Vol. 9   No. 44

Parshas Ki Seitzei

We explained in the previous issue how, although a Beis-Din must comprise no less than twenty-three Dayanim, the Chachamim instituted a Beis-Din of three. Nevertheless, it is important to remember, that whereas a Beis-Din of three is restricted to money-matters and corporal punishment only, one consisting of twenty-three is empowered to issue the death-sentence. It is interesting to note the immense difference between the Torah's method of judgement to that of the gentiles, who place human lives in the hands of a jury comprising laymen, leaving the final decision to only one competent judge. The Torah requires no less than twenty-three expert judges, plus a majority of at least three, before the accused can be sentenced to death.

It is no mere chance that all Batei-Din comprise an odd number of judges, seventy-one, twenty-three and three. In fact, it is in order to allow for a majority, of one in most cases, but of three, in matters concerning capital punishment, as we already explained.

In fact, even one expert is eligible to judge money-matters, even min ha'Torah (from the Pasuk 'be'tzedek tishpot amisecho' [Kedoshim 19:15], which is written in the singular). Only, as Chazal have taught in Pirkei Avos (4:5) 'Do not be a sole judge, for there is only one sole Judge!' Indeed, even G-d prefers to judge together with the Heavenly Court, as the Yerushalmi teaches in Sanhedrin (1:1). In any event, a Beis-Din of two is not qualified to judge.

The above pertains to a judge enforcing his decisions on the litigants. If however, the two litigants accept the decision of even one judge to act as an arbitrator, then he is at liberty to do so. And what's more, this includes even someone who would normally be disqualified from judging the case, such as a close relatives of either of the litigants.

The Beis-Din of twenty-three would convene at the gate of the city, as we find in Megilas Rus and in many other places. The judges and the policemen (to which we referred in the previous issue) were interdependent as if they were one entity, says the Medrash. If there were no judges, then the policemen would not operate, and vice-versa. And Chazal derive this from the Pasuk in Shmuel 2 (8:15/16), which they interpreted as 'Were it not for the fear of Yo'av, David would not have been able to have judged the evil-doers'. Incidentally, the policemen would patrol the town armed (with a stick and a strap). Nowadays, when the direct link with Moshe Rabeinu has been broken, and there are no more Semuchin, Beis-Din ought not to be able to enforce monetary laws, Gitin or even to accept converts. And the reason that all of these remain in force, as the Gemara in ha'Chovel explains, is due to the fact that the Dayanim of today (even as far back as the Amora'im who lived in Bavel), served as emissaries of the genuine Dayanim who received Semichah in Eretz Yisrael. And it goes without saying, that to serve in that capacity, these emissaries must be true Talmidei-Chachamim, steeped in Torah knowledge and the fear of G-d. Nobody else has the authority to enforce laws and to issue rulings in place of the Ge'onim of old. Indeed, they will eventually be severely punished for daring to assume a title from which they are far removed.

So great is the power of judgement, say Chazal, that when judgement is performed in this world, G-d has no need to dispense it, and so He deals with us with the Divine attribute of Mercy, beyond the letter of the law as it were. And it is only when we fail to dispense justice that He takes over, and judges us with His Midas ha'Din.

Similarly, writes the Zera Barech, all the blessings, both spiritual and material, that descend from Heaven are the result of the Sanhedrin, in the same way as Terumos and Ma'asros are the conduit for Divine blessings.

And the Mitzvos Hashem writes that although a Dayan who sits on a Beis-din of three, is not expected to possess all the qualities of a member of the Sanhedrin, he nevertheless had to possess the following seven qualities:- wisdom, humility, fear of G-d, disdain of money, the love of truth, the love of his fellow-Jews and a good name. And if that is what a Dayan on the small Beis-din was expected to be, it is difficult to conceive the greatness of a member of the Sanhedrin ha'Gadol.

"... and she shall shave her head and let her nails grow long" - to make herself ugly (Rashi) 21:12.

