SALT – PARASHAT SHOFETIM

By Rav David Silverberg

Motzaei

            The Torah in Parashat Shofetim describes the procedure that must be followed when Benei Yisrael go out to war, specifically, the exemptions that are announced for certain groups of soldiers.  The kohen addressing the army exempts four groups of soldiers, the final one being those who are “fearful and softhearted” (20:8).

            The simple understanding of this verse is that soldiers who are frightened by the dangers of warfare are excused from the campaign.  Indeed, this is how Rabbi Akiva explained the verse (Sota 44a).  Rabbi Yossi, however, disagreed, and claimed that the Torah here refers to a soldier who fears aveirot she-be’yado – the sins that he has committed.  The dangers and ravages of battle per se do not frighten him; it is rather the demerits on his record, the wrongs of which he is guilty, which make uneasy and anxious before going out to war.  The Gemara discusses Rabbi Yossi’s explanation of this phrase and clarifies that it includes even those who are guilty of relatively “minor” transgressions, including violations of laws enacted by Chazal (as opposed to Torah prohibitions).

            Rabbi Yossi’s view gives rise to the obvious question of who the Torah expected would remain to wage battle.  If violators of even minor transgressions were deemed unfit, then who was eligible?  Aren’t all people guilty of some kind of misdeed?  Don’t even the most pious among us have some fault or slight stain on their record?  Is it possible that the Torah demands spiritual perfection as a prerequisite for embarking upon a military campaign?

            The Rebbe of Kotzk suggested that the Torah excused this group of soldiers from battle not because of their guilt, but because of their fear of guilt.  Rabbi Yossi spoke of a soldier who “feared the sins that he had committed,” who is emotionally trapped by his guilt.  Even after undergoing the process of teshuva, he remains insecure and distraught.  A soldier who lacks the courage and emotional strength to move beyond his shadowy past, to proceed onward despite the mistakes – big and small – that he made along the way, cannot participate in a military campaign.  Conscience and pangs of guilt are crucial and indispensable for personal growth, but if they flood a person’s mindset, they can also stunt personal growth.  Feelings of guilt must drive us to work harder, not debilitate us; our recognition of wrongdoing should inspire conviction, rather than despair. 

            This is likely the reason why the period of Elul and the Aseret Yemei Teshuva is observed as a time of serious introspection, but not of sadness.  It is actually a joyous period, when we celebrate our potential for growth and progress, and exult in the opportunity that we have to advance and make ourselves better.  We all make mistakes, and we are all capable of overcoming them.  And thus just as the teshuva process requires recognizing our mistakes, it also demands recognizing our ability to move on.  The season of teshuva is therefore one of joy and elation, when we celebrate the opportunity we are given to improve ourselves and draw closer to our Creator.

(See Rav Dovid Gottlieb’s “A Time Not to Fear” at http://www.yutorah.org/lectures/lecture.cfm/747957/Rabbi_Dovid_Gottlieb/Parshat_Shoftim:_'A_Time_NOT_For_Fear')

Sunday

            The Torah in Parashat Shofetim introduces the command to heed the halakhic rulings of high rabbinical court that would be established in Jerusalem (the Sanhedrin): “lo tasur min ha-davar asher yagidu lekha” – “do not stray from that which they tell you” (17:11).  The Rambam, in several places (including Sefer Ha-mitzvot – shoresh 1, and Hilkhot Mamrim 1:2), writes that one who transgresses an issur de-rabbanan – a prohibition enacted by the Sages – is also in violation of the Torah command of lo tasur, as he violates an ordinance issued by Chazal.

            Several writers questioned the Rambam’s theory in light of (among other sources) the Gemara’s discussion of lo tasur in Masekhet Berakhot (19b).  The Gemara there establishes that rabbinic prohibitions are suspended for the purpose of kevod ha-beriyot, the concern for human dignity.  In situations where avoiding a rabbinic prohibition would result in the compromise of human dignity (the precise definition of which lies beyond the scope of our discussion), the prohibition may be violated.  The Gemara initially questions this ruling, noting that violating rabbinic prohibitions amounts to violating the Torah prohibition of lo tasur, and Torah violations do not give way to the concern of kevod ha-beriyot.  In response, the Gemara concludes that “all the words of the Sages were ‘hung’ upon the prohibition of lo tasur…”  Seemingly, this means that Chazal utilized the prohibition of lo tasur as a kind of Biblical allusion to their authority to enact laws, but it does not actually assign a Torah violation to transgressions of rabbinic enactments.  Thus, rabbinically ordained laws are on a lower level of gravity than Torah laws, and this accounts for the difference between the two categories in situations where kevod ha-beriyot stands to be compromised.

