Vol. 16   No. 44

Parshas Shoftim

Before going to war, the Torah issues the Jewish army with an injunction to offer the enemy peace terms. These peace terms entail not only to laying down their arms, but the acceptance of the seven Mitzvos B'nei No'ach (which they are obligated to observe in any case), and includes total subjugation to K'lal Yisrael. Practically speaking, this means that they had to accept to work in the king's service, in matters such as building and fortifying the walls of the city, the fortresses and the king's palace, and that their money was subject to taxation as the king saw fit.

Although Rashi restricts the Din of offering peace-terms to a Milchemes ho'reshus (a war that Yisrael fights in self-defense or in order to capture territory), R. Bachye follows the opinion of the Ramban, who maintains that there is nothing in the Pasuk that precludes a Milchemes Mitzvah (the obligatory battles against the seven nations of Cana'an and [apparently] Amalek) from this ruling. Consequently, he says, it applies across the board, covering every war with the sole exception of Amon and Mo'av, about whom the Torah writes in Ki Seitzei (23:7) "Do not seek their peace and their good … ever!"

Nevertheless, one may accept even Amon and Mo'av, should they sue for peace on their own initiative.

From all of this, the author citing the Medrash concludes, we can learn what a great thing peace is!

What if the enemy declines the offer, or even if they agree to the peace-terms per se, but refuse to undertake to observe the seven Mitzvos of the B'nei No'ach?

If it is a Milchemes ho'Reshus, the author continues, then one wages war with them and kills all the grown-up males (captives are only permitted during a civil war, such as that between Yehudah and the ten tribes!), but not the women and children, whom one may then take captive.

But if it is a Milchemes Mitzvah, fought either against the seven nations or against Amalek, we are obligated to kill men, women and children, until not one survivor remains.

The reason for this distinction, says R. Bachye, is because in the former case, our task is not to destroy their guardian angel, but rather to weaken the Mazel that governs them, to render them incapable of rising up against us and subjugating us, to which end killing the fighting males will suffice; The purpose of the latter, on the other hand, is to totally annihilate their guardian angel. Consequently, it is only when we succeed in destroying them completely, that G-d will finish the job and destroy their guardian angel in Heaven.

But on what basis does one kill innocent children who have done nothing wrong, asks R. Bachye?

And he answers the question in a number of ways.

Firstly, he explains, we are talking about a Divine decree, which it is not our business to question. Interestingly, Shaul ha'Melech did, and ended up by contravening the Navi's command, and forfeiting his right to rule!

Secondly, since Hakadosh-Baruch-Hu uproots their strength above, all we really do down here is to destroy what has already been destroyed, as Chazal say (in connection with Nevuchadnetzar's destruction of the Beis-Hamikdash and subsequent boasting of what he had done) 'You merely ground flour that was already ground! You killed a lion that was already dead! You burned a city that was already burned!'

And besides, even if that was not the case, he explains, there would be nothing wrong with exterminating children who are in effect, branches of a rebellious root, 'a bitter and hasty nation', whose evil deeds are spontaneous and ongoing. For, as the Torah itself testifies, when they grew up, these children were destined to follow in the pervert ways of their fathers, to perform all the abominations that they had seen them perform. Consequently, if they were allowed to live, they would cause Yisrael to emulate their ways and become guilty of extermination, as the Torah writes in this Parshah (20:18). Perhaps, you will ask, they will do Teshuvah, and be worthy of survival? But see Who testifies to the contrary - G-d Himself, who knows with certainty that they will not!

That being the case, their lives are the cause of damage that is far in excess of the damage that results from killing them. And it stands to reason, does it not, that it is better to perpetrate a small damage in order to prevent a more severe one. In the same way as a person will risk his life by jumping off a roof to avoid the certain death that awaits him should he remain on the roof; and just as he will drink bitter wormwood to rid himself of an severe illness. Does he consider this an act of self-infliction? Or does he not rather consider it one of kindness, in granting himself life instead of death! And if a person would do these things with impunity to save himself, how much more so should he be willing to act in this way to save others!

Yet, as we wrote earlier, all this only applies there where the nations refuse to accept Yisrael's peace-terms. In the event that they do accept them, then all nations are subject to the Torah's conditions, and one is forbidden to kill them - even the seven nations! For so it is written in Yehoshua (11:19/20) "Not a single city made peace with the B'nei Yisrael, with the exception of the Chivi, the inhabitants of Giv'on; All of them they captured in war … ". From this we can extrapolate that Yehoshua offered them peace-terms, which they declined to accept.

And so we learnt in the Sifri 'Yehoshua sent three letters before entering the land; First he wrote that whoever wishes to make peace, come and make peace; Then he wrote that whoever wants to engage in battle should come and engage in battle; and finally he wrote that those who wish to flee, should flee. And, as the Yerushalmi concludes 'The Giv'onim made peace, the Girgashi fled and the remaining thirty-one kings chose to fight'.

