SALT | Shoftim 5784 - 2024

MOTZAEI 

Parashat Shoftim, the parasha dealing with Jewish leadership, presents the laws relevant to the king of Benei Yisrael.  Besides imposing numerous restrictions on the king, the Torah also requires him to write a Sefer Torah and keep it with him constantly (17:18-19).  Rashi, citing the Gemara in Masekhet Sanhedrin (21b), notes that the Torah formulates this obligation by using the term "mishneh Torah," literally, "the double Torah."  Chazal interpret this as referring to two Sifrei Torah that the king is to write. The first remains in his treasury, whereas the other accompanies the king wherever he goes.  The question addressed by many later writers is, what purpose is served by the first Sefer Torah, which remains in the king's warehouse together with the royal treasury?  Once he already has a Sefer Torah that he keeps with him and studies whenever he can, why must he write an additional Sefer simply to put in storage? We must, it would seem, conclude that this second Sefer serves a symbolic, rather than purely practical, function.

         One explanation might relate to the familiar conflict between ideals and reality.  At different stages of life, people embark on various journeys and begin various enterprises with a grand vision, idealistic goals and expectations, and lofty aspirations.  A person enters marriage, a career, and other of life's turning points with the highest ideals and plans in mind.  Generally, however, the daily challenges involved in that particular endeavor, the wave of small, practical matters that demand attention in the pursuit of these lofty aspirations, engulfs the individual to the point where the idealism begins to fade.  Practical concerns often threaten to block the ideals from one's vision.

         This dilemma perhaps underlies the two Sifrei Torah the king is called upon to write. Invariably, the Sefer Torah that he carries with him will suffer from the wear-and-tear of political life. Though the God-fearing king executes all his responsibilities according to the strictures of the Torah, his encounter with the realities of public service will nevertheless leave its mark on the Torah he carries with him, it will not be nearly as fresh and perfect as the Sefer Torah stored away in his treasury.  The message of the second Sefer Torah is the preservation of the lofty ideals even while addressing the small, cumbersome, practical concerns necessary for the realization of those ideals.  Even though we bring with us a Sefer Torah whenever we deal with these concerns, we mustn't forget about the untarnished Sefer Torah back in the warehouse, the fundamental ideals and principles towards which all our smaller endeavors must be geared. 

(Based on a devar Torah by Rabbi Yaacov Haber of Monsey, NY) 

SUNDAY 

         Among the many mitzvot found in Parashat Shoftim is the prohibition of "hasagat gevul" – moving a landmark into the property of another in order to seize his land (19:14). Although today we usually employ the term "hasagat gevul" in the context of the prohibition against entrepreneurial enterprises that threaten a preexisting business, its primary meaning is its literal meaning – stealing land by moving a landmark.  As the Sifrei comments, there seems, at first glance, to be no reason for the Torah to issue such a prohibition.  The prohibition against theft has already been well established several times earlier in the Chumash.  Why should moving a landmark be any different?  The Sifrei therefore explains that the Torah issued this prohibition so that one who commits this crime is in violation of two Torah prohibitions – theft, and hasagat gevul.  The Sifrei adds, however, that this unique prohibition of hasagat gevul applies only in Eretz Yisrael.  Elsewhere, one who shifts a landmark onto his neighbor's property violates only the standard prohibition of theft, and not the additional violation of hasagat gevul.

         What is the meaning behind this second, additional prohibition?  If the Torah already forbade theft of any kind, why does it add a unique law forbidding seizing the territory of another in Eretz Yisrael?

