Parshat Shoftim: Laws of the Courts

“The hand of the witness shall be against his first to put him to death, and only afterwards the hand of the other people. And you should destroy the evil from your midst.” (Devarim 17:7)

The Torah is not only a code of ritual law. It also includes an elaborate system of civil ordinances. The various laws are interpreted, applied, and enforced by a system of courts and officers. Our parasha discusses the appointment of judges in the land of Israel. The parasha describes some of the guidelines followed by the courts. For example, the courts cannot execute a person based on the testimony of a single witness. The Torah requires a minimum of two witnesses in such cases.

Our parasha also briefly describes one of the four basic forms of execution. This is Sekilah – stoning. Our parasha does not describe all aspects of this execution. Our Sages provide the essential details. The person to be stoned is pushed from a height. If the convicted person dies from the fall, the execution is completed. If the condemned survives, then a large stone is pushed from the height upon the person. If this, too, is survived, the person is stoned until dead.[1]

Our pasuk explains that that the witnesses must participate in the execution. Our Sages explain the details of this requirement. One of the witnesses pushes the condemned from the height. The second witness is responsible for pushing the large stone from the height upon the convicted person.[2]

It is interesting that Maimonides does not count this requirement as a mitzvah. In other words, there is no separate mitzvah that requires witnesses to participate in the execution of the condemned. Instead, Maimonides indicates that this requirement is part of the mitzvah of performing executions. The courts are charged with the responsibility of carrying out executions. The Torah specifies the means of execution in detail. Each form of execution is embodied in a specific mitzvah that enjoins and authorizes the courts. Within this mitzvah is the requirement that the witnesses participate in the execution.[3]

Why must witnesses assume a leadership role in the execution of the condemned? Maimonides discusses this issue in his Commentary on the Mishne. He explains that the witnesses have first-hand knowledge of the crime. The court bases its judgment solely upon the testimony of these witnesses. The judges have no direct knowledge of the crime. They have second-hand knowledge on the basis of the testimony. Therefore, the witnesses’ knowledge of the crime is always superior to the knowledge of the judges. It is reasonable that those parties that are the primary source of all knowledge of the crime perform the execution. These are the witnesses.[4]

Gershonides offers an alternative explanation. He explains that witnesses must be aware of the impact of their testimony. This awareness encourages the witnesses to carefully consider the evidence they will provide. This is especially true in the case of a sin punishable by death. We do not want the witnesses to view their testimony lightly. A life is at stake. How can the Torah help assure that the witnesses fully appreciate the significance of their testimony? The witnesses are made responsible for the execution. The witnesses must be sure of their testimony to the extent that they are prepared to personally execute the person that will be condemned.[5]

There is a significant difference between these interpretations. As explained above, Maimonides interprets the requirement for the witnesses to participate in the execution as a detail within the mitzvah for the courts to carryout executions. His suggestion regarding the rational for the requirement is consistent with this interpretation. The most appropriate person should perform the execution. Who is most appropriate? The witnesses – they have first-hand knowledge of the crime.

Gershonides seems to disagree with Maimonides’ basic assumption. He does not regard this requirement as an aspect of the mitzvah to perform executions. In other words, the participation of the witnesses is not required in order to render the execution more fitting or appropriate. Instead, Gershonides regards this requirement as an element of the laws of testimony. The testimony in a case that could result in the death penalty must meet the highest standard of credibility. The Torah creates a test of this credibility. The witness must offer the testimony with the knowledge that, if it is accepted, he will personally carry out the execution.

“According to the Torah they shall teach you and the judgment they shall tell you, you shall act. You shall not deviate from the thing that they tell you to the right or left.” (Devarim 17:11)

The Torah creates a system of courts for the land of Israel. These courts extend to all the cities and decide all issues of law. The highest court of the land is the Great Sanhedrin. This court is composed of seventy-one judges. These judges are the greatest Sages of the nation. The court resides in the Bait HaMikdash.

What is the role of this highest court? Our passage deals with this issue. The pasuk explains that the Great Sanhedrin interprets the Torah. This court decides the meaning of the passages of the Torah and halacha derived from these passages. The Great Sanhedrin has additional responsibilities. It enacts decrees. It establishes customs.[6]

In short, the Great Sanhedrin combines two related roles. It interprets the Torah and legislates new laws and customs. The court is primarily involved in the development of law. The court does not resolve legal disputes between parties, or judge a person accused of violating the Torah. Only if such a case involves some novel legal issue, might it be brought before the Great Sanhedrin.

In our parasha, there is an exception to this description of the Great Sanhedrin’s role. In order to understand this exception, we must return to last week’s parasha.

Last week’s parasha – Parshat Re’eh – describes the law of the Ir HaNidachat. An Ir HaNidachat is a city in the land of Israel whose inhabitants have adopted idolatry. If a city is judged to be an Ir HaNidachat, its residents are executed and it is entirely destroyed.

