God vs The Multiverse

Click here for God vs The Multiverse: a rational argument for the Existence of One God who intelligently designed one universe.

Monday, February 27, 2012

It's Good To Be King (Part 3:Svara)

Following from the methodology points from the last post, we will start by giving a svara for the machlokes according to the first interpretation of Rashi (and that of the M'eiri). Namely, we are assuming that the TK and RH are only arguing about the rebel's estate, but agree that the heirs inherit the estate of a murderer with one witness.

The Rambam ends the forth chapter of hilchos melachim by saying:
שאין ממליכין מלך תחלה אלא לעשות משפט ומלחמות. שנאמר ושפטנו מלכנו ויצא לפנינו ונלחם את מלחמותינו
There are two fundamental duties of the King in the Torah's system; (i) mishpat, or extrajudicial justice. (This is a separate system from the ordinary laws enforced by beis din, and is designed by the King to produce a just and orderly society. This system has it's own laws, procedures, and punishments.  See the story of Shlomo for one example); and (ii) milchama, as head of the military.  The various powers given to the King stem from his two roles of Judge and Head of Military.

RY maintains that sedition is judged as a domestic crime against the King and comes under the דין משפט, the powers of the King in his domestic role as an extrajudicial justice.  Just like the King can execute a murderer based upon circumstantial evidence in this role, so too, he can execute someone who rebels against him and undermines the authority of the monarchy.

According to RY, the estate of those executed by the King is inherited by their heirs, just like those executed by beis din with regular judicial powers.  The fact that the death sentence derives from an extrajudicial authority has no bearing on the monetary rights of the estate.

The TK argues that sedition is judged as a foreign attack against the kingdom and come under the דין כיבוש, the powers of war (see Rambam at the end of the last post).  When a person rebels against the King, he is removing himself from under the sovereignty of the King and establishing himself as his own sovereign.  He is now treated as an enemy combatant.  He is not executed.  He is conquered.

When the King conquers another kingdom he has the monetary rights to the treasury of the foreign kingdom's King (Rambam 4:9).  The rebel is the king of his own little kingdom and his estate is his little treasury.  Therefore, according to the TK, when the King conquers the rebel, the King has rights to the estate.

The above svara is in accordance with our first interpretation of Rashi (and the M'eiri) that the machlokes is only by a rebel, whose sin is against the King. How can we define the machlokes according to the second interpretation of Rashi (and the Rambam) which extends the machlokes to all those killed by the King, even the murderer with one witness?

15 comments:

  1. According to the above sevara, according to the opinion of RY, why is rebelling against the king a chiyuv misah? According to the TK, the sin itself is not one of chiyuv misah, and the person's death is not an onesh per se. But according to RY, if the king is executing the individual as an act of judgment, it would seem that the execution is an onesh. Why is misah the onesh for this person? Additionally, why is the person not tried in beis din?

    ReplyDelete
    Replies
    1. there are 2 systems of mishpat, not only 2 types of judges. the king sets up his own laws (designed to produce a just, orderly society) and the violation of those laws can carry the onesh of misah.
      since this is a seperate system of mishpat, it is only enforced by the king, not beis din.
      is it clear?

      Delete
    2. we changed the beginning of the above post based on your question. we appreciate the feedback.

      Delete
    3. How can you define mishpat as extrajudicial?

      The king is enforcing laws. He is (only) somewhat unemcumbered by the rules of procedure and evidence.

      Can a king kill someone who didn't violate a law?

      The chiluk between an ("enemy combatant") kivush and mishpat is definitely the right step, but the Kings role, or the definition of, mishpat, needs to be sharpened.

      Delete
    4. the definition of EXTRAJUDICIAL from
      http://www.merriam-webster.com/dictionary/extrajudicial

      a : not forming a valid part of regular legal proceedings
      b : delivered without legal authority

      we are using the term in the sense of (a). the kings is certainly a legal authority, he is just not involved in the regular judicial process of the court. there are rules for the system of the kings justice too (i.e. he cant expropriate money as a punishment)

      Delete
  2. What do you think of this approach :

    According to the Rishonim who do not distinguish between the types of harugay malchut, they really maintain that regardless of the offense that results in the King imposing death, the Kings authority to impose the death penalty stems from only one category.

    According to the TK, harugay malchut is authorized by, flows from the right to wage war. The right is not just like Bais din's but without the extra procedural and evidentiary rules.

    The king kills a person who killed someone (with only one witness) the king is not a Super Shofet

    According to RY, it emerges from the kings role/right to impose mishpat. Always. Even in the case of a rebel.

    The rebel and murderer can be killed because they both undermine the rule of law.

    ReplyDelete
  3. i think that is what we are going to say in the next post, except it bothered us about what the rationale for a murderer coming under the powers of war is

    ReplyDelete
  4. According to your sevara for Rashi, according to RY, when the king executes someone for violating his word, it partakes of the extrajudicial royal mishpat. Can you clarify, though, whether the death is a punishment under this system for the action that the person did, or for rebelling against the king? (I am trying to better discern the principles of this justice system that you are suggesting.)

    ReplyDelete
    Replies
    1. the act of rebelling against the king is a crime under this system (if the king has the power to command, there must be an enforcement mechanism for someone who does not obey. that consequence is death)

      Delete
    2. we are going to try to address this issue (albeit indirectly) in the last post

      Delete
    3. This is a little confusing to me...saying that "the act of rebelling against the king is a crime under this system" makes it sound like the punishment is for the rebelling, while "if the king has the power to command, there must be an enforcement mechanism for someone who does not obey. that consequence is death" seems to imply that the punishment is for the violation of the law that the king has enacted itself.
      I guess a concise way of formulating my question here would be whether RY according to Rashi would formulate it as "Moreid Be'Malchus."
      Sorry for the confusion...am I splitting hairs here?

      Delete
    4. its a legitimate question...we are formulating it in a vague way because we're not really sure which way it is...see post number 5 where we discuss this very issue

      Delete
    5. I think I disagree with you on the importance of pursuing this line of questioning. To my mind, this doesn't seem like "taking the issue further," it seems necessary to have a clear understanding of the point itself: What do we mean when we say that the king can execute someone as part of this system of justice?

      Delete
  5. could you clarify your question. what about "the king can execute someone as part of this system of justice" do you not understand?

    you yourself presented two different possibilities in understanding it. we dont know which is correct or if there is another way to look at it. either way, it doesnt affect the basic chiluk of mishpat vs kibbush.

    ReplyDelete
  6. I don't think I can really enhance my question beyond what I've written. I guess that in my opinion it does affect the basic chiluk, since I don't think I have a complete sense of the mishpat side.
    I don't know that this thread needs to go further, since (a) I don't know if this sort of thing lends itself to debate, and (b) you've already begun another topic that I'd like to pursue.
    Thanks for the responses!

    ReplyDelete

In the words of Agur bin-Yakeh: "We welcome all comments, questions, contributions, and critiques - but if you insist on posting anonymously, PLEASE use a pseudonym rather than posting as "Anonymous," since this makes it much easier to carry on a normal discussion. Thank you!"