Parshat Shoftim 5759

Parshat Shoftim 5759 (Unedited) “From Left to Right” Rabbi Ari Kahn

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arshat Shoftim deals with the new social reality that will emerge upon entering and conquering the Land of Israel. With the death of Moshe the people will have lost both a political leader and the religious arbiter. Shoftim deals with the appointment of Judges, and the eventual selection of a king. Aside from the responsibility of adjudicating case, the judges also have an ability to make applications of legal principles, a process which will often result in the establishment of new precedent. The Torah writes: If there arises a matter too hard for you in judgment, between blood and blood, between plea and plea, and between plague and plague, being matters of controversy inside your gates; then shall you arise, and get to the place which the Lord your God shall choose. And you shall come to the priests the Levites, and to the judge who shall be in those days, and inquire; and they shall declare to you the sentence of judgment And you shall do according to the sentence, which they of that place which the Lord shall choose shall declare to you; and you shall take care to do according to all that they inform you. According to the sentence of the Torah which they shall teach you, and according to the judgment which they shall tell you, you shall do; you shall not deviate from the sentence which they shall declare to you, to the right hand, nor to the left. And the man who will act presumptuously, and will not listen to the priest who stands to minister there before the Lord your God, or to the judge, that man shall die; and you shall put away the evil from Israel. (17:8-12)

In areas of confusion the judges are entitled to interpret the law as they see fit. The Talmud indicates that this prerogative is not the right of any or every court rather it is the function of the high court in Jerusalem. It has been taught; R. Jose said; Originally there were not many disputes in Israel, but one Beit Din of seventy-one members sat in the Hall of Hewn Stones, and two courts of twenty-three sat, one at the entrance of the Temple Mount and one at the door of the [Temple] Court, and other courts of twentythree sat in all Jewish cities. If a matter of inquiry arose, the local Beit Din was consulted. If they had a tradition [thereon] they stated it; if not, they went to the nearest Beit Din. If they had a tradition thereon, they stated it, if not, they went to the Beit Din situated at the entrance to the Temple Mount; if they had a tradition, they stated it; if not, they went to the one situated at the entrance of the Court, and he [who differed from his colleagues] declared, ‘Thus have I expounded, and thus have my colleagues expounded; thus have I taught, and thus have they taught.’ If they had a tradition thereon, they stated it, and if not, they all proceeded to the Hall of Hewn Stones, where they [i.e.,

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the Great Sanhedrin] sat from the morning tamid until the evening tamid; on Sabbaths and festivals they sat within the hel. The question was then put before them: if they had a tradition thereon, they stated it; if not, they took a vote: if the majority voted ‘unclean’ they declared it so; if ‘clean’ they ruled even so. But when the disciples of Shammai and Hillel, who [sc. the disciples] had insufficiently studied, increased [in number], disputes multiplied in Israel, and the Torah became as two Toroth. (Sanhedrin 88b) The greatest scholars were empowered with the ability of applying the principles of Torah both oral and written, revealed to Moshe, and utilizing these principles as new cases presented themselves, or where confusion arose regarding existing law. Despite the attributes of the judges who possessed the combination of intellectual prowess with superior personal moral standards, the possibility of an error remains. In such cases the question would arise – do the sages retain their authority in the event that they are mistaken? The textual basis for the question revolves around the phrase: “According to the sentence of the Torah which they shall teach you, and according to the judgment which they shall tell you, you shall do; you shall not deviate from the sentence which they shall declare to you, to the right hand, nor to the left.” Rashi cites a tradition from the Sifri: Even if they tell you that right is left and that left is right (you should listen to the sages) certainly if they tell you right is right and left is left. (Rashi Dvarim 17:11) The same idea is found in the Midrash Shir HaShirim: Thou shalt not turn aside from the sentence which they shall declare unto thee to the right hand nor to the left: if they tell you that the right hand is right and the left hand left, listen to them, and even if they shall tell you that the right hand is left and the left hand right.(Midrash Rabbah - The Song of Songs I:18) This concept of absolute authority of the sages is quite disturbing especially in cases where is appears that they are mistaken. The Jerusalem Talmud records a dissenting opinion: Is it possible that if they told you right is left and left is right you would have to listen to them? The verse teaches we must follow [the sages] “left and right” only when they tell you right is right, and left is left. (Yerushami Horiot 2b) This approach is comforting, for the individual is not obligated to follow the sages astray, yet the normative law follows the approach of Rashi. On the other hand there is a downside to the opinion of the Yerushami – it could easily result in a situation of religious anarchy – where each person will do “what is right in his own eyes”. This 2

