From: office@etzion.org.il
To: yhe-intparsha@vbm-torah.org
Subject: INTPARSHA61 -43: Parashat Shoftim
YESHIVAT HAR ETZION
ISRAEL KOSCHITZKY VIRTUAL BEIT MIDRASH (VBM)
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Parashat Shoftim - the High Court
By Rabbi Michael Hattin
Introduction
Parashat Shoftim begins with a series of laws that are meant
to regulate the national life of the people of Israel in
their own land. "You shall appoint judges and officers in
all of your gates that God your Lord gives to your tribes,
and they shall judge the people with just rulings. Do not
distort justice, do not show favor, do not take
bribes.Justice and only justice shall you pursue, in order
that you may live and possess the land that God your Lord
gives you" (Devarim 16:18-20). These judicial guidelines
mandating justice and truth are followed by a brief set of
prohibitions concerning idolatrous groves and shrines, and
blemished sacrifices. A lengthier section then follows
concerning the trial and sentencing of those who choose to
worship idols.
Immediately thereafter, the text of the Torah returns to the
topic of the judiciary, this time spelling out the role and
authority of the High Court: ""If you are uncertain how to
rule in a case of capital punishment, civil litigation or
ritual law, and there is disagreement among the regional
courts, then you shall set out and go up to the place that
God your Lord will choose. You shall approach the Cohanim
or Judge that presides at that time and make your inquiry,
and they shall render a legal decision. You shall follow
the ruling that they shall declare from that place that God
will choose, and you shall be careful to fulfill all that
they rule. You shall act in accordance with the teaching
that they convey and the laws that they legislate. Do not
stray from the words that they state to you, neither to the
right nor to the left. The person who rebels and refuses to
abide by the ruling of the Cohain who ministers there before
God your Lord, or by the ruling of the Judge, shall die.
Thus shall you rid yourselves of evil in Israel. The people
shall hear and be afraid, and will not rebel again" (Devarim
17:8-13).
The King, the Priest, and the Prophet
This important section, describing the procedure of appeals
and outlining the court's pivotal part in interpretation of
the Torah, is followed by the only reference in the
Pentateuch to the appointment of a monarch as the people's
leader: "When you enter the land that God your Lord gives to
you and you inherit it and dwell in it, and you shall say
'We want to place a king upon us, like all of the nations
that are around us.' Then you shall surely appoint a king
over yourselves, the person that God will choose." (Devarim
17:14-20). Some of the king's responsibilities and powers
are spelled out, and he is enjoined to compose a special
copy of the Torah to remain with him always, 'in order that
he may read it all the days of his life, and learn to fear
God his Lord, in order to observe and to fulfill all of the
words of this Torah and these rules.'
Subsequently, the Torah describes the unique status and
special duties associated with the Levites and the Cohanim,
who together constitute the priesthood. On the one hand,
they are excluded from possessing tribal territory. On the
other hand, the Cohanim are to enjoy a portion of all
slaughtered animals as well as a share of the produce and
the sheerings of the sheep. "For God your Lord has chosen
him from among all of your tribes to stand and serve in
God's name forever" (Devarim 18:1-5).
Finally, the text turns to the topic of idolatry again, this
time prohibiting all forms of divination, prognostication
and soothsaying. Instead, the people of Israel are to
follow the guidance of the 'Navi' or Prophet, who will
communicate God's will to them, after the manner of Moshe
himself. The false prophet, however, who speaks words that
were not received from God, or who speaks in the name of
idolatry, is to be put to death. So concludes the first
half of the Parasha.
The Character of the Jewish State
Considering the matter in general terms, this first half of
Parashat Shoftim outlines the most significant elements that
define the nature of the Jewish state: the High Court, the
King, the Priesthood, and the Prophet. Each one of these
authorities has a specific and defined set of duties and
powers. At the same time, although these offices bear a
striking resemblance to the more familiar judiciary,
legislature, executive and state-sponsored religion, the
text itself makes it clear that in the ideal Jewish state
there is much more overlap between these officials and their
roles than modern democratic states tend to tolerate. Thus
the High Court may decide appeals and points of law, but
also has the exclusive authority to transform
interpretations of law into binding laws themselves. The
King may function as chief executive, but also serves as a
role model of one who studies God's Torah and abides by it.
The Leviim and Cohanim may be charged with ministering at
the Temple and carefully fulfilling the exacting rituals of
the Service, but are also expected to serve as Judges and
Teachers of the law. The Prophet may evoke a detached
religious figurehead, yet is consistently presented
throughout Tanakh as also playing a crucial role in
influencing political affairs of state.
In short, the customary and clear-cut division between
'church' and 'state' is less distinct in the Torah model,
because in ancient Israel as well as in this ideal vision of
the Parasha, civil life and religious life are harmoniously
intertwined as the single overriding notion of 'life in
God's presence'. Thus, some of the distinctions that we
tend to draw between a man, the society of which he is part,
the government whose dictates he follows, and the God Whom
he worships, are presented here as constituting somewhat
artificial and contrived parameters. The tendency to
compartmentalize the different aspects of our lives may be a
wonderful organizational tool, but can also be injurious to
our complete spiritual development. Of course, no one can
dispute that the western democratic model of sharp
differentiation between church and state has served humanity
well and minority religions very well, protecting individual
rights and championing social justice. Here, however, the
Parasha presents its most glaring limitation: its inherent
inability to forge a comprehensive individual and national
identity that can incorporate all of man's most noble
aspirations, especially his undeniable and irrepressible
desire to experience God's transcendence.