            The Rambam, for whatever reason, did not accept the Gemara’s conclusion, and maintained that lo tasur indeed establishes a Torah prohibition against violating the ordinances of the Sages.  But the question then arises, why are issurim de-rabbanan suspended to preserve kevod ha-beriyot?  How can we treat the enactments of the Sages any differently than Torah prohibitions?

            The Megilat Ester commentary claims that evidently, according to the Rambam, Chazal built in certain exceptions to their enactments.  From the outset, they did not include situations that require compromising human dignity.  This exception is due not to the lower halakhic stature of Chazal’s ordinances – as they are, after all, binding on the level of Torah law due to the prohibition of lo tasur – but rather to a “built-in” provision that the Sages applied to all their enactments.  (The Megilat Ester also applies this theory to explain why rabbinic prohibitions are treated more leniently in situations of safeik – halakhic doubt.)

            Rav Yitzchak Zev Diskin, in his Zivchei Tzedek (Jerusalem, 2000), notes that the Rambam’s own comments suggest otherwise. In Hilkhot Kilayim (10:29), the Rambam codifies the rule suspending issurim de-rabbanan when kevod ha-beriyot is at stake, and he writes, “Even though it says in the Torah, ‘you shall not stray,’ this prohibition is overridden by the concern for human dignity.”  The Rambam thus writes explicitly that the prohibition of lo tasur differs from other Torah prohibitions in that it is suspended for the sake of kevod ha-beriyot.  This suspension is not a feature that Chazal built in to their enactments, but is rather an exception that is inherent to the prohibition of lo tasur.  We thus return to the question of why lo tasur should be different in this regard from other Torah prohibitions.

            Rav Diskin suggests a novel answer by reexamining the status of Torah prohibitions in situations that threaten to undermine kevod ha-beriyot.  The Gemara, in establishing that Torah law does not give way to the concern for kevod ha-beryit, cites a verse as the source for this halakha: “There is no wisdom, there is no insight, and there is no counsel against the Lord” (Mishlei 21:30).  Rav Diskin notes that were it not for this verse, which instructs that even scholarly stature must give way for the sake of the divine will, we would have assumed that the Torah’s laws do not require one to compromise his dignity.  The only basis for applying the Torah’s laws in situations that undermine personal dignity is this verse, which requires sacrificing one’s dignified stature for God’s honor.

If so, then we can entertain the possibility of distinguishing between different kinds of Torah’s laws in this regard.  In the case of a Torah law that does not directly involve God’s honor, we might exempt a person if it would compromise his dignity.  Thus, for example, the Rambam (there in Hilkhot Kilayim) writes that a person of stature is exempt from hashavat aveida (the obligation to return a lost item) if this would be beneath his dignity, because hashavat aveida is – in the Rambam’s words – a monetary law.  This mitzva relates to societal functioning, people’s obligations toward one another, and does not directly serve the purpose of bringing honor to God.  Therefore, it does not fall under the provision of “There is no wisdom, there is no insight, and there is no counsel against the Lord,” and does not apply at the expense of kevod ha-beriyot.

By the same token, obeying the ordinances of Chazal does not directly involve honor to God; our obligations with regard to these enactments stem from the authority of the Sages, and not – at least not directly – from our deference to God Himself.  Therefore, the rule of “There is no wisdom, there is no insight, and there is no counsel against the Lord” does not apply to issurim de-rabbanan, and they are waived for the purpose of preserving kevod ha-beriyot.

Monday

            Parashat Shofetim concludes with the halakha known as egla arufa, the special ceremony that a town’s leadership must perform if a murder victim is discovered near its borders and the culprit is not found.  As part of the ceremony, the town’s leaders avow their innocence – “our hands have not spilled this blood, nor did our eyes see [the murder]” (21:7) – and petition God for atonement – “Atone for Your nation, Israel, which You have redeemed” (21:8).

