by Zvi Akiva Fleisher
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OROH V'SIMCHOH - MESHECH CHOCHMOH ON PARSHAS SHOFTIM - YAHRTZEIT OF RABBI MEIR SIMCHOH HAKOHEIN OF DVINSK ZT"L 4th ELUL 5766 BS"D
Ch. 17, v. 5: "V'ho'tzeiso es ho'ish hahu o es ho'ishoh ha'hee" - By the sin of adultery of a betrothed woman (Dvorim 22:24) the verse says "v'ho'tzei'sem es shneihem." Why doesn't that verse follow the terminology of our verse and say "v'ho'tzei'sem es ho'ish hahu v'es ho'ishoh ha'hee?" The MESHECH CHOCHMOH answers that the Rambam in hilchos Sanhedrin 14:10 says that the court must be very cautious and patient when ruling a capital case. It may never judge two such cases in one day. An exception is when two people were involved in one act and their punishment would be the same type of death penalty. Then they may be judged in one day. We see from this that even if two people do the same sin they are not judged on one day. It is only when they do the sin together, i.e. adultery, that they may be judged on the same day. (This is contrary to the opinion of Rashi on Sanhedrin 46a.)
Our verse is discussing the sin of idol worship. Even if ch"v a large number of people sin in unison, each person is acting independently. Thus the verse separates the bringing to justice of each person. The verse in Dvorim 22:24 discusses adultery. There the two sinners have done one act together. Therefore their cases may be judged the same day, and as well, their death sentences may be carried out at one time.
Ch. 17, v. 7: "Uviarto horo miKIRBECHO" - We find the words "uviarto horo" in nine verses, all in the book of Dvorim. They are:
1) 13:6, dealing with a false prophet
By six of these cases the verse says "uviarto horo MIKIRBECHO," and you shall eradicate the bad from WITHIN YOU, and by three cases the verse says, "uviarto horo miYISROEL," from the nation YISROEL. The three cases are: a rebellious Torah scholar (17:12), a murderer (19:13), and adultery of a married woman (22:22). The MESHECH CHOCHMOHexplains the change of wording. The word "mikirbecho" does not exclude a non-Jew who complies with the seven Noachide mitzvos, a "ger toshov," since later in our parsha the verse says regarding a "ger toshov," "yeisheiv b'KIR'B'CHO" (23:17). When the verse says "miYISROEL" its intention is to indicate that we are only responsible to eradicate the bad from within the Jewish people. Regarding a murderer or an adulterous person who is a "ger toshov" there is no responsibility for the Jewish court to judge and carry out the punishment. The Jewish court only has the responsibility to see that a proper judicial system exists for the "ger toshov" community. This is clearly stated in the Rambam's Sefer Hamitzvos #226-229 and in hilchos m'lochim 10:11. This is why the verses discussing murder and adultery point out that "you must eradicate the bad from YISROEL." Punishing a "ger toshov" is the responsibility of the "ger toshov" community.
The other sins do not apply to a "ger toshov" as there is no punishment for being a false prophet, nor for being false witnesses called "eidim zom'mim, nor for a rebellious son, nor for adultery of a betrothed woman, an "arusoh," as this status of marriage does not exist by them. Thus the term MIKIRBECHO can be used, as it cannot be misunderstood to include our dealing with eradicating the bad perpetrated by a "ger toshov."
Regarding the rebellious scholar the term "miYISROEL" is used to teach us that his sin is not an affront only to the court with which he differs, and therefore if they wish they may forgive him his sin, or at least they have the choice to forgo administering the death penalty. The verse tells us that his sin is one that affects the complete nation Yisroel. If he were left unpunished it would fuel others to likewise not accept the final binding authority of the court system, and once unbound, the core of unity of the nation would unravel. The gemara Sanhedrin 88b states that a husband who warned his wife to not go into seclusion with another man may forego bringing her to the Beis Hamikdosh court to go through the "sotoh" ritual. Likewise, the parents of a rebellious son have the option of not bringing him to court, but the high court may not forego punishing a rebellious scholar, "shelo yirbu machlokose b'Yisroel," so as to not proliferate disputes within the nation. This is like the ruling that a king who wishes to forego his honour may not do so (gemara K'subos 17a), as the honour he is accorded is not his own to pass up. It is the honour of the nation as represented in its king. Similarly, administering the prescribed punishment to the rebellious scholar is an act of eradication of the bad from the nation YISROEL.
I have difficulty with the earlier part of the MESHECH CHOCHMOH's answer as it seems to not deal with the sins of idol worship (17:7) and kidnapping (24:7), both of which apply to "ger toshov," and their punishment is carried out by the "ger toshov" court system. If so, why doesn't the verse say miYISROEL?
Ch. 18, v. 15: "Novi .. komoni .. eilov tishmo'un" - A prophet .. like me .. obey him - How could Moshe say that another prophet is like him since he was unique? Some say that this again shows his great modesty, as indicated by the numerical value of "komoni" equals that of "onov." However, the Meshech Chochmoh says that this verse teaches us that one is to obey a prophet even when he tells us to transgress a mitzvoh of the Torah as per the prophecy that he has received. The exception to this rule is when a prophet says that he was advised to tell us to sin in the realm of idol worship. The gemara Makos 23b says that we heard the mitzvos "Onochi" and "lo y'h'yeh" directly from Hashem, and the rest of the 613 mitzvos from Moshe. Thus Moshe says that we should obey a prophet even when he tells us to transgress a mitzvoh, because the 611 mitzvos were given through Moshe, who is a prophet. Therefore we listen to another prophet as well. Even though Moshe is greater, nevertheless, both Moshe and another prophet are equal in that they are humans. The two mitzvos of "Onochi" and "lo y'h'yeh" are never to be abrogated because they were given by Hashem Himself. Perhaps we can add another point to this insight. Moshe was greater than any other prophet. In which way was his prophecy to abrogate a mitzvoh greater than that of another prophet? Numerous times Moshe gave us mitzvos and then later said that they may be overridden, for example, to sanctify Shabbos, but to bring sacrifices and bris miloh on Shabbos, to not marry one's brother's widow, but to do "yibum," to not wear shaatnez, but to wear shaatnez in tzitzis and the Kohein's (Godol's) priestly garments. These are exceptions that are permanent; they always override. If another prophet were to tell us to transgress and that this was a prophecy not only for the short-term, but to be a permanent ruling, we do not listen to him even for the short-term, as we are sure that this is a false prophecy. As mentioned on a number of previous occasions, the suffix letter Nun indicates a diminution (see Sefer Hashoroshim of the Rada"k entry "ish"). Even though Moshe told us to obey a prophet, he said "eilov tishmo'uN," with a Nun suffix. This limits the rule to follow the words of the prophet, as we only listen to him to abrogate a mitzvoh for the short-term, which is not the case with Moshe. 5763
Ch. 18, v. 18,19: "Novi okim lo'hem .. komocho, Onochi edrosh mei'imo" - The MESHECH CHOCHMOH explains that although Hashem has guaranteed that He would give the bnei Yisroel a prophet "komocho," like Moshe, nevertheless he will not totally have the capacity of Moshe. (This is actually one of the 13 tenets of faith listed by the Rambam.) When Moshe was faced with the rebellion of Korach and his cohorts, he put his lifetime reputation on the line by saying, "Lo Hashem shlochoni" (Bmidbar 16:29). Hashem responded to his request of "V'im brioh yivro Hashem" (verse 30). However, later prophets, even if faced with such a challenge should not respond as Moshe did. Instead, "Onochi edrosh mei'imo," Hashem promises that He will take up the case.
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