situation is what is hinted at the end of the passage in the Talmud cited above: But when the disciples of Shammai and Hillel, who [sc. the disciples] had insufficiently studied, increased [in number], disputes multiplied in Israel, and the Torah became as two Toroth.(Sanhedrin 88b) The Rambam equates this historical tragedy (the miss-education of the students of Hillel and Shammai) with the destruction of the Sanhedrin: When the great court functioned there was no [unresolved] arguments in Israel … when the High court ceased to function arguments became numerous in Israel (Rambam Laws of Mamrim 1:4) While the Talmud pointed to the students of Hillel and Shammai, the Rambam replaced the specific names of the students of Hillel and Shammai with the conceptual underpinning of the origin of unresolved conflicts. The lack of a functioning high court allowed various individuals to do what they deemed was the correct course of action. Each side was certainly intellectually honest and we have no reason to doubt the objectivity of either side, yet there was no longer an apparatus to resolve the conflicts. While the problem of the court being mistaken is perplexing, the thought of not having a court is even more frightening. The Ramban in his comments to the verse instructs the individual to follow the sages, even when he thinks the sages are mistaken. The first observation of the Ramban is that just because the individual thinks the sages are wrong does not mean they are in fact mistaken. The Ramban goes on to say that the individual – who is personally convinced of the error of the words of the sages, should comfort himself with the knowledge that it is G-d who has commanded him to observe the ruling of the sages – even if they are in fact mistaken. The Ramban proceeds to remind us that the Sages enjoy Divine guidance, hence the individual who assumes that the sages are mistaken must factor in Divine protection when trying to determine the probability of error. In passing the Ramban referred to a famous argument between two of the leading sages of the era of the Mishna Rebbi Yehoshua and Raban Gamliel the two had arrived at different conclusions regarding the dates of the New Year. This argument had serious ramifications including what day would be observed as the Day of Atonement – Yom Kippur: Thereupon Rabban Gamaliel sent to him to say, I enjoin upon you to appear before me with your staff and your money on the day which according to your

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reckoning should be the Day of Atonement. … He [R. Yehoshua] then went to R. Dosa b. Harkinas, who said to him: “If we call in question [the decisions of] the Beit Din of Rabban Gamaliel, we must call in question the decisions of every Beit Din which has existed since the days of Moses up to the present time. For it says, then went up Moses and Aaron, Nadab and Abihu and seventy of the elders of Israel. Why were not the names of the elders mentioned? To show that every group of three which has acted as a Beit Din over Israel is on a level with the Beit Din of Moses”. He [R. Yehoshua] thereupon took his staff and his money and went to Yavneh to Rabban Gamaliel on the day on which the Day of Atonement fell according to his reckoning. Rabban Gamaliel rose and kissed him on his head and said to him: come in peace, my teacher and my disciple — my teacher in wisdom and my disciple because you have accepted my decision. (Rosh Hashana 25a) The Ramban explains the perspective of Rebbi Yehoshua; even though Rabbi Yehoshu knows that his position is correct, he must accept the court. One issue that is intriguing about this case, is the fact that the High court was no longer functioning. The Temple had been destroyed, and as the text had stated, now the court resided in Yavneh. This would explain the hesitation of Rebbi Yehoshua to acquiesce to the position of the court. (And why he was not concerned with the label of “rebellious elder”, whose punishment is death!) Now we understand the argument put forward by Rebbi Dosa, the rejection of this court in Yavneh is tantamount to the rejection of every court which has ever existed – it will produce the same result – religious anarchy. The Talmud continues, and explains that the obligation to accede to the words of the sages exists in every generation: And thou shalt come unto the priests the Levites and to the judge thou shall be in those days. Can we then imagine that a man should go to a judge who is not in his days? This shows that you must be content to go to the judge who is in your days. It also says; Say not, How was it that the former days were better than these. (Rosh Hashana 25b) The position of the Ramban also would explain one of the most difficult arguments ever to take place in a study hall, the famous “Oven of Achnai”:1 …and this was the oven of ‘Aknai. Why [the oven of] ‘Aknai? — Said Rab Judah in Samuel's name: [It means] that they encompassed it with arguments as a snake, and proved it unclean. It has been taught: On that day R. Eliezer brought forward every imaginable argument, but they did not accept them. 1

See the Tosefta in Eduyot 2:1

‫) תוספתא מסכת עדיות פרק ב‬3( ‫(א) ארבעה דברים ר' אליעזר מטהר וחכמים מטמאין מסרק של צרצור ר' אליעזר‬ ‫ דף של נחתום שקבעו במסמר או‬.‫אומר אין מטמא באויר וחכמים אומרים מטמא באויר‬ ‫ מנעל שעל האימים ר' אליעזר‬.‫שחיברו במריש או בקורה ר' אליעזר מטהר וחכמים מטמאין‬ ‫ חתכו חוליות ונתן חול בין חוליא לחוליא ר' אליעזר מטהר וחכמים‬.‫מטמא וחכמים מטהרין‬ .‫מטמאין והיה נקרא תנורו של עכנאי שעליו רבו מחלוקת בישראל‬ 4

