CHAMISHOH MI YODEI'A - FIVE QUESTIONS AND ANSWERS ON PARSHAS SHOFTIM 5773 - BS"D
1) Ch. 16, v. 18: "Shoftim v'shotrim" - Judges and enforcers - Why is this law juxtaposed to the festivals of the previous parsha?
2) Ch. 17, v. 8: "Bein dom l'dom" - Between blood and blood - What is the issue at hand for which we must decide between one type of blood and another?
3) Ch. 17, v. 1: "Asher yi'h'yeh vo moom" - That will have a flaw - Why doesn't the verse simply say "asher bo moom"?
4) Ch. 17, v. 11: "Lo sosur min hadovor asher yagidu l'cho yomin usmole" - Do not deviate from the ruling that they relate to you neither right nor left - Rashi (Sifri #154) says that these words teach us that you must follow their rulings even if they tell you that right is left and left is right, i.e. even if to you it is crystal-clear that they said the exact opposite of the proper ruling. Is the intention of our verse to tell us that we are guaranteed that they will surely come to a correct ruling, no matter how preposterous it seems to us?
5) Ch. 17, v. 13: "V'chol ho'om yish'm'u v'yiro'u" - And all the nation shall hear and fear - Rashi (gemara Sanhedrin 89a) says that we derive from these words that we do not put the rebellious scholar to death immediately, as is the case with others, but rather, we wait until all the bnei Yisroel assemble at the next of the thrice yearly pilgrimages, and put him to death in a public display. This is derived from "and all the nation." We similarly find this expression or "v'chol Yisroel" by the person who incites idol-worship, the rebellious son, and the false witnesses called "zom'mim." Is their death likewise delayed until a Yom Tov?
1) Just as people made a pilgrimage to Yerusholayim for the thrice annual festivals, so too, if the judges would be in doubt, they too would go to Yerusholayim to seek counsel from the highest court, "Ki yipo'lei mimcho dovor …… v'kamto v'olisoel hamokome asher yivchar Hshem Elokecho bo" (17:8). (P'sikta Zut'r'sa)
2) If the court ruled that a person had the status of a "rebellious scholar" they would wait until they, along with everyone else, would make the pilgrimage, and bring the "rebellious scholar" to Yerusholayim to administer his punishment. (P'sikta Zut'r'sa)
3) Even though you will be making the thrice annual pilgrimage to Yerusholayim and have the opportunity to bring your grievances and other matters that require judgment to the greatest scholars, you should nevertheless establish courts with competent judges in all your communities, so that judgment not be delayed. (Ibn Ezra)
4) This alludes to the ruling that the festivals' timing is decided by the courts (gemara R.H. 24). (Baal Haturim)
5) People who made a vow to bring offerings to the Beis Hamikdosh will be prodded by the courts to fulfill their commitments (gemara R.H. 6). (Baal Haturim)
6) The courts are responsible to oversee the public's behaviour, so there is no levity or improper mixing of men and women during the festivals (gemara Kidushin 81). (Baal Haturim)
7) Just as there are three festivals that require pilgrimage, so too, there are three head courts, at the Temple Mount, at the "azoroh," and at the office called "gozis" (gemara Sanhedrin 86). (Baal Haturim)
8) Just as we are to be seen by Hashem when we go to Yerusholayim for the festivals, we likewise are to appear in front of our judges, who are our teachers, "chayov odom l'hakbil pnei rabo b'regel." (Baal Haturim)
9) Just as there are three festivals that require pilgrimage, so too, there are three rows of student judges who sit in front of the actual judges. (Rabbi Yaakov of Vienna)
10) After the laws of the festivals, which in the main involve the masses as a group, the Torah goes on to deal with the judges and leaders, who are responsible to guide and act as mentors for the masses. (Sforno)
11) The parsha of the festivals ends with a general blessing. Likewise, when we honour our judges we bring an influence and bounty of blessings, as is related in the medrash at the beginning of Rus. (Haa'meik Dovor)
12) The pilgrimage for the festivals can only take place when we live in Eretz Yisroel. The appointment of proper judges is sufficient merit for us to live there, as per the Rashi on verse 20 d.h. "l'maan." (Nirreh li)
This teaches us that if there is a disorder in an organ, even if it is at this moment not an halachic flaw, but veterinarians say that the organ must be removed for the animal to survive, it is now disqualified, even though the actual flaw would only play out in the future if the animal would be left as is. (Ohr Hachaim Hakodosh)
The divergent opinions are not a case of "what in fact took place here," rendering a permitted or prohibited ruling in its wake. Rather the facts are clear to all the judges. What remains in dispute is what is the Torah ruling in this case. This is the opinion of the Rambam who in hilchos Sanhedrin 4:2 gives an example of a disagreement among members of a court whether a certain colour of blood renders a woman impure or not. It is only then that there is a requirement of "v'kamto v'oliso." However, Targum Yerushalmi writes that the disagreement is one of "what is this," blood of an insect or menstrual blood.
