When

siege. (Devarim

20, 19)

For a tree of the field

is man's life

– I have already explained in Sefer Hayesod [The Book of the Foundation]

that in every language it is possible to be brief and to take the short path,

as is "bread donkey" [see 1 Sam. 16:20, "And Jesse took an ass

laden with bread," where "laden with" is omitted]. Only the word

"no" cannot be omitted, because that would reverse the meaning, and a

great Spanish grammarian said that the "heh" is missing here, which

would turn the phrase into a question: "For is a tree of the field a man's

life?" This is not correct in my view, because what is the meaning

of saying, "thou shalt not destroy the trees thereof because it is not

like a person who can run away from you"? In my opinion, there is no need

for this, and the meaning is, "for thou shalt eat from it and thou shalt not

cut it down, because man is a tree of the field" – and this means, that the

life of a man is a tree of the field" [which is how the King James

version reads] , and like it, "for he taketh a man's life to pledge" (Deut. 24:6). Because he pledges the

life of the soul, and "thou shalt not cut it down" is adjacent to "to

employ them in the siege." This means, you must not destroy a fruit tree,

which provides life for human beings, and it is only permitted to eat from it,

and you may not destroy it, so that the city will be besieged, and evidence for

this is the interpretation, which is correct, of the verse that states "cut

them down, and thou shalt build bulwarks against the city" (Deut. 20:20, referring

to trees that are not fruit trees).

(Ibn

Ezra ibidem)

for thou mayest eat of

them, and thou shalt not cut it down – Lerikus and the vintner interpreted: "thou

shalt not cut them down" as, 'perhaps you might need it, because the siege

will last for a long time, and bread will be lacking, and the soldiers will

need the fruit of the trees. And Don Isaac Sforno and the author of Minha

belula interpreted: for thou mayest eat of them – when you have captured

the city, therefore it is not good to destroy it.

And in my opinion, this

benefit, but on the contrary, it was given to strengthen our hearts in mercy

and forgiveness that contradict our benefit.

Both Philo and Josephus

interpreted this commandment as one of mercy and compassion and rejection of

cruelty.

And in my view the

essence of the commandment is that one should not chop down a tree after eating

its fruit, and this is in order to distance a person from the moral blemish

of ingratitude, and to make one become used to loving those who do good to

us, and not to throw it behind one's back when one no longer expects benefit

from it. And similar to that is, "thou shalt not make merchandise of her,

because thou hast humbled her" (Deut. 21:14), and, similar to this is the parable about an

ordinary person who said, in the time of the Sages of the Talmud (Bab Kama 92b): "a well from

which you have drunk water, do not throw clods."

 (Shadal ibidem)

"The

Torah is Above the Law"

Yehonatan Chipman

About two months ago, when public controversy

about the book Torat ha-Melekh and the brief detainment for questioning

of Rabbis Dov Lior and Yaakov Yosef were at their height, there were people who

invoked the slogan, "The Torah is above the law." But is this really

so? What, if anything, is the role of law, legislated by a secular body like

the Knesset, in halakhah? This week's parashah, Shoftim, which

contains a set of laws defining the various institutions of government in the

Jewish commonwealth envisioned by the Torah, including a section concerning the

authority of the Hakhamim and the Sanhedrin in particular ("When a

matter of law shall be too difficult for you… According to the Torah which

they teach you … do not deviate to the right or left…" Deut 17:8-13),

seems an opportune occasion to examine the issue of the relation between Torah

and law in some detail.

There are various ways of answering this

question. One principle frequently invoked is that of דינא דמלכותא דינא: the

law of the land is the law" – that is to say, a Jew is required to be a

law-abiding citizen of the country within which he lives. But this rule applies

primarily, if not exclusively, to Jews living in the Diaspora, under non-Jewish

rule; the underlying premise or subtext of this seems to be that maintaining

good relations with the Gentile world, of not offending the rulers upon whose

grace and good will the Jewish community has traditionally been dependent, is

of primary importance. While this reason is perhaps not quite so relevant since

the Emancipation, particularly in contemporary Western democracies, where the

equal rights of all are guaranteed by law, and the collectivity is not punished

for the sins of an individual among them – but the rule as such is still

basically in force. But in Eretz Yisrael, and within a sovereign Jewish state,

however secular, the situation is clearly completely different, and different

principles apply.

