1. For an extensive survey, see Eliav Shochetman, “Halakhah's Recognition of the Laws of the State of Israel” [in Hebrew], Annual of the Institute for Research in Jewish Law 16–17 (1989/90–1990/91): 434–59 (“the law of the land is the law”); 460–95 (community statutes).

2. The “King's Law” can serve as a solid foundation for the status of Israeli legislation. See at length Shochetman, “Halakhah's Recognition,” 421–34; German, Gershon, The King of Israel: Sovereignty throughout the Generations in the Eyes of Halakhah and the Status of Laws Passed by the Knesset in the World of Halakhah [in Hebrew] (Bene Berak: Moreshet, 2003), 779–99Google Scholar. See also Landman, Michael Arye, “Between the King's Law and ‘The Law of the Land Is Law,’” Biẓaron 36 (1974/75): 29–33Google Scholar.

3. Shilo, Shmuel, Dinaʾ de-malkhutaʾ dinaʾ [in Hebrew] (Jerusalem: Hebrew University Institute for Research in Jewish Law, 1974), 4–5Google Scholar, 42–43. It is doubtful whether it is applicable to the State of Israel. Formally speaking, some of the rationales for the talmudic rule do not fit the case of a Jewish state and Jewish sovereignty in the Land of Israel. See ibid., 99–108. From an ideological perspective, the fact that the principle originated in the Diaspora makes its application to the reborn Zionist state inappropriate. See German, King of Israel, 780.

4. Brand, Itzhak, “Religious Recognition of Autonomous Secular Law: The Life Situation of RaN's Homily,” Harvard Theological Review 105 (2012): 167–68CrossRefGoogle Scholar, 186–87.

5. On the limits and principles of the rulings by Zionist decisors, see below, in the footnote at the beginning of the section on “The Autonomy and Scope of the King's Law.” In the present article we will not address decisors who are not Zionists, because they reject the state ab initio and, a fortiori, its laws. Zionist decisors posit that the state has a religious value; hence we can and should examine whether they recognize the halakhic validity of its secular legislation—in whole or in part—on the basis of the King's Law.

6. On the gulf between the King's Law as found in a monarchical regime and the Israeli parliamentary democracy, see Shochetman, “Halakhah's Recognition,” 421–23.

7. On the biblical and historical context, see Liver, Jacob, “King, Kingship” [in Hebrew], in Encycopaedia Biblica, vol. 4 (Jerusalem: Mosad Bialik, 1961/62), 1090–91Google Scholar; Talmon, Shmaryahu, “The Law of the King (1 Sam 8)” [in Hebrew], in The Israelite Kingdom at Its Outset, ed. Malamat, Abraham (Jerusalem: Merkaz Zalman Shazar, 1975), 16–27Google Scholar, esp. 19–20; Raviv, Hanoch, “The Traditions Concerning the Inception of the Legal System in Israel: Significance and Dating” [in Hebrew], ʾEreẓ-Yisraʾel 14 (1978): 20Google Scholar; Ben-Barak, Zafrira, “The Appeal to the King as the Highest Authority for Justice,” in Wünschet Jerusalem Frieden, ed. Augustin, Matthias and Schunck, Klaus-Dietrich (Frankfurt: P. Lang, 1988), 169–77Google Scholar.

8. On the king's legislative authority, see Shochetman, “Halakhah's Recognition,” 425–34, 434–59. See also German, King of Israel, 777–78 (on the king's judicial authority in general), 223–96 (on the king's judicial authority in the case of rebels).

9. Discourses of Rabbenu Nissim [in Hebrew], ed. Feldman, Arye Leib, rev. ed. (Jerusalem: Mosad Harav Kook, 2002/3), 412–13Google Scholar.

10. See Brand, Itzhak, “The Law of the King in the Sermon of Rabbi Nissim of Gerona: Philosophy, Halakhah, and Polemics” [in Hebrew], Zion 75 (2010): 401–2Google Scholar.

11. Rabbi Meir Dan Plotzki was a prominent Polish rabbi, one of the founders of Agudas Yisroel in Poland and a member of its council of Torah sages.

12. Meir Dan Plotzki, “Ner miẓvah” [in Hebrew], in Ḥemdat Yisraʾel (Piotrków: n.p., 1926/27), §72; he had discussed the matter previously, in brief, in Kli ḥemdah on Deuteronomy 17:14, §6 (Piotrków: n.p., 1926/27), 119b; see also ibid., weekly portion of Shemot, 146. Plotzki may have taken the sharp distinction between the two forms of government from his own teacher, Rabbi Abraham Bornsztajn, author of the responsa ʾAvne nezer (Yoreh deʿah, chap. 312, §50): “The main guide for the judge is the Torah, to make God's laws manifest in the world. But the king is the opposite, for he has nothing to do with laws. … His entire task is to make the land stable, as Scripture says, ‘by justice a king gives stability to the land’ [Proverbs 29:4], and the law is the implement with which he renders judgment and ensures that the country functions properly. His sole intent is that the country function properly.” For more on Plotzki's relationship with his teacher, see Itzhak Trunk, “On the Spiritual Character of the Late Rabbi of Ostrow,” ʾOr ha-Meʾir 1–2 (Sivan/Tammuz 5696 [1936]): 12; Jacob Z. Yoskowitz, “Where Is One Who Could Weigh? Where Is One Who Could Count?,” ʾOr ha-Meʾir 1–2 (Sivan/Tammuz 5696 [1936]): 14; M. Z. Neistampower, “The Rabbi with a Popular Touch,” ʾOr ha-Meʾir 1–2 (Sivan/Tammuz 5696 [1936]): 16, at http://www.hebrewbooks.org/22823.