"Do not pervert judgement, do not favour one litigant, do not accept bribery … " (16:19).

This could refer to the Dayanim, says R. Bachye; but it might also pertain to those who appoint incompetent judges, for they will then be held responsible when they (the judges) render pervert judgements (see 'Highlights from the Ba'al ha'Turim').

Ibid. The Torah here cites six successive La'avin, mainly connected with the laws of judging … 1. "Do not pervert judgement"; 2. "Do not favour one litigant over the other; 3. "Do not accept a bribe"; 4. Do not plant … an idol-tree beside the Mizbei'ach"; 5. Do not set up a Matzeivah (an altar made of one large stone); 6. "Do not sacrifice to Hashem … an ox or a lamb that has a blemish".

The Medrash informs us that as Sh'lomoh Hamelech ascended the six steps that led up to his throne, a Heavenly Voice was heard to proclaim one of those La'avin at each step: "Do not pervert judgement" as he climbed the first step, "Do not favour on litigant … ", as he climbed the second one, and so on.

Ibid.

The Pasuk in Mishlei (17:27) describes whoever accepts bribery as a Rasha (even if he does so in order to judge truthfully). The Pasuk there (17:8) also alludes to bribery as a stone of Chein (favour)". Why a stone?

The Medrash explains that this is because it is as destructive as a stone, which breaks something wherever it falls.

"Righteousness, righteousness you shall pursue" (16:20).

According to the simple explanation, says R. Bachye, this is an injunction to be righteous both in deed and in word. What's more, he explains, someone who is righteous in his words (he abides by what he says) clearly indicates that he is righteous in his actions as well.

And it is with reference to these two areas of righteousness that the Pasuk in Tzefanyah (3:13) states "The remnant of Yisrael do not perform injustice (in deed) and do not speak falsely (in word)".

Alternatively, what our Pasuk is teaching us, says the author, is that when a person goes to Beis-Din for a Din Torah, he should seek, not just to win his case, but that the truth be exposed, irrespective of whether he wins ("Tzedek") or whether he loses ("Tzedek").

R. Bachye presents two other esoteric explanations, but strangely, he does not cite any of the various interpretations to be found in the Bavli and the Yerushalmi.

Perhaps the best-known of these is that of the Gemara in Sanhedrin (32b) … "Tzedek tzedek tirdof" - 'Go after a good Beis-Din, after the greatest sages'.

Another explanation cited there is that one "Tzedek" refers to Din, and the other, to p'shoroh ('compromise').

And the Gemara elaborates by discussing two ships that are passing each other in a very narrow strait. Should they pass each other, both ships will sink, so it goes without saying that one of them must give way and allow the other one to pass. It is obvious, says the Gemara, that if one of them is laden and the other, empty, the latter must give way to the former; If one of them is close to its destination, whilst the other has still a long way to go, then the former must give way to the latter. But what if both are equal in the above regards?

The answer is 'P'shoroh' (compromise, not in the regular sense of the word [see Torah Temimah], but in the form of tossing up) as to who goes first, and the one who wins the right of way, compensates the other with an agreed upon sum.

So what the Torah is saying here is that, sometimes 'Din Tzedek' is required, and sometimes 'P'shoroh Tzedek', and that both require Rabbinic adjudication.

"When there is found in your midst … a man or a woman who does evil in the eyes of G-d … , then you shall destroy the evil from your midst (be'kirbecha)" (17:2-7).

Discussing the word "be'kirbecha", R. Bachye explains that people generally try to hide their sins, so it is necessary to search carefully in order to expose sins of this nature, like one searches for Chametz in order to burn it. Hence the term "And you shall destroy (u'bi'arto the evil from your midst" is most appropriate.

Alternatively, he continues, "be'kirbecha" also has connotation of 'bi'kerovecho' (your relatives), and the Torah is teaching us here that one's love for G-d should override one's love of those who are nearest and dearest. Hard as it might be, one is obligated to hand over even one's own relatives to Beis-Din to be sentenced to death, in the event that they perpetrate the sin described in this Parshah.

The author elaborates further in Parshas Ki Seitzei, where he makes this very same point with regard to a ben sorer u'moreh (a rebellious son), whose parents are obligated to take him to Beis-Din, even though they know that he will receive Malkos the first time and be sentenced to death the second time, should he prove guilty of sinning in the manner that the Torah discusses there.

See also Rashi in ve'Zos ha'B'rachah (33:9), who ascribes this attribute to the B'nei Levi, who, following the sin of the Eigel ha'Zahav rallied to Moshe's call of "Whoever is for G-d come to me!", and who then obeyed his instructions by killing their own close relatives.

"By the testimony of two witnesses or three witnesses the accused shall die … " (17:6).

Bearing in mind the principle that 'two witnesses are as good as a hundred', having informed us that a minimum of two witness is required to sentence a person to death, why does the Torah see fit to add "or three witnesses", asks R. Bachye? Initially, he suggests that whereas 'two' refers to the witnesses, and 'three', to the Dayanim who cross-examined and accepted them. He rejects this explanation however, since there is nothing in the Pasuk to indicate that it is talking about accepting the witnesses, only about their actual testimony.