Our parasha teaches that only the Great Sanhedrin can judge a city suspected as an Ir HaNidachat. This restriction is not explicitly stated. It is implied. Our parasha describes the execution of Sekilah – stoning. In this description, the Torah explains that the court that resides at the gate of the city performs the stoning. This statement authorizes the court of the city to execute an individual sinner. However, the pasuk implies that the authority of a city court is limited. This court executes individuals. This court may not judge or execute the punishment of an entire city. This responsibility resides with the Great Sanhedrin alone. Only the highest court can judge and punish an Ir HaNidachat.[7]

Although our parasha provides a source for the Great Sanhedrin’s role in judging an Ir HaNidachat, it provides no reason for this law. As a result the role ascribed to the Great Sanhedrin is enigmatic. Primarily, the court deals with defining and enacting the law. However, there is an odd exception. In the case of an Ir HaNidachat, the court actually involves itself in judging a specific case. How can the court’s involvement with the Ir HaNidachat be reconciled with the court’s predominant role as a body that defines and enacts laws?

In order to answer this question, we must better understand the role of the Great Sanhedrin. It seems that this court is essentially responsible for areas that relate to the entire nation. It decides issues of national significance. The Great Sanhedrin interprets the Torah and creates laws and establishes customs. All of these functions are consistent with the court’s mandate to provide national leadership. The entire nation is responsible to observe the Torah and the laws and customs established by this court. These activities are of national significance.

In contrast, individual disputes are not of national significance. If Reuven accuses Shimon of stealing from him, the Great Sanhedrin does not judge the case. The nation – as a whole – will not be affected by the outcome of the case. Therefore, the Great Sanhedrin does not judge individual legal disputes.

However, it is conceivable that a specific case can be relevant to the entire nation. Should such a case arise, it is fitting that the Great Sanhedrin judges it. The Ir HaNidachat is such a case. This case is relevant to the entire nation. In the instance of an Ir HaNidachat, a city is judged. If the inhabitants are found guilty, the entire city will be destroyed. The city is an element of the land of Israel. In other words, a piece of the land of Israel will be lost. The land belongs to the entire nation. Therefore, this loss is relevant to the entire nation. Only the Great Sanhedrin – that represents the entire nation – can judge this case.

“Hashem your G-d will appoint for you a prophet, like me, from among you. You should obey him.” (Devarim 18:15)

This pasuk introduces the Torah’s discussion of prophets. The Torah explains that the Almighty will appoint prophets after Moshe. These prophets will provide leadership and guidance. We are commanded to obey these prophets.

This passage has a second meaning. This message is explained by Rav Yitzchak Zev Soloveitchik Zt”l. Rav Soloveitchik was brought the manuscript of a sefer – a book – to review. The author sought Rav Soloveitchik’s feedback on his work. Rav Soloveitchik reviewed the manuscript. After this review, he told the author that one specific statement should be removed from the text.

The manuscript contained a comment attributed to Rav Soloveitchik’s father – Rav Chaim Zt’l. Rav Chaim was quoted as praising the scholarship of Rav Diskin. In the quote, Rav Chaim states that Rav Diskin’s scholarship was superlative. The Torah’s injunction, “You should obey him” could be applied to Rav Diskin.

Rav Soloveitchik asserted that this statement simply was not true. This command cannot be applied to Rav Diskin or any scholar. This injunction is derived from our passage. We are commanded to obey the prophet. Rav Soloveitchik explained that the passage has two meanings. First, we must obey the prophet. Second, this level of obedience is not given to any other person. Only the prophet has the right to demand complete obedience. The passage cannot be applied to Rav Diskin. This is not because of any inadequacy in Rav Diskin. This is because the passage stipulates that only a proven prophet can demand this obedience. Rav Diskin was a great scholar. However, we no longer have true prophets.[8]

Rav Soloveitchik’s comments require some interpretation. We are required to be obedient towards Torah scholars. These scholars, through their courts, have the right to interpret the law. Our scholars may institute new laws. We are commanded to obey their decisions. How does this obedience differ from the obedience reserved for the prophet?

Perhaps, Rav Soloveitchik was alluding to a basic difference. The prophet’s words are regarded as infallible. Infallibility is reserved exclusively for the prophet. The Torah scholar is not regarded as infallible. We do not obey the scholar’s decisions because we assume that he has an unerring knowledge of the truth. He is fallible. We obey our scholars because the Torah commanded us to be absolutely obedient to their decisions.

We can now more fully understand Rav Soloveitchik’s objection. Rav Diskin was a great scholar. His opinions deserve careful consideration. His outstanding wisdom and knowledge must be respected. In many instances, his legal decision deserves absolute obedience. However, we cannot attribute infallibility to him. This is level of regard is exclusively reserved for the prophet.

[1] Mesechet Sanhedrin 45a.

[2] Mesechet Sanhedrin 45a.

[3] Rabbaynu Moshe ben Maimon (Rambam / Maimonides) Mishne Torah, Hilchot Sanhedrin, 15:1.

[4] Rabbaynu Moshe ben Maimon (Rambam / Maimonides) Commentary on the Mishne, Mesechet Sanhedrin 7:3.

[5] Rabbaynu Levi ben Gershon (Ralbag / Gershonides), Commentary on the Torah, p 223b.

[6] Rabbaynu Moshe ben Maimon (Rambam / Maimonides) Mishne Torah, Hilchot Mamrim 1:1.

[7] Rabbaynu Moshe ben Maimon (Rambam / Maimonides) Mishne Torah, Hilchot Avodat Kochavim 4:3.

[8] Rav Y. Hershkowitz, Torat Chaim, pp. 169-171.