by Zvi Akiva Fleisher
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OROH V'SIMCHOH - MESHECH CHOCHMOH ON PARSHAS SHOFTIM - 75th YAHRTZEIT OF RABBI MEIR SIMCHOH HAKOHEIN OF DVINSK 4th ELUL BS"D
Ch. 16, v. 21: "Lo sita l'cho asheiroh eitzel mizbach Hashem" - The M'chilta at the end of parshas Yisro asks, "Why is the subject of adjudicating money matters juxtaposed to the laws of the altar (mizbei'ach)? It teaches us that the court (sanhedrin) should be located near the altar at the Beis Hamikdosh." The MESHECH CHOCHMOH says that symbolically, our verse is telling us that the members of the court should be like the altar itself, which is made of stones and needs no upkeep, and they should not be like a tree, which needs sustenance. A person should not pursue the position of being a judge for his personal sustenance or gains. We now have a deeper understanding of the gemara Sanhedrin 7b which says that one who appoints an inappropriate judge is compared to one who plants an "asheiroh" (a tree that is used for idol worship).
Ch. 21, v. 21: "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 CHOCHMOH explains 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.
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?
A GUTTEN SHABBOS KODESH.
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