Parshas Shoftim

נביא מקרבך מאחיך כמני יקים לך ד' אלקיך אליו תשמעון (18:15)

A biography was once written about Rav Yehoshua Leib Diskin, the great Rav of Brisk who later settled in Jerusalem. Before publication, the manuscript was shown to Rav Yitzchok Zev Soloveitchik, commonly known as the Brisker Rov, for his comments and suggestions. After reading it, he returned it and commented that everything was accurate and appropriate except for one anecdote. The author had recounted that the Brisker Rov’s father, Rav Chaim Soloveitchik, had such respect for Rav Yehoshua Leib that he remarked regarding him, אליו תשמעון – you shall listen to his words. The Brisker Rov argued that an express reserved by the Torah for a prophet of Hashem may not be used, even colloquially, in reference to a human being, no matter how great he was. Although the author insisted that the story was true and confirmed by witnesses, the Brisker Rov held his ground and the passage was removed.

Upon hearing this episode, the brilliant Satmar Rav smiled and asked someone to bring him Orach Chaim, Vol. 1. He opened it up to chapter 128 and pointed to the marginal notes of Rav Akiva Eiger which are printed there. Rav Akiva Eiger brings the opinion of the Arizal, as quoted by the Neziros Shimshon, who disagrees with the opinion of the Shulchan Aruch there, and concludes אליו תשמעון. The sharp mind and phenomenal recall of the Satmar Rav had allowed him to immediately remember where the great Rav Akiva Eiger had used the exact same phrase in reference to the Arizal. Nevertheless, he concluded by suggesting that this comment posed no challenge to the position of the Brisker Rav, as the Arizal himself was but an angel in human guise and fitting for such words!

ועשיתם לו כאשר זמם לעשות לאחיו ובערת הרע מקרבך (19:19)

ולא כאשר עשה מכאן אמרו הרגו אין נהרגין (רש"י)

In the event that a set of witnesses is found to be false and conspiring through the testimony of a 2^nd set of witnesses who claim that the 1^st set were in a different location at the time of the alleged incident, the beis din punishes the 1^st set by inflicting upon them whatever punishment they would have brought on the defendant through their testimony. Rashi, quoting the Gemora in Makkos (5b), notes that this is only in the event that their conspiracy is discovered before the defendant is punished. If, however, he has already been killed as a result of their testimony, then they are no longer to be put to death.

In his commentary on Makkos, Rashi explains that this law is derived from the Torah’s wording כאשר זמם לעשות לאחיו – as he conspired to do to his fellow – and a person is only considered one’s fellow as long as he is alive. Once he has been put to death, he is no longer called one’s fellow, and this law is no longer applicable. The Ritva there questions Rashi’s derivation by noting that the Torah uses the word אחיו in reference to the dead both when discussing the mitzvah of yibum (25:6-7) and in reference to Nadav and Avihu after their deaths (Vayikra 10:4).

Rav Ezriel Hildesheimer answers by suggesting that the word אחיו has two different connotations: a familial relative, or a “brother” with whom one is united through their common obligation in mitzvos. The difference is that while the former is still appropriate after death, which doesn’t negate one’s familial connection, the latter is only applicable as long as both parties are still alive, as the Gemora in Shabbos (30a) explains that a person becomes exempt from all mitzvos after he dies.

Therefore, it is perfectly appropriate for the Torah to use the expression אחיו in conjunction with the mitzvah of yibum, which applies only to one’s brother, or in association with deceased Nadav and Avihu when discussing them with their cousins Mishael and Eltzaphan, as this bond isn’t broken through death. Our verse, however, is discussing the laws of conspiring witnesses and their scheme to false punish “their brother,” the defendant. As there is no familial relationship between the parties, it can only be referring to their common obligation in mitzvos. If the verse refers to the defendant as their brother, it can only be applicable when he is still alive and has yet to be punished, thus providing a clear source for the ruling of the Gemora in Makkos, exactly as Rashi explained!

