Mishneh Torah, Kings and Wars 4-6

Sugya Map

The provided text from Mishneh Torah, Hilchot Melachim U'Milchamot chapters 4-6, lays out a wide-ranging exposition on the rights and duties of a Jewish king (Mishpat HaMelech) and the laws of warfare (Milchamot). At its core, the sugya explores the unique halakhic status of the monarchy, differentiating its prerogatives from those of a commoner (hedyot), and delineating the permissible and obligatory forms of conflict.

Core Issues

• Source and Scope of Royal Authority: From where does the king derive his power to levy taxes, conscript citizens, seize property, and even take pilagshim? Is this authority a divinely sanctioned right or a necessary evil conceded to the people?
• Distinction between Milchemet Mitzvah and Milchemet Reshut: The text meticulously defines these two categories of war, their respective requirements for court approval, and their objectives. This distinction is foundational for understanding the ethical and halakhic parameters of national conflict.
• Laws of Warfare: Detailed regulations regarding siege, destruction of fruit trees (bal tashchit), treatment of conquered nations (peace offers, subjugation, tribute), and conduct within the army camp.
• Significance of Eretz Yisrael: The profound spiritual and halakhic importance of dwelling in the Land of Israel, including prohibitions against leaving and returning to Egypt, and the redemptive power attributed to the Land.

Nafka Mina(s)

• Legitimacy of State Power: The extent to which a Jewish government, even in a non-monarchical form, can exercise coercive power over its citizens (e.g., taxation, conscription) and the halakhic basis for dina d'malchuta dina.
• Ethics of National Defense and Expansion: Guiding principles for engaging in war, the role of diplomacy (peace offers), and the treatment of enemy populations.
• Personal Aliyah and Yerida: Practical halakhic implications for individuals regarding dwelling in Eretz Yisrael versus the Diaspora.

Primary Sources

• Tanakh:
  • I Samuel 8:11-17 ("Parashat HaMelech") – The seminal passage detailing the king's rights, which serves as the primary textual basis for much of Rambam's Mishpat HaMelech.
  • Deuteronomy 20:10-18 – Laws of war, particularly peace offers and the command to annihilate certain nations.
  • Deuteronomy 17:16, 28:68, Exodus 14:13 – Prohibitions against returning to Egypt.
  • Deuteronomy 25:17-19 – Commandment to destroy Amalek.
  • Numbers 31:7, Joshua 11:19-20, I Kings 9:15-22, I Samuel 26:19 – Various narratives and laws related to conquest, tribute, and dwelling in Eretz Yisrael.
• Mishneh Torah: Hilchot Melachim U'Milchamot chapters 4-6.
• Gemara: Primarily Sanhedrin 20b (on Parashat HaMelech) and Kiddushin 22a (on pilagshim).

Text Snapshot

Our focus will center on the king's unique marital prerogative, a particularly striking aspect of Mishpat HaMelech.

Exact Lines (MT, Hilchot Melachim U'Milchamot 4:4)

וְכֵן לוֹ לִקַּח נָשִׁים וּפִילַגְשִׁים מִכָּל אֶרֶץ יִשְׂרָאֵל. נָשִׁים הָאֲמוּרוֹת בְּמִצְוָה, אֵלּוּ הַנְּשׂוּאוֹת בִּכְתֻבָּה וְקִדּוּשִׁין. וּפִילַגְשִׁים בְּלֹא כְּתֻבָּה וְלֹא קִדּוּשִׁין. בְּיִחוּד בִּלְבַד קוֹנֶה אוֹתָהּ וּמֻתֶּרֶת לוֹ. אֲבָל הַהֶדְיוֹט אָסוּר בְּפִילֶגֶשׁ. וְאֵין דּוֹמֶה לָהּ אֶלָּא אָמָה עִבְרִיָּה בִּלְבַד אַחַר יִעוּד.