         Rav Shimshon Refael Hirsch explains by closely examining the Torah's formulation of this prohibition: "You shall not move your countryman's landmarks, set up by previous generations, in the property that will be allotted to you in the land that the Lord your God is giving you to possess."  Rav Hirsch notes the peculiarity of the expression, "asher gavelu rishonim" ("set up by previous generations").  What difference does it make if the boundary one shifts was set up a day earlier, a year earlier, a generation earlier, or many generations earlier?  Why does the Torah issue this prohibition specifically with regard to a boundary "set up by previous generations"?  Additionally, the verse clearly emphasizes the process of "nachala" – the initial distribution and allotment of the territory of Eretz Yisrael among the twelve tribes and their respective families after the conquest.  Rav Hirsch thus concludes that this prohibition, unlike the prohibition of theft in general, relates not to the issue of respect for the property of others, but rather to the proper perspective on Benei Yisrael's hold on the land.  The Torah refers here to one who moves the demarcation lines established in the time of Yehoshua, a person who tampers with the initial distribution of territory which was conducted by divine instruction.  Besides stealing from another person, the one who commits this crime denies the exclusive divine authority over the distribution of Eretz Yisrael.  He assumes the right to make his own personal decisions as to who receives which portion of the territory of the Promised Land. 

         It turns out, then, that the prohibition of hasagat gevul has nothing at all to do with theft. Obviously, one who seizes the land of another has, by definition, violated the Torah prohibition against theft. But in Eretz Yisrael, he has committed an additional, unrelated offense – denying God's authority over the Land of Israel, undermining the basic precept that we live in the land only with the permission and by the grace of the Almighty. 

MONDAY 

         Among the topics covered in Parashat Shoftim is "edim zomemim" – the law concerning witnesses who falsely testify against another (19:16-21).  Generally, according to halakha, two witnesses – assuming they have been thoroughly cross-examined and their validity confirmed – are believed in virtually all matters of law.  If two different witnesses come and contradict the testimony of the first set, then the court's hands are tied; since two witnesses are believed, the court must believe both conflicting testimonies, and the judges thus have no choice but to adjourn the case.  If, however, the second group of witnesses challenge not the content of the first testimony, but rather the first witnesses' qualifications, namely, they claim to have seen the first set of witnesses somewhere else at the time of the alleged event – the accusation is believed.  The Torah orders the court to punish the first set of witnesses for having falsely testified by doing to them precisely what they had attempted to have done to the alleged culprit.  If they wrongly accused him of a capital offense, then they are executed.  If they falsely testified to an owed debt, then they must pay the sum the victimized litigant would have had to pay if the false testimony had been accepted.

         The mishna in Masekhet Makkot (5b) imposes a particularly surprising and counterintuitive condition onto this halakha.  The false witnesses are punished only if their attempt fails.  If the court had acted upon their testimony and punished the defendant or extracted money from the litigant before the second set of witnesses brought their accusation against them, then the law of eidim zomemim does not apply, and the perjurers receive no punishment.

         Intuitively, most of us would have undoubtedly taken the opposite approach.  Shouldn't the Torah exact harsher punishment against successful criminals than it does against attempted criminals?  Why do we punish false witnesses if their plot is foiled but excuse them if they succeed?

         Among the most famous answers suggested to resolve this difficulty is that of the Ramban, in his commentary to these verses.  The Ramban claims that if the court acted upon the perjurers' testimony before discovering its falsehood, then evidently the Almighty, the Supreme Judge of the world, had determined the defendant's guilt.  Although the Beit-Din had acted on the basis of false testimony, the success of the perjurers' plot proves the defendant's guilt – either for this crime or another.  Therefore, we cannot punish the false witnesses for the fate suffered by their victim – since he evidently deserved the sentence issued against him by the court.

         Several objections may be raised against this approach taken by the Ramban.  First and foremost, why, then, do we not exempt all criminals from punishment on the basis of this argument?  Once we assume that all murder victims, for example, were rightfully punished by the Almighty, why not allow all murderers to go free?

         The Ramban appears to respond to this question in his presentation of his approach.  Amidst his discussion he emphasizes the fact that "the judgment belongs to God" (based on Devarim 1:17), and that the Almighty "sits in judgment together with the judges" (based on Tehillim 82:1). Meaning, when judges carry out their judicial responsibilities with honesty and competence, then God ensures that their conclusions are correct; He will not allow them to issue an erroneous ruling.  Even if they reach a decision based on misinformation, God will see to it that the end result reflects the ultimate truth.  Therefore, specifically in a judicial context can we exempt a criminal from punishment on the basis of the Ramban's reasoning.  Since God assists the Beit-Din in their decision-making, their final rulings are deemed correct, and we therefore cannot punish the perjurers after Beit-Din has acted upon their false testimony.

