Shoftim 5773 – Gilayon #811


SHABBAT SHALOM


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Parshat Shoftim

Should a slain person be found on the soil…

Lying in the field, it not being known who struck him

down. Your elders and your judges shall go out and measure

To the towns that are around the slain person.

(Devarim 21:1-2)

 

And measure – Even if it

is clearly closer to a certain town, it is obligatory to engage in measuring,

for all the unusual activity will cause people to come out of the measured

towns [to see what is happening] and if someone has left home and not returned,

his relatives will come and recognize the slain person and testify to his

identity and his wife will not remain an aguna (A woman whose husband has disappeared. She may not remarry unless his

death has been determined.) and his sons may claim their inheritance and

the court may not protest, and this way it will be known who may have

accompanied the man and sometimes the event will receive publicity.

(Hizkuni ibid., ibid.)

 

The story is related of two

priests who were rushing up the [altar] ramp, one pushed the other [who had

preceded him] into the four cubits [of the altar], he took a knife and stabbed

him in the heart. Came Rabbi Tsadok, stood on the stairs of the hall and said:

Listen to me, our brothers, House of Israel, it says (Devarim 21) "Should a slain person be found, etc., your

elders and your judges shall go out and measure – come, let us measure

and see over which should a calf be offered, over the Temple hall or the

courts? The congregation all wailed and wept.

Later the father of the young man

arrived and said to them: My brothers, I am your atonement, my son is still

twitching and the knife has not yet been defiled. This comes to teach us

that the impurity of a knife is more serious a matter to Israel than is the

spilling of blood, and thus does it say (II

Kings 21): "And Menashe also spilled so much innocent blood that it

filled Jerusalem, mouth to mouth" – from here they said: Because of the

sin of murder, the Shekhina departed and the Temple became impure.

(Tosefta Yoma 1, 10)

 

"Judges" and "laws" –

Between the children of noah and the jewish people

Shaaya Rothberg

Our parasha

begins with the command to appoint judges and officials1. The

subject under discussion is the mitzvah to establish an enlightened and

effective legal system. Perhaps the actual goal is a comprehensive

economic-political-legal system capable of improving men's' lives collectively

so as to justify their description as a community "in the image of God".

It can be definitely said that God commands Israel to establish what we term

today "rule of law". It seems that this is more or less how Ramban

understood the word "mishpat" (Leviticus

18:4):

"My laws

you shall do" – 'These are things written in the Torah which, were they

not to have appeared, it would have appropriate to say them', thus in the words

of Rashi. […] But according to the plain meaning "mishpatai" – "my

laws", according to its simple meaning, [refers to] the laws appearing in

the parasha of "V'eleh HaMishpatim" – "And These

Are the Laws" and throughout the Torah, and therefore it says "which

man shall live by them" – for the laws were given for the life of men

living in communities and for the welfare of man, and so that man not

injure his fellow nor kill him.

Being that the

command to appoint judges is the mitzvah to establish rule of law, it is

bound up tightly with another mitzvah that obliges many more people to

establish rule of law: the mitzvah of dinim – of establishing

courts and laws – of the descendents of Noah, i.e., the Noahide laws. (Today

the descendents of Noah number approximately seven billion, Jews making up

about 0.2%). Both Jews and gentiles are commanded by God to establish

governments of law and justice.

What is the

relation between the Jewish government of law and that of the children of Noah?

Needless to say, this is a complex and complicated question. In my opinion, a

deep truth is to be found in the approach of Rav Hayyim Hirshenson who

considered the commandment to appoint judges to be a special Jewish version of

universal mitzvah of denim – of laws. He opined that every

enlightened nation embodies its unique version:

[…] and thus

all segments of humanity create for themselves rules and regulations 'which Man

shall create and live by. There is no difference whether these laws were

made through national concurrence, such as with the American constitution, or

on the advice of a political sage, as in the case Lycurgus and Spartan law, or

by divine command, such as the laws of Israel […] their primary goal is

organization and decorum for the sake of human and national existence […] (Musagei Shav V'ha’emmet p. 71).

All the above

simply means that God desires the improvement of man – every man, everywhere – by

means of the rule of law. This is reason that He commanded the Jews to

establish the rule of law by means of judges, and so did He command those not

Jewish, i.e., 99.8% of humanity, through the mitzvah of dinim [the

requirement of maintaining courts to provide legal recourse]. If we wish to

fulfill God's will, we should try to clarify if there is, indeed, any chance

that the rule of law and justice can exist throughout the world. Does this not

sound like a crazy dream?

But if we

observe the development of man from an evolutionary viewpoint, we see that men

do march towards the reality of universal rule by law with remarkable speed.

According to Yuval Harari (Kitzur Toldot Ha'enoshut), humans were

once "hunter-gatherers", organized into groups of about 150 people

who knew each other personally. Today, according to the index of the

respected economic magazine "The Economist", about a half of the

human race lives in "democracies" or "flawed democracies".

These are nations which maintain developed government of law, interwoven with

each other through international law and cultural and trade relations.

This and more.