Rabbi Simḥa ha-Kohen of Dvinsk makes a similar proposal in his commentary ʾOr sameaḥ, on Maimonides's Laws of Kings 3:10: “And it appears to me that our rabbi [i.e., Maimonides] believes that because a Noahide may be put to death [on the basis of testimony] by a single witness … and an Israelite king is authorized to condemn to death [on the basis of the testimony of a single witness—I. B.], because it is specifically in deliberations of the Sanhedrin and Torah laws where deliberation is mandatory that the Torah required two witnesses. But regarding the blood avenger and the Israelite king who have been given permission [to carry out a death sentence], and their act is meant to ensure the normal functioning of the state, the procedure is like the laws that the Torah ordained for the Noahides, and this is a sensible matter.”

13. Some view the seven Noahide precepts as primordial law that coincides with natural law. See Melamed, Avraham, “Natural Law in Medieval and Renaissance Jewish Political Thought” [in Hebrew], Daʿat 17 (1986): 49–66Google Scholar; Novak, David, Natural Law in Judaism (Cambridge: Cambridge University Press, 1998), 73–76CrossRefGoogle Scholar, 149–54. Maimonides differs and believes that the seven Noahide precepts are divine commandments and not natural law. See Faur, José, “The Basis for the Authority of the Divine Commandments According to Maimonides” [in Hebrew], Tarbiz 38 (1968): 43–53Google Scholar. See also, in another vein, Haddad, Eliezer, Torah and Nature in Maimonides' Writings [in Hebrew] (Jerusalem: Magnes, 2011), 351–52Google Scholar.

14. See Brand, “Law of the King,” 402–3 nn. 42–43 and nearby. See also below. With this in mind, it is interesting to compare Rabbenu Nissim's approach to the harmony and integration view of the choice of law; see below.

Plotzki's reference may be to a later section of the discourse, in which Rabbenu Nissim explains the nature of the Israelites’ sin in Samuel's time: “They sinned when they said, ‘Now appoint for us a king to govern us like all the nations’ [1 Samuel 8:5], meaning that they wanted their laws to derive from the king and not from those who judge by the Torah. … In other words, they were choosing to repair their natural aspect rather have the divine aspect apply to them.” MS Escorial III G 15/1; Discourses of Rabbenu Nissim, 419–20.

15. In the biblical context, see Liver, “King, Kingship,” 1090–91; Zafrira Ben-Barak, “The ‘Rule of the King’ and the ‘Rule of the Kingship’: Guidelines for Establishing the Kingship in Israel in Light of Canaanite Kingship” [in Hebrew] (PhD diss., The Hebrew University of Jerusalem, 1971/72), 57–60; Ben-Barak, , “The Mizpah Covenant as the Source of the Israelite Monarchic Covenant (1 Sam 10:25),” Bet mikraʾ 21 (1976): 406–10Google Scholar.

In the halakhic context, see the responsa of Ḥatam Sofer, §44: “Even an Israelite king, who does not own the land, which was divided up among the tribes, nonetheless, they [the Israelites] accept all his laws and statutes of their own free will, and their waiver is absolute.” According to Rabbi Zvi Hirsch Chajes, “All the laws of the monarchy are only a compact between the king and the people. … The people agreed to give up their wealth and property to benefit the public, … The law of the king is [valid] only because the people agreed to give up their property for the good of the state.” “Torat ha-neviʾim,” in The Complete Works of Maharatz Chajes, vol. 1 (Jerusalem: Divre Ḥakhamim, 1958), 46–47Google Scholar. Rabbi Shaul Yisraeli writes in a similar vein that “all the authority found in a king … depends primarily on the people's consent,” ʿAmud ha-yemini (Jerusalem: ʾEreẓ Ḥemdah, 1999/2000), 86; Shochetman, “Halakhah's Recognition,” 421–23, 429–32; German, King of Israel, 231.

16. See the extensive discussion in German, King of Israel, 275–96. According to many opinions, the law that applies to rebels derives from an “executive decision” rather than a “judicial decision.”

17. This is what Rabbenu Nissim proposes in the third part of his discourse. See Brand, “Law of the King,” 411–12. This is how Abraham Bornsztajn understood Rabbenu Nissim (Responsa ʾAvne nezer, Yoreh deʿah 312, §48): “According to him [Rabbenu Nissim], the laws of the king do not derive from the wisdom of the Torah, but are an ad hoc measure to make the state function, and are not like the laws of the Torah.”

18. This may be Maimonides's approach to penal law. See ʾOr sameaḥ to Laws of Kings 3:10; Enker, Arnold, “Does the Rambam Restrict the King's Punitive Authority to Murder Only?” [in Hebrew], in Judges and Judging in Jewish Law, ed. Habba, Yaʿakov and Radzyner, Amihai (Ramat Gan: Bar-Ilan University Press, 2007), 41–45Google Scholar.

Penal law and tax law are treated as “sovereign” areas of law, both in Halakhah and private international law. This is why Halakhah makes an exception and recognizes the competence of gentile courts to adjudicate in these fields. Such was the practice of various communities in the Middle Ages. See Elon, Menahem, Jewish Law: History, Sources, Principles [in Hebrew], vol. 1 (Jerusalem: Magnes, 1973), 25–27Google Scholar; Assis, Yom-Tov, “Spanish Jews in Gentile Courts in the Thirteenth and Fourteenth Centuries” [in Hebrew], in Culture and Society in Medieval Jewry, ed. Bonfil, Robert, Ben-Sasson, Menahem, and Hacker, Joseph (Jerusalem: Merkaz Zalman Shazar, 1988/89), 425–27Google Scholar. Contemporary decisors also permit going to Israeli courts on these matters. See Shlomo Gorenchik [Goren], “How Is a Torah-Based Constitution Possible? Part 1,” Ha-ẓofeh, January 30, 1948, 4.

