One of the mitzvot that Israel were commanded upon entering the Land is to appoint a king, as we find in Devarim (17:14-15): "When you come to the Land that Hashem, your G-d, gives you, and possess it, and settle in it, and you will say, 'I will set a king over myself' ... You shall surely set over yourself a king whom Hashem, your G-d shall choose." In fact, when Israel entered the land, after a certain period of time, they asked Shmuel to appoint a king over them. (There is a discussion in the commentaries whether this was a proper request, since we find that Shmuel was angry with them. However, this is not our issue here.) What happens when there is no king? Nowadays, we have elections in democratic process, which asks the people's opinion. The question is whether there is basis for this in the Torah or is it something that we learned from the gentiles.

The Midrash Rabbah (Vayikra 26:7) in Emor refers to Shaul as the first king. Many ask from the Rambam in Hil. Melachim (1:3) that a new king (i.e., one who did not inherit the throne) is appointed only by a prophet and the Sanhedrin of seventy-one, like Yehoshua, who was appointed by Moshe and his court. Thus, the Rambam considers Yehoshua already a king, against the Midrash. Rav Kook deals with this at length in his sefer, Mishpat Kohen (#154), in a responsa that serves as the cornerstone for all discussions about the government in Israel. He answers based on another sugya in Sanhedrin 49a, that if king sends an agent to violate Torah law, and he refuses – he is not considered a mored bemalchut. The Gemara learns this from Yehoshua: "Any person who violates your words, etc. (1:18) – only in permitted areas, not against the Torah." This implies that Yehoshua is considered a king; otherwise, what is the proof?! Thus, the Rambam understood that the Midrash about Shaul is against the Gemara in Sanhedrin, and he ruled like the Gemara.

Later (Hil. Melachim 1:10), the Rambam writes that only a king of the Davidic dynasty is anointed with anointing oil. The Kessef Mishne asks, but also Shaul was anointed? He answers that Shaul was the first king over Israel, and therefore was also anointed. But how could he explain that Shaul was the first king, while the Rambam himself writes that Yehoshua was king beforehand, as he writes regarding the need to be appointed by a prophet. In truth – why was Yehoshua not anointed? Furthermore, it says in the Tosefta that we don't appoint king outside of Israel, as it says, "When you come to the Land" – so how did Moshe appoint him?

Thus, the Rambam's opinion here that Yehoshua was a king is not understood. It is against the Midrash, and has other difficulties. On the other hand, there are sources that indicate that Yehoshua was, in fact, a king. The Gemara in Yoma (73b) discusses who may ask from the urim vetumim, and learns from Yehoshua that the king may ask. "He will stand before Elazar the priest, who will ask on his behalf the decision of the urim before G-d ... he and all of Bnei Yisrael, etc. 'he' – is the king." Rashi explains: Since the pasuk is talking about Yehoshua. This is an explicit proof that Yehoshua was a king.

Moreover, the Midrash (that refers to Shaul as the first king) is very difficult. On the pasuk, "He became king over Yeshurun," (Devarim 33:5) Chazal teach that Moshe was considered a king. In the Gemara (Zevachim 102a) it says that Moshe sought the monarchy and it was not granted to him. But we know that was king? The Gemara answers that he asked for himself and his descendents and this not granted, but he himself was king. So how does the Midrash say that Shaul was the first; what about Moshe and Yehoshua? In fact, why did Moshe not transmit the rulership to his descendents, since usually official positions are inherited to children.

There is an additional question. The Mishna in Shavuot (14a) teaches that we only add to the city [of Yerushalayim] with a king and a prophet, etc., all of which are learned from Moshe. (See Rashi 15a) Thus, we see that Moshe was a king.

