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file Musings on Parshat Shoftim

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1 year 10 months ago - 1 year 10 months ago #343 by Heshy Berenholz
Heshy Berenholz created the topic: Musings on Parshat Shoftim
Overview

 Fourteen mitzvahs and twenty seven prohibitions
 Establishment of judicial and religious institutions and practices…
o Court system
o Judges and police
o Supreme Court
o Priests and Levites
o King
o Do not bend justice
o Do not show favoritism
o Do not take bribes because a bribe “blinds the eyes of the wise and perverts legitimate words”
o “Pursue justice”/ “pursue perfect honesty”
 Trees and pillars used for idolatry are prohibited
 Penalties for idolatry
 Supreme Court (Sanhedrin) should include priests and Levites
 Appointing a monarch
 Prohibited idolatrous practices include…
o Child sacrifice
o Divination
o Sorcery
o Fortune telling
 Cities of refuge for unpremeditated murder
 Preserving boundaries
 False witnesses are to receive the sentence they had planned to impose
 Preparing for war; exhorting the population not to be afraid; military exemptions for…
o One who has not yet lived in his newly-built home
o One who has planted a vineyard but not yet tasted the first fruits
o One who is engaged to a woman but has not yet married her
o One who is afraid or faint-hearted
 Giving peace a chance before attacking
 Destruction of fruit-bearing trees is prohibited during war
 Egla arufa ceremony for an unsolved murder

Opening Links

Last week’s parsha concluded with the commandment to make a pilgrimage to Yerushalayim three times a year for the Three Festivals. Ibn Ezra explains that while the Israelites were able to ask their questions of the judges during their aliyas haregel, the Torah now stresses that it was equally important that a judicial system be established in every city to assure justice prevails all year long throughout the land.

The Netziv reasons that the proximity of subjects makes the point that the blessings promised by God earlier will prevail only when there is respect for judges and for the judicial system.

The immediately following topic regarding the sin of idolatry indicates that the judiciary’s first action must be to strengthen the people’s faith and to eliminate the seductive idolatrous behavior. This will prevent the mingling of heathen laws with Torah laws.

A Shining Light unto the World

Rabbi Menachem Leibtag explains that at the beginning of Sefer Devarim Moshe informs the nation that he would be teaching them the Torah laws in order for them to achieve the divine goal of becoming a shining light for all nations (Or La’goyim).The requirements included establishment of a National Center (Holy Temple) in Yerushalayim where…

 Offerings would be brought
 Tithes would be brought to eat or to give to the Levites
 The nation would gather three times a year to celebrate

The people were taught the mitzvahs that would help them become a holy nation including…
 Dietary laws(personal)
 Observance of Shemittah (social and economic)
 Warnings to avoid the surrounding influences that could hinder the ability to be ethical (national).

This parsha continues with a discussion of governmental structure. First and foremost is the establishment of a fair and honest judicial system. This is followed by rules that create…

Leadership and Separation of Powers

 Judge/shofet judicial system
 Levi religious…civil servants
 Prophet/navi religious guidance and national direction
 King/melech political leadership

“You shall appoint judges and officers in all your gates (i.e., every city)…they shall govern the people with due justice…Justice, Justice you must pursue [tzedek, tzedek terdouf]…in order that you thrive and inherit the land.” Following soon after is the commandment to establish a Supreme Court (Sanhedrin) close to the National Center where any disputes that could not be decided by the local courts would be handled. The location of this highest authority for both halachic questions and civil disputes near the Holy Temple underscores the inextricable connection between Torah and Justice.

The Torah appoints the entire tribe of Levi to…

• Officiate in the Temple
• Teach Torah
• Serve as judges in the Sanhedrin

The Torah prohibits the search for guidance from a wide range of local popular heathen oracles including…

• Soothsayers
• Sorcerers
• Those who casts spells
• Those who consult ghosts and spirits
• Those who make inquiries of the dead

Instead, the Israelites should look to the prophet for spiritual guidance and through whom God will communicate His message. Rabbi Jonathan Sacks cites Rambam who states that only when a prophet predicts good fortune can he be tested. (If this prophecy does not come true, he is a false prophet.) Non-fulfillment of predictions of calamities does not disprove the legitimacy of the prophet because one may have repented in the interim. Rabbi Sacks concludes that the prophet’s words are meant to serve as a warning to help the Israelites avoid any future disaster. The prophet’s mandate is “to be critical of the corruptions of power and to recall the people to their religious vocation whenever they drifted from it.”