The reason for this, explains the Ba'al ha'Turim, is because she prepared her hair to attract the soldier, and then hinted to him with her fingers to entice him.

It seems to me that this is not to punish the woman ('Midah ke'neged midah'), but to repair the harm that had been done. If the captive's hair and fingers were instrumental in ensnaring the soldier on the battlefield, then the way to become disenchanted with the woman was to cut off the hair and the fingernails that succeeding in trapping him in the first place.

"Only, he shall acknowledge the firstborn son to give him double" (21:17).

It is because the firstborn takes a double portion that the letters of "Bechor" are all of a double character - the 'Beis' is double the letter that precedes it ('Aleph') and the 'Chaf' and the 'Reish' are double the letters that precede them ('Yud' and 'Kuf', respectively). And the one remaining letter, the 'Vav', is spelt double 'Vav' (Ba'al ha'Turim).

It is strange that the Ba'al ha'Turim writes this, seeing as the word Bechor is missing a 'Vav'. Indeed, the G'ro, who makes the same point as the Ba'al ha'Turim, specifically maintains this point.

Incidentally, the G'ro points out that the three letters concerned (the 'Beis', the "Chaf' and the 'Resh') are the second letters of the units, the tens and the hundreds, respectively.

The numerical value of "Sorer" is equivalent to that of 'Avshalom ben David' (spelt with a 'Vav'), whereas "u'Moreh" (written without a 'Vav') contains the same letters as 'moroh', bitter, because a ben Sorer u'moreh is destined to suffer a bitter end (as indeed Avshalom, the arch-rebel did).

"Do not leave his corpse on the wood overnight, but bury him on that day" (21:22/23).

The Torah juxtaposes these two phrases, the Ba'al ha'Turim explains, to hint at the Halachah that the wood on which the dead man was hanged had to be buried together with him. And it also hints, he adds, to the Halachah that he is buried in an Aron (a wooden coffin).

" ... and it shall be with you until your brother seeks it (ad d'rosh ochicho oso)" 22:2.

That is certainly the basic meaning of "oso".

The Ba'al ha'Turim however, explains that "Oso" can also mean 'its sign', with reference to the identify mark that the claimant is obligated to present before taking his article, to ensure that it does not fall into the hand of someone who is not really the owner.

"Lo sevashel g'di ba'chaleiv imo (Do not cook a kid-goat in its mother's milk)" 14:21.

As we know, this prohibition is three faceted, not to cook meat and milk together, not to eat them together and not to derive any benefit from them. Some learn this from the fact that the Pasuk appears three times in the Torah (though Rashi learns from there the preclusion of milk together with the meat of kosher wild animals, birds and non-kosher animals). The Ba'al ha'Turim however, points out that the numerical value of "lo sevashel" is equivalent to that of 'isur achilah, u'bishul, ve'hano'oh'.

"You shall surely tithe the produce of your seeds which emerge in the field year by year" (14:22).

This Pasuk follows the prohibition of meat and milk, says the Ba'al ha'Turim, to teach us that just as the mixture of meat and milk is Asur be'Hana'ah, so too, is the mixture of different species of seeds that were sown together (Kil'ayim). And if you keep the seeds separate, he continues, so too, will G-d bless your crops and enable you to tithe them each year, as the Pasuk concludes.

" ... in its mother's milk …(You shall surely tithe) ... year by year" (14:21/22).

The juxtaposition of these two issues (as if the words 'year by year' ["Shonoh, shonoh"] pertained to both Pesukim), hints to the Rabbinic prohibition of marrying the widow or the divorcee of another man if she is nursing, until the two years have passed and the baby is weaned.

"And this is the word of the Sh'mitah (d'var ha'Sh'mitah), let all creditors cancel their debts" (15:2).

Chazal have taught that if the debtor comes to pay his debt after the termination of the Sh'mitah-year, the creditor is obligated to specifically state that he cancels the debt (following which he is allowed to accept payment if the debtor insists on paying).

And that is what the Torah is coming to hint with the word "d'var", which always has connotations of something that is spoken (Ba'al ha'Turim).

