by Zvi Akiva FleisherBack to this week's Parsha| Previous Issues
PARSHAS SHOFTIM 5759 BS"D
Ch. 18, v. 15: "Eilov tishmo'un" - The Holy Admor of Satmar, whose 20th yahrtzeit was this past Sunday, the 26th of Menachem Av, was on his way from London, England to Yerusholayim by ship in 5719. A number of great Torah dignitaries were in the Rebbe's entourage on his way to the Holy Land. The talk gravitated to the previous Torah giants who lived in Yerusholayim. One person began discussing the greatness of the former Rov of Yerusholayim, Rabbi Yehoshua Leib Diskin zt"l, formerly the Brisker Rov. He described the great leadership qualities of the Mahari"l Diskin in superlatives and said that Rabbi Chaim haLevi Soloveitchik zt"l of Brisk said of the Mahari"l Diskin, "Eilov tishmo'un."
The Holy Admor of Satmar said under his breath, "Rabbi Akiva Eiger. Nu, the Arizal." A person sitting in close proximity of the Admor heard these words, but was at a total loss in understanding his intention. He repeated what he heard to a number of people. None could fathom what the Rebbe meant. One person's eagerness to know what the Rebbe's intention was, brought him to be sufficiently courageous to approach the Rebbe and ask what he meant.
The Rebbe answered that basically it is improper to apply these words of our verse to anyone besides a prophet, as is clearly indicated by the context of the verse. However, Rabbi Akiva Eiger in his commentary (Hagohos Rabbi Akiva Eiger) to the Shulchan Oruch O.Ch. #125:1 says that although the Shulchan Oruch rules a certain way regarding the congregation's saying "kedushoh," the Arizal rules differently, and Rabbi Akiva Eiger ends by saying, "Eilov tishmo'un." Initially we see from here that these words can be applied to someone who is not a prophet. However, it immediately dawned upon the Rebbe that Rabbi Akiva Eiger might have fully fathomed the greatness of the Holy Arizal and equated him to a prophet. Thus we have no proof that it is appropriate to apply these words to someone else.
Ch. 19, v. 19: "Kaasher zomam LAASOSE" - The mishneh Makos 5a derives from the word LA'ASOSE "v'lo kaasher ossoh," that only when the sentence has not been executed and the witnesses are found to be false in a manner called "hazomoh," that others testify that the earlier witnesses were not present at the time and location which they claimed they saw the act done, do we carry out reciprocal punishment. However, if the sentence was irrevocably carried out, the false witnesses are not punished.
This obviously deserves an explanation. If they are punished when nothing was actually done to the falsely convicted person, surely when the sentence was carried out, and they have brought about actual damage to an innocent person (lashes, death, etc.), they surely deserve to be punished. Rabbi Ovadioh of Bartenuroh gives three answers to this and the Baalei Tosfos give one.
1) So as not to weaken the stature of the judges. Once a punishment is carried out and the false witnesses are also punished this publicizes the mistake of the judges. People would afterwards not go to the trouble of travelling to a court, saying that the judges often rule inaccurately. 2) If punishment would be carried out even after the falsely convicted person was punished, then there is a fear that his relatives would hire false witnesses to contradict those witnesses as an act of revenge. This could create an endless string of false witnesses and punishments.
3) In T'hilim 82:1 it says, "Elokim nitzov ba'adas Keil b'kerev elohim yishpote." This verse tells us that Hashem is actively involved in the judgements of our courts. Since Hashem allowed the verdict of the court to actually be carried out, although the defendant was innocent of the crime in this case, no doubt, he was guilty of something else which also deserved this punishment. Therefore, after the punishment has been carried out we do not reciprocally punish the false witnesses.
4) If the court has only come to a guilty verdict but not carried it out, the false witnesses have not caused irreparable damage. They therefore are worthy of atonement by reciprocal punishment. Once their testimony has brought about irreparable punishment to the innocent defendant, they have sinned so greatly that they cannot receive atonement through the court system. >From this last explanation we see the awesome responsibility one has for the ripple effects of one's actions. The defendant being found guilty was caused by the false testimony of the witnesses, and they still merit to have their sin exonerated by the earthly court. Once the punishment is executed they no longer merit this. The carrying out of the punishment wasn't done by the witnesses, but rather by the court itself, and yet through the effect of their words that an action was carried out, they no longer merit to have their sin forgiven through court action.
There is one exception to the court's carrying out the punishment through its own law enforcement staff. This is the death penalty. The witnesses themselves must carry out the death penalty, as stated earlier in our parsha, "Yad ho'eidim t'h'yeh bo borishonoh l'hamiso" (17,7). The Torah puts into place numerous safety measures to avoid hastily carrying out the death penalty. This exception can be explained as follows: There is a fear that if someone wanted to have a person killed, but wasn't sufficiently corrupt to actually commit murder, he might decide to testify falsely that the person transgressed a sin that carries the death penalty. He has only testified verbally, and not lifted a finger to kill the person. The Torah says that if the court concludes that the person is guilty, the witnesses must carry out the execution, thus preventing this scenario.
Possibly the rule of "kaasher zomam, v'lo kaasher ossoh" is also a powerful tool in keeping the witnesses on the straight and narrow. Being aware that once their false testimony has been accepted and acted upon, they will no longer be punished by an earthly court because their sin is so great that it can only be punished and rectified by the celestial court, they become keenly aware of the enormity of the sin of false testimony.