Dikduk/Leshon Nuance

The precision of Rambam's language here is critical, especially in defining the pilagshim (concubines) and distinguishing the king's rights from a commoner's:

• "נָשִׁים הָאֲמוּרוֹת בְּמִצְוָה, אֵלּוּ הַנְּשׂוּאוֹת בִּכְתֻבָּה וְקִדּוּשִׁין."
  • Rambam first defines nashim (wives) as those acquired through the standard halakhic processes of ketubah (marriage contract) and kiddushin (betrothal). The phrase "הָאֲמוּרוֹת בְּמִצְוָה" ("mentioned in the mitzvah") is intriguing. It could refer to the general mitzvah of marriage (pru u'rvu) or perhaps the king's right to many wives, as indicated in Devarim 17:17, "וְלֹא יַרְבֶּה־לּוֹ נָשִׁים" – implying a limited allowance, not a total prohibition.
• "וּפִילַגְשִׁים בְּלֹא כְּתֻבָּה וְלֹא קִדּוּשִׁין. בְּיִחוּד בִּלְבַד קוֹנֶה אוֹתָהּ וּמֻתֶּרֶת לוֹ."
  • This is the radical chiddush. A pilagsh is explicitly not acquired via ketubah and kiddushin. Instead, "בְּיִחוּד בִּלְבַד קוֹנֶה אוֹתָהּ" – mere seclusion (yichud) suffices to acquire her, rendering her muteret lo (permitted to him). This bypasses the entire standard framework of Jewish marriage, which typically requires kiddushin (either money, document, or biah) and implies ketubah for issur kiddushin and financial obligations. Steinsaltz comments, "בכך שמייחד אותה לו לפילגש" (Steinsaltz, Hilchot Melachim 4:4:2), emphasizing the act of designation and seclusion.
• "אֲבָל הַהֶדְיוֹט אָסוּר בְּפִילֶגֶשׁ. וְאֵין דּוֹמֶה לָהּ אֶלָּא אָמָה עִבְרִיָּה בִּלְבַד אַחַר יִעוּד."
  • The term "הֶדְיוֹט" (commoner) is key, explicitly drawing a line between the king and everyone else. For a commoner, a pilagsh is forbidden (Steinsaltz, Hilchot Melachim 4:4:3, referencing Hilchot Ishut 1:4). The only analogous relationship permitted for a hedyot is that of an amah Ivriya after yi'ud. This comparison highlights the unique nature of the pilagsh for the king: a relationship with conjugal rights but without the full formal requirements of kiddushin and ketubah. The amah Ivriya after yi'ud is also a form of marital acquisition without explicit kiddushin money, but through the master's declaration (Steinsaltz, Hilchot Melachim 4:4:4, referencing Hilchot Avadim 4:7). The comparison suggests a halakhic mechanism that, while not standard marriage, grants conjugal rights, and is distinct from mere illicit relations.

Readings

The Rambam's assertion regarding the king's right to pilagshim by yichud alone is a profound chiddush, challenging conventional understandings of kiddushin and issurei ervah. Its validity hinges on the broader conceptual framework of Mishpat HaMelech as presented by Rambam, which itself is a subject of classic debate.

1. Rambam's Position: Parashat HaMelech as Binding Law

Rambam, throughout Hilchot Melachim U'Milchamot, consistently interprets the passage in I Samuel 8:11-17, known as "Parashat HaMelech", not as a mere warning or a description of tyrannical behavior, but as a divinely ordained set of rights and prerogatives granted to the king. This is explicitly stated in Hilchot Melachim 4:1:

