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Sunday, February 26, 2012

It's Good To Be King (Part 2: Questions and Methodology)

Some methodological pointers in approaching a sugya

1. Look for clues
Discovering clues in a sugya can often point you in a good direction. One clue that this gemara gives us is that it tells us that both the Tanna Kamma (TK) and Rabbi Yehuda (RY) agree that when a regular court puts someone to death, their estate is inherited by their heirs.  This would imply that this somehow helps in understanding their positions. How so?

2. Formulate questions
Fundamental questions can often open up paths towards developing insight.  In this instance, we can ask why the rebel against the king is subject to a death sentence in the first place.  The only mitzvah he could have possibly violated, it would seem, is the positive commandment to appoint a king.  However, we know that there is no positive commandment whose violation carries with it a punishment of death. What then is the basis for his execution by the king?

3. Find the easier side
In approaching a machlokes, sometimes it is a helpful starting point to determine which side  makes more sense intuitively, and then to ask specific questions on the other side.  In this case, RY seems like the simpler position. According to the TK, why should the person's estate be surrendered upon execution by the King? What did his heirs do wrong? Moreover, why should the TK distinguish between someone executed by the courts or by the king?  Furthermore, the King doesn't even have the power of hefker - taking an individual's money is viewed as robbery. (This is to be contrasted to beis din, where we do say hefker beis din hefker.) So how can he have the right to take the estate?

4. Look at the Rambam
In approaching a new area or a difficult problem, it is often useful to look at how the Rambam formulates a halacha. Especially since he holds like the more difficult position of the TK, we turn to the Rambam in Hilchos Melachim 4:9
ז  [ט] כל הרוגי המלך, ממונן למלך; וכל הממלכות שכובש, הרי אוצרות המלכים למלך.  ושאר הביזה שבוזזין--בוזזין ונותנין לפניו, והוא נוטל מחצית בראש; ומחצית הביזה, חולקין אותה.  כל אנשי הצבא ביחד עם העם היושבין על הכלים במחנה לשומרה, חולקין בשווה--שנאמר "כי כחלק היורד במלחמה, וכחלק היושב על הכלים--יחדיו יחלוקו
What insight can we take from this Rambam?

12 comments:

  1. Was discussing this with a few people over Shabbos. I/we thought the following:
    Yerusha normally passes to the yorshim/heirs. Someone chayav missa by B'D also would follow the standard halacha according TK and RY, the Yerusha passes to the heirs. The implication is that it is not by virtue of receiving a death sentence are one's possessions seized or appropriated.
    It is only in the situation of being sentenced to death by the king is one's possessions taken away from him. It is must be due to something different re. the king's judgement.

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  2. Rashi explains the case of harugei malchus is, rebelling against the king. As mentioned in point 2. above, what is violated when rebelling against the king? If there is no specific prohibition, what is it?
    It would appear there is an institution of malchus, the absolute authority of the land. The torah endorses that (within the limits of halacha, that he doesn't contradict the torah or chachamim). If one were allowed to subvert, or contest the authority, the king's authority would be compromised. Contesting the authority of God and chazal are also subject to capital punishment (in many circumstances).I think the king's authority is reflected in the Rambam's perek 4. He's able to collect taxes, conscript people into his army, etc. within certain limits and rules set up by the torah. If someone rebels against the king, the king has the right to kill him (Rambam hilchos Aveilus 1:9).
    I don't recall a source (maybe someone can help me on this), but there are two types of harugei malchus 1. moreid bemalchus, 2. someone who killed al pi eid echad, or other cases where one escapes being killed by bais din on a technicality. It appears from the 2nd case that the responsibility stems from the king's responsibility to execute mishpat
    According to the TK, the person (harugei malchus)is killed under the rubric of Rights of the king, accordingly it is not just the person's life that is given over to the king, but his life and his possessions. Therefore, the king may be kill him and take his possessions. According to RY, the moreid bemalchus is chayav under the rights of the king, but the king's action of killing him is similar to the Bais din killing someone. It is under his responsibility of maintaining mishpat. This is a separate responsibility, not under the same umbrella as responsiblities of the king. In other words, if the Rambam held like RY, he would not have had the halacha of harugei malchus in perek 4, but elsewhere. Because the killing of the harug is similar to al pi bais din, the yerusha is unchanged and goes to the heirs

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    1. good chiluk, but can you make the TK clearer. why does it follow that "the person (harugei malchus)is killed under the rubric of Rights of the king, accordingly it is not just the person's life that is given over to the king, but his life and his possessions. Therefore, the king may be kill him and take his possessions"?

