[Avodah] The Rosh ruled that a rav was a zaken mamre

[Micha Berger]

On Fri, Nov 12, 2010 at 09:31:46AM -0500, Hankman wrote:
:>: 3. The beit din or some other authority (therein lies another rub)
:>: takes the power originally allocated to the Jewish king to maintain
:>: civil society.

: RMB responded:
:> Isn't that the same as (b)? Or is there a distinction I'm missing?

: The distinction could be quite simple (if my thoughts are true to the
: halacha). The cases under b) all prevent some form of murder. The cases
: under c) may be much broader in that they will include cases to maintain
: civil order when the king deems necessary even if loss of life is not
: expected, such as say a curfew on pain of death imposed to prevent mass
: looting etc., or other such examples. (I know you can qvetch in a risk
: to life here if you push it beyond my meaning).

But does a king himself have the right to execute if he can't "kvetch in"
a risk to life?

Even a milkhemes reshus... Is it mutar to declare one before things get to
the point where poverty threatens lives? See the Ritva on Berakhos 3b,
"She'tzrichin parnassah, keshehayu aniyim dechuqim hayu omerim kach v'lo
b'chol sha'ah". (Which RMYG pointed us to during the thread
http://www.aishdas.org/avodah/getindex.cgi?section=W#WHY%20IS%20MILCHEMES%20RESHUS%20ALLOWED
or <http://bit.ly/9vEtgg>.)

On Fri, Nov 12, 2010 at 08:22:41PM +0000, kennethgmiller at juno.com wrote:
: I'd like to ask where they get this authority, given the reality that
: the melech has these powers and the Rosh was not a melech. But that might
: be getting it backwards, because I don't really know the definition of
: a melech.

R' Akiva reminded me of R' David Cohen's take on what he calls "daas
Torah", which is much narrower than the concept usually disputed here.
(Aside from not asserting any greater probability of being correct,
RDC's formulation doesn't justify seeking rabbinic advice on personal
matters that revolve on secular questions.)

RDC holds that the power of the melekh fell to the Sanhedrin with the
end of melukhah, and to the rabbinate when the Sanhedrin disbanded. We
therefore are obligated to listen to gedolim not because of any claim
that they are more likely to be correct, but as a derivative of the
obligation to listen to the melekh.

See RDC's Maaseh Avos, Siman Labanim cheileq I, English translation
published by Artscroll in "Templates for Ages" at page 33: "The Crown
of Torah and the Crown of Kingship; the Hasmoneans and the Concept of
Daas Torah".

The gemara Gittin 62a calls rabbanim "melakhim".

And in Hareri Qedem pg 265, RYBS is quotes as comparing a mara de'asra
to a melekh.

(Sources from when we discussed daas Torah, and in particular
<http://www.jlaw.com/Articles/observ-on-daat.html>.)

If a rav has a din melekh WRT obedience, it would be no major chiddush
if it were true WRT enforcing the stability of society.

The SA CM 2:1 says that it falls to any beis din, even non-musmachim,
to punish as needed to order society (even without eidus, hara'ah,
or the din being a chiyuv misah), but the job of doing so falls to the
gadol hador or the 7 tuv'ei ha'ir. The Rama emphasizes the role of the
7 tuv'ei ha'ir. And the SA allows using secular authorities as the means
of execution in such cases, if that is all those authorities allow the BD.

Getting back to the opening case... The Rosh declared someone a zaqein
mamrei. He can't have the person killed midin zaqein mamrei -- there is
a lack of a Sanhedrin on har habayis. He could have the person killed
midin malkhus / 7 tuvei ha'ir, but only if he could argue that letting
this case go would somehow cost lives. But again, that's not do to the
technicalities of zaqein mamrei, and therefore wouldn't mean that the Rosh
giving someone this title was tantamount to saying he should be killed.

Tir'u baTov!
-Micha

-- 
Micha Berger             When we are no longer able to change a situation
micha at aishdas.org        -- just think of an incurable disease such as
http://www.aishdas.org   inoperable cancer -- we are challenged to change
Fax: (270) 514-1507      ourselves.      - Victor Frankl (MSfM)