[Avodah] How does criminal law function in a Torah state

[Micha Berger]

On Wed, Apr 28, 2010 at 02:53:56PM -0400, Rich, Joel wrote:
: The King (and according to R' Kook IIUC any authority the people
: designate for leadership) has the responsibility for civil order
: and would set up a system designed to ensure its maintenance (makin
: vonshin...)

As RET already noted, this gets back to our discussion of the Ran's
position about the role of melekh. And our standing disagreement
about whether the king's power to order society is in one-off casewise
decisions, or has the power to set an ongoing policy.

Also, what you attibute to the king (or by R' Kook's extension the
"malkhus" whether or not it resides in a monarch) was held by the 7
tuv'ei ha'ir. The 7TH would even have malshinim etc... put to death
as needed.
It's a power that comes from autonomy, even without any sovereignty.

On Thu, Apr 29, 2010 at 12:26:05AM +0300, Eli Turkel wrote:
: As I have pointed out several times it is far from clear that monetary
: laws could run according to SA. Some examples are transfer of funds by
: wire and hence all inter-bank transfers. There is no kinyan and in many
: cases it is done completely by computer without any human intervention. If
: one cannot make a kinyan on davar shelo ba le-olam then one cannot have
: long term planning and building a factory or machine that takes a long
: time and one needs to stabilize the price. Most stock market techniques
: are illegal. etc....

Except that this too is also in the SA and moreso in the Rama (CM Rama
68:1, 74:7; SA&Rama 104:2, Rama 154:18, 207:15, 259:7, 356:7 [where yi'ush
veshinui aren't enough to permit a ganav to retain the item, because DDD
means there was no qinyan], 369:6,8.) that unless a party says otherwise,
we assume CM occurs with the implicit acceptance of the norms of the
business community. Thus, those standards are binding even many of the
times that they're at odds with spelled out rules of CM -- in various
places the Rama says this is because hodaas baal din or hefqer BD hefqer.

This excludes estate law, since the yoreshim do not enter an agreement,
and thus we can't make assumptions about their intent conforming to
norms. I'm sure there are more cases.

See the teshuvah of the Rashba (6:254) which the BY quotes at length at
the end of siman 26.

This is one of the uses of dina demalkhusa dina. Not the DDD we usually
discuss,a homonym.

Tir'u baTov!
-Micha

-- 
Micha Berger             Today is the 37th day, which is
micha at aishdas.org        5 weeks and 2 days in/toward the omer.
http://www.aishdas.org   Gevurah sheb'Yesod: When does reliability
Fax: (270) 514-1507               require one to be strict with another?