This week’s alumni dvar torah is by Yedidya Naveh
The mishpatim described in Parashat Mishpatim include commandments that fall into familiar domains of law such as criminal law (Exodus 21:12-17), torts (ibid 18-37, 22:1-14), family law (ibid 15-16), fiscal law (ibid 24-26), procedural law (ibid 23:1-3, 6-8), and agricultural law (ibid 10-11), as well as some less familiar ones such as slave law (ibid 21:1-11). Some ritual law is also included (22:28-30; 23:12-19). Together, these comprise many of the types of law necessary for any just society.
However, even the aggregate of all the mishpatim outlined in the Torah is insufficient for the administration of a polity. For example, any society with motor traffic must have traffic regulations, but the Torah enumerates neither traffic regulations nor any clear precedent for formulating them. If so, the question arises: Who has the responsibility to fill in the legal gaps left by the Torah? Who has the authority to formulate the additional laws necessary and proper to the function of a Jewish state?
The most famous answer to this question is offered by Rabbeinu Nissim of Gerona (Ran):
מינוי השופטים היה לשפוט משפטי התורה בלבד, שהם צודקים בעצמם, כמו שאמר ושפטו את העם משפט צדק, ומינוי המלך היה להשלים תיקון סדר המדיני, וכל מה שהיה מצטרך לצורך השעה. -דרשות הר”ן הדרוש האחד עשר
The appointment of judges was for adjudicating the laws of the Torah, which are just per se, as [the verse] states: “And they shall judge the people with righteous judgment. [Deuteronomy 16:8]” And the appointment of a king was to perfect the institution of public order and everything necessary for the need of the hour. (Derashot HaRan 11)
According to Ran’s hypothesis, judges (read: rabbis) are responsible for interpreting and judging only the laws of the Torah, which constitute absolute justice. Since absolute justice is insufficient to maintain public order, the king has the dirty work of legislating ordinances that are necessary at the time, if not truly just. This thesis is often invoked as a rabbinic support for doctrines such as separation of powers and separation of church and state, or as justification for a secular legal system in a Jewish state.
However, Ran takes a step back from this thesis in addressing a powerful prooftext against his claim, the talmudic dictum that “בית דין מכין ועונשין שלא מן התורה / a court may administer lashes and punishments not in accordance with the Torah” (Sanhedrin 46a). This appears to lay responsibility for extra-legal ordinances with the judges, not the king. In answer, he first suggests that this statement applies only where there is no king. This assertion is difficult in light of the Talmud’s citation of the principle with regard to Shimon ben Shettaĥ, who hanged eighty women in a single day under the Hasmonean dynasty (Sanhedrin 45b), and Rambam (H. Sanhedrin 24:4) apparently disagrees, since he makes no mention of such a caveat.
Alternatively, Ran owns:
אפשר עוד לומר שכל מה שנמשך למצות התורה, בין שהוא כפי (הפשט) [המשפט] הצודק, בין שהוא כפי צורך השעה, נמסר לבית דין… אבל תיקונם ביותר מזה, נמסר למלך, לא לשופט…. נמצא ענין המשפט מסור רובו ועיקרו לסנהדרין, ומיעוטו אל המלך. -שם
One may also say that all ramifications of the commandments of the Torah, whether according to the just law or according to the need of the hour, are the purview of the court… but their ordering beyond this is the purview of the king, not the judge…. Thus, the matter of law is delegated in its majority and principally to the Sanhedrin, and in its minority to the king. (Ibid)
In sum, according to Ran himself, the legislative powers of the king are heavily circumscribed. He may formulate only ordinances that are not subject to Torah law or necessary for its application. If so, even traffic ordinances are arguably rabbinic domain, since they are necessary to fulfill the commandment: “ונשמרתם מאד לנפשתיכם / Take ye therefore good heed unto yourselves” (Deuteronomy 4:15).
From those who have read until the end, I am interested in hearing historical examples of laws issued by Jewish kings or political leaders who were not also judges (either in statutory form/takkanot or any ruling that could constitute some precedent within a Jewish “monarchic” legal tradition) from the Bible or Rabbinic Literature before the Middle Ages. I cannot think of any myself.
Yedidya Naveh (SBM 2010, 2011) is a graduate of Yale University and a rabbinical student at Yeshivat Maĥanayim