Similarly, in private international law, a local court cannot enforce a foreign ruling related to tax or penal law because these fields fall under the sovereignty and authority of their home country, where the foreign verdict was rendered. See Fassberg, Celia Wasserstein, Private International Law (Jerusalem: Hebrew University Faculty of Law, 2013)Google Scholar, 1:113 n. 86 and her references to Dicey, Albert V., A Digest of the Law of England with Reference to Conflict of Laws (London: Stevens and Sons, 1932)Google Scholar, and Beale, Joseph H., A Treatise on the Conflict of Laws (New York: Baker, Voorhis, 1935)Google Scholar.

19. Kirshenbaum, Aaron, “Concurrent Jurisdictions in Jewish Law” [in Hebrew], Jewish Political Studies Review 10 (1998): 14Google Scholar.

20. Rosenthal, Eliezer Shimson, “For the Most Part” [in Hebrew], in Perakim: Yearbook of the Schocken Institute for Jewish Research of the Jewish Theological Seminary of America, vol. 1, ed. Rosenthal, Eliezer Shimson (Jerusalem: Schocken, 1967), 183–224Google Scholar; Englard, Itzhak, “On ‘For the Most Part’ and the Problem of Honesty in Maimonides’ Thought” [in Hebrew], Annual of the Institute for Research in Jewish Law 14 (1987/88–1988/89): 32–37Google Scholar.

21. This is based on the second section of Rabbenu Nissim's Discourses. See Brand, “Law of the King,” 410. See also Rosenberg, Shalom, “More on ‘For the Most Part’” [in Hebrew], in Jewish Spiritual Leadership in Our Time, ed. Belfer, Ella (Ramat Gan: Dvir, 1981/82), 91Google Scholar; Warhaftig, Itamar, “The Authority of the Court versus the Authority of the King” [in Hebrew], Jewish Political Studies Review 10 (1998): 49–51Google Scholar.

22. Maimonides, Laws of Murderers 5:14, and Laws of the Sanhedrin 18:6; Discourses of Rabbenu Nissim, 414–15.

23. Blidstein, Gerald J., “‘Ideal’ and ‘Real’ in Classical Jewish Political Theory,” in The Quest for Utopia, ed. Gitelman, Zvi (Armonk, NY: M. E. Sharpe, 1992), 55–56, 59Google Scholar.

24. Ibid., 59; Lorberbaum, Menahem, Politics and the Limits of Law: Secularizing the Political in Medieval Jewish Thought (Stanford, CA: Stanford University Press, 2001)Google Scholar; Ravitzky, Aviezer, “Religion and State: Rival Models in Jewish Thought” [in Hebrew], in Freedom Inscribed: Diverse Voices of Jewish Religious Thought (Tel Aviv: ʿAm ʿOved, 1999), 57–61Google Scholar.

25. See Discourses of Rabbenu Nissim, 443, “It is not fitting for a king to view himself as a governor and ruler of the people, but rather [he should view himself] as their servant to improve them.”

26. Rabbenu Nissim does not mention this limitation in his discourses, but he does note it in his Talmud commentary. See Ḥiddushe ha-Ran on B. Bava Batra 55a, s.v. d'arisa d'parsaei (pp. 211–12 in the Sofer ed. [Jerusalem: n.p., 1962/63]). Rabbenu Nissim follows in the footsteps of the Spanish rabbis who preceded him, Naḥmanides and Solomon b. Adret (Rashba). See Shilo, Dinaʾ de-malkhutaʾ dinaʾ, 191, 194. This Spanish tradition was continued by Rabbenu Nissim's students Isaac bar Sheshet (Ribash) and Joseph Ḥaviva. See Responsa of the Ribash, chaps. 228 (quoted in Shilo, Dinaʾ de-malkhutaʾ dinaʾ, 185–86), 271, 495; Nimmuke Yosef on B. Bava Kamma 113b (40b in the standard Alfasi pagination).

27. See similar comments by Rabbi Solomon Fischer, Bet Ishai: Insights and Commentary on Talmudic Passages [in Hebrew] (Jerusalem: n.p., 2003/04), chap. 107, p. 414: “The Jewish people have two systems of laws. One is unique to their sanctity and was revealed to the Israelites at Sinai. The other is human laws, which He gave to the Israelites particularly at Sinai a second time, but as the Noahide precepts and the laws of mankind.”

28. See Rabbi Joseph Shaul Nathanson, introduction to Responsa Sho'el u-meshiv [in Hebrew] (Lemberg: n.p., 1864/65); Shochetman, “Halakhah's Recognition,” 433; Warhaftig, “Authority of the Court,” 49–51.

29. Shochetman, “Halakhah's Recognition,” and German, King of Israel.

30. von Gierke, Otto Friedrich, Political Theories of the Middle Age, trans. Maitland, F. W. (Cambridge: Cambridge University Press, 1922), 7–10Google Scholar; Celia Wasserstein Fassberg, “The Choice-of-Law Problem: Continuity and Change” (SJD thesis, Harvard University, 1982), 105–8.

31. Lorenzen, Ernest G., “Huber's De Conflictu Legum,” Illinois Law Review 13 (1919): 376–77Google Scholar, 399–401, 403–4, available at http://digitalcommons.law.yale.edu/fss_papers/4563/. Lorenzen appends to his article Huber's 1707 treatise De Conflictu Legum Diversarum in Diversis Imperlis in the original Latin and in English translation.

