Naso Vol.10 No.34
Date of issue: 11 Sivan 5761-- June 2, 2001
Prime Minister or Rosh Yeshiva?
by Rabbi Howard Jachter
If the Israeli Prime Minister orders Israeli soldiers to perform a certain task and one's Rosh Yeshiva rules that the task constitutes a violation of Halacha, whom should he follow- the Prime Minister or his Rosh Yeshiva? This question is a relevant issue, as some rabbinic leaders of Religious Zionism have issued Halachic rulings forbidding soldiers to comply if military orders are issued to evacuate Jewish communities in Judea and Samaria, while other Rabbis of Religious Zionist persuasion said that such orders should not be disobeyed. Our exploration of this issue will be based on articles written by Rav Yehuda Shaviv and Rav Dr. Itamar Warhaftig that appears in the fifteenth volume of the Israeli Torah journal called Techumin.
The Torah in Parshat Shoftim describes two institutions of authority. First, the Torah speaks of the Bait Din, the Sanhedrin, whose Torah leadership we must follow. Regarding them, the Torah exhorts us to abide by their rulings, "Al Pi Hatorah Asher Yorecha Vial Hamishpat Asher Yomr Licha Taaseh "(Devarim 17:11). The Torah subsequently speaks of the leadership of a king. The Torah forbids rejecting either of these institutions of authority. In fact, both a rebel against Torah authorities (Zaken Mamrei) and a rebel against political authorities (Mored Bemalchut) can be punished by death. This punishment is so severe, because a rebel against either institution threatens the stability and viability of society. Ramban (Shemot 22:27), in explaining the prohibition Vinasi Biamcha Lo Taor, writes that the Torah forbids cursing any national leader, be he from the Mamshelet Malchut (political authority), or from the Mamshelet Torah, the Torah authority. Let us look at the Rambam for a description of the parameters of these two institutions of authorities.
Regarding the Sanhedrin, the Rambam writes Beit Hadin Beit Din Hagadol Biyirushalayim Ham Ikar Torah Shebaal Peh Vham Omday Horaah Omayhem Chok Umishpat Yotze Yisrael "The Supreme Rabbinic Court in Jerusalem (that has not functioned for many centuries, and will not be reconstituted until the arrival of the Messiah) is the seat of the Oral Law and the center of judicial authority, and the source of all legislation of the Jewish people. On the other hand, the Rambam describes the role of the king as that of waging war and maintaining law and order in society -Ayn Mamlichin Melech Techilah Ela Laasot Mishpat (see Drashot Haran no. 11 for a fuller discussion of the role of the king. For a discussion contrasting the views of the of the Rambam, the Ran, and the Abarbanel, regarding the role of a king, see this author's essay in Bait Yitzchak 5749:142-150).
Accordingly it seems that in the Torah's ideal society, the Sanhedrin administers the legislative and judicial aspects of society and the king constitutes the executive branch of government. It is important that to note that Rav Kook writes in a celebrated responsum ( Svat Mishpat Kohen Siman Kuf Mem Daled) that someone who is recognized by the Jewish people as a leader is to a great extent, the Halachic equivalent of a Nasi or Melech (based on Radvaz, comments to the Rambam Hilchot Melachim 3:8). The importance of political leadership is underscored by Chazal in Pirkei Avot (3:2) who state, Havei Mitpalel Bishlomah Shel Malchus Shealmaleh Miroah Eesh Et Rayhu Chayim Blau (2:3), that we should pray for the welfare of the government of the country in which we reside, for if the government's discipline collapses, then utter pandemonium will prevail. Recent events in the Balkans and Rwanda are unfortunate examples of what Chazal are speaking about.
The question is, though, when does Halacha permit one to disobey the order of a king or another leader. We will focus first on the Halachic sources and then we will proceed to cite several instances in Jewish history in which a king or leader was disobeyed. Ordinarily, a king must be obeyed and the penalty for refusing to do so is death (Mored Bemalchut Chayav Mitah). However, the Rambam (Hilchot Melachim 3:9) writes, based on Sanhedrin 49a, that if a king issues an order to violate Halacha, the king's order should be disregarded. In fact, the Torah (Devarim 17:18-20) requires the king to write a Torah that should be with him at all times in order that he should remember not to deviate from the Torah's laws.
An example of appropriate disregard of a king's order is when the generals of Shaul Hamelech refused to follow the latter's order to kill the Kohanim of Nov as punishment for aiding David when he was fleeing from Shaul Hamelech (Shmuel I 22). On the other hand, Chazal (Sanhedrin 49a) criticize Yoav for not disobeying David's order to have Uriah Hachiti killed. Also, we find Natan HaNavi strongly rebuking David for his conduct with Batsheva and Uriah Hachiti. In addition, the Gemara (Berachot 8a) asserts that Shlomo Hamelech's spiritual level deteriorated because his mentor Shimi Ben Gera was not alive to criticize him. During the period of the second Bait Hamikdash, Rabbi Shimon Ben Shetach strongly urged his colleagues on the Sanhedrin not to be afraid to judge Yanai Hamelech for the murder committed by the King Yanai's servants (Sanhedrin 19a). The Rabbis chided Bar Kochba for requiring his solders to cut off their fingers with their teeth as part of being inaugurated into his army (Jerusalem Talmud Taanit 4:5).
We have seen that one should disobey a leader if he issues an order that violates Halacha. This seems reasonable, because if a leader's order is clearly in violation of Halacha, then the reason for refusing to follow the order would be understood by all. Hence, the refusal to disobey such an order would not lead to pandemonium and the breakdown of military discipline. For example, the refusal of Amasa and Avner to follow Shaul's order to kill the Kohanim of Nov would not lead to disarray, because all decent people would agree that this is an appropriate situation to disobey such an immoral order.
However, if it is unclear whether an order violates Halacha or not, then the Halacha may be quite different. Mutiny in this case will provoke solders to debate whether the mutiny was permitted or not, and in a military situation this can lead to pandemonium and a breakdown in military discipline, which is extremely dangerous for the security of the country.
This may account for why the Rabbis do not call for disobedience in the situation described in Pesachim 56a. The Gemara relates that Chizkiyahu removed the door to the Heichal of the Bait Hamikdash and sent it to the king of Assyria in order to avoid war. The Gemara relates that Chazal disapproved of this action. Rashi explains that they felt that instead Chizkiyahu should have had more faith in Hashem. The Tiferet Yisrael explains that Chazal did not call for disobedience to the king, because of Aymet Malchut, fear of the king. It is not reasonable to explain that Chazal were afraid Chizkiyahu would harm them, because Chizkiyahu was a righteous king. Rather, it seems that the Rabbis sought to protect the integrity of the king. They seemed to have appreciated the ambiguity of the situation and therefore it did not warrant mutiny which threatens societal stability. Rabbi Dr. Itamar Warhaftig (in the aforementioned Techumin article) notes that even in cases where the rabbis do not call for rebellion, protesting peacefully is fully appropriate.
Therefore, if the Prime Minister issues an order that is unambiguously wrong, such as harming a peaceful demonstrator, it would appear that this order should be disregarded. If however the Prime Minister orders Tzahal to do something that is Halachically ambiguous it seems that the order must be obeyed. It is vital to note that only a Rabbi of great stature is authorized to rule whether a situation is Halachically ambiguous or not. Oseh SHalom Bimromav Hu Yaaseh Shalom Alaynu Vial Kol Yisrael.
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