Rashi, Rashbam, and Ramban take a third approach. The issue is one of judging a murder, whether innocent or guilty blood was spilled.
Ibn Ezra says that all the examples of the verse refer to squabbles between people, such as in juries involving blood, money, bruises, all under the general heading of "divrei rivos."
This is very well understood with a story, which unfortunately I am unable to give proper attribution. A Rov had to adjudicate between two people over a money matter that involved a relatively small amount of money. One of the two litigants was the town ritual slaughterer. The Rov ruled in favour of the other party, and the "shochet" in a fit of rage threw the amount of money due onto the table, cursed the Rov and stormed out.
A student who was "interning" saw this and asked the Rov, "I was present last week when the 'shochet' came to you with a serious question of 'kashrus' of an ox that was slaughtered. The ox was his investment, and if ruled 'treifoh' or 'n'veiloh' he would suffer a severe financial loss. You ruled stringently, and he accepted this in his stride, not even criticizing your ruling or asking for possible leniency. Yet here, with a loss of much less money he lost it and behaved most disrespectfully. Why this disparity in his behaviour?"
The Rov answered most simply, "When the animal was ruled 'treifoh' there was no contesting party. Being basically a G-d-fearing person, he accepted the ruling with equanimity, even though he suffered a great loss. Just now he lost against another person. This caused him to lose his cool."
Our verse puts all the disagreements under the collective heading of "divrei rivos," words of contention and strife. All the cases, "dom, din, nega" must be cases where there are two contestants.
The Chinuch (mitzvoh #496) writes that this is not the intention of our verse. We are to follow the ruling of our judges, as they most likely have come to a correct ruling, based on their total devotion to diligent Torah studying, and being students of similar Rabbis of the previous generations. However, this does not mean that they will always be absolutely correct. There is a possibility of their coming to an incorrect conclusion, but their conclusion becomes the WILL OF HASHEM. It becomes the correct ruling. (For example, if they incorrectly adjust our calendar dates, Yom Tov is on the day that they rule. In the heavens the calendar is adjusted, like daylight-saving time.)
Hashem gave this ruling because it is greatly preferable to act intrinsically incorrectly (which by virtue of their ruling becomes correct) in a limited number of instances, but to remain under the ruling of one united body. Otherwise authority would slowly unravel, leaving us with "each man doing as his heart sees fit." This is destructive.
He adds that this is the interpretation of the gemara B.M. 59b, which relates a most charged disagreement between the Rabonon and Rabbi Eliezer about a certain type of earthenware oven's capacity of becoming impure. The gemara relates that Rabbi Noson met Eliyohu and asked what the Celestial Court ruled. Eliyohu said that Hashem said, "Nitzchuni bonai," - My children have defeated Me. How is this possible? How can man over-rule Hashem? The answer is that intrinsically, with proper Torah judgment, the correct conclusion is that of Rabbi Eliezer. However, because Torah rulings were given to mankind, in the form of the Rabbis, their conclusions become the absolute law, even when not deemed correct by the absolute Authority, Hashem. This is "nitzchuni bonai."
The Kesef Mishneh at the end of chapter #3 of hilchos mamrim writes that it is the opinion of the Rambam that this only applies to the rebellious scholar. This is also the opinion of the Lechem Mishneh. However, Tosefta Sanhedrin 11:3 clearly states that Rabbi Akiva, who is the one who says that we delay carrying out the death penalty of the rebellious scholar, posits that the other three are delayed as well.
The Oruch L'ner in his commentary on the gemara Makos chapter #1 says that the mishnoh disagrees with the Tosefta just cited, and according to Rabbi Akiva it is only so by the rebellious scholar.
Rashi does not mention delaying the execution of a rebellious son, but rather, says that, "v'chol Yisroel yish'm'u v'yiro'u" (Dvorim 21:21) teaches us that before the execution it is publicized that this and this person will be executed because he is a rebellious son.
Divrei Sho'ul says that Rashi did not mention the delay in his execution because if the upcoming holiday is three months or more in the offing, we cannot delay the execution, as the gemara says that a rebellious son must be between the ages of just becoming bar-mitzvoh and 13 years and 3 months old (gemara Sanhedrin 69a). This is extremely puzzling, because the intention of the gemara is that the window of opportunity to judge him guilty is those three months, not the age at which he can be executed.
The Divrei Dovid (Taz) adds to the discrepancies in Rashi, noting that he says nothing by the one who incites to serve idols (Dvorim 13:12), and by "eidim zom'mim" (Dvorim 19:20) only mentions public announcement.
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