Q&A: Courts and the Law of the King
Courts and the Law of the King
Question
Hello Rabbi!
In light of the deficient, corrupt, and improper conduct of Haredi society, which is based on political maneuvering, favoritism, and rabbis’ letter-wars, for a long time I have been wondering about the relevance of a legal system external to Jewish law that would be recognized by it. However, I am very uncertain about several details, which I would like to present to the Rabbi.
As is known, the Ran, in Homily 11, innovated that “it is possible that in some of the laws and legal systems of the nations there may be something closer to the repair of the political order than in some of the laws of the Torah.” But this is no deficiency, since the laws of the Torah “have a great advantage over them, in that they are intrinsically just,” and “the divine flow cleaves to us through them.” The one responsible for that system of laws is the king, and there is no difference between a king of Israel and a gentile king so long as his intent is the ordering of society. The role of the Sanhedrin is “to judge the people with the true judgment, just in itself, through which the divine matter will be drawn to us, whether or not it completely perfects the arrangement of the collective life.” The king’s law is meant to complete that matter, “to perfect the political order and whatever is needed for the needs of the hour.” And it seems that an earlier source for this approach is found in Nachmanides’ commentary on the Torah, Exodus 15:25, according to which “statute and ordinance there are not the statutes of the Torah and its laws, but modes of governance and the ordering of states.” But apparently Maimonides agrees with this idea only regarding the law of a murderer, as the Or Sameach wrote in Laws of Kings 3:10.
And from here to my questions:
- The Ran’s explanation of the place of Jewish law in legal matters is extremely puzzling. What meaning is there to “the divine matter cleaving to us” in commandments such as the law of bodily injury or the law of damages and the like? On the other hand, the understanding that Torah law in monetary matters and interpersonal matters is insufficient to impose the political order necessary for the existence of a proper society, and to prevent injustice and corruption, requires careful study of his words and, seemingly, far-reaching conclusions.
- In light of all this, and together with the words of the halakhic decisors that the law of the land applies even in a democratic regime, as the Hazon Ish wrote in Bava Kamma, siman 10, and Hoshen Mishpat, Likutim 16:5-7, and Igrot Moshe, Hoshen Mishpat part 2, siman 29, and others—does there exist permission, and perhaps even a commandment, to give substantial weight to the court system in Israel, which despite its imperfections is very helpful for political and social order and is no worse than the king’s law of the Middle Ages discussed by the Ran? According to this, how can there be a prohibition against litigating in secular courts, if they too strive for justice and have great importance and a right to exist alongside halakhic law?
- How should one decide questions that combine Jewish law, current affairs, and no small amount of ideology when there are disputes among the medieval authorities (Rishonim) on the matter? It is hard to say that even in such a case we are obligated to rule according to the ordinary rules for halakhic doubts, because if so then Torah law has lost all significance (at least in areas that are not matters of divine worship), and it drags tradition-observant people into total paralysis, making us the small foolish and stupid nation of which Maimonides spoke in Guide for the Perplexed, part 3, chapter 26, as is well known.
- In light of this, is it permitted to serve as a judge in a state court, or is there some distinction between the Ran’s words and our present-day situation that I have not considered?
I apologize for the length, but where they said to elaborate one is not permitted to shorten, and it seems to me that this is a very important topic.
Answer
You did not understand the Ran. In his view (and in mine as well), the halakhic legal system was not meant to achieve justice and social order, but rather the mundane side of the divine matter—that is, religious truth. Exactly like Yoreh De’ah or Orah Hayyim. And the very fact that halakhic law does not achieve justice and order and needs supplementation shows you that it was not intended to achieve them. Establishing a system whose goals are religious rather than legal has a price in terms of ordinary justice and legal order, and that is what the king completes. Today there is a secular government that is not a monarchy, but there is no reason not to treat it as the mundane system of the Ran. That is exactly what the law of the land is, even among gentiles.
Disputes among the medieval authorities are not relevant. One should decide according to one’s own understanding and according to the circumstances. That is also how I am not impressed by all the later decisors you cited. A person must formulate his own position. I also don’t understand what the problem is with applying the laws of doubt here (although in my opinion there is no need for that at all, as stated).
