(2004/5765)

This week, we shall analyze an important Halacha and a related story in the Gemara, which has profound implications for the manner in which Torah-observant Jews relate to Medinat Yisrael.  We shall focus on the question of Beit Din imposing its authority on a Jewish government in Eretz Yisrael that is not fully committed to Torah principles and authority.  We shall also analyze this issue in light of the conflict between Rav Shimon ben Shetach and Yanai HaMelech that is recorded in Sanhedrin 19a-b.  Our discussion of this issue is based on Shiurim that I delivered to the 5764 “Y9” Gemara Shiur and I am indebted to the Talmidim who contributed many insights. 

The Mishna – Checks and Balances in a Torah Government

The Mishna (Sanhedrin 18a) states that Beit Din may judge and impose its authority upon the Kohen Gadol.  This seems to be an example of the desirability of having checks and balances built into a Torah government.  Indeed, one might understand the Ramban’s (commentary to Bereshit 49:10) severe criticism of the Hasmoneans (who were Kohanim) for their assuming the role of Melech (king), in this light.  When the Kohen Gadol also serves as king, the separation between powers is diminished and the necessary checks and balances between the various leaders of Am Yisrael are impaired (see Derashot Haran 11, where the Ran discusses the checks and balances between the King and Beit Din and Rav Aharon Lichtenstein’s Leaves of Faith Part Two where he devotes an entire chapter to discussing the interaction of religion and state in Medinat Yisrael). 

My Talmid Josh Pollack explains that a Melech will potentially be receptive to Mussar (rebuke) from a Navi because it is understood that this is the role of the spiritual figure in relation to a lay leader.  However, a Kohen Gadol will be far less likely to be receptive to rebuke as he himself is a spiritual figure.  The Kohen Gadol will likely view a Navi as a competitor and be less receptive to his message than a Melech who is not a spiritual leader. 

Josh adds that the desired separation between the powers of a Kohen Gadol and the Melech might be similar to the Torah’s division of roles and power between men and women.  He added that it might also teach that the powers of the Shul Rabbi and president be separated, another example of the importance of separating between the sacred and secular (Havdalah Bein Kodesh Lichol).  We should briefly note that Havdala is a very fundamental Torah value as we find that in each of the seven days of creation, Hashem makes some sort of separation.  It is one of Hashem’s primary methodologies that He used in Creation (Rashi to Breishit 2:2 might be understood in light of this insight into the methodology of Creation).

Moreover, my students noted that once a Kohen Gadol assumes political leadership and power he would be an entirely ineffective Kohen Gadol.  The effectiveness of a Navi in Tanach emerges from the fact that he was politically powerless and thus objective in his teachings.  If a Navi assumes political power, he loses his credibility (except for Moshe Rabbeinu and a very few other exceptions).  The same might apply to a Rav.  My students added that women in Tanach in many cases exert profound influence (such as Chanah who envisioned the rise of a Melech, see Shmuel 1:2:10).  Women exerted such influence precisely because they had no political power (Paroh’s daughter is another example, as is Bat Sheva’s influence over Shlomo Hamelech as described in Sanhedrin 70b).     

It seems that the Torah fundamentally agrees with John Locke’s celebrated assertion that “absolute power corrupts absolutely.”  This attitude is somewhat reflected by the Halacha (Shulchan Aruch Yoreh Deah 156:3) that states that Tzedaka is not collected by less than two individuals and is not distributed by less than three people.  In fact, the Shulchan Aruch states, “No communal authority regarding monetary issues is imposed with less than two individuals.” 

Similarly, the Mishna (Avot 4:10) strongly advises (see Tosafot Sanhedrin 5a s. v. Kigone Ana) against judging alone as only Hashem is capable of judging alone.  Thus, a hallmark of a Beit Din proceeding is the presence of three Dayanim (rabbinic judges) to decide a case (although one judge may adjudicate a dispute in case of need, see Shulchan Aruch Choshen Mishpat 3:2).  In fact, the Gemara (Yevamot 121a) lauds the practice of Rabbis consulting each other before issuing rulings (especially ones of great importance) citing the Pasuk in Mishlei (11:14), “Salvation is found when one seeks much counsel.” 