32. von Savigny, Friedrich Carl, Private International Law and the Retrospective Operation of Statutes: A Treatise on the Conflict of Laws and the Limits of Their Operation in Respect of Place and Time (Edinburgh: T. Clark, 1880)Google Scholar, §348–49, §360–61. On the level of states, the principle of comity is that one state respects and gives due weight to the laws of another state. On the private level, preference is given to individual's vested rights. Hence a state will tend to protect the rights of an individual living on its territory, even if this violates the laws of another country. See Restatement of the Law of Conflict of Laws (1934), §6. See also Beale, Treatise, §5.4, p. 53.

33. See Lipstein, Kurt, Principles of the Conflict of Laws National and International (Boston: M. Nijhoff, 1981), 7–11CrossRefGoogle Scholar; Hay, Peter, Borchers, Patrick, and Symeonides, Symeon, Conflict of Laws, 5th ed. (St. Paul, MN: West, 2010), 11–14Google Scholar. One of the leaders of this school was Bartolus de Saxoferrato (Italy, fourteenth century). For more on him and his approach, see Hatzimihail, Nikitas, “Bartolus and the Conflict of Laws,” Revue hellenique de droit international 60 (2007): 23–31Google Scholar, available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1600774.

34. Chroust, Anton-Hermann, “Hugo Grotius and the Scholastic Natural Law Tradition,” New Scholasticism 17 (1943): 101–33CrossRefGoogle Scholar; Haakonssen, Knud, Natural Law and Moral Philosophy: From Grotius to the Scottish Enlightenment (Cambridge: Cambridge University Press, 1996), 26–30CrossRefGoogle Scholar. van Eikema Hommes, Hendrik, “Grotius on Natural and International Law,” Netherlands International Law Review 30 (1983): 61–71CrossRefGoogle Scholar; Jeffery, Renée, Hugo Grotius in International Thought (New York: Palgrave Macmillan, 2006), 85–112CrossRefGoogle Scholar.

35. Huber, De Conflictu Legum, quoted in Lorenzen, “Huber's De Conflictu Legum,” 403–4, 2^nd paragraph; Ehrenzweig, Albert A., “The Lex Fori—Basic Rule in the Conflict of Laws,” Michigan Law Review 58, no. 5 (1960): 643–44CrossRefGoogle Scholar; Ehrenzweig, “A Proper Law in a Proper Forum: A ‘Restatement’ of the ‘Lex Fori Approach,’” Oklahoma Law Review (1965): 340.

36. Story, Joseph, Commentaries on the Conflict of Laws Foreign and Domestic, 3^rd ed. (Boston: Little, Brown, 1846)Google Scholar, §8, pp. 12–13; §23, pp. 33–34.

37. Walter Wheeler Cook suggests as much in his local law theory; see The Logical and Legal Bases of the Conflict of Laws (Cambridge, MA: Harvard University Press, 1942), e.g., 42–45Google Scholar.

38. Religious Zionist halakhic rulings take account of the basic premises of religious Zionism, namely:

1. (1)

   (1) The religious significance of the Jewish community in the Land of Israel and of a Jewish state there. See Zohar, Zvi, “Universal Political Values and Religious Zionism: A Guide to the Thought of Rabbi Ḥayim David Halevi” [in Hebrew], in Judaism: A Dialogue between Cultures, ed. Sagi, A. et al. (Jerusalem: Magnes, 1999), 111Google Scholar; Edrei, Arye, “The Roots of Religious Zionist Halakhic Decision-Making: Rabbi Kook and the Sabbatical-Year Controversy” [in Hebrew], in Religion and Politics in Jewish Thought, Essays in Honor of Aviezer Ravitzky, ed. Brown, Benjamin and Stern, Yedidia et al. , vol. 2 (Jerusalem: The Israel Democracy Institute Press, 2012), 858–59Google Scholar. See also Avi Sagi, “Religious Zionism: Closure and Openness” [in Hebrew], in Sagi et al., Judaism: A Dialogue between Cultures, 124 (partnership in the Zionist enterprise based on a religious mindset, as opposed to the ultra-Orthodox world and culture).

2. (2)

   (2) An emphasis on the national element in the Jewish religious identity. See Roness, Yitzhak, “The Religious-Zionist Conception of Conversion: A Look at the Thought of Rabbi Shaul Yisraeli,” Zohar 39 (2016): 269–73Google Scholar.

3. (3)

   (3) The intended audience encompasses all Jews (and not just the observant). See Edrei, “Roots of Religious-Zionist Halakhic Decision-Making,” 881, 894–95.

39. As used here, “secular law” means a legal system whose origin, mode of development, or source of validity lies outside the religious system. The philosophical, cultural, or social senses of “secular” that dominate studies of secularization and secularism are irrelevant. See Taylor, Charles, A Secular Age (Cambridge, MA: Harvard University Press, 2007)Google Scholar; Berger, Peter, The Sacred Canopy (Garden City, NY: Doubleday, 1967)Google Scholar.

40. Though the decisors’ position do not always agree—and are sometimes in outright contradiction—they tend to be based on Rabbenu Nissim's discourse. The discourse is not uniform, and its dynamic structure allows different positions to be inferred from it. For more on the dynamic structure of the discourse, see Brand, “Law of the King,” 407–13.

41. She'ar-Yashuv Cohen was the chief rabbi of Haifa from 1975 to 2011. His father was the “Nazir,” Rabbi David ha-Cohen, the disciple and colleague of Rabbi A. I. Kook. Cohen attended the Merkaz Harav Yeshiva and was a student of Rabbi Z. Y. Kook and Rabbi Y. I. Herzog. His religious Zionist perspective and thought are based for the most part on the ideas of the elder Rabbi Kook. See, e.g., his “The Status of the State of Israel in Halakhah” [in Hebrew], in Torah, Labor, and What Links Them, ed. Y. N. Rimon (ʾOr ʿEẓion, 2014), 15–25.