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    2. It would be helpful to try to unify the two, the person's life and his possessions into one whole, but I'm having a hard time going any further with it.

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  3. Continuing from last post...

    I would actually posit the opposite.

    Having property is not a function of him being a citizen, rather one can have property and not be a citizen, just like nomads. Therefore his family keeps the property even if he gave up his citizen status.

    However these two problems of killing with one eid and rebelling exist on a different plane, namely going against law and order. Meaning, a king besides being the leader of the nation(as one aspect of government) also enforces law, and denies that idea by rebelling against him. Similarly killing someone stam shows a lack of recognition of universal law and order, which is not particular to a functioning society per se.

    Having property while not a function of being a citizen of society is a function of law and order. Meaning... a person acquires land through money and universal ways of kinyan. He however doesn't recognize law and order therefore we act in line with his assessment of reality and we take away his property whose ownership is a function of law and order.


    Meiri understands this machlokes differently.

    Rebelling against a king can mean two things: a) relating to the king as a regular citizen of society. A regular person of society however does have rights to his property, but he's just a stam guy b) relates to him as a king in abstract, but attaches no meaning to concept as evidenced by his rebellion

    If (a) his family keeps the land, because this person also believes that the king has rights to his possessions, he just believes that he his a regular citizen. We act in line with his perceptions of reality.

    If (b) then we take away his land because the concept of kingship does have meaning and show this by taking his land. Normally by biza the king takes a portion for himself and gives the remainder to his citizens who act in line with the rule of the king and fight his battles, here however correct the tone of the situation he takes away all of the property.

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  4. Meo-
    You claim that "He however doesn't recognize law and order therefore we act in line with his assessment of reality and we take away his property whose ownership is a function of law and order."
    Why wouldn't this be the case by harugei beis din as well?

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    1. I hear the question.

      Maybe you can say that what I really mean is that 'law and ORDER' is in the sense that there are consequences for your actions. When you kill with one eid for example there are no direct consequences because you might not be killed unless the king decides to kill you. By killing with two witnesses you recognize 'law and ORDER' because you commit the crime with an understanding that you will be put to death after you commit the crime. It's killing someone with a certain attitude about the action. When another nomad kills another nomad, even though it doesn't affect a society, it goes against the universal understanding of law and order that you can't kill another person without any consequences to your actions. Perhaps...

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    2. Why do you assume there is any difference whether the killer has the status of "part of society/ submits to law and order"?

      Plus, killing in front of one witness does not (necessarily) imply that it was designed that way by the killer. Whether there is one witness or more affects Bais Dins authority, it does not (necessarily ) affect or define the nature of the evil act.

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    3. You should be mindful to distinguish between a) necessary inferences ( assumptions) ;
      b) possible/compatible assumptions; and
      c) impossible /incompatible (which is really the same as a), above)

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    4. Anonymous

      you-
      Why do you assume there is any difference whether the killer has the status of "part of society/ submits to law and order"?

      me-when he commits murder it has consequences on two planes. a)it ruins a functioning society, therefore he is mafkia himself from the class of citizen, since he is actively destroying the society. That however has no impact on ownership of property, therefore it goes to the yorshim. b) It also is an issue that mtzad a universal understanding between people you can't kill people, which even exists with nomads who are not part of society. Therefore ownership also which is a function of kinyan and exchange of money which also exists with nomads is a function too of universal law and order. Therefore he loses his rights to ownership because he is not acting in line with the reality of universal laws ie. murder. I think that is the difference. I hope I'm clear. Thanks for the feedback.

      you-
      Plus, killing in front of one witness does not (necessarily) imply that it was designed that way by the killer. Whether there is one witness or more affects Bais Dins authority, it does not (necessarily ) affect or define the nature of the evil act.

      me- I think the issue is, is that there is no 'order' in the sense that there are no consequences to the action in question(murder.) When there are no consequence so he goes against the 'order' of things, which dictate that there should be consequences. It's not the attitude per se which makes the act not line with 'order' rather the action is in itself not consequential, which is not a normal result of murdering someone. I hope I'm clear.

      Nick-are you asking a question on my idea, if yes, I'm not sure what your referring to by the 3 categories. Thanks.

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  5. I noticed that the Rambam speaks about the King gaining the spoils of war in our Halacha. Could we say that if someone rebels against the king then he is considered an enemy of the state, forefeits his citizenship and the king has the rights to his estate. (Simliar to the spolis of war)

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    Replies
    1. exactly...the rambam really gives you a clue for how to think about it

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