Tuesday, August 26, 2003

Dvar Torah for Shoftim #1: יָמִין וּשְׂמֹאל : Turning to the right/left

Parshat Shoftim begins with the command to appoint judges and enforcers in all the cities and towns, once the Jews enter the land of Israel:

Devarim 16:18:

שֹׁפְטִים וְשֹׁטְרִים, תִּתֶּן-לְךָ בְּכָל-שְׁעָרֶיךָ, אֲשֶׁר ה אֱלֹקֶיךָ נֹתֵן לְךָ, לִשְׁבָטֶיךָ; וְשָׁפְטוּ אֶת-הָעָם, מִשְׁפַּט-צֶדֶק.

"Judges and officers shalt thou make thee in all thy gates, which the LORD thy God giveth thee, tribe by tribe; and they shall judge the people with righteous judgment."

This command, it should be reiterated, is for the Jews to fulfill once the enter into the land of Israel and settle there. In the midbar, they already had a system of judges. This system was suggested by Yisro, Moshe's father-in-law, and approved by Hashem.

Yisro suggested (Shmos 18:20-22):

וְהִזְהַרְתָּה אֶתְהֶם, אֶת-הַחֻקִּים וְאֶת-הַתּוֹרֹת; וְהוֹדַעְתָּ לָהֶם, אֶת-הַדֶּרֶךְ יֵלְכוּ בָהּ, וְאֶת-הַמַּעֲשֶׂה, אֲשֶׁר יַעֲשׂוּן.
וְאַתָּה תֶחֱזֶה מִכָּל-הָעָם אַנְשֵׁי-חַיִל יִרְאֵי אֱלֹהִים, אַנְשֵׁי אֱמֶת--שֹׂנְאֵי בָצַע; וְשַׂמְתָּ עֲלֵהֶם, שָׂרֵי אֲלָפִים שָׂרֵי מֵאוֹת, שָׂרֵי חֲמִשִּׁים, וְשָׂרֵי עֲשָׂרֹת.
וְשָׁפְטוּ אֶת-הָעָם, בְּכָל-עֵת, וְהָיָה כָּל-הַדָּבָר הַגָּדֹל יָבִיאוּ אֵלֶיךָ, וְכָל-הַדָּבָר הַקָּטֹן יִשְׁפְּטוּ-הֵם; וְהָקֵל, מֵעָלֶיךָ, וְנָשְׂאוּ, אִתָּךְ.

"And thou shalt teach them the statutes and the laws, and shalt show them the way wherein they must walk, and the work that they must do.

Moreover thou shalt provide out of all the people able men, such as fear God, men of truth, hating unjust gain; and place such over them, to be rulers of thousands, rulers of hundreds, rulers of fifties, and rulers of tens.

And let them judge the people at all seasons; and it shall be, that every great matter they shall bring unto thee, but every small matter they shall judge themselves; so shall they make it easier for thee and bear the burden with thee."

And Moshe indeed implemented this:
Shmos 18:25-26:

וַיִּבְחַר מֹשֶׁה אַנְשֵׁי-חַיִל מִכָּל-יִשְׂרָאֵל, וַיִּתֵּן אֹתָם רָאשִׁים עַל-הָעָם--שָׂרֵי אֲלָפִים שָׂרֵי מֵאוֹת, שָׂרֵי חֲמִשִּׁים וְשָׂרֵי עֲשָׂרֹת.
וְשָׁפְטוּ אֶת-הָעָם, בְּכָל-עֵת: אֶת-הַדָּבָר הַקָּשֶׁה יְבִיאוּן אֶל-מֹשֶׁה, וְכָל-הַדָּבָר הַקָּטֹן יִשְׁפּוּטוּ הֵם.

"And Moses chose able men out of all Israel, and made them heads over the people, rulers of thousands, rulers of hundreds, rulers of fifties, and rulers of tens.

And they judged the people at all seasons: the hard causes they brought unto Moses, but every small matter they judged themselves."

Thus Moshe set up a form of local government, based on Torah. However, certain cases, the difficult ones, were to be brought to him. He, who heard the Torah directly from Hashem, would know the answer, and if he did not, he could just ask Hashem.

The system of shoftim spoken of in our parsha, Shoftim, is also local - a judge in each gate. However, there is also a federal government. Just as, by the hard cases in the midbar, the judges could send the case or question to Moshe, once in Eretz Yisrael, if the local judges did not know what the law was, they could ask a central court. That central court, it seems, should be located by the Bet HaMikdash. In Shoftim (Devarim 17:8-13):

