Vol. 21   No. 48

Parshas Shoftim

"Through two or three witnesses shall the guilty person be put to death. He shall not die by the mouth of one witness! The witnesses shall be the first to kill him and all the people afterwards, and you shall destroy the evil from your midst" (17:7/8).

The previous Pasuk reads " … you have been told and you heard, you made careful enquiries and it turned out to be true, the thing (that you heard) is correct". As far as you are concerned, the Oznayim la'Torah explains, the defendant is as good as dead. Yet even if we add to the above the testimony of one witness who was at the scene, there is nothing that Beis-Din can do, unless there are two Kasher witnesses. And we have a prime example of this in the Gemara in Sanhedrin (Daf 37), where Shimon ben Shetach confronted a man exiting a cave, his sword dripping with the blood of the man who was lying dead inside the cave and proclaimed in frustration that he was helpless to act.

It is a Gazeiras ha'Kasuv (a Torah decree) that two witnesses (together with a warning) is the only proof that is acceptable to render a person punishable at the hand of Beis-Din (of twenty-three in a case involving the death penalty).

Should the witnesses be unable to carry out the death-sentence - if for example, the sentenced man escaped - then nobody else is permitted to do so, since the Torah's instructions must be upheld to the letter, and the Torah has conferred this Mitzvah first and foremost, upon the witnesses.

If however, the witnesses had no hands before they testified, then anyone is permitted to carry out the death sentence. The sole exception to the former ruling, according to the Rambam in Hilchos Sanhedrin, is in a murder case, where it is a Mitzvah to take the law into one's own hands, and put the escaped murderer to death, since he poses a threat to the community at large.

Ibid.

The custom among democratic nations is to hire an executioner to carry out the death-sentence. The sort of person to go for such a 'profession', says the Oznayim la'Torah, are generally hard-hearted, cruel men. Even then, candidates need to be offered an unusually high salary as an incentive to take on a position that is extremely unpopular. In fact, he explains, due to the stigma that it creates, incumbents tend to hide their identities from the public and sometimes even from their own families.

And this is because people tend to find putting someone to death abhorrent, often because psychologically, they empathize with the murderer - such as where a man murders someone who committed adultery with his wife. Indeed, the only reason that some countries still uphold the death-sentence is to protect the public, because a murderer who killed today, is liable to kill again tomorrow.

That being the case, asks the author, why does the Torah 'honour' the witnesses with the task of putting the sentenced man to death?

And he attributes this to the Torah's viewpoint with regard to the Mitzvah of practicing the death-sentence, albeit a rare occurrence that is expected to take place not more than once every seven years.

Someone who performs a sin for which he is Chayav Miysah, is considered evil, not because he is a threat to society (in Jewish law, one does not need to kill to earn the death-sentence), but because a sin is inherently evil. Consequently, when he performs a sin of such a magnitude, he creates a bad impression upon the witnesses, whose warning he ignored. And the evil that he perpetrated, the ability to openly defy G-d's orders penetrated their hearts. That evil must be removed, and the only way to remove it is by actively ridding the world of the perpetrators.

And this is what the Torah is hinting at when it concludes with the words "And you shall remove the evil from your midst!"

"Judges and policemen you shall appoint for yourselves (l'cho) …" (16:18).

The word "l'cho" appears superfluous, comments the Oznayim la'Torah. Based on the assumption that the Pasuk is referring to those who appoint the judges, he explains it with the story of a famous city in Europe which appointed a well-known Rav to lead them. As was the custom at that time, it was the community heads together with the Parnes (the Rosh ha'Kahal) who appointed the Rav.

A few days after his appointment, the Rav was approached by a poor man, who wanted to call the Parnes to a Din Torah.

The Rav sent the Shamash to invite the Parnes to a hearing in Beis-Din. Much to the Rav's amazement, the Parnes refused to come. When he refused a second time, the Rav sent him a third invitation, and in keeping with the Din, he added that should he refuse to turn up in Beis-Din at the given time, he would be placed in Cherem.

At that point, the Parnes came to the Rav accompanied by the other community leaders and wished him 'Mazel Tov!' "Today," they said, "you have truly become the Rav of our community. Today, we saw that you favour nobody, not even the Rosh ha'Kahal who appointed you Rav!"

Only then did the Rav realize that the Din Torah over which he had been asked to preside was nothing other than a test to prove his integrity, a test that he passed with flying colours.

And that, says the Oznayim la'Torah, explains the word "l'cho" under discussion. "Appoint judges …", the Torah is telling us, "for yourselves" - one should appoint judges who are even prepared to judge the ones who appointed them, should the need arise.