To understand this, we need to know Drashot Ran 11, which is mentioned by anyone who addresses these issues. The Ran deals at length with the order of justice in Israel. He writes that there are two systems of justice. One is like any other country and nation, as it says in Pirkei Avot, "Were it not for the fear of the government, people would devour each other." If there were no law and order, people would eat one another. Even in bands of thieves there are rules. This is something which is necessary in every state. Besides this, in Am Yisrael there is a special system of justice in regards to the laws of the Torah, for which the punishments are malkot and mitot Beit Din, and these laws are not necessarily connected to social order. This is absolute, objective, ideal justice, as it says, "They should judge the people mishpat tzedek." This is special Divine justice that does not exist in any other nation. For this there are Batei Din and Sanhedrin, to uphold this special system of justice, which is connected to the special idea of Israel, so that the shefa Eloki (Divine Influence) will be present in Israel. This is also the role of sacrifices. For this reason the Sanhedrin sits in the Lishkat Hagazit in the Temple, to show the special connection between the Sanhedrin and the Mikdash. Thus, the Gemara (Shabbat 10a) teaches that a judge who rules justly becomes a partner with G-d in Creation.

However, there is a problem here. Because the Divine justice is so careful about the rules of justice, may people can evade the law. For example, every case needs a precise warning. This warning must be administered toch kedei dibur, otherwise the person may have forgotten. He forgot so quickly?! But in the absolute Divine justice this is so. He also must be informed of the specific death according to some opinions. There must be kosher witnesses, with a long list of disqualified witnesses, and there are many other regulations not found in any other system of justice. For example, in all societies, the admission of the defendant is the greatest incrimination, whereas the Torah rules that a person cannot incriminate himself. It is no wonder that Chazal said that a Sanhedrin that killed once in seventy years is murderous. It is almost impossible to kill. However, all this is in order to establish the judgment unquestionably, so that we don't have what happens now – that afterwards we find out that the convicted person was innocent. This can hardly happen according to the Torah. On the other hand, almost every criminal can evade justice! For this, the Ran writes, the Torah sets up the king. The king comes to fill in the social justice, since the king does not rule based on Torah law. A king may rule based on the criminal's own admission, as we find that Yehoshua killed Achan based on his admission. Thus, the king's justice fills in what the Divine justice leaves open.

However, there is a well know Gemara (Sanhedrin 46a) that Beit Din can also punish not according to the Torah – not because the halacha mandates the punishment, but in order to make a fence for the Torah. For example, the Gemara brings a story of one who rode a horse on Shabbat and they killed him. Riding a horse on Shabbat is only a rabbinic prohibition, but they killed him as a hora'at sha'a in order to protect the observance of Shabbat. Similarly, one who has relations with his wife in public receives lashes. Thus, it comes out that Beit Din can also judge not based on the Torah if need be. So why does the Ran write that we need a king for this? The Ran answers that when there is a king the justice is split – the Beit Din handles most of the cases, and what Beit Din is unable to deal with is handed over to the king. However, when there is no king, Beit Din receives the authority of the king. They have the right to institute decrees and to judge not according to Torah rule only at a time that here is no king

Thus, we find many times in the Tanach that the judges had the authority of a king. For example, it says, "They appointed Avimelech as king near ... Shechem." (Shoftim 15:6) Avimelech was not a king – he was a judge! Rather, since there was no king he received the authorities of the king. So, too, Moshe was not really a king. Rather, he was the head of the Sanhedrin, and in the absence of a king he had the authorities of the king. That is why Shmuel was angry with the people when they asked for a king. The proper order of justice is that most of the judgment is to be done by the Sanhedrin, whereas the people asked, "Give us a king to judge us." Had they just asked for a king it would have been acceptable; this is a mitzvah in the Torah ­– but they wanted a king to judge them based on social justice, like all other nations. This cannot be in Israel! This is what Hashem tells Shmuel, "It is not you they have rejected, but rather Me" (Shmuel I 8:7), and this is why Shmuel was angry with them.

Thus, Moshe and Yehoshua were not per se kings, but they filled in for them. Since there were no kings then – the authority was given to the head of the Sanhedrin, so that Moshe and Yehoshua were considered kings. Thus, all the questions we asked above are not difficult, since they were not actually kings, but rather in their capacity of head of the Sanhedrin they received the authority of a king. That is why they were not anointed and could be appointed outside of Israel.

