Accommodating Diversity and Maintaining Unity

Judges and officers you shall make for yourselves in all your gates, which Hashem your G-d gives you, tribe by tribe. And they shall judge the people with righteous judgment.(Devarim 16:18)

1. Courts for each city and tribe
The Torah requires that Bnai Yisrael establish a judicial system. The above passage discusses the extent of the system in the Land of Israel. It explains that a court must be established in every city. However, based on the above passage, the Sages explain that courts are also required for the tribes – the shevatim.[1] The commentators debate the meaning of the Sages’ interpretation of the passage. Understanding their problem with the interpretation requires some background information.

After its capture, the Land of Israel was divided into discrete portions. Each portion was given to a tribe as its legacy within the land. In other words, each tribe – shevet – had its own “homeland” within the Land of Israel. Each of these homelands included cities. Some of the cities were built by the members of the shevet. Some were captured and occupied by the shevet.

According to our Sages interpretation of the above passage, courts are required for each city in the Land of Israel and also for each tribe. The commentators observe that because each tribe had many cities within its territory, the requirement of a court for each tribe is redundant. Each shevet already had multiple courts based in the cities that were in its territories. What is the meaning of a requirement to create a court for the shevet? How is this court different from the courts that existed in the cities?[2]

Tosefot respond that the Sages are not suggesting that a shevet-court is required in addition to those in the cities of the shevet’s territory. Instead, the Sages are dealing with a specific circumstance. As explained above, each of the shevatim was provided with a portion in the Land of Israel and each portion included a number of cities. Initially, the portions may have been designed in order to assure that each city was within the portion of a specific shevet and no city straddled the border between two territories.[3] However, as the cities prospered and grew, inevitably some expanded and straddled a border. This city then encompassed an area that included territory of two shevatim.

Tosefot suggest that this is the situation that is addressed by the Sages. The Sages are suggesting that the passage requires that such a city have two courts. A separate court for the city must be established for each of the shevatim whose territory is included in the city’s boundaries.[4,5]

2. Nachmanides’ shevet-court
Nachmanides rejects this interpretation. He suggests that the Sages understand the passage as establishing a hierarchy of courts. Each city must have its own court. However, the shevet must have one shevet-court in addition to these municipal courts. What is the role of the shevet-court? Nachmanides identifies a number of roles. First, the shevet-court is the Torah’s loose equivalent to a court of appeals. It differs from a court of appeals in that it does not review, vacate, or affirm decisions of the municipal courts. Instead, halachah allows a party to a dispute to insist that the case be heard by a “higher” court rather than the local municipal court. This shevet-court is this higher court. Second, when municipal courts are brought cases or questions that they cannot resolve, they refer these issues to the higher shevet-court. Third, according to Nachmanides, the shevet-court has legislative authority. In order to fully appreciate this assertion, more information is required.

And you shall do according to the tenor of the sentence, which they shall declare unto you from that place which Hashem shall choose. And you shall observe to do according to all that they shall teach you. According to the law which they shall teach you, and according to the judgment which they shall tell you, you shall do. You shall not turn aside from the sentence which they shall declare unto you, to the right hand, nor to the left. (Devarim 17:10-11)

3. The legislative role of the courts
The above passages direct us to follow the instructions of the Sages. The implication is that the Sages have legislative authority. Maimonides explains that the Sages have two areas of authority that can be described as legislative. First, they are entrusted with the task of interpreting the Written Law – the Torah She’Bichtav. The Sages determine the meaning of the passages of the Torah and define the mitzvot and laws that are communicated by the passages of the Torah. In some cases, the Sages base their interpretation upon the tradition that was transmitted to them from the previous generations of Sages and that ultimately is part of the Sinai Revelation. However, the Sages are also authorized to interpret the passages of the Torah and discover meanings and messages that are not part of the Sinai tradition. Of course, these interpretations must be completely consistent with that tradition and must be derived by the Sages through means that are recognized by halachah as valid.

Second, the Sages have the authority to create new laws and to establish practices and customs. All of the enactments must be consistent with the corpus of revealed Torah Law. They must reinforce the Torah’s mitzvot or safeguard their violation.