None of these three are to tend to…
• Foreign and domestic policy
• Commander-in-Chief
• Financial matters (taxing and spending )
• Engineering and construction (roads, towns, Holy Temple)

The judge, the Levite and the Prophet have their respective roles. It appears that the task of running the country falls to the king.


Monarchy in Israel: Commandment or Concession?

“When you come to the land that God your Lord is giving you, and you have occupied and settled it, and you will say ‘we would like to appoint a king just like all the nations around us’ you will appoint the king whom God your lord shall choose…from among your brethren…The king must not accumulate many horses so as not to bring the people back to Egypt to get more horses…and he must not have many wives…he must write a copy of this Torah as a scroll [that] must be with him and he shall read from it all the days of his life…he will then learn to be in awe of God…and carefully keep every word of this Torah and these rules…so that he not begin to feel superior to his brethren…and will not stray from the mandate…”

Rabbi B.S. Jacobson discusses the question of whether this phraseology represents a concession in anticipation of possible future event or whether the text is requiring establishment of Kingship in Israel.

Rav Yehuda in the Talmud considers Kingship in Israel a Torah commandment, as are building a sanctuary and eradication of Amelek. Rav Nehray, on the other hand, views these words as anticipating a time when Israel will resent being different and will want to have a King like everybody else--and are advised that their request is acceptable with certain conditions. A Midrash expresses strong opposition: “Said the Holy One Blessed He: My children, I thought to deliver you from the subjugation of kingdom, and now you turn around and desire it for yourselves!”

Rav Saadya Gaon, Ibn Ezra and Ramban understand the text to mean that it is permissible, but not mandatory, to appoint a monarch. Abrabanel--who both witnessed and experienced royalty’s corrupt and arbitrary behavior and generally demoralizing influences--reasons that there is no need for a king in Israel to be commander of armed forces and supreme legislative authority and supreme judicial tribunal (often sentencing and punishing without justice). For one, kingship could only be considered after the land was conquered and settled. Furthermore, Israel’s Judges were competent to lead the nation in battle. Regarding legislative authority, a national leader in Israel is subject to Torah rule and has no authority to institute new or change existing laws. Judicial function is vested in the court system and the Sanhedrin.

Should the nation at some time in the future demand monarchy, the Torah delineates its regulation. The king must not…

• Keep too many horses
• Keep too many wives
• Amass too much wealth

But he MUST…

• Write down the laws of Sefer Devarim from in front of the priests and Levites
• Keep it [the scroll] with him
• Read it every day of his life in order that he learn to fear God
• Avoid haughtiness
• Not deviate from the Torah

Rambam stands almost alone in concluding that it is a commandment to appoint a king to rule over us; to whom we must be obedient; and whom we must acknowledge with respect and reverence, so long as he is law-abiding.

Biblical scholar Rabbi David Hoffman points to the qualitative difference in Israel’s kings. Other nations typically appoint a hero/conqueror who then distributes land to his loyal followers and himself. This is in contrast to monarchy in Israel that could exist only after settlement in the land when it became clear that the land was a gift from God. The (relatively few) ideal Kings like David, Hezekiah and Josiah concentrated on purging pagan cults and enforcing Torah rule in Israel.

Rabbi Leibtag thinks that this is about political leadership in general (be it democracy, monarchy or theocracy) and that the Torah discusses the form of government that was prevalent at that time. As such, the “laws regarding the king could apply equally to the political leader in any system of government”.

Throughout history, our leaders were learned and scholarly. From King David and King Solomon who were both authors and knowledgeable in the ways of the world to David Ben Gurion who was both a voracious reader and prolific writer. Concludes Rabbi Sacks that “to be a Jewish leader means spending time to study both Torah [Israel’s moral and spiritual heritage] and chokhmah [worldly wisdom including science and humanities]: chokhmah to understand the world as it is, Torah to understand the world as it should be.”

On Oray Miklat (Cities of Refuge)

The Torah states that when the Israelites cross the Jordan River into the Land of Canaan they are to “separate three cities in the land…establish yourself a road [joining the refuge cities]…the murderer who seeks refuge [in these cities] shall be allowed to live if he accidentally killed his neighbor without prior hatred… [When]God will eventually expand your borders…you will have to add an additional three cities to the above-mentioned three”.