It seems that this is the basis for the famous statement of Rav Kook, which everyone deals with, regarding the Hasmonean kings: "At a time that there is no king, since the rules of a king relate to the general state of the nation, the rights of these privileges return to the nation as a whole. Moreover, it appears that any ruler who rises in Israel has the status of a king for a number of rules of a king, especially those that relate to leading the people." I.e., when there is no king, his rights are transferred to the people, and they establish a leader, who has many of the rules of a king.

Rav Yisraeli adds three limitations to this. First: The fill-in does not have to be the head of the Sanhedrin, even though all the examples that we gave were judges – Moshe, Yehoshua and the shoftim. It is preferable, but not necessary. Where does he know this from? The Gemara says that three kalei olam" became leaders - Gideon Yiftach and Shimshon. If the Gemara refers to them as such, they could not be the heads of Sanhedrin, but since they served as the leader – they received the authority of the king. The second point: When we appoint the head of Sanhedrin, or other leader, as substitute for the king – he needs an official ceremony of appointment. The third point: This appointment is only by those who appoint the king.

Why does he have to say this? Because although the Rambam can be explained based on the Ran, the Rambam derives from Yehoshua the procedure for appointing a king. So although we explained that Yehoshua was only substituting for the king, still there is need for the same procedure as appointing a king. And if Yehoshua was appointed by a prophet and Sanhedrin – it must be that a king is appointed in same way. Based on this we can understand the Sforno who writes that a king passes on his monarchy to his children, whereas a shofet does not: "He alone rules (moleich) and not his descendents." Why does the shofet not transmit to his descendents? And what does he mean "moleich?" Based on the Ran we understand this well. When there is no king – the shofet rules. But this he does not transmit to his sons, since this in only a temporary office as a substitute. The role of shofet he transmits, but not the authority of king.

We can now begin to address our issue. The Rambam writes that we appoint a king only by a prophet and the Sanhedrin. Yet, we don't find that the shoftim, who served as kings, were appointed by a prophet and Sanhedrin of seventy-one! In truth, this question applies also to the kings of the Second Temple, when there was no longer a prophet. Rav Kook discusses whether perhaps the need for a prophet is only lechetchila, whereas the need for Sanhedrin is even bedieved. However, others ask that the Rambam mentions the two criteria without distinguishing between them at all.

If you should suggest that the kings of the second Temple were not actually considered kings – we see from Gemara not so. The Gemara relates that Agripas moved aside to allow a bride to pass and asks how he could do this, since a king cannot forego his honor. (Ketuvot 17a) He also read from the Torah at the Hakhel ceremony. (Sotah 41a)We see that the Gemara considers Agripas a real king! Although Agripas was not allowed to be king, since only his mother was Jewish, Tosfot writes that they treated him as a king. If so, certainly the kings of Second Temple had the status of king.

The Ramban postulates that when it says "asher yivchar Hashem Elokecha bo," i.e., by the prophet ­– this is only if possible to do so. The intention of the pasuk is as Chazal write (Bava Batra 91b): "Even the official in charge of the well is appointed from heaven" – that every public office is declared in heaven. However, the Rambam implies that a prophet and Sanhedrin are required – even bedieved, so how can it be?

On the other hand, we find the choice of king not by a prophet. Tosfot (Sanhedrin 20b) asks, why was Achav punished for taking the field of Navot by force, since it says in the mishpat hamelech in Shmuel that the king is allowed to take the fields of his subjects? Tosfot gives a number of answers, the last of which is that only a king who rules over both Yisrael and Yehuda, and by G-d – has these rights, whereas Achav did not rule over all of Israel and not by G-d. This sounds like Achav was not a complete king, and hence the mishpat hamelech in Shmuel doesn't apply to him. However, the Aruch Laner writes that this is only as far as the royal privileges mentioned in Shmuel, but not as far as laws of the king in Parshat Mishpatim: "Appoint a king over you!" – which discuss the attitude and honor towards a king. This applies even to a king like Achav, as the Gemara (Zevachim 102a) indicates that Eliyahu ran before Achav in order to show him honor. Furthermore, the Gemara in Sanhedrin (48b) learns from Achav that the property of one who is condemned as a mored bemalchut goes to the king.

