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S.A.L.T. - Tuesday

Rav David Silverberg

          The disturbing story of Dina's rape by Shekhem has occupied many commentators throughout the ages.  Among the issues raised by this incident is a halakhic one: did the entire city of Shekhem deserve annihilation and, if so, on what grounds?

         The Rambam (Hilkhot Melakhim 9:14) writes that the entire population of Shekhem deserved capital punishment for having violated one of the seven Noachide laws: "dinim" - establishing a judicial system.  The government of Shekhem had no judicial system that could try and reprimand Shekhem for his heinous crime.  Given the principle known as, "azharatam zo hi mitatam" - that gentiles are liable for capital punishment for willful violation of any of the seven Noachide laws (when they live under Jewish rule during a period when Jewish courts had the power to administer capital punishment), Yaakov's sons sentenced the population of Shekhem to death for their neglect of this important law.

         The Ramban, in his commentary on our parasha, sharply disagrees. He claims that according to the Rambam's approach, Yaakov had no reason to condemn his sons' violence; it was legally mandated.  Furthermore, the Ramban notes that the provision calling for capital punishment for a gentile's violation of one of the Noachide laws applies only to active transgressions, sins involving actual misconduct.  They are not to be punished for inappropriate inaction, refraining from fulfilling a given obligation.  Therefore, the residents of Shekhem did not deserve capital punishment for their failure to bring Shekhem to trial.

         One answer suggested for the first challenge against the Rambam distinguishes between the punishment deserved by the population of Shekhem and the manner in which Yaakov's sons administered it.  Namely, Yaakov accused his sons of the same crime for which they killed the people of Shekhem: lawlessness.  Rather than themselves conducting formal, legal proceedings to charge and sentence the population of Shekhem, Yaakov's sons recklessly stormed the city and killed its inhabitants.  We may thus uphold the Rambam's explanation for their having deserved punishment while understanding full well Yaakov's objection to their conduct. 

         As for the Ramban's second challenge, that gentiles are not culpable for passive violations, the Chatam Sofer (Shut, vol. 6, 14) offers an innovative, albeit questionable, resolution for the Rambam. He draws a subtle distinction between the formal, legal status of "chayav mita"  - deserving of the death penalty, and the court's empowerment to carry out the sentence.  The Chatam Sofer argues that violation through inaction does, in fact, afford the gentile the official status of "chayav mita."  The Jewish court, however, cannot administer the punishment.  The Rambam agrees, suggests the Chatam Sofer, that Yaakov's sons acted improperly by killing the people of Shekhem.  All he meant is that they did not violate the formal prohibition of murder.  Since the city's population had acquired the formal status of one sentenced to capital punishment, their violence did not, strictly speaking, constitute a violation of the prohibition of murder.

         Incidentally, this approach clearly resolves the first question, as well.

         (Many later Acharonim have disputed the Chatam Sofer's analysis. See Yehuda Nachshoni, Haggot Be-parshiyot Ha-Torah, vol. 1, pp. 138-140.)



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