" … for bribery blinds the eyes of the righteous" (16:19).

Not only does bribery blind the judge's 'seichel', causing him to think that the innocent person is guilty, and the guilty person innocent, it actually causes him to go blind, as the last Mishnah in Pe'ah teaches us. This, the Oznayim la'Torah explains, is Midah ke'neged Midah, in that the judge's body follows his mind.

The Medrash learns this concept from Yitzchak Avinu, who became blind in his old age because he accepted bribes from Eisav (in the form of the venison that his son constantly served him). Indeed, Chazal tell us, Yitzchak requested blindness, to atone for having accepted Eisav's bribery, which caused him to want (and to almost succeed) to give the wicked Eisav the B'rachos.

And so the Medrash concludes, that if Yitzchak became blind for accepting (legitimate) gifts from someone who was obligated to honor him, how much more so a judge who accepts (illegitimate) gifts from someone who is not!

"Do not erect a Matzeivah (a Mizbei'ach of one stone) which G-d hates" (16:22).

Even though He loved it in the days of the Avos, he now hates it, because the idolaters have turned it into a symbol of their idolatrous practices.

Since the Torah has forbidden the use of Matzeivos, asks the Oznayim la'Torah, how could Moshe Rabeinu set up twelve Matzeivos on Har Sinai (one for each tribe)?

The question is easily answered according to the commentaries that that Parshah took place before the Torah was actually given (See Rashi, Mishpatim 24:1), since the prohibition was only issued after Matan Torah.

But according to those commentaries who maintain that it occurred after the Torah was given, Moshe's actions beg an explanation.

Based on the seemingly superfluous phrase there "for the twelve tribes of Yisrael", the author answers that the Matzeivos in question were not built to sacrifice on them, but rather as a sign that all twelve tribes entered the covenant with G-d, and this is in fact, how the Rashbam explains it. The Ha'amek Davar disagrees with the Rashbam. According to him, whereas Moshe brought sacrifices on the Mizbei'ach mentioned the individuals sacrificed on the Matzeivos. But then, the Ha'amek Davar agrees with Rashi, that Moshe set up the Matzeivos before Matan Torah, in which case there is no problem, as we explained.

"Do not sacrifice to Hashem … an ox or a lamb that has a blemish, anything bad (kol dovor ra) … " (17:1).

Based on the well-known principle, that the word "dovor" refers to speech", Rashi explains "kol dovor ra" as a warning not to render a sacrifice pigul (which briefly refes to the prohibition of bringing the Korban with the intention of burning what needs to be burned or eating what needs to be eaten, after its allotted time).

In the context of the Pasuk, the Oznayim la'Torah suggests, the Pasuk may well be a warning not to sacrifice a sick animal, even though it does not possess a blemish.

The Torah does not specifically forbid it. Chazal however, rule that it is forbibben, based on the Pasuk in the first chapter of Mal'achi "And if you bring a lame or a sick animal, is it not an evil thing to do? Bring it to your princes?

The Navi is teaching us that something that one would not dare to bring to a human king, one should certainly not bring before the King of Kings either.

And he concludes with a Sifri, which states that "kol dovor ra" refers to - an animal that is sick, old or sweaty.

"And he goes and worships other gods … or the sun and moon or the hosts of the heaven, which I did not command" (17:3).

Rashi adds one short comment to the end of the sentence - 'to worship them".

Interestingly, this is precisely the word that the seventy elders added to the Pasuk in the seventy Sifrei Torah that Ptolomyl King of Egypt ordered them to write in the episode of the Septuagunt.

Otherwise, Rashi explains, Ptolemy would have (mis)interpreted the Pasuk to mean that they came into existence, even though G-d did not order them to, lending credence to his understanding that they were gods in their own right.

What then, asks the Oznayim la'Torah asks, is the Pasuk coming to tell us? If it is that G-d commanded us not to worship the celestial bodies, then the Torah ought to have written 'which G-d commanded us not to worship'. And if it is saying that He did command us to worship them - that would seem obvious and hardly needs to be said?

And he answers the question with the Rambam, who attributes the early idolaters' error to their belief that after creating them, G-d appointed them to run the world in His place, and it is in their capacity as His representatives, that we are obligated to pay them homage.

It is true tat a human king, who cannot be everywhere at the same time, appoints ministers to represent him, and all his subjects are expected to acknowledge their presence whenever they encounter them. But G-d of course, who transcends time and space, is perfectly capable of controlling the entire world simultaneously, and does not need representatives to stand in for him. And that is why the Torah speaks here about the prohibition of 'worshipping and bowing down to the celestial bodies which G-d did not command.'