42. Cohen, She'ar-Yashuv, “The State of Israel or the Kingdom of Israel” [in Hebrew], Torah she-beʿal peh 39 (1997/98): 45–46Google Scholar.

43. Lau, Israel Meir, “A State of Law and a Halakhic State, and Details of Laws Relating to ‘The Law of the Land Is the Law’” [in Hebrew], Torah she-beʿal peh 39 (1997/98): 17–18Google Scholar. Lau (chief rabbi of Israel, 1993–2003) expressed his religious Zionist outlook in a series of interviews and articles. See, e.g., http://www.inn.co.il/Besheva/Article.aspx/2600.

44. For an extensive treatment of Herzog's position, see Zoldan, Yehuda, “Rule and Law in the State of Israel According to Rabbi I. I. Herzog” [in Hebrew], in Masuʾah le-’Iẓḥak, vol. 1 (Jerusalem: Rabbi Herzog Institute, 2008/09), 397–408Google Scholar. The main reason for this rejection is ideological. The Zionist decisors generally assume that the state has some religious significance. This assumption rejects the idea of a separation between religion and state; according to this line of reasoning, the Jewish state can and should be a halakhic state. The adoption of the secular law of the state means a waiver of Halakhah as the law of the state. See, e.g., Rabbi I. I. Herzog, “Law in the Jewish State” [in Hebrew], The Torah and the State 7–8 (1955/56–1956/57): 13. See on this Aviezer Ravitzky, “Religion and State: Competing Models in Jewish Thought” [in Hebrew], in Freedom Inscribed, 51 (also printed as “Theology and Politics in Medieval Jewish Thought,” in Zionism and the Return to History: A Reevaluation, ed. Shmuel Eisenstadt and Moshe Lissak [Jerusalem: Yad Ben-Zvi, 1998/99], 100). See also Yaakov Ariel, “Justice in Israel and the Prohibition against Secular Courts” [in Hebrew], Teḥumin 1 (1979/80): 319: “The State of Israel, as the state of the Jewish people, should be ruled by the original Jewish law as it has existed through the generations. Just as we should not imagine the possibility of a Hebrew state without the Hebrew language as its official language, … so we cannot imagine a Jewish state without Jewish law.”

Besides the ideological difficulty, a dual legal system also poses practical difficulties. It could lead to parallel litigation, conflicts between the systems about the limits of their respective jurisdictions, transfer of cases between systems in the middle of proceedings, and the like. See I. I. Herzog, Legislation for Israel [in Hebrew], vol. 2 (Jerusalem: Mosad Harav Kook, 1989), 76; idem, Law of the Tent [in Hebrew] (Jerusalem: Mosad Harav Kook, 1993), 85–86.

45. On this correspondence, see Herzog, Legislation for Israel, 75; Ravitzky, “Religion and State,” 51; Enker, “Does the Rambam?,” 40–41; Zoldan, “Rule of Law,” 400 n. 35; Alex Kaye, “The Legal Philosophies of Religious Zionism 1937–1967” (PhD diss., Columbia University, 2013), 64–68.

46. The full text reads: “Regarding theft, robbery, and other criminal matters, it appears from Rabbenu Nissim's responsum that the King's Law was unique and different from the courts that judged according to Torah Law, because it would impair the sound functioning of the country if a thief could exempt himself by double remuneration and that one who admits to wrongdoing is exempt from penalties. And it appears to me that in this case one needs to enact national statutes along the lines of the permission a court is granted to impose flagellation and pronounce [capital] sentences (even where not [warranted] by the Torah). See Herzog, Legislation for Israel, 75 n. 10. Grodzinski emphasizes that the King's Law can apply only to “theft, robbery, and other criminal matters.” He reiterates that the state should enact laws in these matters, based on the rule that “the court may impose flagellation and pronounce [capital] sentences even where not [warranted] by the Torah.”

47. This reading of Rabbenu Nissim's discourse relies on the fact that it focuses on the authority to mete out punishment as well as on the associated rules of punishment and evidence. For other approaches that limit the King's Law presented in the discourse to punishment, see Kirshenbaum, “Concurrent Jurisdictions,” 10; Enker, “Does the Rambam?,” 40–41.

48. Rabbi Reuven Margolies (1889–1971) was a prolific author of works on rabbinic literature and was awarded the Israel Prize in 1957. He held many positions in the Mizrahi movement, including president of its section in eastern Galicia after the First World War. For his religious Zionist approach, see the next note.

49. Reuven Margolies, “Courts in Israel” [in Hebrew], in Kave ʾor (Lwów: Praca, 1921/2), 41–51. The article was originally published in Ha-mizraḥi, July 15, 1920 (29 Tammuz 5680), 6–7. See also idem, Tal teḥiyah [in Hebrew] (Lemberg: n.p., 1921/22), 41–51. For additional discussion. See Kaye, “Legal Philosophies of Religious Zionism,” 74–80.

Margolies wrote about the future Jewish state a full generation before its establishment, in the wake of the Balfour Declaration (issued November 2, 1917) and the appointment of Herbert Samuel as British High Commissioner in Palestine (January 30, 1920). Also in the background were the geopolitical shifts that resulted from the First World War: the fall of the Ottoman and Austro-Hungarian Empires and inauguration of British rule over Palestine. As he states in his introduction, “We are standing today on the threshold of a new era in the life of the Jewish people in its land. … Even when Jewish possession of the land increases, … we assume that we have already received control of the land.” But also see Herzog, Legislation for Israel, 75–76, quoted below. Margolies's article may be based on one by Rabbi David Zvi Hoffmann, “Der oberste Gerichtshof in der Stadt des Heiligtums,” Jahresbericht des Rabbinerseminars für das orthodoxe Judenthum (1877–1878): 22.

