Sanhedrin 037
|
BET MIDRASH VIRTUALI
of the Rabbinical Assembly in Israel
RABIN MISHNAH STUDY GROUP
|
|
|
Today's shiur is dedicated by Ze'ev Orzech to the memory of his mother, Serla bat Hinde ve-No'ah, z"l, whose Yahrzeit occurs tomorrow, 14 Sivan.
|
|
וּמוֹצִיא לְמִלְחֶמֶת הָרְשׁוּת עַל פִּי בֵית דִּין שֶׁל שִׁבְעִים וְאֶחָד. וּפוֹרֵץ לַעֲשׂוֹת לוֹ דֶרֶךְ, וְאֵין מְמַחִין בְּיָדוֹ. דֶּרֶךְ הַמֶּלֶךְ אֵין לוֹ שִׁעוּר. וְכָל הָעָם בּוֹזְזִין וְנוֹתְנִין לְפָנָיו, וְהוּא נוֹטֵל חֵלֶק בָּרֹאשׁ.
[The king] may embark upon a political war with the consent of the Great Court of Seventy-One. He may compulsorily sequestrate private property to provide access and this may not be contested. The Royal Highway has no limits. All the people may take spoil; they present it before the king who is the first to take his allotment.
EXPLANATIONS:
1:
For the sake of clarity, I have divided this mishnah into smaller sections according to the presentation in the Talmud. The subject of this mishnah is, of course, connected with the rights of the head of government. 2:
What is a Compulsory War? – This is a war against the seven [Canaanite] nations [dispossessed by the Israelites upon their entry into the Promised Land], a war against Amalek, and assisting Jews against any enemy attacking them… An Optional War is a war being fought against all other peoples in order to enlarge Israel's borders or to enhance his greatness and reputation. To wage a Compulsory War the king does not need to receive the consent of the Court, but takes the initiative and compels the people to be drafted. However, to wage an Optional War he must obtain the consent of the Court of Seventy-One.
3:
Our mishnah states that the government "may compulsorily sequestrate private property to provide access". I have deliberately rendered this phrase so as to make it possible to understand according to two separate viewpoints. Rashi [France, 11th century CE] understands our mishnah as giving the king the right to sequestrate someone's private property in order to give him [the king] easy access to his [the king's] property, "his field or his vineyard". Rabbi Ovadya di Bertinoro [Italy, 15th century CE] in his famous commentary on the Mishnah follows Rashi. However, this interpretation is not required by the context. Much more likely, it seems to me, is the understanding of Rambam [ibid, 5:3] that connects this phrase with the later one which states that "The Royal Highway has no limits":-
[The king] may sequestrate [private property] in order to build a road [for his troops] and this may not be contested [by the property's owner]. The royal highway has no limits, but [its width and length] are determined by his needs and in order that it be straight, so that he may not have to detour [to avoid private property] on his way to war.
:4 There are two main Biblical sources concerning the rights and privileges of the king [government] of Israel. The first is in the Torah [Deuteronomy 17:14-20}:-
When you reach the land … possess it and settle it, should you say 'I shall appoint me a king like all the nations around me', you must appoint a king over you that God chooses. He must be one of your brethren and you may not appoint a non-Jew over you…
However, the exact meaning of this paragraph is unclear. Some commentators [Avraham Ibn-Ezra, North Africa, 11th century CE, Yitzchak Abrabanel, Spain, 15th century CE] understand the Hebrew "should you say…" as indicating that the appointment of a king is made only if the people demand it. Most commentators, however, read the phrase as "you should say…" indicating that a king must be appointed.
The second Biblical source is in 1Samuel 8:11-17, where the prophet Samuel is trying to dissuade the people from demanding a king:-
This is the manner of the king that will reign over you: he will draft your sons to serve in his chariots and cavalry… He will appoint overseers of thousands and fifties to do his plowing, reap his harvest and manufacture his armour and vehicles… He will draft your daughters to be cooks and bakers… he will confiscate your fields, vineyards and good olives and present them to his servants… He will tax your produce to pay his eunuchs and servants… he will draft your own servants and maids, your young men and your donkeys for his own purposes… He will tax your livestock and you will be his servants…
On this latter passage also there are differing views in the Gemara [Sanhedrin 20b]. Rabbi Yosé is of the opinion that "everything mentioned in the 'manner of the king' is the king's legitimate privilege"; whereas Rabbi Yehudah [bar-Ilai] is of the opinion that "Samuel only said all of this in order to threaten them" and dissuade them from continuing with their demand for a king. However, from the strictly halakhic point of view the matter is clear and follows the opinion of Rabbi Yosé. Furthermore, "Israel was commanded three mitzvot to be fulfilled upon taking possession of the Land: to appoint a king, to destroy Amalek and to build the Bet Mikdash". And the Gemara adds: "in that order".
5: Naboth [Navot] had a vineyard right next to the palace of King Ahab [Aĥav] in Samaria [Shomron]. Aĥav asked to buy the property from Navot in order to add it to his vegetable garden. Navot refused the offer since the vineyard was ancestral property which he was not at liberty to dispose of. Aĥav sulked. His wife, Jezebel [Izevel] got Navot executed on a trumped up charge of blasphemy, thus enabling Aĥav to take possession of the vineyard. The Tosafists [Sanhedrin 20a] raise an interesting question: if the government is entitled to sequestrate any and all property for its own needs why is Aĥav roundly condemned by the prophet Elijah in connection with the vineyard of Navot? The Tosafists suggest that there was a misunderstanding: when Aĥav offered to buy the vineyard Navot understood that this was a normal transaction to which he could either agree or disagree. They also offer some other suggestions. It seems to me that all these suggestions are extremely weak. In his commentary on the passages from Rambam that we have quoted earlier, Rabbi Yosef Caro [Eretz-Israel, 16th century CE] states that the right of the king to sequestrate private property is only for state purposes, not in order to answer his own private needs. It seems clear from the context that Aĥav knew full well that he had no right to sequestrate the property of Navot, and that is why he offered to buy it. And surely, the righteous indignation of Elijah against Aĥav and Izevel is because of the (judicial) murder of Navot. |