Key aspects are:
• The refuge is available to those convicted of manslaughter (and not premeditated murderers)
• The Blood Avenger/Redeemer (relatives who wants to make sure that the death of their family member does not go unpunished) could not enter the city but can kill the individual if he is found outside the city
• The person is free to leave upon the death of the High Priest

What the purpose of these cities is a matter of lively discussion. Rav B.S. Jacobson in his Meditations on the Torah cites a number of views.

It may be…

• A protective measure to guard the person from the Blood Redeemer and to provide an opportunity for passions to cool. Rambam asserts that we want to calm the excited bloodthirstiness of the Blood Avenger by keeping the individual out of his sight.
• A punitive measure. One who has caused the death of another human being even by accident must experience exile, separated from family and friends, which is a kind of Social Death.
• An expiatory measure. Killing was understood to be something that contaminated the community and the killer needed to be isolated lest he cause further contamination to those around him. Rav Hirsch concludes that it is a chance for the individual to redeem himself from the burden of guilt that weighs on him. The city’s citizens are obligated to attend to his spiritual and cultural needs. The surrounding Levites will know how to educate him and help him to be a better person when he leaves than when he arrived.

Shadal points to the historic context of earlier generations when it was considered a sacred obligation to avenge the murder of a family member. With the creation of a judicial system it became possible to calm the avenger with the prospect of Justice being meted out by the courts (Beis Din). But this won’t work in the case of accidental murderer because he will be constantly “in the face” of the Avenger, seemingly getting off scot-free. The Avenger would feel a lack of love because of (or guilt over) his inability to avenge the death of the family member. The Torah balanced these opposing drives by relocating the manslayer to a protected Refuge city, but also permitting the Avenger the chance for vengeance should the manslayer leave the city of Refuge.

The Lubavitcher Rebbe notes that these cities were Levite cities. The Matriarch Leah named her third son Levi in the hope that now her husband Jacob will be attached (yiLaVeh) to her. The name Levi suggests reattachment after a period of separation and distance. The cities and the Levites were there to help the sinful to re-approach and re-attach themselves to God.

Rambam maintains that in the Messianic times the cities of Refuge will be re-established on a more extensive basis.

It is puzzling that the same numbers of cities were to be established on either side of the Jordan River even though many more people (nine and a half tribes) settled in the Land of Canaan than settled on the eastern side! The Me’am Lo’ez, a classic Ladino Torah scholar, speculates that there were more murderers living on the eastern side-- many of whom murdered intentionally but made their actions appear as if they were accidental. Because of the impossibility of proving that they acted intentionally, a court could not prosecute them and they were exiled to one of the Cities of Refuge. Rabbi Marc Angel characterizes such people as being filled with “pious cruelty”. Under the cloak of piety, a seemingly religious person behaves ruthlessly and hypocritically to achieve his immoral goals.

The need to be alert to this dangerous behavior exists both in religious life and in world affairs. Rabbi Angel points out how the anti-Semites and anti-Zionists of the world conceal their true motives--the destruction of Israel and the Jewish people--when they assert that their opinions and behavior are driven by their deep concern for human rights. Like the murderers east of the Jordan, they try to “pass themselves off as moral agents who are acting with humanitarian motives”. We need to be on guard to recognize these people for who and what they are.

Rabbi Jonathan Sacks on Retribution and Revenge

Homicide, deliberate killing, is an extremely serious offense. But killing someone who committed manslaughter (unintentional) is an act of revenge, not justice. The Torah seeks to prevent unjust violence, starting with the Cayin and Hevel story; persisting in the days after Noah and the Flood; and continuing here where the shedding of blood is described as polluting/soiling/defiling the land. “Even justified acts of bloodshed, as in the case of war, still communicate impurity…death defiles”.

The Torah recognizes the human desire for revenge, but insists on justice between the one who committed manslaughter and the victim’s family. It demands a trial to determine guilt or innocence. The person found innocent of premeditated murder needs to be relocated to a city of refuge.

Revenge is passionate and personal. But retribution is impersonal; it is the rule of law (justice) that authorizes behavior. Rabbi Sacks defines retribution as “the principled rejections of revenge …The cities of refuge are part of the process by which vengeance is replaced by retributive justice”. Violence and bloodshed prevail in societies where revenge is given free reign. The Torah’s progressive idea for civilization is the law of the cities of refuge “allowing retribution to take the place of revenge and justice the place of retaliation.”