However, the Mishna states that Beit Din does not judge a king.  This appears very difficult in light of the many instances in the Tanach where a Navi (prophet) rebukes a king, such as the severe criticism directed to Shaul HaMelech by Shmuel Hanavi and Natan Hanavi’s strong rebuke of David Hamelech.  Accordingly, the Gemara (Sanhedrin 19a) limits this ruling of the Mishna to “Jewish kings” or non-Davidic kings, but does not apply to the “kings of the house of David. ”  The Rambam (Hilchot Sanhedrin 2:5) explains that we do not judge non-Davidic kings who do not submit to Torah authority “lest trouble result.”  The Rambam in Hilchot Melachim 3:7 adds that the non-Davidic kings are arrogant, and seeking to impose Torah authority upon them will cause “trouble and losses” to the cause of Torah. 

My Talmid Alex Itzkowitz notes that the term “kings of the house of David” does not refer specifically to the family of David HaMelech.  Rather, it is a genre of kings who submit to Torah authority (the Gemara presents David as the paradigm for kingly behavior).  His proof is that Shmuel Hanavi criticized Shaul HaMelech in Shmuel I Chapter 15 and the latter accepted the criticism (see, though, Shmuel I 16:2; although this may have been after Shaul Hamelech became mentally ill).  Thus Shaul Hamelech would appear to be included in Malchei Beit David for this purpose (for further exploration of the distinction between Davidic and non-Davidic kings, see the Kesef Mishneh and Lechem Mishneh to Hilchot Melachim 3:7).   

The Rambam’s Evaluation of Jewish Governments that do not Accept Torah Authority

In 1985, I engaged a prominent Chareidi educator in a conversation concerning the values of Religious Zionism.  I asked him what he thought of Rav Aharon Lichtenstein and Rav Yehuda Amital’s inference from the Rambam (Hilchot Chanukah 3:1) that among the reasons we celebrate Chanukah is the restoration of Jewish sovereignty (Malchut Yisrael) over Eretz Yisrael for more than two hundred years.  Rav Amital and Rav Lichtenstein observe that most of the Jewish rulers at this time, such as Herod, were hardly ideal leaders from a Torah perspective.  Accordingly, Rav Amital and Rav Lichtenstein conclude that the Rambam believes that the restoration of Jewish sovereignty over Eretz Yisrael is sufficient cause to celebrate even if the Jewish leadership is far from ideal from a Torah perspective. 

The Chareidi educator replied that the Jewish kings at that time were at least submissive to the Torah authorities of their time.  I replied that our Mishna and Gemara in Sanhedrin show that the kings in the time of Bayit Sheini (the Second Temple) were hardly submissive to Torah authority (they even killed Torah authorities, see Kiddushin 66a and Bava Batra 3b-4a).  Although the Chareidi educator did not have an answer to my point, I defend the Chareidi perspective (they follow Rashi who seems to disagree with the Rambam) in an essay that we published last year in Kol Torah in honor of Yom Ha’atzmaut. 

The Conflict between Rav Shimon ben Shetach and Yanai Hemelech

The Gemara presents a story to illustrate why we do not judge Jewish kings who do not submit to Torah authority.  The Gemara relates an incident where a slave of Yanai Hamelech killed someone.  Rav Shimon ben Shetach said to the other Rabbis, “Let us put our eyes to him [Yanai] and judge him”.  It is important to note that Rav Shimon ben Shetach was Yanai’s brother-in-law (he married Yanai’s sister) and that the two had a tense relationship (see Berachot 48a and the Margaliot Hayam commentary to Sanhedrin 19a).  Rashi (s.v. Tenu Eineichem; as noted by the Margaliot Hayam ad. loc.) indicates that Rav Shimon ben Shetach, who was the Av Beit Din (Chief Justice), ordered the other Dayanim (rabbinic judges) to judge Yanai, as Rav Shimon ben Shetach was disqualified to judge the case because of his relationship to Yanai. 