It is definitely permitted to be a judge in such a court, and it is also permitted and necessary to make use of it, and there is no prohibition of secular courts here. But not halakhically—practically. See my article: https://www.google.com/url?client=internal-element-cse&cx=f18e4f052adde49eb&q=https://mikyab.net/%25D7%259B%25D7%25AA%25D7%2591%25D7%2599%25D7%259D/%25D7%259E%25D7%2590%25D7%259E%25D7%25A8%25D7%2599%25D7%259D/%25D7%25A2%25D7%259C-%25D7%2590%25D7%2595%25D7%25A8%25D7%25AA%2525D7%2595%25D7%2593%25D7%2595%25D7%259B%25D7%25A1%25D7%2599%25D7%2594-%25D7%259E%25D7%2595%25D7%2593%25D7%25A8%25D7%25A0%25D7%2599%25D7%25AA-%25D7%25A7%25D7%25A8%25D7%2599%25D7%25A6%25D7%2595%25D7%25AA-%25D7%2595%25D7%25A9%25D7%2599%25D7%259E%25D7%2595%25D7%25A9/&sa=U&ved=2ahUKEwiut_GcweSEAxWtU6QEHUGED1EQFnoECAgQAQ&usg=AOvVaw3acmjB75S6ZmgiRvxOmQx5
And also column 448 and the whole series there.
Discussion on Answer
See column 456 on Jewish law and morality. You assume that there is commitment only to moral values, but that is not so. Beyond that, commitment is not necessarily based on understanding.
If I trust the Giver of the Torah, then I believe Him that there is value in these acts even without understanding them—like a doctor’s instructions that I do not understand. Besides, I am committed to His instructions even if they have no benefit, because He created me and the world (see my article on philosophical gratitude).
As for reasonableness, I referred you to those columns above. You can’t repeat the whole Torah while standing on one foot.
I understood the Ran’s words; what I did not understand is their meaning. My question is: how is it serving God to issue legal rulings that do not allow for proper social life? Your position (in the article you attached) regarding flexible commitment to Jewish law—I do not understand it at all. If there is no absolute commitment in halakhic law, then why should we deal with it at all? Let us judge everything according to our own discretion, turn Judaism into folklore, and be done with it. Of course it is clear that there are external considerations or lines of reasoning that sometimes take Jewish law out of the practical realm or lead to a new legal ruling, but this is always done through interpretation, not “according to our understanding of the circumstances.” If one is convinced that “the ways of the Torah are ways of pleasantness,” then necessarily it cannot be the case that its laws lead to disasters, and on that basis one can discuss every topic, and מתוך the words of the medieval and later authorities decide like the more reasonable views and sometimes even propose new reasoning. In my opinion, this is the position of the medieval authorities, who introduced legal innovations leniently in order to adapt Jewish law to changing reality.
But if we are not committed to the words of the halakhic decisors, why should we be committed to the words of the Sages? If it seems to me that “the fruit of a beautiful tree” is not a citron but a pomegranate or a date, should I then act according to my own position?!
And furthermore, according to your view that morality does not correspond to Jewish law [unlike the view of Saadia Gaon, and apparently also unlike the view of Maimonides], in such a way that you have two systems of decision-making, one of them universal and external to Judaism—how do you explain the role of reasonableness in halakhic ruling? Is not morality the highest level of an argument from reasonableness?! What comes out is an absurd state in which Jewish law, which is not moral, incorporates human considerations even though its essence contradicts the highest human consideration: morality.
And in general, why be committed to something immoral and irrational that can be erased for ‘practical’ considerations?
What is the boundary between the domain in which one should act according to Jewish law and the domain in which one should act according to reasonableness? Does it seem “normal” to you to walk around with the four species, or to put strings on our garments? After all, all the Torah’s laws make us abnormal. And if difficulty of implementation is what decides, then there is no longer any commandment at all to devote oneself to death for sanctification of God’s name.
I am not asking provocatively, but rather in wonder and disagreement …