"cancel the debt ... But" (15:3/4).

Chazal have said that if the creditor receives a security against the loan, Sh'mitah does not cancel the debt. This prompts the Ba'al ha'Turim to comment that the juxtaposition of the word "But" (which always comes to exclude), to the previous phrase comes to teach us that sometimes Sh'mitah does not cancel an outstanding debt.

The Levush writes that the twelfth B'rachah is the curse of the informers, which Chazal fixed after that of the Judges, because when the Resha'im are judged, the informers will automatically cease to operate. This B'rachah corresponds to the angels, who, after the Egyptians were drowned in the Reed Sea, declared 'Boruch Atoh Hashem, shover oyvim u'machni'a zeidim'.

As is clear from the text, the B'rachah also incorporates the dissolution of the Miynim, those whose faith In G-d is flawed. The connection between the two is based on the Pasuk in Yeshayah (1:28). And this explains why the B'rachah is also known as 'Birchas ha'Minim'.

The informers hope to find favor with the ruling power by means of their glib tongue. That is why we ask G-d to negate the hope of the informers, explains the Iyun Tefilah, that their ambitions should fail to materialize.

The Anaf Yosef explains that this B'rachah does not pertain to any specific nation or to adherents of the faith of a specific nation. Because it is not the will of Hashem to pray for the downfall of an entire nation, no matter what the circumstances. It refers, he says, to the Miynim and the Malshinim of Yisrael. And it is for the same reason that the Chayei Adam rejects the old text 'u'Malchus Zadon ... ' in favor of the new one 've'ha'Zeidim ... '.

And in similar vein, he rejects the text 've'chol osei rish'ah ke'rega yoveidu' (as if we were praying for the destruction of the evildoers). He accepts the text 've'chol ho'rish'oh ke'rega toveid', praying for the destruction of evil per se (in the same way as David Hamelech wrote in Tehilim in Borchi Nafshi "Yitamu chato'im [rather than 'chot'im'] min ha'oretz", prefering to pray for the downfall of sin rather than of sinners).

In this way, we are praying for the evildoers to do Teshuvah, which is certainly preferable to praying for their demise. And this is also the gist of the prayer that we recite on the Yamim Nora'im 'and let all evil dissipate like smoke', as well as what we say in Oleinu, 'to remove idols from the land ... (and not idolaters) ' (Iyun Tefilah).

When reciting this B'rachah, says the Eitz Yosef quoting the Ya'aros D'vash, one should have in mind to pray for elimination of Miynus, which is equivalent to praying that all Jews should once again believe implicitly in both the written and the oral Torah. In effect, this means that everyone should accept the rulings of the Torah sages, and that there should be no dissenters.

In addition, he says, one ought to pray for the destruction of Amalek, who brazenly ('be'zodon') attacked Yisrael at a time when Yisrael did not pose them the least threat. In this way, one will simultaneously fulfill the Mitzvah of remembering Amalek.

This explanation follows the old text 'u'Malchus zadon ... ', a clear reference to the kingdom of Amalek, whereas the previous commentaries adopted the new text 've'ha'zeidim ... ' (as we explained).

On the other hand, it is possible to explain even the old text in accordance with the Anaf Yosef's explanation, by associating 'Malchus zodon' with the kingdom of the Yeitzer ha'Ra, like the Iyun Tefilah points out. In any event, if the wicked kingdom is that of Amalek, it is difficult to conceive what objection the Anaf Yosef would raise, seeing as the Torah itself prescribes the destruction of Amalek and not his Teshuvah. (Refer also to following paragraph).

'Oyvim', explains the Iyun Tefilah, refers to the Miynim, the enemies of G-d, whose only remedy is destruction (for the benefit of mankind). 'Zeidim' on the other hand, are evil people who allow themselves to be misled by the Yeitzer ha'Ra, but who are not beyond the scope of Teshuvah. Hence, G-d breaks the Oyvim, but humbles the Zeidim.

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