Vol. 22   No. 44

Parshas Shoftim

"Judges and policemen you shall appoint in all your cities which Hashem your G-d gives you for your tribes, and they shall judge the people righteously" (16:18)

This teaches us, comments Rashi, that one must set up a Beis -Din in every tribe and in every city.

The Ramban explains this to mean that, apart from the Sanhedrin ha'Godol of seventy-one in Yerushalayim, every town had to have a Beis-Din of twenty-three (the Beis-Din of three, says Rabeinu Bachye, was instituted by the Chachamim to litigate in a town of less than a hundred and twenty inhabitants). This means that one litigant could force the other to appear before the Beis-Din of their town, irrespective of where they were located at the time. Moreover, the Beis-Din of the town could force litigation on all the town's residents.

And every tribe had to appoint a more senior Beis-Din to serve the entire tribe. Here too, one litigant could force the other to appear before it, and it could enforce litigation on all members of the tribe, even if they (the litigants) had to leave their town in order to do so. In addition, this Beis-Din was empowered to issue edicts and decrees with which all members of the tribe had to comply.

The Ramban also cites the Rambam, in whose opinion the above obligation is confined to Eretz Yisrael and does not apply to Chutz la'Aretz at all. However, he cites the Gemara in Makos (7a). Based on the Pasuk in Mas'ei (35:29), which, in connection with civil law, uses the expression "be'chol moshvoseichem", the Gemara there rules that the Mitzvah of Sanhedrin applies in Chutz la'Aretz, if not in every town, at least, in every county.. He concedes though that nowadays, when the chain of Semichah (which, starting with Moshe Rabeinu and Yehoshua, was handed down from generation to generation), has been broken, the Mitzvah of appointing judges is no longer applicable.

To understand this, we need to bear in mind that the Shoftim (whom the Pasuk in Mishpatim refers to as "Elohim") refers specifically to those with semichah, and enforcing the law in general and issuing rulings concerning k'nosos (fines) and the likes, and certainly, the ability to sentence to Malkos or to sentence to death, cannot be performed by anybody else.

Nowadays, the author concludes, we are considered 'hedyotos' (laymen), about whom the Torah states (at the beginning of Mishpatim) "Place before them - before the judges and not before hedyotos. In any event, he concludes, even the basic Dinim - such as 'admissions and loans', one is only permitted to litigate as agents of the Dayanim in Eretz Yisrael. Consequently, we are not obligated to appoint judges min ha'Torah at all.

Notwithstanding the distinction between 'Semuchin' and 'Hedyotos' that we just discussed, the Ramban in Parshas Masei (35:29) presents another major distinction that exists in connection with the death-penalty. Quoting various sayings of Chazal, he points out that the death-penalty can only be issued when the Kohanim are functioning in the Beis-ha'Mikdash and as long as the Mizbe'ach is operational. This means that the death-penalty was abolished even whilst the other aspects of Mishpat were still in full force.

As a matter of fact, the Gemara in Shabbos (Daf 15a) teaches us that it was abolished already forty years before the destruction of the second Beis-ha'Mikdash - when the Sanhedrin left the precincts of the Beis-ha'Mikdash and went into exile.

"By the testimony of two witnesses or three witnesses shall the condemned man be put to death" (17:6).

In reply to the question that if the testimony stands with two witnesses, why does the Torah mention three?, Rashi explains that it is to compare three witnesses to two, in that just as two witnesses are considered one testimony, so are three (or even a hundred, if that is how many turn up in Beis-Din to testify). Consequently, three witnesses do not become 'eidim zom'min' (who are subject to the same punishment as the person whom they tried to incriminate would have received) unless all three become zom'min.

By the same token, the Ramban adds, should one of the witnesses turn out to be a relative of one of the litigants or if, for some other reason, he is illegible to testify, all three are disqualified from testifying.

And by the same token again, he adds, all three are zom'min, and are made to suffer the consequences - despite the fact that the testimony of the third witness is superfluous.

More simply, says the author, the Pasuk is teaching us, that Beis-Din are obligated to invite as many witnesses as are available to testify, even though no more than two will suffice to activate the P'sak of Beis-Din.

"So that his heart does not become haughty over his brethren … " (17:20).

The Torah is hinting here at the sin of pride, says the Ramban. If a king, who has what to be proud about, is nevertheless warned to remain humble like his subjects, how much more so others, who do not!

Pride, the Ramban explains, is despicable in G-d's eyes even when it is displayed by a king - as "greatness and elevation are confined to Him" (Divrei ha'Yamim 1, 29:23).

And if one is to boast, it is in one's knowledge of G-d, as the Pasuk states in Yirmiyah (9:23).

" … if it responds to you in peace and it opens (its gates) to you, then all its inhabitants shall be for you a tribute for you and shall be subservient to you" (20:11).

In order to avoid war, Rashi explains, the Cana'anim had to take upon themselves both tribute (a royal tax) and servitude. One without the other, says the Ramban quoting the Sifri, would not suffice.

The Ramban goes on to define 'a tribute' as compliance with an order by the king or by the Sanhedrin to build a royal palace, store-cities or the Beis-ha'Mikdash. Whereas 'servitude' entailed chopping wood or drawing water for any individual Jew - who would be obligated to pay him for his work. This, the author explains, is in keeping with the Pasuk in Melachim 1 (9:21), which describes how Sh'lomoh ha'Melech forced the various nations that Yisrael did not succeed in destroying to a "tribute of servitude (le'Mas oveid)". It does not conform to the Pasuk in Shoftim (1:28) which writes that "And it was, when Yisrael overpowered the Cana'anim, they made them pay a tribute (le'mas), but were unable to drive them out" - omitting the word 'oveid'. That, he points out, is akin to one king bribing his adversary not to attack him.

With regard to the Giv'onim, who tricked Yehoshua into coming to terms with them, and whom Yehoshua subsequently made wood-choppers and water-drawers on behalf of the community, the Ramban offers three suggestions as to why they did not simply accept the terms that Yehoshua offered all the Cana'anim. 1. That they preempted Yehoshua's offer, arriving at the camp of Yisrael before he sent out the letters containing the peace-terms. Consequently, they were unaware that coming to terms with Yisrael was at all possible; 2. They wanted to avoid Yisrael's peace-terms altogether, hoping to arrange a truce between two equal partners; 3. They had already turned down Yehoshua's offer, opting to fight - a decision that was officially irretractable, but they now got cold feet and lied to Yehoshua, hoping to avoid having to fight Yisrael.