Cities of Refuge Linkage to the Story of Cayin and Hevel

Rabbi David Fohrman perceives parallels between the cities of refuge and the Cayin and Hevel narrative in that both involve…

 Acts of unpremeditated murder. Death had not yet occurred in the Garden of Eden so Cayin had no way of knowing that striking his brother would cause death or what death was.
 Exile. Cayin’s punishment is to wander the earth and (ironically) build cities wherever he went.
 Fear of retaliation. Cayin expresses his worry that whomever he will encounter during his wanderings may kill him. [Rashi comments that because there were no other humans alive then, Cayin was worried that animals might sense his fear and attack him.] God places a mark on Cayin to protect him from would-be murderers, just like the walled cities of refuge protect the inadvertent killer from the blood Avenger.

Despite Cayin’s failure to protect his brother, God provides protection for him. But Cayin must then lead his live with the guilt/ full knowledge that God has given him something that he did give his own brother. The Torah’s example of an unintended murderer is of a man who goes to a forest with his friend to chop wood but as his hand swings the ax to cut the wood the head slips off the handle striking the friend and killing him. The inadvertent killer is now in need of protection from the friend’s family. God provides this protection in the form of refuge cities and displays a kindness that the inadvertent killer failed to show his friend by virtue of his carelessness. Like Cayin, he will live out his life with the knowledge that he is alive only because of this undeserved Divine kindness.

Rabbi Fohrman concludes that both the Cayin story at the beginning of the Torah and the laws of the cities of refuge presented here towards the end of the Torah together demonstrate appropriate behavior. God provided kindness, protection and justice to Cayin. As a society, we are called upon to behave the same way.


Why is the Length of Stay Tied to the Death of the High Priest?

 Rambam offers the psychological analysis that the death of the High Priest would prompt people—including the Blood Avenger—to consider death and its inevitability and the suffering it brings. After this soul-searching, the would-be Avenger may then no longer feel the need to kill.

 Isaac Erama thinks that since the Cities of Refuge came under the Administration of the High Priest, his death may be a kind of amnesty.

 Rabbi Gunther Plaut reasons that only death could expiate the sin. “It was not until the High Priest Had died that the process was completed and full expiation extended to the manslayer himself”.


Cities of Refuge Clearly Are Not Sanctuary Cities

“Sanctuary City” is a city in the United States that follows certain procedures that shelters illegal immigrants. These procedures can be by law or they can be by action. The term is used for cities that do not permit municipal funds or resources to be used to enforce federal immigration laws, usually by not allowing police or municipal employees to inquire about an individual's immigration status. The designation of “Sanctuary City” has no legal meaning. There is no legal definition of a sanctuary city, county or state. Certain cities began designating themselves as sanctuary cities during the 1980s.The policy was first initiated in 1979 in Los Angeles, to prevent police from inquiring about the immigration status of arrestees.

Cities of Refuge are based on law and offer protection for the innocent; sanctuary cities are based on lawlessness and protect the guilty. Cities of Refuge are for legal citizens and offer the possibility to return home and lead and/or resume a productive life (after the death of the High Priest).Sanctuary cities prevent illegals from being returned home and foster dependency and crime.


The Case of the Unsolved Murder—Egla Arufa

If a corpse is found in an open field and the murderer is unknown, elders and judges (including members of the High Court in Yerushalayim) are called upon to measure its distance to the closest city [to determine which city the victim lived in]. The elders of that city are required to bring an egla (female calf less than two years old) that has never been worked (and never pulled a load while wearing a yoke) to a nearby nachal aysan (swiftly flowing stream or wadi or harsh or fertile) where they decapitate the calf by striking the back of its neck (arufa). [Note: Perhaps this ritual links to the Israelites’ being characterized as a stiff-necked people or perhaps this a subtle reminder to the elders of the city’s stubborn refusal to adequately fund such vital public services as police; proper highway lighting; safety measures for travelers; and food and lodging for the homeless and the needy.]

Precision and persistence are necessary. To arrive at the correct measurement the judges may have to climb hills and descend into valleys. Sometimes even an inch makes a difference.

The measurement is taken from the city to the nose of the corpse, the place through which the soul was breathed into the first Man (Sota 44b). As in measuring for an eiruv, a rope fifty amahs in length is used to measure the distance. [An amah is one and a half to two feet long.]
The priests (whose responsibilities include resolving litigation and determining leprous signs) step forward. The elders wash their hands over the decapitated calf and say “our hands have not spilled this blood and our eyes have not witnessed it”. The priests than pray “Forgive your people whom You, God, have liberated and do not allow the guilt for innocent blood remain with your people Israel”. Through this ceremony “the blood shall be atoned for and you shall rid yourself of the guilt of the innocent blood in your midst because you have done what is morally right in God’s eyes.”