Another halakhic model for understanding the

authority of the Knesset, the judiciary, and other organs of the state is that

of Jewish self-government in Medieval Europe. Throughout the Middle Ages Jewish

communities had various organs of self-government, chosen or elected by the

community or by the elites of money and pedigree, that functioned alongside the

mara de-atra (local rabbi) and the bet din (Rabbinic court). These

bodies had responsibility for matters that were not specifically halakhic – e.g.,

raising and distributing moneys to run various communal institutions, paying

taxes and levies imposed by the non-Jewish rulers, relations with the "outside"

generally, etc. This body was variously known as ziknei or nikhbedei

ha-'ir, shiv'ah tuvei ha-'ir, or simply ha-kehillah or ha-kahal

("the elders / distinguished men of the city; the seven good ones of the

city; the community"). During the 16^th and 17^th

centuries there was even an over-all representative body for matters concerning

all of the Jewish communities in Poland and its environs, Vaad

Arba ha-Aratzot, the "Council of the Four Lands." These bodies

had the right to legislate various takkanot and gezerot – edicts

and ordinances – which then had halakhic power, after receiving the stamp of

approval of the rabbis.

The noted jurist and legal philosopher Professor

Menahem Elon, in his great compendium Ha-Mishpat ha-Ivri and elsewhere

(including a personal conversation with this author), has suggested that the

Knesset enjoys a position of authority at least equivalent to that of the shiv'ah

tuvei ha-'ir and that, being democratically elected by the entire Jewish

(and non-Jewish) population of the country, its laws and decisions are binding

halakhically. Needless to say, in light of this view there is no justification

for displays of contempt towards it.

I recently had the opportunity to read a new

study by Dr. Haim Shapira relating to two additional approaches to law outside

of the strictly Rabbinic purview.¹ Among other things, he mentions

there the approach of R Nissim of Gerona (the Ran; Spain, 14^th

century), who speaks of what he calls "the law of the king" (mishpat

ha-melekh) as a kind of parallel system of law, alongside that of the

Torah. The Ran claims that the king (or any other kind of ruler of the Jewish

commonwealth) has the right and authority to legislate laws and statutes rooted

in Torah principles of justice and equity, but not necessarily following the

specific details of Torah or Talmudic law. One of the reasons for such a body

of law is to deal with the fact that Torah law is excessively strict on the

judges in matters of criminal law, imposing requirements of testimony and prior

warning making it all but impossible to convict a person of serious crimes,

i.e,, those carrying the death penalty. While on the one hand these strict

procedures are admirable for their humane spirit, reflecting the concept of the

innate dignity of the human being created in the Divine image, on the other

hand these laws did not provide adequate sanctions to discourage criminals and

wrongdoers; hence, it was felt that an alternative system of law and punishment

to insure the overall welfare and order of society.

A second legal principle mentioned by Shapira

was that articulated by R, Moses of Coucy, author of Sefer Mtzvot Hagadol (France, 13^th-14^th

centuries; known as the Semag). In his day, the Semag confronted

a situation in which pious judges were reluctant to judge by Torah law, being

overwhelmed by fear of error. Hence, the Semag recommended that,

wherever possible, the judges stipulate to the litigants who came before them

as a condition of judgment that they agree to be judged, not by Torah law, but

that the judge would be free to rule on the basis of his own judicial

discretion, understanding and judgment. (Note: This did not necessarily imply

that the judge would rule on the basis of pesharah, serving as a

mediator in arranging a compromise between the two sides – although his words

were interpreted thus by many of the poskim who came in his wake – but

that he would rule on the basis of his own conscience and sense of justice.) Thus,

the judge is not only permitted, but encouraged, to bypass Torah law as the

final arbiter – and this approach was incorporated as a guideline in the Shulhan

Arukh (Hoshen

Mishpat, 12)!