ויספו השטרים לדבר אל העם ואמרו מי האיש הירא ורך הלבב ילך וישב לביתו (20:8)

ר' יוסי הגלילי אומר הירא מעבירות שבידו (רש"י)

In listing the people who are permitted to return home from the battle front, the Torah includes one who is afraid and weak-hearted. Rashi explains that this refers to a person who is fearful that the sins which are in his hand will cause him to die in the battle. It is difficult to understand the use of this peculiar expression. In what way is it possible for sins to be in one’s hand more than they are in his heart or on his soul? Further, one of the examples given (Menachos 36a) of such is a sin is a person who speaks in between putting the tefillin on his head and placing the tefillin on his arm. As this isn’t from the more severe sins which requires Yom Kippur to effect forgiveness, why doesn’t he merely confess and repent his sin, which will effect immediate forgiveness and allow him to remain and fight?

Rav Shalom Shwadron, quoting his teacher Rav Leib Chasman, suggests that Chazal specifically used the expression that the sin is “in his hand” to hint to the fact that he has yet to relinquish his improper actions and is still figuratively holding on to them. The reason that he is unable to simply repent his actions is that he doesn’t want to! Nevertheless, although he is unwilling to admit the error of his ways and correct them, he is still intellectually cognizant of their impropriety and therefore fears the consequences of placing himself in the danger of war. Although he recognizes that his actions are inappropriate and could lead to his death, he is still unable to release them from his hand and properly correct his ways due to the tremendous force of habit. As we begin the difficult work of honestly evaluating ourselves and attempting to improve and grow throughout the month of Elul, the first step is to understand that one of the greatest weapons in the yetzer hara’s arsenal is the power of habit, a recognition which will allow us to loosen our grips and completely release the sins from our hands.

וענו ואמרו ידינו לא שפכו את הדם הזה ועינינו לא ראו (21:7)

כי עלתה על לב שזקני בית דין שופכי דמים הם אלא לא ראינוהו ופטרנוהו בלא מזונות ובלא לויה (רש"י)

When a corpse is found in the field, the elders of the nearest city are required to bring a heifer to a valley and slaughter it with an axe. They must then announce that they didn’t spill the blood of the deceased. Rashi quotes the Gemora in Sotah (45b), which explains that the sages clearly aren’t suspected of cold-blooded murder, but rather they must testify that they didn’t see this wayfarer leaving their city and allow him to continue without escorting him and providing him food. It is difficult to understand in what way would their providing a traveler with food protect him from a would-be murderer?

The Maharal answers that although on a natural level, having extra food in his backpack wouldn’t protect him against armed robbers, on a spiritual level it would indeed assist him greatly. When a person exists in a vacuum, he is judged on the basis of his own merits. He may be righteous and merit the performance of miracles, but the average person is clearly not on such a level. If so, what is he to do?

The Maharal explains that when a person is part of a larger community, he is able to “tap in” and benefit from their merits, which may protect him even in the event that his own personal merits are insufficient. When he was lodging in the town, this was indeed the case. When circumstances require him to once again set out on his own, escorting him on the beginning of his journey and giving him food to sustain him allows the bond to the community to be maintained even when he is now traveling on his own. A town which allows a visitor to depart without cementing the connection between them is therefore partially liable for any misfortunate that befalls him, as it may have been in their potential to prevent it, and the elders of the town closest to the corpse are required to testify that this wasn’t the case.

As the month of Elul begins and a person begins to fear the impending judgment of Rosh Hashana, he may find comfort in the message of the Maharal. We are all “travelers” through this world. If we live in our own vacuums, we will indeed be judged on our own merits in less than a month, a truly terrifying thought. However, if we affiliate ourselves with a community, becoming part of our shul and neighborhood and volunteering to help with communal organizations, we will then be able to benefit from their collective merits and will in turn earn an inscription for a year of health, happiness, and blessing!