"וְדִינָיו בְּכָל אֵלּוּ הַדְּבָרִים וְכַיּוֹצֵא בָּהֶן דִּין. שֶׁכָּל הָאָמוּר בְּפָרָשַׁת מֶלֶךְ מֶלֶךְ זוֹכֶה בּוֹ." (Hilchot Melachim 4:1-2) Steinsaltz clarifies: "הוא אינו כפוף בעניינים אלו לכללים ולחוקים, אלא הוא קובע את הכללים והם מחייבים את העם" (Steinsaltz, Hilchot Melachim 4:1:1). The king is not subservient to existing rules in these matters; rather, he establishes the rules, and they are binding on the nation. Steinsaltz adds: "כשביקשו מלך משמואל הוא פירט להם את זכויות המלך שייבחר... והמלך זוכה בכל הזכויות שכתובות שם" (Steinsaltz, Hilchot Melachim 4:1:2). The rights detailed in I Samuel 8 are actual entitlements of the king.

This foundational principle underpins the king's right to pilagshim. While I Samuel 8:13 mentions "בְּנוֹתֵיכֶם לְרַקָּחוֹת וּלְטַבָּחוֹת וּלְאֹפוֹת" (your daughters for perfumers, cooks, and bakers), which Rambam explicitly cites in Hilchot Melachim 4:5 as a source for taking women for service, the general authority derived from Parashat HaMelech concerning the king's ability to take what he needs extends to pilagshim. The Gemara in Sanhedrin 20b discusses Parashat HaMelech, stating "האמור בפרשת מלך - מלך זוכה בו" (what is stated in Parashat HaMelech, the king acquires it). This Gemara is Rambam's direct source.

Rambam's chiddush concerning pilagshim is that the king's unique status allows him to form a conjugal relationship that is halakhically valid and permitted, yet distinct from standard kiddushin. It is not merely a waiver of a prohibition, but an actual mode of acquisition for the king. This is not hefker (ownerless) or zenut (prostitution), but a form of kedusha unique to the monarchy, akin to the holiness of the Temple service that differs from mundane practices.

2. Kessef Mishneh on Pilagshim: Clarifying the Mechanism

R. Yosef Karo, in his Kessef Mishneh on Hilchot Melachim 4:4, engages directly with Rambam's assertion. He notes the apparent difficulty: how can yichud alone permit a relationship that normally requires kiddushin? He clarifies that this is not a new form of kiddushin, but rather a unique royal prerogative that bypasses the need for it.

"דלא תאמר דהיינו קידושי ביאה, דזה אינו, שאין קידושי ביאה מועלין אלא בכתובה וקידושין, וזה בלא כתובה וקידושין. אלא היינו דאע"ג דלא נתקדשה כלל מותרת לו בביאה. והטעם דהוא אחד מזכיותיו של המלך. וכן אמרו בסנהדרין (כ,ב) כל האמור בפרשת מלך מלך זוכה בו." (Kessef Mishneh, Hilchot Melachim 4:4)

The Kessef Mishneh explicitly rejects the idea that this is a form of kiddushei biah (betrothal through intercourse), because kiddushei biah still requires the intent of kiddushin and is typically understood within the framework of a potential ketubah. Here, Rambam states b'lo ketubah v'lo kiddushin. Rather, it is a zchut (right) of the king, derived from Parashat HaMelech, that permits him to cohabit with a woman without the standard marital bonds. The yichud is the act of formalizing this unique royal relationship, distinguishing it from mere illicit relations. It functions as a ma'aseh kinyan (act of acquisition) specific to the king.

The Kessef Mishneh also addresses the comparison to amah Ivriya after yi'ud. He explains that just as yi'ud for an amah Ivriya creates a valid, though non-standard, marital bond (as stated in Kiddushin 22a), so too for the king, yichud creates a valid pilagshut relationship. The amah Ivriya case is crucial because it demonstrates a precedent for a conjugal bond that is not initiated by the standard kiddushin formula. In both cases, the relationship is formally recognized and permitted, yet distinct from a full nisuin (marriage).

3. Radbaz on Pilagshim: Delving into the Nature of the Relationship

R. David ibn Zimra (Radbaz), in his commentary on Mishneh Torah, further explores the nature of this royal pilagsh. He grapples with the underlying halakhic mechanism.