In addition to these alternative approaches to

judgment, there are a number of meta-halakhic principles, by whose means it is

possible to introduce our own ethical insights, sensitivities and approaches to

halakhah. The real problem is: What does one do if a given Torah law, or even

an entire area of Torah, conflicts with our own best moral sensibility and

values or, more than that, with the sensibility and sensitivity of an entire

culture, an entire generation? This is, of course, the underlying issue in the

public furor surrounding Torat Hamelekh, and the underlying value

conflict between its defenders and its critics.

1. Darkei shalom ("ways of peace").

Specifically, this argument was developed by R. Menahem Hameiri (France, 14^th

century) as a way of softening the bite of some of harsher Anti-Gentile

halakhot brought in the Talmud (of the ilk cited by Torat Hamelekh). He

argued that Jews may, in effect, ignore certain of these rules in order to

enhance peaceful relations with the non-Jewish world, but also added that these

rules only apply to the pagans who lived in ancient times, "in their days,"

but not to the Gentiles with whom we interact today, who are monotheists and

are guided by the norms of civilized morality.

2. Natural Law. Rav A. I. Kook repeatedly

speaks of the natural ethical sensibility implanted within the human being as

an essential fundament of the Torah, as the basis of the religious personality,

alongside the Sinaitic revelation. In several places in his writings he notes

that, if a person feels a conflict between the natural ethical feeling

implanted within us and what we read in the halakhah, something must be wrong –

and it may well be that we do not understand the halakhah properly. (This point

is developed in the section entitled Orot ha-Musar in Vols. 3 and 4 of Orot

ha-Kodesh, and elsewhere.)

3. לפנים משורת הדין

 –  "Beyond

the letter of the law." According to the Talmud, the truly good and pious

person must not behave only according to what is written in the Talmud and the

halakhic codes, but ought to go above and beyond it, to seek the maximal

ethical perfection in every situation. Again, this concept gives broad scope

for the conscience and for human understanding of ethical demands.

In conclusion, the slogan that "the Torah

is above the law" is a simplistic reading of the significance of Torah,

one that ignores the deeper and truer meaning of Torah. As we have seen, there

are cases in which the literal demands of the Torah need to go through the

filter of human ethical and moral sensibility. Or perhaps we might say that "The

Torah itself is above the Torah" – that is, that law based upon the Torah

is far deeper and more complex than the narrow interpretation given it by some

people.

[1].   Haim

Shapira, "For Judgment is the Lord's: On the Relation between God and the

Judicial Process in the Bible and in Jewish Tradition" [Hebrew], Mehkerei

Mishpat 26 (2010), 51-89; English translation forthcoming. See also Aviezer

Ravitzky, Religion and State in Jewish Thought (Hebrew; Jerusalem,

1999); Menahem Lorberbaum, Politics and the Limitations of the Halakhah (Hebrew;

Jerusalem,

2006).

Rabbi Yehonatan Chipman is a translator by

profession, specializing in Jewish studies. He writes a weekly sheet (in

English) on the portion of the week and the haftara, titled "Hitsei

Yehonatan". (Anyone interested in ordering a sample of subscription

can write via email to: yonarand@internet-zahav.net.

"Justice, justice

shalt thou pursue" : Any judge who takes a bribe and distorts the law will not

die of old age until his eyes fade, as it is said, "Do not take bribes,

because bribery blinds the sighted" (Ex. 23).

(Mishnah

Peah 8:9)

Between

Justice, Morality, and Victory

"When you go to war": This means that if you have

done justice, you are assured that if you go to war, you will triumph. As David

said, "I have done judgment and justice: leave me not to mine oppressors".

(Ps. 119:121, Rashi on Deut. 20:1)

"You

Lead You …" The Ethics of War, Then and Now

It is a positive commandment to destroy the seven nations,

as it is said, "thou shalt utterly destroy them," and anyone who

encounters on of them and does not kill him has violated a negative

commandment, for it is said, "Thou shalt save alive nothing that breatheth"

but their memory is already lost.