The egla arufa calf is not a sacrifice, but a form of atonement—perhaps expiation for the blood that has been shed and absorbed by the Land. The ritual is observed only in the Land of Israel proper and in the Jewish lands east of the Jordan River. The area surrounding the Nachal Aysan may never be worked or sown like the corpse that can never yield offspring.

Understand the ceremony

• Rambam, ever the rationalist, reasons that the purpose is to find the murderer. In most cases the murderer likely came from that vicinity and the publicity relating to the investigation, including the arrival of prominent elders from Jerusalem would create a buzz that gets people talking. This publicity will result in the emergence of eye-witness testimony or other relevant information.
• Ramban disagrees and views the ritual an attempt to attain atonement on some level.
• Abrabanel and others cited by Nechama Leibowitz see the ritual as an attempt to shock the population out of the indifference that typically accompanies news of the death (and miseries) of others. In his poem, City of Slaughter, Chaim Nachman Bialik depicts how Nature continues unaffected in the wake of a bloody pogrom with gory human remains lying in the streets: “the sun shone, the acacia blossomed and the slaughterer slaughtered”. Unlike Nature, Man who is created in the Divine image needs to feel the horror of murder. The egla arufa rite prompts us to think about the tragedy of loss of even one single life and provides an opportunity for introspection.
• Rav Aaron Lichtenstein observed that the topic of egla arufa appears in the middle of the laws of war (between the laws of siege and the laws of the captive woman). During a war, it is possible for the individual soldier to lose his sense of identity, personal worth and contribution. He becomes subsumed to the collective, loses his significance, and is in danger of developing a militant and aggressive character. The ritual serves as a reminder of the exceptional value and preciousness of each and every human life.

We All Share in the Responsibility

Because it is unimaginable that these respected leaders actually committed the murder, the Talmud interprets the elders’ requirement to speak up and declare “our hands have not spilled this blood and our eyes have not witnessed it” in a broader sense to mean that they were not even indirectly responsible for the death: “no one came within our jurisdiction whom we discharged without food and whom we did not see and whom we left without providing him an escort”. Malbim adds that lack of food may have been a factor in the commission of the murder. Too, the lack of an escort would have placed the victim in danger.
We no longer have the ceremony-- “When the number of murderers increased the egla arufa rite was abolished”-- but we do have the broader takeaway message. Every human life is unique and important. A violent death should shatter our complacency. A society is responsible for assuring a safe environment for its citizens. Laws must be enforced. There must be adequate lighting and police presence on our roads. We must encourage efforts to provide food, shelter and safety for the needy. We are obligated to identify and remove evil, violence and oppression in all forms.

“You shall thus rid yourself of [the guilt of] innocent blood in your midst, since you have done that which is morally right [hayashar] in God’s eyes.”

How are we to interpret this concluding verse of the egla arufa topic (and of the Parsha)?

It may be simply a summary of this ritual that achieves atonement for the spilt blood of the innocent corpse.But the phrase “doing that which is morally right [hayashar] in God’s eyes” more typically has to do with moral behavior, not with ritual. Rashi’s comment is that we are being told to continue to seek out the murderer and bring him to justice even after the ceremony is complete because the pursuit of justice is the behavior that is correct in God’s eyes.

Because the phrase “doing that which is morally right [h’ayashar] in God’s eyes” usually connotes a more general, broad set of behavior rather than a specific act, Rabbi Leibtag, building on the idea of Ibn Ezra, reasons that here the Torah is providing us with good advice on how to lead our lives in such a way so as to prevent recurrence of a tragedy like this. No murder would have taken place if only the Israelites would have taken the extra precautions needed to guarantee traveler safety. In all our behavior we should always act in a way that is right in God’s eyes by adhering to Torah laws and ethics.

The prefix “b” in the phrase “B’aynai Hashem” generally is translated to mean in or within. An alternate definition is using or utilizing. Translated this way, the commandment is for us to behave using “aynai Hashem”, the eyes of God, a term that means insight and deeper understanding of behavior to which God alone is privy. When we are dealing with our fellow Man, we are urged to try to use or utilize the same understanding and forgiveness that we would like God to use in judging us.

Rabbi H. L. Berenholz
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