Above the Law

׳׳ כִּי־תָבֹא אֶל־הָאָרֶץ...וְאָמַרְתָּ אָשִׂימָה עָלַי מֶלֶךְ כְּכׇל־הַגּוֹיִם אֲשֶׁר סְבִיבֹתָי... שׂוֹם תָּשִׂים עָלֶיךָ מֶלֶךְ”

׳׳ אֵין בְּרִיָה דָּן אֶת הַמֶּלֶךְ אֶלָּא הַקָּדוֹשׁ בָּרוּךְ הוּא “

Parshas Shoftim includes the Dinim of a Melech Yisroel, which are unique because they are only relevant if Klal Yisroel wishes to appoint a king, asking “אָשִׂימָה עָלַי מֶלֶךְ”. There are several Halachos that apply specifically to a Melech enumerated here, such as “לֹא־יַרְבֶּה־לּוֹ סוּסִים” and " וְלֹא יַרְבֶּה־לּוֹ נָשִׁים” among others. The Torah concludes this section by explaining the purpose of these Dinim: “לְבִלְתִּי רוּם־לְבָבוֹ מֵאֶחָיו”. Although the Melech occupies a place of honor and stature, these Halachos were put in place so that he would not become too haughty,

There is another Halacha pertaining to a Melech that is not mentioned in the Pessukim but is taught by the Medrash: “מֶלֶךְ לֹא דָן וְלֹא דָנִין אוֹתוֹ, לֹא מֵעִיד וְלֹא מְעִידִין אוֹתוֹ”, a Melech cannot be a Dayan or a witness, but he also cannot be judged by a Bais Din. The Medrash asks the next logical question: “לָמָּה אֵין דָּנִין אוֹתוֹ”? Why, in fact, can he not be judged by a Bais Din? The Medrash answers: “הֱוֵי אֵין בְּרִיָה דָּן אֶת הַמֶּלֶךְ אֶלָּא הַקַּב׳׳ה”. There is no being that can judge him other than Hashem himself.

How are we to understand this Medrash? Why is a Melech above the law, so to speak? What is it about him that renders him beyond the judgment of a human being? One may assume that this is a Halacha rooted in Kavod HaMelech —it would perhaps be inappropriate for the subjects to sit in judgement of the king—but the Medrash tells us something else: “אֵין בְּרִיָה דָּן אֶת הַמֶּלֶךְ אֶלָּא הַקַּב׳׳ה”, there is no human capable of judging a Melech. Why not?

In fact, if we think about it, this Halacha actually seems to run counter to the precept explained by the Passuk itself: “לְבִלְתִּי רוּם־לְבָבוֹ מֵאֶחָיו”. The Ramban explains that these words reveal an important goal: “כִּי הַתּוֹרָה תִּמְנַע אֶת הַמֶּלֶךְ מִגֵּאוּת וְרוֹמְמוֹת הַלֵּב”. If the Torah wished to remove feelings of Gaiva from the Melech, why should he be immune from Din, so to speak? Would not this immunity be a source for further Gaiva ? This is especially true if we assume that the Halacha is not related to Kavod, as we explained, but to the stature of the Melech—why wouldn’t the fact that “ לֹא דָן וְלֹא דָנִין אוֹתוֹ” contribute to feelings of “רוּם־לְבָבוֹ מֵאֶחָיו”?

Given the absolute nature this statement, “אֵין בְּרִיָה דָּן אֶת הַמֶּלֶךְ אֶלָּא הַקַּב׳׳ה”, it is interesting to note that the actual Halacha is not without limitation.

The Mishna in the second Perek of Sanhedrin brings the Halacha as it appears in the Mishna, “ הַמֶּלֶךְ לֹא דָן וְלֹא דָנִין אוֹתו”, and the Gemara adds a qualification: “לֹא שָׁנוּ אֶלָּא מַלְכֵי יִשְׂרָאֵל, אֲבָל מַלְכֵי בֵּית דָּוִד דָּן וְדָנִין אוֹתָן”. It is true that a Melech from Yisroel cannot be judged, but the Gemara tells us that Malchei Yehuda, who come from Bais Dovid, are subject to Din just as anyone else. The Gemara continues, explaining that it must be that Malchei Yehuda can be judged, because they are allowed to serve as Dayanim, “וְאִי לָא דָּיְינִינַן לֵיהּ, אִינְהוּ הֵיכִי דָּיְינִי”, if they are not allowed to be judged, how can they judge another? This would be true of Malchei Yisroel as well, the Gemara adds, but when Yannai Hamelech was brought before the Sanhedrin, he caused the Dayinim to be paralyzed by fear, leading to their demise. Upon seeing this, the Chachamim made a Takana: “הַמֶּלֶךְ לֹא דָן וְלֹא דָנִין אוֹתו”.

