the value of human life and the prohibition of murder), the question of utility (whether this will prevent the next murder), and the question of harm (in terms of political-media repercussions in the world, and in terms of creating additional potential terrorists who will follow in the footsteps of the holy shahids we have created for them). Since these are three almost independent questions (not entirely), we would expect there to be eight (2³) groups in the population with different views. How many groups are there in practice? Two, of course. The left mostly claims that it is immoral, ineffective, and even harmful, and on the right it is generally the reverse. Incidentally, I have just seen an unusual article on this matter by Daniel Siman on the Mida website, which makes precisely this distinction, and strongly argues that there is no moral problem here at all, but he anticipates harm and therefore opposes such a law (a parallel distinction can be seen in my first column on Elor Azaria).

The moral question

The moral question is the only one that can indeed be influenced, to some degree, by one's political-ideological position. In Column 5 I explained that one of the foundations of the debate between right and left lies in an ontological question: are peoples or collectives real entities, or are the only real entities individuals, with the collective being merely a fictive definition? A right-wing position sees our enemy as part of a collective, and therefore the killing of a terrorist will be perceived by it as moral despite the harm to family members and the surrounding environment. We saw there that for this reason a right-wing person will be prepared to give legitimacy to harm to innocents during a targeted killing if necessary. Perhaps the right-wing person will also see in this war something deeper and more fundamental, and not merely a local conflict of interests that can be solved by agreement. That can lead him to a conception of total and irreversible punishment. The left-wing person, by contrast, will say that in the end we will have to live with them (on his view, that there will indeed be such an 'end'). But these are anecdotes. In principle, the consideration regarding each of these aspects should not be essentially influenced by a right-wing or left-wing position.

The bottom line

In the final analysis, each person forms a final position regarding the death penalty, and here there are only two possibilities: for or against (or no position). It is important to understand that the fact that in my view the punishment is harmful or brings no benefit does not necessarily mean that I conclude it should not be imposed. There are conceptions that see punishment as retribution, or as legitimate vengeance by society and by the victim, and therefore allow for the position that is willing to impose the punishment even if we will have to bear the consequences. And the reverse is also true (for example, if in someone's opinion the punishment is beneficial but not moral). It follows that if someone tells you his position regarding the three rationales—whether the death penalty causes harm or not, brings benefit or not, is moral or not—you still cannot derive from that his final position (unless in his opinion all three considerations point in the same direction). The question that will determine his position is how he weighs the different considerations, and which of them overrides which.

I would even be prepared, to some extent, to accept a correlation between right and left and the final position. The problem is that there is a correlation between our position regarding each of the rationales separately and our political position. For example, if I am a right-wing person, that should not determine my position on whether this punishment is moral (an ethical question) and whether it is beneficial or harmful (a question of factual assessment). What it can determine is that the need for vengeance carries a weight that overrides the lack of benefit and perhaps even the likelihood of harm. My assessment that this conflict has no solution may also lead me not to take future harm very seriously, and so on.

The absence of a rabbinic position

Some complain about the absence of a firm rabbinic position on this topic, as on many other contentious issues. Others go farther and argue that there ought to be a halakhic position here, not merely a rabbinic 'Da'at Torah' pronouncement. Beyond the unfounded assumption that anyone in our neck of the woods is interested in a rabbinic opinion, in many cases (though not always) two further assumptions are embedded in these complaints: that Jewish law has something to say about every issue, and that the state ought to conduct itself according to the values of Jewish law. I assume my faithful readers can already guess that I do not accept either of these assumptions.[1] Below I will explain why, with regard to the question of the authority to impose death penalties, this is even clearer. In any case, a few months ago someone sent me a report in which Rabbi Yitzhak Yosef's position on this subject is briefly presented. This is an opportunity to sharpen my own position.

Background

The background to these remarks is a vote in the Knesset on a death penalty for terrorists law at the beginning of last January. This farce is proposed again and again, and at that time it even managed to come to a vote in the Knesset. It is a bad and unimportant joke, because everyone knows that this law cannot really pass and be enacted. And no less clearly, even if it were enacted, it would change nothing in practice (even today the law allows terrorists to be executed). I would remind you that in the meantime the Knesset and the government have not even managed to retain the bodies of terrorists as bargaining chips for the bodies of our soldiers and the captives in Gaza, in light of the High Court's idiotic decision (at truly unimaginable levels of idiocy) to the contrary. There too our illustrious members of Knesset promised that they were going to legislate a law that would make this possible. We are still waiting. So before they execute all the terrorists here with a single sweep of a covenant-avenging sword, let them first legislate for us this utterly consensual law.