50. Margolies believes that the concept of the king as legislator is rooted in the Bible but is also repeated in the rabbinic literature. See, for example, Y. Rosh Ha-shanah 1:3 (57b): “R. Eliezer said, ‘for a king, the law is not written’ (πρὸ βασιλέως ὁ νόμος ἄγραφος)”; in other words, the king is a legislator but is not subject to his own laws. See Margolies, Tal teḥiyah, 44–45. See also Alexander Kohut, Arukh Completum (Vienna: n.p., 1878–1892), s.v. agraphos (p. 30r): “The meaning of the words in Greek is, “for the kings, the law is not written”; Moshe Zilberg, Thus Is the Way of the Talmud [in Hebrew] (Jerusalem: Hebrew University, 1964), 5 and n. 16. See also Margolies, Tal teḥiyah, 46–47 and n. 13 in the addenda. Margolies does not mention Rabbenu Nissim's discourse as a source, but does refer to it in the addenda.

51. Federbush, Shimon, The Law of the King in Israel [in Hebrew] (Jerusalem: Mosad Harav Kook, 1951/52), 43–46Google Scholar. There are several parallels between Margolies and Federbush, but it is not clear whether this is due to influence, inspiration, or mere coincidence.

52. See Tuviah Yehudah Guttentag (the rebbe of Sochoczin), “A Matter of Law and Justice” [in Hebrew], Diglenu 2 (Shevat 5681 [Jan.–Feb. 1921]: 27: “This article appears on the surface to be spiced and armed with talmudic evidence, but its content is incredible subversion of the Holy Torah and its completeness. … For the Jewish courts in ancient days rendered judgment solely on the basis of Torah Law.” See also Gutentag, “A Matter of Law and Justice” [in Hebrew], Diglenu 5–6 (Sivan 5681 [June–July 1921]): 83: “Everything the author has written in Ha-mizraḥi regarding the law of the state has no basis or support. The Jewish people have never known anything of such courts, nor have they been acquainted with judges who issue rulings based on their own intellect. Rather, the sages who follow the Divine Torah have been their teachers and guides, and they have also been their judges.” The author avers that courts have always ruled on the basis of Torah Law, both in biblical and Second Temple times, and that this was accepted by both the Pharisees and the Sadducees; see Gutentag, “A Matter of Law and Justice” [in Hebrew], Diglenu 3–4 (Nisan 5681 [April–May 1921]): 51. According to him, the only possibility of deviating from Torah Law is an emergency measure, and never through an enduring statute (ibid., 51–53).

For additional criticism, see Herzog, Legislation for Israel, 75–76. He views Margolies's proposal as “the fruit of the excitement that resulted from the Balfour Declaration and the appointment of Herbert Samuel as governor of Judea.” In his mind, Margolies's proposal has no basis: “We have no business with historical research; nor will it help us. From the point of view of Halakhah, we take account only of authoritative sources of Torah Law, and they offer no support for this assumption of dual law or two complementary authorities.”

53. Rabbi Ḥayim David Halevi was chief rabbi of Tel Aviv from 1973–1998. On his religious Zionist outlook, see Zohar, “Universal Political Values and Religious Zionism,” 123; Hellinger, Moshe, “Judaism and Democracy in the Thought of Rabbi Ḥayim David Halevi” [in Hebrew], in Living Judaism: Essays on the Halakhic Thought of R. Ḥayim David Halevi, ed. Zohar, Z. and Sagi, A. (Jerusalem: Shalom Hartman Institute and Keter, 2007), 89, 91–92Google Scholar; Hellinger, , “Religion and State in Sephardi Religious Zionist Thought: A Unitary Relationship or Compartmentalization: Rabbi M. H. Uziel and Rabbi H. D. Halevi” [in Hebrew], in Religion and State in Twentieth-Century Jewish Thought, ed. Ravitzky, Aviezer (Jerusalem: Israel Democracy Institute Press, 2005), 243–45Google Scholar.

54. Ḥayim David Halevi, “A State of Law and a State of Halakhah” [in Hebrew], in Religion and State (Tel Aviv: s.n., 1969), 50–52. For a discussion of Halevi's ideas about this issue, see Hellinger, “Judaism and Democracy,” 110–12; Hellinger, “Religion and State,” 256–57; Yedidia Stern, “Fixed Halakhah in a Changing World: Policy and Society in the Works of Rabbi Halevi” [in Hebrew], in Zohar and Sagi, Living Judaism, 361–66.

55. Halevi, “A State of Law,” 57; Hellinger, “Religion and State,” 220.

56. Halevi, “A State of Law,” 53. This statement qualifies the link between the King's Law and dinaʾ de-malkhutaʾ, which according to some applies only to public law. See also Shilo, Dinaʾ de-malkhutaʾ dinaʾ, 131–42.

57. Halevi, “A State of Law,” 54–55.

58. Rabbi Uziel was the first Sephardic chief rabbi of Palestine/Israel (1939–53). On his religious Zionist outlook, see Ratzabi, Shalom, “Religious Thinkers on the Secular State,” Israel Studies 13 (2008): 129–30CrossRefGoogle Scholar; Ratzabi, , “Zionism, Judaism, and the Land of Israel in the Thought of Chief Rabbi Ben-Ẓion Meir Ḥai Uziel” [in Hebrew], Peʿamim 73 (1998): 68, 78–79Google Scholar; Hellinger, “Religion and State,” 228–31.

59. On Halevi's relationship with Uziel, see Gila Amitai, “My Father, Master, and Teacher Rabbi Ḥayim David Halevi, of blessed memory” [in Hebrew], in Zohar and Sagi, Living Judaism, 387–89.