The Rambam, in both Hilchos Sanhedrin and Hilchos Melachim, brings the Halacha that “הַמֶּלֶךְ לֹא דָן וְלֹא דָנִין אוֹתו” applies only to Malchei Yisroel, but Malchei Bais Dovid, “דָנִים אוֹתָם אִם יֵשׁ עֲלֵיהֶן דִּין”. Interestingly, in Hilchos Sanhedrin the Rambam also adds an explanation regarding the Malchei Yisroel, explaining that we do not subject them to Din “לְפִי שֶׁאֵין נִכְנָעִים לְדִבְרֵי תּוֹרָה שֶׁמָּא תָּבוֹא מֵהֶן תַּקָּלָה”. Since they did not subjugate themselves to the Torah, we dare not risk the damage that may come about if they are brought to Din.

That the Medrash is not in line with the Gemarah is axiomatic, but the gulf between them is notable: according to the Gemara , the Halacha of “מֶלֶךְ לֹא דָן וְלֹא דָנִין אוֹתוֹֹ” applies only to Malchei Yisroel and only for practical reasons, “שֶׁמָּא תָּבוֹא מֵהֶן תַּקָּלָה “, while the Medrash seems to indicate that any Melech is simply out of the bounds of Din because “אֵין בְּרִיָה דָּן אֶת הַמֶּלֶךְ”. In fact, the Medrash tells us that Dovid Hamelech requested that his Din not be at the hands of humans, as the Passuk in Tehillim says, “מִלְּפָנֶיךָ מִשְׁפָּטִי יֵצֵא”.

How are we to understand the Medrash in light of the Gemara ? Why, indeed, might we say “אֵין בְּרִיָה דָּן אֶת הַמֶּלֶךְ”, to the extent that the Halacha of “מֶלֶךְ לֹא דָן וְלֹא דָנִין אוֹתוֹֹ” applies to any Melech?

If we understand the essence of Malchus, which defines the stature of the Melech, we might be able to answer these questions and explain the words of the Medrash . Perhaps we can do so based on Medrash that speaks about the roots of Malchus Bais Dovid.

The Mechilta , in Parshas Beshalach , speaks about the events just prior to Krias Yam Suf. R’ Yehuda tells us: “כְּשֶׁעָמְדוּ יִשְׂרָאֵל עַל הַיָּם זֶה אָמַר אֵינִי יוֹרֵד וְזֶה אָמַר אֵינִי יוֹרֵד”, as Klal Yisroel stood on the shores of the Yam Suf , the Shevatim argued because none wished to enter the water first. At that time, “מִתּוֹךְ שֶׁהָיוּ עוֹמְדִין וְנוֹטְלִין עֵצָה, קָפַץ נַחְשׁוֹן בֶּן עַמִּינָדָב וְנָפַל לוֹ לְגַלֵּי הַיָּם”, Nachshon jumped in first, and was partially submerged until Moshe brought about Krias Yam Suf. R’ Yehuda concludes by relating the reward Shevet Yehuda received for the actions of Nachshon: “אָמַר הַקָּדוֹשׁ בָּרוּךְ הוּא, מִי שֶׁהִמְלִיכָנִי תְּחִלָּה עַל הַיָּם אֶעֱשֶׂנּוּ מֶלֶךְ עַל יִשְׂרָאֵל”

The Mechilta seems to be telling us that the events at Yam Suf indeed led to Shevet Yehuda assuming the role of Malachim the Malchus, “מִי שֶׁהִמְלִיכָנִי עַל הַיָּם, אֶעֱשֶׂנּוּ מֶלֶךְ עַל יִשְׂרָאֵל”. What does this tell us about Malchus, and the role of the Melech? Why did these actions lead specifically to Shevet Yehuda being granted Malchus?

R’ Nosson Gestetner, in L’Horos Nosson on Pesach, explains the Mechilta based on a thought of the Chassam Sofer.

There are many instances, throughout Tanach, that Klal Yisroel faced their enemies and emerged victorious, but there are two ways in which this happens: through open Nissim, or through military battle. Why, asks the Chassam Sofer, is this the case—we know that HKBH could always bring our victory about through Nissim, why are we sometimes relegated to battle? He answers based on a Passuk in Zos HaBracha : “אַשְׁרֶיךָ יִשְׂרָאֵל מִי כָמוֹךָ עַם נוֹשַׁע בַּה׳ מָגֵן עֶזְרֶךָ וַאֲשֶׁר־חֶרֶב גַּאֲוָתֶךָ”. We, Klal Yisroel, are the “עַם נוֹשַׁע בַּה׳” and are always saved by HKBH. Sometimes, however, the victory is brought through military battle, because: “ וַאֲשֶׁר־חֶרֶב גַּאֲוָתֶךָ”. If we were always to be saved through Nissim, our enemies would ridicule and taunt us, belittling our natural strengths and abilities. Therefore, we are sometimes forced to do battle, so that when we do emerge victorious, as the “עַם נוֹשַׁע בַּה”, we can do so with pride, with our heads held high, “ וַאֲשֶׁר־חֶרֶב גַּאֲוָתֶךָ”.