But the whole point of this law, just like the Nation-State Law, the Muezzin Law, and a thousand other laws, is only to make declarations and garner mandates from the foolish public that keeps going back to vote for this band of infantilists. These laws have no other purpose (see Column 161). From this it follows that it is a mistake to speak about considerations of utility with respect to the death penalty. It is more accurate to speak about considerations of utility with respect to the death-penalty law, and here there is great utility (mandates, noise, provocations, etc.). In the end, the High Court will already save the government from itself, and will not let it implement the law, or will even strike it down, and the government will be able to pocket the mandates it gained, blame the High Court, and breathe a sigh of relief.

Well, none of this is our concern here. The bill came up for preliminary reading, and the members of Shas voted in favor of it. United Torah Judaism informed Prime Minister Benjamin Netanyahu that it would not support a law that 'from its perspective raises questions in Jewish law' (this week they asked Netanyahu to postpone the vote so that they could consult the rabbis, but since the vote was held that very day, its members abstained).

Now, in that same week Rabbi Yitzhak Yosef spoke about this issue in his weekly lesson at the Yazdim synagogue, and finally supplied us with a firm Torah opinion, which, rather surprisingly, came out against the position of the party (Shas). For that alone he already deserves a bravo. Let us look a bit at what was reported there of the content of his remarks.

The rabbi's remarks

The reporter says that Rabbi Yosef launched an attack against this law. In his remarks he referred to the possibility that the death penalty would be imposed on a terrorist who is not Jewish, and said:

Think what will happen if the rabbinic court rules that the terrorist Muhammad deserves the death penalty. From the sentence to the execution, what an uproar there will be in the world. Jews in France and Spain and everywhere in the world will be in danger. All the security officials say there is no gain in it. This has nothing to do with right or left. All the sages were against the death penalty.

To his credit, it should be said that he distinguishes here between the moral and halakhic aspects and the political-media aspect. His remarks imply that there is no halakhic or moral problem with the matter, but there is concern about harm and there is no benefit. He even says there is no connection to right and left, and lo and behold, even on this point he is fairly correct (though not entirely). One may of course ask whether all the sages really oppose this law. I, at least, have not heard of any orderly opinion by some assembly of sages on this issue, certainly not of all the sages. It seems this is an a priori assertion, and then of course it depends on how one defines sages. If one assumes that the law is completely stupid and that anyone who supports it is not wise, then indeed all the wise oppose this law. But then it is merely a matter of definition. If one is speaking of rabbinic opinions in general, that is of course not exactly the situation. But let us not hold him to every word.

In his remarks the rabbi also referred to the possibility that the law would apply to Jewish terrorists, and about that he said: 'Heaven forbid there should be a death penalty, that they kill a Jew–that is against Jewish law. There is no such authority in Jewish law.' It seems that here there is no concern about harm, and presumably there would even be benefit (after all, Jewish law itself imposes death penalties), but what stands in our way is the problem of halakhic authority.

And the student's reply

First I would note that I find it somewhat strange that Rabbi Yosef is troubled by the halakhic problem when we are dealing with a state run by people who deliberately eat non-kosher food and sleep with menstruants (as his father ruled), full of Sabbath desecration, pride parades, abortions, and other ills. What troubles him is the prohibition involved in this act, which if ever it is done at all will be done once in ten years?! (As noted, even if the law passes it probably will never be done.) Moreover, if what troubles him is the halakhic problem, perhaps one can sell the noose to a non-Jew and do it with a change of procedure, or in some indirect fashion. Alternatively, they could kill the terrorist on the Sabbath in a live television broadcast, and then one prohibition does not take effect upon another, and we will not violate the prohibition of murder.

Well, speaking more seriously, what emerges from the quotation here is that in his view the problem is mainly the absence of authority (for he too knows that there are death penalties in Jewish law, and that there is the law of the pursuer, and so on). But if we are already invoking the halakhic problem, is there no problem in killing a non-Jew? Is there authority for that today? Does he think that laymen can do that under the doctrine of acting as the agents of the ordained judges?[2] Unfortunately, this is indeed fairly common, but does that involve financial loss (see Gittin 88b and Bava Kamma 84b)? And with Jewish terrorists it is not so?