            The Gemara, in Masekhet Sota (46b), clarifies that the leaders’ affirmation of innocence is not required because of the suspicion that they were somehow involved in, or party to, the crime that was perpetrated.  The Torah certainly does not cast unfounded suspicions upon the city’s elders.  “Rather,” the Gemara explains, “he [the victim] did not come under our care and we sent him off without food, and we did not see him and left him without an escort.”  It seems that the municipal leadership was charged with the responsibility of caring for travelers who passed through the city, ensuring that they found proper hospitality.  Therefore, when a murder takes place near a city’s borders, its leaders must inquire into whether they had perhaps failed to provide a traveler with lodging and escorts, thus requiring him to travel alone.

            The Gemara’s comment is the Talmudic source for the concept of levaya – escorting guests.  As the Rambam discusses in Hilkhot Avel (14:1-2), there is a mitzva to not only host guests in need of hospitality, but also to escort them upon their departure.  The Rambam goes so far as to say that “sekhar ha-levaya meruba min ha-kol” – the reward for escorting guests is greater than the reward granted for other forms of kindness.

            How might we understand the special significance ascribed to escorting guests?  Practically speaking, we understand that when road travel was perilous, it was imperative to provide travelers with escorts for protection.  But is this the extent of the levaya obligation, or might there by a deeper reason why Chazal underscored the unique importance of this particular aspect of hospitality?

            The Maharal (as cited and discussed by Rav Benjamin Yudin at http://www.torahweb.org/torah/2005/parsha/ryud_shoftim.html) explained that escorting guests as they leave serves to place them within the broader context of the community.  Essentially, it transforms them from individuals to members of a group.  And this transformation, the Maharal claims, results in added protection.  As members of the kelal, of Am Yisrael, the guests receive the protection that the Almighty grants to the entire nation.  Traveling as an individual can be dangerous, whereas traveling as a member of the Jewish people can add a certain degree of protection.

From this perspective, the institution of egla arufa admonishes communities to ensure that no residents or visitors are left “alone,” as communally unaffiliated individuals.  Community has always been a hallmark of Jewish life, and the Gemara here establishes the critical importance of communal belonging – and the responsibility to ensure that everybody is included.  We must see to it that no “traveler” is without an “escort,” that every individual finds a place within the communal network and is not left alone, so that each and every person can access the special “protection” and blessing afforded by membership in the kelal, and is never just an individual.

Tuesday

            The Torah in Parashat Shofetim presents the basic laws relevant to the Israelite king, including the obligation for a king to write a sefer Torah which “shall be with him” (“ve-hayeta imo” – 17:19).  The Gemara in Masekhet Sanhedrin (21b) explains this verse to mean that “when he goes out to war – he takes it with him; when he returns, he brings it with him…”

            Rav Yehuda Leib Ginsburg, in his Yalkut Yehuda, notes that the Gemara’s comment concerning the king’s sefer Torah bears significance beyond the narrow context of royal protocol.  The requirement to bring the Torah scroll out to battle reminds us of the Torah’s relevance and authority even under abnormal, difficult conditions, in situations of crisis and hardship.  People are often tempted to recklessly lower standards when faced with unusual circumstances.  Those who maintain firm commitment to Torah and mitzvot under normal conditions might be too quick to bend the rules or ignore them completely when difficult situations arise.  The Torah therefore requires the king to bring the sefer Torah with him when he goes out to war, reminding him – and all of us – that the Torah remains relevant and authoritative even under difficult and unusual circumstances.

            But as the Gemara mentions, the Torah also requires the king to bring the Torah with him when he returns from warfare, when the crisis subsides, when the normal routine is restored.  This command addresses the reverse tendency – the tendency to turn to God only when one feels threatened and in desperate need of assistance.  In times of stability, people might feel overly secure and neglect their religious responsibilities.  Too often, spiritual consciousness and conscience surface only in periods of duress, when people feel helpless and must look to the Almighty for assistance.  The king brings the sefer Torah back from warfare to indicate that the Torah must govern our lives through both thick and thin, in times of crisis and in times of tranquility.  We must not reserve our Torah consciousness to periods of unrest and danger.  It must accompany us under all circumstances and in all situations, in times of peace and in war, in periods of stability and under conditions of adversity.