"מכאן אתה למד שאפי' לכתחלה מותר למלך לקחת פילגשים בלא כתובה וקידושין... דהכי נפקא לן מסנהדרין דף כ' ע"ב דכל האמור בפרשת מלך מלך זוכה בו... ואין לומר בזה שפילגש כזונה הוא, דלא מיתסר אלא מדרבנן, דהא אמה עבריה אחר ייעוד מותרת, וכיון דאיכא ייחוד למלך הרי זה כייעוד לאמה עבריה." (Radbaz, Hilchot Melachim 4:4)

The Radbaz explicitly states that it is permitted l'chatchila (ab initio) for the king to take pilagshim without ketubah and kiddushin. He directly confronts the potential objection that such a relationship might be considered zona (prostitute), which is forbidden to a Kohen and generally frowned upon. His response is crucial: the comparison to an amah Ivriya after yi'ud is not merely illustrative, but demonstrates a halakhic category. Just as yi'ud renders the amah Ivriya permitted, the king's act of yichud (seclusion/designation) for a pilagsh creates a legitimate, non-prostitution relationship. The yichud is the kinyan (acquisition) for the king, just as yi'ud is for the amah Ivriya.

This suggests that pilagshut for a king is a distinct halakhic status, endowed with conjugal rights, but without the full legal and financial obligations of nisuin. It is a form of kedusha of the body unique to the king, similar to how the Kohen Gadol has unique marital restrictions. The Radbaz's analysis reinforces the idea that the king's authority is not merely a political concession but has deep halakhic roots, allowing for practices that would be forbidden to a commoner.

4. Ramban's Critique: Parashat HaMelech as a Warning (Targum)

In stark contrast to Rambam, R. Moshe ben Nachman (Ramban), in his commentary on Deuteronomy 17:14-17 (regarding the appointment of a king), argues vehemently that Parashat HaMelech (I Samuel 8) is not a set of rights, but a targum (warning) describing the abuses of a king if the people insist on one like the nations.

"אבל המאמר שכתב בספר שמואל (א ח יא-יז) "זה יהיה משפט המלך" - אינו מצוה כלל, אבל הוא תוכחה, ופירש להם דרך מלכי הגוים..." (Ramban, Devarim 17:14)

Ramban asserts that Samuel's words "זה יהיה משפט המלך" ("This will be the manner of the king") describe the practice of gentile kings, not the halakhic rights of a Jewish king. If these were actual rights, why would Samuel preface them with "השמע בקולם" (listen to their voice) and portray them negatively? Furthermore, if these were rights, the king would be a despot, which is antithetical to the Torah's vision of a king as a servant of God and the people. The Gemara in Sanhedrin 20b which states "מלך זוכה בו" is interpreted by Ramban as referring to the king's power to take these things, but not his right to do so without incurring sin. He can take them, and the court cannot stop him, but it is still gezel (theft).

From Ramban's perspective, the king's actions, such as seizing property or taking pilagshim without standard kiddushin, would be assur min haTorah (forbidden by Torah law). While the people might not be able to resist him, and he might not face judicial punishment, his actions would nevertheless be sinful. Therefore, a king taking pilagshim through yichud alone would be engaging in illicit relations, not a halakhically sanctioned conjugal bond. The pilagsh in this view would be akin to a zona, or at best, an informal partner whose relationship has no halakhic standing. The comparison to amah Ivriya after yi'ud would be irrelevant, as that relationship is explicitly sanctioned by the Torah, whereas pilagshut by yichud for a king is not.

Synthesis of Readings

The divergence between Rambam and Ramban regarding Parashat HaMelech is the fundamental fault line in understanding the king's authority. For Rambam, the king operates under a special halakhic dispensation, transforming actions that would be forbidden for a commoner into legitimate royal prerogatives. The pilagsh by yichud is the clearest illustration of this, demonstrating a unique category of permitted relationship for the monarch. The Kessef Mishneh and Radbaz elaborate on the mechanics and nature of this unique relationship, validating it as a distinct halakhic form of acquisition.