כִּי יִפָּלֵא מִמְּךָ דָבָר לַמִּשְׁפָּט, בֵּין-דָּם לְדָם בֵּין-דִּין לְדִין וּבֵין נֶגַע לָנֶגַע--דִּבְרֵי רִיבֹת, בִּשְׁעָרֶיךָ: וְקַמְתָּ וְעָלִיתָ--אֶל-הַמָּקוֹם, אֲשֶׁר יִבְחַר ה אֱלֹקֶיךָ בּוֹ.
וּבָאתָ, אֶל-הַכֹּהֲנִים הַלְוִיִּם, וְאֶל-הַשֹּׁפֵט, אֲשֶׁר יִהְיֶה בַּיָּמִים הָהֵם; וְדָרַשְׁתָּ וְהִגִּידוּ לְךָ, אֵת דְּבַר הַמִּשְׁפָּט.
וְעָשִׂיתָ, עַל-פִּי הַדָּבָר אֲשֶׁר יַגִּידוּ לְךָ, מִן-הַמָּקוֹם הַהוּא, אֲשֶׁר יִבְחַר ה; וְשָׁמַרְתָּ לַעֲשׂוֹת, כְּכֹל אֲשֶׁר יוֹרוּךָ.
עַל-פִּי הַתּוֹרָה אֲשֶׁר יוֹרוּךָ, וְעַל-הַמִּשְׁפָּט אֲשֶׁר-יֹאמְרוּ לְךָ--תַּעֲשֶׂה: לֹא תָסוּר, מִן-הַדָּבָר אֲשֶׁר-יַגִּידוּ לְךָ--יָמִין וּשְׂמֹאל.
וְהָאִישׁ אֲשֶׁר-יַעֲשֶׂה בְזָדוֹן, לְבִלְתִּי שְׁמֹעַ אֶל-הַכֹּהֵן הָעֹמֵד לְשָׁרֶת שָׁם אֶת-ה אֱלֹקֶיךָ, אוֹ, אֶל-הַשֹּׁפֵט--וּמֵת הָאִישׁ הַהוּא, וּבִעַרְתָּ הָרָע מִיִּשְׂרָאֵל.
וְכָל-הָעָם, יִשְׁמְעוּ וְיִרָאוּ; וְלֹא יְזִידוּן, עוֹד.

"If there arise a matter too hard for thee in judgment, between blood and blood, between plea and plea, and between stroke and stroke, even matters of controversy within thy gates; then shalt thou arise, and get thee up unto the place which the LORD thy God shall choose.

And thou shall come unto the priests the Levites, and unto the judge that shall be in those days; and thou shalt inquire; and they shall declare unto thee the sentence of judgment.

And thou shalt do according to the tenor of the sentence, which they shall declare unto thee from that place which the LORD shall choose; and thou shalt observe to do according to all that they shall teach thee.

According to the law which they shall teach thee, and according to the judgment which they shall tell thee, thou shalt do; thou shalt not turn aside from the sentence which they shall declare unto thee, to the right hand, nor to the left.

And the man that doeth presumptuously, in not hearkening unto the priest that standeth to minister there before the LORD thy God, or unto the judge, even that man shall die; and thou shalt exterminate the evil from Israel.

And all the people shall hear, and fear, and do no more presumptuously."

Thus, if a question is too difficult, they should go to the Bet HaMikdosh and ask the Kohanim, or whichever judges exist there, and they will declare what the law is.

The section ends with the law of the zaken mamre, rebellious elder. As you read above, if after they decide what the law is, a judge cannot then defy that court ruling. Defying that ruling brings a death penalty. The gemara treats this issue at length.

What do you do, though, if you think that the central Sanhedrin made a mistake? A simple, pshat, reading, of the text seems to imply that Sanhedrin is the final authority on the matter and you need to comply with what they say. After all, the zaken mamre obviously thinks that they are wrong.

However, lets say they made an egregious error, which is obvious, and is not a matter of interpretation? Should one still comply?

We shall, perhaps, return to this issue in due course. First, though, I would like to examine what the Sifrei, and Rashi, have to say about this pasuk.

The pasuk states, לֹא תָסוּר, מִן-הַדָּבָר אֲשֶׁר-יַגִּידוּ לְךָ--יָמִין וּשְׂמֹאל, "thou shalt not turn aside from the sentence which they shall declare unto thee, to the right hand, nor to the left."

The Sifrei explains the words יָמִין וּשְׂמֹאל thusly:
"Even if it appears in your eyes regarding left that it is right and regarding right that it is left, listen to them."

That is, is appears to your eyes that they are wrong. No mention is made as to whether they are actually right or wrong. The simplest reading of this is that they are in fact right but you made a mistake.

Rashi has a slightly different take on it: "Even if they tell you on right that it is left and on left that it is right, and certainly when they tell you on right that it is right and on left that it is left."

The simplest explanation of this is that they are telling you something that is untrue - right is left - there is an obligation to listen. And certainly, (it almost needn't be said) if they tell you something that is indeed true, whether you think it is or not, there is an obligation to listen and if you do not you are a zaken mamre. Other explanations are indeed possible, but seem more farfetched to me.

Siftei Chachamim
Next, we have Siftei Chachamim, a commentary on Rashi, who says, "Even if they tell you on right, that you think that it is left, and on left that you think it is right, you should listen, and not ascribe the mistake to him but with yourself, for Hashem gave his spirit on those serving in his Temple that only truth would leave their mouths."

He is claiming that Rashi is talking about a case when the bet din was correct, and that that is the meaning of yamin shehu semo`l. This is obviously a problem. If the reisha, of right being left, is where the bet din is correct, then the seifa, of right being right, is talking about what exactly?!