Wednesday

            The Torah in Parashat Shofetim issues a prohibition against practicing various forms of kishuf – sorcery.  After listing numerous different types of divination and oracles that were regularly used by the Canaanite peoples, the Torah warns, “For anyone who practices these is an abomination to the Lord, and it is because of these abominations that the Lord your God is banishing them before you” (18:12).  The Torah here appears to attribute the elimination of the Canaanite peoples to the sin of sorcery, which rendered them unworthy of residing in Eretz Yisrael.

            On the basis of these verses, Rabbi Yossi, as the Gemara cites in Masekhet Sanhedrin (56b), concluded that the prohibitions of kishuf apply to gentiles.  In his view, gentiles are bound by not only the seven Noachide laws, but also the prohibitions listed here in Parashat Shofetim banning certain forms of sorcery.  If the Canaanite nations were punished for practicing sorcery, Rabbi Yossi claims, than they must clearly have been forbidden from engaging in such practices, in light of the well-known principle of “ein oneshin ela im kein mazhirin” – there can be no punishment if a prohibition was not issued.  The Tanna Kama (first view cited) disagrees, and maintains that gentiles are not bound by the prohibitions involving kishuf.

            The obvious question arises as to how the Tanna Kama interpreted the verses here in Parashat Shofetim.  Why were the Canaanite peoples eradicated on account of their involvement in sorcery, if this prohibition applies only to Jews?  Seemingly, just as they could not be held accountable for not observing Shabbat or kashrut, they should not – according to the Tanna Kama – be punishable for engaging in kishuf.

            One answer emerges from the Ramban’s commentary to the aforementioned verse (18:12).  The Ramban claims that when the Torah attributes the eradication of the Canaanites to “these abominations,” it does not refer to the entire list of practices mentioned earlier.  It is only natural, the Ramban notes, for people to make attempts to learn about future events, and thus the Canaanite peoples were not worthy of punishment for employing magical devices to find out about the future.  Rather, the Canaanite nations were condemned for the practices mentioned here that do not involve divination.  The Ramban does not specify which practices these are, but presumably he refers to “ma’avir beno u-vito va-eish” (“passing one’s son and daughter through fire” – 18:10), which Chazal identify as the molekh pagan ritual mentioned elsewhere in the Torah.  Indeed, the molekh ritual is listed in Sefer Vayikra (18:21) among the sins of immorality for which the peoples of Canaan were condemned (see Vayikra 18:24-25).  In any event, the Ramban’s comments seem to reflect the position of the Tanna Kama – as the Ramban understood it – that the gentiles are not forbidden from practicing kishuf, and the condemnation of the Canaanites was due to other offenses.

            The Yad Rama commentary to Masekhet Sanhedrin explains differently, claiming – surprisingly enough – that according to the Tanna Kama, although gentiles are not forbidden from practicing sorcery, they can be punished for such practices.  Apparently, the Yad Rama felt that – according to the Tanna Kama – the gentiles were held accountable for these wrongs because they are intuitively sinful and thus do not require a specific prohibition.  It remains unclear, however, according to the Yad Rama, what the practical difference would be between the two positions cited by the Gemara.  In his view, both Tanna’im maintain that sorcery is forbidden for gentiles, either by virtue of intuition or through an explicit command.  The question thus remains as to the substantive difference between these two opinions.

            Yet another approach is taken by the Meiri, in his commentary to Masekhet Sanhedrin.  He writes that practices involving sorcery and witchcraft generally lead to pagan worship, and it is for this reason that (according to the Tanna Kama) the Torah attributes the Canaanites’ elimination to these practices.  The Canaanites were punished not for kishuf per se – which, according to the Tanna Kama, is technically permissible for gentiles – but rather for their practice of idolatry, which was an outgrowth of their involvement in various forms of sorcery and witchcraft.