Maimonides explains that the authority of the Sages to act legislatively is entrusted to the highest court of the nation – this is the court of seventy-one Sages. For most of its history, this court of ultimate authority was lodged in the Granit Chamber adjacent to the Bait HaMikdash – the Sacred Temple.[6]

4. The legislative authority of the shevet-court
Now, the significance of Nachmanides’ comment can be appreciated. According to Maimonides, legislative authority rests solely in the nation’s highest court. Nachmanides disputes this conclusion. He argues that according to the Sages, the shevet-court also has some level of legislative authority over the shevet. It is likely that Nachmanides would concur with Maimonides’ assertion that the only the highest court has the authority to interpret the Torah. However, Nachmanides does maintain that the shevet-court is empowered to create laws for the shevet. It may create safeguards, and establish practices and customs that are specific to the shevet and enforceable upon the shevet.[7]

Tosefot and Nachmanides are providing very different interpretations of the Sages comments. According to Tosefot, there is no institution of a shevet-court. All courts are based in and have jurisdiction limited to the city in which they are located. However, Tosefot maintain that the residents of a city that straddles the border between two shevatim is required to have a court for the residents from each shevet. It is difficult to identify the foundation of this requirement. Perhaps, it is the Torah equivalent of the right to a “jury of one’s peers”. In the context of the Torah, this means that the residents of each of the city’s shevatim are entitled to have access to a court whose members are from the resident’s shevet.

Nachmanides’ posits that there is an institution of a shevet-court and among its roles, this court is a legislator for the shevet. In this position, Nachmanides argues with Maimonides who maintains that legislative authority resides solely with the highest court of seventy-one judges in Yerushalayim. The dispute between Maimonides and Nachmanides requires consideration.

5. The importance of uniformity of practice and observance
According to Maimonides, the Torah must be observed with uniformity. He rejects the proposition that the various shevatim can develop their own practices, safeguards, and enactments. There is a single Torah and all of Bnai Yisrael must observe it in the same manner. It is possible that Maimonides’ position is based upon the importance of reinforcing the authenticity of the Torah as a revealed law. Uniform observance and practice communicates the message that the Torah is a revealed and therefore, objective truth. Multiple modes of observance and practice communicate the opposite impression. It suggests that the Torah is a subjective perspective and that its “truths” are open to the interpretation of the individual. However, Maimonides also suggests in his Mishne Torah – his code of law – that uniform observance within a community encourages unity and diverse modes of observance are divisive.[8] Possibly, this is also his basis for rejection of the institution of a shevet-court with legislative authority.

6. The importance of accommodating diversity
These are compelling reasons to reject the institution of a shevet-court. How would Nachmanides respond to Maimonides’ concerns with such an institution?

It is crucial to note that Nachmanides does not completely reject Maimonides’ concerns. He does not suggest that every court has legislative authority. He reserves this authority for only the highest court and the shevet-courts. According to his opinion, this authority is not conferred upon the city courts. This reveals that Nachmanides agrees that diversity of practice and observance cannot be permitted to proliferate without restriction. However, he does apparently maintain that the social and geographic uniqueness of each shevet does require some accommodation. Therefore, the shevet-court can legislate for the shevet.

Nachmanides’ position is reflected by the comments of Rav Ephraim Greenblatt. Rav Greenblatt was a student of Rav Moshe Feinstein Zt”l. After Rav Greenblatt accepted a position in Memphis, TN he continued to refer questions brought to him by members of the Memphis community to his teacher Rav Feinstein. Rav Feinstein was reluctant to respond to these questions and urged Rav Greenblatt to resolve the questions. Rav Greenblatt responded that it was inappropriate for him to respond to inquiries that could be better answered by his teacher. Rav Greenblat recalled that eventually Rav Feinstein simply refused to respond to the inquiries and insisted that Rav Greenblatt accept responsibility for responding. Rav Feinstein explained his position with the comment, “The Torah is not the same in Memphis as it is in the Lower East Side of Manhattan”. He went on to provide specific examples of responses that would be perfectly appropriate to inquiries posed by a member of his local community. He then demonstrated the folly of issuing this reply to the very same inquiry posed by a member of the Memphis community. Rav Greenblatt explained that Rav Feinstein understood that the circumstances of communities vary and these circumstances must be taken into account by the local rabbinic authority. Different stringencies or leniencies are appropriate for different communities.[9]