60. See below at the end of this section.

61. Hellinger, “Religion and State,” 247–49.

62. Ibid., 252, 259.

63. Ibid., 250.

64. Rabbi Yehudah Gershuni (1912–2000) made aliyah in his twenties. He studied and later taught at the Merkaz Harav Yeshiva. See Warhaftig, Itamar, ed., “Personality and Biography,” in ʾAfike Yehudah (Jerusalem: Ariel, 2004/05), 9–40Google Scholar; Warhaftig, “Bibliography” [in Hebrew], ʾAfike Yehudah, 41–55. Gershuni wrote extensively about his religious Zionist ideas; see, e.g., The Voice of Your Prophets [in Hebrew] (Jerusalem: Moriyah, 1980), 153–60Google Scholar, 221–25.

65. Yehudah Gershuni, “Laws of the Sanhedrin and Laws of the King” [in Hebrew], Torah she-beʿal peh 16 (1973/74): 96: “The result, according to Rabbenu Nissim, is that the law of the appointment of a king in Israel is [for him] to enact laws and ensure that society functions among its members; this is the source of the king's power. These laws are the Noahide precepts that ensure the proper functioning of the state and society.” Rabbenu Nissim does not so much hint that the king might be subject to the seven Noahide precepts. In his view, the king is autonomous in wielding his legislative authority, with the exception that he is subject to parallel laws that bind kings.

66. The complementary nature of Torah Law and the Noahide precepts is evident in the punishment meted out to the residents of the Idolatrous City. Individual idolaters are judged according to Torah Law—there must be witnesses and advance warning; they are executed by stoning; and their heirs retain possession of their estate. On the other hand, the people of the Idolatrous City are judged as a community; they are beheaded; there is no need for witnesses and advance warning; and their property is confiscated. In other words, as a result of their idolatry, they are no longer considered Jews and are judged according to the rules that apply to Noahides. See Gershuni, “Laws of the Sanhedrin,” 97 (based on the Gaon of Vilna, ʾAderet ʾEliyahu on Deuteronomy 13:13: “If many people commit idolatry, they are considered to be heathens and are consequently executed by the sword. But individuals are executed by stoning, for they are considered to be Israelites.”).

67. In his earlier work, The Law of the King, Gershuni proposed a different approach: Maimonides believes that the King's Law involves ad hoc regulation of the affairs of state. See Yehudah Gershuni, The Law of the King [in Hebrew] (New York: n.p., 1949/50), 88–93. Perhaps Gershuni's two proposals regarding the King's Law reflect the debate between Maimonides (in this note) and Rabbenu Nissim (above). However, it seems more likely that both ideas reflect Gershuni's own opinion, which had changed over time.

68. Eliezer Yehudah Waldenberg, Laws of the State [in Hebrew] (Jerusalem: Mosad Harav Kook, 1951/52–1954/55), 1:138–39 (limiting the King's Law, as per Rabbenu Nissim's discourse, to ensuring the sound functioning of society and the enactment of emergency measures); 3:18 (subjecting the King's Law to Torah Law based on Rabbenu Nissim's discourse).

Indeed, in his discussion of the King's Law (ibid., 1:159–61), Waldenberg adopts Maimonides's position that limits it to emergency measures, and rejects Rabbenu Nissim's position. This is also the position taken by Herzog, which is brought as a counterpoint to Rabbenu Nissim's position. See Zoldan, “Rule and Law,” 406–8.

See also Werner, Samuel Baruch, “Laws as Emergency Measures” [in Hebrew], Ha-Torah ve-ha-medinah 3 (1950/51): 50Google Scholar. See also Kaplan, Zvi, Be-halakhah ve-ʾaggadah (Jerusalem: Weiss, 1959/60), 10–11Google Scholar, which is based on work by his father, Kaplan, Avraham Eliyahu, in Divre Talmud, vol. 1 (Jerusalem: Mosad Harav Kook, 1957/58), 171–74Google Scholar.

69. For more on these individuals, see Mordecai Saar Marmorstein, The Father of the “Knitted Kippah” Generation: Rabbi Moshe Zvi Neria [in Hebrew] (Kiryat Bialik: Duvdevan, 2014); Abraham Israel Sharir, ed., A Giant in Torah and Mannerisms: Selections on the Path and Character of Rabbi Shaul Yisraeli [in Hebrew] (Jerusalem: ʾErez, 1998/99). Their religious Zionist thought found expression in their many writings, and especially those listed in the next note.

70. Moshe Ẓvi Neria, The Law of the King [in Hebrew] (Kfar Haroʿeh: n.p., 1991/92), 33–38; Yisraeli, ʿAmud ha-yemini, chap. 8, pp. 72–74. She'ar-Yashuv Cohen and Israel Meir Lau are of the same opinion; see discussion above.

71. A. I. Kook, Mishpat kohen (Jerusalem: Association for Publication of Rabbi A. I. Kook's Works, 1936/37), chap. 144, §13, p. 335. Kook later expands the application of the King's Law from a monarch to any national leadership: “For when there is no king, because the Laws of the King relate also to the general state of the nation, the right to [enact] such laws reverts to the nation as a whole” (ibid., 337).

72. The questioner was Rabbi Shlomo Zalman Pines (1874–1955), a scholar and prolific author on Torah subjects. For the letters to which Kook responded here and in subsequent chapters (Mishpat kohen, chaps. 142–44, 148), see Pines, “On the Laws of Sacrificing Life: Sacrificing an Individual to Save Many” [in Hebrew], Moriah 20, no. 111 (1994/5): 66–69Google Scholar and no. 112:58–64. See also Rakover, Naḥum, Sacrificing Life: Sacrificing an Individual to Benefit Many [in Hebrew] (Jerusalem: Jewish Legal Heritage Society, 2000), 201–69Google Scholar. For the specific question addressed here, see ibid., 235.