Ramban, however, sees the king as bound by the same halakha as any other Jew. His "rights" in I Samuel 8 are merely a description of what he will do, given the people's insistence on a king "like all the nations," and these actions, if they contravene Torah law, remain sinful. Thus, the king's taking of pilagshim would be an abuse of power, not a halakhically sanctioned marital status. This philosophical divide shapes not only the understanding of Mishpat HaMelech but also broader questions of governance and the limits of state power in Jewish thought.

Friction

The most significant kushya arising from Rambam's discussion of Mishpat HaMelech, particularly his allowance for pilagshim through yichud alone, is the fundamental challenge to the integrity and universality of halakha.

The Strongest Kushya: Halakha for the King vs. Halakha for the Commoner

If yichud alone is sufficient for a king to acquire a pilagsh, making her muteret lo without kiddushin or ketubah, does this not fundamentally undermine the entire halakhic system of kiddushin and nisuin? How can a Torah law, which mandates specific procedures for marriage and prohibits all other conjugal relations as zenut or ervah, simply vanish for one individual, the king? This seems to create a dual halakha, one for the king and another for the commoner, which is problematic for several reasons:

1. Universality of Torah: The Torah is presented as a singular, immutable law for all Israel. "תּוֹרָה צִוָּה לָנוּ מֹשֶׁה מוֹרָשָׁה קְהִלַּת יַעֲקֹב" (Deuteronomy 33:4) implies a shared heritage and obligation. If the basic rules of issurei ervah can be suspended for the king, what other mitzvot are also subject to royal exemption?
2. Nature of Kiddushin: Kiddushin is not merely a procedural step but a sanctification, creating a unique bond (kedusha) between man and woman. If the king can achieve this kedusha through a simple act of yichud, it devalues the intricate system of kiddushin and ketubah for everyone else. It raises the question: is the kedusha of a king's pilagsh equal to that of a commoner's wife?
3. Moral Implications: As Ramban argues, granting the king such sweeping powers, including the right to take wives and property without conventional halakhic constraint, paints a picture of a despotic monarch, which seems to contradict the Torah's vision of a king chosen to uphold justice and righteousness (Deuteronomy 17:18-20). Is this truly "דרך התורה" (the way of the Torah), or "דרך מלכי הגוים" (the way of gentile kings)?

This tension is most acute in the case of pilagshim because it touches upon fundamental laws of family purity and forbidden relationships, which are cornerstones of Jewish life. The Kessef Mishneh and Radbaz confirm that Rambam means l'chatchila (ab initio) and not merely b'dieved (post facto), making the kushya even stronger.

The Best Terutz (or two)

The best terutzim revolve around understanding the unique Ma'amad HaMelech (status of the king) as a distinct halakhic entity, rather than merely an individual subject to the same laws as everyone else.

Terutz 1: The King as an Embodiment of Klal Yisrael's Sovereignty and Divine Mandate

Rambam's approach can be understood as viewing the king not as an individual with special exemptions from halakha, but as an office that possesses unique halakhic rights derived from a divine mandate. The king is the embodiment of Klal Yisrael's* sovereignty and their collective relationship with God. In this capacity, certain actions become permissible or even obligatory for him that would not be for an individual.

