Shabbat Parashat Emor| 5767
From the works of Hagaon Harav Shaul Yisraeli zt”l - The State in the View of the Nations and in Israel - Notes for an Address (1948) - Part II - From Harabbanut V’hamedina - pp. 277 - 280
[Last time, we saw Rav Yisraeli’s survey of different approaches in the world to the role of a state, as a protector of civil liberties or as a force to strengthen the interests of society or portions thereof. We began to see his explanation of the Jewish concept of the function of the state, which we now continue.]
Two institutions are charged with upholding the rule of law in Israel [ed. note- referring to the Torah approach]: beit din and the institution of kingdom. Beit din’s authority is not only to uphold existing Torah laws but even to legislate at the appropriate time and place. Much of this power is subsumed under the rule of hefker beit din hefker (beit din can expropriate one’s property), which enables beit din to make a variety of monetary innovations to adjust Torah laws. The rationale for such legislative action can be to improve the religious situation or the social one.
Thus, beit din is not a blind watchman of the law. It must determine when upholding the normal rights of ownership is actually a perversion of justice, that which is known as midat S’dom (the attribute of Sodom) or an impediment to public welfare.
The role of the king is described in terms of waging wars and administering justice. In other words, the king’s upholding of the public peace relates both to external and internal threats. It appears that the concept of “the judgment of the king” differs from that of beit din and falls under the category we call dina d’malchuta dina. This extends to all areas where there is an infringement or attack on public welfare, certainly including felonious behavior. In this context, we can understand the idea that “the world stands on three things: law, truth, and peace” (Avot 1:17). Truth refers to the objective truth. Law refers to beit din’s role to uphold rights. Peace refers to the king’s obligation to ensure that the rights to ownership should not turn into a force destructive to society.
The principle of an individual’s freedom and rights has a “living spirit” because it stems from the realization that “they are My servants” and not servants to servants (other human beings). However, the unacceptability of enslavement to others is predicated on the assumption that one is in fact enslaved to his Creator. Therefore, the Torah does not believe in an absolute principle of freedom of conscience. There are certain fundamental values that bind all humans, namely the seven Noahide laws. The Jewish nation is obligated in greater obligations from which no Jew can exempt himself. We believe that a person is capable of recognizing the truth and that only external factors hinder this. Therefore, it is necessary to create conditions which will foster this recognition after Divinely mandated actions are taken.
We do not distinguish in this regard between obligatory areas of action between man and man and between man and his Creator. Without obligations between man and his Creator, it is not possible to have those between man and man. Whatever mitzva plants in our hearts the recognition of the Creator indirectly promotes the idea of equality among mankind whom He created.
We should point out that even the non-Jewish conception recognizes certain boundaries to the freedom to do as one chooses even when it affects the person alone. For example, the law penalizes one who attempts suicide. This law stresses that man is not totally autonomous. The difference of the Torah conception is that not only may one not commit suicide or physical mutilation, but he is not allowed to perform spiritual mutilation either. The hope is that after acting properly, one will come to understand that it is in his best interest. Even if the absence of such a realization, it may be necessary to curtail his negative actions so that he does not contaminate others with his spiritual illness.
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