How did Achav become king? He inherited the throne from his father, Omri. How did his father become king? He also was not appointed by a prophet. Rather, it says in Melachim I (16:21-22) that the people were divided between Tivni and Omri, and the supporters of Omri prevailed. Thus, how did become king? Because most of the people were behind him. But what about the need for a prophet and the Sanhedrin?! We see that there are two kinds of appointments for kingship: 1) through the prophet and Sanhedrin, and 2) through the desire of the people. The Radvaz in Hil. Melachim (3:8) writes: Who is considered a king so that there is a rule of mored bemalchut? Either one who is appointed by a prophet or one that all of Israel agree upon. The explanation of this is: when appointing a king without asking the people – it must be through a prophet and Sanhedrin; but when asking the people – there is no need. At first Omri and Tivni were equal, and then Omri gained the support of the majority.

Another example of this principle of asking the people is that we don't go out to a war of reshut (optional) without the consulting the Sanhedrin. However, the Meiri writes that this is when we don't have the approval of the people, but if people want – there is no need to consult. This is a very important point. Some people ask, based on what can the Israeli government declare war without Sanhedrin? The classical answer is that it is not a war of reshut, but of mitzvah. But how can they initiate war? Based on this Meiri, we don’t need to answer this way, since if the people want – they can go to war. Who is "the people?" The leader that the people choose. The whole idea of elections is a means to know what the people want; who they are willing to appoint as a leader over them? This is a fully legitimate means to appoint the king, or, in the absence of a king, his substitute, as the Ran writes. Rav Kook writes that the people have the right to appoint a leader that has many of the laws of king. Even though he does not have the privileges mentioned in Shmuel, the required honor and the notion of mored bemalchut apply even to someone like Achav.

(As far as non-Jewish representatives, there is a big problem. Rav Herzog deals with this at length. He consulted with Rav Chaim Ozer in Vilna what can be done in the modern world, when we cannot openly declare non-Jews as secondary citizens. Rav Ozer alluded to this Ran, and Rav Herzog discusses whether it is applicable.)

There is an important source for the need to consult with the people in the Gemara (Brachot 55a):

R. Yitzchak said: We do not appoint a leader over the community without consulting with the people, as it says, "See, G-d called in the name of Bezalel." (Shemot 31:2)

G-d said to Moshe: Moshe, is Bezalel acceptable to you?[Moshe] said to Him: Master of the Universe! If he is acceptable to you – certainly to me![G-d] said to him: Even so, go and tell them.He went and said to Israel: Is Bezalel acceptable to you?They said to him: If he is acceptable to G-d and to you – certainly to us!

Rav Kook, in Ein Aya, explains what the three stages were. A leader needs three qualities: First, he needs inner character ­– sanctity, purity and morality. Second, he needs pragmatic ability to lead the people. Third, he needs external impression – ability of speech, etc. (what we call charisma). However, the three are not equal. The first and most important quality, only G-d knows. The second quality, people can judge, but not everyone. The third, and least important, everyone can tell. Therefore, first G-d gave his approval, indicating the first quality, then Moshe, and then the people. Unfortunately, nowadays the order is reversed, and people focus on external qualities first.