         Rabbenu Bechayei, however, raises another objection on the Ramban's approach.  Even if we accept his basic theory, that the court's actions – even those that result from incorrect data – prove the defendant's guilt, why should we excuse the perjurers on this basis?  As far as they knew, they falsely testified against an innocent man; they had no access to the proceedings in the Heavenly Tribunal sentencing the victim. Why should they escape punishment?

         The answer seems to be alluded to by the Sefer Ha-chinukh (501), in his discussion of this topic. The Chinukh follows the Ramban's approach to this halakha, and adds a comparison between this situation and the murder of a tereifa (terminally ill patient who will undoubtedly die in the coming months).  One who murders a tereifa is not executed for his crime, since he killed a person who in any event would soon die.  Similarly, the Chinukh claims, the false witnesses are considered to have attempted to kill a person who had already been sentenced to death by the heavenly court, and they therefore are not subject to capital punishment.

         The Chinukh's approach, however, can apply only to cases involving alleged capital crimes, when the false testimony accused the defendant of a crime for which he would be executed by the court.  If, however, the false information would have yielded a less severe punishment, or simply the payment of a sum of money, then clearly we cannot invoke the tereifa model in explaining the halakha exempting the witnesses if they are caught only after the court acted upon their testimony.  It is very likely that the Chinukh, who generally follows the Rambam's rulings, presented his approach on the assumption of a controversial position of the Rambam (Hilkhot Edut 20:2), that only in capital cases do we exempt the false witnesses from punishment if their plot is successful.  If they intended for the defendant to incur some other punishment, then they receive that same punishment even if the court had already acted upon their testimony.  Naturally, then, the Chinukh did not hesitate to develop an approach to this halakha that can apply only in cases where the false testimony accuses the defendant of a capital offense. 

TUESDAY 

         Yesterday we discussed the halakha of "eidim zomemim," false witnesses.  The Torah in Parashat Shoftim (19:19) establishes that the false witnesses are punished "ka'asher zamam la'asot le-achiv" – with the same punishment they had sought to bring upon the defendant. The mishna in Masekhet Makot (5b), however, limits this punishment to cases where the witnesses' plot was discovered before the court carried out the sentence against the defendant.  Once, however, the plot is successful, and the defendant is punished or made to pay a given sum of money due to the false testimony, the witnesses can no longer be punished – even if their falsehood is subsequently discovered.  This halakha is called "ka'asher zamam ve-lo ka'asher asa" – "as he plotted, and not as he did."  Meaning, witnesses are punished only if their scheme never reached actualization; once the scheme is successful, the halakha of eidim zomemim no longer applies. Yesterday we saw the Ramban's explanation for this rather counterintuitive provision; today we will discuss another approach.

         The Maharal of Prague, in his "Gur Aryeh" to this verse, explains that only until the sentence is carried out can it be transferred onto the false witnesses. The halakha of "ka'asher zamam," that the court punishes the witnesses by doing to them what they had tried to cause the defendant, means that the court transfers its sentence from the defendant onto the witnesses.  But once the sentence against the defendant is carried out, it can no longer be transferred.

         This approach of the Maharal requires explanation.  What exactly does he mean when he speaks of "transferring" the punishment? And what difference does it make if the sentence was carried out or not?

         Rav Mordechai Kornfeld, in his internet shiurim, suggests the following explanation of the Maharal's analysis.  Generally, punishment can serve one of two purposes: either as retribution for the criminal act, or as a warning and deterrent to others.  In the case of false testimony, the Torah appears to emphasize the second element – the warning to others: "You shall do to him as he schemed to do to his fellow; thus you will eliminate evil from your midst. Others will hear and be afraid, and such evil things will not again be done in your midst" (19:19-20).  It seems that with regard to this violation, of rendering false testimony, the Torah is concerned mainly with conveying the message and warning to others, in an effort to obliterate this most harmful phenomenon from among the Jewish people.

