Parasha: Shoftim · Aliyah: First (Chesed)

שופטים ושוטרים, "Judges and law enforcers, etc." The Torah positions this commandment adjacent to the commandment to make a pilgrimage to the Holy Temple three times a year to teach us that although there is a Supreme Court in Jerusalem situated at the entrance to the Temple precincts, we must not merely rely on that court but must appoint a nation-wide judiciary. The reason is that judgment should not be delayed until the time of the respective pilgrimages.

The reason why the Torah demands the appointments of law-enforcement officers is explained in Pessikta by Rabbi Eleazar ben Shamua who says once you have law enforcers you will have effective judges; if there are no law-enforcers the law to appoint judges is not operative. Whenever the Israelites realise that the common people ignore the rulings of the judges, and the judges in turn are unable to enforce their decisions there is no point in making such decisions. On the other hand, when the common people accept law-enforcement the law to appoint judges is applicable.

תתן לך, "you shall give (appoint) for yourself;" This is an appeal to the people who appoint the judges and enforcers not to think that seeing they have appointed them they are themselves not subject to their authority. The meaning of לך then is equivalent to עליך, "over yourself."

בכל שעריך, "in all your cities." The reason the Torah writes כל, "all," is to tell us that every single city and town in the land of Israel must have its own judiciary. Yalkut Shimoni on our verse states that our verse draws a comparison between the Supreme Court and the regional courts; just as the Supreme Court has the authority to deal with capital offences and to hand down death sentences so do the regional courts [if composed of a minimum of 23 judges. Ed.] The exegesis appears to be based on the word בכל which includes all the various סנהדרין as having the same authority.

אשר ה׳ אלוקיך נתן לך, "which the Lord your G'd is about to give to you, etc." We are taught in Makkot 7 that the legal requirement to establish such a judiciary applies only to the towns within the land of Israel.

לשבטיך, "for your tribes, etc." According to Sifri these words belong to the previous words, i.e. שופטים לשבטיך, "judges for your tribes." If that is so, why did the Torah not simply write תתן לך לשבטיך בכל שעריך, "you shall appoint for your tribes in all your towns, etc.? Perhaps the Torah wanted to ensure that the word לשבטיך appears next to the words ושפטו את העם משפט צדק, "and they will then be able to judge the people with righteousness." In this way the Torah provides the rationale for the legislation. If a city is inhabited by people of more than one tribe it requires two courts in order to satisfy the Torah's demand for fair judgment, משפט צדק. The Torah was careful to write את העם, to instruct us that two courts should not apply different yardsticks but that the whole people must be judged according to a uniform system of laws. [The author may mean that although Israel is comprised of 12 tribes this does not mean that there are twelve states each having its own set of laws, as in many countries where there is both Federal and state law or Federal and provincial law. Ed.] This helps us understand why the Torah writes ושפטו in the third person instead of ותשפטו in direct speech just as the words תתן לך, or when the Torah continues לא תכיר פנים addressing the judges directly. Rashi explains that the words את העם are an instruction that the judges must both be experts in their field and that they must be known to be righteous. [Rashi also quotes the Sifri. My edition has neither the last statement nor the one which says that the same law must be applied equally in all cities regardless of which tribe. Ed.] The various statements prove that when there are no law enforcers there is no rationale for having judges. As a result of such considerations we may equate שופטים with שוטרים. Seeing that their functions depend on one another so do their titles. Rashi also explains that we have here a warning to those who do the appointing to appoint only righteous people. I believe that if that were so, the Torah should have written: שופטים ששופטים בצדק תתן לך. "Judges who judge fairly you must appoint." According to our approach the present wording of the paragraph makes perfect sense.

I have seen in Maimonides' treatise Hilchot Sanhedrin chapter one that he ignores the ruling that each tribe must have its own judiciary. He refers only to each city having to have its own court, etc. Perhaps Maimonides understood the comment of our sages who said that each tribe must have its own Sanhedrin as applying only as long as each city did not have its own judiciary. Once each city had its own court and law-enforcers there would be no more need for a tribal court. The wording of the Baraitha in Sanhedrin 16 is as follows: "whence do we know that we must appoint judges in Israel? The Torah wrote "You shall give (appoint) judges." How do we know this rule applies to each tribe individually? The Torah wrote: "Judges for your tribes." How do we know that you have to appoint law-enforcers correspondingly? The Torah wrote: "you shall appoint law-enforcers." How do we know that we must appoint them in each city? The Torah wrote "Judges for your cities." Thus far the Baraitha. The difficulty here is why the author of this Baraitha interpreted the words: "for your tribes" which appear in the text at the end of the sequence before he interpreted the words: "in all your cities" which occur earlier in that same verse? The reason may be that the obligation to appoint a judiciary for the tribe is applicable only as long as no judiciaries had been appointed for each city. This would account for the fact that Maimonides did not mention this law at all, as he described a situation when there was no longer any need for this temporay legislation. The Baraitha viewed the Torah's verse as saying: "You have to install a judiciary in every tribe regardless if it comprises 10 cities or only a single city.. In the event that the tribe comprises numerous cities you have to have courts and enforcement officers in every single city."