Perhaps Rabbi Yosef used halakhic terminology here only as a manner of speech, not very precisely, when what he really meant was that the act is unworthy and unreasonable. But why not? If these are indeed Jewish terrorists, then the law of the pursuer applies, and it is permitted and required to kill them. And if they are not pursuers, then it is forbidden to kill even a non-Jewish terrorist. True, the demagogic comparison between Arab and Jewish terrorists does not hold water, since the death penalty is intended mainly to deter when there is a group phenomenon that enjoys social backing and is hard to overcome. That is not exactly the situation among Jews (those who murder there, unlike the graffiti sprayers, are very few, and certainly they do not enjoy social-public backing except on esoteric margins). But if so, he should have stated this very reasoning itself, and not spoken about a halakhic prohibition and a question of authority. If so, that does not seem to be what he meant.

It is possible that the use of halakhic terminology, when in fact what is involved is an argument based on political-common-sense considerations, is meant to show the holy public that Jewish law includes everything, and has a position on every matter. We saw a similar phenomenon, and no less grotesque, in Column 84, where I cited rabbinic remarks about state's-witness deals. Such a determination in our context has added value, since it implies that on such a question one should turn to rabbis, for it is a halakhic question. Or perhaps the Chief Rabbinate will even deliberate and determine executions?!

Let us look a bit more closely at this question of authority. I have an opportunity here to make a very fundamental remark about Jewish law and its development.

So what does Jewish law really say?

Jewish law forbids killing a Jew: You shall not murder ('You shall not murder'). It even subjects the murderer to the death penalty. And lo and behold, our enlightened and egalitarian Jewish law also forbids killing a non-Jew, though this time without imposing the death penalty on the killer, by virtue of the verse Whoever sheds human blood, by man shall his blood be shed ('Whoever sheds the blood of man, by man shall his blood be shed'). Well, not quite. His blood is not in fact shed by man. See Maimonides, Laws of Murder, 2:11. So who, after all, is permitted to kill another person? Either a rabbinic court because of an offense that incurs death (or as extra-legal punishment), or any ordinary person in a case of a pursuer. That is all.

We must now ask whether the terrorists under discussion here fall under the category of a pursuer or not. At first glance, no, because there is no direct and immediate state of pursuit here that would allow their killing (we are speaking about the death penalty, not about preventing a terror attack and saving lives). Moreover, the alternative is imprisonment, so the future killing will be prevented one way or the other. Therefore, it seems that this is not a case of the law of the pursuer in its plain sense. Rabbi Yosef certainly thinks so, for it is hard to dispute the authority to apply the law of the pursuer in our time. But if this is punishment and not the law of the pursuer, then there is no possibility of imposing such a penalty either on Jews or on non-Jews. And if this is punishment not strictly according to the law, then it is possible both with regard to Jews and to others.

Expanding the law of the pursuer

It may be argued that the imprisonment of terrorists is problematic, because it does not constitute deterrence for future terrorists, and in the end many of them are released in one deal or another and return to their constructive activities. Moreover, there is no reason to imprison them if they themselves declare that they intend to kill if only they can. This is a permanent potential pursuer.

Nevertheless, it seems that despite all this, this is not an ordinary case of a pursuer, for one can save him by injuring one of his limbs (the victims can be saved through imprisonment, if only care is taken not to yield to Palestinian demands, which usually does not happen). If so, a layman is forbidden to kill these terrorists. But by reason alone it seems that such considerations do contain some dimension of pursuit, enough at least for a rabbinic court to determine for them a death penalty not strictly according to the law.

An example is the permission to kill a Jew who informs on the property of his fellows (see here, chapter 6). This permission is based on the law of the pursuer, but in plain terms there is not really a danger to life there (some have spoken of indirect danger, but in my humble opinion even that is implausible. It is permission to kill because of the pursuit of money). The question is what rabbinic court can do this. By reason alone it seems that it is the relevant court in every generation, and there is no need whatsoever for ordained judges and a Sanhedrin. I would note that the killing of one who informs on property originates in the Talmud (Bava Kamma 117) and is brought by the decisors, but it was not established as Jewish law by a Sanhedrin. It was established in an era when there were no longer ordained judges (in Babylonia) and capital cases were not practiced.