         This, Rabbi Kornfeld suggests, may help explain the Maharal's comments.  Since the punishment of the eidim zomemim is intended as a warning to others, it applies only when it will yield this desired result effectively. According to the Maharal, punishing the witnesses can serve as a deterrent to other potential false witnesses only if they see how the scheme ricochets back at them, that such plots are not only unsuccessful, but come back to haunt the schemers themselves. The pain they seek to inflict upon others simply bounces back onto them.  If, however, the plot succeeds, then, according to the Maharal, no subsequent punishment can serve as an effective warning to potential violators. To the contrary, punishing the perpetrators will only publicize the crime and its success, which will have the effect of encouraging those considering similar criminal acts of perjury.

         Clearly, however, there is room to question the rationale underlying the Maharal's approach.  Even if the witnesses' scheme is successful, does the court not send a stern message to others by punishing them severely? Moreover, now that the Torah exempts false witnesses from punishment if their scheme is effective, doesn't this exemption itself encourage potential violators to attempt such a crime?  It seems, at first glance, that if anything, the halakha of "ka'asher zamam ve-lo ka'asher asa" only undermines the Torah's effort to discourage perjury.

         Tomorrow we will iy"H look at several additional explanations to this halakha. 

WEDNESDAY 

         Over the last two days we have discussed the law of eidim zomemim, introduced in Parashat Shoftim (19:16-20), by which a court punishes false witnesses by sentencing them to the punishment they had tried to bring upon the alleged defendant.  A seemingly peculiar provision, however, limits this halakha to situations where the witnesses' scheme was unsuccessful.  If their plot was disclosed only after the Beit-Din carried out the sentence against the defendant, in which case we would have intuitively called for a more severe punishment against the false witnesses – specifically in such a case the court does not punish them. 

         Today we will present a particularly novel approach to this halakha suggested by the Tumim (siman 38), a classic work on the Choshen Mishpat section of the Shulchan Arukh. The Tumim discusses a case of eidim zomemim where the defendant himself confesses to the crime of which he was initially accused.  Meaning, witnesses first testify to his having committed a given crime, and thereafter other witnesses accuse the first witnesses of being eidim zomemim – of testifying to an event at which they could not have been present.  Normally, as we have discussed, the court accepts the accusation of the second set of witnesses and punishes the first set as eidim zomemim.  In this case, however, the accused party comes to the defense of his prosecuting witnesses, confessing to the court that he indeed committed the crime of which they accused him.  Does the court ignore the defendant's confession and continue the hazama process as usual, or does his confession have the power to disrupt the process and undermine the testimony of the second set of witnesses?  The Tumim contends that in such a case, the Beit-Din does not proceed with the process of hazama.  If the defendant himself affirms the legitimacy of the witnesses who testify against him, then this confession renders all allegations against those witnesses irrelevant.  His affirmation of the testimony carries far more weight than any witnesses who challenge it.

         On the basis of this halakha, the Tumim suggests an explanation for the principle of "ka'asher zamam ve-lo ka'asher asa" – that the false witnesses are not punished if their scheme succeeds.  Since the defendant has the power to overrule the second group of witnesses who challenge the legitimacy of the first group, the court cannot definitively establish the falsehood of the witness' testimony without the silent presence of the defendant. Only if the defendant is present and makes no confession to affirm the validity of the testimony against him can the court declare the witnesses to be eidim zomemim.  Once, however, the defendant has been executed, the court loses the opportunity to hear his response to the accusations against the witnesses to his alleged crime.  Perhaps if he had heard these accusations he would have come to the witnesses' defense, knowing full well that they testified honestly and will be killed if the testimony against them is accepted.  Therefore, in the absence of the defendant, Beit-Din lacks the legal authority to administer punishment to the prosecuting witnesses if other witnesses claim that they had testified falsely.

