In his sixth lecture on R. Chaim Ozer Grodzinksi for Torah in Motion, history professor Marc B. Shapiro says: According to Rav Nissim of Girona (aka The RaN) says that in our Jewish system, there are two types of governance — Torah law and the law of the king. Take a look at how difficult it is to convict people in Jewish law. You have to have two witnesses. The perpetrator needs to be warned. How do you run a state like this? How do you put people in jail? Every single person in jail would not be in jail by Torah law. First, there’s no jail in Torah law. None of these people were warned before committing their crime.
According to Wikipedia: “Nissim ben Reuven (1320–1376, Hebrew: נסים בן ראובן) of Girona, Catalonia was an influential talmudist and authority on Jewish law. He was one of the last of the great Spanish medieval talmudic scholars. He is also known as the RaN (ר”ן, the Hebrew acronym of his name).”
Marc: The standard view is that the Beit Din has the authority to do whatever they want to do as an emergency measure. There’s a famous case in the Talmud where the rabbis executed someone for riding a horse on Shabbos even though that’s only a rabbinic prohibition. To establish Torah law, the rabbis are allowed to break with Torah law and to do extra-judicial measures. The Beit Din can do what it needs to do. That’s the way Jewish society worked in medieval time. All sorts of punishments were given to people that were forbidden by Torah law.
The RaN said that Torah law and real law (law of the king) operate in different spheres. According to Torah law, you need two witnesses to convict someone but the law of the king can set up any proof it wants. The king sets up a parallel legal system.
You could conclude that Torah law is only meant as some theoretical law. It is clearly impossible to run any sort of society based on Torah law. It’s almost law for a messianic society and not meant for the real world.
The RaN is not talking about emergency measures. He’s talking about a complete parallel legal system. Many people aren’t aware of this. They think that if you don’t have at least two witnesses warning someone, you can never convict. I think this is a disgrace to the Torah because it makes people think that Jewish law can not function in the real world.
If someone has half a brain and they’re in yeshiva and learning all the laws and that’s all they’re told about how a Jewish system will function, they will have to conclude that Jewish law is not suitable for a real society. How can you have a society where you can’t send criminals to jail?
Obviously Jewish law can function in a real society. It has functioned in a real society. If you want to know how Jewish law has functioned in a real society, look at the responsa literature. There you see what Jewish societies did with criminals. They did what they needed to do. Some punishments were quite barbaric. Cutting off noses. Yitzhak Baer discusses this in his book A history of the Jews in Christian Spain. The Tzitz Eliezer has a great teshuva on how Jewish law functioned and how the courts were able to punish people. Simha Assaf has an entire book, Punishments after the close of the Talmud.
Rabbi Yitzhak HaLevi Herzog naively believed that Israel’s criminal law could be run according to Jewish law.
If I were to go in to most shuls and to talk to people, even learned Torah scholars, and say that Jewish law was not practical and that if we had a state, we’d have to punish people in non-Torah ways, they’d say I’m a heretic. The amount of ignorance on this issue about how Jewish society has functioned and how leading rabbis have said it should function. I don’t know any area where there is such ignorance.