Today, the absolute majority of men live in countries committed – either fully

or partially – to "The International Bill of Rights", which is

composed of the universal proclamation regarding human rights, which was

adopted after the holocaust, and two treaties, one devoted to "civil and

national" rights, and the other to 'economic, social and cultural"

rights. This is to say that despite all the horrors and failures of the human

race, half the people live in countries which maintain some more or less proper

version of the reign of law, and many more live in countries which have

committed themselves to respect the rule of law in the form civil rights laws,

even though in practice they may not do so. We have, therefore, come a long way

since the time a community would contain up until about 150 members who knew

each other personally. Something is happening among people. True, for a large

segment of humanity, the world order remains murderous and brutal to an

unimaginable degree. And it may also be that the little bit of positive order

achieved will be swallowed up in the depths of chaos and violence. But in light

of evolutionary development, there is also a chance that we are on the way to

an all-humanity rule of law based on, among other things, the rights of man.

Are we, the

chosen people dwelling in Zion,

also obligated to support the common effort for the advancement of the reign of

global rule of law? If it is clear that God wants rule of law for all men, is

it not self-understood that our Torah commands us to act in this direction? In

today's cultural climate, I suspect that the answers on the tongues of many are

likely to be quite embarrassing. Fortunately, the captains of the State of

Israel spared us this embarrassment when they announced and signed before the

entire world that the Jewish State is committed to international law, including

human rights, and even stated in its declaration of independence that the

Israeli government will be faithful to the principles of the Charter of the

United Nations which is also based, among other things, upon human rights.

According to

some important halachic decisors, including Rav Hirschenson, this public

commitment of the Jewish state commits us according to Torah law. The violation

of a covenant cut with the nations is viewed by the Torah as a serious

transgression, as can be shown by the penalty imposed for the violation of the

covenant with the Givonites (I Shmuel 21:1-9). (Unfortunately,

a penalty such as this cannot be instituted today because of a conflict with

the law on human rights!) R. Hirschenson and others of his school, enlist many

halachic proofs to prove that which should be self-evident: God also want Jews

to contribute their share to the world reign of law and justice. In R.

Hirschenson's words (Ela Divrei HaBerit, vol.

I, p.69): "It is forbidden for the Jewish people to violate

international law, even though they are not according the laws of Israel" and "Forefend that Israel

be considered in the eyes of the nations to be murderous savages opposing

international law and laws of civilization". There is no doubt that in our

day, according to this approach, the Torah obligates us to observe

international law on human rights. This being the case, when a God-fearing

person seeks to know the will of God, he will search not only in the Talmud,

but also in the universal declaration on human rights and in the two

accompanying treaties.

These words

shed light on the meaning of the words "the beginning of the flowering of

our redemption" appearing in the Prayer for the Welfare of the State.

These words emphasize the great importance of the rebirth of the Israelite

nation in the holy land. They say that the establishment of the modern Jewish

State is the beginning of the flowering of our redemption. What, then,

is the continuation of the redemption? An answer is given in the last section

of the prayer as it appears in the prayer books: "Shine forth in your

glorious majesty on all the inhabitants of your universe". These words

direct us to the Prophets. Thus the Prayer for the Welfare of the State expresses

an idea found also in Israel's

Declaration of Independence:

The State of

Israel […] will be based on the foundations of liberty, justice and peace in

the light of the vision of the Prophets of Israel." In light of the

importance of international law in general and human rights in particular in

the realization of the will of God, we can understand why the Declaration,

immediately following mention of the vision of the Prophets of Israel,

continues with "[the State of Israel] will maintain complete equality of

political and social rights for all its citizens without difference of

religion, race, and gender; will guarantee freedom of religion, conscience,

language, education and culture; will protect the holy sites of all religions;

and will be loyal to the principles of the Charter of the United Nations.

From the above we conclude that

the establishment of the State of Israel was the beginning of the flowering of

our redemption; the next stage is a world order of law and human rights. The mitzvah

which opens our parasha, "Judges and officials shall you appoint in

all your gates" reflects God's will for improvement of man, every man,

everywhere – by means of the reign of law. May it be His will that His light

enlighten our eyes, and that we maintain his kingship over us soon, in our

days.

1. Although

'shoterim' in modern Hebrew denotes 'policeman', in Biblical context it

has been translated as 'officials' 'officers', 'overseers' and 'scribes'. K.G.

Dr.

Shaya Rothberg teaches in the Conservative Yeshiva in Yerushalayim.

 

Between Justice and Victory

"When you go out to wage war

…" this is to

teach us, that if you have practiced true justice, be assured that when you go

to war, you will win. And so said David (Psalms

119:121) "I have done

what is just and right; do not abandon me to those who would wrong me."

(Rashi,

Devarim 20:1)

 

"You Shall Not Let A Soul Remain Alive.

No, You Must Proscribe Them… Lest They Lead You…" The Ethics of War, Then and Now

It is a mitzvat asey – a positive

commandment – to proscribe the seven nations, as is written "proscribe,

yes, proscribe them" and if one has the opportunity to kill one of

them and does not do so, he has transgressed a negative precept, for it is

written "You shall not let a soul remain alive." But

[today] none of them remains.