7. Uniformity and accommodating diversity – striking a balance
In short, according to Nachmanides, some accommodation of the shevet-communities’ differing circumstances is appropriate. However, the proliferation of varying modes of observance and practice is to be discouraged. It is also important to note that both Nachmanides’ and Rav Greenblatt’s comments communicate a shared perspective regarding the circumstances under which diversity is to be accommodated. Objective circumstances in the community should be considered. However, their views do not suggest that practice and observance should be molded or adapted to the subjective and personal perspectives of the community or an individual member. In other words, individuals have a multitude of visions of the religious/spiritual experience. A practice or custom that resonates with one individual may seem meaningless to another. However, this difference in personal perspective does not seem to be valid grounds for establishing, within a community, new practices and customs.

In summary, according to Maimonides, practice and observance should be uniform. This uniformity reinforces the objective truth of the Torah. It also encourages unity. Diversity of practices – especially within a single community leads to division and disunity.

Nachmanides argues that diversity should be accommodated. However, uniformity of practice and the accommodation of diversity must coexist. Uniformity cannot be disregarded in order to accommodate diversity. Instead, diversity should be accommodated only when specific criteria are met. [10]

1. Mesechet Sanhedrin 16b.
2. Rabbaynu Moshe ben Nachman (Ramban / Nachmanides), Commentary on Sefer Devarim 16:18.
3. This issue is debated by the Talmud. See Mesechet Sanhedrin 111b.
4. Tosefot, Mesechet Sanhedrin 16b.
5. Tosefot’s comments are not completely clear. They do not pose a question. They merely observe that a single city may have residents from two shevatim and require a court for each shevet. Aruch LeNer assumes that mere residence does not entitle the members of a shevet to their own court. Therefore, he interprets Tosefot to mean that the city straddles a border between the territories of two shevatim. Aruch LeNer notes that Tosefot’s explanation of the Sages’ interpretation seems to support the opinion that a city can be divided between two shevatim. However, Rav Herschel Schachter suggests that this is not necessarily correct. The dispute regarding the dividing of a city between two shevatim should be understood as related to the initial drawing of borders. In other words, the dispute is over whether, when drawing the borders, cities were split between shevatim. Tosefot’s position is that after the borders were drawn a city could become split between two shevatim as a consequence of the expansion of its borders. http://www.yutorah.org/lectures/lecture.cfm/727545/Rabbi_Hershel_Schachter/Shiur_on_Parshas_Shoftim_
6. Rabbaynu Moshe ben Maimon (Rambam / Maimonides) Mishne Torah, Hilchot Mamrim 1:1-2.
7. Rabbaynu Moshe ben Nachman (Ramban / Nachmanides), Commentary on Sefer Devarim 16:18.
8. Rabbaynu Moshe ben Maimon (Rambam / Maimonides) Mishne Torah, Hilchot Avodat Kochavim 12:14.
9. Conversation between author and Rav Greenblatt.
10.Both accommodating diversity and preserving uniformity and unity are important. However, the two considerations are in conflict. The greater the uniformity the less room there is for accommodation of diversity. As diversity is accommodated, uniformity and unity suffer. A balance must be achieved rather than dismissing one value for the sake of the other. This presentation is intended to fill a void. The little discussion of which the author is aware on this issue is not based upon Torah sources and can only be viewed as the personal opinion of the presenter. In order for a discussion on this or any issue to be viewed as based on Torah, it must be based upon and analyze actual source material within our rich Torah tradition. This presentation represents the author’s perspective based upon such sources. It is likely that there are alternative perspectives. However, whether an alternative perspective should be viewed as a Torah perspective depends upon whether it is based upon authentic sources.