Now, I often take issue with the explanation of Siftei Chachamim, but this is just too much. The explanation just does not make any sense with the text of Rashi in front of us. Siftei Chachamim, I cannot believe, would do such a thing.

The answer, I think, is that we have the wrong text in front of us, and Siftei Chachamim had the correct text in front of him. I claim that Siftei Chachamim only had the first part of Rashi, and it said:

"Even if they tell you on right that it is left and on left that it is right."

Siftei Chachamim recognized (most probably correctly) that Rashi's basis was the Sifrei, and his explanation is basically a rephrasing of the Sifrei, with an explanatory note that we can trust that the central bet din is correct because Hashem will insure it by manifesting His spirit in them. So, according to this, right is left in Rashi is only that they are saying on what you think is right that it is left. The change from "appearing in your eyes" to their "saying" is enough to give me slight pause however, since it opens the way to the idea that they are actually declaring something that is not (and that is what compelled Siftei Chachamim to speak).

We have possible independent confimation that this is the correct text of Rashi from the Ramban, who begins his perush on יָמִין וּשְׂמֹאל by stating "Even if they tell you on right that it is left or on left that it is right, says Rashi." Note that he ends there, and does not make the latter statement about saying right on right.

Ramban indeed does cite what is suspiciously similar in language to the latter part of Rashi, but to mean something else - that you should more likely consider that what they say is right is right and what they say is left is indeed left, since Hashem is watching to make sure they do not err. This is what your attitude should be, not that it is a different case than the first case. Rather, even if you disagree, you should think that they are saying something correct, for Hashem would not let them err.

I think that somehow the end of the Ramban was lifted and pasted on to Rashi and then transforms both the first pasrt of Rashi and the latter part of the Ramban.

On the other hand, this second part I claim may be pasted from Ramban into Rashi does accord wonderfully by itself into Siftei Chachamim's explanation.

Even if they tell you on right that it is left or on left that it is right, says Rashi.
And the meaning is that even if you think in your heart that they are erring and the matter is plain in your eyes as you can tell the difference between right and left, you should do as His command, and should not say, "how can I eat this absolute forbidden fat or kill this innocent man." Rather say, "So commenaded me the Master who commanded on the commandments to do in accordance with all the commandments as instructed by those standing before him in the place he chose, and as they understand he gave the Torah, even if they make a mistake."

Similar to (the incident with) R Yehoshua with R Gamliel on the Yom Kippur which fell out according to his (R Yehoshua's) reckoning, and the necessity in this mitzvah is very great for the Torah was given to use in text, and He knew that the opinions would not accord in all matters the dispute would multiply and the Torah would become many Torot.

He then compares it to R Yehoshua with Rabban Gamliel (on Yom Kippur), where in order not to make multiple Torahs, they legitimately declare one opinion binding even if it is erroneous.

And (therefore) the Torah tells us the din to listen to the bet din hagadol which stands before Hashem in the chosen place what they say in the explanation of the Torah whether they recieved the explanation witness from witness and Moshe from Hashem, or if they say according to the mashmaot (implication) of the Torah."

Or else the intent is, on their intellect (da'at) He gave them the Torah, even if it appears in yours eyes like switching right for left, and certainly (kol sheken) that you should think that they are saying on right that it is right for the spirit of Hashem are on those who serve in his Temple and he does not abandon his holy ones, forever they are protected from error and the stumbling block."

Then he cites the language of the Sifrei.

Thus, the Ramban seems to be saying that even though they are wrong, this pasuk tells us to listen to a central authority so that the Torah does not become multiple Torahs. He follows up with the idea that they are not likely to err because of shmirah.

These three opinions seem reminiscent of an old joke:
Three umpires are discussing the nature of their work. The first umpire, with lots of courage, says, "I don't care if it is the bottom of the ninth inning in the seventh game of the World Series, the bases are loaded, and the count is three and two. I don't care who's batting or who's pitching, or whose stadium we are in: I call it like I see it!"

The second umpire shoots back, "Wait a minute: That's subjective." With confidence in his skills, he says with fervor, "I have such an eye for that strike zone that if one seam of that ball passes within that zone, it's a strike! I don't call it like I see it; I call it like it is!"

The third umpire shakes his head at both of them and says: "I don't think either one of you understands the nature of this craft. We aren't hired to call it like we see it, or to call it like it is. Because the bottom line is that it isn't anything until I call it!"

The umpire who calls it like he sees it corresponds to the idea that a bet din does its best, and can make mistakes. But still, (according to this opinion) one has to listen to them. This was my initial reading of Rashi.

The umpire who calls it like it is is confident that he makes no mistakes, like the opinionof the Siftei Chachamim and the latter part of the Ramban.

The umpire who calls it like it is is the first part of the Ramban. Even if factually one might vary with their opinion and they may indeed by incorrect, the nature of halacha is that we follow what they decided, and it is binding.

I hope to post more on this later, in a different post, about conflicting opinions about יָמִין וּשְׂמֹאל.

Update: The Ramban, because he does call the error the bet din makes a taut, though it still is halacha, actually falls in beteen the first and the last umpire.

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