You may ask that if every city has to have its own judiciary, why does the Torah speak about a judiciary for the tribes altogether? The answer is that if the Torah had not mentioned "your tribes," I would not have interpreted the words בכל שעריך, to mean "in each one of your cities," but as referring both to your cities on the West Bank and your cities on the East Bank of the Jordan. Once the Torah wrote the words: "for your tribes," it became clear that the words: "in all your gates" must refer to individual cities. This is why once Maimonides ruled that every city has to have its own judiciary he did not need to mention the subject of tribes at all. His ruling is analogous to the Baraitha in Sanhedrin we have quoted that if a city is shared by two different tribes that city must have two courts.

משפט צדק. "righteous judgment." The Torah did not write בצדק as it did in Leviticus 19,15 where it legislated something similar. In our verse -which is addressed to the judges- the Torah teaches the judges something of great importance. If the judge is truly interested in handing down true judgment, he must dissociate himself from the persons, i.e. the litigants before him and weigh only legal considerations. He must not say to himself that according to the arguments of litigant A, B must be guilty, whereas according to the arguments of litigant B, A must be guilty. He must research only the halachah on the subject matter in dispute. If he were to approach the matter differently he could not help but develop some bias in favour of one of the litigants. As a result the judgment would not reflect true righteousness, צדק. When the judge follows the procedure the Torah suggests then he first forms judgment, משפט, which turns out to be צדק, righteousness. [You will observe that in the quotation from Leviticus 19,15 the Torah describes the reverse sequence, i.e. your interest in righteousness obliges you to pronounce judgment. In that instance a variety of considerations ultimately demanded that you resort to law rather than mediation, etc. Ed.]

If we are to read the verse as a moral/ethical lesson we could apply a teaching based on what Moses said in Psalms 96,13: ישפט תבל בצדק, "He judges the universe with equity." Kabbalists (Zohar volume 3 page 198) understand the word צדק in this verse as referring to the Celestial Court. According to Beytzah 16 this court decides on Rosh Hashanah each individual's livelihood for the coming year. Accordingly, if a terrestrial judge decides between two litigants on the basis of Torah law he merely publicises a decision already made in the Celestial Court, as any decision not based on Torah law would upset the judgment made by the Celestial Court concerning this individual's livelihood. The words ושפטו את העם משפט צדק mean that these judges hand down to the people the decisions made by the Heavenly Tribunal.

לא תטה משפט, "Do not pervert justice, etc." This commandment is not only addressed to the judges but to all those who by failing to appoint the proper judiciary contribute to unfair judgments being handed down by unauthorised sources.

צדק צדק תרדף, "Righteousness, righteousness shall you pursue, etc." This is a warning to you that if in one city there can be found two exceedingly wise men and two other men also ordained but not as brilliant as the first two, you should not say that seeing both are competent you will not bother the brilliant ones with your little problem but instead submit it for judgment to the lesser sages. You should always seek out the most renowned judge (scholar) to act as judge in any litigation you are involved in.

לא תטע לך אשרה, "Do not plant for yourself a 'sacred' tree, etc." Our sages in Sanhedrin 7 have said that if one appoints an unsuitable judge this is similar to violating the commandment of this verse. According to the sages then the word לך in our verse means that the appointment of an unfit judge is objectionable only if it was made deliberately in order for those who appointed him to benefit from perversion of justice. If, however, a judge was appointed in all innnocence, and it turned out that this judge was not competent, no sin accrues to those who appointed him. The people who appointed said judge would certainly not be comparable to people who plant an אשרה.