(Maimonides, Laws of Kings, 5:4)

That they teach you not – but we have learned that if they

had repented we would have accepted them (Sota 35b). Destroying them was only an obligation if their

pagan corruption gave an inciting example, and it was not a duty if they agreed

to return to the duties of human morality.

(Samson Raphael Hirsch, Deut. 20:18).

When thou comest nigh unto a city to fight against it, then

proclaim peace unto it – this is the simple text of Deuteronomy: when thou

comest nigh unto a city, and certainly this implies every city and every war,

whether it is a voluntary or an obligatory war, one begins with peace, except

for Ammon and Moab, of which the Bible specifically states: "Thou shalt

not seek their peace nor their prosperity all thy days for ever" (Deut. 23:7), but even Ammon and

Moab, if one does not begin with peace with them, if they submit themselves, we

accept them, to show you how great is the power of peace.

(Rabenu Bahya on Duet. 20:10).

Leadership's Indirect Responsibility

"Our hands did not spill this blood, and our eyes did

not see" – did we ever imagine that the Bet Din sheds blood!? [Of

course not! The meaning is that] we did not send him away without food, we did

not see him and let him go unaccompanied.

(Sotah 46b)

The Sages of Eretz Yisrael explain the

passage "Our hands did not spill this blood" as referring

to the killer; the Sages of Bavel explain that it refers to

the victim.

The Sages of Eretz Yisrael: That he was in our hands and we

let him go and did not kill him, that we did not see him and let him go and

conceal his sentence.

The Sages of Bavel: We did not send him on his way without

company; we did not see him and leave him without support.

(Yerushalmi, Sotah 9:6)

"Our hands did not spill this

blood" – We were not the cause of this murder, not by refusing

food to the murderer – thereby forcing him to kill the victim, to plunder his

bread because he was hungry – nor by not providing company for the victim, so

that he need not travel alone in a dangerous place.

(Malbim, Devarim 1:7)

"Whom You redeemed" – On this condition did

You redeem us, that we have not murderers among us.

(Sifri, Shofetim, 200)

Our Sages explained that that this teaches us that upon this

condition did He redeem us, that there not be found – in any generation –

murderers; and now that murderers have been found, it is revealed a

priori that those who exited Egypt were not deserving of redemption,

and all the miracles performed on their behalf were unnecessary.

(Malbim, ibid., ibid.)

Readers Respond

In his fine article, "The Daughters of Zelophehad

Marry," in issue no. 712 on Parashat Masaei, Ariel Rathaus presents the

Midrash from Sifri, Pinchas, 133, "They all gathered to take counsel, and

they said, 'Not like the mercy of flesh and blood is the mercy of the Place;

flesh and blood is more merciful for males than for females, but the Holy One

is merciful for all His creatures.'"

And here is a story that

happened to me.

On the Sabbath of

Parashat Pinchas, my wife and I were guests of friends in Ra'anana. The morning

prayers were beautiful and moving, and during the reading of the Torah, between

the fifth and sixth aliyot, the gabbay pounded his fist on the table and

proclaimed loudly: "A blessing for the sick" (using the masculine

plural, which is usually taken to mean both men and women), and the worshipers

prayed for the full health and speedy recover of the sick. When they had

finished, the gabbay pounded on the table again and proclaimed, "a

blessing for sick women."

I tried to find out what

the source of this, what was the authority for this custom.

The author of Torah

Temima refers to the Midrash cited above and says, "I do not know

where the daughters of Zelophehad learned that flesh and blood are more

merciful for men than for women, and what the meaning of it is. Perhaps one

could say that it is for the reason that the Gemara says (Horayot 13b): the man comes before

the woman to be resuscitated." That is, that he must be saved when he

come."

I ask, is it really true

that since the days of Our Teacher Moses and the daughters of Zelophehad, that

flesh and blood are still more merciful for men?

I find this surprising.

Amos Bart, Kibbutz Sa'ad.

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