(Based on Peninim Mi-bei Midresha, Parashat Shofetim)

Thursday

            The Torah in Parashat Shofetim discusses the laws relating to the Israelite king, which include a restriction on his acquisition of horses.  The reason for this prohibition, as the Torah explains, is that intensive involvement in horse trading may result in a return to Egypt, “and the Lord has said to you, ‘You  shall never again return along this path’” (17:16).  This verse is among the Biblical sources for the prohibition against residing in Egypt.  This prohibition is mentioned in Masekhet Sukka (51b), where the Gemara speaks of the large Jewish community of Alexandria which was annihilated because of their violation of this law.  The Rambam codifies this prohibition both in Mishneh Torah (Hilkhot Melakhim 5:7) and Sefer Ha-mitzvot (lo ta'aseh 46).

            Many writers throughout the ages addressed the question of why Jewish communities existed in Egypt despite this prohibition.  The Rambam himself lived in Egypt for much of his life (first in Alexandria, and then in Fostat, the old city of Cairo).  How could Torah-observant Jews, and even great sages like the Rambam, have lived in Egypt, seemingly in violation of an explicit Torah command?

            Among the answers suggested is that of Rav Shimshon Rafael Hirsch, who discusses this prohibition in his Torah commentary here in Parashat Shofetim.  Rav Hirsch notes that the Torah does not forbid returning to Egypt, but rather returning “ba-derekh ha-zeh” (“in this path”).  This perhaps indicates that the prohibition applies not to settling in Egypt, but rather traveling “ba-derekh ha-zeh.”  One might be tempted to explain this to mean that the Torah forbids retracing Benei Yisrael’s path from Egypt to Eretz Yisrael (and the Ritva in Masekhet Yoma 38a claims that this was the view of the Yerei’im).  However, the Torah later in Sefer Devarim applies this prohibition also to traveling to Egypt by ship (28:68), and Benei Yisrael made their journey by land (though one could argue that the Torah refers to crossing the Sea of Reeds, which is generally done by ship.)  Rav Hirsch therefore claims that the prohibition refers to returning to Egypt in seek of refuge, the role that country served during the time of the patriarchs.  He writes:

For in fact Egypt had been had been a land of refuge from Palestine from the earliest times of Jewish history.  Abraham went to Egypt because there was famine in Palestine… Isaac was about to go there and was only restrained by direct instructions from God.  Israel’s whole settlement in Egypt was only brought about by the famine in Palestine which made the sons of Jacob go repeatedly to Egypt to buy food.  So the natural fertility of the Egyptian soil gave Egypt an ascendant superiority over other countries and that made other countries, especially Palestine, appear dependent on them.

The Torah forbids going to Egypt with this mindset of seeking assistance and refuge in the “superior” country.  As Rav Hirsch interprets the command, “You shall not go from Palestine to Egypt as in the past to obtain from there any national necessities which your own land does not supply.  You are not to make yourselves dependent on Egypt.”  In other words, the prohibition refers not to the return to Egypt per se, but rather to return to the sense of subordination and inferiority to Egypt.  The Torah sought to break Benei Yisrael’s feeling of dependence upon Egypt, which they had always recognized as the military, economic and cultural power of the time.  It therefore forbade them from leaving Eretz Yisrael to take residence in Egypt.

            As such, Rav Hirsch claims, the prohibition, in his view, applies specifically to relocating from the Land of Israel to Egypt – which is the view of Rav Eliezer of Metz in Sefer Ha-yerei’im (309; though, as mentioned earlier, the Ritva cites a different position in the name of the Yerei’im).  Additionally, the Talmud Yerushalmi (Sanhedrin, chapter 10) writes that the prohibition applies only to living in Egypt, not to visiting there for commercial or military purposes.  Rav Hirsch writes that this qualification is consistent with his understanding of the prohibition, as forbidding going to Egypt out of a desire for a better place of residence.  The prohibition was thus violated only by the ancient community of Alexandria which had left Eretz Yisrael during the period of Jewish sovereignty in the Land to settle in Egypt.  But during the period of exile, when the wanderings of several communities brought them to Egypt, their settlement there was entirely permissible.