(Rambam,

Laws of Kings, 5:4)                                                                                                                                            

"Lest they lead you…" – from this you learn that if they

were to repent, they would be accepted" (Sotah 35b). Destruction was obligatory only if their idolatrous

corruption presented an inciting example; it was not a duty if they agreed to

return to the duty of humanity's ethics.

(Rabbi Shimshon R. Hirsch, Devarim

20:18)

 

"When

you approach a town to attack it, you shall offer it terms of peace" –

Scripture speaks in general terms – "When you approach a town"

certainly this refers to every town and to every war. Be it an arbitrary war (milchemet

reshut), be it an obligatory war (milchemet chova), you must first

talk peace – with the exception of Ammon and Moav, for the Torah specified:

"You shall never concern yourself with their welfare or benefit as long

as you live." Even though you do not present them with terms of peace,

if they, on their own volition, wish to make peace, we accept them. This

illustrates how great is the power of peace.

 (Rabeinu Behayey, Devarim 20:10)

 

Righteousness, righteousness

shall you surely pursue: And any judge who accepts a bribe or who

perverts justice will not die in old aqge before his eyes have become dim, as

it is said (Shemot 23): And a

bribe shall you not accept, for a bribe blinds them that have sight, etc.

(Mishnah Peah 8, 9)

 

Inheritance

of the Land Is Contingent upon the Practice of Justice

"Justice

justice shall you pursue": As the highest unique goal, to be striven

for purely for itself, to which all other considerations have to be

subordinated, the concept tsedek, "Right, Justice," forming

all private and public matters in accordance with God's Torah is to be kept in

the mind of the whole nation. To pursue this goal unceasingly with all devotion

is Israel's

one task, "so that you may live and take hold of the land etc." with

that it has done everything to secure its physical ("may live") and

political ("and take hold") existence. Inasmuch as here the political

security of the land to be achieved by acknowledging and caring for Right and

Justice, is called "taking hold" even after possession of the Land

has been completed,–and the text is obviously speaking of such a time – ,

the significant truth is thereby laid down that the possession of the land

comes into question every minute, and it has to be taken into possession

afresh every minute by the Jewish State as a whole paying acknowledging tribute

to "Right and Justice", and making this realized in the land.

(RaSHar Hirsch, Devarim 16:20,

translated by Y. Levi)

 

"There Is Not to Found Among You One Having His Son or His Daughter

Cross through Fire, an Augurer of Augury, etc." Don't Believe

in Nonsense.

All these things are lies and

falsehood, and with them the ancient idolaters misled the nations of the lands

into following them, and it is not proper that Israel, who are very wise,

should be attracted by these forms of foolishness; they should not even

consider that they may have some substance, as is written, "There is no

divination in Yaakov, and no augury in Israel", and it is

written, "For these nations that you are coming to possess: to

sorcerers and augurers do they hearken, but you – not thus has the Lord your

God made you!" Whoever believes in all these things and their

likes, thinking that they are true and are items of wisdom, but that the Torah

forbade them, is but one of the fools and the ignorant… but those who possess

wisdom and whose ideas are whole know with clear proof that all these things which the Torah forbade

are not things of wisdom, but are empty and insubstantial, attracting those

lacking in intelligence who abandoned all paths of truth because of them. . And

this is why the Torah, when admonishing against all these forms of nonsense,

said "Wholehearted shall you be with the Lord your God".

(Rambam, Mishneh Torah, "Laws of

Idolatry" 11:16)

 

Man and the Tree

Should you besiege a town many days

to do battle against it, you shall not destroy its trees to swing an axe

against them, for them you shall eat, and you shall not cut them down. For is

the tree a human, to come away from you in the siege?

(Devarim 20:19)

 

Eliyahu the prophet comes to

announce peace – also the peace between the holiness in the material and the

holiness which is in the supernatural – and in the inner soul of the nation, a

vital stream of nature bursts forth, and it approaches the holy. We all come closer

to nature, and nature comes closer to us, succumbing to our noble demands which

emanate from the source of the holy. From the depths of nature grows a great

demand for sanctity and purity, for refinement of soul and purification of

life.

Rabbi Avraham Y. Kook, zt"l, based on Moadei Reaya)

 

Halacha favors restraint. It favors reduction over expansion, it is

prepared to sacrifice a degree of energy and courage in society for the sake of

stability and peace, to acquire tranquility of the soul and rest of the body in

return for moderation in the standard of living, especially in the economic and

technological spheres. It seeks to improve the quality of life, not only

because of social aims but – perhaps primarily – in order to shape the moral

image of every individual. At this point we reach equilibrium in man's soul, a

spiritual balance between man's demands and his obligations. Jewish ethics

stand firm on a foundation of self-control and restraint. Without this

basis, all ecological efforts in the world will not avail. At the foundation of

every approach to ecological problems must be the diminishing of desire, sensitivity

to the needs of others – both those of society and of all God's creations.

(Rabbi Aharon Lichtenstein, Hagut IV, Judaism in Contemporary

Society)


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