1. Divine Authority of Parashat HaMelech: For Rambam, I Samuel 8 is not a prophetic warning against future abuses but a divine articulation of the inherent powers and rights necessary for a king to effectively govern and lead Israel. These rights are integral to the institution of monarchy itself, established by God (Deuteronomy 17:15). As such, they are not a suspension of Torah law but an extension of it, creating a specific halakhic category for the monarch. The Gemara in Sanhedrin 20b ("כל האמור בפרשת מלך מלך זוכה בו") is read literally as an entitlement.
2. The King's Kedusha: Just as a Kohen has unique kedushot (sanctities) and restrictions because of his role in the Temple service, the king, as the leader of the nation and the one who wages God's wars and establishes justice, possesses a unique kedusha that permits actions forbidden to others. This kedusha allows for a form of conjugal relationship (the pilagsh) that, while not kiddushin as understood for a commoner, is nevertheless a sanctioned and holy bond for the king. The comparison to amah Ivriya after yi'ud is instructive: it's a legitimate, non-standard marital bond, demonstrating that kiddushin is not the only way to form a valid conjugal relationship under certain circumstances defined by Torah. The yichud for the king functions as his unique kinyan, consecrated by his royal status.
3. Purpose of the King: The ultimate purpose of the king is "לְהָרִים דַּת הָאֱמֶת וּלְמַלֵּא הָעוֹלָם צֶדֶק... וְלַעֲשׂוֹת מִלְחֲמוֹת ה'" (Hilchot Melachim 4:10). To achieve these lofty goals, the king needs unhindered authority and resources. If every act of the king were subject to the same strictures as a commoner, his ability to govern effectively, especially in times of war, would be severely hampered. The ability to take pilagshim might be seen as part of the king's kavod (honor) and the necessary trappings of monarchy, allowing him to focus on national leadership without being entangled in the commoner's personal halakhic limitations.

This terutz views the king's halakha not as an exception but as a category, parallel to the halakhot of Kohen or Levi, each with their own unique rights and obligations.

Terutz 2: Dina D'Malchuta Dina and Hefker Beit Din Hefker as a Basis for Royal Prerogative

While not explicitly stated for pilagshim, the broader concept of dina d'malchuta dina (the law of the land is law) and the power of hefker beit din hefker (the court's declaration of property as ownerless is valid) could inform the king's authority.

1. Extension of Hefker Beit Din Hefker: The Gemara teaches that a beit din has the power to declare property ownerless, even against Torah law in some cases (Gittin 36b, Bava Kamma 115a). This power is rooted in the beit din's authority to "make a fence for the Torah" (Avot 1:1) and ensure the proper functioning of society. If a beit din has such authority, a king, as the supreme judicial and executive authority, could be seen as possessing an even broader inherent power to legislate or declare certain matters permissible for the needs of the state, especially if sanctioned by Parashat HaMelech. In this view, the king's yichud could be seen as a kinyan validated by his supreme legal authority, akin to a beit din validating a non-standard acquisition for the public good.
2. Royal Authority as Law: The text states, "וְדִינָיו בְּכָל אֵלּוּ הַדְּבָרִים וְכַיּוֹצֵא בָּהֶן דִּין" (Hilchot Melachim 4:1). This means the king's decrees in these matters are law. While dina d'malchuta dina usually refers to gentile kings' laws being binding on Jews in monetary matters, here it refers to a Jewish king. His decrees, backed by the divine mandate of Parashat HaMelech, create new halakhic realities. Therefore, when the king takes a pilagsh by yichud, he is not transgressing halakha but rather creating a new halakhic reality for himself, sanctioned by his divinely appointed role.

These terutzim highlight that for Rambam, the king is not merely a ruler but a unique halakhic category. His actions, when performed within the scope of his Mishpat HaMelech, are not violations of Torah but rather expressions of a distinct, higher-order halakha applicable only to the sovereign. This perspective maintains the integrity of halakha by categorizing the king's actions under a specific set of rules rather than treating them as exemptions or transgressions.

Intertext

The concepts explored in Hilchot Melachim U'Milchamot 4-6 have deep roots and reverberations throughout Jewish thought and law.

1. The Debate on Parashat HaMelech: Sanhedrin 20b and Kiddushin 22a

The fundamental disagreement between Rambam and Ramban concerning the binding nature of Parashat HaMelech (I Samuel 8:11-17) is directly rooted in the Gemara.