R' Nosson explains the actions of Nachshon based on this idea.

As they stood at the Yam Suf , the leaders of Klal Yisroel understood that if they were to enter the water a Nes would occur—we would no doubt retain the designation of “עַם נוֹשַׁע בַּה”. If this happened, however, the advantage of “ וַאֲשֶׁר־חֶרֶב גַּאֲוָתֶךָ” would be lost. Therefore, “זֶה אָמַר אֵינִי יוֹרֵד וְזֶה אָמַר אֵינִי יוֹרֵד”, none wanted to enter. Chief among the proponents of this approach was Shevet Binyomin, who are identified earlier in the Medrash as being involved in the episode. R’ Nosson explains that Shevet Binyomim represents the Middah of L’Mayla Min HaTeva and therefore understood best that the entrance of even one person into the Yam would bring a Nes.

Yehuda, explains R’ Nosson, represents the opposite extreme, an approach that clings to Derech HaTeva . As such, they surely should have been a proponent of fighting the

Mitzriyim , and perusing a fulfillment of the words “ וַאֲשֶׁר־חֶרֶב גַּאֲוָתֶך”. Nachshon, however, realized that while this would bring glory to Klal Yisroel, a Nes would bring further Kiddush Shem Shamayim. It was for this reason that Nachshon overcame the cries of “זֶה אָמַר אֵינִי יוֹרֵד וְזֶה אָמַר אֵינִי יוֹרֵד” and entered the water, causing the Nes to occur.

When HKBH saw that Nachshon was more concerned about Kvod Shamayim than the glory that would grace Klal Yisroel upon a victorious battle, the die was cast: “אָמַר הַקָּדוֹשׁ בָּרוּךְ הוּא, מִי שֶׁהִמְלִיכָנִי תְּחִלָּה עַל הַיָּם אֶעֱשֶׂנּוּ מֶלֶךְ עַל יִשְׂרָאֵל”. It was this Middah , the ability to place Kvod Shamayim above all, even the Kavod of Klal Yisroel, that rendered Shevet Yehuda, as represented by Nachshon, fitting of Malchus.

This idea teaches us about the essence of Malchus, and the stature of a Melech. In every other land, the regent represents his own line of royalty, with the glory of the crown taking precedence above all else. Any honor given to the king is therefore an expression of respect for him and his position. A Melech Yisroel, however, is different: he does not represent himself or his house, he is but a conduit for Kvod Shamayim. Malchus was granted to Yehuda because they exhibited the ability to place Ribuy Kvod Shamayim over all else, even the precept of “ וַאֲשֶׁר־חֶרֶב גַּאֲוָתֶךָ”. Any honor or privilege afforded the Melech Yisroel is therefore really an expression of Kvod Shamyim .

This is the message of the Medrash here: “מֶלֶךְ לֹא דָן וְלֹא דָנִין אוֹתוֹ”. If one understands that the Melech is physical manifestation of Kvod Shamayim, that he represents the Shechina itself, the prospect of subjecting him to Din is unfathomable. As the Medrash says, “אֵין בְּרִיָה דָּן אֶת הַמֶּלֶךְ אֶלָּא הַקַּב׳׳ה”, a human being cannot judge a Melech for he is above humanity in that way. Because the position of Melech is defined by the concept expressed in the Mechilta , “מִי שֶׁהִמְלִיכַנִי...אֶעֱשֶׂנּוּ מֶלֶךְ”, it is only HKBH that can apply Din to the Melech.

The Halacha of “מֶלֶךְ לֹא דָן וְלֹא דָנִין אוֹתוֹ” is not in conflict with the mandate of “לְבִלְתִּי רוּם־לְבָבו ֹ מֵאֶחָיו” because it is related not the stature of the Melech himself, but rather to his role as a representative for Kvod

Shamayim. This Halacha does not cause a Melech to be haughty, rather it allows him to understand his true role.

The Gemara applies this Halcha in a more practical sense: the Malchei Bais Dovid were not always perfect in their representation of this Midda and so they would be subject to Din, and the Malchei Yisroel certainly would have been if not for the dangers involved. This is the Psak brought by the Rambam as well: the Halacha of “מֶלֶךְ לֹא דָן וְלֹא דָנִין אוֹתוֹ” is applied different in practicality, based on the realities of the Melachim.

The Medrash , however, is speaking to us, teaching us about the importance of Ribuy Kovd Shamayim. In a perfect world, a Melech is not subject to Din because “אֵין בְּרִיָה דָּן אֶת הַמֶּלֶךְ אֶלָּא הַקַּב׳׳ה”. This reminds us that the Malchus is itself rooted in the ability to place Kvod Shamayim above all else. While we cannot hope to achieve true Malchus, this awareness can propel our ambitions, as we seek ways to increase Kvod Shamayim through all of our actions.