73. See Ish-Shalom, Benjamin, Rav Avraham Itzhak Hacohen Kook: Between Rationalism and Mysticism, trans. Wiskind-Elper, Ora (Albany: State University of New York Press, 1993), 90–91Google Scholar. This concept has political and theological implications. See Berholz, Amichai, “Halakhah and Monarchy: Morality, Politics, and Halakhic Renewal in the Thought of Rabbi A. I. Kook” [in Hebrew], ʾAkdamut 3 (1997): 35–39Google Scholar. The blurring of the distinction between the real political entity and its idealized version expands the boundaries of monarchy and thus also of the King's Law.

74. The fact that Kook does not mention the concept of an autonomous King's Law mentioned in Rabbenu Nissim's discourse is all the more striking given the presence of the discourse in the annotations that Kook's son, Rabbi Z. Y. Kook, added to his father's collections of responsa, Daʿat kohen and Mishpat kohen. He mentions the discourse twice, and on both occasions, asserts, drawing on it, that in the absence of a king, the constituted leadership plays the combined role of judge and king. Hence the prophet Samuel was referred to as a king (Daʿat kohen, Yoreh deʿah, notes of chap. 69 [Jerusalem: Mosad Harav Kook, 1993], 441) and “appointed judges and secular presidents take the place of a king” (Mishpat kohen [Jerusalem: Mosad Harav Kook, 1993], addenda to the annotations, chap. 144, p. 378). Here the discourse is not read to support granting the king legal powers, but to recognize a prophet or judge as having sovereign power! See similar comments in Yisraeli, ʿAmud ha-yemini, 61–62.

75. Kook, Mishpat kohen, chap. 124, p. 274. Cf. the Discourses of Rabbenu Nissim, 440–42; Brand, “Law of the King,” 410–12; Neria Gutel, Innovation in Tradition [in Hebrew] (Jerusalem: Magnes, 2004), 145.

76. See Ratzabi, Shalom, “Chief Rabbi Ben-Ẓion Meir Ḥai Uziel: Halakhah and Zionism” [in Hebrew], Zionism 21 (1998): 80–84Google Scholar, 88–89. By contrast, see the reservations expressed by Moshe Hellinger, “Judaism, Zionism, Modernity, and Democracy in the Thought of Rabbi Ben-Ẓion Meir Ḥai Uziel” [in Hebrew], in Rabbi Uziel and His Peers: Studies in the Religious Thought of Oriental Rabbis in 20^th-Century Israel, ed. Zvi Zohar (Jerusalem: Rav Uziel's Committee Publishers, 2009), 998, 103. Hellinger finds metaphysical or kabbalistic threads in some of Uziel's ideas.

77. See Ratzabi, “Rabbi Uziel: Halakhah and Zionism.” Hellinger presents Uziel's similar stance with regard to the law of the state, but bases it on just the opposite approach, one that is harmonizing and unifying. In this view, nationalism and religion are interwoven. See Hellinger, “Religion and State,” 224–26, 235. In contrast to Roman nationalism, which is based on the exercise of force, Israeli nationalism is spiritual (see Hellinger, “Judaism and Democracy,” 101). The unifying approach does not allow any separation between religion and state, or between Halakhah and national legislation. Consequently, Halakhah must be the law of the land. This reversal can be effected by means of significant changes in Halakhah introduced by the Sanhedrin. See Hellinger, “Religion and State,” 229–32.

78. Ben-Ẓion Meir Ḥai Uziel, Mikhmane Uziel (Tel Aviv, 1939), 319 (his inaugural address on the occasion of his investiture as chief rabbi of Jaffa, 1911).

79. Ibid., 323. Hence the rabbis in the Land of Israel are obligated to reestablish the religious judicial system (keynote address at the Assembly of Rabbis in the Land of Israel, 1919; ibid., 329). It was in this framework that Uziel called for the reestablishment of the Sanhedrin (bet din ha-gadol). See ibid., 390–91; Ratzabi, Shalom, “Halakhah and Orthodox: The Halakhic Paths of Rabbi Ben-Ẓion Meir Ḥai Uziel and Rabbi Ḥayim David Halevi” [in Hebrew], in Orthodox Judaism: New Perspectives, ed. Salmon, Yosef, Ravitzky, Aviezer, and Ferziger, Adam (Jerusalem: Magnes, 2006), 490–91Google Scholar.

80. Ben-Ẓion Meir Ḥai Uziel, “Fundamentals of State Law in Israel and the Nations,” Torah and State 5–6 (1953–54): 16; Shochetman, “Halakhah's Recognition,” 450–51, 466–67; Hellinger, “Religion and State,” 237–39.

81. Shochetman, “Halakhah's Recognition”; Hellinger, “Religion and State.” See also Zohar, Zvi, “The Knesset's Responsibility to Mold Halakhah: A Study of Rabbi Uziel's ‘On the Definition of Those Ineligible to Testify’” [in Hebrew], in Multiculturalism in a Democratic and Jewish State, ed. Mautner, M., Sagi, Avi, and Shamir, Ronen (Tel Aviv: Ramot, 1998), 308, 333–36Google Scholar (accepting the testimony of transgressors by the force of community ordinances, represented by Knesset legislation).

82. Hellinger, “Judaism and Democracy,” 105–6.

83. See Brand, Non-Jewish Courts in the Jewish State [in Hebrew] (Jerusalem: Israel Democracy Institute Press, 2010), 10–13Google Scholar, 60–65.

84. Ibid., 71–72.