• Sanhedrin 20b: The Gemara discusses the verse "זה יהיה משפט המלך" (I Samuel 8:11) and states, "כל האמור בפרשת מלך - מלך זוכה בו." This phrase is the linchpin for Rambam. He interprets "זוכה בו" as "acquires a right to it," meaning the king is halakhically entitled to these prerogatives. This is the explicit source for his position that the king's actions, such as levying taxes, conscripting soldiers, and taking pilagshim, are not gezel (theft) or zenut (immorality) but are divinely sanctioned.
• Ramban's Interpretation: Ramban, however, must grapple with this Gemara. He argues that "זוכה בו" means the king succeeds in taking it, and the courts cannot prevent him, but it doesn't mean it's permitted l'chatchila or without sin. The Gemara continues with a discussion of Rabbi Yehuda and Rabbi Meir, one holding that the king can take, the other that he cannot. Rambam follows the opinion that he can, interpreting "can take" as "has a right to take." Ramban sees it as "has the power to take" but might still be sinful. The tension is palpable: is it a right or a power to transgress?

This fundamental interpretive difference shapes the entirety of their respective understandings of the Jewish monarchy.

• Kiddushin 22a: The Gemara discusses the mitzvah of yi'ud for an amah Ivriya (Hebrew maidservant). "בעל האמה מייעדה לשפחתו" (the master of the maidservant designates her as his wife/concubine). This creates a conjugal relationship without kiddushin money or document. This is the intertextual parallel Rambam, Kessef Mishneh, and Radbaz use to explain the king's pilagshim. The very existence of yi'ud for an amah Ivriya demonstrates a halakhic mechanism for forming a legitimate conjugal bond outside the standard kiddushin framework. This provides a precedent for the king's unique pilagsh status, showing that kiddushin is not the only way to establish a halakhically permissible sexual relationship in all cases.

2. David and the Pilagshim: A Historical Precedent

The biblical narrative frequently mentions kings with pilagshim, most notably King David.

• II Samuel 5:13: "וַיִּקַּח דָּוִד עוֹד פִּילַגְשִׁים וְנָשִׁים מִירוּשָׁלִַם אַחֲרֵי בֹּאוֹ מֵחֶבְרוֹן" (And David took more concubines and wives from Jerusalem after he came from Hebron). This verse explicitly mentions David taking both nashim (wives) and pilagshim. This historical practice by a righteous king like David, who is called "איש כפי לבבי" (a man after My heart), lends support to the idea that pilagshut for a king is not inherently forbidden.
• Rashi on Sanhedrin 21a: Rashi, commenting on the Gemara's discussion about King David's many wives and pilagshim, clarifies that "פילגשים בלא כתובה וקידושין" (concubines without ketubah and kiddushin). This Rashi is a direct textual support for Rambam's definition of pilagshim and their mode of acquisition for the king. It implies that the pilagsh status was a recognized, legitimate form of conjugal relationship for kings in the biblical era.

This intertextual evidence from Tanakh (I Samuel 8, II Samuel 5) and its interpretation in the Gemara (Sanhedrin 20b, Kiddushin 22a) and Rishonim (Rashi) provides the foundation for Rambam's unique halakhic framework for the king. It anchors his chiddush in both textual precedent and traditional interpretation, even if other Rishonim like Ramban draw different conclusions from the same sources.

Psak/Practice

The halakhot of Mishpat HaMelech and Milchamot from Rambam, while originating in a monarchical context, reverberate through subsequent halakhic development and meta-psak heuristics, even in the absence of a king.