All this is with regard to a non-Jewish terrorist. But with regard to a Jewish terrorist I have already noted that the situation is different. There it does not seem that there is an issue of pursuit, since there is no obstacle to putting him in prison as long as he poses a danger. There too there is no social backing, and no danger that he will be released, and all that I described regarding the Palestinians does not apply. But here too the problem is that generally there is no justification for killing him, not that there is no authority to do so, as Rabbi Yosef said. If he thinks there is justification and the whole problem is only authority, someone should update him that if there is indeed a need for it, there is no problem of authority here at all.

What rabbinic court can do this? Who today is authorized to punish extra-legally? The Chief Rabbinate?… Well, I was joking, of course. My claim is that one does not need a rabbinic court at all in order to do this. This point requires further clarification, for it has deep implications for Jewish law and its meaning. I therefore now turn to it.

Authority of a rabbinic court to punish extra-legally

First, one should know that the authority of a rabbinic court to punish not strictly according to the law exists even today. In the Shulchan Arukh, Hoshen Mishpat sec. 2, it is written:

Any religious court, even if they are not ordained in the Land of Israel, if they see that the people are steeped in transgressions (and that it is an exigency of the hour) (Tur), may judge cases involving capital punishment, monetary penalties, and all forms of punishment, even when there is no complete testimony in the matter. And if he is violent, they beat him by means of gentiles.(And they have the authority to declare his property ownerless and destroy it, as they see fit, in order to repair the breaches of the generation) (Tur in the name of Maimonides in chapter 24 of Sanhedrin). And all their actions must be for the sake of Heaven; specifically, the leading sage of the generation, or the representatives of the city whom the religious court appointed over them.

Gloss: And this is the practice everywhere—that the representatives of the city in their city are like the supreme court: they administer lashes and punishments, and their declaration of ownerlessness is valid, in accordance with local custom; even though some disagree and maintain that the representatives of the city do not have such authority, but only to compel the community regarding what had previously been customary or what they accepted upon themselves with everyone's consent, while they are not permitted to change anything in a matter where there is gain for one party and loss for another, or to confiscate property without everyone's consent (Mordekhai, chapter Ha-gozel Batra), nevertheless, the local custom is followed; all the more so if they were accepted for every matter—so it seems to me (and see Yoreh De'ah, siman 228, the laws of communal enactments and bans). The later authorities wrote in their responsa that one who became liable for lashes should pay forty gold pieces in place of lashes (Mahari"v, siman 147, and Maharam of Regensburg); and this is not stated as strict law, but rather they ruled that way as a temporary measure. However, the religious court has the authority to flog him or take money as they see fit, according to the circumstances, in order to make a protective fence around the matter (and see above at the beginning of siman 425 in the gloss).

Its words speak with perfect clarity: this authority includes authority to kill, to impose corporal punishments, and to confiscate property. True, it is written that what is required here is a rabbinic court whose standing is clear (the greatest of the generation, or those appointed to that role by the public). The Chief Rabbinate? Well, again, I was joking.

The authority to punish not strictly according to the law is agreed upon and well known, but this is a law whose source is somewhat obscure. From where is this exceptional authority learned? There is room to say that its basis is reason, for without it our situation could be bleak. There are situations in which the public must make difficult decisions, and it is not reasonable that it be unable to do so because of technical problems. Yet on closer inspection it seems that this law does have a source in the laws of the king.

The king's powers

The Ran, in his homilies (Homily 11)[3], points out that in Jewish law there is a duplication between two legal systems: that of the Sanhedrin and the courts beneath it, and that of the king. He innovates that the king also has judicial authority (and not only governmental authority), and that the role of his judicial system is to close breaches that pure Jewish law (which is adjudicated in the rabbinic court) cannot deal with. My starting point is that this is in fact exactly punishment not strictly according to the law. If so, in the original halakhic arrangement this authority was entrusted to the king and not to the rabbinic court.

The historical accident

Now think of a situation in which the entire government and Knesset are killed in a plane crash (as many hope will happen. It is worth seeing here for a similar case). Clearly, in such a situation another authority would take over at least temporarily their powers (for example, the Supreme Court) until things were set in order again. Anarchy is certainly not an option.

It seems to me that this is exactly what happened in the history of Jewish law as well. At a certain stage there was a historical accident and kingship ceased in Israel. The king's plane crashed. Naturally, the powers were transferred to the Sanhedrin (which is why the presidents of the Sanhedrin from Hillel the Elder onward were from the House of David), and thus it came about that the powers that were originally entrusted to the king were handed over to the Sanhedrin.