The Indispensability of the High Court
Significantly, the Parasha introduces the High Court as the
first and foremost of the state's institutions, and indeed
its laws are its foundation. A careful reading of the
relevant texts implies that not only is the High Court the
repository of unbiased justice and impartial truth, but also
the engine of legislative progress. The Ramban (13th
century, Spain) explains that the Torah is quite deliberate
in its rather emphatic directive to obediently abide by the
decisions of the High Court: "You shall follow the ruling
that they shall declare from that place that God will
choose, and you shall be careful to fulfill that which they
rule. You shall act in accordance with the teaching that
they convey and the laws that they legislate. Do not stray
from the words that they state to you, neither to the right
nor to the left. The person who rebels and refuses to abide
by the ruling of the Cohain who ministers there before God
your Lord, or by the ruling of the Judge, shall die. Thus
shall you rid yourselves of evil in Israel" (Devarim 17:10-
13).
As the Ramban insightfully remarks, to stray from the ruling
of the High Court is not only disastrous for the culpable
individual, but also deleterious and eventually fatal for
the state itself: "The necessity for this command (to
obediently abide by the rulings of the High Court) is very
great. This is because the Torah was given to us in written
form and it is well known that opinions cannot be in
complete agreement concerning new contingencies that will
Many disagreements could very well lead to the single Torah
becoming multiple systems. Therefore, the text presents us
with an unambiguous directive to adhere to the decisions of
the High Court that stands before God at the place that He
chooses, concerning everything that they decide with respect
to the Torah's interpretation. It matters not whether their
interpretation constitutes an authentic tradition received
by accurate oral transmission from Moshe who heard it from
God, or whether they rule in accordance with their
discernment of the Torah's implication or intent, for God
gives the Torah in conformity with their understanding."
(Commentary of the Ramban, 13th century Spain, Devarim
17:11).
Thus, the purpose of the High Court is to offer decisions
concerning new situations that become relevant as human
history continually unfolds, and human societies continually
evolve. The High Court is charged with the mission of
examining these novel realities in light of the received
written text and traditions of the Torah and interpreting
them against the backdrop of the accumulated and ever-
growing corpus of precedents. It subsequently must use its
august authority to proclaim a ruling on the matter, arrived
at through the consensus of the majority, which is then
binding upon the entire Jewish people. Without such a
mechanism in place to address new contingencies, the Torah
stands in danger of becoming a fossilized text frozen in
time, to be eventually unseated by an unwieldy and unruly
multiplicity of competing systems that all claim to derive
their authority from its words.
The Tragedy of 'Exile'
In a remarkable passage from his monumental Code, the Rambam
(12th century, Egypt) comments on the incomparable efficacy
of the High Court: "There can never be disagreements
concerning received traditions, and therefore any matter
that engenders disagreement cannot be a tradition received
from Moshe at Sinai. Matters that are derived through the
exercise of logical principles must be ruled upon by the
High Court. If their agreement is unanimous, so be it. If
they are in disagreement, then the ruling follows the
majority view.As long as the High Court functioned, there
was no disagreement or discord in Israel. Whenever an
uncertainty would arise concerning any matter, the query
would be addressed to the local court. If they could offer
a ruling, they did so. If not, then the questioner and the
local court or its agents would go up to Jerusalem and
approach the court that convened at the entrance to the
Temple Mount. If they could offer a ruling, they did so.
If not, then all would converge on the court that met at the
entrance of the Temple Forecourt. If they could offer a
ruling, they did so. If not, then all would converge on the
Chamber of Hewn Stone, where the High Court held its
sessions."
"There, the query would be presented. If the High Court had
a tradition concerning the matter or had already considered
it through the application of the accepted principles of
interpretation, then they declared their ruling immediately.
If not, then they would deliberate over the matter and
consider it carefully until an absolute consensus emerged,
or else they would vote and follow the opinion of the
majority. They would declare to the petitioners: 'This is
the ruling!' and the latter would be dismissed. When the
High Court ceased to function, disagreement increased in
Israel - this one declares an item to be 'Tamei' (ritually
unfit) and offers sound reasons for his ruling, and this one
declares it to be 'Tahor' (ritually fit) and offers sound
reasons for his rulings, this one forbids and this one
permits." (Rambam, Laws of 'Mamrim'/Rebels 1:3-4).
In other words, the most important vehicle for the
preservation of unity of practice and purpose in ancient
Israel was not the King, the Cohanim, or even the Prophet,
but rather the High Court. It alone had the power to bring
together differences of opinion and constructively mold them
into an acceptable consensus. The tragedy of the
Destruction was not simply the fact that it erased the
Temple as the physical nucleus of the Jewish State, or that
it brought an end to Jewish sovereignty in Israel, or that
it accelerated the devastating process of dispersion. Those
ruinous events were indeed significant causes to mourn. The
singular calamity of the Destruction, however, was the loss
of a central judicial and legislative authority that had the
mandate of the people of Israel to offer binding decisions.
It is no wonder that in the Messianic visions of redemption
preserved in the words of the Prophets, the restoration of
the State is bound up with reestablishment of the High Court
in all of its splendor: "At the end of days, the mountain of
God's House shall be the highest of mountains and raised up
above the hills, and all of the nations shall stream towards
it. Many peoples shall go there, saying: 'Let us go up to
God's mountain to the House of the Lord of Yaacov, so that
He will teach us His ways and we shall walk in His paths,
for teaching shall go forth out of Zion, and the word of God
from Jerusalem."
Shabbat Shalom
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