This is the source for the need to ask the people's opinion. There are many responsa about this. For example, the Mordechai (Bava Kama #107) writes that one is not allowed to appoint a chazzan against the will of the people. He cites a case that a chazzan was appointed by the local gentile official, and the chazzan threw the turban back at him and said, "You won't appoint me over the service of our G-d!" The Tashbetz deals with a case in which a worthy person (samuch umufla) was appointed as Dayan by a gadol hador without asking the people's consent. He responded that the gadol erred and should have consulted with people, since even G-d doesn’t appoint without consulting with people, as it says, "See, G-d called in the name of Bezalel." Thus, not only an appointment by a gentile, but even a gadol hador who appointed a worthy person was reprimanded for not consulting with the people. We see this from Gemara, that even when Moshe appointed Bezalel, whom everyone knew was worthy – still, G-d told Moshe to go and consult with the people.

Similarly, the Chatam Sofer writes that this Rav, even if he is great, did not do properly to go stronghanded. Where is his wisdom in the Talmud, which says, "We do not appoint a leader over the community without consulting with the people," even though Bezalel was full of wisdom? So how could any person be appointed without asking the consent of the majority of the community!

Someone asked: Is authority inherited? We see that we need the agreement of people. Even though the monarchy is inherited, and the son has priority, and it is recommended that the people accept him – still, we do not go against the will of the people, and if they don't want him, we may not appoint him. The Shulchan Aruch (O.C. 53:19) writes about a sheliach tzibbur that even an individual can protest. The Rama qualifies that he needs a proper reason. The Magen Avraham writes that this applies not only to a chazzan, but to any public position. The Achronim ask, but how can we expect unanimous agreement? Rather, we must follow the majority, especially nowadays that the objection is often not for proper reasons, but in spite, just to say the opposite. So we must follow the majority.

This idea of the majority of the people applies not only to the appointment of a public position, but also for decrees of Chachamim. The Sages have the right institute decrees. The Rambam writes that the Sages have authority in three areas: "Al pi haTorah asher yorucha – this refers to decrees that lead the people to strengthen their religious observance; "ve'al hamishpat" – what they derive from the 13 principle of expounding; "lo tasur min hadavar asher yagidu lecha" – what they heard based on oral tradition back to Moshe Rabbeinu. Nevertheless, the Rambam writes that the Sages need to consider carefully the decrees that they declare, whether most of the people can uphold them or not. We never declare a decree unless the people are able to withstand it. Take a survey – if they can't, don't decree. Moreover, even if they already declared, and later find out that the people are not able to uphold it ­– we abolish it. Even though there is rule that a Beit Din cannot abolish the words of another Beit Din unless it is greater in wisdom and number, when people cannot uphold the decree – we don't need them to be greater in wisdom and number.

There is basis for this in the Gemara (Avoda Zara 36a), regarding the decree against the bread, wine and oil of gentiles. The Sages found that the decree against oil did not spread, and abolished it, since "we do not declare a decree on the community unless most of the community can uphold it." The Rambam also writes. "If they thought that it spread, and it stood this way for many years, and much later a Beit Din checked and saw that it didn't spread – it has the right to abolish it, even if lesser in wisdom and number." The Gemara bases this on the pasuk in Malachi (3:9): "You steal from Me, the entire people." What does it mean, "the entire people?" Chazal explain: If there is "the entire people" – yes, if not – no. Tosfot writes that we do not say that it turns out retroactively that the decree never existed, but rather what was – was, just that we don't need a greater Beit Din, and can abolish it from now on.

[The Rambam writes that one who prohibits oil nowadays, is "in violation of a great sin." Just as one cannot allow something prohibited, so, too, one cannot prohibit something allowed. The Ha'amek Davar writes at length in the end of Parshat Shemini, based on the pesukim there, that one cannot prohibit something that is allowed. We shouldn't always say, "I don't know – let's be stringent." We have to try to clarify the halacha, and if it is allowed – we are not allowed to prohibit it.]

Thus, what emerges it that this whole idea of elections, which we thought was learned from the gentiles, has sources in the Torah. Every appointment has to be done through asking the people, and the will of the people is what determines.

We must remember what is says in the end of Sefer Devarim (30:15-19): "See I have placed before you today the life and the good and the death and the evil ... choose life, so that you and your descendents shall live." When we go to vote – we must vote for something that will bring life to Am Yisrael!

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