What powers are we speaking about?

What powers are involved? For example, powers of an executive branch (the rabbinic courts repair the roads during the festival season—Ministry of Transportation. Presumably, originally this was the king's task). Another example is the authority to punish not strictly according to the law, which, as noted, was originally entrusted to the king. A third example, in my view, is also the authority to appoint judges. The appointment of a judge must take place on two planes: a. professional ordination, by ordained rabbinic courts. b. governmental authority that appoints him to serve in practice as a judge. Exactly as in the law today there is professional certification granted by legal institutions, and there is an appointment made by the Knesset or the government to serve in practice as a judge. This duality can be seen in the Talmudic passage at Sanhedrin 5a (there there is a dispute between the sages of Babylonia and those of the Land of Israel as to whom each of these two powers was entrusted. See below).

The continuation of the 'accident' story: a look at halakhic inertia

At some stage the Sanhedrin too ceased (a little after the destruction of the Second Temple). What happens in such a situation? The same thing. The sages of the generations took its powers for themselves (which included the king's powers as well). Thus, after kingship ceased and the powers passed to the Sanhedrin, we grew accustomed to the idea that rabbinic authority is responsible also for the king's powers, and, as noted, this includes punishment not strictly according to the law.

From this arose the situation that even when the Sanhedrin had already ceased, the sages of all generations found themselves compelled to make governmental determinations that had nothing whatsoever to do with Jewish law. For example, tax laws, charity collection, arrangements for managing the community (whether one follows the majority, whether there is a veto, who has voting rights as a member of the community, and the like). All these even entered the Shulchan Arukh as if they were legal rulings, despite the fact that they have no connection to Jewish law and were not supposed to be entrusted to decisors of Jewish law. In fact all this is the management of ordinary life, which in origin was entrusted to government, that is, to the king. Later it passed to the Sanhedrin, and when that ceased it passed to its substitutes, the decisors and the local rabbis.

Incidentally, for this reason my view is that all these sections in the Shulchan Arukh and in the decisors have no significance of binding ruling (at most of custom), and there is no reason to resort to the words of the decisors on these matters except as sources of inspiration from which to draw ideas and modes of thought. These determinations have no binding force, and they are not part of Jewish law. Moreover, if I am right, then their study does not require the blessing over Torah study (and in my humble opinion saying that blessing would even be a blessing in vain). The reason we have become accustomed to seeing all these as legal rulings is the involvement of the decisors in these determinations. But as I have argued, this involvement is a result of the historical accident. It is not because these are legal rulings, but because we became accustomed to the halakhic sage as the substitute for the king (in the absence of a secular authority). When communities were formed, and the seven town leaders (the city council) were perceived as a kind of miniature government for the community, a norm arose (as far as I know, again without any source for it) that the consent of an important person (usually the rabbi) was required for their decisions. In my view this is an attempt by the sages of Jewish law to preserve the model in which governmental decisions are entrusted to them.[4]

It turns out that there was a period of at least several hundred years in Babylonia in which a secular authority again came into being, namely the Exilarch. Therefore he too was descended from the House of David, and the Sages derive homilies of kingship about him from the verse The scepter shall not depart from Judah ('The scepter shall not depart from Judah') (see Sanhedrin 5a). The Jewish public in Babylonia was conducted in a fairly autonomous manner, and to a large extent the Exilarch was the ruler, in the sense of a king, something that had not been familiar in the Jewish people for many years. In such a situation, it would seemingly be called for to restore the original model, that is, to return the 'secular' powers that had been transferred to the Sanhedrin back to the king, and to return to a model of dual government (king and Sanhedrin). And indeed this was apparently the conception of the Babylonians, who demanded a monopoly for the Exilarch in appointing judges throughout the world. Around this matter a dispute over authority arose between Babylonia and the Sanhedrin in the Land of Israel (see the passage in Sanhedrin there). It seems to me that the reason is the pathological situation in which governmental authority and Jewish sovereignty (kingship) arose specifically in exile, in Babylonia. It was strange to give the governmental authority of a king to the head of the exile in Babylonia when there was an active settlement, even if not entirely independent, in the Land of Israel. This was especially so when for centuries we had already grown accustomed to the president of the Sanhedrin as the de facto king. No wonder the whole situation aroused great perplexity and difficult disputes (see the passage there). According to the conclusion of the passage, the Exilarch was indeed recognized as the supreme authority throughout the world (including the Land of Israel), and to some extent we really did return to a two-headed government: the Sanhedrin in the Land of Israel, which grants professional ordination, and the Exilarch, who is the secular government that appoints judges.

