Sanhedrin 035

9:
Our mishnah states that a king "may not perform the ceremony of Ĥalitzah nor his wife may be involved in this same ceremony; he may not contract a levirate marriage nor may his childless widow may be taken in Levirate marriage by her brother-in-law". The nature of our shiurim being what it is I will once again briefly explain that under normal circumstances, the Torah requires of the deceased's brother to marry his childless sister-in-law in a form of marriage called Yibbum [levirate marriage – from the Latin word for a brother-in-law]. If he refuses to perform this duty for his brother's widow the connection between him and his sister-in-law must be terminated by a ceremony called Ĥalitzah. This ceremony involves the shaming of the reluctant brother by the indignant widow. For discussion in greater detail please see RMSG for 9th to 16th March 1998 (these shiurim can be downloaded from our archives – details at the end of each shiur).

10:
Tanna Kamma propounds the rule that a King may not perform Ĥalitzah. The obvious reason for this is the very nature of the ceremony. The Torah [Deuteronomy 17:15] in establishing the institution of monarchy says "You must set a king over you …" In the Gemara [Sanhedrin 20a] The great Amora Rav interprets this command as implying that "you must be in fear of him" – i.e. treat him with respect. If a woman does everything that is required of her during the Ĥalitzah ceremony (particularly if she expectorates in front of her brother-in-law, the king) she would be contravening the requirement to behave towards the king with respect.

11:
One might think that an important personage has the right, at his own discretion, to waiver his dignity. Indeed, Rabbi Yosef Caro, in his Shulĥan Arukh [Yoreh De'ah 244:14] accords this right of waiver to dignitaries. Rambam [Maimonides] in his Mishneh Torah [Shoftim, Melakhim 2:3] denies a king this right of foregoing his dignity: "even if a king waivers his dignity it is not so waivered" and one does not have the right to behave with disrespect even towards a king who has permitted it. The view of Rabbi Yehudah ben-Ilai quoted in our mishnah obviously does not concur, and would grant a king the right to waiver his dignity at his discretion. That is why he states that "if he elects to perform the ceremony of Ĥalitzah or to contract a levirate marriage this is to his credit" – since he has chosen to waiver his dignity in order to perform a mitzvah of the Torah. Tanna Kamma, who is at variance with Rabbi Yehudah, obviously shares the view that "even if a king waivers his dignity it is not so waivered".

12:
The Rishonim is a term we use to designate rabbis who were active during the eight hundred years that culminated in the publication of the Shulĥan Arukh in 1556. Some of them discuss this question: under what circumstances may a king use his discretion and forego the respect due to him. Rabbi Moshe Isserles says that even if we assume that a king does have the right of waiver, it is only to a certain extent; and certainly he would not have the right to permit someone to expectorate in from of him and say "this is how a man is treated who will not build up his brother's line" [Deuteronomy 25:9]. Another take on this is suggested by Rabbi Nissim Gerondi. He says that even if we assume a king may waiver his dignity in order to perform a mitzvah, that would only be the case where it is he who is performing the mitzvah; in the case of Ĥalitzah it is his sister-in-law that is performing the mitzvah, and she could not be permitted to be so disrespectful to her brother-in-law. A good example of a king waivering his dignity in order to perform a mitzvah is related in the Gemara [Ketubot 17a]. There we are told that on one occasion King Herod Agrippa, who reigned between the years 41 and 44 CE and was the darling of the sages for gestures such as this one, stopped his entourage in order to allow a bridal party escorting a bride to her Ĥuppah right of way. Here it is the king himself who is foregoing his rights in order to fulfill the mitzvah of making a bride happy on her wedding day.

To be continued:

Christian Günther asks: Is the levirate marriage still in use in Judaism?

I respond:

No. While it is still the law, all courts will require Ĥalitzah and will not permit Yibbum.

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Rémy Landau asks:

Would it be possible for you to indicate the Talmudic source which records that The High Priest and the King were barred from the sod-ha-ibbur because the king might favour the longer leap years to offset the costs of maintining armies that were paid annuaries?

I respond:

The source Rémy is looking for is in the Babylonian Talmud, Tractate Sanhedrin, folio 18a. Both the king and the high priest were barred from the council that decided whether the present year needed to be declared a leap-year or not. (Before the introduction of the fixed calendar in 358 CE, this decision was made by a committee of the Sanhedrin in Eretz-Israel.) This decision was to be based upon certain observed phenomena, but obviously there was considerable room for maneuver in the interpretation of the observed phenomena. Since by declaring a year a leap-year one whole month was added both the above functionaries were considered to have too much of a vested interest in the decision for their inclusion to be advisable. The king would approve of adding a month to the year for the reason Rémy has indicated: he would get thirteen months' service from his military while only having to pay one year's salary. The High Priest would disapprove of adding a month to the year. On the following Yom Kippur he would have to strip and bathe several times during the ceremonies: from his point of view the earlier in the year Yom Kippur would fall the better for him (and much less the likelihood that he would catch cold).

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On May 23rd I wrote: We have already pointed out – in the explanation of the previous mishnah – that the principle of reciprocity applies to judgment. Only someone who is liable to be judged himself may sit in judgment upon others. Since, according to our mishnah, a King of Israel may not be put on trial it follows that he may not sit in judgment on others.

span style="font-size: 15px">Art Kamlet asks:

Was King Solomon sitting in judgment in the story of the two women each claiming the same child?

I respond:

Yes. But don't forget that we have already said that the above principle only applies to "Kings of Israel". On May 19th I wrote: The Gemara [Sanhedrin 19a] points out that our mishnah is in clear contradiction of what is implied in a Biblical verse [Jeremiah 21:12]: "[Kings of the] House of David, thus says the Lord: sit in judgment every morning and rescue the theft of the oppressed man's rights…" Therefore, the Gemara makes a distinction between the rights and duties of a king from the legitimate line of David and the rights and duties of a king of any other lineage. The Gemara refers to this latter kind of king as a "King of Israel". It follows that kings of the Davidic line could (and did) sit in judgment and could be arraigned in a court of justice. Solomon was David's son and heir.