Courting Disaster: Why Some Kings Can Judge and Others Can’t, by Chezkie Glatt

The Mishna in the beginning of the second perek of Sanhedrin1 teaches us that a king is not allowed to judge or be judged. The Gemara2 limits this rule to apply only to Malchei Yisrael, but not kings from Malchei Beis Dovid. The inability of Malchei Yisrael to judge or to be judged is based off a tragic story recorded there which involved the judging of King Yanai — a king not from Malchei Beis Dovid — and the untimely death of many of the sages. His insolence led to their deaths, and a takanah was instated with the apparent goal of preventing any further such incidents.

Despite the particular details of the story which prompted the takanah in the first place, it seems fair to ask why the takanah would be limited to Malchei Yisrael alone and not Malchei Beis Dovid. Surely it would have been more appropriate to disallow all kings (powerful and potentially dangerous as they are) from being judged in the future, even ones from the line of Malchei Beis Dovid! Yet the Gemara explicitly says the enactment is limited to Malchei Yisrael alone. Why?

In Mishnah Torah,3 Rambam seems to offer one answer. For some reason, it is taken as a given that Malchei Yisrael are less submissive to Torah law than their Malchei Beis Dovid counterparts. As such, the takanah was only necessary to enact regarding them, for there wouldn’t be such a concern of a potential calamity sprouting from a case where a king from Malchei Beis Dovid was the defendant.

At first glance, this answer seems somewhat strange to our modern sensibilities. Can one’s degree of adherence to the laws of the Torah really be assumed based on one’s ancestry? Certainly, the number of G-d fearing kings of the southern kingdom during the era of the first Beis HaMikdash greatly outnumbered those of the northern one. But is it really true that Malchei Beis Dovid have this as some sort of inborn inclination? Possibly. We can’t just dismiss ideas like spiritual legacy just because we don’t understand them; they may still be true. But to avoid that messier explanation, it’s worth noting that an alternative understanding seems quite tenable in the words of Rambam as well.

It might be that Rambam really means to say that the reason there is this assumption about Malchei Yisrael has nothing to do with their genes; rather, it has to do with the de facto precarious position their authority is perched upon. Malchei Beis Dovid cannot truly lose their kingship; no matter what his offspring might do, Dovid HaMelech has already acquired the crown of malchus for him and his descendants as an everlasting heritage. A king from the Malchei Yisrael, however, automatically has reason to be more distrustful of the Torah and its laws, for the throne they claim (sometimes with the Torah’s blessing, sometimes without) can always be usurped from their control. Therefore, there is always an additional factor at play to make a king from the Malchei Yisrael feel insecure. This reality paved the way for the takanah to be enacted only with regards to the Malchei Yisrael.

Such an interpretation isn’t conjecture. In the Peirush HaMishnayos, Rambam sounds like he means this explicitly.4 He writes that the kingship of the Malchei Yisrael is against the Torah, whereas the reign of Malchei Beis Dovid is not, and it is for this reason that we must assume the Malchei Yisrael are less willing to submit to proper justice.5

Kesef Mishna6 raises a series of questions similar to the one I raised above, and offers a different explanation for why this takanah wasn’t made on Malchei Beis Dovid. The Gemara itself7 gives a reason why we must allow Malchei Beis Dovid to judge: it brings a pasuk from Yirmiyahu which talks about Malchei Beis Dovid judging righteously. And because of the principle of “Hiskoshishu V’Koshu,” we know by default that they had to be able to be judged as well.

The Kesef Mishna understands the Gemara to mean, through its quoting of the above pasuk, that despite the fact that indeed, there is reason — the same reason as Malchei Yisrael8— to worry about Malchei Beis Dovid being judged, Chazal didn’t want to enact a takanah which would inevitably end up “in disagreement” with a pasuk. The pasuk says Malchei Beis Dovid can judge. Chazal would effectively be saying they cannot. To avoid that issue, Chazal left Malchei Beis Dovid out of the takanah.9

It isn’t entirely clear to me, but I’m pretty sure that Kesef Mishna considers this line in the Gemara to be at odds with Rambam and his offered explanation. He therefore rejects Rambam’s suggestion and gives his own reason for why the takanah only applies to Malchei Yisrael.

However, I think a slightly altered version of Kesef Mishna’s answer can fit into both the words of the Gemara and Rambam. I’ll suggest it, even though I don’t think Kesef Mishna meant to say it. It could be that instead of reading the pasuk as saying Malchei Beis Dovid can judge, Rambam understood the way the Gemara used it a bit more ambitiously: that Malchei Beis Dovid should judge. The pasuk was saying they are assumed to be righteous kings10 who will enact righteous judgement. Therefore, the Gemara figured that we should specifically desire them to be our judges, and therefore didn’t want to make them unable to be judged (which would thereby remove their ability to judge through the idea of “Hiskoshishu v’koshu”). According to this, Rambam is exactly like the Gemara — he quoted the reasons they are good kings, which we know from the pasuk, as the basis for the Gemara’s reluctance for having the takanah apply to Malchei Beis Dovid.