1. Relevance of Mishpat HaMelech in a Non-Monarchical Era

The direct application of the king's rights, such as taking pilagshim or seizing property, is obviously moot in a time without a king. However, the underlying principles are highly relevant:

• State Authority (Medinat Yisrael): The debate between Rambam and Ramban regarding Parashat HaMelech deeply informs discussions about the legitimate authority of a modern Jewish state. If Rambam's view holds that the king's actions are halakhically sanctioned, then a modern Jewish government, acting on behalf of Klal Yisrael, might arguably derive certain powers of taxation, conscription, and even eminent domain from these principles, albeit within a democratic framework and subject to rabbinic oversight. The concept of dina d'malchuta dina (the law of the land is law) often invoked in chutz la'aretz for gentile governments, takes on a much deeper, internal significance when applied to a Jewish state. The state's power to levy taxes (as per Hilchot Melachim 4:1) is crucial for its functioning, and Rambam provides a halakhic basis for it beyond mere dina d'malchuta dina.
• Limits of Power: Even with Rambam's expansive view of royal authority, there are inherent limits. The king's actions must ultimately be "לשם שמים" (for the sake of Heaven) – "מִלְחֲמוֹת ה'" and "לְהָרִים דַּת הָאֱמֶת וּלְמַלֵּא הָעוֹלָם צֶדֶק" (Hilchot Melachim 4:10). This provides an ethical framework for state power, ensuring it is not arbitrary but serves a higher, divine purpose. This heuristic is vital for any Jewish leadership.

2. Halakhot of Warfare and Yishuv Eretz Yisrael

These sections of Rambam are directly applicable and profoundly influential in contemporary halakha and Zionist thought:

• Milchemet Mitzvah vs. Milchemet Reshut: The distinction between an obligatory war (e.g., against Amalek, or defensive wars against attackers) and an optional war (e.g., for territorial expansion) is a cornerstone of Israeli military ethics. The requirement for court approval for milchemet reshut (Hilchot Melachim 5:2) emphasizes the gravity of war and the need for broad consensus and halakhic sanction. This distinction guides contemporary discussions on military action.
• Peace Offers and Bal Tashchit: The directives to offer peace before war (Hilchot Melachim 6:1) and the prohibition against wanton destruction of fruit trees (bal tashchit, Hilchot Melachim 6:8-9) are fundamental principles of ethical warfare. These are not merely historical relics but active guidelines for the conduct of the IDF and Israeli policy, reflecting a deep commitment to humane and environmentally conscious conflict, even against an enemy.
• Mitzvah of Yishuv Eretz Yisrael: Rambam's passionate exposition on the importance of dwelling in Eretz Yisrael (Hilchot Melachim 5:9-12) is a central tenet of religious Zionism. The severe warnings against leaving the land and the immense spiritual benefits of dwelling there are universally accepted halakhic and spiritual principles. The allowance to leave only for specific, pressing needs (Torah study, marriage, property rescue, famine) highlights the strength of this mitzvah. Rambam's unique chiddush that it is permitted to dwell even in a gentile city in Eretz Yisrael rather than a Jewish city in chutz la'aretz underscores the intrinsic sanctity of the land itself. His view that a king's conquest of Egypt would permit dwelling there (5:8) shows that even the prohibition of returning to Egypt is contingent on its status under non-Jewish rule.

In sum, while the specific royal prerogatives like pilagshim are dormant, the broader framework of state authority, ethical warfare, and the paramount importance of Eretz Yisrael remain vibrant and actively inform halakhic thought and practice in the modern era. Rambam's Mishneh Torah here provides crucial meta-psak heuristics for understanding the interplay between divine law and national governance.

Takeaway

Rambam's Mishpat HaMelech presents a king not merely as a temporal ruler, but as a unique halakhic category, whose divinely sanctioned authority enables actions (like pilagshim by yichud) that would otherwise be forbidden, fundamentally challenging and expanding our understanding of halakha's reach within the sovereign sphere. This framework, while not directly applicable to a king today, profoundly shapes our understanding of legitimate state authority and ethical conduct in war and settlement of Eretz Yisrael.