16 Jun Funding the Police
Protesters around the country are calling to defund the police. This offers us an opportunity to discuss the halachically required funding for police. At the beginning of the State of Israel, halachic scholars analyzed the necessity of maintaining a police force, particularly regarding whether police officers may violate Shabbos for their work but also their necessity for society in general. Judaism requires a police force for at least four reasons. (In the following, I benefited from the studies of Rav Eliezer Waldenburg, Hilchos Medinah, vol 1, section 1, ch. 9 and Rav Shaul Yisraeli, Amud Ha-Yemini, ch. 17.)
The Torah commands the Jewish nation, “Judges and officers (shoterim) you shall make in all your gates, which the Lord your God gives you, tribe by tribe; and they shall judge the people with righteous judgment” (Deut. 16:18). We see that Moshe himself fulfilled this obligation. When Yisro advised Moshe to expand then judiciary so Moshe does not have to judge every case, Moshe appointed officers, shoterim, as well: “So I took the heads of your tribes, wise men, and full of knowledge, and made them heads over you, captains of thousands, and captains of hundreds, and captains of fifties, and captains of tens, and officers, tribe by tribe” (Deut. 1:15). The great sage of the Mishnah, R. Elazar, says very frankly, “If there is no officer, there is no judge” (Tanchuma, Shofetim 2). He explains that if a judge rules against a litigant, the officer will enforce the ruling. Without such enforcement, how can a judicial system function? According to this understanding, these officers — the police — serve the judges by enforcing their rulings. Rav Ya’akov Ba’al Ha-Turim (14th cen., Spain; Tur, Choshen Mishpat 1) quotes Rav Hai Ga’on (11th cen., Babylonia) who said that every judge should have a whip and rod to enforce his rulings. Based on this, Rav Avraham David of Botchatch (19th cen., Poland; Kessef Ha-Kodashim, ad loc.) says that just like there currently is a rabbinic obligation to appoint rabbinic judges, there is similarly a rabbinic obligation to appoint officers to enforce those judgments (where secular law permits).
Rambam views the role of shoterim more broadly. In describing the appointment of judges and officers, Rambam (Mishneh Torah, Hilchos Sanhedrin 1:1, adapted from Touger translation) writes: “‘Officers’ refers to those equipped with a billet and a lash who stand before the judges and patrol the market places and the streets to inspect the stores and to regulate the prices and the measures. They inflict corporal punishment on all offenders. Their deeds are controlled entirely by the judges. Whenever a person is seen perpetrating injustice, [the officers] should bring him to the court, where he will be judged according to his wickedness.” On the one hand, Rambam sees the officers as arms of the court, similar to above. However, he adds that they not only enforce the court’s judgments but also investigate crimes and capture criminals. This is the kind of police force with which we are familiar. Without their law enforcement activities, society would not be able to function. How would judges punish criminals? The victims could summon the criminals to court but only if they knew the identity of the attacker, and only if they were alive to address the court. Rambam (ibid., Hilchos Yom Tov 6:21, Touger translation) adds to the responsibility of the police the enforcement of moral norms: “The [Jewish] court is obligated to appoint officers who will circulate [among the people] on the festivals and check the gardens, orchards, and river banks to see that men and women do not gather there to eat or to drink, lest they [conduct themselves immodestly and come to] sin.” Police not only investigate crime and administer punishment, they take measures to prevent crime and immorality.
III. NOACHIDE POLICE
The above discussion revolves around the Torah obligation to appoint officers. However, a more universal obligation to appoint law enforcement officers exists. The Torah (Gen. 34) describes how Ya’akov’s sons killed the residents of Shechem over Dinah’s rape. Why were all the residents punished for a single man’s sin? Rambam (ibid., Hilchos Melachim 9:14) uncharacteristically explains this biblical episode in his legal code. People in general are obligated by the Noachide code to establish courts to maintain justice. Since Shechem was unpunished for his crime, the city residents clearly were failing to enforce law and order, and therefore liable for violating the command to establish courts. According to the Rambam, every citizen is obligated to enforce the law or appoint officers to do so. The failure to establish any mechanism for law enforcement constitutes a crime. (Ramban, Gen. 34:13 disagrees.)
IV. SAVING LIVES
Rav Shaul Yisraeli (Amud Ha-Yemini 17:9) quotes Ramban and Rashba (Shabbos 42a) who struggle with the view of Rav Hai Gaon and others that you may extinguish on Shabbos a burning coal in the public domain. Doing so violates a biblical prohibition. They suggest that even though individuals can avoid the danger of a burning coal, its placement in public renders it a broad threat that qualifies as a life-threatening danger. Rav Yisraeli believes that any danger to peace or property in public constitutes a life threat and justifies violating Shabbos. Even something that would be minor to an individual, when broadened in scope it constitutes a life threat to someone, somewhere. Even those who disagree with Rav Hai Gaon’s specific ruling would agree in general that when dealing with public peace and safety, a minor need can be life threatening on a broad scale. For example, if thieves know that the police will not stop them on Shabbos, they will become brazen. Someone desperate will choose to defend his property, leading up inevitably to murder. Police must respond to robberies in order to save lives.
Society must establish a police force in order to enforce justice, prevent crime and maintain peace. Their work rises to the level of saving lives, both literally and by fighting crime. Failure to fund the police adequately constitutes a universal crime. However, there is no obligation to fund police for non-essential functions. An officer of the court may not be the right person to ticket double-parkers or to direct traffic. What is the proper funding level for a police force? How many officers are necessary? Rav Yechiel Michel Epstein (19th cen., Lithuania; Aruch Ha-Shulchan, Choshen Mishpat 1:17) says that there is no set number of officers. Rather, the court must determine the necessary size of the police force. There may be room to reduce funding for police but essential funding is required for both a halachic and a Noachide society