Friday

            The Torah in Parashat Shofetim presents the law known as eidim zomemin, which involves a pair of witnesses who falsely testify against a person.  The halakha in such a case, as the Torah instructs (19:19), is that the witnesses are dealt the sentence that their testimony would have brought upon the accused defendant.  Thus, if they falsely testified that somebody borrowed money, they must pay that sum of money; if they testified that somebody committed a capital offense, they are executed, and so on.  This punishment of “ka’asher zamam” applies only if the witnesses’ testimony is determined false before the court carried out the sentence against the defendant.  If the defendant had already paid the sum in question or endured the court-administered punishment, the witnesses do not receive the punishment in question.

            The Sefer Ha-yerei’im, in discussing this mitzva (243), makes a surprising claim regarding the punishment of the eidim zomemin.  He writes that when the witnesses testified about a monetary obligation, we need not assume that they pay the sum to the defendant.  As mentioned, the law of “ka’asher zamam” applies only if the witnesses’ scheme was exposed before the execution of the sentence.  When witnesses falsely testify that somebody owes money, and their testimony is found to be fraudulent before the payment was rendered, their obligation to pay the sum in question is not compensatory.  After all, no actual financial loss was incurred, as the witnesses were exposed before the unwarranted payment was made.  This payment is punitive, not compensatory, and thus there is no reason to assume that the money must be given to the defendant.  The Yerei’im therefore writes that the false witnesses give the money to the Beit Din, who then decides to whom to give it.

            The Radbaz, in one of his responsa (vol. 3, siman 1624), disagrees with the Yerei’im.  He writes that the payment required of eidim zomemin is, in fact, compensatory by nature, as it compensates the defendant for the emotional distress he endured by the experience of having been falsely accused and nearly forced to pay money that he did not owe.  Therefore, the money is given to the defendant, even though he did not suffer an actual financial loss.

            A number of Acharonim noted that this also appears to be the view of Rashi.  In his commentary to the ambiguous verse in Sefer Shemot (22:8), “asher yarshiun elohim yeshaleim shenayim le-re’eihu” (“he whom the court convicts shall pay double to his fellow”), Rashi writes that it refers to a pair of witnesses who falsely testify about a theft.  (Specifically, Rashi says that it refers to witnesses who falsely testify that a guardian stole the object under his charge and falsely claimed that it was stolen.)  If the court finds that the witnesses testified falsely, then the witnesses must pay keifel – twice the value of the alleged theft – to the accused, as this is what he would have had to pay if the testimony had been deemed valid.  Rashi thus explicitly indicates that when eidim zomemin are required to pay, the payment is made to the defendant against whom they falsely testified.

            Rav Moshe Sternbuch, in his Ta’am Va-da’at (Parashat Shofetim), notes that the Rambam, too, appears to have followed this view of Rashi and the Radbaz.  Toward the end of the eighteenth chapter of Hilkhot Eidut, the Rambam addresses the case of witnesses who come forth and confess to have testified falsely that somebody owed money.  The Rambam rules that witnesses are not liable to pay on the basis of their confession, but if they confess that a court had found them to be eidim zomemin and issued a sentence requiring them to pay, then they must pay.  In describing the case, the Rambam speaks of witnesses who announce, “We testified about this person, we were found to be zomemin in such-and-such court, and we were required to pay him such-and-such amount.”  The Rambam clearly speaks of the payment obligation as directed toward the defendant against whom the witnesses testified.

            Rav Elyakim Dvorkes (writing in the weekly Mi-saviv La-shulchan, issue 173) observed that this debate between the Yerei’im and the other Rishonim likely hinges on a broader issue concerning the eidim zomemin liability.  Namely, is the punishment of “ka’asher zamam” incurred for the offense committed against the defendant, or for the inherently wrongful act of speaking falsely?  If we view the law of eidim zomemin as the witnesses’ culpability for the crime committed against the defendant, then, as the Radbaz writes, they should pay the defendant.  But if this is a punishment served for the inherently abominable act of lying, then the payment might not necessarily be awarded to the defendant.  Rav Dvorkes notes that the Gemara in Masekhet Bava Kama (4b) lists the case of eidim zomemin as one of the twenty-four categories of “nezikin” – damages – for which the guilty party must make a payment of “meitav” – from his highest quality property.  This would certainly indicate that this payment is compensatory by nature, just like cases of damage to person or property, and this Talmudic passage thus could serve as a compelling proof against the view of the Yerei’im.