by Zvi Akiva Fleisher
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OROH V'SIMCHOH - MESHECH CHOCHMOH ON PARSHAS SHOFTIM - YAHRTZEIT OF RABBI MEIR SIMCHOH HAKOHEIN OF DVINSK 4th ELUL BS"D
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. 17, v. 5: "V'ho'tzeiso es ho'ish hahu o es ho'ishoh ha'hee" - By the sin of adultery of a betrothed woman (Dvorim 22:24) the verse says "v'ho'tzei'sem es shneihem." Why doesn't that verse follow the terminology of our verse and say "v'ho'tzei'sem es ho'ish hahu v'es ho'ishoh ha'hee?" The MESHECH CHOCHMOH answers that the Rambam in hilchos Sanhedrin 14:10 says that the court must be very cautious and patient when ruling a capital case. It may never judge two such cases in one day. An exception is when two people were involved in one act and their punishment would be the same type of death penalty. Then they may be judged in one day. We see from this that even if two people do the same sin they are not judged on one day. It is only when they do the sin together, i.e. adultery, that they may be judged on the same day. (This is contrary to the opinion of Rashi on Sanhedrin 46a.)
Our verse is discussing the sin of idol worship. Even if ch"v a large number of people sin in unison, each person is acting independently. Thus the verse separates the bringing to justice of each person. The verse in Dvorim 22:24 discusses adultery. There the two sinners have done one act together. Therefore their cases may be judged the same day, and as well, their death sentences may be carried out at one time.
Ch. 17, v. 7: "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 CHOCHMOHexplains 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. Thus the term MIKIRBECHO can be used, as it cannot be misunderstood to include our dealing with eradicating the bad perpetrated by a "ger toshov."
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?
Ch. 18, v. 18,19: "Novi okim lo'hem …… komocho, Onochi edrosh mei'imo" - The MESHECH CHOCHMOH explains that although Hashem has guaranteed that He would give the bnei Yisroel a prophet "komocho," like Moshe, nevertheless he will not totally have the capacity of Moshe. (This is actually one of the 13 tenets of faith listed by the Rambam.) When Moshe was faced with the rebellion of Korach and his cohorts, he put his lifetime reputation on the line by saying, "Lo Hashem shlochoni" (Bmidbar 16:29). Hashem responded to his request of "V'im brioh yivro Hashem" (verse 30). However, later prophets, even if faced with such a challenge should not respond as Moshe did. Instead, "Onochi edrosh mei'imo," Hashem promises that He will take up the case.
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