Not only does this explanation remove any issues between Rambam and the Gemara, it also seems to fit better in his words. In Peirush HaMishnayos, Rambam ends off his explanation by cryptically quoting the same pasuk the Gemara uses. Clearly he was coming to connect his understanding with the way the Gemara presents the reason why the takanah didn’t apply to the Malchei Beis Dovid. The pasuk teaches us they have these traits and would be fantastic judges, and therefore we wanted them to still be able to judge.

Aside from the above explanations for why the takanah wasn’t made to include Malchei Beis Dovid, it seems that another one can be found in the words of Ran.11 He writes that it is impossible for us to have another king from Malchei Beis Dovid until Moshiach comes. Accordingly, we can say that there was no need for Chazal to institute any such takanah by Malchei Beis Dovid — by the time we have another king from that line, we know he’ll be a good one (and we might not have to worry about other bad kings after that).

This explanation was not available to Rambam. Later in Mishna Torah (in the context of how we can discern if a potential Moshiach is the real one or not),12 Rambam clearly recognizes the possibility that there might be other kings who will arise from Malchei Beis Dovid before the true Moshiach comes.13

One more possible explanation:14 perhaps the reason this takanah wasn’t made by Malchei Beis Dovid was simply by dint of the fact that the story prompting the initial institution was about a melech from Malchei Yisrael. Despite the question I started off, it might just be that Chazal made a takanah because of a specific story, and limited it to the details of that first story for whatever reason.

A possible precedent for such an idea might be the story recorded in Bava Kamma about the cessation of the korban tamid,15 where because of one particular incident a takanah was instated to disallow the raising of pigs everywhere. Why make such a far-reaching takanah without any additional qualifications or considerations, or without any expansion (such as engineering the issur to include other sorts of not-fit-for-hakravah animals)? I don’t rightly know, but this may have been the manner through which Chazal enacted this type of takanah: “mishum ma’aseh shehaya,” and precisely in the same exact way “shehaya.”

1 Sanhedrin 18a

2 Sanhedrin 19a

3 Hilchos Sanhedrin 2:5. See also Hilchos Eidus 11:6 for a slightly more elaborate formulation, as well as Hilchos Melachim U’Milchamos 3:7.

4 Peirush HaMishnayos, Sanhedrin 2:2

5 To be more precise, Rambam really sounds like the negative traits — very similar ones to those he brought in Mishna Torah —they are assumed to possess stem from this undeserved sovereignty, and those harmful attributes in turn lead them away from following the judgements of Beis Din. As opposed to what I just wrote (that the reason they aren’t allowed to be judged is because their natural feeling of instability causes them to distrust the Torah, the source of that instability) Rambam in Peirush HaMishnayos more accurately seems to be saying that a general attitude of disobedience to the Torah’s laws itself engenders ignoble traits, and these traits in turn cause people to be unwilling to submit to justice.  A slight distinction, but a distinction nonetheless.

6 Kesef Mishna, Hilchos Melachim U’Milchamos 3:7

7 Sanhedrin 19a

8 Namely, causing trouble because of a position of great power.

9 Tosfos HaRosh (Sanhedrin 19a) appears to have understood similarly, albeit a bit more intensely. Instead of just saying that the pasuk said they could judge, he says that the pasuk was saying they are commanded to judge; at which point, Chazal wouldn’t go ahead and violate the spirit of the pasuk for a gezeirah.

Tosfos HaRosh notes a parallel idea alluded to in Bava Meztia (70b), in a discussion concerning the permissibility of lending with interest to a non-Jew.

Regardless of this caveat, I think Tosfos HaRosh is closer to the explanation of Kesef Mishna than the one I’m about to suggest in Rambam.

10 Which can be understood either as some sort of inborn trait, or else as stemming from their rightful sovereignty, as I explained above.

11 Chiddushei HaRan, Sanhedrin 18b

12 Hilchos Melachim U’Milchamos 11:4

13 Like Rambam, Tosfos HaRosh (Sanhedrin 19a) clearly believed there could be other Malchei Beis Dovid before Moshiach as well.

Moreover, he also recognizes the possibility that “Malchei Beis Dovid” might refer to the Reish Galusa or Nasi. This may be important; if we are willing to interpret the term “Malchei Beis Dovid” somewhat inexactly, then maybe we could do the same to the other term here, “Malchei Yisrael” — at which point, maybe a leader of a community of comparable stature to the Reish Galusa or Nasi could be considered a “melech” in this sense, and would be unable to judge or be judged.

14 This one isn’t found explicitly in any rishonim I saw, but might be what some may have meant; see Yad Ramah on Sanhedrin (19a), for example.

15 Bava Kamma 82b

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