One of the great talmudic scholars of his day, Nissim of Girona (1320–1376) was also one of very few medieval rabbis who wrote extensively on what, in modern terms, would be termed political philosophy. In the opinion of Warren Zev Harvey, Rabbi Nissim “thought in constitutional terms strikingly similar to those of Tocqueville.” Harvey thus finds this sage’s thought germane to the current political debate in Israel over the extent of judges’ authority, and in particular over whether there should be some check on the supreme court’s ability to overturn duly enacted laws simply because it finds them to be “unreasonable.”

Rabbi Nissim argues in his “Homily on Justice” (Drashot, chapter 11) that the vocation of the judges is to judge in accordance with “righteous judgment” (Deuteronomy 16:18), while that of the kings is to preserve national security. He then pushes this distinction in a radical way that was unprecedented in the history of legal philosophy. The judges, he insists, possess the authority to judge only with righteous judgment; that is, they have no authority whatsoever to judge according to utilitarian or consequentialist considerations. They must judge according to the good in itself and the just in itself. Their considerations, in the language of the philosophers, must always be deontological. The kings, however, who are charged with the preservation of national security, do possess the authority to act according to utilitarian or consequentialist considerations.

Rabbi Nissim writes that when there is a grave threat to national security, the king has the authority to overturn or to “override” the ruling of the judges. He gives as an example a dangerous murderer whom the judges cannot convict owing to procedural concerns (for example, there were not two witnesses). Rabbi Nissim explains that the judges rightly cannot execute him since “righteous judgment” requires strict observance of evidence law. However, the king has the authority to “override” their decision, and to sentence the murderer to death in order to preserve national security (cf. Maimonides, Laws of Kings 3:10). In times of dire emergency, the king invokes the “override clause.”

For some time, opponents of U.S support for Israel have been urging the White House to end the war in Gaza, or simply calling for a ceasefire. Douglas Feith and Lewis Libby consider what such a result would actually entail:

Ending the war immediately would allow Hamas to survive and retain military and governing power. Leaving it in the area containing the Sinai-Gaza smuggling routes would ensure that Hamas can rearm. This is why Hamas leaders now plead for a ceasefire. A ceasefire will provide some relief for Gazans today, but a prolonged ceasefire will preserve Hamas’s bloody oppression of Gaza and make future wars with Israel inevitable.

For most Gazans, even when there is no hot war, Hamas’s dictatorship is a nightmarish tyranny. Hamas rule features the torture and murder of regime opponents, official corruption, extremist indoctrination of children, and misery for the population in general. Hamas diverts foreign aid and other resources from proper uses; instead of improving life for the mass of the people, it uses the funds to fight against Palestinians and Israelis.

Moreover, a Hamas-affiliated website warned Gazans last month against cooperating with Israel in securing and delivering the truckloads of aid flowing into the Strip. It promised to deal with those who do with “an iron fist.” In other words, if Hamas remains in power, it will begin torturing, imprisoning, or murdering those it deems collaborators the moment the war ends. Thereafter, Hamas will begin planning its next attack on Israel:

Hamas’s goals are to overshadow the Palestinian Authority, win control of the West Bank, and establish Hamas leadership over the Palestinian revolution. Hamas’s ultimate aim is to spark a regional war to obliterate Israel and, as Hamas leaders steadfastly maintain, fulfill a Quranic vision of killing all Jews.

Hamas planned for corpses of Palestinian babies and mothers to serve as the mainspring of its October 7 war plan. Hamas calculated it could survive a war against a superior Israeli force and energize enemies of Israel around the world. The key to both aims was arranging for grievous Palestinian civilian losses. . . . That element of Hamas’s war plan is working impressively.