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Parshas Shoftim - Vol. 5,
Compiled by Oizer Alport
Navi mikirb’cha me’achecha kamoni yakim lecha Hashem Elokecha eilav tishma’un (18:15)
A biography was once written about Rav Yehoshua Leib Diskin. Before publication, the manuscript was shown to the Brisker Rov for his comments and suggestions. After reading it, he commented that everything he read was accurate and appropriate to be printed except for one anecdote.
The author recounted that the Brisker Rov’s father, Rav Chaim Soloveitchik, had such respect for Rav Yehoshua Leib that he remarked regarding him, “eilav tishma’un” – you shall listen to his words. The Brisker Rov argued that an expression reserved by the Torah for a prophet of Hashem may not be used, even colloquially, in reference to a human being, no matter how great he was. Although the author insisted that the story was true and confirmed by witnesses, the Brisker Rov held his ground and the passage was removed.
When he was told about this incident, the Satmar Rebbe smiled and asked someone to bring him a Volume 1 of the Orach Chaim section of Shulchan Aruch. He opened it to chapter 125 and pointed to the marginal notes of Rav Akiva Eiger which are printed there. Rav Akiva Eiger quotes the opinion of the Arizal, who disagrees with the opinion of the Shulchan Aruch there, and concludes àìéå úùîòåï.
The sharp mind and phenomenal recall of the Satmar Rebbe allowed him to immediately remember where the great Rav Akiva Eiger had quoted this phrase in reference to the Arizal. Nevertheless, he suggested that this comment posed no challenge to the position of the Brisker Rov, as the Arizal was but an angel in human guise, for whom such words are fitting.
V’asisem lo ka’asher zamam la’asos l’achiv u’biarta ha’ra mikirbecha (19:19)
In the event that a set of witnesses is found to be lying and conspiring through the testimony of a second set of witnesses who claim that the first set were in a different location at the time of the alleged incident, the court punishes the first set by inflicting upon them the punishment they would have brought upon the defendant through their testimony. Rashi writes that this law only applies in the event that their conspiracy is discovered before the defendant is punished. If he has already been killed as a result of their testimony, they are no longer to be put to death.
In his commentary on Makkos (5b), Rashi explains that this law is derived from the Torah’s wording “ka’asher zamam la’asos l’achiv” – as he conspired to do to his fellow. A person is only considered one’s fellow as long as he is alive. Once he has been put to death, he is no longer called one’s fellow, and this law is no longer applicable. The Ritva questions Rashi’s derivation by pointing out that the Torah uses the word “achiv” (fellow) in reference to the dead both when discussing the mitzvah of yibum (25:6-7) and in reference to Nadav and Avihu after their deaths (Vayikra 10:4).
The Rashash (Sanhedrin 10a) defends Rashi’s explanation by suggesting that the word àçéå has two different connotations: a familial relative, and a “brother” with whom one is united through a common obligation in mitzvos. The difference between them is that while the former is still appropriate after death, which doesn’t negate a familial connection, the latter is only applicable as long as both parties are still alive, since the Gemora in Shabbos (30a) teaches that a person becomes exempt from all mitzvos after he dies.
In light of this explanation, it is perfectly appropriate for the Torah to use the expression “achiv” in conjunction with the mitzvah of yibum, which applies only to a person’s brother. This term is also fitting to be used in association with the deceased Nadav and Avihu when discussing them with their cousins Mishael and Eltzaphan, as this bond wasn’t broken through death.
Our verse, however, is discussing the laws of conspiring witnesses and their scheme to falsely punish “their brother,” the defendant. Since there is no familial relationship between the parties, it can only be referring to their common obligation in mitzvos. If the verse refers to the defendant as their brother, this law can only be applicable when he has yet to be punished and is still alive, thus providing a clear source for the ruling of the Gemora in Makkos, exactly as Rashi explained.
V’anu v’amru yadeinu lo shaf’chu es ha’dam ha’zeh v’eineinu lo ra’u (21:7)
If a murdered body is found in a field, the Torah requires the elders of the nearest city to perform a ritual known as eglah arufah (the axed heifer), in which they slaughter a cow in a valley with an axe to atone for the innocent blood which was shed. They must then announce that they didn’t spill the blood of the deceased. The pious sages aren’t suspected of cold-blooded murder. Rather, Rashi explains that they must testify that they didn’t see this wayfarer leaving their city without escorting him and providing him with food. This requirement is difficult to comprehend. In what way would providing a traveler with food have protected him from a would-be murderer?
The answer may lie in a humorous, if fictional, story. A proctor was administering a final exam for a large college class. After giving several warnings, the proctor announced that time had expired and all exam booklets must be brought forward. One student continued frantically writing.
When he brought his booklet forward a few minutes later, the proctor refused to accept it. The student bellowed, “Do you have any idea who I am,” implying that he came from a prominent family and deserved leniency. The proctor answered, “I don’t know, and I don’t care. You broke the rules, and now you’ve failed this course.” The wise student, secure in his anonymity, smugly opened the stack of exam books to the middle, stuck his book in, and quickly walked out the door.
With this insight into the value of being part of a larger group, the Maharal explains that on a natural level, having extra food in his backpack wouldn’t have protected the traveler against armed robbers. On a spiritual level, however, it would have assisted him greatly. When a person exists in a vacuum, he is judged on the basis of his own merits. He may be righteous and merit the performance of miracles, but the average person is not on such a level. If so, what is he to do? The Maharal explains that when a person is part of a larger community, he is able to benefit from their accumulated merits. This may protect him even if his own merits are insufficient.
When the traveler is lodging in the town, he is automatically part of the community. When he sets out on his own, he breaks this bond. Escorting him on the beginning of his journey and giving him food allows him to maintain his link to the community even when he is traveling on his own. A town which allows a visitor to depart without cementing the connection between them is partially liable for any misfortunate that befalls him. It may have been in their power to prevent it, and the elders of the town closest to the corpse are required to testify that this wasn’t the case.
As the month of Elul begins and a person prepares for the impending judgment of Rosh Hashana, he may find comfort in the message of the Maharal. We are all “travelers” through this world. If we live in our own vacuums, we will be judged on our own merits in less than a month, a terrifying thought. However, if we affiliate ourselves with a community, becoming an active part of our synagogues and volunteering to help with communal organizations, we will benefit from their collective merits. As a result, we will enjoy an inscription for a year of health, happiness, and all good blessings.
Answers to the weekly Points to Ponder are now available!
Parsha Points to Ponder (and sources which discuss them):
1) It is forbidden to plant a tree anywhere on the Temple Mount (Rashi 16:21). Is it permitted to plant a tree next to a synagogue? (Hagahos Rav Akiva Eiger Orach Chaim 150, Shu”t Maharam Schick 79, Shu”t Binyan Tzion 9, Shu”t Maharsham 1:127, Torah L’Daas Vol. 8)
2) The Torah forbids (18:10) a Jew to practice sorcery. Is it permitted to perform, or watch others perform, the slight-of-hand tricks commonly practiced by magicians today? (Chochmas Adam 89:6, Shu”t Y’chaveh Daas 3:68, Torah L’Daas Vol. 5)
3) One who kills accidentally is required to flee to one of the cities of refuge and to remain there until the death of the Kohen Gadol (19:4-5). In the event that he exits before this time, even temporarily, the redeemer of the blood is permitted to kill him (35:26-27). If the accidental murderer encounters the blood-avenger, is he permitted to kill him in order to protect himself, or is that considered an act of murder? (Mishneh L’Melech Hilchos Rotzeach 1:15)
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