Citing the Ramban, R. Bachye then explains that even though two witnesses are acceptable, even in judgements involving the death-sentence, nevertheless, every witness at the scene of the crime (even if there are four or five, or more) is obligated to attend the court-case; in fact, Beis-Din will send for them if they do not come on their own volition. The reason for this, he explains, is because the more witnesses that testify, the more accurate the testimony is bound to be. (Moreover, it is essential for every witness to be present, in case one or more of the other witnesses turn out to be relatives or disqualified from testifying, for some other reason, as the Mishnah in Rosh Hashanah describes as having happened).

Citing the Mishnah in the first Perek of Makos, the author presents an additional answer, in that by comparing three witnesses to two, the Torah is in fact placing a set of three witnesses on a par with two. This means that if one of three witnesses turns out to be a relative or Pasul for some other reason, he disqualifies the remaining two from testifying as well. This in turn, is based on the principle that 'If part of a set of witnesses becomes disqualified, the entire set is disqualified'.

And in the name of the Medrash though it is also contained in the Mishnah in Makos), he offers a third explanation … . The Medrash explains that if all three witnesses proceed to testify falsely, then the third witness receives the same punishment as the other two. Otherwise, we would have thought that, since his testimony is unnecessary, it is considered redundant and is not punishable. As a matter of fact, the same reasoning can be applied to the previous explanation.

Chazal go on to learn from here that anybody who attaches himself to a group of sinners is punished together with them. And R. Akiva adds that if that is true about somebody who attaches himself to a group of sinners, how much more so will it apply to somebody who attaches himself to a group of people who are performing a Mitzvah, so that he will be rewarded together with them. This in turn, is based on the principle that 'the measure of reward is far greater than that of punishment'.

"Do not plant for yourself an idol-tree (Asheirah) beside the Mizbei'ach" (16:21).

When someone appoints a Dayan who is not suitable, say Chazal, it is as if he has planted an idol-tree beside the Mizbei'ach. This is hinted, says the Ba'al ha'Turim, by the fact that the Gematriyah of "Asheirah" is equivalent to that of 'Dayan she'eino hagun' (a Dayan who is not suitable).

"The Kohanim the Levi'im, the entire tribe of Levi shall not receive a portion or an inheritance with Yisrael … G-d is their inheritance … " (18:1/2).

That explains, says the Ba'al ha'Turim, as to why the Gematriyah of "ha'Levi'im" is equivalent to that of the two Names of Hashem (that of 'Adnus' and of 'Havayah') which in turn, is equivalent to 'ho'Elokim'.

"The first of your corn (reishis de'goncho) … you shall give to him" (18:4).

The stage that renders produce subject to Terumah is the Miru'ach (the moment one flattens the pile of corn after winnowing it).

Hence, says the Ba'al ha'Turim, "reishis de'goncho" has the same Gematriyah as 'mi'she'timrach' (from the time that you flatten the pile.

"And when the Levi comes (Ve'chi yovo ha'Levi), he will come with all the desire of his soul … and serve in the Name of Hashem ,,, like all his brothers the Levi'im who stand there before Hashem" (18:6/7).

Although the Pasuk refers to them twice as Levi'im, it is really talking about the Kohanim, as Rashi explains.

Indeed, Chazal have said that in twenty-four places, the Pasuk refers to the Kohanim as 'Levi'im'.

As a reminder, the Ba'al ha'Turim observes, the Gematriyah of "Ve'chi yovo ha'Levi" is equal to that of 'Zeh hu Kohen'.

"Portion for portion (cheilek ke'cheilek) they shall eat" (18:8).

The word "ke'cheilek", says the Ba'al ha'Turim, appears one more time, in Shmuel 1, (30:24) - in connection with the booty that David captured from Amalek, which he shared equally among the soldiers who fought and those who guarded the camp - "so too the portion (ke'cheilek) of the ones who guarded the 'vessels' ").

This hints at a similar ruling here, whereby although Kohanim who were blemished were not permitted to actually sacrifice the Korbanos, they nevertheless received an equal portion when they were distributed. The Ba'al ha'Turim attributes this to the fact they too, 'guarded the vessels of the Beis-Hamikdash'.

"There shall not be found among you 'Kosem Kesamim, Me'onen, u'Menachesh … " (18:10).

Based on the explanations of Rashi, the Ba'al ha'Turim points out that the Gematriyah of …

"kosem", is - 'ochez be'maklo' ('he holds his stick' - and divines);

'me'onein' is - 'ochzei einayim' ('who catches the eyes' [a conjurer, who claims that 'The quickness of the hand deceives the eye').

Whilst the acronym of "menachesh", he says, is - Mi'pi Nofloh CHatichah SHeli' ('My piece of bread fell from my mouth').