         One could challenge this explanation of the Tumim on several counts.  We will just very briefly note that he, like the Sefer Ha-chinukh in the passage we mentioned two days ago, presumes the controversial view of the Rambam concerning the principle of "ka'asher zamam ve-lo ka'asher asa."  According to the Rambam, only cases involving an alleged capital crime are subject to this rule.  When the false witnesses testified to a crime warranting a less severe punishment or a payment, then they receive the "ka'asher zamam" punishment even if they are caught only after the initial sentence's execution.  The Tumim understands "ka'asher zamam ve-lo ka'asher asa" to mean that the defendant must be present for Beit-Din to punish the false witnesses.  He must therefore restrict this rule, as does the Rambam, to cases where the defendant was executed, since in all other instances he is still alive, even after Beit-Din has carried out the sentence.  His approach will not help explain the law of "ka'asher zamam ve-lo ka'asher asa" according to the majority position, which disputes the Rambam's view and applies this principle to all cases of hazama, not just to capital offenses. 

THURSDAY 

         As we have been discussing this week, Parashat Shoftim introduces the law of eidim zomemim, witnesses who testify falsely and are thus punished by having done to them that which they attempted to bring upon the subject of their testimony.  Thus, if their testimony would have resulted in the defendant's execution, then they themselves are executed.  The mishna in Masekhet Makkot (5b), as we have discussed, surprisingly limits this halakha to cases where the witnesses' scheme was revealed before the court carried out the sentence warranted by their testimony. If, however, the court had, for example, executed the alleged criminal before the testimony's falsehood was discovered, then the witnesses, ironically enough, are exempt from punishment. Today we will present three simple and straightforward approaches to this rule.

         The Meiri, in Masekhet Makkot, cites the Geonim as explaining that, quite simply, false witnesses who succeed in their sinful plot do not deserve the expiation earned through capital punishment.  In other words, the success of their scheme renders their sin too severe for capital punishment – strange as that may sound.  Since those executed by the court thereby earn atonement for their wrongdoing, this "privilege" is withheld from certain sinners who are denied even this opportunity for expiation.

         The Meiri himself, however, suggests a different interpretation, that the Torah suspended the witnesses' punishment if their plot succeeds in order to preserve the honor of the Beit-Din.  Punishment by the court always earns the public's attention.  In a situation where the court issued an incorrect ruling based on misinformation, it is in the Beit-Din's best interest to keep this sorrowful incident as quiet as possible.  Should their error become public knowledge, people will accuse the court of incompetence and question its authority and right to adjudicate.  In the interest of maintaining the people's respect for the judicial system, the Torah restricted the punishment of eidim zomemim to instances where the scheming witnesses were caught before the court acted on their testimony.

         Finally, Rav Ovadya of Bartenura, in his commentary to the Chumash, explains this law as a sort of "statute of limitation" intended to prevent an endless cycle of false testimonies.  If a second set of witnesses are given the ability to testify against the first set even after the initial sentence's execution, then the embittered defendant, or, in the case of capital punishment, his relatives, will falsely testify against the accusing witnesses as an act of vengeance.  Then those witnesses convicted of perjury will have their relatives testify against the witnesses who testified against them, and so on.  Unless the Torah imposes some limit on the power of hazama, which allows witnesses to invalidate the testimony of other witnesses and have them punished, this power will easily be abused by disgruntled convicts or their friends and relatives.  The Torah therefore very wisely restricted the law of hazama to instances where the witnesses' scheme was discovered before the court executed judgment.

Rav Barukh Ha-levi Epstein, in his "Torah Temima," cites this explanation of Rav Ovadya of Bartenura and expresses his astonishment over the fact that other writers struggled so hard to find other approaches, rather than accepting this simple and straightforward explanation. 

FRIDAY

         In Parashat Shoftim the Torah outlines the procedures for warfare, including the address delivered to the warriors by the "kohen mashu'ach milchama," the kohen specifically appointed for this purpose, before battle.  The Torah writes that the kohen first encourages the soldiers and urges them not to fear, "for it is the Lord your God who marches with you to do battle for you against your enemy" (20:4). Thereafter, the Torah writes, the "shoterim," the officials, speak to the army and issue furloughs to various groups of men – anyone who has betrothed but yet to marry a woman, anyone who has built a house but did not move in, anyone who has planted a vineyard but has yet to reap a harvest, and anyone who feels afraid.  The oral tradition explains that actually, the kohen would issue both declarations – the words of encouragement, and the exemption from service; the shoterim would merely repeat the exemption declaration after the kohen (see Rashi, 20:8).