ואתה תבער הדם הנקי מקרבך (21:9)

The Targum Yonason ben Uziel writes a fascinating idea. After the elders properly perform the ritual of slaughtering the heifer in a valley with an ax, he writes that a large swarm of insects miraculously flies out of the belly-button of the dead heifer and flies straight to the house of the murderer of the unidentified corpse, at which point the Sanhedrin is able to judge him for committing this atrocity. The Reikanti suggests an interesting hint to this concept by nothing that the last letters of the words in our verse, which speaks of removing the innocent blood from your midst, spell the word רימה – insect. Also, the Seichel Tov notes that העגלה (the cow) has the same numerical value as התולע בא – the bug will come. Nevertheless, it is difficult to understand how the Sanhedrin is permitted to act based on the miraculous actions of the insects in the absence of the two required witnesses to the murder. However, this would be resolved according to the version of the Paneiach Raza, who suggests that the bugs themselves attack the murderer and put him to death!

Parsha Points to Ponder (and sources which discuss them):

1) The Torah admonishes (16:19) judges against accepting bribes and warns that doing so will blind the eyes of the wise and twist the words of the righteous. Why does the Torah forbid the judge from taking a bribe but not similarly prohibit the parties from giving a bribe? (Tosefes Brocha)

2) A king was not permitted to have more than 18 wives (Rashi 17:17). If a man was married to 19 women and was subsequently appointed king, was he required to divorce one of them? (Rav Chaim Kanievsky quoted in Derech Sichah)

3) The Gemora in Shabbos (30b) records that Dovid HaMelech died on Shabbos. His son Shlomo was concerned about preserving and protecting his body, but a dead body has the status of muktzeh on Shabbos and may not be moved. The sages advised Shlomo to place an item, such as bread, on top of the body, which he would then be permitted to relocate. As a king is required (17:19) to have with him a Sefer Torah at all times, why did Shlomo need to use bread in order to permit the movement of his father when he could have simply carried him together with the Sefer Torah? (Tzafnos Paneiach by the Rogatchover Gaon)

4) The Be’er Heitev (Orach Chaim 238) quotes the Arizal that one shouldn’t study the Written Torah at night. The Shaar HaTzion there notes that it isn’t forbidden to do so, but it is clearly preferable to do so during the day. How can this be reconciled with the Sifri, which derives from the Torah’s emphasis (17:19) that the king must read from the Sefer Torah all the days of his life that he must do so not only by day but also at night, even though reading from it is a form of studying the Written Torah? (Torah L’Daas Vol. 10)

5) The Torah instructs (19:8-9) that in the Messianic era, when Hashem will expand the boundaries of the land of Israel, three additional cities of refuge should be set aside for unintentional murderers. Regarding this period, Yeshaya HaNavi prophesies (2:4) לא ישא גוי אל גוי חרב ולא ילמדו עוד מלחמה – nations won’t pick up swords against one another, and no longer will they practice war. If even non-Jews will live completely peaceful existences at that time, certainly that will be the case among the Jews, so why is there a need for additional cities of refuge to which murderers may flee? (Arizal quoted in Baalei Bris Avrom, Chida, V’HaIsh Moshe, M’rafsin Igri)

6) There is a legal principle that ספק דאורייתא לחומרא – regarding the observance of a Biblical commandment, one is required to be stringent even in case of doubt. There is a dispute among the Rishonim regarding the nature of this rule. The Rashba maintains that the Torah itself requires one to be strict when in doubt, while the Rambam opines that the Torah itself allows one to be lenient when in doubt and this stringency is Rabbinic in nature. The Torah forbids (20:19-20) a Jew to cut down a fruit-bearing tree in wartime, but permits one to destroy a tree which one knows is not fruit-bearing. According to the opinion of the Rambam, why must one know that it doesn’t bear fruit, as on a Biblical level one should be permitted to be lenient and cut down a tree even if he is merely in doubt as to its status? (Malbim, Taima D’Kra, Divrei Shaul)

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