The Rabbis proceeded to summon Yanai to appear in Beit Din, writing to him, “Your slave has killed someone.”  Yanai, in turn, sent his slave to Beit Din for judgment.  The Rabbis replied to Yanai that he must also come, as the Torah (Shemot 21:29) requires that the owner of the slave appear in Beit Din when his slave is judged.  Yanai came to Beit Din and he sat instead of standing respectfully before the Beit Din.  Standing while the Beit Din remains seated expresses acceptance of the Beit Din’s authority.  Tosafot (Sanhedrin 19a s.v. Yanai, the second Tosafot with this heading on that page) rule that the litigants must rise during the witnesses’ testimony, as well as during Beit Din’s pronouncement of its ruling (Gemar Din; Shavu’ot 30b). 

Tosafot equate the need to rise during the Gemar Din and during the witnesses’ testimony, as these are critical moments in a trial and a time when recognition of the Beit Din’s authority is of utmost importance.  Rising during the Gemar Din expresses one’s commitment to abide by the Beit Din’s decision.  Rising during the witnesses’ testimony, in turn, expresses one’s commitment to present witnesses who will testify in a completely honest manner.  Accordingly, since Yanai already implicitly signaled his lack of respect towards the Beit Din, Rav Shimon ben Shetach felt it necessary at the outset of the trial to demand that Yanai express his acceptance of the Beit Din’s authority. 

We should note that Yanai’s behavior is reminiscent of a rebellious student who cannot blatantly disregard his teachers but will “push the envelope” and irritate his teachers and do whatever he can “get away with” as a subtle way of resisting authority.  It appears that Yanai could not “get away” with blatantly disregarding the Sanhedrin.  Instead he resisted the Beit Din’s authority in more subtle ways.    

Rav Shimon ben Shetach then ordered Yanai to stand, as the Halacha (see Devarim 19:17 and Shavuot 30a) requires.  Rav Shimon ben Shetach explained that standing is not done to respect the Dayanim, but rather is an expression of respect to the Creator who is present during Beit Din proceedings (see Devarim ad. loc. and Tehillim 82:1).  Yanai replied that he would rise only when Rav Shimon ben Shetach’s colleagues would request that he do so (recall our suggestion that Rav Shimon ben Shetach was not formally serving as a Dayan in this case because of his relationship to Yanai). 

The Rabbis were petrified of Yanai because he killed Rabbis who did not act submissively to him (see Kiddushin 66a and Berachot 48a; interestingly, Berachot 48a indicates that Yanai was nonetheless observant of Jewish ritual law).  Rav Shimon ben Shetach looked to the Dayanim on his right and his left to see if they would support his demand that Yanai express his submission to Torah authority (this was the essence of this conflict, whether Yanai would submit to Torah authority as David Hamelech submitted to Natan the prophet).  The Dayanim hung their heads low due to their fear of Yanai (see Pitchei Teshuva Choshen Mishpat 12:1 and Rav J. David Bleich’s Contemporary Halachic Problems 2:134-138 for a discussion of whether the Torah command not to fear any man, Devarim 1:17, requires Dayanim to risk their life). 

Rav Shimon ben Shetach then excoriated the Dayanim for being intimidated by Yanai and proclaimed that Hashem would punish them for their lack of faith.  The Gemara records that immediately the angel Gavriel came and killed the Dayanim.  The Gemara also states that as a result of this tragic incident, Chazal decreed that we should not impose Torah authority on non-Davidic kings.  Interestingly, Gavriel also kills Paroh’s daughter’s assistants who protested her resisting her father’s order to kill all Israelite boys (Sotah 12b). 

Next week, we will continue to analyze the dispute between Rav Shimon ben Shetach and the Dayanim with an eye towards contemporary implications.  If any of our readers have any thoughts about the implications of this story to the question of soldiers serving in Tzahal resisting potential military orders to evacuate the Jewish communities of Azza, we would happy to hear from you and consider publishing your thoughts.