         The mishna in Masekhet Sota (8:7) points out that the exemption granted to these groups of soldiers applies only during a "milchemet reshut" – an optional battle, a war waged to enlarge the country's territory and the like. When it comes to a "milchemet mitzva," however, an obligatory war, such as against the Canaanite nations, Amalek, or enemies who threaten Benei Yisrael's existence – no one is excused from military duty. 

         In light of this, we would naturally expect that when the army embarks on a milchemet mitzva, the kohen should declare only the first half of the address – the guarantee of God's assistance.  He obviously has no need to issue the second half, the list of exemptions, if these exemptions do not apply in such a battle.

         Surprisingly, however, the Rambam, at the beginning of the seventh chapter of Hilkhot Melakhim, rules that the kohen mashu'ach milchama delivers his address during both a milchemet mitzva and a milchemet reshut.  He does not specify that the kohen speaks only the first half, and thus implies that the kohen delivers the entire address dictated by the Torah.  At first glance, this seems ludicrous.  Why would the kohen talk about the exemptions from military duty even during a battle when these exemptions do not apply?

         Rav Soloveitchik zt"l (as cited by Rav Herschel Shachtar in "Mi-peninei Ha-Rav") suggests an explanation based on a basic distinction between two levels of obligation to wage war – the personal and the communal. In the case of a milchemet mitzva, Rav Soloveitchik argued, both levels of obligation are in force.  Each individual bears a personal obligation to fight, and Am Yisrael as a whole bears the collective responsibility to defend itself (or, in the cases of the Canaanites and Amalek, to destroy these nations).  Regarding a milchemet reshut, by contrast, when the king, in conjunction with the Sanhedrin, declares war, then the nation bears a communal responsibility to support the government's decision and join the armed forces.  However, no personal obligation applies in such a case; individuals bear an obligation to fight only insofar as they are included among Am Yisrael. 

         The exemptions granted to the groups of soldiers mentioned in the Torah, Rav Soloveitchik explains, can excuse the soldier only with respect to the national, communal obligation.  The kohen mashu'ach milchama, representing the nation's military, exempts certain individuals from the national obligation of fighting, as he determines that they are unfit for service.  Therefore, in a milchemet reshut, these men may return home.  However, in a milchemet mitzva, though these groups of fighters are exempted from the communal responsibility, they still bear the personal obligation to participate in the war effort.  This responsibility cannot be lifted as a result of fear or a new house, wife or vineyard.  These factors can affect only the communal obligation, but not the mitzva that applies to each and every person on the individual level.

         In light of this analysis, Rav Soloveitchik explains, the Rambam maintains that the kohen announces the exemptions even in a situation of a milchemet mitzva.  For even in such a situation, the exemptions from the communal responsibility to fight apply; it is only the additional element of personal obligation that requires them to stay.

         Rav Soloveitchik added, however, that Rav Chayim Heller zt"l suggested resolving this difficulty with the Rambam's ruling with a simple emendation of the text.  The Rambam begins chapter 7 of Hilkhot Melakhim by writing, "In both a milchemet mitzva and a milchemet reshut, a kohen is appointed to speak to the nation… "  As we mentioned, this implies that the kohen declares the exemptions even in a milchemet mitzva.  But Rav Chayim Heller claimed that the first clause of this halakha – "In both a milchemet mitzva and a milchemet reshut" – actually belongs at the end of chapter 6.  The final halakha of chapter 6 discusses the mitzva found in Parashat Ki-Teitzei (23:14) that soldiers must keep a shovel with them in the military camp to allow them to properly cover bodily waste.  According to Rav Chayim Heller, the Rambam concluded this halakha by writing, "in both a milchemet mitzva and milchemet reshut."  A printing error, however, transferred this phrase from the end of chapter 6 to the beginning of chapter 7, giving the erroneous impression that even in a milchemet mitzva the kohen announces the exemptions from service.

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