לא תזבח….אשר יהיה בו מום, "Do not slaughter for G'd anything blemished." The wording אשר יהיה בו מום "on which there will be a blemish," must be understood in conjunction with Sifri that our verse forbids an animal suffering from a temporary blemish. This ruling is hinted at by the word יהיה, "will be." That word includes not only permanent blemishes but even temporary blemishes. Perhaps one may also say that if the animal in question has a limb which would result in it becoming blemished unless said limb was amputated, the animal in question is considered blemished even before the operation (regardless of whether the animal is being considered for a sacrifice). The words לא תזבח …אשר יהיה בו מום mean "you must not sacrifice it…as it is going to develop a blemish" (which would disqualify it.)

כי ימצא בקרבך, "If there be found amongst you, etc." The reason the Torah adds the word בקרבך, "in your midst," is to place the burden of dealing with the sinner (idolator) on the local authorities. Jews in other cities are only charged with dealing with the idolator if the people of his own city have failed to do so. This is what is meant by the words באחד שעריך, "in one of your cities." Our sages in Ketuvot 45 make use of the expression שעריך both here and in verse 5 to rule that the execution of the idolator takes place where he performed the sin and not in the city where he was sentenced to death (assuming they are not the same). The reason that the verse concludes with "which the Lord your G'd is about to give to you," is a reminder that one of the reasons G'd gave us the Holy Land is that we observe the commandment to execute idolators.

לעבר בריתו, "to violate His covenant." Moses means that it is important for the sinner to realise that he violated G'd's sacred covenant. This is the reason he cannot be executed unless he had been properly warned of the penalty in store if he proceeded with his intention to commit this sin. There is also a hint here that if the idolator told the people who warned him to desist that he had sworn an oath to serve this particular deity, that he must be reminded that such an oath is not valid as he had been obligated under a previous oath dating back to Mount Sinai not to engage in any form of idolatry. His execution would therefore be perfectly legal if he went ahead and ignored the warning.

יומת המת, "the condemned person will be executed." The reason the Torah repeats the reference to the condemned being dead is to alert us that if no witnesses could be found or that the warning was not legally valid for some reason, the fact that the terrestrial court could not execute the sinner does not make him any less guilty of death in the eyes of G'd. The word יומת applies when the legal proceedings here on earth could be completed.

כי יפלא ממך דבר למשפט, "If a matter of judgment is hidden from you, etc." The apparently extraneous word למשפט is needed to remind us that the subject matter now being introduced, i.e. the "rebellious elder" who will be executed for insubordination to the Supreme Court, is applicable only to the kind of person who had himself been ordained as judge, etc. (compare Mishnah Sanhedrin 86). If the dissenting opinion was handed down as law by a student who had not yet been ordained, such a pupil is not liable to the penalty provided for in our paragraph. I have found a Baraitha in Sanhedrin 87 which derives the fact that an unordained student is free from the death penalty from an interpretation of the word כי יפלא in our verse as not meaning "if it is concealed," but "if the most distinguished one of the judges errs." If we base ourselves on this exegesis we can understand why the Torah added the word למשפט. It means that unless the dissenting opinion was actually formulated as a practical judgment, -as opposed to a learned opinion,- such as by the presiding judge of the Sanhedrin- the penalty provided in our paragraph is not applicable. This is also why the Mishnah added that the words in verse 12: "and the man who will act deliberately sinfully, etc." prove this point. Accordingly, our verse would prove that the dissenting elder is guilty of death only if he personally acts against the majority decision but not if he instructed others to do so. The word למשפט is needed therefore to also make him guilty if he instructed others to act on the basis of his dissenting ruling.

We may also approach the verse from the following angle. כי יפלא …למשפט, "Even if the dissenting opinion was issued as an instruction to act contrary to the majority ruling of the local court, and it is proven that the majority opinion was in error, if the subject matter was one where deliberately sinning carries the karet penalty, etc., the dissenting judge will not be executed unless he repeated the same ruling in the face of the majority opinion of the Supreme Court, openly defying them." This is also the concensus of the sages in the Talmud on the application of this halachah.

ודרשת והגידו לך, "and you shall enquire and they will tell you, etc." It is up to you to make these enquiries, i.e. to find out (from the Supreme Court) why the judges ruled as they did. On the other hand, the judges of the Supreme Court are obligated to explain their ruling to you once you ask them. If you did not ask for the Supreme Court to tell you their reasons they are not under any obligation to volunteer it.

The explanation is, obviously [he must obey] that selfsame ruling, but rather even other rulings that are based on that verdict, for many judgments branch from the detail of a single judgment.