“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.