Said he to them: ‘If the halachah agrees with me, let this carob-tree prove it!’ Thereupon the carob-tree was torn a hundred cubits out of its place — others affirm, four hundred cubits. ‘No proof can be brought from a carob-tree,’ they retorted. Again he said to them: ‘If the halachah agrees with me, let the stream of water prove it!’ Whereupon the stream of water flowed backwards — ‘No proof can be brought from a stream of water,’ they rejoined. Again he urged: ‘If the halachah agrees with me, let the walls of the schoolhouse prove it,’ whereupon the walls inclined to fall. But R. Yehoshua rebuked them, saying: ‘When scholars are engaged in a halachic dispute, what have ye to interfere?’ Hence they did not fall, in honour of R. Yehoshua, nor did they resume the upright, in honor of R. Eliezer; and they are still standing thus inclined. Again he said to them: ‘If the halachah agrees with me, let it be proved from Heaven!’ Whereupon a Heavenly Voice cried out: ‘Why do ye dispute with R. Eliezer, seeing that in all matters the halachah agrees with him!’ But R. Yehoshua arose and exclaimed: ‘It is not in heaven.’ What did he mean by this? — Said R. Jeremiah: That the Torah had already been given at Mount Sinai; we pay no attention to a Heavenly Voice, because Thou hast long since written in the Torah at Mount Sinai, After the majority must one incline… A Tanna taught: Great was the calamity that befell that day, for everything at which R. Eliezer cast his eyes was burned up. R. Gamaliel too was travelling in a ship, when a huge wave arose to drown him. ‘It appears to me,’ he reflected, ‘that this is on account of none other but R. Eliezer b. Hyrcanus.’ Thereupon he arose and exclaimed, ‘Sovereign of the Universe! Thou knowest full well that I have not acted for my honor, nor for the honor of my paternal house, but for Thine, so that strife may not multiply in Israel! ‘At that the raging sea subsided. (Talmud - Baba Metzia 59b) In this case we clearly see the tension between following one’s individual understanding, and following the majority. Here G-d apparently supports Rebbi Eliezer. We are shocked at the intransigence of the sages. How can they ignore the Divine signs, and will. Significantly here Rebbe Yehoshua stands and insists that the majority must be followed, it was a lesson which he himself had learned in his conflict with Rabban Gamliel. We also clearly see the motivation of Rabban Gamliel, this was not personal, and it was not a case of him protecting his job or ego. The majority would need to be followed in order to avoid anarchy. Nonetheless, the thought of the entire community following the wrong law is haunting. The Sefer Hachinuch explains pragmatically (section 496) that it is preferable to suffer one mistake following the majority than have complete anarchy. However, this teaching is not so simple, the Torah had commanded man to follow the majority. Therefore to ignore the majority and follow the opinion of Rebbi Eliezer, an opinion which was impressively buttressed with a Divine exclamation point would certainly be compelling. Yet following Rebbi Eliezer would necessitate man to ignore a different Torah law - following the 5

Majority. The conflict can be articulated as follows what takes precedence substance of law or procedure of law? The Gaon of Vilna (Kol Eliyahu section 227, page 89 and Divri Eliyahu page 80) had a different explanation, which resolves this conflict and takes us to the very essence of the concept of truth. The Gaon cites a Midrash: R. Shimon said: When the Holy One, blessed be He, came to create Adam, the ministering angels formed themselves into groups and parties, some of them saying, ‘Let him be created,’ whilst others urged, ‘let him not be created.’ Thus it is written, Love and Truth fought together, Righteousness and Peace combated each other (Ps. 85:11). Love said, ‘Let him be created, because he will dispense acts of love’; Truth said, ‘Let him not be created, because he is compounded of falsehood’; Righteousness said, ' Let him be created, because he will perform righteous deeds’; Peace said, ‘Let him not be created, because he is full of strife"’ What did the Lord do? He took Truth and cast it to the ground. Said the ministering angels before the Holy One, blessed be He, ‘Sovereign of the Universe! Why do You despise your seal? Let Truth arise from the earth!’ Hence it is written,' Let truth spring up from the earth '(85:12).... R. Huna the Elder of Sepphoris, said: While the ministering angels were arguing with each other and disputing with each other, the Holy One, blessed be He, created him. Said He to them: ‘What can ye avail? Man has already been made!’ (Midrash Rabbah Breishit 8:5) The Gaon explained that the very creation of man is dependent on “truth taking a beating”. Had man been accountable to the level of truth which exists in heaven, then man would be unable to justify his existence. Rather as the verse in Psalms states “Let truth spring up from the earth” (85:12). There is a level of truth which originates in G-d’s mind, and is operational in the heavens. Man is not accountable for this pristine level of truth. In order to create man truth needed to be flung to the ground, to earth. Truth is now in the domain of man. The Court; the sages will determine truth. This is what Rebbi Yehoshua meant by “it is not in heaven” once the Torah was given to man, man determines what is truth. When the Torah commands us to follow the court it states: “According to the sentence of the Torah which they shall teach you, and according to the judgment which they shall tell you, you shall do; you shall not deviate from the sentence which they shall declare to you, to the right hand, nor to the left.” The sages determine what is right and what is left, what is right and what is wrong. Adherence to the Sages is necessary on a practical pragmatic level, according to the Vilna Gaon, it goes beyond that, the words of the Sages are words of truth. © 1999 Rabbi Ari Kahn, All Rights Reserved

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