Ch. 20, v. 5: "Asher bonoh bayis v'lo chanocho" - Targum Yonoson ben Uziel says that not having dedicated his new home means that he has not yet affixed mezuzos to the door posts.
Ch. 20, v. 5: "Asher bonoh bayis v'lo chanocho" - Rashi says that if one goes to war and dies before he has the opportunity to dedicate his new home it is a "dovor shel agmas nefesh," a matter that causes great emotional aggravation. This remark is difficult to comprehend. If this person dies in battle it is surely a matter of enormously greater aggravation than the lost opportunity to dedicate a new home.
The Imrei Emes answers that Rashi's intention is not as stated above, but rather that Rashi means that it is a great aggravation to have a person die in battle and instead of concentrating on repentance and becoming close to Hashem at the moment of his death, to instead have his thoughts diverted to the lost opportunity of not being able to move into a new home which he has constructed.
Ch. 20, v. 19: "Lo sash'chis es eitzoh ...... KI ho'odom eitz ha'sodeh" - The common interpretation of this verse is that one should not destroy a tree which produces fruit. The verse goes on to equate a person to a tree, and therefore it should not be destroyed. However, Baalei Tosfos say that KI should be translated as "ki im," - only if. The verse tells us an exception to the rule. Even though it is prohibited to destroy a fruit producing tree, if one is at war with the enemy, as stated at the beginning of this verse, if the enemy uses the foliage of the tree to hide or camouflage himself, then one may destroy even a fruit tree to remove this possibly advantageous strategy.
Ch. 20, v. 20: "Rok ho'eitz asher TEIDA" - When we have a doubt if a Torah prohibition applies, we apply the dictum "sofeik d'Oreisoh l'chumroh," when in doubt regarding a Torah-level law, we are stringent. However, there is a disagreement between the Rambam and the Rashboh if acting stringently is required by Torah law or if by Torah law one may be lenient, and it is only a Rabbinical decree to be stringent. According to the opinion that "sofeik d'Oreisoh m'd'Oreisoh l'kuloh," that by Torah law one may be lenient, why does the Torah say that only a tree which YOU KNOW is not a fruit producing tree may be cut down? Even when one has a doubt if it produces fruit, he would also be permitted to do so by Torah law. Answer next week.
Ch. 21, v. 1: "Ki yimotzei" - The Chinuch explains that the procedure of "egloh arufoh" is done to find and judge the murderer. By virtue of going through this unusual procedure which involves the highest Rabbinical court in the land, the news of the murder spreads, and possibly this will trigger the memory of the witnesses and they hopefully would come forward to testify against the murderer. Thus justice would be served.
Rabbi Ovadioh of Bartenuroh gives a different reason. By going through this procedure the news spreads and the wife of the murdered man would become aware of his death and not be caught in the horrible position of being an "agunoh," a woman who can never remarry because we are not sure that her husband is dead. This is specifically done when a man is found murdered between cities. It is quite possible that he is a traveler from far away. Extra effort is therefore put in to spread the report of his death.
Ch. 21, v. 7: "Yodeinu lo shofchu" - The Mahara"l of Prague in his Chidushei Agodos on the gemara Sotoh 45b says that there is a special responsibility to protect a person who travels from community to community. While in a populated area, within society, a person has the merit and protection of being part of a group. Not so when he separates himself and travels alone. The members of the community are therefore responsible to escort him and give him food for the way. This gives him a connection to the community and protects him while on his own during his travels.
Another thought that might be offered is that when a person is accosted by a robber or attacker, he will not summon up his utmost strength if he feels that he is alone and not connected to society. He therefore is more prone to being overpowered by an attacker. If he feels that he has much to live for, feeling that he is appreciated by others, as shown by their escorting him and giving him sustenance for his journey, he emotionally cares much more to survive and will summon his utmost strength to overpower his attacker. The outcome might have been that the traveler would have saved his own life.
Ch. 21, v. 9: "V'attoH t'va'eiR hadaM hanokI" - Targum Yonoson ben UZiel says that upon completion of the "egloh arufoh" ritual a column of worms forms at the site of the killed calf and marches to the murderer. The commentator on Targum Yonoson found in most Mikro'os G'dolos says that this is alluded to in the final letters of "V'attoH t'va'eiR hadaM hanokI," which spell "rimoh," worms.
I don't know what the outcome of such a happening would be, as the "march of worms" is not halachically viable testimony by acceptable witnesses. Possibly by identifying the murderer in this miraculous manner, further investigation would be done, and eyewitnesses might be found.
Perhaps something else would be accomplished even if this will not lead to prosecuting the murderer. The word "KA'PEIR" in the expression "Ka'peir l'amcho Yisroel" (21:8) is translated by the Baalei Tosfos as DISCLOSE to your nation Yisroel, rather then the common translation "forgive your nation Yisroel. The elders pray that after properly completing the "egloh arufoh" procedure they will merit to find out who the murderer is. We fear that a blood-avenger (go'eil hadam) will kill numerous people whom he suspects might have been the murderer. The elders therefore pray, "DISCLOSE to your nation Yisroel who the murderer is." Then the blood-avenger will not kill innocent people. Perhaps this is accomplished by the sign of the worms marching to the true murderer. Although halachically this is not binding proof, nevertheless, it stops needless killings.
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