Conclusions for our own time

In any case, the gist of the matter is that once there is a recognized governmental authority in our society, it ought to receive back the king's powers from the Sanhedrin. Over the last roughly 2,500 years this did not exist, and so we have somewhat forgotten this model (at least according to the Ran).[5]

And in fact this is basically the situation in our own day as well. There is a secular government of a sovereign state, and therefore, from the standpoint of the original halakhic model, it follows that the powers for governmental decisions, and in particular the authority to punish not strictly according to the law where necessary, are entrusted to the secular government and not to rabbinic and halakhic bodies (whatever our opinion of them may be). It seems to me that many of us are still stuck in conceptions that arose following that historical accident, according to which these decisions are halakhic decisions entrusted to rabbis and halakhic institutions (as with punishment not strictly according to the law, which it has always been customary to entrust to a rabbinic court). From this arises the question of authority, namely whether there is a rabbinic court accepted by the entire generation that can make decisions of punishment not strictly according to the law (see the words of the Shulchan Arukh above).

But in my opinion this is a mistake. These are governmental decisions entrusted to the government and not to the halakhic factor. Punishment not strictly according to the law is entrusted to the accepted government, and the requirement that it be the greatest rabbinic court of the generation is only a requirement of a rabbinic court that temporarily fills the king's authority. But where there is a king (=government), no such requirements need be met. By virtue of being the ruler, he has authority to punish not strictly according to the law as the needs of the hour require. Jewish law, of course, has things to say about who is liable to death and who is not, and determinations of who is authorized to carry this out. The questions of authority mentioned by Rabbi Yosef relate to that. But I argue that they are irrelevant to our discussion. Since what is at issue is punishment not strictly according to the law, today the government (the king) has a parallel authority, and it may punish not strictly according to the law even one who is not liable to death. It does not need permission from the Shulchan Arukh in Hoshen Mishpat sec. 2 in order to do so.

Summary

The conclusion is that even today there is no impediment to a state deciding to execute whichever of its citizens it sees fit. In the opinion of many there may perhaps be moral and democratic impediments, but that is a philosophical-secular debate and has nothing whatsoever to do with Jewish law. To the best of my understanding, Rabbi Yosef is mistaken here: there is no halakhic problem with the state's authority to do this.

It is important to understand that this authority is not contingent on the government acting according to Jewish law, or even on its being a Jewish government at all. The powers of a king exist among non-Jews as well, that is, in every state as such. This is not a uniquely Jewish authority. Therefore, entirely apart from the status of the state (whether it is a Jewish state or not) and from its Torah-halakhic conduct, and in my opinion even apart from the dispute (which in my view is meaningless) about the doctrine that the law of the land is law in the Land of Israel, from a halakhic standpoint every state has authority, and therefore of course the State of Israel as well, to impose punishments, including death penalties, in cases where the needs of the hour require it. If so, contrary to Rabbi Yosef's remarks, there is no question of authority here at all. The discussion can proceed only regarding the need for this and its value.

These matters have important implications regarding the prohibition on secular courts and regarding the status of the state's courts, but this is not the place for that.

[1] This does not mean that on this specific issue Jewish law has nothing to say. On the contrary, the prohibition of murder and the authority to kill are indeed topics about which Jewish law has something to say, though what it says is far from simple, contrary to what many people think.

[2] This is the rule by virtue of which judges who are not ordained (like judges in our own day, after the chain of ordination was broken) can adjudicate various matters.

[3] I am following his approach here because it seems to me the most reasonable. There are, of course, those who disagree with him on various details.

[4] For good reasons. There are communities made up of a collection of wagon drivers, and we have no guarantee that they will make reasonable decisions. This is not like the case of a king and an orderly state and national government, where at least reasonable decision-making is possible (of course, in practice that does not always happen there either).

[5] In my opinion this is one reason the Ran's model seems strange to many sages and ill-fitted to the sources of Jewish law. It is indeed not a good fit, because the sources of talmudic Jewish law took shape at the stage after the 'accident,' when there was no longer a king's authority. We look at the Ran's position through lenses that are themselves a product of the ex post facto situation. It is not correct to judge through them the original halakhic model proposed by the Ran.